CORNELL UNIVERSITY LIBRARY GIFT OF Mrs. J. F. Lyman )ATE DUE :, •} ^l\ 1% i 1 CAYLORD PRINTED IN U.S A. { Cornell University Library HE2710.N7 M16 1872 olin 3 1924 032 483 640 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924032483640 THE RAILROAD LAWS STATE OF NEW YORK. COMPKISING AN ANALYTICAL ARRANGEMENT OP THE ENTIRE STATUTE LAWS OP THE STATE, WITH NOTES OF JUDICIAL DECISIONS. TO WHICH AKE ADDED A TABLE OF EAILEOAD CHAETEES AND LOCAL ENACTMENTS, AND AN APPENDIX OF FOEMS. Bt R. bach McMASTER, OF THE NEW YORK BAR. NEW YOEK: BAKER, VOOEHIS & CO., LAW PUBLISHERS, 66 Nassatj Stkeet.- 1872, N ?' Entered, according to Act of Congress, in the year eighteen hundred and seventy-one, by BAKER, VOOEHIS & CO., In the office of the Librarian of Congress, at Washington. IKBR & GODWIN, PRINTERS PriutiDg-Honae Square. PREFACE. The present volume is designed to reduce to a compact and accessible form, the Law of Kailroads as it has been declared by the Legislature, and explained and construed by the Courts of this State. The arrangement adopted throughout the work, is believed to be the best of the many plans suggested. It would be difficult, to say the least, to keep the order in , which the sections of the general act occur, while attempting an arrangement more comprehen- sive than one of mere juxta position. Thus, in the general act, the manner of acquiring real estate for railroad purposes against the owner's consent (§§ 14-18), is described before the proceedings to determine the route (§ 22) ; and the manage- ment of its trains, as for example, the formation of passenger trains (§ 38), the transportation of persons and property (§§ 35, 36, 37) &c., before the construction of its road is dis- posed of, — as the erection of railroad fences (§ 44), which is a condition precedent to the operation of the road (see Laws 1854, ch. 282, § 8), or the erection of sign-boards at crossings (§ 40). Again, the sections themselves, in some cases, contain a diversity of subject-matter, which would of itself necessitate a classiflcation under several heads. Section three, of chapter five hundred and eighty-two, of the Laws of eighteen hundred and sixty-four, contains, for example, two totally distinct and irrelevant provisions, — one, providing that the cars shall be supplied with drinking-water for the use of the passengers, and the other, that where the main route 'of road does not exceed fifteen miles, the board of directors may consist of seven stockholders. These are a few of the reasons which prompted a departure from the numerical order of the sections of the general act. IV PREFACE. The statute law relative to the subject, has been fully and literally set forth. Where, as in a few instances, a section has been resolved with regard to its subject-matter, and sepa- rated, the separation has been invariably indicated by a foot note, with a reference to the page on which the remainder of the section would be found in full. This separation has been avoided, wherever it could be consistent with the plan, and in each of the four instances in which it occurs, the propriety of such separation, it is believed, will be apparent. A table of reference to special charters and local enact- ments has been added for consultation, in connection with the general laws. The utility of such a table is obvious. New Yoek, December, 1871. E. B. McMASTEE. TABLE OE CONTENTS. PAGE. PREFACE iii I. OF THE FORMATION OF THE COMPANY ; AND HERE- IN OF THE ARTICLES OF ASSOCIATION 9 Articles of association 9 Conditions upon which articles are filed 13 Organization of companies using narrow gauge 14 Organization of railroads operated by stationary power.. . 15 Company may alter and amend articles of association .... 17 Irregularity in articles of association, how ciured 17 II. OF THE POWERS OF THE CORPORATION 19 Corporate powers 19-33 III. OF THE CORPORATE EXISTENCE; AND HEREIN OF THE DISSOLUTION 24 Corporate existence must be proved, when 24 Act of incorporation, how pleaded 24 Evidence of incorporation ■ 25 Term of existence, how extended 25 Forfeiture for non-user 36 Provision of revised statutes as to forfeiture, when not applicable , 27 Charter subject to alteration, suspension, and repeal 38 Dissolution 39 Vi CONTENTS. IV. PAGE. OF THE CAPITAL STOCK; AND HEREIN OF ITS IN- CREASE 3^ The stock ^^ Subsequent subscription to capital stock 34 Non-payment of stock 35 Increase of stock 37 Unauthorized issue of stock 38 Stock fraudulently issued 39 V. OP THE STOCKHOLDERS; AND HEREIN OP THEIR LIABILITY 41 Who deemed stockholders 41 Stockholders' liability 43 Service of process on stockholders 47 Stockholders, how named as defendants 47 VI. OP THE DIRECTORS ; AND HEREIN OF THEIR ELEC- TION 48 The directors 48 The books 56 When board may be constituted of less number than fifteen 57 The ofllcers 68 VII. OF THE CAPACITY OF THE COMPANY TO HOLD REAL ESTATE; AND HEREIN OF THE MANNER OF ITS ACQUISITION 59 Preliminary survey gg Map and profile of proposed route gg Capacity of company to receive and purchase land 62 Title to roadway, how acquired g3 Title to real estate, how acquired against consent of ovraer g^ When commissioners may be appointed 65 66 The petition gi^ Petition and notice, how, served on resident gg On non-resident gg CONTENTS. vii PAGE. On infant 7q On person of unsound mind 70 On unknown party 70 Service in cases not provided for 71 Interests of infants, &c., how protected 71 Rights of uninown party, how protected 73 Appointment of commissioners 72 Duties of commissioners ; the report 73 Appraisal not affected by change of ownership 77 Report, how confirmed 78 Effect of order confirming report 79 Conflicting claims to compensation, how determined 83 The court to have power to carry proceedings into effect. . 83 The court to have power to amend proceedings 84 Proceedings to correct defective title, and to acquire additional real estate 84 Proceedings to acquire special estate 88 Proceedings to acquire title, when trustee, &c., is not authorized to sell 89 Title to State lands, how acquired 90 Salt lands 91 Title to Indian lands, how acquired 91, 93 Title of the United States to certain lands, not affected by raUroad privileges 93 VIII, OP THE CONSTRUCTION OF ROAD 93 Map and profile of land taken for railroad - 93 Width of road 94 Companies may construct road of narrow gauge . . . ; ' 94 Weight of rail to be used , 95 Weight of rail to be increased, when 95 Railroad fences, farm crossings, cattle guards 97 Provision extended to embrace every railroad company. . . 103 Landowner's agreement to erect fence 103 Lessees of railroad to maintain fences 104 Sign-boards at railroad crossings 105 Railroad buildings for accotamodation of passengers and freight 106 Construction of railroad near or across canal 108 Change of grade of track crossing canal 107, 108 Change of portions of road to improve grade 109 Change of route 109 Construction of part of line in adjoining State Ill Till CONTENTS. PAGE. Eailroad connections and intersections, how constructed. . Ill Line common to two companies, how constructed US, 113 Railroad may be constructed across, along, or upon high- ways, &c 11^ Highways laid out across track 117 Company to take such highway across its track 118 Penalty for neglect of such duty 118 Highway may be carried tmder or over track 119 Commissioners of highways may consent to construction of railroad across public highway 119 Commissioners of highways to enforce duty of company respecting highways 120 Railroad to compensate turnpike company-, &c., for cross- ing same 180 When common council may permit construction of city railroad 131 Conditions upon which authority to construct such road is granted 134 Grants to city raUroads confirmed 134 Railroads in the city of New York 125 Street railroads in the city of Buffalo 135 Injury to railway property 137 Liens for labor and materials employed in erecting rail- road bridges, &c 138 Liability of company for labor performed in constructing ■ road 138 Service of process on railroad corporations 130-133 IX. OF THE MANAOEMENT OF THE ROAD 133 Noxious weeds I33 Passenger trains, how formed I33 Cars to be supplied with drinking water for use of pas- sengers ; J34 Car platforms jg^ Penalty for violation of act J3g Construction of act jog Time allowed for compliance with act J3g Sleeping cars ^ ow Signals at crossing ^ „o Annual report required of company 142-148 Lessees of road to make report , ^0 Annual report of street or horse railroads 148-151 Penalty for neglect to make report j-^ CONTENTS. IX X. PAGE. OF RAILROAD EMPLOYEES 153 Qualification of employees of road 153 Disqualifications 153 Penalty for offending against provisions of act 153 Company to refuse employment to persons of intemperate habits 154 Employee liable to a penalty for intoxication 154 Employees to wear indicia of office 155 Employees to provide and wear uniform 155 Penalty for violation of act by company 157 Construction of act 157 XI. OF RAILROAD POLICE 158 Appointment 158 Duties and powers of police 158 Police to wear indicia of office 159 Their compensation 159 Police discontinued, how 159 xn. OF THE TRANSPORTATION OF PERSONS AND PROP- ERTY ; AND HEREIN OF COMPENSATION. ... 160 Power of the company to carry passengers and property. . 160 Duty of company towards passengers and property offered for transportation 161 Liability for loss of freight on connecting lines 171 Check to be affixed to baggage 172-175 Unclaimed freight, how disposed of '. 175-177 Transportation of live stock 177 Expense attendant on care of animals, provided for 178 Penalty for violation of act 179 Repeal of canal tolls 179 Transportation of United States mail 180 Penalty for exacting excessive fare 181 Ejection of passengers for non-payment of fare; 181 Unauthorized sale of tickets 183 Deposition of witnesses respecting same. 183- Penalty for violation of act 184 CONTENTS. PAGE. Eegarding theft of railroad tickets 18^. 185 Kegarding forged or counterfeit tickets 185, 186 What deemed railroad ticket 186 Immigrant ticket 186 Compensation allowed for transportation of immigrants. . 187 Penalty for violation of act 188 Proceedings on arrest of oflfender 188 Annual statement of charges for transportation of im- migrants 189 Sale of immigrant tickets in the city of New York 190 Penalty for violation of above provisions 191 Liability for soliciting immigrants as passengers before landing , 192 Examination and deposition of witness , 193 Free passes 193 Legislature may alter or reduce compensation upon road. . l94 Company may restrict its liability for injuries to pas- sengers 195 Liability of company for death from wrongful act 196 Action prosecuted, for whose benefit 197 Liability of servant of company for wrongful act causing death 199 XIII. OF KAILROADS HELD UNDER LEASE 200 Authority to lease ... 200 Transfer of stock 200 Lessees of railroad to maintain fences 201 Lessees to make annual report 202 XIV. OF THE CONSOLIDATION OF RAILROAD COMPANIES.. 203 Wben two or more companies may consolidate 203 What companies shall not consolidate oqq Proceedings to effect consolidation 203 Consolidation perfected, when one Effect of consolidation „„„ Consolidated company, how taxed „f.„ Fare allowed consolidated company „„„ Application of Act of 1850 to consolidated companies! ' '. 308 CONTENTS. XI XV. PAGE. OF RAILKOAD B0KD8 ; AND HEREIN OF THE MORt- GAGE 209 Company may issue bonds for loan 309 Railroad bonds, when payable to order only 310 Railroad bonds, bow transferrable 311 Mortgage of real and personal property to be recorded. . .. 311 Stockholder may redeem mortgage, on foreclosure 311, 313 Mortgagee may purchase railroad, on foreclosure 313 Rights acquired by purchaser of franchise 313 XVI. OP MUNICIPAL AID IN THE CONSTRUCTION OF RAIL- ROADS; AND HEREIN OP THE COMMIS- SIONERS 214 The petition 314 The hearing 317 Evidence of consent 318 Appointment of commissioners 319 Powers of commissioners 330-333 Moneys received by railroad, how applied 223 The bonds 333 The bonds to be registered 336 Bonds, when not negotiable. ; 336 Payment of the bonds 337-339 Disposition of redeemed bonds. 330 Municipal aid, restricted 331 Proceedings to obtain town aid, how reviewed 231 XVII. OF THE ASSESSMENT OF THE RAILROAD FOR THE PURPOSES OF TAXATION 233 Railroads subject to taxation 333 To be assessed, where 333 Manner of assessment 334 Capital liable to taxation : . . 335 Annual statement to be delivered to the comity clerk 236 Tax, to whom paid 237 Tax, how collected 237 Payment of tax, how credited 238 XU CONTENTS. PAGE. Valuation of railroad property apportioned among school districts 338 The apportionment 338 Neglect of assessors to make apportionment 339 Certified statement to be furnished by to-wn clerk 339 Alteration in school district, effect of 239 XVIII. OF THE APPLICATION OF THE GENERAL RAILROAD ACT 240 General Act of 1850 applicable to existing corporations. . 240 Repeal of Railroad Act of 1848 341 APPENDIX OF FORMS 243 TABLE OF RAILROAD CHARTERS AND LOCAL ENACT- MENTS 277 INDEX 303-841 THE EAILROAD LAWS STATE OF NEW YORK. I. OF THE FORMATION OF THE COMPANY; AND HEREIN OF THE ARTICLES OF ASSOCIATION. Articles of Association. — Any number of per- sons, not less than twenty-five, may form a company for tlie purpose of constructing, maintaining and operating a railroad for public use in the conveyance of persons and property, or for the purpose of maintaining and operating any unincorporated railroad already con- structed for the like public use ; and for that purpose may make and sign articles of association, in which shall be stated the name of the company ; the number of years the same is to continue ; the places from and to which the road is to be constructed, or maintained and operated (a) ; the length of such road as near as may be (F), and the name of each county in this State through or into which it is made, or intended to be made ; the amount of the capital stock of the company, which shall not be less than ten thousand dollars for every mile of road constructed, or proposed to be con- structed, and the number of shares of which said capi- 10 THE FOEMATION OF THE 00MPA2JT. tal stock shall consist, and the names and places of residence 'of thirteen directors of the company, who shall manage its affairs for the first year, and until others are chosen in their places. Eacli subscriber to such articles of association shall subscribe thereto his name, place of residence, and the number of shares of stock lie agrees to take in said company (c). On com-, pliance with the provisions of tlie next section, such articles of association may be filed in the office of the Secretary of State (J), who shall indorse thereon the day they are filed, and record the same in a book to be provided by him for that purpose ; and thereupon the persons who have so subscribed such articles of asso- ciation, and all persons who shall become stockholders in such company, shall be a corporation by the name specified in such articles of association (e), and shall possess the powers and privileges granted to corpora- tions, and be subject to the provisions contained in title three of chapter eighteen of the first part of the Revised Statutes, except 'the provisions contained in the seventh section of the said title (/). (Laws 1850, chap. 140, § 1.) (a) The termini. The articles of association set forth t'hat the company was organized for the purpose of constructing a railroad in the counties of Kings and Queens, " to commence in the city of Brooklyn at some convenient point, and to terminate at Newtown, Queens County." It appeared that there was a township of Newtown and a village of the saime name included within the township, the former bordering upon the city of Brooklyn, while the village was distant from Brooklyn about twenty-five miles. Seld, that the articles contemplated the construction of a road not only to but into the township of Newton (Mason v. Brook- lyn City & Newtown E. Co., 35 Barb. 373. To the same effect, Mohawk Bridge Co. v. Utica & Schenectady R. Co., 6 Paige, 654). And where one of 'the termini was located by the company at an eligible point in Brook- lyn, under its charter, and the particular location was adhered to for some years, it was held, concluded by its acts (Brooklyn Central R. Co. ». Brooklyn City R. Co., 32 Barb. 358. See, also, Hudson &c. Co. «. N T & Erie R. Co., 9 Paige, 323.) THE FOEMATIOK OF THE COMPANY. 11 (5) Liengtb of road. Only such an approximate estimate of the length of the proposed road, is demanded under the above section, as may be made iij good faith, without previous actual survey and location (Buffalo & Pittsburgh R. Co. ■». Hatch, 20 N. Y. 157). A misstatement of the length of the road is not a defence to an action to recover stock subscriptions, where there is no pretense of fraud or negligence in such statement (Troy & Rutland R. Co. b. Kerr, 17 Barb. 581) ; nor will mere neglect to construct the specified line of road, even without legislative sanction, discharge the liability of a subscriber to pay for his stock, un- less the powers and existence of the company have ceased in consequence of such neglect {Id.") But it seems, that in a proceeding instituted by the people to dissolve the corporation, an inquiry into the actual length of the road for the purpose of showing fraud, would be proper (Buffalo & Pittsburgh R. Co. ■». Hatch, supra). (c) Form of §ubscription. A subscription made in a firm name, is nqt inconsistent with the requisition that " each subscriber to such articles of association shall subscribe thereto his name, place of resi- dence, and the number of shares of stock Tie agrees to take in said com- pany" (Ogdensburgh, Rome &c. R. Co. v. Frost, 21 Barb. 541). Where a subscription was made by one in his own name, for fifty shares of stock of the corporation, and immediately afterwards he subscribed for fifty other shares, adding to his second signature the letters " Exr." — Seld, that the pendency of an action to enforce payment of the first subscription afforded no sufl5.cient grounds for abating an action to enforce payment of the second subscription, since the subscriptions themselves were sepa- rate contracts (Erie & N. Y. City R. Co. v. Patrick, 3 .Keyes, 356) ; but where one of several heirs, subscribed — "Estate of N. W. 100 shares, $10,000" — ^it was held that neither he, nor his co-heirs, were bound by it (Troy & Boston R. Co. ®. "Warren, 18 Barb. 310). Whatever may be the form of the subscription, it carries with it in all cases a promise to pay, unless, indeed, the obligation to pay is plainly excluded by the lan- guage of the subscription (Palmer v. Lawrence, 3 Sandf. 161 ; Hartford & N. H. R. Co. «. Croswell, 5 Hill, 383 ; Spear d. Crawford, 14 Wend. 20 j Stanton v. Wilson, 3 HiU, 153 ; Northern R. Co. v. MiUer, 10 Barb. 260 ; Rensselaer &c. Plankroad Co. ■». Barton, 16 N. Y. 457, note; Buffalo &c. R. Co. V. Dudley, 14 N. Y. 336). But subscriptions conditioned on pay- ment of dividends, or imposing restraints on the power of the directors to call in stock, are void as against public policy (Troy & Boston R. Co. V. Tibbits, 18 Barb. 297). Subscribers become corporators, \f'taen. No one who has subscribed to the articles of association before the corporation came into being is a corporator, or a member of the corporation, unless the articlf.s so subscribed by him have been filed as required by the act. Thus where duplicate sets of articles were used to facilitate subscriptions, one set of which was subscribed by the defendant, but was omitted to be filed r 12- THE FORMATION OF THE COMPANY. Held, that the corporators, by such omission, rejected him as a proposed member of the corporation, and had no claim on him (Erie & N. T. City R. Co. V. Owen, 33 Barb. 616). Bnt, qucere, whether such a sub- scriber had rights, which, had he complained, would have heen.pro- tected (Id.) The railroad company is not created, and does not become a legal body, until the articles of association are duly filed, and imtil the requirements of the statute are complied with, a subscription to the articles is simply a proposition to take a specified number of shares of the capital stock of the proposed company. Prior to the act of incorpo- ration, such proposition may be revoked, and is not a binding promise to pay (Burt v. Parrar, 34 Barb. 518). But in Lake Ontario &c. R. Co. ®. Mason (16 N. Y. 451), it was said that, " until the incorporation of the company was perfected, the other suiner-iiers had an interest in its execu- tion and performance, of which they could not be deprived by the act of the defendant." When, however, the incorporation of the company is perfected, the subscription becomes binding (Id. ; see also remarks of Cowen, J., in Stanton v. "Wilson, 3 Hill, 153) and constitutes, if not an express at least an implied promise, to pay, which will sustain an action to recover calls thereon (Ogdensburgh &c. R. Co. v. Frost, 31 Barb. 541 ; Lake Ontaiio &c. R. Co. i). Mason, 16 N. Y. 451 ; BuflFalo &c. R. Co. v. Dudley, 14 N. Y. 836 ; Northern R. Co. «. Miller, 10 Barb. 360; Hartford & N. H. R. Co. V. Croswell, 5 Hill, 388. See also Dayton v. Borst, 81 N. Y. 435 ; Schenectady & Saratoga R. Co. ®. Thatcher, 11 N. Y. 103 ; Rens- selaer &c. Plankroad Co. «. Barton, 16 N. Y. 457, note). Where, how- ever, the defendant merely signed a preliminary subscription paper, pre- vious to the incorporation of the company, whereby he agreed to take the amount of capital stock placed opposite his name, but did not sub- sequently subscribe either to the articles of association or to the capital stock in the books opened by the directors after iacorporation (Laws 1850, chap. 140, § 4), it was held that he did not become a stockholder and was not liable on the preliminary subscription (Troy & Boston R. Co. v. Tibbits, 18 Baxb. 397. The justness of this decision is doubted in Poughkeepsie &c. Plankroad Co. v. GriflSn, 31 Barb. 454, Brown J. dissenting). (d) Articles of association to be filed. Where the articles of association filed with the Secretary of State, consist of separate but exact copies of each other, each being signed by a different portion of the members of said company, the several papers are to be regarded \ as one instrument (Lake Ontario &c. R. Co. v. Mason, 16 N. Y. 451) (e) Corporate name. Railroad companies are especially ex- eiipted from the operation of the statutory provision authorizing cor- poVations organized under New York laws, to change their names by petition to the general term of the Supreme Court (Laws 1870, chap. 333 § 1)\ A mistake in naming the coiporation, in a suit to which it" is a THE FORMATION OP THE COMPANY. 13 party, if not pleaded in abatement, must lie deemed to have been waived (3 Rev. Stat. 459, § 14). if) Company subject to provisions of Revised Statutes. The insertion of such a clause is wholly a work of supererogation, sfl far as concerns its expressed intent ; had it been omitted, the company would still have possessed all the powers, and been subject to all the restric- tions and liabilities specified in the third title, not inconsistent with its charter (Bowen v. Lease, 5 Hill, 321. See also 1 Eev. Stat. 600, § 3). Such a proviso, that the railroad corporation shall be subject to the provisions of title three, chapter eighteen of the first part of the Revised Statutes, does not by implication, exempt it from the operation of title four of the same chapter (Id.) ; and the company may still be liable under the provisions of title four {Id.) The seventh section here alluded to, reads as follows : " If any cor- poration hereafter created by the legislature shall not organize and com- mence the transaction of its business within one year from the date of its incorporation, its corporate powers shall cease." The laws of 1846 (chap. 155, § 1), as well as the laws of 1850 (chap. 140, § 1), render this section of the Revised Statutes inapplicable to any act for incorporating a railroad company, which has, or shall have in its provisions the time in which it shall be forfeited for non-user. Constitutional provision regarding incorporation. The State constitution provides, that corporations may be formed under general laws ; but shall not be created by special acts except for muni- cipal purposes, and in cases where, in the judgment of the legislature, the object of the corporation cannot be attained under general laws (Const. Art. 8, § 1). But there is no constitutional provision which pro- hibits a railroad franchise being conferred upon, or exercised by indi- viduals, nor does there appear to be any objection to making such rights assignable (Per Barnard, .J., N. Y. & Harlem R. Co. ». Forty-second St. & Grand St. Ferry R. Co., 50 Barb. 309). Conditions upon which articles are filed. Sucli articles of association shall not be filed and re- corded in the office of the Secretary of State, until at least one thousand dollars of stock for every mile of railroad proposed to be made is subscribed thei-eto, ■ and ten per cent paid thereon in good faith, and in cash, to the directors named in said articles of associa- tion {a); nor until there is indorsed thereon, or an- nexed thereto, an affidavit made by at least three of the directors named in said articles, that the amount 14 THE FORMATIOiT OF THE COMPAIfT. of stock required . by this section tas been in good faith subscribed, and ten per cent paid in cash thereon as aforesaid (b), and that it is intended in good faith to construct or to maintain and operate the road men- tioned in such articles of association, which affidavit shall be recorded with the articles of association, as aforesaid. (Laws 1850, chap. 140, § 2.) (a) Payment of ten per cent. The payment of ten per cent upon the subscriptions, is not required to be made upon each separate share subscribed. The section only contemplates the payment of ten per cent upon such amounts as in the aggregate make a total subscrip- tion of $1,000 for eTery mile of road proposed to be constructed (Lake ^Ontario &c. E. Co. v. Mason, 16 N. Y. 451) ; and the subsequent pro- vision in the fourth section of the same act, requiring ten per cent on every subscription, to be paid, applies only to subscriptions made after organization, as provided for in that section {Id. Ogdensburgh &c. R. Co. ». Frost, 21 Barb. 541). It is immaterial whether there were not some subscriptions upon which the ten per cent had not been paid (Ogdensburgh &c. R. Co. v. Frost, supra). Nor is the payment of the ten per cent by each original stockholder a condition precedent to the company's right of action for calls (Id.) (5) Affidavit of directors. Where the affidavit of the directors, filed to procure incorporation, stated that the requisite sum " had been in good faitt subscribed to the capital stock of said company, and that ten per cent had been paid in cash on said subscriptions," held a suffi- cient compliance with the provisions of this section. It is necessarily implied by such aUegations that the payment of ten per cent was made to the directors, and in good faith (Buffalo & Pittsburgh R. Co. ■». Hatch. SO K. Y. 157). And where it appeared, from the articles of asso- ciation, that the length of the road was seventy-flve miles, and the affidavit of the directors annexed, alleged that $84,100 had been sub- scribed in good faith to the capital stock, Tield, that it was sufficient evidence that at least $1,000 of stock, for every mile of road, was sub- scribed (Id.) Organization of companies using narrow gauge.— Corporations may be formed under the act entitled " An act to authorize the formation of rail- road corporations, and to regulate the same," passed April second, eighteen hundred and fifty, for the pur- THE FOEMATION OP THE COMPANr. 15 pose of constructing and operating railroads for public use in transporting persons and property of the gauge of three feet and six inches or less, but not less than thirty inches within the rails, whenever capital stock of said corporation to the amount of five thousand dol- lars for every mile of such railroad proposed to be constructed and operated has been in good faith sub- scribed ; and whenever five thousand dollars or more for every mile of such railroad proposed to be con- structed shall, be in like manner subscribed, and ten per cent thereon in good faith actually paid in cash to the directors named in the articles of association, and an affidavit made by at least three of said directors, and indorsed on or annexed to said articles, that the amount of stock hereby required has been so sub- scribed as aforesaid, and ten per cent thereon paid as aforesaid, and that it is intended in good faith to con- struct and operate such railroad, then said articles with such affidavit may be filed and recorded in the office of Secretary of State ; provided said articles con- tain all the other facts required by law to be stated in articles of association made for organizing railroad cor- porations, under said act entitled " An act to authorize the formation of railroad corporations, and to regulate the same," passed April second, eighteen hundt-ed and fifty ; and all of the provisions of said last-mentioned act shall apply to corporations formed for the construc- tion and operating of railroads of the gauge herein above mentioned, except as herein provided or other- wise provided by law. (Laws 1871, chap. 560, § 5.) Organization of railroads operated hj sta- tionary power. — ^It shall be lawful for any number of persons, not less than ten, to form themselves into a company for constructing, maintaining, and operating 16 THE POKMATIOK OF THE COMPANY. a railway for public use, in the conveyance of persons and property, by means of a propelling rope or cable attached to stationary power, and upon compliance with the provisions of the first three sections of the act to which this is supplementary, they shall become a body corporate and politic, according to the provi- sions of said act ; Provided^ That the directors of any such company may be limited to any number not less than five, to be specified in the articles of association. (Laws of 1866, chap. 697, § 1.) Any such company may style itself by the name of the inventor or patentee of the particular method of propulsion used, together with such local desig- nation as the associates may deem desirable, and shall, by such name set forth in their articles of association, have and enjoy all the powers and privileges, and be subject to the liabilities mentioned in the aforesaid act passed April second, eighteen hundred and fifty, so far as the same are comprised in the first twenty-six sections and the twenty-eighth section thereof. (Laws 1866, chap. 697, § 2.) Companies formed under the provisions of this supplementary act may fix and collect rates of fare on their respective roads, not exceeding five cents for each mile or any fraction of a mile, for each pas- senger, and with right to a minimum fare of ten cents. (Laws 1866, chap. 697, § 3.) It shall be lawful for any company formed under this act to construct, and operate, and maintain a road or roads in any other State or country in which the same does not conflict with the laws of such State or country ; provided the assent of inventors or patentees are first obtained in the same manner and extent as would be necessary within the United States. (Laws 1866, chap. 697, § 4.) THE FOEMATIOK OP THE COMPAlfT, 17 Company may alter and amend articles of association. — Wbenever any railroad company shall have located its road so as to terminate at any rail- road previously constructed or located, whereby com- munication might be had with any incorporated city of this State, and any other railroad company shall subsequently locate its road so as to intersect the road of said first-mentioned company, and thereby, by it- self or its connections, afford communication with such city, then and in such case said first-mentioned com- pany may alter and amend its articles of association so as to have its road terminate at the point of inter- section with said road so subsequently located ; pro- vided the consent of the stockholders representing .or owning two-thirds of the stock of said company shall have been first obtained thereto. (Laws 18T1, chap. 560, § 2.) It is also provided, that whenever two companies shall agree upon the construction of so much of the line of railroad as is common to both of them, by one of the companies, the company which is not to construct such portion of the road, may alter and amend its articles of association, so as to terminate its Une at the points of inter- section, and may reduce its capital to a sum not less than $10,000 for each mile of the road constructed or proposed to be constructed in such amended articles of association. (Laws 1851, chap. 19, § 1 ; Laws 1854, chap. 283, § 13.) The directors may, also, upon changing the location of a portion of their line, and constructing it in an adjoining State, reduce the capital specified in the articles of association, to such an amount as may be deemed proper, but not less than $10,000 for every mile of road to be actually constructed within this State. (Laws 1851, chap. 19, § 3.) Irregularity in articles of association, how cured. — The directors of any corporation, organized under any general act for the formation of compa- nies, in whose original certificate of incorporation any informality may exist, by reason of an omission of any matter required to be therein stated, are hereby 18 THE FORMATION OF THE COMPANY. authorized to make and file an amended certificate or certificates of incorporation to conform to the general act under which said corporation may be organized ; and, upon the making and filing of such amended cer- tificate, the said corporation shall, for all purposes, be deemed and taken to be a corporation from the time of filing such original certificate. (Laws 1870, chap. 135, §1.) They may also be cured by special act, recognizing the existence of the corporation (Black River & Utica R. Co. «j Barnard, 31 Barb. 358 ; White ®. Coventry, 29 id. 305 ; White v. Ross, 15 Abb. Pr. 66). Suits or proceedings pending, or rights accrued against the company at the time of filing the amended certificate, are not afiected thereby. (Laws 1870, chap. 135, § 2.) II. OF THE POWERS OP THE CORPORATION. Corporate powers.— Every corporation formed under this act shall, in addition to the powers con- ferred on corporations in the third title of the eight- eenth chapter of the first part of the Revised Stat- utes (a), have power, 1. To cause such examination and surveys for its proposed railroad to be made, as may be necessary to the selection of the most advantageous route ; and for such purpose, by its officers or agents and servants, to enter upon the lands or waters of any person, but sub- ject to responsibility for all damages which shall be done thereto. 2. To take and hold such voluntary grants of real estate and other property as shall be made to it, to aid in the construction, maintenance and accommodation of its railroad ; but the real estate received by volun- tary grant shall be held and used for the purposes of such grant only. 3. To purchase, hold and use all such real estate and other property as may be necessary for the construction and maintenance of its railroad, and the stations and other accommodations necessary, to accomplish the ob- jects of its incorporation ; but nothing herein contained shall be held as repealing, or in any way affecting the act entitled " An Act authorizing the construction of railroads upon Indian lands," passed May 12, 1836. 4. To lay out its road not exceeding six rods in width, and to construct the same; and for the pur- 20 THE POWERS OF THE OOBPORATIOK. poses of cuttings and embankments, to take as much more land as may be necessary for the proper construc- tion and security of tie road, and to cut down any standing trees that may be in danger of falling on the road, making compensation therefor as provided in this act for lands taken for the use of the company. 5. To construct their road across, along, or upon any stream of water, water-course, street, highway, plankroad, turnpike or canal, which the route of its road shall intersect or touch ; but the company shall restore the stream or water-course, street, highway, plankroad and turnpike thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness. Every company formed under this act shall be subject to the .power vested in the canal commissioners by the seventeenth section of chapter two hundred and seventy-six of , the session laws of eighteen hundred and thirty-four. ( Nothing in I this act contained shall be construed to authorize the erection of any bridge, or any other obstructions across, I in or over any stream or lake navigated by steam or ' sail boats, at the place where any bridge or other ob- structions may be proposed to be placed; nor to authorize the construction of any railroad not already located in, upon or across any streets in any city, with- out the assent of the corporation of such city. Nor to authorize any such railroad company to construct its road upon and along any highway, without the order of the supreme court of the judicial district in which said highway is situated, made at a special term of said court, after at least ten days' notice in writing of the intention to make application for said order shall have been given to the commissioners of highways of the town in which said highway is situated. (As amended Laws 1864, chap. 582, § 1.) THE POWEBS OF THE COEPORATIOIf, 21 6. To cross, intersect, join and unite its railroad i with any other railroad before constructed, at any point on its route, and upon the grounds of such other rail- ' road company, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the objects of its connections. And every company whose railroad is or shall be hereafter intersected by any new railroad, shall unite with the owners of such new railroad in forming such intersections and connec- tions, and grant the facilities aforesaid ; aud if the two corporations cannot agree upon the amount of com- pensation to be made therefor, or the points and man- ner of such crossings and connections, the same shall be ascertained and determined by commissioners, to be appointed by the court as is provided in this act in respect to acquiring title to real estate. 7. To take and convey persons and property on their railroad by the power or force 6f steam or of animals, or by any mechanical power (b), and to re- ceive compensation therefor. 8. To erect and maintain all necessary and conve- nient buildings, stations, fixtures and machinery for the accommodation and use of their passengers, freight and business. 9; To regulate the time and manner in which pas- sengers and property shall be transported, and the compensation to be paid therefor; but such compen- sation, for any passenger and his ordinary baggage, shall not exceed three cents per mile. 10. From time to time to borrow such sums of money as may be necessary for completing and finish- ing or operating their railroad, and to issue and dis- pose of their bonds for any amount so borrowed, and to mortgage their corporate property and franchises to secure the payment of any debt contracted by the 22 THE POWERS OE THE COEPOEATION. company for the purposes aforesaid; and the directors of the company may confer on any holder of any bond issued for money borrowed as aforesaid, the right to convert the principal due or owing thereon, into stock of said company, at any time not exceeding ten years from the date of the bond, under such regulations as the directors may see fit to adopt. (Laws 1850, chap. 140, § 28.) {a) PoTfrers conferred by ReTised Statnte§. The powers thus granted to raiboad companies, as corporations, are : (1) To have succession by its corporate name, for the period limited in its charter. (2) To sue and be sued, complain and defend, in any court of law or equity. (3) To make and use a common seal, and alter the same at pleasurp. The corporate seal, where authorized or required by law, may be affixed by making an impression directly On the papers (Laws 1848, chap. 197, § 1). (4) To hold, purchase and convey such real and per- sonal estate, as the purposes of the corporation shall require, not exceed- . ing the amount limited in its charter. (5) To appoint such subordinate officers and agents, as the business of the corporation shall require, and to allow them a suitable compensation. (6) To make by-laws, not in- consistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of stock (1 Rev. Stat. 599, § 1). But no corporation is to possess or exercise any corporate powers, in addition to those enumerated, unless the same are expressly given in. its charter, or the act under which it is incorporated, or neces- sary to the exercise of the powers so enumerated and given {Id. § 3). Every corporation, however, has, besides the powers expressly conferred upon it by its charter, certain common law powers, which may be exer- cised in furtherance of the purposes of incorporation (East New York & Jamaica R. Co. v. Lightall, 6 Robt. 407) ; but these powers do not differ very essentially from those conferred by title three of chapter eighteen, of the first part of the Revised Statutes (Bowen v. Lease, 5 HUl, 231). Section four provides that " no corporation, not expressly incorporated for banking purposes, shall, by any implication or con- struction, be deemed to possess the power of discounting bills notes, or other evidences of debt, of receiving deposits, of buying gold and silver, bullion, or foreign coins, of buying and selling biUs of exchange, or of issuing biUs, notes, or other evidences of debt, upon loan, or for circula- tion as money." (J) Mectaanical power. Authority to use "any mechanical power," authorizes the use of steam power (Moshier ■». Utica & Schen- ectady R. Co., 8 Barb. 437.) THE POWERS OF THE COEPOEATIOS^. 23 Exercise of powers, hOAV regulated. The exercise of any franchise, liberty or privilege, not allowed by the charter of the corporation, may be restrained by injunction (3 ReT. Stat. 463, § 31 ; Code of Procedure, § 219; Laws 1870, chap. 151). And on an attempt by the company to abandon or discontinue the use of a portion of their road, the People through their Attorney-General may compel it to repair and operate the same. (The People v. Albany & Vermont R, Co., 19 How. Pr. 533 ; see also The People ex rel. Town of Schaghticoke v. Troy & Boston R. Co. 37 How. Pr. 437.) III. OF THE CORPOEATE EXISTENCE; ANI> HEREIN OF THE DISSOLUTION. Corporate existence must he proyed, when. In suits brought by or against a corporation created by or tinder any statute of this State, it shall not be necessary to prove on the trial of the cause, the exist- ence of such corporation, unless the defendant shall have alleged in the answer in the action that the plaintiffs or defendants, as the case may be, are not a corporation (2 Rev. Stat. 458, § 3). Who may question corporate existence. Neither a de- fendant who has contracted -with the corporation de facto ; nor a stock- holder who has acted as director thereof, is permitted to plead as a defence to an action by the company, an irregularity or defect in its organization, as affecting its corporate capacity to contract or sue, or that it had incurred a forfeiture (Palmer ». Lawrence, 3 Sandf. 161 ; Steam Navigation Co. v. Weed, 17 Barb. 378 ; Eaton t. Aspinwall, 6 Duer, 176 ; s. c. 13 How. P-r. 184 ; s. o. 3 Abb. Pr. 417; Sands «. Hill, 43 Barb. 651). Such objections are only available on behalf of the People of the State (White ». Coventry, 39 Barb. 305 ; Hyatt v. Esmond, 37 a. 601 ; Cooper «. Shaver, 41 id. 151; White ». Ross, 15 Abb. Pr. 66; Sands «. Hill, supra). Nor can the defendant, plead as a defence, that the corporation was dissolved unless such dissolution had been estab- lished by judgment of the court (Bank of Niagara ». Johnson, 8 Wend. 645; People v. President &c. of Manhattan Co. 9 id. 351). But the de- fendant may set up that the charter had been repealed, or surrendered (Adam v. Beach, 6 Hill, 271), and it seems may show that it had expired by its own limitation (Id). A general denial pleaded in the answer is not sufficient to put the company to the proof of its corporate existence, in an action brought by it against the defendant (Bank of Genesee v. Patchin Bank, 13 N. Y. 309). Act of incorporation, how pleaded.— In actions by or against any corporation created by or THE COEPORATE EXISTEIfCE, 25 under any law of this' State, it shall not be necessary to recite the act or acts of incorporation, or the pro- ceedings by which such corporation was created, or to set forth the substance thereof, but the same may be pleaded by reciting the title of the act. (2 Eev. Stat. 459, § 13.) Eyidence of incorporation.— A copy of any articles of association filed and recorded in pursuance with this act, or of the record thereof, with a copy of the affidavit aforesaid indorsed thereon or annexed thereto, and certified to be a copy by the Secretary of this State, or his deputy, shall be presumptive evidence of the incorporation of such company, and of the facts therein stated. (Laws 1850, chap. 140, § 3.) In actions by or against the company, its corporate character is to be determined from the articles of association and affidavit ffled and re- corded with the Secretary of State (Buffalo &c. R. Co. ■». Hatch, 30 N. T. 157) ; and the certificate of the Secretary of State to a copy of the articles of association, is evidence of the filing and recording, and of the time when these acts were done (Id). All that a corporation is called upon to prove, to establish its existence, in a litigation with individuals dealing with it, is its charter and user under it (Wood v. Jefferson County Bank, 9 Cow. 194 ; Utica Ins. Co. v. Tillman, 1 Wend. 555 ; Same v. Cadwell, 3 id. 296 ; Fire Department of N. Y. ®. Kip, 10 id. 366 ; McFarlan «. Triton Ins. Co., 4 Den. 393 ; Jones v. Dana, 24 Barb. 395). Term of existence, how extended.— Any company heretofore formed, or hereafter to be formed under the provisions of the act entitled " An act to authorize the formation of railroad corporations, and to regulate the same," past April second, eighteen hundred and fifty, or the acts amendatory thereof, may extend the time for the continuance of such company beyond the time mentioned in the original articles of association for such purpose, by the consent of two- thirds in amount of the stock held by the stockholders 3 26 THE COEPOKATB EXISTEKOE. of said. company in a certificate to be signed and proved or acknowledged by the stockholders signing the same, so as to entitle it to 'be recorded, which cer- tificate shall be filed in the office of the Secretary of State, who shall upon such filing, record the same in the book kept in his office for the record of articles- of association of railroad companies under said act, and make a memorandum of such record in the margin of the original articles of association in such book ; and thereupon the time of the existence of such company shall be extended as designated in such certificate. (Laws 1866, chap. 697, § 5.) The laws of 1867, also furnish a provision regarding such extension, hut it is only applicable to corporations then formed and in existence. The act is as follows : " Any company or corporation heretofore formed under any general law of this State, at any time within three years of the expiration of its term of existence, may extend the term of existence of such company or corporation beyond the time mentioned in the original articles of associ- ation or certificate of incorporation, by the consent of the stockholders owning two-thirds in amount of the capital stock of such company or corppration, in and by a certificate to be signed by such stockholders, and acknowledged or proved, so as to enable them to be recorded, which certificate shall be filed in the office of the county in which its original certificate or articles of association, if any, are filed or recorded ; and the said Secretary of State and the clerk of such county shall, upon such fil- ing, record the same in the books kept in their respective offices for the record of articles of association, and make a memorandum of such record in the margin of the original articles of association, in such book, and thereupon the time of existence of such company shall be extended as designated in such certificate, for a term not exceeding the term for which said company or corporation was organized in the first instance " (Laws 1867, chap. 937, § 1). Forfeiture for non-user.— If any corporation formed under an act entitled " An act to authorize the formation of railroad corporations, and to regulate the same," passed April second, eighteen hundred and fifty, shall not, within five years after its articles of as- THE COKPOKATE EXISTENCE. 27 sociation are filed and recorded in the office of the Secretary of State, begin the construction of its road, and expend thereon t§n per cent on the amount of its capital, or shall not finish its road and put it in operation in ten years from the time of filing its'" articles of association, as aforesaid, its corporate exis- tence and powers shall cease. (Laws 1850, chap. 140, § 47 ; Am'd Laws 1864, chap. 582, § 5 ; Am'd Laws 1867, chap. 115, § 1.) Where the charter provided that the company should, within a cer- tain number of years, perform certain acts, or in default thereof be dis- solved : Seld, that the proviso was a mere defeasance, and that the cor- porate existence continued until dissolved by legal sentence (Brooklyn Central R. Co. v. Brooklyn City R. Co., 32 Barb. 358 ; People ». Manhat- tan Co., 9 Wend. 351 ; Matter of Ref Presb. Church of N. Y., 7 How. Pr. 476 ; Caryl «. McElrath, 3 Sandf. 176). Kor can the cause of forfeiture be enforced collaterally, or incidentally, or in any way but by a direct proceeding against the company, so that it may have an opportunity to answer (Towar v. Hale, 46 Barb. 361). The only remedy for non-user or abandonment of a part of the road, is by an action to vacate the charter, or dissolve the company (People v. Albany & Vermont R. Co., 34 N. Y. 361). Thus it cannot be compelled, at the suit of the attorney-general, on behalf of the People of the State, to re-open and operate such aban- doned portion of its road (Id). ProTision of Eevised Statutes as tp for- feiture, when not applicable. — The seventh section of title third, chapter eighteenth of the first part of tTie Revised Statutes shall not be so construed as to apply tp any act for incorporating a railroad company, which has or shall have, in its own provi- sions, the terms and the time in which it shall be for- feited for non-user. (Laws 1846, chap. 155, § 1.) The seventh section of title three, chapter eighteen, of the first part of the Revised Statutes, which provides that if the company shall not organize and commence the transaction of its business within %ne year from the date t)f its incorporation, its corporate powers are to cease, is expressly rendered non-applicable to companies- organized xmder the general railroad act (Laws 1850, chap. 140, § 1). 28 THE COBPOEATB EXISTEKOE. Charter subject to alteration, suspension and repeal. — The ctarterof every corporation, that shall hereafter be granted by the legislature («), shall be subject to alteration (h), suspension, and repeal in the discretion of the legislature. (1 Rev. Stat. 600, § 8. See also N, Y. Const, art. 8, § 1.) (a) Its constitutionality. A prpyision in the charter, reserving to the Legislature the power to amend or repeal it, is not unconstitu- tional, or void, as repugnant to the grant. It is only a limitation and not a repugnant condition (McLaren «. Pennington, 1 Paige, 103 ; Buf- falo &c. R. Co. «. City of Buffalo, 5 Hill, 309). And where the charter contains no such reservation, but is granted subsequent to the operation of the above section of the Revised Statutes, it may nevertheless be altered, suspended, or repealed by virtue of these provisions (Suydam ». Moore, 8 Barb. 358). Where the right of repeal is reserved to the legis- lature, it will not be presumed that such right was improperly exercised (McLauren v. Pennington, supra) ; but it seems, that the executive author- ity of a foreign government vnll not be presumed to have power to annul or dissolve a corporation, without legislative or judicial sanction or ap- proval (Lea V. American &c. Canal Co., 3 Abb. Pr. N. S. 1). (&) Amendment to cliarter. The legislature can amend the charter of the corporation, but if the amendment go further than mat- ters of police, and those duties which immediately affect the public, the corporation may decline to accept it (Troy & Rutland R. Co. v. Kerr, 17 Barb. 581). Whether, and when, the charter may be declared forfeited by such non-compliance or non-acceptance, are other questions {Id). Thus the charter cannot be amended in such a manner as to change the purpose for which the company was incorporated— as, from the establish- ment of a railroad to that of a steamboat line (Hartford & K. H. R. Co. V. Croswell, 5 Hill, 883 ; commented on as an extreme case, Schenectady &c. Plankroad Co. v. Thatcher, 11 N. T. 103; and doubted, Buffalo &o. R. Co. ■». Dudley, 14 N. Y. 336 ; see also remarks of the court in White v. Syracuse &c. R. Co., 14 Barb. 559 ; Troy & Rutland R. Co. ». Kerr, supra); but an amendment of the charter not prejudicial to the stockholdei-s, does not impair the force of the subscription, so as to relieve such stock- holders as were not consulted with reference to the amendment, or did not consent to the same, from payment of calls (Northern R. Co. «. Mil- ler, 10 Barb. 360; Troy & Rutland R. Co. v. Kerr, supra; White v. Syracuse &c. R. Co., supra). Under such power reserved to the legis- lature, each stockholder holds his stock subject to such liability as may attach to him in consequence of an alteration of the charter (Bailey ». HoUister, 36 N. Y. 112). Where the corporation intends applying for an THE COEPOEATE EXISTENCE. 29 alteration, amendment, or extension of its charter, it must cause a notice of such application to be published in the State paper, and also in a newspaper printed in the county {sic) in which the corporation has been established (1 Eev. Stat. 156, § 2), and such notice shall state specifically the alteration intended to be applied for (Id. § 4). Dissolution. — Th.e legislature may at any time annul or dissolve any incorporation formed under this act ; but such dissolution shall not take away or im- pair any remedy given against any such corporation, its stockholders or officers, for any liability which shall have been previously incurred. (Laws 1850, chap. 140, §48.) Where a corporation was dissolved by a decree of the State, and a subsequent decree contained a complete recognition of the corporation as existing, and by a new name : ffeJd, that the latter decree should be considered as reviving the corporation under its old charter, and subject, though under a new name, to its debts and liabilities incurred under the old name (Lea v. American &c. Canal Co., 3 Abb. Pr. N. S. 1). So, where the corporation had terminated its existence through non-user, it was held revived by a statute extending the time for the performance of the act, in which default had been made, and further amending and re- pealing portions of the charter (Crocker i>. Crane, 31 Wend. 211). The Code of Procedure provides, that " An action may be brought by the attorney-general, in the name of the people of this State, whenever the legislature shall so direct, against a corporation, for the purpose of vacat- ing or annulling the act of incorporation, or an act renewing its corpo- rate existence, on the ground that such act or renewal was procured upon some fraudulent suggestion or concealment of a material fact, by the per- sons incorporated, or by some of them, or with their knowledge and con- sent (Code, § 429"). The Code further provides, that the attorney-general, upon leave granted by the Supreme Court or a judge thereof (Code, § 431), shall bring an action, in the name of the people of the State, against a corporation — other than municipal — ^for the purpose of dissolv- ing it, whenever it shall (1) Offend against any of the provisions of the act or acts creating, altering, or renewing such corporation ; (2) Violat- ing the provisions of any law by which such corporation shall have for- feited its charter by abuse of its powers ; (3) Whenever it shall have forfeited its privilege or franchises by failure to exercise its powers ; (4) Whenever it shall have done or omitted any act which amounts to a sur- render of its corporate rights, privileges, and franchises ; or (5) When- ever it shall exercise a franchise or privilege not conferred upon it by law (Code, § 480). The statute provides that the corporation shall be 30 THE CORPORATE EXISTENCE. deemed to hare surrendered its charter whenever it shall hare remained insolvent; or neglected or refused to pay its debts; or suspended its ordinary and lawfill business for one whole year (1 Rev. Stat. 603, § 4 ; 2 id. 463, § 38). Such provisions, however, are mere defeasances, and the corporation continues in existence until judicially dissolved (People «. Manhattan Co., 9 Wend. 351 ; Matter of Ref. Presb. Church of N. T., 7 How. Pr. 476 ; Caryl v. McElrath, 3 Sandf. 176). So an unauthorized lease and transfer of the whole road during the continuance of the charter, does not ipso' facto dissolve the corporation (Troy & Rutland R. Co. v. Kerr, 17 Barb. 581) ; since the forfeiture can only be taken advantage of in proceedings to dissolve the company (Towar v. Hale, 46 Barb. 361). An action to vacate the charter, or dissolve the corporation, is the only remedy for non-user or abandonment of a portion of its road (People v. Albany & Vermont R. Co., 34 N. T. 261). Where, in proceedings by the people for such purpose, none of the material allegations of the com- plaint are denied by the answer, although the alleged forfeiture is at- tempted to be excused : Held, that the fact of insolvency and suspension of business being admitted by the answer, no explanation could be avail- able or admissible to excuse the forfeiture. On such pleadings the plain- tiff may apply at special term for judgment of forfeiture and the appoint- ment of a receiver (People ». Northern R. Co., 43 N. T. 217 ; afltening s. c. 53 Barb. 98). The provisions of the Revised Statutes (3 Rev. Stat. 468, §§ 36, 37), with respect to the sequestration of the corporate property and the appointment of a receiver, on the application of a judgment creditor, upon the return of the execution unsatisfied, do not necessarily dissolve the corporation. They may cause a suspension of business, which might render the company liable to be dissolved under section thirty-eight {Id. § 38 ; see supra), but such consequence by no means invariably follows (Mann v. Pentz, 3 N. Y. 415). No stockholder can obtain a pre- liminary injunction in a suit against the company, and have a receiver appointed with fiill authority bver the corporation, and thereby work its dissolution, unless it be insolvent (Howe ». Deuel, 43 Barb. 504), nor can an illusory suit be brought in the stockholder's name, but in the interest of a rival company, for the purpose of dissolving the corporation (Water- bury V. Merchants' Union Exp. Co., 50 Barb. 157 ; a. c. 3 Abb. Pr. N. S. 163). Upon the dissolution of the company, unless other persons are appoiDted by the legislature, the directors are to be the trustees of the creditors and stockholders (1 Rev. Stat. 600, § 9) ; but the repealing law may appoint trustees to close the affairs of the corporation (McLaren v. Pennington, 1 Paige, 103). There are but two' ways under the laws of this State by which the dissolution of a corporation can be affected by the voluntary action of its members. The one is by a formal surrender of its corporate rights to, and acceptance of the same, by the State; and the other, by a petition to the Supreme Court (N. T. Marbled Iron Works V. Smith, 4 Duer, 363), as provided by the statute, as follows : " Whenever the directors, trustees, or other officers having the manage- THE CORPORATE EXISTENCE. 31 ment of the concerns of any corporation, or the majority of them, shall discover that the stock, property and effects of such corporation have been so far reduced by losses or otherwise, that it mil not be able to pay all just demands to which it may be liable, or to afford a reasonable secu- rity to those who may deal with such corporation, or whenever such directors, trustees or officers, or a majority of them, shall, for any reason, deem it beneficial to the interests of the stockholders that such corpora- tion should be dissolved, they may apply to the court of chancery, by petition, for a decree dissolving such corporation, pursuant to the pro- visions of this article " (3 Rev. Stat. 467, § 58). The statute provides what the contents and form of the petition shall be (Id. §§ 59, 60). Upon such petition the order to show cause is granted ex-parte (Id. 468, § 61) ; and notice of the contents of such order is to be published {Id. § 63). The proceedings before the referee {Id, §§ 63, 64) ; the dissolution of the corporation and the appointment of a receiver {Id. § 65) ; who may be eligible to such office (Id. § 66) ; the rights and duties of the receiver {Id. 469, §§ 67-78; 473, § 85) ; the dividends (Jd. 470, §§ 79-84), and the accounting of such receivers {Id. 473, §§86-89), are also regulated by the statute. No mere resolution of the corporators, even though unanimous, can dissolve the corporation (N.T. Marbled Iron Works ». Smith, supra). IV. OF THE CAPITAL STOCK; AND HEREIN OF ITS INCEEASE. The stock. — ^The stock of every company formed under this act shall be deemed personal estate (a), and shall be transferable in the manner prescribed by the by-laws of the company (J), but no shares shall be transferable until all previous calls thereon shall have been fully paid in (c); and it shall not be lavpfnl for such company to use any of its funds in the purchase of any stock in its own, or in any other corporation (d). (Laws 1850, chap. 140, § 8.) (a) Stock deemed personal estate. Such a clause has refer- ence not to the nature of the property held by the corporation for the benefit of its stockholders, but rather to that which the stockholders themselves have in the company (Mohawk & Hudson R. Co. «. Clute, 4 Paige, 384). (6) Transfer of stock. Under a provision, requiring the .certifi- cate of stock to be delivered up before the transfer shall be made, it is the duty of the company, upon the surrender of such certificate, to make the transfer ; and in case of refusal, it is liable in damages to the full value of the stock (Commercial Bank of Buffalo v. Kortright, 23 Wend. 348 ; affirming s. c. siib nom. Kortright v. Buffalo Commercial Bank, 30 id. 91) ; but a provision that the shares of stock shall be transferable only on the books of the company, contained in the by-laws (Gilbert ». Manchester Ii-on Co. 11 Wend. 637) ; or in the charter (Bank of Utica «. Smalley, 3 Cow. 770 ; s. 0. affirmed, 8 id. 398 ; Commercial Bank of Bufialo «. Kortright, supra), is intended merely for the protection of the company ; and a requirement of the by-laws that the stock certificate must be surrendered before the transfer shall be made, is not binding on a third party so as to affect his rights or deprive him of his property (N. T. & N. H. R, Co. ■». Schuyler, 34 N. Y. 30 ; affirming s. c. 38 Barb. 534). Thus a transfer of stock on the books of the company, to a lona fide purchaser for value, vests the title in the latter THE CAPITAI4 STOCK. 33 even though the transferror's certificate should be outstanding and not delivered up to be cancelled at -the time {Id). Nor will the trans- feree's title to the stock be affected by the fact that the outstanding certificate had been pledged to a third person as security for moneys ad- vanced thereon, without notice to the company (Id). Such pledgee, however, has a remedy against the company for allowing the transfer to be made without requiring the certificate of stock to be surrendered (Id). A transfer from one, holding no shares of stock on the company's books, passes no title (Id); nor conveys any title to subsequently acquired stock (Id). But, where, however, it appears from the transactions that the stock was received and transferred, on the same day, it will be deemed by a court of equity, until the contrary is established, to have been received before it was transferred (Id). As to the rights of a party receiving from the owner, as security for money borrowed by the latter, a stock certificate, with a transfer endorsed thereon, and power of attor- ney to transfer the same, they are purely equitable. He can compel a transfer of such stock on the books of the company, only while it stands in the pledgor's name (Id). As between the seller and himself, he has the entire title; as between the company and himself, he holds the equitable title which may ripen into a legal title on transfer being made (Id). One claiming, however, under transfer by endorsement in blank, must prove consideration (Dunn «. Commercial Bank of Buffalo, 11 Barb. 580, citing cases, and explaining Commercial Bank of Buffalo v. Kortright, 33 Wend. 348) ; though such holder is presumptively the equitable owner (Leavitt «. Fisher, 4 Duer, 1) ; and may fill the blanks with his own name and perfect the transfer (Id.; Fatman v. Lobach, 1 id- 354) ; but untU filling the blanks with his own name, he cannot recover of the company, for not transferring the stock and issuing the certificate to him (Commercial Bank of Buffalo v. Kortright, swprd). Where the company, upon a forged power of attorney, transferred the plaintiff's stock, cancelling the certificates and issuing new ones, it must make good the plaintiff's loss, either by the transfer of an equal quantity of stock, or by payment of its value (Pollock v. National Bank, 7 N. T. 374). The title to stock held by an officer of the company, and standing in his name, with the addition of his office, on the books of the company, is not, upon his resignation and the appointment of his successor, vested in the latter without a regular assignment or transfer (Matter of the Mo- hawk &c. B. Co. 19 Wend. 135). The sale of stocks on time, is legalized by the laws of 1858 (Laws 1858, chap. 134, § 1). (c) Stock shall not be transferred, when. Where the charter declares, that no transfer of the stock should be made, while the same remained unpaid for, the assignee of the stock certificate, without a transfer on the corporate books, takes it subject to the equity of the company (Stebbins «. Phenix Fire Ins. Co. 3 Paige, 350) ; and is not entitled to require the company to transfer the stock, except on terms of Ms satisfying the indebtedness (McCready ®. Rumsey, 6 Duer, 574). 34 THE CAPITAL STOCK. He must be regarded as succeeding simply to the rights and equities of his assignor (Mechanics' Bank «. N. T. & N. H. E. Co. 13 IST. T., 599; M'Cready v. Eumsey, supra). (d) Company cannot pnrcliase stock. Where the corpora- tion is prohibited from purchasing stock, its agreement to do so,, is void as against public policy (Barton «. Plankroad Co., 17 Barb. 397). Subsequent subscription to capital stock.— When such articles of association and affida\'it are filed and recorded in the ofiice of the secretary of state, the directors named in said articles of associa- tion may, in case the whole of the capital stock is not before subscribed, open books of subscription to fill up the capital stock of the company, in such places and after giving such notice as they may deem expe- - dient, and may continue to receive subscriptions until "the whole capital stock is subscribed (a). At the time of subscribing every subscriber shall pay to the directors ten per cent on the amount subscribed by him, in money (5) ; and no subscription shall be received or taken without such payment. (Laws 1850, chap. 140, § 4.) (a) Books of subscription. Those who subscribe tothe capital stock of the company, in the books opened to receive such subscriptions, become stockholdera in the company to the same extent as those who have subscribed to the articles of association (Troy & Boston R. Co. ». Tibbits,18 Barb. 397; Ogdensburgh &c. R. Co. •». Frost, 21 Barb. 541 ; Erie & N. Y. City R. Co. v. Owen, 33 Barb. 616) ; nor will the use of sub- scription papers mstead of " books," as required by the statute, invali- date the subscription (Hamilton &c. Plankroad Co. v. Rice, 7 Barb. 157). In case, however, the whole of the capital stock is previously subscribed for and taken, no one can become a stockholder by inscribing his name with a certain number of shares thereto annexed, on the books of the company (Lathrop v. Kneeland, 46 Barb. 483) ; nor can the company issue valid certificates for stock subscribed in excess of the limit (Mechanics' Bank v. N. T. & N. H. R. Co., 13 N. T. 599). (V) Payment of ten per cent on amount subscribed. The intent of the section is, that no subscription shall be valid until the THE CAPITAL STOCK. 35 payment often per cent of the amount subscribed; and not, that it shall be void, if a short interval elapse between the time of subscription and the payment of the money (Black Eiver & TJtica R Co. v. Clarke, 35 K. T. 208; Same v. Barnard, 31 Barb. 258; Beach ■». Smith, 30 N. T. 116; Same v. Same, 28 Barb. 254; Ogdensburgh &c. E. Co. v. Wolley, 1 Keye^, 118; s. c. 34 How. Pr. 54). Thus, by a payment subsequent to the subscription, the party making it will be deemed to have waived the condition, and will be liable as a stockholder on his subscription (Ogdensburgh &c. Co. v. WoUey, svpra). So where he gave his notes for the ten per cent of his subscription, and at maturity the note was paid, the subscription was thereby made valid (Id) ; and where he did not, at the time of subscribing for the stock, pay the ten per cent referred to, but subsequently paid forty per cent thereon, it was held that the subscription was rendered obligatory (Black River & Utica R. Co. V. Clarke, supra; Same e. Barnard, supra). So, where the sub- scription «was made upon the understanding that the ten per cent should be paid in services rendered to the company, and subsequently the de- fendant presented an account, charging for such services, and crediting the ten per cent, and the balance was paid him by the company, it was deemed a sufficient payment of ten per cent, to make him liable on his subscription (Beach v. Smith, supra). In the absence of such statutory restriction, the company may receive payment of such subscription otherwise than in money (East N. T. &c. R. Co. v. Lightall, 5 Abb. Pr. N. S. 458 ; 8. c. 6 Robt. 407). The provisions of this section are not applicable to subscriptions made imder section one, before incorporation (Lake Ontario &c. R. Go. o. Mason, 16 N. T. 451 ; Ogdensburgh &c. R. Co. V. Frost, 21 Barb. 541). JSTon-payment of stock.— The directors may require the subscribers to the capital stock of the company to pay the amount by them respectively subscribed, in such manner and in such installments as they may deem proper (a). If any stockholder shall neglect to pay any installment as required by a resolution of the board of directors, the said board shall be authorized to declare his stock, and all pre- vious payments thereon, forfeited for the use of the company; but they shall not declare it so foi'feited, until they shall have caused a notice in writing to be served on him personally, or by depositing the same in the post-office, properly directed to him at the post- office nearest his usual place of residence, stating that 36 THE CAPITAL STOCK. he is required to make sucli payment at the time and place specified in said notice ; and that if he fails to make the same, his stock, and all previous payments thereon, will be forfeited for the use of the company ; which notice shall be served as aforesaid, at least sixty days previous to the day on which such pay- ment is required to be made (b). (Laws 1850, chap. 140, § 7.) (a) Remedy by action. The existence of the authority to declare a forfeiture and sequestration of the stock and previous pay- ments made thereon, being merely a cumulative remedy, affords no objection to an action at law to enforce the payment of calls (Buffalo & N. Y. City R. Co. ■». Dudley, 14 N. T. 330 ; Troy Turnpike & RaUroad Co. «, McChesney, 21 Wend. 296 ; Ogdensburgh &c. R. Co. v. Frost, 21 Barb. 541; Troy & Boston R. Co. «. Tibbits, 18 id. 297; Northern R. Co. «. Miller, 10 id. 200; Troy & Rutland R. Co. v. Kerr, 17 Barb. 581. See also Maun v. Currie, 2 Barb. 294; Rensselaer &o. Plank'road Co. v. Barton, 16 N. Y. 457, note; Dutchess &c. M'f'g Co. v. Davis, 14 Johns. 238). The debt, which the subscription creates, being entire, the calls made by the company simply declare the time and installments in which the debt shall be paid (Small v. Herkimer M'f'g Co. 2 N. Y. 830). Notice to a delinquent subscriber to pay his subscription is not neces- sary to support an action for calls (Lake Ontario &c. R. Co. ®. Mason, 16 N. Y. 451) ; nor in such an action, where no excess of subscription is shown, is it necessary to prove that the number of shares subscribed for by the defendant, had been actually allotted to him, the presumption being that the subscription books were closed as soon as the whole amount of. stock had been subscribed for (Buffalo & N. Y. City R. Co. ».. Dudley, supra) ; and a misstatement of the length of the road, where there is no pretence of fraud, or negligence in such statement (Troy & Rutland R. Co. «. Kerr, supra) ; or a mere neglect to make the whole of the road specified in the articles of association, even without legislative sanction (Id) ■ or, in general, an amendment to the charter, though the stockholder was not consulted {Id.; Northern R. Co. v. Miller, 10 Barb. 260 ; White v. Syracuse &c. R. Co. 14 id. 559 ; Buffalo & N. Y. City R. Co. «. Dudley, mpra ; commenting on Hartford & N. H. R. Co. v. Croswell, 5 Hill, 883, where it was held that the charter could not be amended to change the purposes of organization) ; or a fraudulent state- ment by one of the officers, at a public meeting, and in the presence of a majority of the directors, but made without authority (Buffalo & N. Y. City R. Co. V. Dudley, supra) ; or the fact that the whole amount of capital stock has not been subscribed for (Rensselaer &c. Plankroad Co. v. Wet- THE CAPITAL STOCK. 37 sel, 21 Barb. 56), constitutes no defence to such action. But whetlier a subscriber is liable for caUs, when, in the interval, between notice of calls and the time for the payment thereof, he has transferred his stock to a solvent party, is to be determined lirom the statute and his agreement (Schenectady &c. Plankroad Co. v. Thatcher, 11 N. Y. 103). Where the company recovered only a part of the unpaid subscription, the bal- ance being barred by the statute of limitations : Seld, that upon pay- ment of the amount recovere.d, the subscriber was entitled to a certifi- cate of the stock (Johnson v. Albany & Susquehanna R. Co. 40 How. Pr. 193). (6) Remedy toy forfeiture. Where the directors agree to for- feit, they take back the stock, and retain all previous payments, but they cannot sue even for installments which became due before the forfeiture was declared. The provision is rather in the nature of a conditional sale, than a mortgage to secure the whole subscription (Small v. Her- kimer M'f g Co. 2 N. T. 330). A general resolution, forfeiting stock, is void unless it specifies the stock forfeited (Johnson v. Albany & Sus- quehanna R. Co. 49 How. Pr. 193). Upon forfeiture, the stock becomes the absolute property of the company, and may be sold at its value, and a proper stock certificate issued to such purchaser, without any re-sub- scription (Id.; City Bank of Columbus v. Bruce, 17 N. T. 507 ; Otter v. Brevoort Petroleum Co. 50 Barb. 247 ; People v. Albany & Susquehanna R. Co. 55 Barb. 344 ; s. c. 1 Lans. 308; s. c. 7 Abb. Pr. N. S. 265 ; s. c. 38 How. Pr. 228). The provisions of the last sentence of this section must be limited exclusively to proceedings to forfeit the stock of delinquent subscribers, and are inapplicable to an action for calls (Lake Ontario &c. R. Co. V. Mason, 16 N. T. 451). Increase of stock. — In case the capital stock of any company, formed under this act, is found to be insufficient for constructing and operating its road, such, company may, with the concurrence of two- thirds in •amount of all its stockholders, increase its capital stock from time to time, to any amount re- quired for the purposes aforesaid. Such increase must be sanctioned by a vote in person, or by proxy, of two-thirds in amount of all the stockholders of the company, at a meeting of such stockholders, called by the directors of the company for that purpose, by a notice in writing to each stockholder, to be served on him personally, or by depositing the same, properly 38 THE CAPITAL STOCK. folded and directed to him, at the post-office nearest, his usual place of residence, in the post-office, at least twenty days prior to such meeting. Such notice must state the time and place of the meeting, and its object, and the amount to which it is proposed to increase the capital stock The proceedings of such meeting must be entered on the minutes of the proceedings of the company, and thereupon the capital stock of the com- pany may be increased to the amount sanctioned by a vote of two-thirds in amount of all the stockholders of the company as aforesaid. (Laws 1850, chap. 140, § 9.) Reduction of capital stock. The capital stock of the com- pany, wheneTer the articles of association are altered and amended in such manner that the road terminates at a point of intersection with another railroad (Laws 1851, chap. 19, § 1 ; Laws 1854, chap. 383, § 13) ; or upon the location in an adjoining State, of part of the line, pre- viously located in this State (Laws 1851, chap. 19, § 3), may be reduced to an amount not less than $10,000 for every mile of its railroad actually constructed in this State. Unauthorized issue of stocli:. — ^Every officer and agent of every incorporated company, joint-stock company or corporation, formed or existing under or by virtue of the laws of any of the United States, who shall, within this State knowingly, willfally and designedly sigA, or procure to be signed, with intent to issue, sell or pledge, or cause to be issued, sold or pledged, or who shall knowingly, willfally and de- signedly issue, sell or pledge, or cause to be issued, sold or pledged any certificate or other evidence of the ownership or transfer of any share or shares of the capital stock of such incorporated company, joint- stock company or corporation, or any bond or evi- dence of debt of such incorporated company, joint- stock company or ^corporation, or any instrument THE CAPITAL STOCK. 39 purporting to be a certificate or other evidence of ownership or transfer of such share or shares, or purporting to be such bond or evidence of debt, with- out being thereunto first authorized and empowered by such incorporated company, joint-stock company or corporation, and every such officer and agent, who shall, re-issue, sell, pledge or dispose of, or cause to be reissued, sold, pledged or disposed of, any sur- rendered or cancelled certificate or other evidence of the ownership or transfer of any such share or shares, or of any right or interest therein, with the intent of defrauding any such corporation or any person or persons, shall be deemed guilty of a felony, and shall be punished by a fine not exceeding three thousand dollars, and imprisonment in the State prison not less than three nor more than seven years. (Laws 1855, chap. 155, § 2.) Stock fraudulently issued. — Every officer and every agent of any incorporated company or corpora- tion, formed or existing under or by virtue of the laws of any of the United States, who shall within this State, willfnlly and designedly sign, or procure to be signed with intent to issue, sell or pledge, or cause to be issued, sold or pledged, or shall willfully and de- signedly issue, sell or pledge, or cause to be issued, sold or pledged, any false or fraudulent certificate, or other evidence of the ownership or transfer of any share or shares of the capital stock of such incorpo- rated company or corporation, or any false or fraudu- lent bond, or evidence of debt of such incorporated company or corporation, or any certificate or other evi- dence of the ownership or transfer of any share or shares of such incorporated company or corporation, or any instrument purporting to be a certificate or other 40 THE CAPITAI; STOCK. evidence of ownership or transfer of Buch stare or shares, or purporting to be such bond or evidence of debt, the signing, issuing, selling or pledging of vsrhich shall not be authorized by the charter and by-laws of such incorporated company or incorporation, or some amendment thereof, shall be deemed guilty of a felony, and shall be punished by a fine not exceeding three thousand dollars, and imprisonment in the State prison for a term not less than three nor more than seven years. (Laws 1855, chap. 155, § 1.) The oflBcers of a corporation, authorized to issue certificates to the stockholders as evidence of title to stock, are liable for the issue of spu- rious stock, falsely and fraudiflently certified by them, not only to the parties to whom it was issued, but also to persons who have subsequently purchased the same in good faith (Cazeaux e. Mali, 25 Barb. 578; s. c. mib. nom. Mead v. Mali, 15 How. Pr. 347 ; Shotwell «. Mali, 38 Barb. 445 ; Bruff B. Mali, 36 N. T. 300 ; s. c. 34 How. Pr. 338), and also to a stock- holder of the company, for the damage sustained by him, by reason of the depreciation in the marjiet value of the stock resulting from the dis- closure of the over issue (Cazeaux v: Mali, snipra ; Bell ». Mali, 11 How. Pr. 354 ; Wells ». Jewett, id. 343 ; Crook v. Jewett, 13 id. 19). No valid certificate can be issued in excess of the limit fixed by the charter for the capital stock (Mechanics' Bank «. N. Y. & N. H. R. Co., 13 N. Y. 599), and the company can maintain an action against all persons claim- ing stock under the spurious issue, to have the certificates representing such issue declared void (N. Y. & N. H. E. Co. v. Schuyler, 17 N. Y. 593 ; s. c. 7 Abb. Pr. 41 ; reversing s. c. 1 Abb. Pr. 417 ; Same ». Same, 34 N. Y. 30 ; affirming s. c. 38 Barb. 534). Drawing a certificate and mail- jing it to a stockholder must be considered "issuing" it (Jones ». Terre Haute &c. R. Co., 17 How. Pr. 539). OF THE STOCKHOLDERS ; AND HEREIN OF THEIR LIABILITY. Who deemed stockholders.— No person hold- ing stock in any such company, as executor, adminis- trator, guardian or trustee, and no person holding such stock as collateral security, shall be personally subject to any liability as stockholders of such company; but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly ; and the estates and funds in the hands of such executor, administrator, guardian or trustee, shall be liable in like manner, and to the same extent, as the testator, or intestate, or the ward or person interested in such trust fund would have been, if he had been living and competent to act, and held the same stock in his own name. (Laws 1850, chap. 140, § 11.) So long as a subscriber stands in such a relation to the company, that the latter can compel him to pay for his stock, he must be regarded as a stockholder, -within the provisions of an act making stockholders indi- vidually liable for the coi^orate debts ; and this, although such subscriber has paid nothing on his subscription, and received no certificate of stock (Spear v. Crawford, 14 Weiid. 20). Nor is his liability affected by the fact that one half of the stock subscribed for in his name, was, under an oral agreement, to be owned and paid for, by another party. He is lia- ble to the full extent of the act, but is entitled upon payment to recover half of the same from his co-owner (Stover v. Flack, 30 N. Y. 64, aflarm- ing B. c. 41 Barb. 163). His name appearing as stockholder on the cor- porate books, is presumptive evidence of the existence of such relation- ship between himself and the company, and the burden of proving the contrary is thrown upon him (Hoagland ». Bell, 36 Barb. 57). So the stock subscription paper signed by him, is relevant upon such question 4 42 THE STOCKHOIiDEES. (Partridge v. Badger, 35 Barb. 146) ; but one stockholder is not a com- petent witness to prove the defendant to be another stockholder, in order to charge him with the statutory liability for the debts of the company (Pierce ®. Kearney, 5 Hill, 83). Stock standing in the name of a ficti- tious person is liable for the debt of the tnie owner (Stebbins v. Phenii Fire Ins. Co., 3 Paige, 350). The members of a corporation are compe- tent witnesses for or against the company (3 Rev. Stat. 407, § 81 ; Matter of Kip, 1 Paige, 601 ; Wright «. N. T. Cent. R. Co., 38 Barb. 80). They are not parties to the action, or persons for whose immediate benefit the action is prosecuted, within the meaning of § 399 of the Code of Pro- cedure, excusing parties from testifying (N. Y. & Erie R, Co. ». Cook, 3 Sandf. 733; matter of Kip, supra; MotitgonTery Co. Bank v. Marsh, 7 N. Y. 481, affirming s. c. 11 Barb. 645 ; "Washington Bank of Wes- terly «. Palmer, 3 Sandf 686). The stockholders at the time a divi- dend is declared are entitled to the same (Currie v. White, 37 How. Pr. 330 ; B. c. 6 Abb. Pr. N. S. 353 ; Jones ». Terre Haute &c. R. Co. 17 How. Pr. 539), but no stockholder can compel the company to declare and pay a dividend from funds on hand (Karnes «. Rochester &c. R. Co., 4 Abb. Pr. N. S. 107) ; nor can he interfere to prevent a proper dividend (Carpenter i>. N. Y. & N. H. R. Co., 5 Abb. Pr. 377) ; nor, where the company has power to increase its capital, can he enjoin the direct- ors from issuing new stock in lieu of a dividend (Howell v. Chicago &c. R. Co., 51 Barb. 378), though he may enjoin the payment of a dividend where spurious stock has been issued, until it may be established who are the genuine stockholders (Underwood v. N. Y. & N. H. R. Co., 17 How. Pr. 537). Stockholders' liability.— Each stockholder of any company formed under this act shall be individu- ally liable to the creditors of snch company, to an amount equal to the amount unpaid on the stock held by him, for all the debts and liabilities of such com- pany, until the whole amount of the capital stock so held by hiiu shall have been paid to the company (a), and all the stockholders of any such company shall be -jointly and severally liable for the debts due or owing to any of its laborers and servants, other than con- tractors, for personal services for thirty days' service performed for such company (i), but shall not be lia- ble to an action therefor before an execution shall be returned unsatisfied, in whole or in part, against the THE STOCKHOIiDEKS. 43 corporation (c), and the amount due on suet executions shall be the amount recoverable with costs against such stockholders; before such laborer or servant shall charge such stockholder for such thirty days' services, he shall give him notice in writing, within twenty days after the performance of such service, that he intends so to hold him liable, and 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 with him- self (d) ; and all laws whereby the stockholders, offi- cers and agents of any railroad corporation are made individually liable for the debts or liabilities of such corporation, beyond the provisions contained in the act entitled, " An Act to authorize the formation of rail- road corporations, and to regulate the same," passed April 2, 1850, and the acts amending the same, are hereby repealed (e). (Laws 1850, chap, 140, § 10; Am'd Laws 1854, chap. 282, § 16.) (a) Liiability to Creditors. " Where the whole capital of a cor- poration shall not have been paid in, and the capital paid, shall be insuffi- cient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share, as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the company" (1 Rev. Stat., 600, §5). This provision of the Revised Statues is made directly applicable to railroad companies, by the express reference thereto, contained in section one of the general raihoad act. The creditor or his representative may, after his judgment against the company is returned unsatisfied in whole or in part, apply to the Supreme Court to sequestrate the stock, property, things in action, and effects of such corporation, and to appoint a receiver of the same (3 Rev. Stat. 463, § 36). The cases in which a receiver may be appointed, and the manner of appointment, are regulated by the laws of 1870 (Laws 44 THE STOOKHOLDEBS, 1870, chap. 151, § 3. See also Galwey «. U. S. Steam Kefining Company, 36 Barb. 256 ; aiBrming s. c. 13 Abb. Pr. 311 ; Ramsey v. Erie R. Co., 7 Abb. Pr. N. S. 156). But a creditor cannot bring an action under this clause of the section, to enforce the stockholder's liability, subsequent to the appointment of a receiver, and the entry of an order restraining creditors from proceeding against the company. Upon the appointment of the receiver, the right of action for unpaid subscriptions is vested in him (Rankine v. Elliott, 16 N. Y. 377 ; affirming 's. c. 14 How. Pr. 839). (J) Liiabitity to Laborers. The stockholder is liable, under the above provision, for debts due from the company to its immediate laborers, employes, and servants. His liability to laborers employed by a contrac- tor in constructing the road, is provided for by section twelve of the same act (Gallaghar «. Ashby, 26 Barb. 143). The relief of such a class of manual laborers is contemplated, as usually work for a small compensa- tion, who are generally indifferently qualified to look after their own affairs, and to whom the prompt payment of their wages is a matter of necessity (Boutwell ». Townsend, 37 Barb. 205 ; Aikin v. Wasson, 24 N. Y , 482 ; Coflinii. Reynolds, 37 id. 640). Thus the language used, must be construed to exclude those persons employed in the service of the com- pany, who are differently and properly designated, such as officers and agents (Conant v. Van Schaick, 24 Barb. 87). Sathe secretary (Coffin v. Reynolds, supra); or a contractor (Aikin v. Wasson, supra; Boutwell V. Townsend, supra) ; or a consulting engineer is not a servant within the statute (Ericsson v. Brown, 38 Barb. 390). The complaint in such an action against the stockholder must allege specifically that the plain- tiff or his assignor, was a servant or laborer of the company, and that the claim accrued to him in that capacity (Boutwell ®. Townsend, supra) ; and a demuiTer to the complaint will be sustained, where it is merely set forth that the plaintiff performed work and labor for the company (Id) ; since no cause of action is established unless the party seeking to recover brings his case clearly within the statute (Coffin ». Reynolds, supra). In such an action the plaintiff must prove the existence of the com- pany ; his recovery of a judgniient against it ; his execution returned un- satisfied ; his claim tor services, and that the defendants were stock- holders (Strong V. Wheaton, 38 Barb. 616 ; Conant v. Van Schaick, mpra). (c) Remedy against Company, first to be exhausted. Id consulting the numerous cases adjudicating the stockholders' liability to creditors, care should be taken in noting under what particular act such , cases arise. Many of the general laws providing for the formation of cor- porations explicitly requii-e that the creditor shall exhaust his remedy against the corporation before he is at liberty to proceed against the stockholders, who have made default in the payment of the capital stock. The statutes providing for the formation of telegraph companies (Laws 1848, chap. 265, § 10 ; Laws 1853, chap. 471, §4); ocean navigation com- panies (Laws 1853, chap. 338 ; Laws 1853, chap. 124, §§ 5,6, 8) ; lake and' THE STOCKHOLDERS. 45 river navigation companies (Laws 1854, chap^ 233, § 12) ; turnpike and plankroad companies (Laws 1847, chap. 310, §§ 44, 45, 46 ; Laws 1855, chap. 390, § 1) ; banking companies (Laws 1888, chap> 260, § 33 ; Laws 1849, chap. 236, § 1 ««. aeq.) ; joint stock companies (Laws 1849, chap. 258, § 4 ; Laws 1853, chap. 153) ; and the above section of the act for the incorporation of railroad companies are of this description. The provi- sions of the act for the incorporation of manufabtuting, mining, mechan- ical chemical, agricultural, horticultural, medical or curativCj mercan- tile or commercial companies (Laws 1848, chap. 40, §| 10, 18, 24. See Laws, 1866, chap. 836) ; gas companies (Laws 1848, chap. 37, §§ 10, 15, 17); and building and loan associations (Laws 1851, chap. 132, § 11 ; Laws 1853, chap. 117, §§ 10, 18, 24)— in all of which the liability of stockholders is declared in substantially the same terms, — do not, in direct language, exempt the stockholder from liability, until a judgment has been obtained against the company, and execution thereon returned unsatisfied ; such provisions being, that they shall not be liable unless the debt contracted by the company is to be paid within one year, or unless a suit shall be brought against the company within one year after the debt becomes due. Yet under the construction of such language it has been held that no action will lie against the stockholder until the creditor has exhausted his remedy against the company, and that the complaint in such action must go beyond the terms of the statute, and allege judg- ment against the company and execution returned unsatisfied (Lindsley ®. Simonds, 3 Abb. Pr., N. S. 69). Stockholders, however, in certain insurance companies (Laws 1849, chap. 308, §§ 19, 31; Laws 1857, chap. 28, § 6) ; ferry companies (Laws 1853, chap. 135, § 14) ; bridge companies (Laws 1848, chap. 359, § 2) ; guano companies (Laws 1857, chap 546, §§ 11, 18) ; skating park companies (Laws 1861, chap. 149, § 3) ; com- panies for improving the breed of domestic animals (Laws 1857, chap. 776, § 7) ; and companies for improving the breed of horses (Laws 1854, chap. 369, § 6 ; Laws 1860, chap. 528, § 1) are made absolutely liable without any proceedings being first taken against the company. Where the language of the statute defers the stockholders' liability until the creditor has obtained judgment against the company and " an execution " returned unsatisfied, it has been held, that the statute was com- plied with when one execution was issued, and that this was a fair and reasonable effort to collect the Judgment by execution (Maher t>. Carman, 38 N. T. 25) ; but no lien is thus created in favor of a general judgment creditor of the company, over a subsequent judgment creditor, who had in like manner exhausted his remedy against the company, but both are placed on the same footing (Rankine ». Elliott, 16 N. T. 377 ; afiirming B. c. 14 How. Pr. 339). Under subh a statutory provision the stock- holders are answerable to creditors of the company as original and pri- mary debtors in the same manner as if they had been unincorporated. The remedy of the creditor against the stockholder is merely deferred until his remedyi-against the company is exhausted (Comings. McCul- lough, 1 N. ¥. 47, overruling Freeland v. McCoUough, 1 Den. 414 ; Allen 46 THE STOCKHOLDEES. V. Sewall, 3 Wend. 337 ; Ex-pa/rte Van Riper, 30 id. 614 ; Moss v. Oakley, 3 Hill, 365 i Bailey v. Bancker, 3 id. 188 ; Harger «. McCullough, 3 Den. 119 ; "Worrall v. Judson, 5 Barb. 310 ; Abbott ». Aspinwall, 36 id. 203). It follows from this, that since the nature of the individual liability is that of partners unincorporated, the judgment creditor can sue only such stockholders as were members of the corporation when the debt was incur- red (Moss ■». Oakley, 3 Hill, 365 ; Judson «. Rossie Galena Co., 9 Paige, 598 ; Young «. N. Y. & Liverpool &c. Steamship Co., 15 Abb. Pr. 69 ; affirming a. c. 10 id. 339) ; and the complaint must allege that at such time the defendants were stockholders (Young v. N. Y. & Liverpool &c. Steamship Co., supra), and that judgment was obtained against the company, and execution returned unsatisfied (Lindsley v. Simonds, 3 Abb. Pr. N. S. 69). In such an action, the stockholder sued cannot plead as a defence an illegal act of the company, prior to the incur- ring of the debt (Spear «. Crawford, 14 Wend. 30) ; nor a defect in the proceedings to organize the company (Eaton ■». Aspinwall, 19 N. Y. 119; affirming s. c. 6 Duer, 176; s. c. 8 Abb. Pr. 417; s. c. 13 How. Pr. 184; Abbott ®. Aspinwall, 36 Barb. 303); but he may set up in his answer that the plaintiff was also a stockholder (Wait i>. Ferguson, 14 Abb. Pr. 379). Since to determine the company's inability to pay, the debt must be put into a judgment &c , costs may be recovered of the stockholder, in addition to the original debt. That is, he is liable, not for the debt that was, but for the debt that is, — the judgment (Witherhead v. Allen, 38 Barb. 661, limiting Bailey v. Bancker, 3 Hill, 188, to the particular statute then under consideration). But, qucgre — whether a judgment against the corporation is even prima facie evidence of the indebtedness of the company, against the stock- holder (Belmont «. Coleman, 31 N. Y. 96), though it has been held, that the stockholders are qualified to assist the defence, in a suit against the corporation, and in a proper case the court will relieve the company from default, and allow the stockholders to carry on the litigation (Peck «. N. Y. & Liverpool &c. Steamship Co., 3 Bosw. 633). {d) Contribution. A stockholder who has been compelled to pay ' the debt of his corporation, may have an action for contribution against the remaining stockholders, who were originally liable with him for the '^ame (Aspinwall v. Torrance, 1 Lans. 381) ; and where one is not only a stockholder, but also a judgment creditor of the company, to an amount exceeding his liability as such stockholder, he may bring an action against the company, its stockholders and creditors, to fix their respective rights and liabilities, and that his judgment may be set off against his liability. The complaint in such action should set forth the times when different stockholders acquired their stock ; the times when the demands of the creditors who are made parties accrued, and the fact that during the times last mentioned the plaintiff was a stockholder (Geery v. N. Y. & Liver- pool &c. Steamship Co., 13 Abb. Pr. 368), THE STOCKHOLDEKS. 47 («) Liability Restricted. The liabilities imposed on the direct- ors for the debts of the company, by the laws of 1845 (La-n^ 1845, chap. ' 330, § 1\ were repealed by this tenth section of the general act, as amended by the laws of 1S54 (Rochester r. Barnes, 26 Barb. 657). Seryice of Process on Stockholdei-s.— When an action shall be authorized by any law of this State, against the stockholders of any corporation or joint stock company, and any of such stockholders named as defendants, cannot, after due diligence, be found within the state, and the fact appears to the satisfaction of the court or a judge thereof, or of the county judge of the county where the trial is to be had, such court or judge may grant an order that the service be made by publi- cation as directed, and pui-suant to the provisions of section one hundred and thirty-five, of the Code of Pro- cedure. (Laws 1S59, chap. 157, § 1.) Stockholders, how named as defendants.— In any such action against the stockholders of any cor- poration or joint stock Company, which shall have been organized under the laws of this state, it shall be suffi- cient to name as defendants the persons appearing as stockholders on the stock books of said corporation or company, by the name or names there appearing; but the court in which such action is pending, may at any time before final judgment, permit the process, plead- ings and proceedings in any such action, to be amended on motion of either party, by striking out the name of any deceased stockholder or the name of any person wrongftilly inserted ; and by inserting the proper name of the party intended or the name or names of the proper heir, executor, administrator or personal repre- sentative of any deceased party ; and such amendment may be allowed by the court at any time without costs and without prejudice to the previous proceedings had in any such action. (Laws 1869, chap. 157, § -.) VI. OF THE DIRECTORS; AND HEREIN OF THEIR ELECTION. The Directors. — Ttere shall he a board of thir- teen directors of every corporation formed tinder this act to manage its affairs (a) ; and said directors shall be chosen annually, by a majority of the votes of the stockholders voting at such election (h), in such manner as may be prescribed in the by-laws of the corporation (c), and they may and shall continue to be directors until others are elected in their places. In the election of directors, each stockholder shall be entitled to one vote, personally or by proxy, on every, share held by him thirty days previous to any such election (d) ; and vacancies in the Ijoard of directors shall be filled in such manner as shall be prescribed by the by-laws of the corporation. The inspectors of the first election of directors shall be appointed by the board of directors named in the articles of associa- tion (e). No person shall be a director unless he shall be a stockholder, owning stock absolutely in his own right, and qualified to vote for directors at the election at which he shall be chosen ( /) ; and at every election of directors, the books and papers of such company shall be exhibited to the meeting, if a majority of the stockholders present shall require it.* (Laws 1850, chap. 140, § 5 ; Am'd Laws 1854, chap. 282, § 1.) (a) The Board. " When the corporate powers of any corporation are directed by its charter to be exercised by any particular body, or * The remainder of the section, here omitted, relates entirely to rights acquired by a purchaser of the railroad franchise. It may he found verbatim et Kiecaiim, under the head " Of Railroad Bonds" &o. Vide post. THE DIRECTORS. 49 number of persons, a majority of such body, or persons, if it be "not otherwise provided in the charter, shall be a sufficient number to form a board for the transaction of business ; and every decision of a majority of the persons duly assembled as such board, shall be valid as a corporate act " (1 Kev. Stat. 600, § 6). Although a board of directors, composed of a specific number, are authorized and required by the charter of a cor- poration to exercise the corporate powers of such company, yet the board may, by virtue of their authority to make by-laws, deputize a quorum, consisting of less than a majority of their number, to exercise such pow- ers in their stead (Hoyt v. Thompson, 19 N. T. 207) ; but the powers vested in the directors cannot be exercised by the stockholders (McCuI- lough V. Moss, 5 Den. 567). A court of equity at the instance of certain parties (3 Rev. Stat. 463, § 35), may direct the board to hold an election to supply vacancies (iaused by a removal of any of their number (3 Rev. Stat. 463, § 33, subds. 4, 5) ; and in case all the members of such board be removed, then to report the same to the governor, who is authorized, with the consent of the senate, to fiU such vacancies (Id. subd. 6). Their powers and liabilities. The directors may ratify acts which are within the corporate powers, but perfoimed by an agent beyond the scope of his authority (Hoyt v. Thompson, 19 N. T. 307 ; Kennedy ®. Cotton, 38 Barb. 59) ; and from mere acquiescence in such acts, a rati- fication may be inferred {Id) ; but neither the acts nor declarations of a director, which are not authorized by some special agency relative to the subject-matter, or within the lawful exercise of his authority as such offi- cer, bind or affect the corporation (Soper v. Bufialo &c. R. Co., 19 Barb. 310; Buffalo & K. T. City R. Co. v. Dudley, 14 N. Y. 336). They have power, by a two-thirds vote of their whole number, at any time, to alter the route or any part of the route of the railroad (Laws 1850, chap. 140, § 28 ; see also Laws 1851, chap. 19, § 3) ; and with the consent of the canal commissioners, may lay out a new line of road for the purpose of crossing a canal on a more favorable grade (Laws 1854, chap. 383, § 17 ; see also Laws 1855, chap. 478, § 1). Upon neglect of a stockholder to pay installments on the stock held by him, when so required, they have power to forfeit his stock, together with all previous payments thereon, for the use of the company (Laws 1850, chap. 140, § 7). They have no power, however, to bind the company to pay to themselves a con- sideration for the transfer of a franchise to the company, which fran- chise they allege was, previous to the transfer thereof, granted to them individually (Coleman ». Second Ave. R. Co., 38 N. Y. 301; affirm- ing 8. c. 48 Barb. 371). And a contract for the use of undue personal influence with the directors of a corporation, is void as contrary to morality and public policy (Davison v. Seymour, 1 Bosw. 88). A majority of the directors may, under certain circumstances, apply to the Supreme Court for an order dissolving the corporation (2 Rev. Stat. 467, § 58), and upon the dissolution of the company by a decree of the court or otherwise, unless other persons are appointed by the legis- 50 THE DIKEOTOES. lature, or by a court of competent authority, they become trustees of the creditors and stockholders of the corporation dissolved, with power to settle the affairs of the corporation, collect and pay outstanding debts, and divide among the stockholders the moneys and other property that shall remain after the payment of debts and necessary expenses (1 Rev. Stat. 600, § 9). They have authority to sue for and recover the debts and property of the dissolved corporation, by the name of the trustees of such corporation, describing it by its corporate name, and are jointly and severally liable to the creditora and stockholders of such corporation, to the extent of its property and effects that shall come into their hands (1 Eev. Stat. 601, § 10). For signing, issuing, or causing to be signed or issued any fraudulent certificate of stock, bond, or evidence of debt of the company, they shall be deemed guilty of a felony, and shall be punished by a fine not exceeding three thousand dollars, and im- prisonment in the State prison for a term not less than three nor more than seven years (Laws 1855, chap. 155, § 1) ; and are liable as well to the subsequent as to the immediate purchaser in good faith of such spurious stock, for daipages sustained thereby (Bruff V. Mali, 36 N. Y. 300; s. c. 34 How. Pr. 338; Cazeau v. Mali, 25 Barb. 578 ; s. c. sub. nam. Meade «. Mali, 15 How. Pr. 347 ; Bell «. B^fili, 11 How. Pr. 254 ; Wells v. Jewett, Id. 243 ; Crook v. Jewett, 12 id. 19) ; nor is it lawful for any of the directors of a company which shall have refused payment of any evidence of debt, in specie or lawful money of the United States, to assign or transfer any of the property or choses in action of such company, to any officer or stockholder of such company, directly or indirectly, for the payment of any debt ; nor is it lawful to make any transfer or assignment in contemplation of the m- solvency of such company to any person or persons whatever (1 Rev. Stat. 603, § 4). Such transfers and assignments are void (Id.; Bowen v. Lease, 5 Hill, 221). The Supreme Court, in its discretion, may compel the officers, agents, or stockholders of any corporation against which pro- ceedings have been instituted, and every person to whom it is alleged a transfer of any property or effects of the company has been made, or in whose control any such property or effects are alleged to be, to answer a bill filed to obtain a discovery of the property, the transfer, the consider- ation, and all the circumstances of the disposition thereof, notwithstand- ing such answer may expose the company to a forfeiture of its corporate rights (2 Rev. Stat. 465, § 53). Such court, on bill or petition, or at the instance of the attorney-general prosecuting in behalf of the people, or at the instance of any creditor of such corporation, or at the instance of any director, or other officer of such corporation having .^ general super- intendence of its concerns, has jurisdiction over such directors, managers, and other trustees and officers of the corporation : (1) To compel them to account for their official conduct, in the management an(J disposition of the funds and property committed to their charge ; (3) To decree and compel payment by tl^em, to the corporation whom they represent, and THE DIEECTOES. 51 to its creditors, of all sums of money,, and of the value of all property ■which they may have acquired to themselves or transferred to others, or may have lost or wasted, by any violation of their duties as such trustees ; (3) To suspend any such trustefe or ofiBcer from exercising his oflBce, whenever it shall appear that he has abused his trust ; (4) To remove any such trustee or officer from his office upon proof or conviction of gross misconduct ; (5) To direct new elections to be held by the body or board duly authorized for that purpose, to supply vacancies created by such removal; (6) In case there be no such body or board, or all the members of such board be removed, then to report the same to the governor, who shall be authorized, with the consent of the senate, to fill such vacancies ; (7) To set aside all alienations of property made by the trustees or other officers of any corporation, contrary to the provisions of law, or for purposes foreign to the lawful business and objects of such corporation, in cases where the person receiving such alienation knew the purpose for which the same was made ; and (8) To restrain and prevent any such alienations, in cases where it may be threatened, or there may be good reason to apprehend it will be made (2 Rev. Stat. 463, 463, §§ 33, 85). They may be enjoined by the Supreme Court, at the instance of the attorney-general, from exercising any corporate rights, privileges, or franchises not granted to them by any law of this State (3 Rev. Stat. 463, § 31) ; but an injunction to restrain the officers of the company from doing any act in violation of its charter, or misapplying the funds of the company, must be directed against such specific act, and not to enjoin them from carrying on the legitimate business of the corporation (People V. Albany & Susquehanna R, Co., 55 Barb. 344 ; s. o. 1 Lans. 308 ; s. c. 7 Abb. Pr. N. S. 365 ; s. c. 38 How. Pr. 238 ; Howe v. Deuel, 43 Barb. 504). Thus the directors of a company which has earned a surplus, cannot be enjoined from issuing new stock in lieu of a dividend, provided the act of incorporation gives them power to increase the capital stock; and a mere declaration of policy on the part of a board of directors, not to take such a course, afibrds no ground for enjoining a subsequent board from so doing (Howell v. Chicago &c. E. Co., 51 id. 878) ; nor can an injunc- tion be granted forbidding an individual to act as president of the com- pany (People a. Albany & Susquehanna R. Co., supra) ; nor will the court, except in a case of necessity, and upon clear proof of misconduct, sworn to positively, grant an order suspending the directors (Ramsey v. Erie R. Co., 7 Abb. Pr. N. S. 156). Improper expenditures and immoral conduct do not constitute proper grounds for the granting of such order (Id). Nor can the directors be removed and a receiver appointed in an action by a stockholder, upon allegations of misconduct in part of their number; and misconduct even on the part of all the directors, affords no ground for bringing such a suit, and taking away the rights of the stock- holders, either by placing the affairs of the company in the hands of a receiver, or by its dissolution (Behnont «. Erie R. Co., 53 Barb. 637 ; People V. Same, 86 How. Pr. 139). No injunction to suspend from office, 52 THE DIEBCTOES. or restrain or prohibit from the performance of his duties as such, any director, trustee, or manager of the company, shall be granted, except by the court, and upon notice of at least eight days, of the application there- for, to the party to be enjoined (Laws '1870, chap. 151, § 1) ; nor can he be suspended or removed from office, otherwise than by the judgment of the Supreme Court in a civil action brought by the attorney-general in the name of the people of the State (Id. § 2). If the director or other officer of the company .served with the notice of an application for an injunction restraining or aflfectlng the business of the corporation, or for a receiver of its property and effects, or any part thereof, conceal from or omit to disclose to the other directors, trustees, managers, and officers of the company, the fact of such service, and the time and place at which the application is to be made, he is guilty of a misdemeanor, and, upon con- viction thereof, shall be punished by fine and imprisonment, and is liablei in a civil action, to the company for all damage which it shall sustain by reason of such proceedings {Id. § 4). They are prohibited from mating dividends, except from the smplus profits arising from the business of such corporation, or from dividing, withdrawing, or in any way paying to the stockholders, or any of them, any part of the capital stock (this restriction, however, is not to be con- strued to prevent a division and distribution of the capital stock of the company, which may remain after the payment of all its debts, upon the dissolution of such company, or the expiration of its charter) ; or from reducing the capital stock without the consent of the legislature ; or from discounting or receiving any note, or other e\ridence of debt, in payment of any installment actually called in and required to be paid, or any part thereof, due, or to become due on any stock in the said com- pany ; or from receiving or discounting any note, or other evidence of debt, with the intent of enabling any stockholder in such company to withdraw any part of the money paid in by him on his stock ; and in case of any violation of these provisions, the directors, under whose ad- ministration the same may have happened, except those who may have caused their dissent therefrom, to be entered at large on the minutes of the directors, at the time ; and except those who were not present when the same happened, are, in their individual and private capacities, jointly and severally liable to the "corporation, and, in the event of its dissolu- tion, to any of its creditors, to the full amount of the capital stock of the company, so divided, withdrawn, paid out or reduced, and to the full amount of the notes or other evidences of debt so taken or discounted, in payment of any stock, and to the full amount of any notes or other evidences of debt so discounted, with the intent aforesaid, with legal interest on the said respective sums from the time such liability accrued, and no statute of limitations shall be a bar to any suit at law or in equity, against such directors, for any sums of money for which they are made liable as aforesaid (1 Rev. Stat. 601, § 2). The liabilities imposed on the directors for the debts of the company, THE DIEECTOES. 53 by the Laws of 1845 (chap. 230, § 1), were repealed by the act of 1854 (Laws 1854, chap. 333, §, 16 ; Amending, § 10 of the General act of 1850. Rochester v. Barnes, 26 Barb. 657). (8) The Election. It is illegal to opeii the polls lefore, though not so, within a short time after, the hour fixed for the election, in the notice to the stockholders (People «. Albany & Susquehanna R. Co. 55, Barb. 344; s. c. 1 Lans. 308 ; s, c 7 Abb. Pr. N. S. 265 ; s. e. 38 How. Pr. 238) ; but the time for keeping the polls open, after the election has commenced, may be extended by the inspectors, in the exercise of reason- able discretion beyond that fixed by the directors for closing them (Id; Matter of Mohawk &c. R. Co. 19 Wend. 13"5). It is competent for the stockholders themselves, where the prescribed form of procedure with regard to the election fails, on account of some unforeseen circumstance, to accomplish the purpose contemplated, to exercise the power of elec- tion, and provide for the appointment of inspectors tor that purpose (Matter of Wheeler, 2 Abb. Pr. N. S. 361). Thus, where the inspectors chosen, are restrained by injunction from qualifying and performing their duties as such ofBcers, the stockholders may proceed to choose other persons as inspectors (People ■». Albany & Susquehanna R. Co. aiipra). An individual holding a proxy to vote, even though not a stockholder, has full authority to call the meeting to order, and to act in the place of the president in his absence, when requested so to do by such officer (Id), and where each of two rival parties assume to organize the meeting for the election of officers, the law wiU recognize the first formal and regular proceedings held for such purpose, as valid (Matter of Pioneer Paper Co. 36 How. Pr. 105j. Those aggrieved by reason of such organization, may seek redress through the courts {Id). If the elec- tion be not held on the designated day, it becomes the duty of the presi- dent and directors to give notice of, and to cause an election for directors to be held within sixty days immediately thereafter ;■ but the right to vote on any share or shares, on such subsequent day, shall only be exercised by the person or persons who would have had the right to vote thereon, on the day when such election ought to have been held (1 Rev. Stat. 604, § 8). What 'Will invalidate the election. The election is not necessarily vitiated by the reception of spurious votes. In order to have such effect, it must appear by affirmative proof, that such votes were cast in support of a ticket which was successful only by rea- son of such votes {Ex-parte Murphy, 7 Cow. 153 ; Matter of Des- doity, 1 Wend. 98) ; and where, in addition to such facts, it is also shown that others, than those claiming to be elected, received a clear majority of the legal votes cast, the court will set aside the election, and declare the persons receiving such lawful majority elected (Matter of Desdoity, mproi). The election may also be set aside where votes 54 THE DIEECTORS. have been improperly rejected ; though in such case the court cannot declare the ticket elected for which it is claimed they would have been cast (Matter of Long Island R. Co. 19 "Wend. 87). Under such cir- cumstances, should it appear that part of the alleged directors were on both tickets, the court may confine its order for a new election to those whose names appear only on the ticket complained of (/tf). Sur- prise and fraud employed by one portion of the stockholders towards another, will vitiate the election (People «. Albany & Susquehanna R. Co. 55 Barb. 344 ; s. c. 1 Lans. 308 ; s. c. 7 Abb. Pr. N. S. 265 ; s. c. 88 How. Pr. 238). So where the proceedings are strictly and technically irregular, the election will be vacated {Id; Mc-parte Willcocks, 7 Cow. 402). Where a stockholder votes for less than the requisite number of directors, his ballot is not thereby rendered void. He must be deemed to have acquiesced, as to the residue, in the choice of the other stock- holders (Matter of the Union Insurance Co. 22 Wend. 591). " It shall be the duty of the supreme court, upon the application of any person or persons or body corpprate, that may be aggrieved by, or may complain of, any election, or any proceeding, act, or matter, in or touching the same (reasonable notice having been given to the adverse party, or to those who are to be affected thereby, of such intended appli- cation), to proceed forthvpith and in a summary way, to hear the affida- vits, proofs and allegations of the parties, or otherwise inquire into the matters or causes of complaint, and thereupon to establish the election so complained of, or to order a new election, or make such order and give such relief in the premises, as right and justice may appear to the said supreme court to require : Provided, That the said supreme court may, if the case shaU appear to require it, either order an issue or issues to be made up in such manner and form as the supreme court may direct, in order to try the respective rights of the parties who may claim the same, to the office, or offices, or franchise in question ; or may give leave to exhibit, or direct the attorney-general to exhibit, one or more information or informations in the nature of a quo wa/rranto in the prem- ises" (1 Rev. Stat. 603, § 5). In proceedings under this provision, notice of such application need only be given to those directors whose seats are sought to be vacated {Ex-parte Holmes, 5 Cow. 436). But senible, that the court vrill not take cognizance of formal otgections, from any, but such aggrieved persons as are named in the application (Matter of Mohawk &c. R. Co. 19 Wend. 135). (c) By-laws respecting elections. "No by-law of the directors and managers of any incorporated company, regulating the election of directors or officers of such company, shall be valid, unless the same shall have been published for at least two weeks in some newspaper in the county where such election shall be held , at least thirty days before such election" * * (i Rev. Stat. G03, § 6). A by-law fixing the time and place when and where an election shall be held, is a by-law THE BIREOTOES. 55 within the proTisions of this section (Matter of Long Island R. Co. 19 "Wend. 37). It seems that the directors cannot restrict the choice of in- spectors by a by-law (People v. Albany & Susquehanna E. Oo. 50 Barb 344 ; s. C. 1 Lans. 308 ; s. c. 7 Abb. Pr. N. S. 365 ; s. c. 38 How. Pr. 228)! By-laws must be set forth in pleading, whenever it is desired to bring them to the notice of the court (Barker v. Mayor &c. of New York 17 "Wend. 199). ' (d) Right to vote. " * * In all cases where the right of voting upon any share or shares of the stock of any incorporated company of this State, shall be questioned, it shall be the duty of the inspectors of the election to reouire the transfer- book of said company as evidence of stock held in the said company; and all such shares as may appear standing thereon in the name of any person or persons, shall be voted on by such person or persons, directly by themselves, or by proxy subject to the provisions of the act of incorporation " (1 Rev. Stat. 608 § 6). And in general, the inspectors, in determining the right of a claimant to vote, cannot go behind the transfer-book (Matter of Long Island R. Co. 19 "Wend. 37): Thus they cannot try the genuineness of a proxy, apparently executed by a stockholder,— they are bound to accept it (Matter of Cecil, 36 How. Pr. 477) ; and if such proxy be invalid, re- dress must be sought from the courts after election (Id); nor can they require an afl5davit that the stock is not hypothecated {Id); and even ■ though it be hypothecated, yet, if on the books of the company, it stand in the pledgor's name, he may vote on it (Id); Matter of Barker, 6 "Wend. 509 ; Ex-parte "Willcocks, 7 Cow. 403). Stock held for the com- pany itself, by a trustee, cannot be voted on {Ex-parte Holmes, 5 Cow. 426) ; not so, however, of stock held by a trustee for the benefit of a cestui que trust (Matter of Barker, supra). "Where the stock stands in the individual name of an officer, with the addition of his office, another is not entitled to vote on such stock, on proof that such officer has resigned, and that he has been duly appointed his successor. He should obtain a transfer of the stock from such former officer (Matter of Mohawk &c. R. Co. 19 "Wend. 185). And where two persons hold cer- tain shares of stock jointly, and they cannot agree upon the vote to be cast thereon, their vote on such stock may be rejected (Matter of Pio- neer Paper Co. 36 How. Pr. 105). A proxy to vote, even though given for value, may be revoked by the stockholder, when such revocation will prevent a fraudulent use of it (Reed «. Bank of Newburgh, 6 Paige, 3.37). The laws of 1851 (chap. 331, § 1), provide that it shall be lawful for any married woman, being a stockholder or member of any bank, insur- ance company (other than mutual fire insurance companies), manufac- turing companies, or other institution incorporated under the laws of this State, to vote at any election for directors or trustees by proxy or otherwise, in such company of which she may be a stockholder or member. 56 THE DIRBOTOES. («) Oath of Inspectors. " The inspectors who may be appointed to conduct any election of dii-ectors or any other office of any incorporated company of this State, shall be required before entering on the duties of their appointment, to take or subscribe the following oath or affirmation : "I, A. B., do solemnly swear (or affirm, as the case may be), that I will execute the duties of an inspector for the election now to be held, with strict impartiality, and according to the best of my ability " (1 Eev. Stat., 604, § 7). This oath may be sworn to before any person authorized to take acknowledgments. ' If, however, the inspectors are regularly ap- pointed, they are inspectors de facto, and the court will not vacate an election simply because the precise foim of the oath prescribed above was not adhered to (Matter of Mohawk &c. R. Co , 19 Wejid. 135). So heid where they were sworn well and faithfully to perforvf^ the duties of the office of inspectors (Id). (/) Who eligrible to office of director. Inspectors of election may be candidates for directorship (see N. B. to case Ex-pwrte Wilcox, 7 Cow. 403). There is the following restriction in regard to the board of directors of certain railroad corporations of this state : No stockholder, director or officer of either the New York Central Railroad Company, the Hudson River Railroad Company, or the Harlem Railroad Company; shall be a director or officer of the Erie Railway Company; and no stockholder, director or officer of the latter company shall be a director or officer in either of the three first named companies. The board of directors in each of the said companies may so classify the members of such board, by lot or otherwise, that as nearly as may be, one-fifth of their number shall go out of office at each, annual election ; and at the next election of directors in each of said companies, directors shall be voted for only in place of those whose terms shall then expire under the classification aforesaid (Laws 1868, chap. 378, § 3 ; Am'dLaws 1869, chap. 916, §1). The Books. — The book' or books of any incorpo- rated company in this State, in' which the transfer of stock in any such company shall be registered, and the books containing the names of the stockholders, in any such company, shall, at all reasonable times during the usual hours of transacting business, be open to the ex- amination of every stockholder of such company, for thirty days previous to any election of directors ; and if any ofl&cer having charge of such books, shall, upon demand by any stockholder as aforesaid, refuse or neg- lect to exhibit such books, or submit them to exami- nation as aforesaid, he stall for eveiy such offence for- THE DIRECTORS. 57 feit the sum of two hundred and fifty dollars, the one moiety thereof to the use of the people of this state, and the other moiety to him who will sue for the same, to be recovered by action of debt in any court of rec- ord, together with the costs of such suit. (1 Kev. Stat. 601, § 1.) The right hei;e conferred upon the stockholder, is not only to examine the books within the time spedfled, but also the right to make any mem- oiandum from such books (Cotheal v. Brouwer, 5 N. T. 563 ; affirming s. c. svb nom Brouwer v. Cotheal, 10 Barb. 316) ; and the officer in charge of the books is not constituted a judge of the motives of the stock- holder in making such inspection, nor of the purposes which the infor- mation thus obtained shall be made to subserve (Id). The authority of the transfer agent to permit a transfer of stock on the books of the com- pany, accofnpanied by his possession of them, does not amount to such an indicia of authority to certify to ownership of stock, as to fix a liability for the falsity of such representations upon the company (Henning v. N. T. & K H. R. Co. 9 Bosw. 283). Section five of laws 1850 (chap. 140, as amended laws 1854, chap. 383, § 1), provides that at every election of directors, the books and papers of the company shall be exhibited to the meeting, if a majority of the stockholders present shall require it. Under this provision, a stockholder challenging votes is not entitled to a pro- duction of the books, although a prior by-law of the company authorized him to do bo (People e. Albany & Susquehanna R. Co. 55 Barb. 344 ; s. c. 1 Lans. 308 ; s. c. 7 Abb. Pr. N. S. 365 ; s. o. 38 How. Pr. 238). When board may be constituted of a less number. — * And any railroad company whose main route of road does not exceed fifteen miles may elect seven of its stockholders as a board of directors' to manage its affairs at any annual election after the passage of this act. (Laws 1864, chap. 582, § 3.) The directors of any company organized to operate a railway for public use, by means of a propelling rope or cable attached to a station- ary power, may be limited to any number not less than five (Laws 1866, chap. 697, § 1). * That portion of section three, of chapter five hundred and eighty-two, of the laws of 1864, here omitted, relates to the duty of the company to supply drinMng water for the passengers. The Section may be found entire under the head " Of the Management of the Road, post." 6 58 THE DIBECTOES. The officers. — ^The directors shall appoint one of their number president {a) ; they may also appoint a treasurer and secretary (J), and such other officers and agents as shall be prescribed by the by-laws. (Laws 1850, chap. 140, § 6.) (a) The president. The president, by virtue of his office, has authority to collect subscriptions to the capital stocl^ (East New York &c. E. Co. V. Lighthall, 5 Abb. Pr. N. S. 458 ; s. o. 6 Eobt. 407). He is, however, under no obligation, nor has he a right to produce in a suit against the company, its books or papers, even though served with a subpoena duces tecum requiring him to do so (Bank of TJtica ®. Billiard, 5 Cow. 153 ; Same v. Same, Id. 419). (J) Treasurer and Secretary. The directors are not imperatively required to appoint a treasurer and secretary, but the provisions of this section simply give them authority to do so (People v. Hills, 1 Lans, 803.) The secretary and treasurer of the company being simply servants, and holding their offices at the will of the directors, cannot be subject to an action in the nature of a quo warranto under section 433 of the Code (Id). It is the duty of the treasurer to pay any balance due, on demand, and in the absence of any agreement to the contrary ; to keep the corpo- rate money separate and distinct ftom the money of any other person (Second Avenue R. Co v, Coleman, 34 Barb. 300), VIII. OF THE CAPACITY OF THE COMPANY TO HOLD KEAL ESTATE ; AND HEREIN OF THE MANNER OF ITS ACQUISITION. Preliminary survey. — Every corporation formed under this act shall, in addition to the powers conferred on corporations in the third title of the eighteenth chapter of the first part of the Revised Statues have power to cause such examination and surveys for its proposed railroad to be made, as may be necessary to the selection of the most advantageous route ; and for such purpose, by its officers or agents and servants, to enter upon the lands or waters of any person, but sub- ject to responsibility for all damages which shall be dqne thereto. (Laws 1850, chap. 140, § 28, subd. 1.) The law which permits an entry upon another's land for the purpose of making the preliminary survey for a railroad, is perfectly constitutional, since it makes suitable provision for compensation in case the land is sub- sequently taken. The constitution does not prohibit the legislature from permitting an entry to be made upon the property of an individual, for the purpose of a preliminary examination. The prohibition refers only to the tahing it for public use without just compensation (Polly v. Sara- toga &c. R. Co., 9 Barb. 449). Map and profile of proposed route.— Every company formed under this act, before constructing any part of their road into or through any county named in their articles of association, shall make a map and profile of the route intended to be adopted by such 60 CAPACITY OF COMPANY company in such county, which shall be certified by the president and engineer of the company, or a major- ity of the directors, and filed in the office of the clerk of the county in which the road is to be made, or in the office of the register in counties where there is a register's office. The company shall give written no- tice to all actual occupants of the land over which the route of the road is so designated, and which has not been purchased by or given to the company, of the time and place such map and profile were filed, and that the route designated thereby passes over the land of such occupant. Any occupant or owner of land over which such route passes, feeling aggrieved by the pro- posed location, may, within fifteen days after receiving written notice, as aforesaid, give ten days' notice, in writing, to such company and to the owners or occu- pants of lands to be afifected by any proposed altera- tion, of the time and place of an application to a jus- tice of the supreme court, in the judicial district where said lands are situated, by petition duly verified, for the appointment of commissioners to examine the said route. Such petition shall set forth the petitioners' objections to the route designated by the company, shall designate the route to which it is proposed to al- ter the same, and shall be accompanied by a survey, map and profile of the route as designated by the com- pany and of the proposed alteration thereof, copies of which petition, map, survey and profile shall be served upon the company and said owner or occupants, with the notice of the application. If the said justice shall consider sufficient cause therefor to exist, he may, after hearing such parties as shall appear, appoint three dis- interested persons, one of whom must be a practical civil engineer, commissioners to examine the route pro- posed by the company and the route to which it is pro- TO HOLD EEAL ESTAa?E. 61 posed to alter the same, and, after hearing the parties, to affirm the route originally designated, or adopt the proposed 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 alteration ; but no alteration of the route shall be made except by the concurrence of the commissioner who is a practical civil engineer, nor sh&ll an alteration be made which shall cause greater damage or injury to lands, or materially greater length of road, than the route designated by the company would cause, nor which shall substantially change the general line adopted by the company. The determination of the commissioners shall, within thirty days after their ap- pointment, be made and certified by them, and the cer- tificate, with the petition, map, survey and profile, and any testimony taien before them, be filed in the office of tte register of the county, in coumties where there is a register, otherwise in that of the county clerk. Within twenty days after the filing of such certificate any party may, by notice in writing to the others, ap- peal to the supreme court from the decision of the commissioners, which appeal shall be heard and decided at the next general term of the court held in any judi- cial district 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 said court. On the hearing of such appeal the court may affirm the route proposed by the company or may adopt that proposed by the petitioner. Said commissioners shall eacb be entitled to three dollars per day for their expenses and services, to be paid by the person who applied for their appointment ; and if the route of the road as designated by the company is altered by the commissioners, and their decision is affirmed on appeal 62 CAPACITY OF COMPAirr (if an appeal be taken), the company shall refund to the applicant the amount so paid. (Laws 1850, chap. 140, § 22 ; Amd. Laws 1871, chap. 560, § 1.) Capacity of company to receiye and pur- chase land. — ^Every corporation formed under this act, shall, in addition to the powers conferred on cor- porations in the third title of the eighteenth chapter of the first part of the Revised Statutes, have power. 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 accommoda- tion of its railroad; but the real estate received by voluntary grant shall be held and used for the pur- poses of such grant only. To purchase, hold and use all such real estate and other property as may be necessary for the construction and maintenance of its- railroad, and the stations and other accommodations necessary to accompKsh the ob- jects of its incorporation; but nothing herein contained shall be held as repealing, or in any way affecting the act entitled " An act authorizing the construction of railroads upon Indian lands," passed May 12, 1836 (a). (Laws 1850, chap. 140, § 28, subds. 2, 3.) Voluntary conTeyance. — The company may proceed to acquire title in two ways, either, first, with the consent of the owner of the fee ; or, secondly, without his consent, by appraisal and payment of damages (Craig v. Rochester City &c. R. Co. 39 Barb. 494 ; Gilbert v. Columbia Turnpike Co. 3 Johns. Cas. 107). In the former case, it has the right to pay part of the consideration for the land, by opening and maintaining a portion of the same as a public street; and a condition to that effect, in the deed of such property is not void, as imposing an obligation on the company inconsistent with the purposes for which it was formed (Tmkham «. Erie R. Co. 53 Barb. 393). Where the premises were granted to the company, under the condition that the track should not cross south of a certain line, the grant was held inoperative upon the violation of such proviso (Douglass «. N. Y. & Erie R. Co. Clarke, 174) ; but TO HOLD EEAL ESTATE. 63 where the condition was that the railroad should be completed over such land by a certain day; yet upon failure to perform such condition, the grantor did not assert the forfeiture at once, but waited until the end of two years before doing so, during which time he had allowed the com- pany to make considerable outlays on the premises ; Held, that he had waived his rights (Ludlow v. N. Y. & H. R. Co. 12 Barb. 440). Nor can the grantor recover damages by reason of the land being used for rail- road purposes, where he had voluntarily conveyed the premises without restriction (Matter of the TJtica &c. R. Co. 56 Barb. 456) ; thus he cannot recover for injuries from fire, caused by the legitimate operation of the road, where no negligence is established (Rood u. N. T. & Erie R. Co. 18 Barb. 80). So the grantee of land along the railroad, must take it- it cum (mere (Hentz v. Long Island H. Co. 13 Barb. 646). The title to certain real estate, purchased with the corporate funds, but without the knowledge of the company, the deed being taken in the name of a di- rector, will, nevertheless, vest at once in the company (Buffalo &c. R. Co. v. Lampson, 47 Barb. 533). TJnder the above subdivision three, of section twenty-seven, it seems the railroad company is restricted to no limits, except their necessities, in the acquisition of lands for stations &c.; and it would be a question for the jury, whether such real estate was ion&j/ide purchased for the purposes contemplated in its charter (See Moss v. Averell, 10 N. T. 462). The width of the road is limited to six rods, but in case of cuttings and embankments, the company may take as much more land as may be necessary to a proper construction of the road (Laws 1850, chap. 140, § 28, subd. 4). (a) See under same general head, post. Title to roadway how acquired.— In case any railroad company, the line or route of whose road has been surveyed and designated, and the certificate thereof duly filed as required by law, is unable to agree for the purchase of any real estate required for its roadway, the said corporation shall have the right to acquire title to the same by the special proceedings prescribed in the act hereby amended («) ; and all real estate acquired by any railroad corporation, under and pursuant to the provisions of this act, for the objects and purposes herein expressed, shall be deemed to be acquired for public use. But this section shall not be so construed as to apply to any real estate in the city 64 CAPACITY OF COMPANY of Buffalo, situate between Main- and MicHgan streets. (Laws 1854, chap. 282, § 4.) (a) Laws 1870, chap. 140. Title to real estate, how acquired against consent of owner.— In case any company formed under this act is unable to agree for the purchase of any real estate required for the purposes of its incor- poration, it shall have the right to acquire title to the same in the manner, and by the special proceedings prescribed in this act. (Laws 1850, chap. 140, § 13.) The con^ititntionality of the proceedings. The legislature cannot take the land of one individual against his consent, and bestow it upon another unless the public interest will be advanced thereby (Beekman v. Saratoga & Schenectady R. Co. 3 Paige, 45 ; Taylor v. Porter, 4 Hill, 140) ; but as long ago as 1837, the court of last resort of this State, decided, that lands taken for a railroad, were taken for public use (BloQdgood v. Mohawk &c. R Co. 18 Wend. 9, reversing s. c. 14: id. 51; see also People v. Law, 34 Barb. 494; s. c. 23 How. Pr. 109; Buffalo & N. Y. City R. Co. i;. Brainard, 9 N. Y. 100 ; Beekman a. Saratoga and Schenectady R. Co. supra). So, even the franchises of a corporation may be taken for public use, upon making due compensation therefor (In the matter of Kerr, 43 Barb. 119). Nor is the act imconstitutional because it does not appropriate the specific land taken for public use itself, but delegates to the company the right in each particular case to make the location and selection (Buffalo &c. R. Co. v. Brainard, supra). Statutory couTeyanee. Under the above provision, the com- pany, in cases where the lands required for the road cannot be obtained by purchase, may proceed to take the same adversely to the owner, or without his consent. In all cases, however, where it is possible, the owner is entitled to the benefit of a voluntary sale (Dyckman v. Mayor &c. of New York, 5 N. Y. 434 ; affirming s. c. 7 Barb. 498 ; Gilbert v. Cohunbia Turnpike Co. 3 Johns. Cas. 107) ; and the disagreement of the parties, as to the amount of compensation, is a material requirement of the stat- ute, without which the court has not jurisdiction (Grilbert ». Columbia Turnpike Co. swpra). Since this section aims to divest the land owner of the property in question, without his consent, the provisions of the fol- lowing sections must be strictly followed, in order to accomplish sucH end (Adams «. Saratoga &c. R. Co. 10 N. Y. 338 ; Sharp v. Speir, 4 HiU, 76). TO HOLD EBAIj ESTATE. 65 Title, Ikove acquired prerjous to act of 1§50. The laws of 1847 (chap. 404, § 1) provided, that when the owner of any lands which a railroad company chartered in this state, or authorized to con- struct any portion of its railroad therein, should be authorized by the laws of this state to take for the construction of its railroad, should from any cause be incapable of selling the same, or when the company could not agree with such owner for the purchase thereof, or when, after dili- gent search and inquiry the name and residence of such owner could not be ascertained, the company might acquire the title of such owner to such lands in the same manner as plankroad and turnpike companies might acquire lands under like circumstances, for the purposes of their incorporation. fVlieii proceedings need not be followed. Where the company is incorporated under a special act, and the manner of ac- quiring title to lands as provided in its charter, is inconsistent with the provisions of the general railroad act for the same purpose, the proceed- ings may be had under the charter,' and nofunder the general act (Clark- son V. Hudson River R. Co., 12 N. T. 304 ; Visscher«. Same, 15 Barb. 37 ; Hosier v. Hilton, id. 657 ; Hudson River R. Co. v. Outwater, 8 Sandf. 689). The test of inconsistency in such cases being : Can the require- ments of both the charter and. the general act be followed out and com- plied with in one case (Visscher v. Hudson River R. Co.,. supra). The laws of 1857, (chap. 444, § 2), provide that any railroad company may acquire title to any land which it may require for roadway, and for necessary buildings, depots, and freight grounds, by the special proceed- ings of the general railroad act. Either mode, therefore, may be pur- sued (Moshier v. Hilton, supra). Special proceeding. -^ proceeding under the following sections of the railroad act, for the purpose of acquiring land by appraisement of compensation &c. is a special proceeding (N. T. Cent. R. Co. ». Marvin, 11 N. y. 276). When commissioners may be appointed.— Any railroad company whioli Has been, or which may hereafter be, duly formed under the act entitled " An Act to authorize the formation of railroad corporations and to regulate same," passed April second, eighteen hundred and fifty, and which is duly continued in existence, when at least ten thousand dollars for every mile of its railroad proposed to be constructed in this 66 CAPACITY OF COMPANY state, shall be, in good faith, subscribed to its capital stock, and ten per cent thereof paid in, may apply to the court for the appointment of commissioners, and all subsequent proceedings may be had to obtain the title to lands necessary for the construction of its rail- road, to the same extent and in the same manner as if the whole amount of the capital stock specified in its articles of association was in like manner subscribed. (Laws 1851, chap. 19, § 3 ; Am'd Laws 1853, chap. 53, § 1 ; Am'd Laws 186Y, chap. 515, § 1.) The amendment of 1867, extends the provisions of the section to cor- porations thereafter to be formed, as well as those in existence at the passage of the act. The proceedings of the commissioners, appointed under the above section, must conform to the provisions of the general act of 1850 (Troy & Boston R. Co. v. Northern Turnpike Co., 16 Barb. 100) ; and the railr road company may appeal from their award (Id). Same; with reference to narrow gauge roads. — Any railroad company duly organized accord- ing to law, when the gauge of its proposed railroad shall be three feet and six inches or less, but not less than thirty inches, within the rails, may, whenever six thousand dollars for every mile of its railroad proposed to be constracted in this state is in good faith sub- scribed towards its capital stock, and ten per cent thereon paid in good faith in cash, apply to the su- preme court in the manner provided by law for the appointment of commissioners, and all subsequent pro- ceedings may be had to obtain the title to lands neces- sary for the construction and maintenance and oper- ating said railroad, to the same extent and in the same manner as if the whole amount of the capital stock specified in its articles of association was in like man- ner subscribed, and ten per cent thereof in like man- ner paid in cash, and may lay upon such road iron of TO HOLD REAIj ESTATE. 67 a weight not less than forty pounds to the lineal yard, and may use in switches and turn-outs irons of not less than thirty pounds to the lineal yard. (Laws 1871, chap. 560, § 6.) It was also provided by the same act, that any railroad company, then duly organized and legally kept in existence, and which had not constructed its railroad, might, for the purpose of constmcting, maintain- ing, and operating a road of such gange, acquire title to Itmds in the manner provided above (Laws 1871, chap. 560, § 7).* The petitaon. — ^For the purpose of acquiring such title, the said company may present a petition, praying for the appointment of commissioners of appraisal, to the supreme court, at any general or special term thereof held in the district in which the real estate described in the petition is situated. Such petition shall be signed and verified according to the rules and practice of such court. It must contain a description of the real estate which the company seeks to acquire ; and it must, in effect, state that the company is duly incorporated, and that it is the intention of the com- pany, in good faith, to construct and finish a railroad from and to the places named for that purpose in its articles of association ; that the whole capital stock of the company has been in good faith subscribed as re- quired by this act ; that the company has surveyed the line or route of its proposed road, and made a map or survey thereof, by which such route or line is desig- nated, and that they have located their said road according to such survey, and filed certificates of such location, signed by a majority of the directors of the company, in the clerk's office of the several ^^unties through or into which the said road is to be con- structed ; that the land described in the petition is required for the purpose of constmcting or operating 68 CAPACITY OF COMPANY the proposed road ; and tliat tlie company has not been able to acquire title thereto, and the reason of such inability (a). The petition must also state the names and places of residence of the parties^ so far as the same can by reasonable diligence be ascertained, who own or have, or claim to own or have, estates or inter- ests in the said real estate ; and if any such persons are infants, their ages, as near as may be, must be stated ; and if any of such persons are idiots or per- sons of unsound mind, or are unknown, that fact must be stated, together with such other allegations and statements of liens or incumbrances on said real estate as the company may see fit to mate. A copy of such petition, with a notice of the time and place the same will be presented to the supreme court, must be served on all persons whose interests are to be affected by the proceedings, at least ten days prior to the pre- sentation of the same to the said court (5). (Laws 1850, chap. 140, § 14.) (a) Wbat petition sbould state. This section does not re- quire tlie petition to state that the company has been unable to agree for the purchase of the property, but that the company has not been able to acquire title thereto, and the reason of such inability (Matter of the K Y. Cent. B. Co., 20 Barb. 419). (J) Notice. One object of requiting ten days' notice of the pre- sentation of the petition, to be served, is to afford an opportunity to raise questions of regularity in the proceedings, such as, that the petition, is not properly verifled, or that it does not appear by the petition that the company has been unable to agree for the purchase of the right of way in question. It is too late to raise such objections on motion to confirm the report (N. Y. & Erie B. Co. ®. Corey, 5 How. Pr. 177). Third parties holding liens- upon the lands proposed to be taken should be notified as well as the owners (Watson v. N. Y. Cent. E. Co., 6 Abb. Pr. N. 8. 91). In an answer to- an action for trespass, setting up title by virtue of special proceedings under a statute, requiring notice of not less than ten days to persons afiected by such proceedings, an allegation that reasona- ble notice was given, is bad (Cruger*. Hudson Eiver R Co 13 N Y 190). ■' ■ ■ TO HOLD REAL ESTATE. 69 Petition and notice, how seryed on resi- dent. — If the person on whom such service is to be made resides in this state, and is not an infant, idiot or person of unsound mind, service of a copy of such petition and notice must be made on him or his agent or attdrney, authorized to contract for the sale of the real estate described in the petition, personally, or by leaving the same at the usual place of residence of the person on whom service must be made as aforesaid, with some person of suitable age. (Laws 1850, 'chap. 140, § 14, subd. 1.) Where the person on -whom such service was to be made, although a resident of this state, was at the time, absent in Europe, held that a ser- vice of the notice on a party of suitable age, left in charge of the dwell- ing-house of such person duiing his absence, was in conformity with the statute (In the matter of the N. T. & Oswego Midland R. Co. 40 How. Pr. 335). On non-resident.^If the person on whom such service is to be made resides out of the state, and has an agent residing in this state, authorized to contract for the sale of the real estate described in the petition, such service may be made on such agent, or on such person personally out of the state ; or it may be made by pub- lishing the notice, stating briefly the object of the ap- plication, and giving a description of the land to be taken, in the state paper, and in a paper printed in the county in which the land to be taken is situated, once in each week for one month next previous to the pre- sentation of the petition. And if the residence of such person residing out of this state, but in any of the United States, or any of the British colonies in North America, is known, or can by reasonable diligence be ascertained, the company must, in addition to such pub- lication as aforesaid, deposit a copy of the petition and 70 CAPACITT OF COMPASrr notice in the postoffice, properly folded and directed to such person at the post^ffice, nearest his place of resi- dence, at least thirty days before presenting such peti- tion to the court, and pay the postage chargeable there- on in the United States. (Laws 1850, chap. 140, § 14, subd. 2.) On infant. — ^If any person on whom such service is to be made is under the age of twenty-one years, and resides in this state, such service shall be made as aforesaid on his general guardian ; or if he has no such guardian, then on such infant personally, if he is over the age of fourteen years ; and if under that age, then on the person who has the care o^ or with whom such infant resides. (Laws 1850, chap. 140, § 14, subd. 3.) On person of nnsonnd mind. — ^If the person on whom such service is to be made is an idiot, or of unsound mind, and resides in this state, such service may be made on the committee of his person or estate ; or if he has no such committee, then on the person who has the care and charge of such idiot or person of un- sound mind. (Laws 1850, chap. 140, § 14, subd 4.) On nntnown party. — 1£ the person on whom such service is to be made is unknown, or his residence is untnown, and cannot by reasonable diligence be as- certained, then such service may be made, under the direction of the court, by publishing a notice, stating the time and place the petition will be presented, the object thereol^ with a description of the land to be affected by the proceedings, in the state paper, and in a paper printed in the county where the land is situated, once in each week for one month previous to the pre- TO HOLD EBAIi ESTATE. 71 sentation of sucli petition. (Laws 150, chap. 140, § 14, subd. 5.) Service in cases not proTided for.— In all cases not herein otherwise provided for, service of or- ders, notices, and other papers in the special proceed- ings authorized by this act, may be made as the su- preme court shall direct. (Laws 1850, chap. 140, § 14, subd. 7.) Interests of infants &c. how protected.— Li case any party to be affected by the proceedings is an infant, idiot, or of nnsonnd mind, and has no general guardian or committee, the court shall appoint a special guardian or committee to attend to the interests of such person in the proceedings ; but, if a general guardian or committee has been appointed for such person in this state, it' shall be the duty of such general guardian or committee to attend to the interests of such infant, idiot, or person of unsound mind ; and the court may require such security to be given by such general or special guardian or committee, as it may deem necessary to protect the rights of such infant, idiot, or person of unsound mind ; and all notices required to be served in the progress of the proceedings may be served on such general or special guardian or committee. (Laws 1850, chap. 140, § 14, subd. 6.) Where proceedings are taken by a railroad company under its charter to acquire title to land, and one of the owners of land taken is an infant, it is indispensable that some proper person should be ap- pointed to appear before the jury of appraisers, to represent and attend to the interest of such infant on the appraisement ; and the statute is not complied with simply by an appointment of an attorney for the infant owner sufficient in form ; but it is the duty of the company to see that some reliable person, residing in the vicinity, be appointed, who should in fact personally appear before the jury and protect the inter- 72 CAPACITY OF COMPANT ests of the infant. Without such appointment and appearance all the proceedings of the jury affecting such interests, are unauthorized and > void, and the appointment of the attorney is nugatory (Hotchkiss v. Auijum & Rochester B. Co. 36 Barb. 600). Rights of unknown party, how protected — The coTirt shall appoint some competent attorney to ap- pear for, and protect the rights of any party in interest who is unknown, or whose residence is unknown, and who has not appeared in the proceedings by an attorney or agent.^ (Laws 1850, chap. 140, § 20.) Appointmentof commissioners.— On present- ing such petition to the supreme court as aforesaid, with proof of service of a copy thereof and notice as aforesaid, all or any of the persons whose estates or in- terests are to be affected by the proceedings may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it (a). The court shall hear the proofs and allegations of the par- ties (h), and if no sufficient cause is shown against granting the prayer of the petition, it shall make an order for the appointment of three disinterested and competent freeholders, who reside in the county or some adjoining county where the premises to be ap- praised are situated, commissioners to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate proposed to be taken in such county for the purposes of the company, and to fix the time and place for the first meeting of the commissioners (c). (Laws 1850, chap*. 140, § 15 ; Am'd Laws, 1854, chap. 282, § 2.) (a) What may be considered on presentation of peti- tion. Questions of regularity in the proceedings such as that neither * The remainder of the section, here omitted, relates to the po-wer of the court to amend the special proceedings, and may be found on page 84. Vide post, p. 84. TO HOLD REAL ESTATE. 73 the petition nor the map referred to in the petition as filed La the county clerk's office, shows what extent of land is proposed to be taken, or any- thing more than a line indicating the direction of the proposed railroad (Matter of N. T. & Jamaica R. Co. 21 How. Pr. 434); or that the peti- tion upon which the commissioners were appointed was not properly verified, or that it does not appear by the petition that the company had been unable to agree for the purchase of the right of way in question, are properly raised upon the presentation of the petition for the appointment of commissioners of appraisal (N. T. & Erie R. Co. i>. Corey, 5 How. Pr. 177). One object of requiring ten days' notice of the presentation of the petition, as provided by the preceding section, was to afford an oppor- tunity to raise questions of this character, and it is too late to raise such objections on motion to confirm the commissiohers' report (Id). But an appearance and litigation upon the merits, is field to be a waiver of defects otherwise available (Mohawk &c. R. Co. v. Artcher, 6 Paige, 84 ; Dyckman v. Mayor &c., 1 Seld. 434). (J) An is§ue is raised, Tvben. Where any of the facts alleged in the petition are denied, an issue is raised, and the court is to hear the ^oofs and allegations of the parties ; but legal evidence only is allowable to disprove the facts alleged in the petition, and affidavits read to dis- prove the facts must be excluded from consideration (Buffalo & State Line R. Co. v. Reynolds, 6 How. Pr. 96). (c) Order appointing tlie commissioners. .Commissioners may be appointed under the above section, to ascertain and appraise the compensation to be made to the several owners included in the one peti- tion (Troy & Rutland R. Co. d. Cleveland, 6 How. Pr. 338). This mode of ascertaining the damages of the owners of land taken for the purposes of the raihoad, by commissioners, is not repugnant to the constitution (Beekman v. Saratoga &c. R. Co. 3 Paige, 45). Should any of the com- missioners die, or refuse, or neglect to serve, or be incapable of serving, it is the duty of the coiu-t to make appointments to fill the vacancies (See Laws 1850, chap. 140, § 20). Upon motion, one special term has power to vacate the order made by another, and appoint new commis- sioners, and such order being discretionary, is not the subject of review on appeal (In the Matter of the N. T. & Oswego Midland R. Co. 40 How. Pr. 835) ; and if such first order was obtained ex-parte, or the person being free from any fault, was prevented from appearing at the hearing, and injustice has been done him, it is the duty of the court to open the default, and afford the injured party the relief to which he may be entitled (Id). Duties of commissioners; the report.— The commissioners shall take and subscrilDe the oath pre- 6 74 CAPACITY OF COMPANY scribed by tlie twelftli article of tlie constitution (a). Any of them may issue subpoenas and administer oatiis to witnesses; a majority of them may adjourn the proceedings before them from time to time, in their discretion. Whenever they meet, except by the appointment of the court, or pursuant to adjournment, they shall cause reasonable notice of such meetings to be given to the parties interested, or their agent or attorney. They shall view the premises described in the petition, and hear the proofs and allegations of the parties (J), and reduce the testimony taken by them, if any, to writing, and after the testimony in each case is closed, they, or a majority of them, all being present, shall, without any unnecessary delay, and before proceeding to the examination of any other claim, ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them ; and in fixing the amount of such compensation, said commissioners shall not make any allowance or deduction on account of any real or supposed benefits which the parties interested may derive from the con- struction of the proposed railroad, or the construction of the proposed improvement connected with such road, for which such real estate may be taken (c). They, or a majority of them, shall also determine what sum ought to be paid to the general or special guardian or committee of an infant, idiot, or person of unsound mind, or to an attorney appointed by the court to attend to the interests of any unknown oAvner or party in interest, not personally served with notice of the proceedings, and who has not appeared, for costs, expenses, and counsel fees. The said coramis- sioners shall make a report of their proceedings to the supreme court, with the minutes of the testimony TO HOLD EEAL ESTATE. 75 taken by them, if any(df); and they shall each be entitled to five dollars for services and expenses for every day they are actually engaged in the perform- ance of their duties, to be paid by the company, except where the owners or persons interested in the real estate fail to have awarded them more than the amount of compensation offered them by the company be- fore the appointment of commissioners, then to be paid by the said owners or persons interested, or if not paid by them, to be paid by the company, and deducted from the amount awarded. (Laws 1850, chap. 140, § 16 ; Ani'd Laws 1854, chap. 283, § 3 ; Am'd Laws 1864, chap. 582, § 4.) {a) Oath of office. The oath of office here alluded to reads as follows : " I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of the State of New York ; and that I will faithfully perform the duties of the office of , according to the best of my ability." (5) Order of procedure. Where the commissioners were re- quired " to view the premises and hear the proofs and allegations of the parties," it is discretionary with them to determine the order in which they shall proceed. They must not omit to hear the proofs and allega- tions of the parties, but whether they shall hear these before, or after, viewing the premises, is for them to decide. They may also determine which party shall open and close the argument (Albany Northern K. Co. V. Lansing, 16 Barb. 68). Right of land-owner to he heard. The land OT^ner, whose compensation is the subject of appraisal and determination, has full opportunity to be heard (N. T. & Erie R. Co. ■». Cobum, 6 How. Pr. 323). It is his right to produce before the commissioners, and the duty of the commissioners to hear, any and all evidence which would be com- petent in courts of law upon similar questions (Rochester & Syracuse R. Co. i;. Budlong, 6 How. Pr. 467). The established rules of evidence must be their guide in these proceedings (Troy & Boston R. Co. v. Northern Turnpike Co. 16 Barb. 100) ; but they are not, like other tribunals, to be governed exclusively by evidence. They are required to view the premises as well as to hear the proofs and allegations of the parties (Troy & Boston R. Co. i). Lee, 13 id. 169). While a technical error will be disregarded, an appeal from the report of the commissioners wiU 76 CAPACITY OF COMPAKX be sustained, where proper evidence -was offered by a party and rejected by the commissioners, which evidence, had it been admitted, might have led to a more favorable determination (Rochester & Syracose R. Co. v. Budlong, 6 How. Pr.467). (c) Amount of compensation. The intention of the legislature was to confine the commissioners to an estimate of the price to be paid by the railroad company to the owner upon this involuntary sale of his land, regardless of the benefits or injuries which might result to him as the owner of the adjoining land, in consequence of the contemplated im- provement (Albany Northern R. Co. v. #iansing, 16 Barb. 68). Thus where the commissioners determined the compensation to be made to the owner " for the damages occasioned by the construction and operation of the railroad over his premises," instead of, for the real estate " proposed to be taken " and " to be appraised by them," it was held that they had entirely misapprehended the principles upon which they were to make the award, and the report was set aside (Canandaigua &c. B. Co. ■». Payne, 16 Barb. 373). They are to consider how the tahing of the land, and not how the use of it, in any particular mode, would affect the residue of the owner's land (Albany Northern R. Uo. «. Lansing, supra). They are not authorized to appraise the land of an individual with a reserva- tion of easements and privileges to the owner. They must appraise the land at its actual value (Hill ». Mohawk & Hudson R. Co., 7 N. T. 153 ; afBrming s. c. 5 Denio, 306). The proper inquiry for the Commissioners is, what is the fair marketable value of the whole property, and then what will be the fair marketable value of the propertynottaken; the differ- ence will be the true amount of compensation to be awarded (Troy & Boston R. Co. «. Lee, 13 Barb. 169 ; Canandaigua &c. R. Co. ■». Payne, 16 id. 373: see also matter of Furman Street, 17 Wend. 650; matter of Wil- liam and Anthony Streets, 19 id. 678). But consequential damages will not be allowed for anticipated injuries from flre caused by sparks from the company's engines (Matter of Union Village & Johnsbnville R. Co., 53 Barb. 457 ; s. c. 35 How. Pr. 430 ; citing Albany Northern R. Co. »! Lansing and Troy & Boston R. Co. ■». Lee, supra) ; though in a recent case it was said, that everything which would depreciate the value of the residue was to be taken into account. So if its value was depreciated by the noise, smoke, or increased danger, or because it was more exposed to fire, or more difficult of access — all such considerations were to be in- cluded in the estimate of damages (Matter of the TJtica &c. R. Co., 56 Barb. 456). Compensation includes not only the value of the portion taken, but also the diminution in value of that from which it is severed. This may always be proved by the opinions of competent witnesses (Rochester & Syracuse R. Co. «. Budlong, 6 How. Pr. 467). But no action will lie to recover damages for a depreciation in value, of the portion not taken, in addition to the compensation properly awarded for the por- • tion taken (Fumiss u. Hudson River R. Co., 5 Sandf. 551). TO HOLD REAL ESTATE. 77 In whose favor compensation shall be assessed. A statutory provision requiring compensation to be assessed to the owners or persons interested in the land taken for public use, does not include the wife of the owner of the fee. She is divested of her inchoate right or possibility of dower, when the land is taken from the husband in his lifetime by regular proceeding, and he is duly compensated therefor (Moore «. Mayor &c. of N. Y., 8 N. T. 100; affirming s. c. 4 Sandf. 456) ; but a widow is clearly within such statutory provisions, and it is the duty of the commissioners to assess the value of her life estate or dower in such lands, and award it to her as damages (Matter of William and Aithony Streets, 19 Wend. 678). The commissioners should also de- termine the compensation to be made to a mortgagee of the lands so taken (Matter of John and Cherry Streets, 19 Wend. 659) ; and the fact that the mortgage debt is not then due, makes no difference {Id). So, where the company acquires the title to land on making due compensa- tion for its value, upon which land there was a mortgage of which the company had constructive notice : Held, on foreclosure and sale in parcels of the whole of the mortgaged premises, that the company was bound to contribute to the payment of the mortgaged debt, if the same was not paid by the sale in the inverse order of alienation of the other property covered by the mortgage, the full value at the time of such appropria- tion, of the respective parcels of the mortgaged property taken by it, with interest to the time of payment (Dows «. Congdon, 16 How. Pr. 571). But these provisions do not require compensation to be made to one whose land has not been taken for railroad purposes, even though he suffers indirect and consequential injuries by reason of the construction of such road (Arnold v. Hudson Eiver R. Co., 49 Barb. 108 ; Drake t. Same, 7 id. 503 ; Barnes v. Southside B. Co., 3 Abb. Pr. N. S. 415), and an injunction will not be granted on behalf of such party, restraining the company from proceeding with the construction of their road, on the ground that he will suffer indirect and consequential damages (Barnes t. Southside R. Co., mpra). (d) The report. There is no rule of law or principle of public policy requiring the commissioners to be together at the signing of the report (Rochester &c. R. Co. •». Beckwith, 10 How. Pr. 168). The report may embrace a succession of appraisals by the same commissioners (Troy & Rutland R. Co. o. Cleveland, 6 How. Pr. 238). Appraisal not affected by change of owner- ship. — Wlien any proceedings of appraisal shall have been commenced, no change of ownership by voluntary conveyance or transfer of the real estate or any inter- 78 CAPACITY OP COMPAIJT est therein, or of the subject matter of the appraisal, shall in any manner affect such proceedings, but the same may be carried on and perfected, as if no such conveyance or transfer had been made or attempted to be made. (Laws 1854, chap. 282, § 6.) Report, how confirmed. — On such report being made by said commissioners, the company shall give notice to the parties or their attorneys to be affected by the proceedings, according to the rules and practice of said court, at a general or special term thereof, for the confirmation of such report, and the court shall thereupon confirm such report, and shall make an order, containing a recital of the substance of the pro- ceedings in the matter of the appraisal, and a descrip- tion of the real estate appraised for vrhich compensa- tion- is to be made ; and shall also direct to whom the money is to be paid, or in what bank, and in what manner it shall be deposited by the company. (Laws 1850, chap. 140, § 17.) Order confirming report. When a report of commissioners of appraisement is made, which npon its face appears to conform in sub- stance to the requirements of the act, and notice is given according to the rules and practices of the court for its confirmation, the court should confirm it (N. Y. & Erie R. Co. v. Corey, 5 How. Pr. 177 ; Rochester & Syracuse R. Co. v. Beckwith, 10 How. Pr. 169). The truth of the mat- ter contained in the report cannot be impeached or contradicted on ap- plication to confirm the report, but can only be reviewed under section eighteen of the act of 1850 (Id). Until the order is made confinning the report and directing the payment of the money, the company has no right to the land, nor the land-owner to the money awarded, and the proceedings m ay be set aside or abandoned (Hudson River R. Co. v. Cutwater, 3 Sandf. 689). WTial may be considered on motion to confirm re- port. Upona motion to confirm the report of the commissioners, the court cannot consider objections or exceptions to such- report, except those which state that neither the report, nor any of the proceedings TO HOLD EBAIi ESTATE. 79 ■wMch precede it, properly designate the land proposed to be taken. Other objections and exceptions must be considered on appeal from the report, after confirmation, as provided by section eighteen (Matter of N. Y. & Jamaica R. Co., 31 How. Pr. 434). The act of 1850 does not give the court power to set aside the report of commissioners of appraisal upon motion, and it is only on appeal from the report that a new appraisal may be ordered and new commissioners appointed (Albany Northern B. Co. ■». Crane, 7 How. Pr. 164; N. T. & Erie R. Co. v. Corey, 5 id. 177 ; N. T. & Erie R. Co. v. Coburn, 6 id. 333 ; Rochester & Syracuse R. Co. ■». Budlong, Id. 467 ; Rochester &c. R. Co. ■». Beckwith, 10 id. 169). The commissioners should not be allowed to stultify themselves in any case by alleging that they signed the report -without reading, or heating it read (Rochester &c. R. Co. v. Beckwith, 10 How. Pr. 169). Effect of order conflrming report.— A certi- fied copy of the order so to be made as aforesaid shall be recorded at full length in the clerk's office of the county in which the land described in it is situated ; and thereupon, and on the payment or deposit by the company of the sums to be paid as compensation for the land (a), and for costs, expenses, and counsel fees as aforesaid, and as directed by said order, the com- pany shall be entitled to enter upon, take possession of, and use the said land for the purposes of its incorpora- tion, during the continuance of its corporate existence, by virtue of this or any other act ; and all persons who have been made parties to the proceedings shall be di- vested and barred of all right, estate, and interest in such real estate, during the corporate existence of the company as aforesaid (b). All real estate acquired by any company under and pursuant to the provisions of this act, for the purposes of its incorporation, shall be deemed to be acquired for public use. "Within twenty days after the confirmation of the report of the com- missioners, as provided for in the seventeenth section of this act, either party may appeal, by notice in writ- ing to the other, to the supreme court, from the ap- 80 CAPACITY OF COMrANT praisal and report of tlie commissioners (c). Sucli appeal shall iDe teard by the supreme court at any- general or special term thereof, on such notice thereof being given, according to the rules and practice of said court (d). On the hearing of such appeal, the court may direct a new appraisal before the same or new commissioners in its discretion (ri: to hold reax estate. railroad, for the right to make such road upon lands ; but no such contract shall vest in such railroad com- pany the fee to such lands, nor the right to occupy the same for any purposes other than what may be neces- sary for the construction, occupancy and maintenance of such railroad. (Laws 1836, chap. 36, § 1.) Same. — ^No contract made with the chiefs of any nation of Indians, for the purposes mentioned in the first section of this act, shall be valid or effectual, until the same shall be ratified by the Court of Common Pleas of the county where such land may be situated. (Laws 1836, chap. 316, § 2.) County courts have original jurisdiction to exercise all the powers and jurisdiction conferred upon the late courts of common pleas of the county, respecting the laying out of railroads through Indian lands (Code, § 30, subd. 11). Although the fee to the land so acquired, is not vested in the company, yet it is " owned "' by the company within the contemplationof the provisions of the Revised Statutes regarding taxa- tion, and may be assessed as property occupied by the railroad in the town in which it is situated (The People ex rd. Erie R. Co. v. Bearddey, 52 Barb. 105). Title of the United States to certain lands, not affected hy railroad priTUeges. — ^Any right, title or privilege heretofore granted, or which may hereafter be granted by the United (sic) authorities to any railroad company to cross or occupy any portion of the fortification grounds in the city of Oswego, for road tracks or any railroad purpose connected there- with, shall not impaii- or invalidate any of the rights, titles or privileges given to the United States by an act entitled, " an Act to cede the jurisdiction of certain lands near the mouth of the Oswego river, New York, to the United States," passed April 25, 1839. (Laws 1870, chap, ro, § 1.) IX. OF THE CONSTKUCTION OF ROAD. Map and profile of land taken for rail- road. — Every corporation shall, within a reasonable time after their road shall be constructedj cause td be made: A map and profile thereof, and of the land taken or obtained for the use thereof, and file the same in the office of the state engineer and surveyor ; and also like maps of the parts thereof located in different coxmties, and file the same in the offices for recording deeds, in the county in which such parts of said road shall be. Every such map shall be drawn on a scale, and on paper, to be designated by the state engineer and sur- veyor, and certified and signed by the president or engineer of such corporation. (Laws 1850, chap. 140, §45.) It is also the duty' of each corporation to transmit to the state engi- neer and surveyor the following maps, profiles and drawings exhibiting the characteristics of its roads : the map to show the length and direc- tion of each straight line, and the length and radius of each curve ; also, the point of crossing of each town and county line, and the length of line in each town and county accurately determined by measurements to be taken after the completion of the road. The profile to be on the map, and shall show the grade line and surface of ground in the usual inethod, also the elevation of grades above tides at each change in the inclination thereof. The maps and profile to be made on a scale of five hundred feet to one-tenth of a foot ; verticle scale of profile to be one hundred feet to one-tenth of a foot. For all roads now in progress, or which may here- after be constructed the said maps shall be returned within three months after the same or any portion thereof shall be in use. (Laws 1850, chap. 140, § 31, subd 39.) By a previous act (Laws 1838, chap. 161), every in- corporated railroad, canal and bridge company, was required to deposit with the comptroller in the canal room, accurate drawings of the plans and specifications of the mechanical work thereafter to be constructed. 94 CONSTEUCTION OF KOAD. by such company, to be drawn on a scale, and on paper to be designated by the Board of Canal Commissioners, or by such other board of public works as might thereaiter be organized by the legislature {Id. § 1). A map and profile of the railroad &c. were in like manner to be drawn and de- posited {Id. § 3). By the laws of 1840 (chap. 359, § 3), it was provided that every raib-oad company in this state, to which the credit of the state had been loaned, or which might thereafter ask the aid of the state, should so far as might be in its power, without making a new survey, furnish to the Surveyor-general, copies of all maps, plans, drawings, levels and sur- veys of every description, made in connection with the construction of its railroad. Width of road.— Every corporation formed un- der this act shall, in addition to tlie powers conferred on corporations in the third title of the eighteenth chapter of the first part of the Eevised Statutes, have power, To lay out its road not exceeding six rods in width, and to construct the same ; and for the pur- poses of cuttings and embankments, to take as much more land as may be necessary for the proper construc- tion and security of the road, and to cut down any standing trees that may be m danger of falling on the road, making compensation therefor as provided in this act for lands taken for the use of the company. (Laws 1850, chap. 140, § 28, subd. 4.) Companies may construct road of narrow gauge. — Any railroad corporation, now duly organized and legally kept in existence, which has not constructed its railroad, may construct a railroad of the gauge here- inbefore mentioned (a), and may acquire title to lands necessary for the construction, maintenance and operat- ing of such railroad on complying vrith the provisions of this act, and all other provisions of law not incon- sistent herewith. (Laws 1871, chap. 560, § 7.) («) A guage of three feet and six inches or less, but not less than thirty inches. The organization of companies using such narrow guage, is pro- CONSTRUCTION OF ROA». 95 Tided for in section five, of chapter five hundred and sixty, of the laws of eighteen hundred and seventy-one. Weight of rail to Ibe used.— Every railroad, the track of wliicli shall hereafter he constructed or relaid in whole or in part, the rail laid down shall be of iron and at least fifty-six pounds weight to every lineal yard, and for the purpose of enabling the companies owning such tracks, or authorized to construct a railroad track, to comply with the provisions of this section, they are hereby authorized to increase their capital stock or bor- row money upon the security of their road, its appur- tenances and franchises, according to the provisions of the first section of this act (a), but nothing herein con- tained shall be so construed as to authorize the increase of capital or the borrowing of money for any other purpose. (Laws 1847, chap. 272, § 5.) (a) By the laws of 1847 (chapter 272, § 1), any railroad company usinf; steam power in propelling its cars, whose track was then laid in whole, or in part with the flat bar rail, was authorized to substitute upon its track or tracks the heavy iron rail, weighing fifty-six pounds to the lineal yard, and to increase its capital stock, or borrow money upon the security of its road &c. as the directors of such company might deter- mine, subject to all previous incumbrances to the state or individuals, to an amount sufficient to accomplish such end : Provided, that no in- crease of capital or indebtedness on the part of said company should exceed in the aggregate the sum of f 10,000 per mile for each mile of the entire length of its railroad. Section two of this act provided penalties for certain railroads who should within given times neglect to substitute the heavy iron rails for the flat bar rail, then in use (Laws 1847, chap. 272, § 2). During the same year it was further enacted, that if the direc- tors of such company should deem it advisable to lay a second track, the same should be laid with the heavy iron rail, and for such purpose the company were authorized to increase its capital stock, or to borrow money on its raili:oad &c. (Laws 1847, chap. 405, § 1.) Weight of rail, to he increased, when.— No company formed under this act shall lay down or use in the construction of their road any iron rail of less 96 OOKSTRUCTION OF EOAD. weigM than fifty-six pounds to tlie lineal yard on grades of one tundred: and ten feet to the mile or un- der, and not less than seventy pounds to the lineal yard on grades of over one hundred and ten feet to the mile, except for turn-outs, sidings and switches, pror vided this section shall apply only to roads now being constructed or hereafter to be constructed, when the gauge of said road exceeds four feet or over. (Laws 1850, chap. 140, § 27 ; Am'd Laws 1862, chap. 449, § 1 ; Am'd Laws 1871, chap. 669, § 1.) The company is liable for negligence in using defective tieSj or in laying its rails in such a manner that within the ordinary extremes: of cold and heat, they expand so as to be pressed out of place (Reed v. N. Y. Cent. R. Co., 56 N. Y. 493). And where it appeared that the contrac- tion and expansion of rails, of the length of those used, between the ordinary extremes of heat and cold was from three-eighths to one-half an inch in each bar, and that the rails upon the defendant's road were laid with spaces of not more than one quarter of an inch between them, Jield that the jury were authorized to find that the rails were negligently laid (Id). The rule that a carrier must provide roadworthy vehicles, applies to railroad companies in such manner as to require them to provide a track worthy of the vehicle (McPadden v. N. Y. Cent. R. Co., 47 Barb. 347). The company is bound to lay and maintaiu its track properly, and where the accident occurred from a broken rail,, the fact whether the rail was in sound condition at the time the train came upon it, is to be deter- mined by the jxiry (Id). The company is liable, where by the sinking of the pavement in the street, a spike in the rail was left exposed, in conse- quence of which the islaintiflf driving along the track was thrown from his carriage and .injured (Fash v. Third Ave. R. Co., 1 Daly, 148), and this, though there was room in other parts of the street, for the plaintiff to have passed (Id). But there must be proof of negligence and want of care in constructing and maintaining the track, before the company can be held liable (Manzetti ». N. Y. Cent. R. Co., 3 E. D. Smith, 98) ; thus, where the train was thrown from the track by the act of some unknown person, who shortly before the passage of the train drew the spikes which fastened the rails, the company is not liable for the consequences of such culpable act peyo v. same, 34 K. Y. 9 ; 89 N Y. 227 ; 35 B. 38). In an action for damages for an injury alleged to have been occasioned by the bad condition of the road, the declarations of the engineer of the com- pany, made while actually engaged upon the work, and in. respect to its proper construction, are part of the res gestm (Brehm ». Great Western R. Co., 34 Barb. 250). Evidence of the bad condition of the road beyond CONSTRUCTION OF ROAD. 97 the place where the accident occurred is also admissible (Reed v. N. T. Cent. B. Co., »upra). The company carmot abandon or discontinue the use of a part of its road, and the people, through their Attor- ney general, can compel the company to repair and operate the same (The People v. Albany & Vermont E. Co., 1ft How. Pr. 523 ; 11 Abb. Pr. t3ft). Eailroad fences; farm crossings; cattle guards. — Every corporation formed tinder tMs act, shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required liy law (a), with openings or gates or bars therein, and farm crossings (b) of the road for the use of the proprietors of lands adjoining such railroad; and also construct and maintain cattle guards (c) at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. UntU such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or en- gines, ta cattle, horses, or other animals thereon ; and after such fences and guards shall be duly made and maintained (d), the corporation shall not, be liable for any such damages, unless negligently or willfully done ; and if any person shall ride, lead, or drive any horse or other animal upon such road, and within such fences and guards, other than at farm crossings, without the consent of the corporation, he shall, for every such offense, forfeit a stmi not exceeding ten dollars, and shall also pay all damages which shall be sustained thereby to the party aggrieved. It shall not be lawful for any person, other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except where the same shall be laid along public roads or streets. (Laws 1850, chap. 140, § 44.) 98 CONSTRUCTION OF BOAD. The provisions of this section apply to all railroad corporations in the state, whether then existing or thereafter to be formed, and whether created by special act, or organized under the general law (Staats e. Hud- son River R. Co. 3 Keyes, 196 ; s. c, 83 How. Pr. 139), and to foreign as well as domestic ones (Labussiere v. N. Y. & New Haven R. Co. 10 Abb. Pr! 398; to the contrary, Schanchan c. Same, Id. 398). See Laws 1854, chap. 283, § 8, seq. (a) Requisites of fence. A zigzag fence, the angles of which project alternately upon the company's land, and then upon the land ad- joining the same, may be erected as a division fence, and is a fence ) of the proper county, a survey, map and certificate of such alteration or change ; and shall have the same right and power to acquire title to any lands required for the purposes of the company, in such altered or changed route, as if the road had been located there in the first instance (c); and no such alteration shall be made in any city or village, after the road shall have been constructed, unless the same is sanctioned by a vote of two-thirds of the common council of said city or trustees of said village ; and in case of any alteration made in the route of any rail- road after the company has commenced grading, com- 110 CONSTBUCTION OF BOAD. pensation shall be made to all persons for injury so done to any lands that may have been donated to the company. All the provisions of this act relative to the first location, and to acquiring title to land, shall apply to every such new or altered portion of the route. (Laws 1850, chap. 140, § 23.) (a) Time of changing route. It had previously been pro- vided that the company might change any part of its route on which its railroad had not been constructed. The act containing such provision reads as follows : Any railroad company, the route of whose railroad or some part thereof, shall have been located in the manner prescribed by law, may change any part of such route so located, on which its railroad shall not have been constructed, but no such change shall vary the route of such railroad to exceed one mile, laterally, from the route which shall have been so located; and the new location of any portion of such route, when so changed, shall be made in the same manner, as nearly as may be, as the first location was required by law to be made. When any portion of such route shall be so changed, such company may take and hold such lands for the constructien of its railroad over such portion of its route as it would have been authorized by law to take and hold for that purpose if such portion of its route had originally been located as it shall be by such change ; and when the owner of any such lands shall from any cause be incapable of selling the same, or if such company cannot agree with such owner for the purchase thereof; or, if after dili- gent search and inquiry, the name and residence of such owner cannot be ascertained, such company may acquire the title to such lands in the manner prescribed by the twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-seventh, twenty-eighth, twenty-ninth, and thirtieth sections of chapter two hun- dred and ten of the laws of eighteen hundred and forty-^ven. (Laws 1847, chap. 404, § 1.) (J) Map &c. to be filed, where. By the laws of 1871 (chap. 560, § 3) it is provided that, whenever in said act (Laws 1850, chap. 140) any map, survey, profile, report, certificate or other paper is directed to be filed or recorded in the office of the county clerk, the same shall be filed or recorded in the office of the register of the county, provided there be a register's office in said county ; and all maps, profiles, surveys, reports, certificates, or other papers which have, pursuant to' the provi- sions of said act, been heretofore filed or recorded in the office of the clerk of any county in which there is a register, shall be, within thirty days after the passage of this act, transferred to the office of such regis- CONSTRUCTION OF ROAD, HI ter, and shall be by him refiled or recorded as of the date of the original filing or record. Section three of the same act of 1871, provides for the refiling or re- cording in the register's ofiice, of all maps, profiles, surveys, reports, cer- tificates and other papers, -which had been previously filed or recorded in a county clerk's oflBce, pursuant to the act of 1850. (c) Effect of change of route. The change of route, author- ized by this section does not revest the title to any land previously ac- quired by the company, in the former owner; nor can the company avoid payment of the lands first acquired on the ground that subse- quently to the appraisal thereof, the route of its road had been so changed that the said lands were no longer necessary for it^ track (Crowner v. Watertown & Rome E. Co. 9 How. Pr. 457). Construction of part of line, in adjoining State. — Wlienever, after due examination, it sL.all be ascertaiaed hj the directors of any railroad company, organized under the act entitled " An act to authorize the formation of railroad corporations, and to regulate the same," passed March 26th, 1848, or under the act entitled " An act to authorize the formation of railroad corporations, and to regulate the same," passed April 2d, 1850, that a part of the line of their railroad pro- posed to be made between any two points in this state, ought to be located and constructed in an ad- joining state, it may be so located and constructed by a vote of two-thirds of all the directors, and the sec- tions of said railroad within this state shall be deemed a connected line, according to the articles of associa- tion, and the directors may reduce the capital specified in their articles of association to such amount as may be deemed proper, but not less than the amount re- quired by law for the number of miles of railroad to be actually constructed in this state. (Law 1851, chap. 19, § 2.) Railroad connections and intersections, how constructed. — Every corporation formed under 112 CONSTBXJOTION OF KOAD. this act shall, in addition to the powers conferred on corporations in the third title of the eighteenth chap- ter of the first part of the Kevised Statutes, have power, To cross, intersect, join, and unite its railroad with any other railroad before constructed, at any point' on its route, and upon the grounds of such other railroad company, with the necessary turn-outs, sid- ings and switches, and other conveniences in further- ance of the objects of its connections. And every company who^e railroad is or shall be hereafter inter- sected by any new railroad, shall unite with the own- ers of such new railroad 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, or the points and manner of such crossings and connections, the same shall be ascertained and determined by commis- sioners, to be appointed by the court as is provided in this act in respect to acquiring title to real estate. (Laws 1850, chap. 140, § 28, subd. 6.) Line common to two companies, how con- structed. — Whenever two raiboad companies shall, for a portion of their respective lines, embrace the same location of line, they may by agreement, provide for the construction of so much of said line, as is com- mon to both of them, by one of the companies, and for the manner and terms upon which the business thereon shall be performed. Upon the making of such agreement, the company that is not to construct the part of the line which is common to both, may alter and amend its articles of association so as to ter- minate its line at the point of intersection, and may reduce its capital to a sum not less than ten thousand. CONSTETJCTION OF EOAD. 113 dollars for each mile of tlie road proposed to be con- structed in such, amended articles of association. (Laws 1851, chap. 19, § 1.) Same— Reserving clause as to railroads in cities. — ^Whenever two railroad companies shall, for a portion of their respective lines, embrace the same location of line, or whenever, by the connection of two or more railroads, the same points of termination are reached by railroad communication, any two such rail- roads may, by agreement, provide for the construction of so much of said line as is common to both of them by one of the companies, and for the manner and terms upon which the business thereon shall be per- formed. Any road so connecting may alter and amend its articles of association, so as to terminate at the point of intersection, and may reduce its capital to a sum not less than ten thousand dollars for each mile of the road constructed, or proposed to be constructed, in such amended articles of association. This section shall not be so construed as to apply to any railroad company or companies, so far as its or their line of road or roads are within the bounds of any incorpor- ated city of this state. (Laws 1854, chap. 282, § 13.) It is also provided that, whenever any railroad company shall have located its road so as to terminate at any railroad previously constructed or located, whereby communication might be had with any incorporated city of this State, and any other railroad company shall subsequently locate its road so as to intersect the road of said first-mentioned com- pany, and thereby, by itself or its connections, afford communication with such city, then and in such case said first-mentioned company may alter and amend its articles of association so as to have its road termi- nate at the poiat of intersection with said road so subsequently located, provided the consent of the stockholders representing or owning two- thirds of the stock of said company shall have been first obtained thereto. (Laws 1871, chap. 560, § 3.) 114 OONSTEUOTIOK OF BOAD. Eailroad may he constructed across, along, or upon highways &C.— Every corporation formed under this act, shall, in addition to the powers confer- red on corporations in the third title of the eighteenth chapter of the first part of the Revised Statutes, have power. To construct their road across, along, or upon any stream of water, water-course, street, highway, plank- road, turnpike, or canal, which the route of its road shall intersect or touch ; but the company shall restore the stream or water-course, street, highway, plankroad and turnpike thus intersected or touched to its former state, or to such state as not unnecessarily to have im- paired its usefulness. Every company formed under this act shall be subject to the power vested in the canal commissioners by the seventeenth section of chapter two hundred and seventy-six of the session laws of eighteen hundred and thirty-four. Nothing in this act contained shall be construed to authorize the erection of any bridge, or any obstructions across, in, or over any stream, or lake, navigated by steam or sail boats, at the place where any bridge or other obstruc- tions may be proposed to be placed ; nor to authorize the construction of any railroad not already located in, upon, or across any streets in any city, without the assent of the corporation of said city. Nor to author- ize any such railroad company to construct its road upon and along any highway, without the order of the supreme court of the judicial district in which said highway is situated, made at a special term of said court, after at least ten days' notice in writing of the intention to make application for said order shall have been given to the commissioners of highways of the town in which said highway is situated. (Laws 1850, CONSTRUCTION OF KOAD. 115 chap. 140, § 28, sutd. 5 ; Am'd Laws 1864, chap. 582, Railroad crossings stream. The company, in carrying its rail- road across a navigable stream, must see to it that the usefulness of the stream is not impaired thereby (People ■». Eensselaer K. Co. 15 Wend. 113 ; Cott «. Lewiston E. Co. 36 N. T. 214; s. c. 84 How. Pr. 323), and the company is liable for damages from overflow of water resulting from the construction of the road over the stream (Brown v. Cayuga & Susque- hanna E. Co. 12 N. T. 486 ; Eobinson «. N. T. & Erie E. C. 37 Barb. 513), and it is not improper to charge that if the jury should find from the evidence, that the damage complained of, was occasioned solely by the acts of the company in excavating and removing the bants of a natural stream, to conform to the grade of the railroad, the company would be liable (Eobinson v. N. Y. & Erie E. Co. supra). The company may pur- chase a private bridge where it will answer the corporate ends, but must take it subject to any restrictions upon the prior owners, regarding free passage over i,t, to the injury of a neighboring toll-bridge (Thompson -o. N. T. & Harlem E. Co. 8 Sandf. Ch. 635) ; though a grant to a railroad company to cross a river with its track, and to transport passengers and property thereon in the ordinary course of its business, is not an infringe- ment on the exclusive privileges conferred on a toll-bridge company, by a prior grant, of erecting a toll-bridge across such river (Mohawk Bridge Company «. Utica & Schenectady E. Co. 6 Paige, 554). As to construction of provisions in the charter of the Hudson River Eaihoad Company, regarding crossing of bays &c. see Tillotson v. Hud- son River B. Co. 9. N. T. 575 ; Getty «. Same, 31 Barb. 617 ; Purniss v. Same, 5 Sandf. 551. Railroad on street, higtaiiray. When it becomes iiecessary to cross a highway, below the grade of the same, it is the duty of the company to carry such highway over its railroad, and to build and main- tain a bridge for that purpose ; and as long as the highway exists, the company, by mere abandonment of its railroad, removal of its track, and its entire dis-use, cannot absolve itself from the obligation to maintain such bridge in good repair (People ex rel. Town of Schaghticoke v. Troy & Boston E. Co. 37 How. Pr. 437). But an injunction will not be granted to restrain the company from erecting a wooden bridge, for the purpose of carrying the highway over its track, and to compel it, instead, to con- struct a stone culvert or arch, for such purpose (Bancus v. Albany North- em E. Co. 8 How. Pr. 70). It is an established inference of the common law, that the proprietors of land adjoining a public highway are the owners of the fee of said highway, and that the public has merely an easement therein (Wager v. Troy Union E. Co. 35 N. T. 536 ; Bissell v. N. T. Cent. E. Co. 33 id. 61 ; Adams v. Saratoga &c. E. Co. 11 Barb. 414 ; People V. Law, 34 id. 494 ; Wetmore v. Same, Id. 515). And there is no 116, CONSTBUCTION OF EOAD. distinction in this respect between the streets of a city and highways in the country {Id.) ; except that as to a large portion of the streets of New York city, it is claimed that the fee of the land and not a mere easement is vested in the corporation (People i). Kerr, 37 N. T. 188 ; s. c. 35 How. Pr. 330; affirming s. c. 39 Barb. 357; reversing s. c. 30 How. Pr. 130; Drake «. Hudson Kiver E. Co. 7 Barb. 508; Milhau v. Sharpe, 15 id. 193 ; see also Hoffman's Treatise, 389. This question was not passed upon in People ». Law, supra). Thus the taking and appropriating of a public street or highway for railroad purposes, is a new use of the public ease- ment in the street (Wager v. Troy Union R. Co. 35 N. Y. 536 ; Carpenter ,®. Oswego &c. R. Co. 3^ id. 655 ; Mahon v. N. Y. Cent. R. Co. Jd 658), and the legislature cannot authorize the company to enter upon the high- way or street, and use it for the purposes of its railroad without making compensation to the owner of the fee (Trustees of Presb. Soc. in Water- loo V. Auburn &c. R. Co. 3 Hill, 567 ; Seneca Road Co. ■». Auburn &c. R. Co. 5 id. 170; Fletcher i>. Auburn &c. R. Co. 35 Wend. 463 ; WUliams v. N. Y. Cent. E. Co. 16 N. Y. 97 ; reversing s. c. 18 Barb. 333; People «. Law, 34 id. 494 ; Wetmore «. Same, Id. 515 ; Craig i>. Rochester &c. R. Co. 39 id. 494). Nor is there any distinction in this respect between rail- roads operated by steam or horse power (Craig «. Rochester &c. R. Co. iuipra ; Wager u. Troy Union R. Co. supra. The Brooklyn Railroad Cases, 83 Barb. 430 ; 35 id. 364 ; and id. 373, have not the force of author- ity on this point. They simply decided, with respect to rival corpora- tions, that each company as against the other must be considered as exer- cising a public use). And even where a turnpike company transferred its road to a railroad company, Jield, that in transferryig it, the turnpike in fact abandoned its road, and although it was authorized by the legis- lature to transfer it to the railroad company, this could not constitution- ally deprive the original owners of the land of their right of reversion without compensation (Mahon v. N. Y. Cent. R. Co. supra). The sec- tion merely conveys the right which the public has in highway, street &c. (EUicottville &c. Plankroad Co. ». Buffalo &c. R. Co. 30 Barb. 644 ; Wager v. Troy Union R. Co. 35 N. Y. 536) ; it protects the company from indictment for a public nuisance, without affecting its liability to adja- cent owners for consequential damages (Fletcher v. Auburn &c. R. Co. 35 Wend. 463 ; approved in Robinson v. N. Y. & Erie R. Co. 37 Barb. 513 ; and upon its merits in Chapman ■». Albany & Schenectady R. Co. 10 id. 866 ; and by Denio, J., in Brown ». Cayuga R. Co. 13 N. Y. 486. Doubted in Radcliff's Exr. •». Mayor &c. of Brooklyn, 4 N. Y. 195 ; Corey «. Buf- falo &c. R. Co. 38 Barb. 483). Where, however, the railroad company wrongfully occupies a street, or highway, the owner of the fee has an action of ejectment, subject to the public easement, against the company (Carpenter v. Oswego &c. R. Co. 34 N. Y. 655 ; Wager ■». Troy Union R. Co. 25 »(^. 536 ; Lozier ».- N. Y. Cent. R. Co. 43 Barb. 465), though it must appear that such wrongful occupation is wholly inconsistent with the public easement (Adams v. Saratoga & Washington R. Co. 11 Barb'. COirSTKUOTION OP EOAD. 117 414). It seems that it would result from this ruling that the company might acquire the fee to such lands by adverse possession (see remarks Smith, J., in Craig v. Rochester &c. R. Co. 39 Barb. 503 ; but see Watson «. N. T. Cent. R. Co. 6 Abb. Pr. N. S. 91). A mere temporary inconvenience to which any individual is exposed during the construction of the railroad, in the absence of negligence or unskilfulness, is a case of damnum absque injuria (Plant ». Long Island R. Co. to Barb. 36 ; Adams v. Saratoga &c. R. Co. 11 Barb. 414). So consequential damages arising from the operation of a railroad, cannot be the subject of a private action (First Baptist Church ». Utica & Schen- ectady R. Co. 6 Barb. 313). Nor can damages be collected of the com- pany for neglecting to restore the highway so as not to impair its useful- ness, both under this section and also treble damages under 1 Rev. Stat. 526, § 130, respecting injuries to highways (Slippery ». Troy & Boston R. Co. 9 How. Pr. 83). Highways laid out across track.— It shall be lawful for tlie authorities of any city, village or town m 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 railroad:* but no such street or highway shall be actually opened for use untU thirty days after notice of such laying out has been served personally upon the president, vice-presi- dent, treasurer or a director of such corporation. (Laws, 1853, chap. 62, § 1.) There is nothing unlawful in. authorizing the town authorities to lay out a highway across the tracks of a railroad, without making com- pensation to the company (Albany Northern R. Co. v. Brownell, 84 N.Y. 345 ; overruling MiUer v. N. T. & Erie R. Co. 31 Barb. 518.) Not so, however, of land acquired by a railroad company for the site of a station- house, engine house &c. ; such land being deemed within the provisions of 1 Rev. Stat. 514, § 17 (Albany Northern R. Co. v. Brownell, supra), and an injunction will be granted to prevent the laying out of a highway across such lands {Id). Though it se&ns an injunction will not be granted in a case where the authorities would have the right to lay out the high- way in the manner proposed, but fail to acquire jurisdiction or where the proceedings were irregular {Id). 118 CONSTRUCTION OF EOAD, Company to take such highway across its track. — It shall be tlie duty of any railroad corpora- tion, 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 aU neces- sary embankments, excavations, and other work to be done on their road for that purpose ; and all iitsi pro- visions of the act, passed April second, eighteen hun- dred and fifty, in relation to crossing streets and high- ways, already laid out, by railroads, and in relation to cattle-guards and other securities and facilities for crossing such roads, shall apply to streets and high- ways hereafter laid out. (Laws, 1853, chap. 62, § 2.) There is nothing unconstitutional in requiring the railroad company to make the necessary excavations or embankments for taking the high- way across the railroad (Albany Northern R. Co. u. Brownell 34 N. Y. 345 ; overruling Miller v. N. Y. & Erie R. Co. 31 Barb. 513). Penalty for neglect of such duty.— K any such railroad corporation 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 on such streets or highways across their road, they shall forfeit and pay the sum of twenty doUars for every subsequent day's neglect or refusal, to be recovered by the officei's 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. (Laws, 1853, chap. 62, § 3.) CONSTRUCTION 01" KOAD. 119 Highway may be carried under or oyer track. — ^Whenever the track of a railroad con- structed by a company formed under this act shall cross a railroad, a highway, turnpike or plankroad, such highway, turnpike or plankroad may he carried under or over the track, as may be found most expe- dient ; and in cases where an embankment or cutting shall make a change in the line of such highway, turn- pike or plankroad desirable, with a view to a more easy ascent or descent, the said company may take such additional lands for the construction of such road, highway, turnpike or plankroad on such new line as may be deemed requisite by the directors. Unless the lands so taken shall be purchased for the purposes aforesaid, compensation therefor shall be ascertained in the manner prescribed in this act for acquiring title to real estate, and duly made by said corporation to the owners and persons interested in such lands. The same, when so taken, shall become part of such intersecting highway, turnpike or plank- road, in such manner, and by such tenure as the adja- cent parts of the same highway, turnpike or plank- road may be held for highway purposes. (Laws, 1850, chap. 140, § 24.) Cominissioners of highways may consent to construction of railroad across public highway. — 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 commis- sioners 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 individ- 120 CONSTRUCTION Or ROAD, ual stall be authorized to construct and use a railroad across, or on such road or other highways as the com- missioners aforesaid shall have permitted; but any ' public highway thus intersected or crossed by a rail- road, shall be so restored to its former state as not to have impaired its usefulness. (Laws, 1835, chap. 300, §!•) Commissioners of highways to enforce duty of Company respecting highways.— The commissioner or commissioners of highways in each of the towns of this state, are hereby em- powered to bring any action against any railroad cor- poration, that may be necessary or proper to sustain the rights of the public in and to any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation in rela- tion to any highway in the town of which they are commissioners, and to maintain an action for damages or expenses which any town may sustain or may have sustained, or may be put to or may have been put to, in consequence of any act or omission of any such cor- poration in violation of any law in relation to such highway. (Laws, 1855, chap. 255, § 1.) Railroad to compensate turnpike company &C. for crossing same. — In case any railroad shall occupy or cross any turnpike or plankroad, the rail- road company shall pay such turnpike or plankroad company all damages the turnpike or plankroad com- pany may sustain by the reason of the occupancy or crossing such turnpike or plankroad, the damages to be ascertained and paid in the same manner as is pro- vided by law for the assessment and payment of CONSTEUCTIOK OP EOAD. 121 damages in case of taking private property for the use ' of railroad companies. (Laws 1851, chap. 19, § 4.) This section authoiizes the company, in the absence of the consent of the turnpike or plankroad company, to occupy or cross such turnpike or plankroad, upon payment of the sum awarded by the commisioners (Ellicottville &c. Plankroad Co. ■». Buffalo &c. K. Co. 30 Barb. 644 ; Troy & Boston R. Co. v. Northern R. Co. 16 id. 100). While subdivision S, of section 28, of the general railroad act (Laws 1850, chap. 140), giv- ing the company power to construct its road across or upon any stream of water, water course, street, highway, planhroad, turnpihe &c. only conveys the right which the public has in such stream of water &c. and makes no provision for the case where the consent of the owners is not .obtained (Id). When common conncii may permit con- struction of city raill'Oad.— The common councils of the several cities of this state shall not, hereafter, permit to be constructed in either of the streets or avenues of said city, a railroad for the transportation of passengers, which commences and ends in said city, vnthout the consent thereto of a majority in interest of the owners of property upon the streets in which said railroad is to be constructed being first had and obtained. For the purpose of determining what con- stitutes said majority in interest, reference shall be had to the assessed value of the whole located upon such street or avenue. (Laws 1854, chap. 140, § 1.) The State legislature has original authority to regulate the uses to which the streets shall be placed, since the interest in the use of such streets is publid juris (People v. N. T. & Harlem R. Co. 45 Barb. 73; s. c. 26 How. Pr. 44; Peoples. Kerr, 27 N. T. 188: s. c. 35 How. Pr. 230 ; afBrming s. c. 37 Barb. 357 ; reversing s. c. 20 How. Pr. 130). Without the legislative sanction, or approval, the city government has no right to grant railroad privileges (Id. Davis v. Mayor &c. of New York,* 14 * This action avose out of a resolution (1 Duer, page 464) of the common conncii of New York, conferring railroad franchise on one Jacob Sharpe and as- sociates, to construct a railroad in Broadway and other streets. On the sum- mons and complaint (the latter set forth in exienso in 1 Duer, pages 433-t64), 9 122 ' CONSTEUCTION OP EOAD. N. T. 506 ; reversing on other grounds s. c. sub nom. State of 'New York ■D. Mayor &c. of New York, 3 Duer, 119 ; and overruling in eifect Milhau V. Sharpe, 15 Barb. 193. But see Milhau «. Sharpe, 17 Barb. 435; 28 id. 338). Nor has it power to authorize the extension of a city railroad through certain streets, except perhaps, where such extension is neces- sary and incidental to the general franchise of the company (People v. Third Ave. R. Co. 45 Barb. 63 ; s. c. 30 How. Pr. 131), though an un- authorized act of the common council, pennitting the construction of a railroad in certain streets may be legalized by a subsequent act of the legislature ratifying and confirming the same (People «. Law, 34 Barb. 494 ; Wetmore v. Same, Id. 515). But the legislature cannot authorize a city railroad, to enter upon the streets, and use them for the purposes of its railroad, without making compensation to the owners of the fee, for the additional burden imposed upon the street (Id. Wager ®. Troy Union R. Co. 35 N. Y. 536 ; Craig v. Rochester &c. R. Co. 39 Barb. 494. • Mr. Justice Campbell enjoined the mayor, aldermen, and commonalty from passing the said resolution, and granted an order to show cause why the injunc- tion should not be perpetual (1 Duer, page 468). This injunction was served on the mayor and several of the aldermen and assistant aldermen.but in defi- ance of such order, the two boards adopted the objectionable resolution. Mo- tions for attachments against said aldermen to arrest them for contempt of court in disobeying the injunction were heard and gi-anted (Davis v. Mayor . N. Y. Cent. R. Co. 13 N. Y. 78 ; afl5rming s. c. 25 Barb. 199). Annual report required of company.— Every railroad corporation formed under this act, shall make an annual report to the state engineer and surveyor of the operations of the year ending on the thirtieth day of September ; which report shaU be verified by the oaths of the treasurer, or president, and acting super- intendent of operations, and be filed in the office of the state engineer and surveyor by the first day of De- cember in each year, and shall state : 1. The amount of capital as by charter; 2. The amount of stock subscribed ; 3. The amount paid in as by last report ; 4. The total amount now of capital stock paid in ; 5. The funded debt by last report ; 6. The total amount now of funded debt ; 7. The floating debt as by last report; 8. The amount now of floating debt ; 9. The total amount now of funded and floating debt; 10. The average rate per annum of interest on funded debt. Oost of road cmd equipment. 11. For graduation and masonry by last report; 12. The total amount now expended for the same. 13. The amount for bridges by last report; 14. The total amount now expended for the same. MANAGEMENT OE ROAD. 143 15. The amount for superstructure, including irbn, "by last report ; 16. Total amount now expended for the same. 17. For passenger and freight stations, buildings, and fixtures, by last report ; 18. Total amount now expended for the same. 19. For engine and car houses, machine shops, and machinery and fixtures, by last report ; 20. Total amount now expended for the same. 21. For land, land damages and fences, by last reporjb ; 22. Total amount now expended for the same. 23. For locomotives and fixtures and snow plows, by last report ; 24. Total amount now expended for the same. 25. For passenger and baggage cars, by last re- port; 26. Total amount now expended for the same. 27. For freight cars, as by last report ; 28. Total amount now expended for the same. 29. For engineering and agencies, by last report ; 30. Total amount now expended for the same. 81. Total cost of road and equipment. Oha/racteristics of road. 32. Length of road ; 33. Length of road laid; 34. Length of double track, including sidings ; 35. Length of branches owned by the company laid; 36. Length of double track on the same. 37. Weight of rail by yard on main track. 38. The number of engine houses and shops; of engines and cars, and their character, 39. It shall also be the duty of each corporation to 144 MANAGEMENT OF KOAD. transmit to the state engineer and surreyor the fol- lowing maps, profiles, and drawings exhibiting the characteristics of their roads ; the map to show the length and direction of each straight line, and the length and radius of each curve; also the point of crossing of each town and county line, and the length of line in each town and county accurately determined by measurements to be taken after the completion of the road. The profile to be on the map, and shall show the grade line and surface of ground in the usual method, also the elevation of grades above tides at each change in the inclination thereof The maps and profile to be made on a scale of five hundred feet to one-tenth of a foot ; vertical scale of profile to be one hundred. feet to one-tenth of a foot. For all roads or parts of roads now done, or in operation, the said maps shall be returned on or before the first day of January next ; and for all roads now in progress, or which may hereafter be constructed, the said maps and profile shall be returned within three months after the same or any portion thereof shall be in use. Doings of the year m frcm^ortaUon, amd total miles rv/n. 40. Miles run by passenger trains ; 41. Miles run by freight trains ; 42. The rate of fare for passengers, charged for the respective classes per mile ; 43. Number of passengers carried in cars ; 44. Number of miles traveled by passengers ; 45. Number of tons of two thousand pounds of freight carried in cars ; 46. Number of miles carried, or total movement of freight in miles; all to be accurately compiled from MANAGEMENT OP ROAD. 145 the daily records or evidences of earnings, manifest and way bills. 47. Average rate of speed adopted by ordinary passenger trains, including stops; 48. Average rate of speed adopted by ordinary passei^ger trains when in motion ; 49. Average rate of speed adopted by express trains including stops; 50. Average rate of speed adopted by express trains when in motion ; 51. Average rate of speed adopted by freight trains, including stops ; 52. Average rate of speed adopted by freight trains when in motion; 53. Average weight in tons of two thousand poimds of passenger trains, exclusive of passengers and baggage; 54. Average weight in tons of freight trains, exclu- sive of freight ; 55. The amount of freight, specifying the quantity in tons, of the products of the forest, of aninaals, of vegetable food, other agricultural products, manufac- tures, merchandise and other articles. Ma^&mes of Tnamtammg the road or real estate of the coTjporation 56. For repairs of road-bed and railway, excepting cost of iron, which shall be the cost of labor and ma- terials used during the year; also use and cost of en- gines engaged in ballasting; also the renewal and repairs of gravel and stone cars, and all items of cost connected with keeping the road in order. 57. For depreciation of way ; 58. Length , in feet, of iron used in renewals, with weight and cost ; 146 MANAGEMENT OF EOAD. 59. Repairs of buildings ; 60. Eepairs of fences and gates ; 61. Taxes on real estate ; 62. Total expenses of maintaining road or real estate for the year; 63. Expenses of machinery or personal property of the corporation ; 64. Repairs of engines and tenders ; 65. Depreciation of engines and tenders ; 66. Repairs of passenger and baggage cars ; 67. Depreciation of passenger and baggage cars ; 68. Repairs of freight cars ; 69. Depreciation of freight cars; 70. Repairs of tools and machinery in shops ; 71. Incidental expenses, including fuel, oil, clerks, watchmen about shops ; 72. Total expenses of repair of machinery ; 73. Office expenses, stationery. 74. Agents and clerks ; 75. Labor handling freight, loading and unloading ; 76. Porters, watch and switchmen ; 77. Wood and water station attendance ; 78. Conductors, baggage and brakemen; 79. Enginemen and firemen ; 80. Fuel (first cost, and labor preparing for use) ; 81. Oil and waste for engines and tenders; 82. Oil and waste for freight cars ; 83. Oil and waste for baggage and passenger cars ; 84. Loss and damage of goods and baggage ; 85. Damages for injuries of persons; 86. Damages to property, including damages by fire, cattle killed on road ; 87. General superintendence ; 88. Contingencies; 89. Total expenses of operating road ; MANAGEMENT OF KOAD. 147 90. The above statements are to-be made without reference to the sums actually received or paid during the year. The following statement of the earnings and cash receipts and payments are required : 91. From passengers ; 92. From freight ; 93. From other sources; 94. The above to be stated without reference to the amount actually collected. 95. Receipts during the year from freight ; 96. From passengers ; 97. From other sources, specifying what in detail ; 98. Payments from transportation expenses ; 99. For interest ; 100. Dividends on stock, amount and rate per cent ; 101. Payment to surplus fond and total amount of said fiind ; 102. The number of persons injxired in life and limb, and the cause of the injury, and whether pas- sengers or persons employed. Whether any such accidents have arisen from care- lessness or negligence of any person in the employment of the corporation, and whether such person is retained in the service of the corporation. 103. It shaU be the duty of the State engineer and surveyor to arrange the information contained in such reports, in a tabular form, and prepare the same, together with the said reports, in a single document, for printing, for the use of the legislature, and report the same to the legislature on the first day of its ses- sion in each year. 104. AU the items under the heads of expenses of maintaining the road or real estate of the corporation, expenses of machinery or personal property of the cor- poration, expenses of use of road and machinery or 148 MANAGEMENT OF EOAD. operating the road, shall be carried out under two heads, the one showing the cost of freight transporta- tion, the other, the cost of passenger transportation. 105. The provisions of this section shall apply to all existing railroad corporations; and the report of the said existing railroad corporations, made in pursu- ance of the provisions of this section, shall be deemed to be a full compliance with any existing law or reso- lution requiring annual reports to be naade by such corporation. (La,ws 1850^ chap. HO, § 31.) The requirementB of t^is section do not apply to street or horse rail- roads (Laws 1867, chap. 906, §" 1)^ The monthly statements of the prop- erty carried on the railroad, which the company was formerly required to make to the comptroller, were by the laws of 1851 dispensed with (Laws 1851, chap. 497, § 3). Lessees of road, to make report.— Any rail- road corporation which may be the lessee of any otheif raUroad shall, in addition to the powers and duties, con- ferred and imposed by the act entitled, ** An Act in relation to railroads held under lease," passed AprU third, one thousand eight hundred ^nd sixty-seven, be required to make to the State Engineer a report of such facts concerning the operation of said leased road py roads as the lessors would otherwise be required to make, and the lessors shall not be required to make euch report. (Laws 1869, chap. 844, § 1.) Annual report of street or horse railroads. ^Every railroad corporation in this State, whose road is operated by horse-power exclusively, or by steam dummy cars exclusively, or partly by horse-power and partly (sic) steam dummy cars, and every such railroad corporation which shall Hereafter be organized, shall make an annual report to the State Engineer and Sur- veyor, of the operations of the year ending on the MANAGEMENT 01" EOAD. 149 thirtietli day of September; wliicli report shall be ver- ified by tlie oaths of the treasurer or president and acting superintendent of operations, and be filed in the office of the State Engineer and Surveyor, by the first of December in each year, and shall state : 1. The amount of capital stock. 2. The amoimt of stock subscribed. S. The amount paid in as by last t-eport. 4. The total amount now of capital stock paid in. 5. The funded debt as by last report. 6. The total amoimt now of funded debt. 7. The floating debt as by last report. 8. The amount now of floating debt. 9. The totaTamount now of funded and floating debt. 10. The average rate per annum of interest on funded debt. Oosi of road cmd eqmpmeat. 11. For road-bed and superstructure, including iron, by last report. 12. The total amount now expended for the same. 13. For land, buildings and fixtufeS, including land damages, by last report. 14. The total amount now expended for the same. 15. For dummy cars, horses, mules and harness, by last report. 16. The total amount now expended for the same. 17. For cars and sleighs, by last report. 18. The total amount now expended for the same. 19. Total cost of road and equipment. Gha/ract&r'isUcs qf road. 20. Length of road, in miles. 21. Length of road laid. 22. Length of double track, including sidings. 150 MANAGEMENT OP EOAD. 23. Weight of rail, by yard. 24. The number of dummy cars, of cars, and of horses and mules. 25. The total number of passengers carried in cars. 26. The total number of tons of freight carried in cars. 27. The rates of fare for passengers. 28. The average time consumed by passenger-cars in passing over the road. Expenses of maintaining the road amd real estate. 29. Repairs of road-bed and railway (including iron), and repairs of buildings and fixtures. 30. Taxes on real estate (to include all taxes except for United States revenue). 31. Total cost of maintaining road and real estate. Expenses of operatiMg road amd for repan/rs. 32. General superintendence. 38. Officers, clerks, agents and office expenses. 34. Conductors, drivers and engineers on dummy cars. 35. Watchmen, starters, switchmen, roadmen, etc. 36. Repairs of dummy-cars. 37. Repairs of cars and sleighs. 38. Repairs of harness, including materials and labor. 39. Horseshoeing, including materials and labor. 40. Horses and mules, 41. Stable expenses. 42. Feed, grain, hay, etc., including expense of grinding. 43. Fuel, gas and lights. 44. Oil and waste. MANAGEMENT OF EOAD. 151 45. "Water tax. 46. Damages to persons and property, including medical attendance. 47. Law expenses. 48. Eents, including use of other roads, ferries, etc. 49. Insurance. 50. Advertising and printing. 51. United States tax on earnings. 52. Contingencies. 53. Total expense of operating road, and repairs. 54. Eeceipts from passengers. 55. Eeceipts from freight. 56. Eeceipts from aU other sources, specifying what, ia detail. 57. Total receipts from all sources during the year. 58. Payments for transportatioti, maintenance and repairs. 59. Payments for interest. 60. Payments for dividends on stock, amount and rate per cent. 61. AH other payments, specifying what, in detail. 62. Total payments during the year. 63. The number of persons injured in life and Hmb ; the cause of the injiuy, and whether passengers, employees, or other persons. Also whether such acci- dents have arisen from carelessness or negligence of any person in the employment of such corporation, and whether such person is retained in the service of the corporation. (Laws 1867, chap. 906, § 2.) Penalty for neglect to make report.— Any railroad corporation which shall neglect to make the report as is provide (sio) in the preceding section (a), shall he liable to a penalty of two hundred and fifty dollars, and an additional penalty of twenty-five dol- 15^ MANAGBMBlirT OF UOAD. lars, for eacli day after the first day of December, on which they shall neglect to file said report, as provided in said section, to be sued for in the name of the peo> pie of the State of New York, for their use. {Laws 1850, chap. 140, § 32 ; Am'd Laws, 1867, chap. 906, §3.) (a) Laws 1850, chap. 140, § 31. But this penalty is also incurred by horse and dummy railroads, whenever they neglect to make the report required of them by law (Laws 1867, chap. 906, § 4). The legislature may authorize the Attorney-General to ffischarge a judgment recovered against the corporation for neglecting to report agreeable to law (Laws 1853, chap. 329). XI. OF EAILEOAD EMPLOYEES. Qualification of employees of road. — It shall be lawful for the owner or owners of any railroad in this State to employ any inhabitant of this State, of the age of twenty-one years, as a car driver or con- ductor, or in any other capacity, notwithstanding any law, regulation, or ordinance of any officer or munici- pality, or of the common council or government of any city or county to the contrary. (Laws 1865, chap, 246, § 1.) Disqnaliflcations. — ^No person shall be employed as an engiueer by any officer or agerit acting for or in behalf of either of the railroads of this State, who cannot read the printed time-tables and ordinary hand- writing. (Laws 1870, chap. 636, § 1.) - Same. — No person shall run an engine on a regu- lar or special train upon either of the railroads of this State who cannot redd printed time-tables and ordinary handwriting. (Laws 1870, chap. 636, § 2.) Penalty for offending against provisions of act. — ^Any person offending against the provisions of this act shall, upon conviction thereof, be deemed guilty of a misdemeanor, and punishable for each offence by a fine not exceeding one hundred dollars, or six months' imprisonment in a county jail, in the dis- cretion of the court having cognizance of the offence. (Laws 1870, chap. 636, § 3.) 11 154 RAILROAD EMPLOYEES. Company to refuse employment to persons of intemperate halbitS. — All incorporated compa- nies and persons in this state, engaged in conveying passengers, including especially all railroad, steamboat and ferry companies, and all kinds of corporations con- veying for hire, persons or property, stall be and here- by are required to refuse employment to all persons who, on good and sufficient proof, shall be shown to indulge in the intemperate use of intoxicating drinks, and any such company which shall retain in its employ a;ny person or persons who shall on competent proof, be shown to be intoxicated at any period whilst in the active service of said company or person, either as en- gineer, conductor, fireman, switchtender, commander, pilot, mate or foreman, or be in any way connected with the moving powey or management, or whose duty, if neglected, would diminish the safety and security of life, limb or property, entrusted thereto, said company QT corporation shall be liable to pay a sum of not less than flffcy dollars nor more than one hundred doEars to the county treasiu-er in the county where the offence may be committed and proved, before any court of competent jurisdiction. (Laws 1857, chap. 628, § 31.) The penalty provided for above, is to be sued for and recovered ia the name of the board of commissioners of excise, and paid over to the treasurer of the county for the support of the poor of the county (Laws 1857, chap. 638, |§ 22, 30). Employee liaWe to a penalty for intoxica- tion. — If any person employed or who «hall be em- ployed upon the railroad of any such corporation as engineer, conductor, baggage-master, brakeman, switch- man, fireman, bridge-tender, flagman, signalman, or having charge of the regulating or running of trains upon said railroad in any manner whatsoever, be intox- icated while engaged in the discharge of such duties, RAILEOAD EMPLOYEES. 155 he shall, upon conviction thereof, be deemed guUty of a misdemeanor, and shall \>e punishable for each offence by a fine not exceeding one hundred dollars, or by im- prisonment in a county jail for a term not exceeding six months^ in the discretion of the court having cog- nizance of the offence. And if any person so employed as aforesaid by any such corporation shall, by reason of such intoxication, do any act or neglect any duty, which act or neglect shall cause the death or injury to any person or persons, he shall, upon conviction there- of, be punishable by imprisonment in the county jail for a term of not less than six months, or in the State prison for a term not exceeding five years, in the discre- tion of the court having cognizance of the offence. (Laws 1850, chap. 140, § 41 ; Am'd Laws 1871, chap. 560, § 4.) See also Laws 1849, chap, 256, § 2. Employees to wear indicia of office.— Every conductor, baggage-master, engineer, brakeman, or other servant of any railroad corporation employed in a pas- senger train, or at stations for passengers, shall wear upon his hat or cap a badge, which shall indicate his office, and the initial letters of the style of the corpo- ration by which he is employed. No conductor or col- lector without such badge, shall be entitled to demand or receive from any passenger any fare or ticket, or to exercise any of the powers of his office; and no officer or servant without such badge shall have authority to meddle or interfere with any passenger, his baggage or property, (Laws 1850, chap, 140, § 30.) Employees to provide and wear uniform.*— It shall be the duty of every railroad company oper- • '^ The omitted portion of the section relates to car platforms. 156 RAILROAD EMPLOYEES. ating a railroad in this State by tte power of steam, to designate and prescribe such peculiar uniform or exter- nal apparel, to be worn by its officers, agents, and em- ployees, engaged in or about its passenger offices or stations, or on or about its trains upon its tracks, as shall plainly, to all travelers, distinguish all such per- sons; and such uniform or apparel shall also plainly indicate or distinguish the position or rank of the wearer in the employment of such company. It shall be the duty of every such person to provide and wear such apparel or uniform when employed as aforesaid. And every such company that shall fail to designate and prescribe such apparel or uniform, and to also cause the same to be generally worn by all such per- sons from and after six months from the passage of • this act, shall forfeit to the people of this State, and be liable to pay to the Treasurer of this State, on the first day of January next following the expiration of said six months, and on every first day of January there- after, the sum of ten thousand dollars. It shall be the duty of the Attorney-General of this State, in the name of the people thereof, to sue for and recover said penalties for the benefit of the State. And ia case of the refusal or omission of any person aforesaid to wear saidimiform or apparel, as contemplated by this act, or to obey any reasonable rule or regulation of any such company relative to the same, or the wearing thereof, it shall be the right and duty of every such company to deduct and retain the amount of five per cent of the agreed or accustomed compensation of such delinquent person during the period of any such neglect or re- fasal. And every person who shall advise or use any persuasion to induce any person being an officer, agent or employee of any such company, to leave the service of such company by reason of any such apparel or imi- EAILEOAD EMPLOYEES. 157 form being required to be worn, or to refuse to wear the same, or any part thereof, every person who with- out authority shall wear such uniform or apparel, and every person being an officer or agent in any company aforesaid who shall use any inducement with any per- son aforesaid to come iuto the employment of any other such company, by reason of any apparel or uniform so required or designated to be worn, shall severally, by reason thereof, be guilty of a misdemeanor and be lia- ble to be punished for such offence. (Laws 1867, chap. 483, § 1.) Penalty for violation of act, by company. — Each and every violation of this act by any railroad company or corporation, shall, on conviction, be pun- ished by a fine of not less than fifty dollars nor more than five hundred dollars, to be sued for and collected m the name of the people of the State of New York by the Attorney-General, and the moneys, when collected, to be paid into the general fund of the State. (Laws 1867, chap. 483, § 2.) Construction of act. — This act shall not oper- ate or be construed to exempt railroad companies or corporations from liability for damages to persons who may be injured or sustain loss or damage by or through any neglect to comply with the provisions of this act. (Laws 1867, chap. 483, § 4.) XII. OF EAILROAD POLICE. Company may apply for appointment of police. — Any railroad corporation on whicL. road steam is used as the motive power, and any steamboat company, may apply to the Governor ; to co mmi ssion sucli person or persons as the said corporation may designate, to act as policemen for said corporation ; but no more than one policeman shall be appointed at any one station of such company. (Laws 1863, chap. 346, § 1 ; Am'd Laws, 1866, chap. 259, § 1.) Appointment. — ^The Governor, upon such appli- cation, may appoint such persons or so many of them as he may deem proper to be such policemen, and shall issue to such person or persons so appointed a commission to act as such policemW (Laws 1863, chap. 346, § 2.) Duties and powers of police..— Every police- man so appointed shall, before entering upon the duties of his office, take and subscribe the oath pre- scribed in the twelfth article of the constitution ; such oath, with a copy of the commission, shall be filed with the Secretary of State, and a certificate thereof, by said Secretary, be filed with the clerk of each county through or into which the railroad or steam- boat for which such policeman is appointed may run, and in which it is intended the said policemen shall act ; and such policemen shall severally possess all the EAILEOAD POLICE. 159 powers of policemen in the several towns, cities, and villages in wHcli they shall so be authorized to act as aforesaid. (Laws 1863, chap. 346, § 3 ; Am'd Laws 1866, chap. 259, § 2.) Police io wear indicia of office,— Such police shall, when on duty, severally wear a metallic shield, with the words "railway police," or "steamboat police," as the case may be, and the name of the cor- poration for which appointed inscribed thereon, and said shield shall always be worn in, plain view, except when employed as detectives. (Laws 1863, chap. 346, § 4 ; Am'd Laws 1866, chap. 259, § 3.) Their compensation.— The compensation of such police shall be paid by the companies for which the policemen are respectively appointed, as may be agreed on between them. (Laws 1863, chap. 346, § 5.) Police discontinued, how.-- Whenever any com- pany shall no longer require the services of any police- men so appointed as aforesaid, they may file a notice to that effect in the several offices in which notice of such appointment was ojiginally filed, and thereupon the power of such officer shall cease and be determiued. (Laws 1863, chap, 346, ^ 6.) XIII. OF THE TRAI^SPORTATION OF PERSONS AND PROPERTY: AND HEREIN OF COM- PENSATION. Power of the company to carry passengers and property. — Every corporation formed under this act shall, in addition to the powers conferred on corporations in the third title of the eighteenth chapter of the first part of the Revised Statutes, have power : To take and convey persons and property on their railroad by the power or force of steam, or of animals, or by any mechanical power (a), and to receive com- pensation therefor. To regulate (5) the time and manner in which passengers (c) and property shall be transported, and the compensation to be paid therefor ; but such com- pensation, for any passenger and his ordinary bag- gage shall not exceed three cents per mile (di). (Laws 1850, chap. 140, § 28, subds. 7, 9.) (a) Mechanical power. — Authority to use any mecliaDical power, authorizes the use of steam power (Moshier v. TJtica & Schenec- tady E. Co., 8 Barb. 427). , (b) Regulation§ respecting^ transportation. — Ordinary pas- senger tickets are merely receipts for the passage money, or tokens to facilitate the conductor in recognizing the persons entitled to passage, and are not contracts within the rule excluding parol evidence to vary a written agreement (Quimby v. Vanderbilt, 17 N. T. 306). It is a rea- sonable regulation that the passenger whenever requested by the con- ductor, shall exhibit his ticket (Hibbard v. N. T. & Erie R. Co., 15 N. Y. 455) ; or surrender the same to the conductor, during the trip (^Vedder v. Fellows, 20 N. T. 126; Northern R. Co.«. Page, 22 Barb. 130); or that the coupons annexed to the ticket are not good unless detached by the PERSONS AND PROPERTY. 161 conductor (Walker v. Dry Dock &c. E. Co., 33 How. Pr. 337) ; or that the ticket shall be good for a continuous trip only, within a specified number of days (Barker v. Coflin, 31 Barb 556) ; or where desiring to stop over at a station, shall procure such indorsement from the con- ductor as shall seciure the passage from that point to the end of the journey represented by the ticket, and on a subsequent day or train (Beebe ■». Ayres, 28 Barb. 375). But an inscription on the ticket, " good for this trip only,'' must be construed as referring to the journey, and not to any particular day or train, so that under it, a passenger may be enti- tled to a passage on a day subsequent to its date. When he commences his trip, and becomes a passenger, then the ticket is good for that trip and no other (Pier «. Finch, 34 Barb. 514), and if the passenger refuses to obey any such regulations, the company is justified in collecting his fare again, or in putting him off the cars, upon his refusing to pay it (see cases cited above). But the company cannot limits its liability for loss of, or injury to property transported by it, by a regulation and notice to the efiect that all baggage is at the risk of the owner (Camden &c. Transportation Co. ». Belknap, 31 Wend. 354 ; Eawson v. Pennsylvania R. Co., 3 Abb. Pr. N. 8. 220) ; nor by a regulation that all claims for dam- ages for goods lost or injured while in its custody, must be made within ten days after delivery of the property at the station (Browning ». Long Island R. Co., 2 Daly, 117). (c) Who is a passenger. — Neither the payment of fare, nor an entry into the cars, is essential to create the relation of carrier and pas- senger. Being within the reception-room, waiting to take the cars, will make one a passenger as efifectually, as if he were within the body of the car (Brown v. N. T. Cent. R. Co., 32 N. T. 597 ; Stinson «. Same, Id. 333 ; Gordon u. Grand St. &c. R. Co., 40 Barb. 546). In an action for injuries from the negligence of the company, the plaintiff's right of tran- sit as a passenger was held, to depend, not on whether his ticket was good for the passage, but whether the conductor had recognized his right (Edgerton v. N. Y. & Harlem R. Co., 39 N. Y. 337 ; affirming s. c. 35 Barb. 193 ; Glasco u N. Y. Cent.R. Co., 36 Barb. 557). But the liability of the company does not extend to injuries to wrongdoers on the train (Robertson v. N. Y. & Erie R. Co., 33 Barb. 91). {d) Company may fix rate of compensation. — Companies formed for the purpose of conveying persons and property on their rail- ways by means of a propelling rope or cable attached to stationary power, may fix and collect rates of fare on their respective roads, not exceeding five cents* for each mile or any fraction of a mile, for each passenger, and with a right to a minimum fare of ten cents (Laws 1866, chap. 697, §3). Duty of Company towards passengers and property offered for transportation.— Every such 162 TRANSPOKTATIOK OF corporation stall start and run their cars for tlie trans- portation of passengers and property, at regular times, to be fixed by public notice (a\ and sbaU farnisb s^lfficie^t accommodations for tbe transportation of all such pas- sengers and property as shall within a reasonable time previous thereto be offered for transportation at the place of starting, and at the junctions of other railroads^ and at the usual stopping places established for receiv- ing and discharging way passengers and freights for that train; and shall tate, transport and discharge such passengers and property at and from and to such places on the due payment of the fare or freight legally authorized therefor. No preference for the transaction of business shall be granted by said railroad corpora- tion to any one of two or more companies or associa- tions competing, in the business of transporting prop- erty for themselves or for others, upon the railroad owned or operated by such corporation, either upon the cars, or in the depots or buildings, or upon the grounds of such corporation ; and whenever the rail- road of such corporation, at or near the same place, connects with, or is intersected by any other railroad, such corporation shall fairly and impartially grant and afford to each of such competing companies or associa- tions, ec[ual terms of accommodation, privileges and facilities in the transportation of property and freight to and upon such connecting or intersecting railroad, and shall also grant and afford to each of such compet- ing companies or associations, and to the officers, agents and employees thereof, equal facilities in the inter- change and use of express, freight and other 'cars, so far as may be necessary to accommodate the business of each of such competing companies or associations, and every railroad corporation shall be liable to the party aggrieved in an action for damages for any neg- PBBSONS AND PROPERTY. 163 lect or refusal in the premises. The provisions of this section shall apply to all existing railroad corporations (I). (Laws 1850, chap. 140, § 36 ; Am'd Laws, 1867, chap. 49, § 1.) (a) Runningr of the trains. The company is guilty of negligence in arranging its time- tables in such a manner, that trains approaching a station from opposite directions on the same track, become due at the station at the same moment (Wright v. N. T. Cent. R. Co., 38 Barb. 80). It is the duty of the company to furnish all requisite information to its passengers of the route traveled, and the cars to be taken at its inter- mediate stations. It must give published notice of the running time of the trains, and also special notice to the travelers on the road, of the necessity of changing cars at any particular station (Page ». N. T. Cent. R. Co., 6 Duer, 5^3). It must exercise extraordinary care in moving its cars in an unusual manner (Gordon v. Grand St. &c. R. Co., 40 Barb. 546; Brown v. N. T. Cent. R. Co., 33 N.T. 597), and a higher degree of care when running its cars along a highway (Card v. N. Y. &j Harlem R. Co., 50 Barb. 39), or through a village or city, than in open country (Fero V. Buffalo & State Line R. Co., 33 N. Y. 309 ; WUds «. Hudson River R. Co., 33 Barb. S03). Thus, the running of an engine across frequented highways, by a fireman alone, will render the company liable for negli- gence (O'Mara n. Hudson River R. Co., 38 N. Y. 445) ; and in the man- agement of horse cars, the company must provide bells for the horses, and lights at night for the cars (Johnson v. Hudson River R. Co., 30 N. Y. 65; affirming s. c. 6 Duer, 633). It is part of the duty of the company, to render assistance to passengers in getting on or off the cars, in doing whicfli, children and infirm or aged persons must be shown more consideration than persons under no disability, and are entitled to more time in getting on or off the cars (Sheridan v. Brooklyn &c. R. Co., 36 N. Y. 39), and the company is liable for the negligence of its servants in rendering such assistance (Mulhado ®. Brooklyn City R. Co., 30 N. Y. 370; Drew ®. Sixth Ave. R. Co., 26 id. 49; Same ». Same, 3 Keyes, 439 ; Nichols «. Same, 38 id. 131 ; affirming s. c. 10 Bosw. 260; Maverick v. Eighth Ave. R. Co., 36 N. Y. 378; Meyer v. Second Ave. R. Co., 8 Bosw. 305). In an action for injuries from negligence in starting the car, if the plaintiff fail to establish that the injuries complained of, were caused by the starting of the horses, the complaint must be dismissed (Dickson ii. Broadway & Seventh Ave. R. Co., 41 How. Pr. 151) ; and neither the opinion of witnesses as to whether the train was stopped sufficient time to enable a passenger ±o get on or off (Keller v. N. Y. Cent. R. Co., 94 How. Pr. 172) ; nor the de- claration of the driver of the car, to the effect that he could not stop it, on account of the breaks being out of order, is admissible (Luby v. Hud- son River R. Co., 17 N. Y. 131). The servants of the company are not 164 TKAUSPOETATIOK OF bound to stop a train, when ordered to do so, by strangers, without giv- ing any reason (Mott n. Hudson River R. Co., 1 Robt. 585), so lield as to request of fireman to those in charge of an approaching train to stop the same {13). A parol executory agreement that the cars shall stop regu- larly at a certain place as a permanent arrangement, is void under 2 Rev. Stat, 135, § 3, subd. 1, because not to be performed within one year (Pitkin !). Long Island R. Co., 2 Barb. Ch. 221). The company is liable for the acts of its servants, whereby the train is negligently or carelessly run. Thus, where the engineer ran the train against obstacles under the im- pression that he could knock them out of the way (Willis «. Long Island R. Co., 34 N. T. 670), or where a passenger was impelled to jump from the train, by reason of its negligent management, to avoid danger, the com- pany is liable for injuries ensuing therefrom (Eldridge «. Same, 1 Sandf. 89), so where a passenger's elbow was fractured by coming in contact with some object projecting from a car on an adjoining track of the com- pany's road, it was held that the burden of proof was on the company to show that the injury was not attributable to its want of care (Holbrook «. Utica & Schenectady R. Co., 12 N. T. 236). A joint action wiU lie against two companies, by a passenger injured by a collision resulting from the concurrent negligence of both (Colgrove ®. N. T. & N. H. R- Co., and N. T. & Harlem R. Co., 30 N. T. 492 ; aflirming b. c. 6 Duer, 382). The company is also liable for the wilful acts of its servants, whereby the running of the train is prevented (Blackstock ®. N. T. & Erie R. Co., 30 N. T. 48 ; affirming s. c. 1 Bosw. 77), or delayed (Weed «. Panama R. Co., 17 N. T. 862). But the company is not liable to its employees for injuries from the negligent manner in which the train is run, where it has used reasonable care in selecting only such servants as were of competent skill and experience (Sherman v. Rochester & Syra- cuse R. Co., 17 N. T. 153 ; affirming s. c. 15 Barb. 574 ; Russell b. Hudson River R. Co., 17 N. T. 134 ; reversing s. c. 5 Duer, 39 ; Coon «. Syracuse &c. R. Co., 5 N. T. 493; Wright ». N. T. Cent. R. Co., 28 Barb. 80). Safety of Cars. The requirements of the statute are not the measure of the company's care and skill in the transportation of passen- gers. The fact that the statute requires certain precautions to be taken, does not relieve the company of obligation to take precautions not enumerated, but adapted to secure the safety of its trains (Hegeman «. Western R. Corp., 13 N. T. 9 ; Bowen v. N. T. Cent. R. Co., 18 H. 408; Smith ®. N. T. & Harlem R. Co., 19 i. N. T. & N. H. R. Co-., 28 Barb. 605 ; Foy v. Troy & Boston R. Co., 24 id. 382). (5) Duties of connecting roads. The first general act relative to this subject, is found in the laws of 1847, wherein it is provided, that: Every railroad company whose railroad shall, at or near the same place, connect with, or be intersected by, two or more other railroads which are competing lines for the business to or from such railroad, shall fairly and impartially grant and afford to the proprietors of each of such connect- ing or intersecting railroads, equal terms of accommodations, privileges, and facilities in the transportation of cars, passengers, baggage and freight, over and upon their railroads, and over and npon such connect- ing or intersecting railroads ; and shall also grant and afford the propri- etors of each of said connecting or intersecting railroads, equal faciUties in the interchange and use of passenger, baggage, freight, and other cqis, so fer as may be required to accommodate the business of each railroad ; and also, in furnishing passage tickets to passengers who may have come over, or may wish to go over either of such connecting or interaecting railroads ; and if the proprietors of either of such connecting or inter- secting railroads, shall deem themselves aggrieved by the arrangements or conduct of the company with whose railroad their raiboad connects in the premises, such proprietors may make application by petition to the governor of this State on giving fourteen days' notice to the compa- nies or proprietors of the railroads with which their railroad connects, for the appointment of three commissioners, to inquire into the alleged complaints ; and it shall be the duty of said govemar to appoint three disinterested persons as commissioners, who shall summarily examine into the alleged grievances ; and shall prescribe such regulations in the prem- ises as will, in their judgment, secure the enjoyment of equal privileges, accommodations, and facilities to the proprietors of the said connecting or intersecting raiboads, in the transportation, use, and interchange of cars, passengers, baggage, and freight, as may be required to accommo- date the busmess of each of said railroadj and in the manageme PERSONS AND PEOPEETT. 169 conduct of the several railroads connecting with each other; and the said commissioners shall also determine and fix the terms and conditions upon which such facilities and accommodations shall be afibrded to each of said connecting railroads. The award of the commissioners, when approved by the Supreme Court, shall be binding on the parties for two years, and the court shall have power to compel the performance thereof by attachment, mandamus, or otherwise. And the expenses of the fore- going proceedings shall be paid by such of the parties as shall be determ- ined on by said court (Laws 1847, chap. 232, § 1). In 1868 certain provisions were passed to afford increased facilities for transportation on the several lines of railroads terminating at Albany and Troy, and the steamboats running between those cities and New York. Those provisions (Laws 1868, chap. 573) are as follows: § 1. The proprietors of any steamboat, or line of steamboats, navigating the Hudson River, are hereby authorized and empowered to furnish tickets upon being paid therefor, for the transportation of passengers from any station on the line of any railioad terminating at the city of Albany or Troy, for the. conveyance of such passengers from the city of Albany or Troy to the city of -New York on their said steamboats. On such tickets being furnished to any such railroad cqpipany, it shall be their duty to require their ticket agent, at any station or line of their road, to sell such tickets, and to any passenger who shall make applica- tion therefor, at s, price which shall be equal to the amount of fare charged upon such road to the city of Albany or Troy, with the addition of such price as shall be fixed by the proprietor of such steamboat for the transportation of such passenger from Albany or Troy to New York. § 3. The proprietors of said steamboat or line of steamboats, are also authorized and empowered to furnish baggage checks for the trans- portation of any passenger's baggage through to the city of New York by the way of their said steamboats, and on such checks being furnished to the baggage-master, at any station on the line of said railroads, it shaU be his duty to check baggage on the apphcation of any passenger through to the city of New York, which baggage, on its arrival in the city of Albany or Troy, shall be delivered up to the authorized agent of any steamboat or line of steamboats, to be transported from the railroad to the steamboat on which such passenger contemplates going, without the check being removed from such baggage. And said baggage shall be transported from railroad station to steamboat landings, and from steamboat landing to railroad station by said steamboat owners, free of charge. § 3. It is hereby made the duty of every railroad company, which ter- minates in the city of Albany or Troy, on application being made there- for by the proprietor of any steamboat, or line of steamboats, navigating the Hudson river, to furnish them with tickets for the transportation of passengers from the city of Albany or Troy to any point on the line of 13 170 TRANSPORTATION OF their respective roads, to be sold by such steamboat proprietors in their respective offices, and to receive and transport the baggage of any passen- ger which shall be checked through to any point beyond the city of Albany or Troy ; such tickets to be sold and paid for to the railroad or steamboat company, which shall furnish the same at the price charged by such company for the conveyance of such passenger to the place which such ticket purports to carry him. The object and intent of this act being to compel jailroad companies to furnish the same facilities to passengers going to or from the city of New York by boat as is afforded those who go by the railroad. § 4. If any freight shall be delivered at any station on the line of any railroad which terminates in the city of Albany or Troy for transporta- tion to the city of New York, which is marked to go to New York via boat, or any particular line of boats, it shall be the duty of the raih'oad company, to whose agent such freight shall be delivered, to receive the same and transport it with all convcT-ient speed to the city of Albany, and on its arrival there, the company over whose road the same has been transported, shall forthwith cause to be notified the agent of the . steamboat line by which it is directed to be sent, and shall deliver the same to such agent, with the bill of charges thereon due such railroad company, for the payment of which charges the proprietor or proprietors of such steamboat line shall be responsible. But the railroad company transporting such freight shall not charge for its transportation over its road, any greater sum than they charge for carrying the same kind of freight the same distance over their road if the same were transported from Albany or Troy to New York by raUi-oad, and any freight deliv- ered by the autliorized agent of any steamboat or steamboat company, for transportation over any railroad, which shall have been brought from New York by boat, shall be transported by such railroad company to its place of destination for the same price as it would be if brought from New York by railroad. § 5. Any railroad company in this State, whose agent or servants shall neglect or refuse to sell tickets or furnish a check, as is provided for in this act, when the same shall have been furnished them, shall be liable to the same penalty as is provided for in section thirty-seven of the act passed April second, eighteen hundred and fifty, entitled " An act to authorize the formation of railroad corporations and to regulate the same," and no fare or toll shall be collected or received from any passenger whose application for such ticket or check shall have been refused, for riding over the road of said company, and in addition thereto, the said railroad corporation shall be liable to a penalty of two hundred and fifty dollars, to be recovered in the name of the proprietor or proprietors of any steamboat line navigating the Hudson river in any court of competent jurisdiction, for each day they shall neglect or refuse to comply with the provisions of this act, unless such neglect or refusal is caused by a failure on the part of such steamboat proprietor or proprietors to furnish tickets and checks as herein provided for. PERSONS AND PEOPERTY. 171 § 6. The proyisions of this act, so far as relates to the sale of tickets and furnishing of checks, shall not apply to either the Hudson River or New York and Harlem Railroad companies. Liability for loss of freight on connecting lines. — Any railroad company receiving freigM for transportation shall be entitled to the same rights and be subject to the same liabilities as common car- riers. Whenever two or more railroads are connected together, any company owning either of said roads, receiving freight to be transported to any place on the line of either of the said roads so connected, shall be liable as common carriers for the delivery of such freight at such place (a). In case any such company shall become liable to pay any sum by reason of the neglect or misconduct of any other company or compa- nies, the company paying such sum may collect the same of the company or companies by whose neglect or misconduct it became so liable. (Laws 1847, chap. 270, §9.) (a) Liiability of contracting company. — The company re- ceiving goods for transportation may lawfully contract to deliver the same at a point beyond the terminus of its road (Schroeder «. Hudson River R. Co., 5 Duer, 55 ; Quimby v. Vanderbilt, 17 N. Y. 306), and where it receives compensation for the entire route, it is bound to per- form the entire service (Hart v. Rensselaer &c. R. Co., 8 N. Y. 37 ; Wilcox V. Parmelee, 3 Sandf 61; Cary -o. Cleveland & Toledo R. Co., 29 Barb. 35 ; Foy v. Troy & Boston R. Co., 34 id. 382). If it intended to restrict its liability to injuries occurring on its own road, it should provide for such limitation in its contract (Foy v. Troy & Boston R. Co., supra). But where it does not appear that the company received compensation for the entire distance, its liability as common carrier is terminated upon de- livery of the goods at the end of its route, to another carrier, and there- after its liability, if any, is as a forwarder (Hempstead v. N.Y. Cent. R. Co., 38 Barb. 485 ; Fenner v. Buffalo &c. R. Co., 46 Barb. 103 ; Dillon v. N. Y. & Erie R. Co., 1 Hilt. 331) ; unless it neglected to give necessary instruc- tions, as to whom to deliver the property (Hempstead v. N. Y. Cent. R. Co., supra). The company is bound by any instructions given by the owner, with reference to the selection of a carrier beyond its route (Johnson v. Same, 33 N. Y. 610). 172 TEANSPOETATION OF Liability of intermediate compaiiie§. — It is the duty of the second or subsequent company upon receipt of the goods from the first, to forward the same immediately (Michaels «. N. Y. Cent. R. Co., 30 N. Y. 564), and deliver or attempt to deliver them to the next carrier on the route beyond (McDonald v. Western B. Corp., 34 N. Y. 497). It cannot excuse itself from the first of these duties, by a regula- tion that such goods were not to be forwarded unless accompanied by a bill of back charges (Michaels ®. N. Y. Cent. R. Co., supra) ; nor will a mere unloading and storing of the goods, exempt it from the second duty (McDonald v. Western R. Corp., supra). • Such company is liable for a loss of property while in its charge (Hart v. Rensselaer &c. R. Co., 8 N. Y. 37 ; McCormick v. Hudson River R. Co., 4 E. D. Smith, 181 ; Wing •D. N. Y. & Brie R. Co., 1 Hilt, 335), but is not liable for damage done to the goods before they came under its charge (Smith v. N. Y. Cent. R. Co., 43 Barb. 235 ; Hunt u. N. Y. & Erie R. Co., 1 Hilt. 338). And the liability of such company being founded on contract and not on the common law, it is entitled to the benefit of any exceptions existing be- tween the owner of the goods and the former carrier (Manhattan Oil Co. ». Camden &c. R. Co., 53 Barb. 73 ; s. o. 5 Abb. Pr. N. S. 389). The provisions of this section apply as well where one of the connecting roads is without the State (Root v. Great Western R. Co., 3 Lans. 199), as where all are within it (Hart v. Rensselaer & Saratoga R. Co., 8 N. Y. 37) ; and to a foreign corporation, being one of such connecting roads (Root V. Great Western R. Co., supra; Gary v. Cleveland & Toledo R. Co., 39 Barb. 35), whether such company have a terminus within the .State or not (Id). Check to be aflBxed to baggage.— A check ;shall be affixed to every parcel of "baggage, when, taken for transportation, by tte agent or servant of such cor- poration, if there is a handle, loop or fixture, so that the same can be attached upon the parcel or baggage so offered for transportation, and a duplicate thereof given to the passenger or person delivering the same on his behalf; and if such check be refused on demand, the corporation shall pay to such passenger the sum of ten doUaxs, to be recovered in a civil action ; and fur- ther, no fare or toll shall be collected or received from such passenger, and if such passenger shall have paid his fare, the same shall be refunded by the conductor in charge of the train ; and on producing said check, if his baggage shall not be delivered to him, he may PERSONS AND PEOPBETT. 173 himself be a witness in any suit brouglit by Mm, to prove tlie contents and value of said baggage. (Laws 1850, chap. 140, § 37.) ■What deemed baggage. Snch artides as the traveler usually carries with him for his personal use, convenience, instruction, or amuse- ment by the way, are deemed baggage within the rule of the company's liability (Van Wyck v. Howard, 12 How. Pr. 147 ; Hawkins v. Hoffinan, 6 Hill, 586). Thus tools used by the passenger in his trade (Davis v. Cayuga &c. R. Co., 10 How. Pr. 330) ; a gun carried in his trunk (Id) ; articles of jewelry usually worn about the person, as a watch &c. placed in his trunk (McCormick v. Hudson River R. Co., 4 E. D. Smith, 181), and even wearing apparel for members of his family, as material for two dresses (Dexter ». Syracuse &c. R. Co., 43 N. Y. 336), are property in- cluded under the term " baggage," and recoverable as such. But it does not include samples of merchandise which the traveler wishes to sell (Hawkins v. Hoffinan, 6 Hill, 586) ; nor masonic regalia, or presents intended for his iriends (Kevins v. Bay State Steamboat Co., 4 Bosw. 225) ; nor material for a dress for his landlady (Dexter v. Syracuse &c. R. Co., 43 N. T. 336). Nor is a trunk containing nothing but merchan- dise (Pardee i>. Drew, 35 Wend. 459), or silver ware (Bell v. Drew, 4 E. D. Smith, 59), baggage for which the carrier is liable. Nor is money included in the term baggage (Grant v. Newton, 1 E. D. Smith, 95 ; Or- ange County Bank v. Brown, 9 Wend. 85 ; Bell v. Drew, 4 B. D. Smith, 59), though an exception exists in favor of money carried for traveling expenses (Merrill v. GrinneU, 30 N. T. 594; overruling in effect Grant v. Newton, 1 B. D. Smith, 95). The question what is a reasonable amount of baggage, is to be determined by the jury (Nevins i>. Bay State Steam- boat Co. 4 Bosw. 225 ; Rawson v. Pennsylvania R. Co. 3 Abb. Pr. N. S. 220) ; so also as to the amount of money allowed for traveling expenses (MeniU «. Grinnell, supra), in determining which, considerations as to the length of the journey, and to some extent the wealth of the traveler, are admissible (Id). liiability of company for baggage. The company, except in cases where the loss occurs through the enemies of the country, or in- evitable accident, is bound to deliver safely to each passenger, his bag- gage, in a reasonable time and manner, after its arrival at the place of destination (Camden &c. R. & T. Co. v. Burke, 13 Wend. 611 ; Roth v. Buffalo &c. R. Co., 34 N. Y. 548 ; Jones v. Norwich &c. Transportation Co., 50 Barb. 198 ; Glasco ». N. Y. Cent. R. Co., 36 id. 557; Cary «. Cleve- land &c. R. Co., 29 id. 35) ; nor is it material whether the baggage is in excess of the quantity allowed to a passenger, unless there is some agree- ment to the contrary (Glasco «. N. Y. Cent. R. Co., supra) ; nor will a notice that all baggage is at the risk of the owner, excuse the company from liability for loss of baggage arising from its negligence, or the ia- 174 TEANSPORTATiqjr OF sufficiency of its machinery or vehicles (Camden &c. R & T. Co. «. Burke, supra; Same®. Belknap, 21 Wend. 354). Where the passenger refuses or neglects to present his check for, and remove his baggage within a reasonable time, the strict and rigorous liability of the company is ended, and thereafter it retains the baggage as a gratuitous bailee (Roth ». Buf- falo &c. R. Co., supra; Jones v. Norwich &c. Transportation Co., supra; Holdridge v. Utica & Black River R. Cq., 56 Barb. 191). But where the company retained the baggage on request until it could be sent for, ^ts liability as common carrier continues until a delivery or tender to the owner (Curtis v. Avon &c. R. Co., 49 Barb. 148), and evidence that the passenger was a cripple, and unable to take charge of his baggage per- sonally, is admissible to show that there was good reason for making such arrangement, and that he was guilty of no negligence in not calling for, and taking charge of his baggage upon sirrival at the place of desti- nation (Id). What is a reasonable time for the delivery of baggage is a mixed question of law and fact, to be determined by the jury, under the instructions of the court when the facts are unsettled ; but when there is no dispute about the facts, then by the court alone (Roth v. BuflFalo &c. R. Co., supra; Gilhooly v. N. Y. & Savannah Steam Navigation Co., 1 Daly, 197). In an action against the company to recover for lost baggage, the fact that the plaintiff was a passenger, and that the company took his bag- gage ; Held sufficiently proved by the passenger's possession of the bag- gage check, and testimony of the baggage-master as to the custom of giving checks (Davis v. Cayuga &c. R. Co., 10 How. Pr. 330), though tes- timony that the baggage was delivered to a person whom witness sup- posed to be the baggage-master, is not enough to charge the company with its receipt (Butler v. Hudson River R. Co., 3 E. D. Smith, 571). In such an action, when it appears on trial that the tnink was lost, it is not necessary to show a demand of the trunk, and refusal by the company to deliver the same, before the suit was brought (Garvey v. Camden & Am- boy R. Co., 1 Hilt. 280) ; proof of delivery and loss is prima facie suffi- cient to entitle the plaintiff to recover (Id). An agent of the company, having charge of the depot, and the freight therein, is the proper person to inquire of respecting lost baggage, and a conversation between the plaintiff and such person relative to lost baggage, is admissible as res gestm (Curtis v. Avon &c. R. Co., 49 Barb. 148). Where the plaintiff was in the clothing business and engaged in the manufacture of clothing, he was Md, a competent witness io prove the value of materials for cloth- ing (Browning v. Long Island R. Co., 3 Daly, 117). Same; requisites of check.— It shall be the duty of every railroad company hereafter to famish and attach checks to each separate parcel of baggage which they by their agents or officers receive from any person for transportation as ordinary or extraordinary PERSONS AND PROPERTY. 175 baggage in their baggage cars accompanying their pas- senger trains, and they shall also furnish to such a per- son duplicate check or checks having upon it or them a corresponding number to that attached to each par eel of baggage; said checks and duplicates shall be made of some proper metallic substance, of convenient size and form, plainly stamped with numbers, and each check furnished with a convenient strap or other ap- pendage for attaching to baggage, and accompanying it a duplicate,, to be delivered to the person delivering or owning such baggage. And whenever the owner of said baggage or other person shall, at the place where the cars usually stop, to which said baggage was to be transported, or at any other regular stopping place, present said duplicate check, or checks to the officer or agent of the railroad or any railroad over any portion of which said baggage was transported, they' shall deliver it up to the person so offering the dupli- cate check or checks without unnecessary delay. And a neglect or refusal on the part of any railroad com- pany, its officers or agents, to furnish and attach to any person's ordinary traveling baggage or extraordinary baggage, if conveyed by their passenger train, a suita- ble check or checks, and to furnish to such person proper duplicate or duplicates, shall forfeit and pay to such person or ovnier, for every such refusal or neglect, the sum of ten doUars, to be recovered in an action for debt. (Laws 1847, chap. 272, § 6.) Unclaimed freight, how disposed of. — Every raih-oad company which shall have had un- claimed freight, not perishable, in its possession for a period of one year at least, may proceed to sell the same at public auction, and out of the proceeds may retain the charges of transportation and storage of such 176 TKANSPOETATION OF freight, and the expenses of advertising and sale there- of; but no such sale shall be made until the expiration of four weeks from the fitst publication of notice of such sale in the State paper, and also in a newspaper published at or nearest the place at which such freight was directed to be left, and also at the place where such sale is to take place ; and said notice shall contain a description of such freight, the place at which and the time when the same was left, as near as may be, together with the name of the owner or person to whom consigned, if known ; and the expenses incurred for advertising shall be a lien upon such freight, in a ratable proportion, according to the value of each arti- cle or package or parcel, if more than one. (Laws 1854, chap. 282, § 10.) In case such unclaimed freight shall, in its nature) be perishable, then the same may be sold as soon as it can be, on giving the notice required in the preceding section, after its receipt at the place where it was di- rected to be left. (Laws 1854, chap. 282, § 11.) Such railroad company shall make an entry of the balance of the proceeds of the sale, if any, of each parcel of freight owned by or consigned to the same person, as near as can be ascertained, and at any time within five years thereafter shall refund any surplus so retained to the owner of such freight, his heirs or as- signs, on satisfactory proof of such ownership. (Laws 1854, chap. 282, § 12.) Same; proyislon as to sale of unclaimed baggage.— Every railroad company which shaU have had unclaimed freight or baggage, not perishable, in its possession for the period of at least one year, may proceed and sell the same at public auction, after giving notice to that effect in the State paper once a week for PEKSONS AiTD PEOPEKTT. 177 not less than four weeks, and for a like period in a newspaper other than the State paper, published at the place designated for the sale, and also in one published in the city of New York (said notice shall contain as near as practicable a description of such freight or bag- gage, the place and time when left, together with the name of the owner of the freight, or person to whom con- signed, if the same be known). All moneys arising from the sale of freight or baggage as aforesaid after deducting therefrom charges and expenses for trans- portation, storage, advertising, commissions for selling the property, and the amount previously paid for the loss or non-delivery of freight or baggage, shall be de- posited by the company making such sale, accompanied with a report thereof, and proofs of advertisement, with the comptroller, for the benefit of the general fund of the State, and shall be held by him in trust for recla- mation by the persons entitled, or who may become entitled, to receive the same. No sale as herein pro- vided shall be valid unless a copy of the notice above specified shall be served upon the comptroller for at least two weeks prior to the time designated for such sale. (Laws 1857, chap. 444, § 3.) In case such unclaimed fi-eight or baggage shall, in its nature, be perishable, then the same may be sold as soon as it can be, at the best terms that can be ob- tained. (Laws 1857, chap. 444, § 4.) See Laws 1837, chap. 300. Transportation of liye stock.— No raikoad company in this State, in the carrying and transporta- tion of cattle, sheep, or swine, shall confine the same in cars for a longer period than twenty-eight consecu- tive hours, imless delayed by storms or other acciden- tal causes, without unloading for rest, water and feed- 178 TEAirSPORTATION OF ing, for a period of at least ten consecutive hours. In estimating sucli confinement, the time the animals have been confined without such rest on connecting roads from which they are received shall be computed, it being the intention to prevent their continuous confine- ment beyond twenty-eight hours, except upon the con- tingencies herein stated. Nothing in this act contained shall require the unloading of cattle, sheep, or swine, from the cars of the Buffalo and State Line railroad before their arrival at Buffalo, and the Atlantic and Great Western railroad, before they arrive at Sala- manca. (Laws 1866, chap. 560, § 1.) ■ t The company is liable for injury to animals wHcli it undertakes to carry, though not for injuries arising from fright of the animals, their refusal to eat &c. nor for iajuiies from an occurrence incidental to such transportation, and which the company could not have prevented (Clarke s. Rochester &c. R. Co., 14 N. T. 570). Thus the company was held liable for the loss of a horse strangled by his halter in the car {Id) ; and this though the owner assisted in fastening him, and was allowed a passage on the train. Where the cattle train was detained at a station a num- ber of hours, in constant readiness to start on the arrival of a belated train, and the owner proposed to take the cattle out and* water them, but was informed that the train might start within a period too brief for that purpose; Seld, that it was for the jury to decide whether this amounted to a refusal to permit the unloading of the animals (Harris v. Northern Indiana R. Co., 30 N. T. 232). A contract between the company and tlie owner of live stock for their transportation, whereby the latter undertakes " all risk of loss, injury, damage, and other contingencies, in loading, unloading, conveyance and otherwise," will exempt the company from liability for injury sustained by the animals from unnecessary confinement, and want of food and water (Heineman v. Grand Trunk R. Co., 31 How. Pr. 430), but evidence that the owner was allowed a free passage on the train does not establish the fact that he was to attend to the safety of the animals during the jour- ney (Clarke v. Rochester &c. R. Co., svpra). Expense attendant on such care of ani- mals provided for. — Provided the owner or per- son in charge of said animals refuses or neglects to pay for the care and feed of animals so rested, the railroad PERSONS AND PKOPBRTT. 179 company may charge sucli expense to the owner or consignee, and retain a lien upon the animals until the same is paid ; and Provided, further, That no claim of damages for detention shall be recovered by the owner or shipper of any animals for the time they are de- tained under the provisions of this act. (Laws 1866, chap. 560, § 2.) Penalty for yiolation of act. — Any railroad company, owner, consignee, or person in charge of said cattle, sheep, or swine, who shall violate any provision of this act, shall, for each and every such violation, be . liable for and forfeit and pay a penalty in the sum of one hundred dollars, to be sued for and collected in any court having jurisdiction, by any person, in the name of the people of the State of New York, one- half of the penalty, when collected, to belong to the informer, and the balance to be paid to the State Treasurer of the State of New York. (Laws 1866, chap. 560, § 3.) Repeal of canal tolls. — It shall not be neces- sary for any railroad company in this State to pay any sums of money into the treasury of this State, on ac- count of the transportation of property on any rail- road, on and after the first day of December, in the year eighteen hundred and fifty-one. (Laws 1851, chap. 497, § 1.) Same. — All acts and parts of acts requiring the payment of Stat6 tolls by any railroad company, for the transportation of property on any railroad, are, after the first day of December next, so far as they conflict with this act, hereby repealed. (Laws 1851, chap. 497, § 3.) 180 TBANSPORTATION OP The effect of this act is to repeal section 39, of the general railroad act of 1850. It is not unconstitutional as violating article seven, of the constitution of 1846, which pledges the revenues of the canals to certain purposes. The tolls imposed on freight carried on raih-oads, although payable to the commissioners of the canal fund, were not part of the revenues of the canals (People v. N. Y. Cent, R. Co., 34 N. Y. 485 ; affirm- ing s. c. 34 Barb. 133). Canal tolls on neat cattle, horses, sheep, and fresh meats, carried on any railroad, had been previously repealed (Laws 1850, chap. 368, § 1). Transportation of United States mail.— Any sucli corporation shall, wlien applied to by tlie post- master-general, convey tlie mails of the United St9.tes on their road or roads respectively ; and in. case such corporation shall not agree as to the rate of transpor- tation therefor, and as to the time, rate of speed, man- ner and condition 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 meet- ing to the corporation, shall determine and fix the prices, terms and conditions aforesaid; but such price shall not be less for carrying said mails in the regular passenger trains, than the amount which such corporar tion would receive as freight on a like weight of mer- chandise 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 car- ried at other hours, or at a higher speed than the pas- senger trains are run, the corporation shall furnish an extra train for the mail, and be allowed an extra com- pensation for the expenses, and wear and tear thereof, and for the service, to be fixed as aforesaid. (Laws 1850, chap. 140, § 34.) See Laws 1846, chap. 315, § 17; Laws 1845, chap. 149. The mail agent has a right of action against the company for an injury sustained by him, but the basis of the liability is not the contract between the PERSONS AND PROPERTY. 181 postmaster-general and the company, but the negligence of the latter. The contract, however, may be resorted to, to establish the fact that the plaintiflf was not a trespasser on the train, but became a passenger with the assent of the company (Nolton v. "Western R. Corp., 15 N. Y. 444 ; affirming s. c. 10 How. Pr. 97). Penalty for exacting excessive fare.— Any railroad company, wHcli shall ask and receive a greater rate of fare than that allowed by law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same, but it shall be lawful and not construed as ex- tortion for any railroad company to take the legal rate of fare for one mile, for any fractional distance less than a mile. (Laws 1857, chap. 185, § 1.) These provisions do not apply to city railroads (Hoyt «. Sixth Ave, R. Co., 1 Daly, 528 ; Moneypenny v. Same, 35 How. Pr. 452 ; s. c. 4 Abb. Pr. N. S. 357 ; s. c. 7 Robt. 328). Under the legal tender Act of Con- gress (Feb. 25, 1862), railroad companies are bound to receive United States notes issued in pursuance of the act, at the value expressed on the face of them, in payment of fare, and they are guilty of extortion under the above section, for exacting payment of the legal fare in gold or silver coin, or its equivalent in currency (Lewis v. N. Y. Cent. R. Co., 49 Barb. 330). Where the company was authorized to demand and receive five cents extra fare, from a passenger who neglected to purchase a ticket before entering the cars, it can collect the same, only when the passenger fails to purchase his tipket at an established ticket office that is open. Where the office is not open, no ticket can be procured, and the penalty is incurred under such circumstances, by the exaction of the addition to the regular fare (Nellis v. N. Y. Cent. R. Co., 30 N. Y. 505 ; Chase v. Same, 26 id. 323; Porter v. Same, 34 Barb. 353), and this, though the conductor has no orders to exact such additional fare (Porter V. K Y. Cent. R. Co., supra). Rate of fare. — Defined to be the price of passage, or the sum paid or to be paid for carrying the passenger (Chase v. N. Y. Cent. R. Co.,a6N. Y.523). Ejection of passenger for non-payment of fare. — If any passenger shall refuse to pay his fare, it shall be lawM for the conductor of the train and the servants of the corporation to put him and his baggage 182 TKANSPORTATION OF out of the cars, using no unnecessary force, at any- usual stopping place, or near any dwelling house, as the conductor shall elect, on stopping the train. (Laws 1850, chap. 140,' § 35.) A passenger may be ejected from the cars in a proper manner, when- ever he refuses to comply with a requirement of the corporation to exhibit his ticket (Vedder v. Fellows, 30 N. T. 136 ; Hibbard ®. N. T. & Erie R. Co., 15 id. 455; Northern R. Co. «. Page, 33 Barb. 130; Willetts !). Buffalo &c. R. Co., 14 id. 585 ; Walker v. Dry Dock&c. R. Co., 33 How. Pr. 337 ; Barker v. Goflin, 31 Barb. 556) ; or for a refusal to pay his fare (Sandford v. Eighth Ave. R. Co., 33 N. T. 343 ; reversing s. c. 7 Bosw. 133 ; Barker v. N. T. Cent. R. Co., 34 N. Y. 599 ; aflBrming s. c. sub nom. Page V. N. T. Cent. R. Co., 6 Duer, 533; Beebe «. Ayres, 38 Barb. 375). So where by accident, or through his own mistake the passenger was carried off from his intended journey, for which he had procured a ticket, he is liable to be ejected on refusal to leave the car or to pay his fare for the route he is actually traveling (Barker v N. T. Cent. R. Co., 34 N. T. 599; affirming s. c. sui nom. Page i'. N. T, Cent. R. Co., 6 Duer, 533). But no conductor or collector, who does not wear a badge on his hat or cap indicating his office, is entitled to demand or receive from the passenger, his fare or ticket (Laws 1850, chap. 140, § 30). The con- ductor has also authority to eject the passenger for noisy and disgrace- ful conduct (such as grossly profane and indecent language) ; or such, as disturb the peace and safety of the other passengers (People v. Caryl, 3 Park. Cr. 336). The driver of a city railroad car, has authority in like manner, to eject a person from the platform of the car, when in his judgment such person is there without right, or contrary to the regula- tions of the company (Meyer «. Second Ave. R. Co., 8 Bosw. 305). But the servants of the company are limited to the use of just so much force, as may effect the lawful expulsion, and no more (per Brown, J., Hibbard 1). N. Y. & Erie R. Co., supra), and the company is liable for any circum- stances of aggravation, or excessive violence, which may attend a forcible expulsion committed within the instructions of the company (Sanford v. Eighth Ave. B. Co., supra) ; though not for a malicious excess (Hibbard 11. N. Y. & Erie R. Co., supra) ; unless the passenger was wrongfully ejected (Meyer v. Second Ave. R. Co., svpra). Where a person in attempt- ing to enter a raih-oad car without a ticket, was assaulted by the brake- man stationed there to see that passengers had procured tickets before entering the cars; Eeld, that it was a joint trespass for which an action against the company or its employee would lie jointly or severally (Priest V. Hudson River R. Co., 40 How. Pr. 456), and is barred by the two years statute of limitation (Id). PERSONS AKD PROPERTY. 183 Unauthorized Sale of Tickets.— l^o person other tlian tlie agents or employees of railroad, steam- boat, or steamship companies of this State, duly ap- pointed by them for that purpose, by a proper author- ity in writing, shall offer for sale or sell within this State, any ticket or tickets, or any printed or written instrument issued by, or purporting to have been issued by any railroad, steamboat or steamship com- pany, in this State or elsewhere, for the transportation of any passenger or passengers, upon any such railroad, steamboat or steamship, or any instrument wholly or partly printed or written, delivered for the purpose or upon the pretense of the procurement to such passen- ger or passengers, of any such ticket or tickets, or in any other manner, charge, take or receive any money as a consideration or price for such passage, or for the procurement of such passage ticket or tickets ; and no ticket or tickets, or other evidence as aforesaid, shall be sold or offered for sale by the said agents or em- ployees, except at the offices designated for that pur- pose by the said companies respectively, or at offices conveniently located by agents of other duly organized railway companies, and at prices not exceeding their regular established rates. (Laws 1857, chap. 470, § 1 ; Am'd Laws 1868, chap. 820, § 1.) The -words " or at offices conveniently located by agents of other duly organized railway companies," have been rendered inapplicable to the counties of New York and Kings (Laws, 1868, chap. 820, § 4). Deposition of witnesses respecting same.— Whenever any person or persons shall be complained of and arrested for violating any of the provisions of the first section of this act, it shall be the duty of the magistrate before whom such complaint is made, to take and reduce to writing, in the presence of the per- 184 TEANSPOETATION OF son or persons complained of, tlie evidence of any wit- ness wHcli may be offered, either on behalf of tlie prosecution or the party accused, and the depositions so taken shall be respectively subscribed by the wit- nesses making the same, and certified by the magistrate, and when so taken and certified, the said deposition shall be filed in the office of the clerk of the county in which the same shall be taken. Upon the trial of any person or persons charged with any offence under the provisions of this act, the testimony taken, as aforesaid may be read by either party, with the like effect as if the said witness or witnesses were sworn in open court upon said trial ; provided, it shall appear therein that the wit- ness or witnesses were, at the time of taking the same, residents of another state, territory or province, or are immigrating fi-om a foreign country, or are residents of this state, and on their way to some other state, terri- tory or province. (Laws 1857, chap. 470, § 2.) Penalty for yiolation of act.— Any person vio- lating the provisions of this act, shall upon conviction, be deemed guilty of a misdemeanor, and be punished by a fine of not less than one hundred dollars, or by imprisonment of not less than three months, or by both such fine and imprisonment. (Laws 1857, chap. 470, §3.) Regarding theft of railroad tickets.—Every person who shall be convicted of stealing, taking and carrying away any railroad passenger ticket or tickets, prepared for sale to passengers, previous to or after the sale thereof, being the personal property of any railroad company, or of any other corporation or cor- porations, or of any person or persons, shall be adjudged guilty of grand or petit larceny, as prescribed in the following section. (Laws 1855, chap. 499, § 1.) PERSONS AKD PROPERTY. 185 Same. — If the price or prices authorized to be charged for such ticket or tickets, on a sale thereof, shall exceed the sum of twenty-five dollars, such price or prices shall be deemed the value of such ticket or tickets, and the offence of stealing, taking and carrying away the same, shall be adjudged grand larceny, and the person convicted of the same shall be imprisoned in a state prison for a term not exceeding five years ; but if such price or prices shall only amount to twenty- five dollars or under, the offence of stealing, taking and carrying away such ticket or tickets shall be ad- judged guilty of petit larceny, and the person convicted of the same shall be pimished by imprisonment in the county jail not exceeding six months, or by a fine not exceeding one hundred dollars, or by both such fine and imprisonment. (Laws 1855, chap. 499, § 2.) Regarding forged or counterfeit tickets.— Every person who shall be convicted of having forged, •counterfeited, or falsely altered any railroad ticket mentioned or referred to in either of the preceding sections of this act, or of having sold, exchanged, or delivered for any consideration, any such forged or counterfeited railroad ticket, knowing the same to be forged or counterfeited, with intent to injure or defraud, or of having offered any such forged or counterfeited railroad ticket for sale, exchange or delivery, for any consideration, with the like knowledge and intent, or of having received any such forged or counterfeited railroad ticket upon a sale, exchange or delivery, for any consideration, with the like knowledge and intent, shall be adjudged guilty of forgery.in the third degree, and shall be punished in like manner as is prescribed by law in cases of conviction of forgery in the third degree. (Laws 1855, chap. 499, § 4.) 13 186 TRANSPORTATION OF Same. — Every person who stall have in Ms pos- session any such forged or counterfeited railroad ticket, as mentioned or referred to in the next preceding section, knowing the same to be forged, counterfeited or falsely altered, with intention to injure or defraud by uttering the same as true or false, or by causing the same to be uttered, or by the use of the same to procure a passage in the cars of the railroad company by which such ticket purports to have been issued, shall be subject to the punishment provided by law for forgery in the fourth degree. (Laws 1855, chap. 499, § 5.) What deemed railroad ticket. — Railroad pas- senger tickets of any railroad company, as well before the same shall have been issued to its receivers or other agents for sale, as after, and whether endorsed by such receivers or other agents or not, are to be deemed rail- road tickets within the meaning of this act. (Laws 1855, chap. 499,- § 3.) Immigrant ticket. — Every ticket, receipt or cer- tificate, which shall be made or issued by any com- pany, association or person, for the conveyance of any immigrant, second class, steerage or deck passengers, or as evidence of their having paid for a passage, or being entitled to be conveyed from either or any of the points or places in the first section of this act men- tioned (a), 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 pro- pellers, or the particular boats or propellers, as the case may be, which are to be used in the transporta- tion and conveyance of such passengers, and also the price or rate of fare charged or received for the trans- PERSONS AND PEOPBETY. 187 portation and conveyance of any such passenger or passengers, with his or their baggage. (Laws 1855, <}hap. 4V4, § 2.) (a) " From the city, bay or harbor of New York, to any point or place, distant more than ten miles therefrom, or from the cities of Albany, Troy and Buffalo, the town or harbor of Dunkirk, or the suspension bridge, to any other place or places." (Laws 1855, chap. 474, § 1. Vide post, p. 189.) Sections seven, eight and nine of chapter 218, laws 1853, apply only to the selling of immigrant passage tickets, i. e. tickets used between New York and some other port ; and do not apply to railroad transportation (Laws 1855, chap. 474, §§ 3, 4). Compensation allowed for transportation of immigrants. — It shall not be lawful for any per- son 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 immigrant, second class, steerage or deck passengers, with their luggage, or either, from either or any of the points or places in the first section of this act men- tioned (a), to any other point or place, than the prices or rates contained in the statements which shall be de- livered to the mayors of the cities of New York, Al- bany, Troy, and Buffalo, and said commissioners, re- spectively, as in the said first section provided for, or the price or rates which shall be established and fixed for the transportation and conveyance of such passen- gers and their luggage, or either, by the proprietors or agents of the line or lines, or means of conveyance 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 famished with a seat with a permanent back to the ^ame, and when conveyed by steamboat, propeller or canal boat, shall be allowed at least two and one- lialf feet square in the clear on deck. Such deck shall 188 TEANSPOBTATION OF be covered and made water-tight over head, and shall be properly protected at the outsides, either by cur- tains or partitions, and shall be properly ventilated. (Laws 1855, chap. 474, § 3.) (a) See section one of this act, post, p. 189. Penalty for violation of act.— Any company, association, person or persons, violating or neglecting to comply with any of the provisions of the first or second sections of this act (a), 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 provisions of the third section of this act (F), shall be deemed guilty of a misdemeanor, and on con- viction thereof, the person offending may be punished by a fine of two hundred and fifty dollars, or by im- prisonment, 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 treas- ury, where the action shall be tried, or the conviction had. (Laws 1855, chap. 474, § 4.) (a) See section one (post, p. 189), and section two (ante, p. 186), (5) See section three (ante, p. 187). Proceedings on arrest of offender.— It shall be the duty of every magistrate who shall issue a war- rant for the apprehension of any person or persons for violating the provisions of the third section of this act (a), 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, iu person or by counsel, cross-exam- persoinS and property. 189 ine sucli witness. The testimony so taken shall be signed hj the witness, and be certified by the magis- trate, and in case such magistrate 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 pro- ceedings 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 such witness shall be so taken, he shall not be detained, nor be im- prisoned, or compelled to give any recognizance for his fature appearance as a witness on any trial or pro- ceeding thereafter to be had in the premises. (Laws 1855, chap. 474, § 5.) (a) See section three [ante, p. 187). Annual statement of charges for trans- portation of immigrants. — ^It shall be the duty of all companies, associations, and persons, hereafter un- dertaking to transport, or convey, or engaged in trans- . porting or conveying, by railroad, steamboat, canal boat or propeller, any immigrant, second class, steer- age or deck passenger, from the city, bay or harbor of New York, to any point or place, distant more than ten miles therefrom, or from the cities of Albany, Troy, and Buffalo, the town or harbor of Dunkirk, or the Suspension 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 190 TRANSPOETATIOK OF such iminigraut, second class, steerage and deck pas- sengers respectively, and the price per hundred pounds for the carriage of the luggage, and the weight of lug- gage to he 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 company, association or person, after the time of deliveriag such statement to the said mayors ; and such statement shall also contain a particular descrip- tion 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 prp- 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 there- after 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. (Laws 1855, chap. 474, § 1.) Sale of immigrant tickets in the city of New York, regulated.— It shall not be lawful for any railroad company, or for any agent, employee or other officer of any railroad company, or for any other person, to sell, offer for sale, or otherwise dispose of any ticket or tickets, or written or printed instru- ments, or instruments partly written and partly PERSONS AKD PEOPEBTT. 191 printed, for tlie transportation or conveyance on or by a,ny railroad or steamboat, of any immigrant, or deck, or steerage, or second class passenger, arriving at tlie port of New York from a foreign country, at any place or places in tlie city of New York, except sucli as may be designated by the Commissioners of Emi- gration ; wHcli place or places may from time to time, as they may deem best, be changed by the said com- missioners; provided, however, that nothing herein contained shall prevent any railroad company from selling tickets to any persons at the rates of fare charged for first class passengers, nor from selling tickets at . the principal ticket offices of such company, to immigrants and other second class passengers, pro- vided such company has at the same time an agent who shall sell tickets at the place designated by the said commissioners for selling tickets to immigrants. The Commissioners of Emigration shall furnish every railroad company of this State desiring such privilege to have an agent at each and every place so desig- nated by them, to sell tickets to immigrants and other second class passengers ; but if any such agent shall be found by said commissioners to have been guilty at any time, whale acting as an agent, of defrauding immi- grants, or of any other wrongful or disgraceful conduct, they shall exclude such agent, and it shall be the duty of the railroad company to appoint another agent in lis place. (Laws 1868, chap. 793, § 1.) Penalty for violation of aboye provision. — Any person violating any provision of this act, shall be deemed guilty of a misdemeanor, and shaE, upon conviction, be punished by a fine of not less than three hundred, and not more than one thousand dollars, or ^y imprisonment of not less than three months, or 192 TEAIfSPORTATION OF by both said fine and imprisonment. (Laws 1868^ chap. 793, § 3.) Liability for soliciting immigrants as passengers, Ibefore landing.— Any runner; or per son acting for himself, or for and on behalf of or con- nected with any steamboat, railroad, or forwarding^ company, or emigrant boarding-house, who shall solicit or book any passengers emigrating to the United States, and arriving at the port of New York, before such passenger shall . have left the vessel in which he has so arrived, or who shall enter or go on board any ship or vessel, so arriving with emigrant passengers, prior to the landing of such passengers therefrom, and also any person, company, or corporation having em- ployed such person for the purpose of soliciting and booking such passengers prior to their leaving the vessel in which they may arrive, shall be severally subject to a penalty of one hundred dollars for each offence, to be sued for and recovered in the same manner, and subject to the same provisions of law as enacted in respect to other penalties imposed by the several acts regulating the powers and duties of the Commissioners of Emigration. Any person violating the provisions of this section may also be indicted for a misdemeanor, which violation shall be held and taken to be a misdemeanor, and he shall, on convic- tion, be punished by fine not exceeding one hundred dollars, or imprisonment for sixty days. (Laws 1853^ chap. 619, § 1.) Examination and deposition of witness.— Whenever any person or persons may be complained of, and arrested for violating any of the provisions of this act (a), or of any act for the benefit or protee- PERSONS AND PEOPERTT. 193 tion of immigrants or passengers arriving at tlie port of New York, or about to depart therefrom, it shall be the duty of the magistrate before whom such com- plaint is made, to take and reduce to writing, in the presence of the person or persons complained of, the evidence of any witness which may be offered, either on behalf of the prosecution, or of the person com- plained of, allowing the opposing party an opportunity to cross-examine the witness, and the depositions so taken shall be subscribed respectively by the witnesses making the same, and certified by the magistrate ; and when so taken and certified, the said depositions shall be filed in the of&ce of the clerk of the court of oyer and terminer, in and for the city and county of New York; and upon the trial of any party accused, in in whose presence any such deposition shall have been taken upon any complaint or charge made against him, relative to the same transaction, such deposition may be read by either party with the same effect as if the same witness were sworn, and his testimony taken in open court upon such trial, provided it shall appear thereby that the witness at the, time the deposition was taken, was a resident of this State on his way to some other State, territory, province or country, or a resident of another State, territory or province, or an immigrant from a foreign country ; and provided fur- ther that it shall not be shown to the court, that the witness at the time of the trial is within its jurisdic- tion. (Laws 1868, chap. V93, § 2.) (a) Laws 1868, chap. 793. See Section one, of this act (Ante p. 190). Free passes. — Chapter seven hundred and nine- ty-eight, of the laws of eighteen hundred and sixty- six, entitled "An act prohibiting the issue of Free 194 TBANSPOKTATION OF Passes on tlie railroads of this State," is herelby re- pealed. (Laws 1867, chap. 4, § 1.) An endorsement on a free ticket, " that the company shall not be liable under any circumstances, whether of negligence of their servants or otherwise, for any injury to the person, or for any loss or injury to the property of the passenger using this ticket," will exempt the company from liability for any injury occasioned by the mere negligence of its servants (Wells v. N. Y. Cent. R. Co., 34 N. T. 181 ; Perkins v. Same, Id. 196), and a contract to such effect between the company and the gratui- tous passenger, is not void as against law or public policy {Id; Bissell V. N. Y. Cent. R. Co., 35 N. Y. 443; reversing s. c. 39 Barb. 603), though otherwise, if the passenger even indirectly pays compensation for being carried (Perkins «. N. Y. Cent. R. Co., supra ; Smith ». Same, Id. 33 ; affirming s. c. 39 Barb. 133; contra, Bissell v. Same, supra). The price which a drover pays for the transportation of his cattle, and the care he takes of them by the way, is a sufficient consideration for his own passage, and he cannot be considered a gratuitous passenger (Smith «. N. Y. Cent. R. Co., supra; see also dissenting opinion, Denio, Ch. J., in Bissell V. Sa,me, supra). Though the company may limit its liability by positive contract, a mere notice on its tickets, or elsewhere, can have no such effect, even where the notice is brought to the knowledge of the pas- senger (Rawson ». Pennsylvania R. Co., 3 Abb. Pr. K S. 330). A com- plaint in an action for injury to a passenger carried gratuitously, which alleges that the company received the plaintiff as a passenger, and that while a passenger, he was injured by the negligence of the . company ; Held, to state a cause of action (Nolton «. Western R. Corp., 15 N. Y. 444). Legislature may alter or reduce compen- sation of road. — 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, with- out the consent of the corporation, be so reduced as to produce with said profits less than ten per centum per annum on the capital actually expended ; nor unless, on an examination of the amounts received and ex- pended, to be made by the state engineer and surveyor, and the comptroller, they shall ascertain that the net income derived by the company from all sources for the year then last past shall have exceeded an annual PERSONS AND PROPERTY. 195 income of ten per cent upon tlie capital of tlie corpo- ration actually expended. (Laws 1850, chap. 140, §33.) Company may restrict its liaMity for in- juries to passengers. — In case any passenger on any railroad shall he injured whUe on the platform of a car, or on any baggage, wood, or freight car, in vio- lation of the printed regulations of the company posted up at the time in a conspicuous place inside of its passenger cars then in the train, such company shall not be liable for the injury ; provided said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passen- gers. (Laws 1850, chap. 140, § 46.) Where the proper notices are posted up, and there is sufficient accom- modation for the passenger in the cars, he has no right to remain on the platform (Higgins ®. N. T. & Harlem E. Co., 3 Bosw. 133 ; Willis v. Long Island R. Co., 34 N. T. 670 ; affirming s. c. 33 Barb. 898), and the mere fact that the conductor did not object to his standing there, will not be deemed a waiver by the company of the protection given it by the statute (Higgins ti. N. T. & H. R. Co., supra) ; though otherwise, where the pas- senger was compelled by the conductor to stand upon the platform of a crowded car, and was injured in consequence (Sheridan «. Brooklyn Ac. R. Co., 36 N. T. 39). Sufficient accommodation, under this section, implies not only space enough within the cars to contain the pas- sengers, but also the means of sitting in the usual manner daring the journey (Willis «. Long Island R. Co., supra). This the company is bound to furnish without request. Thus the passenger is not obliged to go from car to car, in search of such accommodations ; nor is he bound to require one occupying an entire seat to make room for him, although the seat is large enough for two persons to occupy when sitting properly ; nor to request persons to displace articles which they have placed on a seat, in order to accommodate him (Id). It is not negligence, however, on the part of a passenger, to go from car to car, while the trfiin is in motion, in search of a seat (Mclntyre ®. N. T. Cent. R. Co., 37 N. T. 387 ; B. c. 85 How. Pr. 36 ; affirming 8. c. 47 Barb. 515). But the company can not avail itself of this section, where the pas- senger was injured while riding on the platform of a car, there being no vacant seat therein (Willis v. Long Island R. Co., supra), nor where the notice was posted up outside the car, and was not shown to have come to 196 TEA2>rSP0ETATI0If OF his knowledge (Clark v. Eighth Ave. R. Co., 32 Barb. 657) ; and a notice to the eflFect, that no passenger should be "permitted to ride in that por- tion of any baggage car, which is used for storing and distributing bag- gage," will not exempt the company from liability to a passenger injured by a collision, while riding in that part of the car used* as a post-oflSce, with the knowledge and consent of the conductor (Carroll v. N. T. & N. H. E. Co., 1 Duer, 571). Nor is the company exempted from liability for injury to a passenger riding in a common box car, without springs, where no better accommodation is provided by the company, in the same train (Edgerton v. IST. T. & H. R. Co., 39 N. T. 337 ; afBrming s. c. 35 Barb. 389. See also Same v. Same, 35 Barb. 193). Liability of company for death from wrong- ful act. — Whenever tlie death of a person shall he caused by wrongful act, neglect, or default, and the act, neglect, or default, is such as would (if death had not ensued) have* entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the persons who, or the cor- poration which, would have heen liable, if death had not ensued, shall be liable to an action for damages, nothwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. (Laws 1847, chap. 450, § 1.) Nature of act eansingr death.— It is immaterial whether the death was immediate and instantaneous or consequential (Brown v. Buf- falo & State Line R. Co., 23 N. T. 191). Who liable.— Corporations are liable for wrongful act causing death (Baker v. Bailey, 16 Barb, 54); but a lessor is not liable for such wrongful act of the lessee (Norton v. WiswaU, 26 id. 618) ; nor will an action lie by the personal representatives of a brakeman, against a rail- road company, to recover damages under the act of 1847 (Sheman b. Rochester &c. R. Co., 15 id. 574). Territorial limit.— No action can be maintained under the acts of 1847 and 1849, where the injuries complained of, were inflicted with- out the state (Whitford v. Panama R. Co., 23 N. Y. 465 ; affirming s c 3 Duer, 67; Crowley «. Same, 30 Barb. 99 ; Vandeventer v. N. T. & N. H. R. Co., 27 iU-244; Mahler v. Norwich Transp. Co., 45 id. 236; Beach v. Bay State Co., 30 id. 433 ; reversing s. c. 27 id. 248 ; s. c. 16 How Pr 1) • and this, whether the company was a foreign corporation (Vandeventer PBBSONS AND PEOPEETT. 197 «. N. T. & N. H. R. Co., tupra ; Beach ®. Bay State Co., mpra ; Mahler ». Norwich Transp. Co., «Mpm), or a resident of this state (Whitford ®. Panama E. Co., swpra ; Crowley %. Same, mpra). Action prosecuted, for whose benefit.— Every such action shall be 'brouglit by and in the name of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the husband or widow and next of kin of such deceased person, and shall be distributed to such husband or widow and next of kin, in the proportion now provided by law in relation to the distribution of personal property of persons dying intestate. And in every such action the jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars with reference to the pecuniary injuries result- ing from such death to the husband or widow and next of kin of such deceased person. And the amount of damages recovered in any such action shall draw iaterest from the time of the death of such deceased person, which interest shall be added to the verdict and inserted in the entry of judgment in such action, provided that every such action shall be commenced within two years after the death of such deceased person. But nothing herein contained shall affect any suit or proceeding heretofore commenced and now pending in any of the courts of this state. (Laws 1847, chap. 450, §2; Am'd Laws 1849, chap. 256, § 1; Am'd Laws 1870, chap. 78, § 1.) Action, bow broug;bt. — ^Before the amendment of 1870, it was held that since Ihe husband was not next of kia to his wife, he could not recoyer damages under the statute, resulting from such death (Lucas v. N. T. Cent. R. Co., 31 Barb. 345 ; Dickens v. Same, 33 N. T. 158 ; revers- ing B. c. 38 Barb. 41 ; Green v. Hudson River R. Co., 33 Barb. 35 ; but see Same v. Same, 31 Barb. 360 ; 38 id. 9) ; but it is not indispensable in order to support the action, that the deceased should leave him sur- 198 TEANSPOETATION OF viving, in the words of the statute, " a widow and next of kin" (Quia v. Moore, 15 N. Y. 433; McMahon v. The Mayor &c. of N. T., 33 id. 643; Oldfield V. N. T. & Harlem R. Co., 14 id. 310 ; aflSrming s. c. 3 E. D. Smith, 103 ; TiUey «. Hudson River R. Co., 34 N. T. 471). Interest assignable. — A party's interest in the damages which may be recovered, is assignable (Quin v. Moore, 15 N. T. 433). Such a party is not disqualified to testify, on the ground that he, or she, is the person for whose immediate benefit the suit is prosecuted {Id). Pecuniary loss. — ^A pecuniary loss, is a loss of money, or of some- thing by which money, or something of money value may be acquired (Beach v. Ranney, 3 Hill, 309 ; Ransom ». N. T. & Erie R. Co., 15 N. T. 415) ; but the jury are not limited to the assessment of damages for the actual present loss that may be proved, but may go farther and compen- sate for the relative injiuy with reference to the future. They may com- pensate for the "pecuniary injuries" present and prospective (Oldfield ». N.T. & Harlem R. Co., 14 K. T. 310; affirming s. c. 3 E. D. Smith, 108). Thus it is not improper to charge the jury, in an action to recover dam- ages resulting fircm such death of the mother, that they may take into consideration, in assessing the damages, the loss of the nurture, instruc- tion, and physical, moral and intellectual training, which the mother gave to the children (TiUey v. Hudson River R. Co., 39 N. T. 353; Same D. Same, 34 id. 471 ; s. c. 23 How. Pr. 363) ; though otherwise, where such offspring are adults (Mclntyre s. N. Y. Cent. R. Co., 47 Barb. 515 ; s. c. affirmed, 37 N. Y. 387). But no pecuniary damage can be predicated - of the loss of the society of a wife. It is a case for which money cannot compensate, and cannot be estimated in money (Green i>. Hudson River R. Co., 33 Barb. 35). So, damages cannot be awarded in respect to the mental sufferings of the party {Id}. Ko deduction, however, should be allowed in assessing damages with reference to the death of a husband, on account of the wife having received the insurance effected upon deceased's life, for her benefit (Althof «. Wolf, 2 Hilt. 344). Proof of pecuniary damage.— Ko proof of pecuniaiy damage is necessary to sustain the action (Oldfield b. N. Y. & Harlem R. Co. 14 N. Y. 310 ; affirming s. c. 3 E. D. Smith, 103 ; Keller v. N. Y. Cent. R. Co., 34 How. Pr. 173). Thus it is not erroneous, for the jury, acting upon their knowledge, and without proof, to find that the services of a boy from eleven to twelve years of age, were valuable to the father, and to estimate their value (O'Mara «. Hudson River R. Co., 38 N. Y. 445) ; but damages (if any), in the case of the wrongful death of a child four years of age, should be nominal (Lehman v. City of Brooklyn, 39 Barb. 334). It is the province of the court, however, to give the jury definite instructions as to what may or may not properly be taken into considera- tion in estimating the pecuniary loss ; and if explicit instructions are refused, when asked, or erroneous instructions given, a new trial may be granted (Green ®. Hudson River R. Co., 33 Barb. 35). PEESONS AND PKOPEETT. 199 LiaMIity of servant of company, for wrong- ful act, causing death. — Every agent, engineer, conductor, or other person in tlie employ of such com- pany or person, through whose wrongful act, neglect, or default the death of a person shall have been caused as aforesaid, shall be liable to be indicted therefor, and upon conviction thereof may be sen- tenced to a state prison for a term not exceeding five (rears, or in a county jail not exceeding one year, or to pay a fine not exceeding two hundred and fifty dollars, or both such fine and imprisonment. (Laws 1849, ehap. 256, § 2.) XIV. OF RAILROADS HELD UNDER LEASE. Authority to lease.— It shall he lawful here- after for any railroad corporation to contract with any other railroad corporation for the use of their respec- tive roads, and thereafter to use the same in such manner as may be prescribed in such contract. But nothing in this act contained shall authorize the road of any railroad corporation, to be used by any other railroad corporation, in a manner inconsistent with the provisions of the charter of the corporation whose railroad is to be used under such contract. (Laws 1839, chap. 218, § 1.) The right to the rent reserved in a lease of a portion of the track of a raiboad company, passes with the title to such track &c. ( N. Y. Cent. R. Co. V. Saratoga & Schenectady R. Co., 39 Barb. 289). Transfer of stock. — Any railroad corporation created by the laws of this State, or its successors,^ now 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 corporations; and whenever the greater part of the capital stock of any such corporation shall have been so surrendered or transferred, the directors of the corporation taking such surrender or transfer, shall thereafter, ou a resolution electing so to do, to be RAILROADS HELB TJKBER LEASE. 201 entered on their minutes, become ex-officio the di- rectors 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 the said capital stock shall have been so surrendered or transferred, and a certificate thereof filed in the office of the Secretary of State, under the common seal of the corporation to whom such surrender or transfer shall have been made, the estate, property, rights, privi- leges and franchises of the said corporation whose stock shall have been so surrendered or transferred, shall thereupon vest in and be held and enjoyed by the said corporation to whom such surrender or trans- ' fer shall have been made, as fully and entirely, and without charge or diminution, as the same were before held and enjoyed, and be managed and controlled by the board of directors of the said corporation to whom such surrender or transfer of the said stock shall have been made, and in the corporate name of such corpora- tion. The rights of any stockholder not so surrender- ing or transferring his stock, shall not be in any way affected hereby, nor shall existing liabilities or the rights, of creditors of the corporation, where stock shall have been so surrendered or transferred, be in anyway affected or impaired by this act. (Laws, 1867, chap. 254, § 1.) See also to the same effect, Laws 1855, chap. 303, § 1. By the second section of this last mentioned act, the Rochester and Genesee Valley Raihoad was expressly exempted from the operation of said act. Lessee of railroad, to maintain fences.— And when the railroad of any railroad corporation shall be leased to any other railroad company, or to any person or persons, such lessees shall maintain fences on the sides of the road so leased, of the height and strength of a division fence, as required by law, 14 202 KAILEOADS HELD UNDER LEASE. with openings, or gates or "bars therein, at the farm- crossings of such railroad, for the use of the proprietors of the lands adjoining such railroads, and shall also construct, where the same has not already been done, and hereafter maintain cattle-guards at all road-cross- ings, suitable and sufficient to prevent horses, cattle, sheep and hogs from getting on to such railroad. And so long as such fences and cattle-guards shall not be made, and when not in good repair, such lessees and their agents shall be liable for damages, which shall be done by the agents or engineers of any such corporation, to any cattle, horses, sheep, or hogs there- on, and when such fences and guards shall have been duly made, and shall be kept in good repair, such lessee shall not be liable for any such damages, unless negligently or wUfully done. A sufficient post and wire fence of requisite height shall be deemed a lawful fence, within the provisions of this section, but no lessees of a raUroad corporation shall be required to fence the sides of said roads except when such fence is necessaiy to prevent horses, cattle, sheep and hogs from getting on to the track of the railroad, from the lands adjoining the same. (Laws 1864, chap. 582, § 2.) Lessees to make annual report.— Any rail- road corporation which may be the lessee of any other raib^oad shall, in addition to the powers and duties conferred and imposed by the act, entitled " An act in relation to railroads held under lease," passed April third, one thousand eight hundred and sixty-seven, be required to make to the State Engineer a report of such facts concerning the operation of said leased road or roads as the lessors would otherwise be required to make, and the lessors shall not be required to make such report. (Laws 1869, chap. 844, § 1.) XV. OF THE CONSOLIDATION OF RAILEOAD COMPANIES. When two or more companies may be con- solidated. — It shall and may "be lawM for any rail- road company or other corporation organized under the laws of this State, or of this State and any other State, and operating a railroad or bridge, either wholly within, or partly within and partly without this State, to merge and consolidate its capital stock, franchises and property with the capital stock, franchises and property of any other railroad company or companies organized under the laws of this State, or under the laws of this State and any other State, or under the laws of any other State or States, whenever the two or more railroads of the companies or corporations so to be consolidated shall or may form a continuous line of railroad with each other, or by means of any intervening railroad, bridge or ferry. (Laws 1869, chap. 917, § 1.) This act does not apply to street railroads (Laws 1869, chap. 917, § 7). What companies shall not consolidate.— No companies or corporations of this State, whose railroads run on parallel or competing lines, shall be authorized by this act to merge or consolidate. (Laws 1869, chap. 917, § 9.) Proceedings to effect consolidation.— Said consolidation shall be made under the conditions, pro- 204 THE CONSOLIDATION OF visions and restrictions, and with tlie powers hereinafter in this act mentioned and contained, that is to say : 1. The directors of the companies proposing to con- solidate may enter into a joint agreement tinder the corporate seal of each company for the consoKdation of said companies and railroads, and prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new corporation, the number and names of the directors and other officers thereof, and who shall be the first directors and officers, and their places of residence, the number of shares of the capital stock, the amount or par value of each share, and the manner of c«n verting the capital stock of each of the said companies into that of the new corporation^ and how and when directors and officers shall be chosen, with such other details as they shall deem necessary to perfect such new organization and the consolidation of said companies or railroads. 2. Said agreement shall be submitted to the stock- holders of each of the said companies or corporations at a meeting thereof called separately for the purpose of taking the same into consideration ; due notice of the time and place of holding said meeting, and the object thereof, shall be given by each company to its stockholders by written or printed notices addressed to each of the persons in whose names the capital stock "of such company 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 company, at least thirty days before the time of holding such meeting, and also by a general notice published daily for at least four weeks in some newspaper printed in the city, town or county where such company has its principal office or place of business ; and at the said meeting of stockholders the agreement of the said RAILROAD COMPANIES. 205 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 bal- lots shall be cast in person or by proxy, and if two- thirds of all the votes of all the stockholders shall be for the adoption of said agreement then that fact shall be certified thereon by the secretaries of the respective •companies under the seal thereof, and the agreement so adopted, or a certified copy thereof, shall be filed in the office of the Secretary of State, and shall from thence be deemed and taken to be the agreement and act of consolidation of the said companies ; and a copy of the said agreement and act of consolidation, duly ■certified by the Secretary of State, under his official seal, shall be evidence in all courts and places of the existence of said new corporation, and that the fore- going provisions of this act have been fully observed and complied with. (Laws 1869, chap. 917, § 2.) Consolidation perfected, when.— Upon the making and perfecting such agreement and act of con- solidation as hereinbefore provided, and filing the same or a copy thereof in the office of the Secretary of State as aforesaid, the said corporations parties thereto shall be deemed and taken to be one corporation by the name provided in said agreement and act, but such act of consolidation shall not release such new corporation :from any of the restrictions, disabilities or duties of the several corporations so consolidated. But nothing in this act contained shall 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 that rail- road, now known as the New York Central Railroad Company, and the rate of fare for way passengers over the track or tracks now 'operated by the said New York 206 THE CONSOLIDATION OF Central Railroad Company, shall continue to be two cents per mile and no more, wherever it is now restricted to that rate of fare. But nothing herein contained shall apply to street railroads. (Laws 1869, chap. 917, §3.) Effect of consolidation, — Upon the consumma- tion of said act of consolidation as aforesaid, all and singular the rights, privileges, exemptions and fran- chises of each of said corporations, parties to the same, and all the property, real, personal and mixed, and all debts due on whatever account to either of said cor- porations, as well as all stock subscriptions and other things in action belonging to either of said corpora- tions, 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 the said 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 said 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. (Laws 1869, chap. 917, § 4.) * Same. — ^The rights of all creditors of and all liens upon the property of either of said corporations, par- ties to said agreement and act, shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same,, and all debts and liabilities incurred by either of said corporations, except mortgaged, shall thenceforth attach RAILROAD COMPANIES. 207 to such new corporation, and be enforced against it and its property to the same extent as if said debts or habilities had been incurred or contracted by it. No suit, action or other proceeding now pending before any court or tribunal, in which either of said railroad companies is a party, shall be deemed to have abated or been discontinued by the agreement and act of con- solidation as aforesaid, but the same may be conducted in the name of the existing corporations to final judg- ment, or such new corporation may be, by order of the court, on motion, substituted as a party. Suits may be brought and maintained against such new cor- poration ia the courts of this State, for all causes of action, in the same manner as against other railroad corporations therein. (Laws 1869, chap. 917, § 5.) CoDsolidated company, how taxed.^The real estate of such new corporation, 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 corporation 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. (Laws 1869, chap. 917, § 6.) Fare allowed consolidated company. — Nothing in this act contained shall be so construed as to allow such consolidated company to charge a higher rate of fare per passenger per mile upon any part or portion of such consolidated line than is now allowed by law to be charged by each existing com- 208 CONSOLIDATIOK OF EAILEOAD COMPANIES. pany respectively, nor shall this act apply to street railroads ; and nothing in this act contained shall be so construed as to affect or impair in any way the validity of any contract now existing between the Buffalo and State line Railroad Company and the New York and Erie Eaiboad Company, (Laws 1869, chap. 917, § 7.) Application of general railroad act, to con- solidated companies. — All the provisions of the act entitled "An act to authorize the formation of rail- road corporations, and to regulate the same," passed April second, eighteen hundred and fifty, and of the several acts amendatory thereof or in addition thereto, shall be applicable to the new corporation so to be formed as aforesaid, so far as the same are now appli- cable to the railroad companies of this States which may be consolidated with any other company or com- panies by virtue of this act. (Laws 1867, chap. 917, § 8.) XVI, OF EAILROAD BONDS; AND HEEEIN OF THE MOETGAGE. Company may issue bonds, for loan,— Every corporation formed under this act shall, in addition to the powers conferred on corporations, in the third title of the eighteenth chapter of the first part of the Ee- vised Statutes, have power. 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 any amount so borrowed, and to mort- gage their corporate property and franchises to secure the payment of any debt contracted by the company for the purposes aforesaid (a) ; and the directors of the company may confer on any holder of any bond issued for money borrowed as ^.foresaid, the right to convert' the principal due or owing thereon into stock of said company (5), at any time not exceeding ten years from the date of the bond, under such regulations as the directors may see fit to adopt. (Laws 1850, chap. 140, § 28, subd. 10.) (a) "What may be mortgaged. Where, to Secure its bonds, a railroad company executed a mortgage on its road constructed or to be constructed, its real estate &c., then, or which should thereafter be owned by it ; Held, on foreclosure, that the mortgage covered and was a valid lien • on all the property di the railroad company, set forth in the mortgage and lawfully acquired for the purposes of its incorporation, whether such property was owned by the company at the time of recording the mort- gage, or was subsequentty acquired (Seymour v. Canandaigua &c. R. Co., 25 Barb. 284 ; s. c. 14 How. Pr. 531) ; nor is it material whether the road 210 EAILEOAD BONDS. , had or had not been entirely located at such time ; nor whether the loca- tion thereof, if previously made, was afterwards changed {Id). Nor is the mortgage objectionable on the ground of indefiniteness. It must be deemed to refer to the strip authorized to be acquired by subdivision four, of section twenty-eight, of the general act, as designated and located by sections fourteen and twenty- two of the same act {Id). So where the mortgage was executed by the company upon its lands, tracks &c., " together with all the locomotives, tenders, cars, carriages, tools and machinery owned or thereafter to be owned by the company, or in any way belonging or appertaining to said road, and to be used thereon," it was held valid, even as to property subsequently acquired (Benjamin v. Elmira &c. R. Co., 49 Barb. 441). The mortgage may include in its terms the rolling stock (Hoyle v. Plattsburgh &c. E. Co., 51 Barb. 45 ; affirming s. 0. sub nom. Bement v. Same, 47 id. 104). But a mortgage of all personal property, " in any way belonging or appertaining to the railroad of said company ;" Meld not to include canal-boats, though the same were considered as belonging to the company and accessory to the business of the road, forming a connection at the point where the road terminates (Parish v. Wheeler, 22 N. T. 494). The mortgage, the mort- gage bond, and a certificate endorsed on the latter, to the effect that such bond is included in the mortgage, are all to be considered together, since they are parts and parcels of the same security (Benjamin v. Elmira &c. R. Co., supra.) {b) Bonds convertible into stock. The directors are author- ized to issue stock in the conversion of the bonds of the company, and this is so, even though such issue increases the amount of the capital stock beyond that fixed by the charter (Belmont v. Erie R. Co., 52 Barb. 637). Railroad bonds when payable to order only. — ^It sLall be lawful for any person or persons own- ing and holding any railroad mortgage bonds, or other corporate bonds . (for wliicli a registry is not by law provided), heretofore issued, or which raay be hereafter issued, and made payable in this state, and which are made, payable to bearer, to render the same non-nego- tiable by the owner and holder indorsing upon the same and subscribing a statement that said bond is the prop- erty of such owner. And thereupon the principal sum of money mentioned in said bond shall only be payable to such owner or his legal representatives or assigns. (Laws 1871, chap. 84, § 1.) EAILEOAD B02*rDS. 211 Railroad bonds, how transferaMe.— The bonds described and referred to in tie first section of this act may be transferred by an indorsement in blank, giving name and residence of assignor, or they may be transferred by an indorsement payable to bearer or to the order of the purchaser (naming him), subscribed by the assignor, giving name and place of residence. (Laws 1871, chap. 84, § 2.) Where the payee named in the bond, assigned the same in blank, the title passes by delivery merely (Brainerd v. N. T. & Harlem R. Co., 10 Bosw. 332). Mortgage of real and personal property to Ibe recorded. — 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 county in or through which the railroad runs. (Laws 1868, chap. 779, § 1.) See Hoyle v. Plattsbnrgh &c. R. Co.. 51 Barb. 45 ; affirming s. c. std) nom. Bement v. Same, 47 Id. 104. Stockholder may redeem mortgage on fore- closure. — Whenever default shall be made by any railroad or plankroad company, in the payment of principal or interest of any bonds of such company, which are secured by a mortgage of the property of such company, it shall be lawful for each and every stockholder of said company, at any time during the process of such foreclosure, to pay to the mortgagees named in such mortgage, for the use of and benefit of the holder and holders of such bonds, such a proportion of the sum due and of such sum secured to be paid by the whole of the bonds secured by such mortgage, 212 BAILKOAD BONDS. as such stockholder's stock shall bear to the whole stock of said company : and on so paying such stock- holder shall, to the extent of such payment, become and be interested in said mortgage and protected there- by. (Laws 1853, chap. 502, § 1.) Same. — In case of the foreclosure of any mortgage given by any railroad or plankroad company, to secure the payment of any bond of such company, any stockholder of such company shall, for the period of six months after the sale under such foreclosure, have the right on paying to the purchaser or purchasers at or under such sale, or to the mortgagees named in such mortgage, for the use and benefit of said purchaser or purchasers, a sum equal to such proportion of the price paid on such sale, and the costs and expenses thereof, as such stockholder's stock in said company shall bear to the whole capital stock of said company : and on so paying, such stockholder shall be entitled to have the same relative amount of stock or interest in said railroad or plankroad company and its road, franchises and other property. (Laws 1853, chap. 502, § 2.) Mortgagee may purchase railroad, on fore- closure. — It shall be lawful for any mortgagee of any railroad and -the franchises thereof, to become the purchaser of the same, at any sale thereof under the mortgage, upon foreclosure by advertisement, or under a judgment, or decree, or otherwise, and to hold and convey the same, with all the rights and privileges belonging thereto or connected therewith. (Laws 1857, chap. 444, § 1.) Requisites of the complaint in an action by a trustee of the first mort- gage bonds, respecting the fund arising from a railroad mortgage (Coe «. Beckwith, 10 Abb. Pr. 396). RAILROAD BONDS. 213 Rights acquired Iby purchase of franchise. — *And whenever the purcliaser or purchasers of the real estate, track and fixtures of any railroad cor- poration which has heretofore been sold, or may be hereafter sold, by virtue of any mortgage executed by such corporation, or execution issued upon any judgment or decree of any court, shall acquire title to the same in the manner prescribed by law, such purchaser or purchasers may associate with him and them any niunber of persons, and make and ac- knowledge and file articles of association, as prescribed by this act ; such purchaser or purchasers and their associates shall thereupon be a corporation, with all the powers, privileges and franchises, and be subject to all the provisions of said act. (Laws 1850, chap. 140, § 5 ; Am'd Laws 1854, chap. 282, § 1.) As to whether such a provision creates a new corporatio?i, or con- tinues the old one under the same or a new name, consult Mosier v. Hil- ton, 15 Barb. 657. A stockholder of the Company may purchase its property at a sheriflPs sale, even below its value, for his own benefit, and where no fraud is shown, is not accountable to the other stockholders therefor (Mickles v. Rochester City Bank, 11 Paige, 118; affirmed. Id. 129 note). The rolling stock of a road is personal property and is leviable as such on execution (Beardsley «. Ontario Bank, 31 B. 619 ; Stevens v. Buflalo & N. T. R. Co., Id. 590), and iS not considered '^iwres, even as between a mortgagee and an execution creditor (Id). * The portion of the section here omitted, relates entirely to the election of directors to manage the affairs of the Company organized under the general act. Vide ante, p. 48. XVII. OF MUNICIPAL AID IN THE CONSTEUCTION OF KAILEOADS, AND HEREIN OF THE OOMMISSIONEES. The Petition. — ^Whenever a majority of tlie tax payers of any municipal corporation in tMs State, who are taxed or assessed for property, not including those taxed for dogs or highway tax only, upon the last pre- ceding assessment roll or tax list of said corporation, and who are assessed or taxed, or represent a majority of the taxable property, upon said last assessment roll or tax-list, shall make application to the county judge of the county in which such municipal corporation is situate, by petition, verified by one of the petitioners, setting forth that they are such majority of taxpayers, and are taxed or assessed for or represent such a majority of taxable property, and that they desire that such muni- cipal corporation shall create and issue its bonds to an amount named in such petition, and invest the same, or the proceeds thereof, in the stock or bonds (as said petition may direct) of such railroad company in this State as may be named in said petition, it shall be the duty of said cotmty judge to order that a notice shall be forthwith published in some newspaper in such county, or, if there be no newspaper published in said county, then in some newspaper printed in an adjoiaing county, directed to whom it may concern, setting forth that on a day therein named, which shaU not be less than ten days nor more than thirty days, from the date of such publication, he will proceed to CONSTRUCTION OF RAILROADS. 215 take proof of the facts set fortli in said petition as to the number of tax payers joining in sucli petition, and as to the amount of taxable property represented by them. Any solvent corporation or company assessed or taxed on said last assessment roll or tax list may join in such petition, and shall have all the rights and privileges under this act as other taxpayers. Any per- son, partnership or corporation upon whom it shall have been intended to levy a tax by virtue of said last assessment list and tax roll, under whatever name, and who shall have paid or are liable to pay such tax thus intended to be assessed and levied, shall be a tax payer, entitled to represent the property thus taxed, and as such entitled to all the rights and privileges of this act. The petition authorized by this section may be absolute or conditional; and if the same be condi- tional, the acceptance of a subscription founded on such petition, shall bind the railroad company accept- ing the same to the observance of the condition or con- ditions specified in such petition ; provided, however, that non-compliance with any condition inserted in such petition, shall not in any manner invalidate the bonds created and issued in pursuance of such petition. No municipal corporation shall issue its bonds under the pro- visions of this act for a greater amount than twenty per centum of the taxable property thereof as appears on its said last assessment list or tax roll. The words " muni- cipal corporation," when used in this act shall be con- strued to mean any city, town or incorporated village in this State, and the word " tax payer," shall mean any corporation or person assessed or taxed for prop- erty, either individually, or as agent, trustee, guardian, executor or administrator, or who shall have been in- tended to have been thus taxed, and shall have paid or are liable to pay the tax as hereinbefore provided, or 216 MUNICIPAL AID IN THE the owner of any non-resident lands, taxed as such^ not including tliose taxed for dogs or highway tax only, and the words "tax list or assessment roU," when used in this act shall mean the tax list or assessment roll of said municipal corporation last completed before the first presentation of such petition to the judge. But nothing herein contained shall be construed so as to include the city of New York, or the counties of New York, Kings, Erie, Westchester, Onondaga, and the town of Royalton in the county of Niagara, within the provisions of this act. (Laws 1869, chap. 907, § 1 ; Am'd Laws, 1870, chap. 173, § 1 ; Am'd Laws 1871, chap. 925, §1.) The legislature has power to enact laws enabling towns to subscribe for stock or bonds of a railroad company and issue their bonds, or raise- money by taxation to pay for the same (Bank of Rome v. Village of Eome, 18 N. Y. 38 ; Starin «. Town of Genoa, 23 N. Y. 439 ; Gould v. Town of Ster- • ling, Id; People, ex rel. Albany and Susquehanna R. Co. v. Mitchell, 35 N. Y. 551 : affirming s. c. 45 Barb. 308 ; Matter of Tax Payers of Kingston, 40 How Pr. 444). There is nothing in such an act repugnant to those consti- tutional provisions (Const., Art. I, § 6) designed to protect the citizen from being deprived of his property without due process of law, and restrain- ing the takLug of private property for public use, unless just compensa- tion is made therefor. The owner is not deprived of his property, nor is it taken from him for public use within the meaning of the constitution ,- nor is his property affected, except contingently and remotely, as in the case of taxation (Grant v. Courier, 34 Barb. 333) ; nor is the public moneys or property appropriated for local or private purposes ; nor the credit of the State pledged in aid of any individual association or corporation (Matter of Tax Payers of Kingston, supra). But no legislative enactments authorizing towns in their corporate capacities, to issue their bonds ; borrow money thereon, and donate the proceeds to the railroad company, is valid (Sweet ®. Hulbert, 51 Barb. 313). Where in a charter, conferring upon the municipality, authority to aid a raihoad company by subscribing to the stock of such railroad corporation, and raising the necessary funds therefor, but such authority was not to be exercised, until the question whether or not it was expedient for the city to create such liability, should be submitted to the people of the city, and a vote taken thereon for or against such subscription, it was held that such provision was not unconstitutional, nor a delegation of legisla- tive power, but a legitimate case of conditional legislation (Bank of CONSTKUOTION OF RAILROADS. 217 Kome V. Village of Rome, supra; Clarke v. City of Rochester, 24 Barb. 446 ; s. c. 14 How. Pr. 19-3 ; s. c. 5 Abb. Pr. 107 ; reyersing s. c. 13 How. Pr. 204). In the former case, in delivering the opinion of the Court of Appeals, Johnson, Ch J., said :— " the legislature did not com- pel the village to subscribe, but, creating by law the necessary machin- ery, left it to the tax payers to determine the matter.'' A municipal corporation cannot issue its bonds and invest the proceeds in railroad stock, unless such power has. been conferred by the legislature and ac- cepted by such municipal corporation (Town of Duanesburgh ». Jen- kins, 46 Barb. 294, and cases cited). An order granting municipal aid to a railroad corporation, upon the condition that the avails be used exclusively in the construction of its railroad, within the county in which the municipal corporation granting such aid waslocated,is void where the railroad company had no author- - ity to construct its road or any part thereof, in ihe said coimty (People ex rd. Averill «. Adirondack Company, 57 Barb. 656) ; and the action of the county judge in granting such order, is reviewable by certiorari The provisions of chapter 907 of the laws of 1869 were subse- quently extended and made applicable to the counties of Albany and Greene (Laws 1871, chap. 146, § 1) ; to the county of Niagara, excepting the town of Royalton, in that county (Laws 1871, chap. 388, § 1), and to the towns of Concord, Boston, Hamburgh, East Hamburgh, Colden and Sardinia, in the county of Erie (Laws 1871, chap. 64, § 1). The ■ act- was also amended by striking out the 'fvords Seneca, Yates and Ontario,, wherever they occurred in the same (Laws 1870, chap. 173, § 1). The amendment of 1871 (chap. 925, § 1), substantially embraced in its pro- visions, these several extensions and amendments. Hearing. — It shall be the duty of the said judge at the time and place named in the said notice to pro- ceed and take proof as to the said allegations in said petition, and if it shall 'appear satisfactorily to him that the said petitioners, or the said petitioners and such other tax payers of said municipal corporation as niay then and there appear before him and express a desire ta join as petitioners in said petition, do represent a ma- jority of the tax payers of said municipal corporation, as shown by the last preceding tax list or assessment^ roll, and do represent a majority of the taxable property upon said list or roll, he shall so adjudge and determine, and cause the same to be entered of record in the office. 15 218 MUNICIPAL AID IN THE of the clerk of tlie county in wMcli said municipal corporation is situated, and suci. judgment and tlie record thereof, shall have the same force and effect as other judgments and records in courts of record in this State ; and in case any county judge, to whom any such petitions may have been presented, shall be de- clared incompetent, or ineligible, or in any manner dis- qualified to hear the same, by any court on certiorari from any determination of such county judge, in any proceeding under this act had before him, the original petitions, filed with the county clerk in such proceed- ing and on such determination, may be taken from file and presented to a judge of an adjoining county or a justice of the Supreme Court ; and in all such cases the same proceedings may be had before such county judge or justice of the Supreme Court as are required by the provisions of this act. The judge shall file the petition as part of the judgment roll, and on making his final determination in any case, he shall forthwith publish notice thereof for three weeks, at least once in each week, in the same newspaper in which notice of such hearing was published as ordered. (Laws 1869, chap. 907, § 2 ; Am'd Laws 1871, chap. 925, § 2.) Eyidence of consent. — ^Whenever any munici- pal corporation in this State that has heretofore issued its bonds in aid of any railroad, upon the written con- sent of taxpayers, or whenever any holder of such bonds so heretofore issued shall desire to perpetuate the proof of such consent in the manner hereinbefore provided for the perpetuation of the proof of such con- sent, as to bonds which may be issued under the pro- visions of this act, application for that purpose may be jfi&de to thp county judge of the county in which such municipal corporation is situated ; and it shall be law- COKSTEUCTIOir OF EAILEQADS. 219 ful for sucli judge, after notice to whom it may con- cern in manner as herein before provided, to proceed to take proof concerning the allegations in such peti- tion ; and if it shall be proved to his satisfaction that aU the consents necessary to be obtained before such bonds could be lawfully issued were obtained, he shall find the facts, and so adjudge and determine ; and such judgment and the record thereof, shall have the same force and effect as other judgments and records in other courts of record in this ■ State. (Laws 1869, chap. 907, § 9.) Defects in the consent of the taxpayers maybe cured by a subsequent legislative enactment (People ex rel. Albany & Susquehanna R. Co. ®. MitcheU, 35 N. T. 551 ; affirming s. c. 45 Barb. 308). Several local acts relative to municipal aid to certain companies had been passed previous to the general act of 1869. The provisions of sec- tion one, chapter six hundred and ninety-five, laws 1866, must be con- strued as applying to them. The provisions of this act read as follows: " The original written consent, duly acknowledged or proved, of the tax- payers to the loaning of money on the faith and credit of any town or city, for the issuing of bonds of such town or city, to aid in the construc- tion of any railroad in this State, shall be recorded and filed in the office of the clerk of the county in which such towns or cities maybe situated, and a copy thereof, duly certified by the said county clerk, shall be filed in the office of the clerk of the town or city wherein the respective prop- ierty aflfected thereby is situated, any law requiring a different filing to the cbntrary notwithstanding." Appointment of commissioners.— If the said judge shall adjudge and determine that such petition- ers do represent a majority of such taxpayers as afore- said, and a majority of such taxable property, as afore- said, it shall be his duty forthwith to appoint and commission three persons who shall be freeholders, residents and taxpayers within the corporate limits of such corporation, to be commissioners for the purposes hereinafter named. The said commissioners shall hold their offices for five years, and until others are appointed 220 MUKIOIPAIi AID IN THE by tlie county judge of said county, and shall, before entering upon tte duties of their office, each make oath faithfully to discharge all the duties thereof All va- cancies in such commission shall also be filled by such county judge as they occur. Said commissioners shall each receive the sum of three dollars per day for each day actually engaged in the discharge of their duties, and their necessary disbursements, to be audited and paid by the usual disbursing officer of sudi municipal corporation. A majority of such commissioners, at a meeting of which all have notice, shall constitute a quo- rum, and may exercise the powers of the commission. (Laws 1869, chap. 907, § 3.) Powers of commissioners. — It shall be compe- tent for any corporation, in aid to the construction of whose railroad' bonds shall have been authorized to be issued by any municipal corporation in this State, to enter into any agreement with the commissioners ap- pointed to issue said bonds, limiting and defining the times when and the proportions in which said bonds or their proceeds shall be delivered to said corpo- ration, and the place or places where and the pur- poses for which such bonds or their proceeds shall be applied or used, and any such agreement in writing, duly executed by such corporation and a majority of such commissioners, shall, in all courts and places, be valid and effectual. And such commissioners shall not be compelled by any court to deliver such bonds or their proceeds to such corporation, until such agree- ment shall be executed if required by them. But in case such commissioners and such railroad corporation cannot agree, or in case the said commissioners refuse to make any agreement, then in either case the Supreme Court at general term may, on motion and after hear- CONSTRUCTION OF KAILEOADS. 221 ing all parties interested, determine upon what terms and conditions said bonds should be delivered to said railroad corporations, having due regard to the public good, the rights of said municipal corporation whose bonds are authorized to be issued, and the rights of said railroad corporation, and shall have power to com- pel the delivery of said bonds on such terms and con- ditions, and in such manner as it shall thus determine upon, by the usual process of the court. Said, court shall also, by the usual process of said court in like • cases, have power at anytime to prevent by injunction the issue of said bonds, or any portion thereof, on notice and for good cause shown. And any justice of said court may grant a temporary injunction until such motion can be heard. (Laws 1870, chap. 507, § 1 ; Am'd Laws 1871, chap. 925, § 5.) Same. — Such commissioners are further empowered and directed to subscribe in the name of the municipal corporation which they represent to the stoct or bonds of the railroad company named in such petition (as the petition may direct), to an amount equal to the amount of bonds so created by them, and to pay for the same by exchanging the said bonds therefor at par ; or they may, at their discretion, sell and dispose of the said municipal corporation bonds so created by them at rates not less than par, and invest the proceeds thereof in such stock or bonds of such raUroad company as may be directed in said petition. They shall represent, either in person, or by proxy, such municipal corpora- tion at all meetings of such railroad bondholders or stockholders (a). Such stock or bonds so purchased by said commissioners may be sold by them before the maturing of the bonds of such municipal corporation only upon the order of the county judge of the county, 222 MUNlCrPAI/ AID IN THE made upon the petition of a majority of tlie tax payers of said municipal corporation representing a majority of the taxable property thereof, as shown by the last preceding tax list or assessment roll ; and' the proceeds from such sale shall be forthwith paid by them to the treasurer (or other proper officer) of such municipal corporation, to be by him invested in a sinking fund, as hereinafter provided. Such commissioners may vote for directors on the stock of such town, village or city. (Laws 1869, chap. 907, § 5.) (a) The town by taking stock, becomes a stockholder and sustain* the same relation to the company as an individual stockholder. The issue of bonds, is only the machinery employed to pay for the stock (Matter of Tax-payers of Kingston, 40 How. Pr. 444). The commissioners are to causts to be made and executed with all reasonable dispatch, the bonds of the municipal corporation (Laws 1869, chap. 907, § 4 ; Am'd Laws 1870, chap. 789, § 1; Am'd Laws 1871, chap. 383, § 1 ; Am'd Laws 1871, chap. 935, § 6), and may issue the same payable at any time they may elect, less than thirty years (Id). They are also to provide within three years from the time of issuing said bonds, for the annual payment of at least one per cent of the same to constitute a sinking fund, so as to secure the final liquidation of the bonds within twenty-five years after their date (Laws 1863, chap. 907, § 6). In case the payment of the principal orinterest of such bonds issued by any village, are not paid, the commissioners have certain additional duties to perform (Laws 1870, chap. 300, § 1) ; for a violation of which, they are subject to a penalty not exceeding |1,000, nor less than $350' (Id. § 3). Same. — ^The commissioners appointed under and by virtue of the several acts to facilitate the con- struction of railroads in this State, and who have been duly authorized under said laws to issue bonds of any town, city or village therein, are hereby required to present before the boards of auditors of their respective towns, cities or villages, whose duty it is annually to examine and audit the receipts and disbursements of either town, city or village officers, at each annual meeting of said boards of town auditors, or the audit- OONSTEUCTION OF KAILEOADS. 223 ing board in any city or village, all sncli bonds and coupons thereof which have been paid by them re- spectively dnring the year then ending ; also to render a written statement or report annually to said board, showing ia items all their receipts and expenditures, with vouchers. It shall be the farther duty of said commissioners to loan on proper security or collaterals or deposit in some solvent bank or banking institution, at the best rate of interest they may be able to obtain (not exceeding seven per cent), all moneys that shall come into their hands by virtue of their office, and not needed for current liabilities, and all interest or earnings accruing from such loans or deposits shall be credited to their respective towns, cities or villages, and ac- counted for m their annual settlements with the said boards of auditors. (Laws 1871, chap. 537, § 1.) Moneys received by railroad, how applied. — ^The moneys received by any railroad company from any such commissioners, or from the sale of any bonds of any mxmicipal corporation which they may receive under the provisions of this act, shall be by the said company faithfully applied to the construction and equipment of such raifroad, and to no other purpose ; and any other use thereof by any officer or agent of such company shall be deemed to be a misdemeanor, and shall be punished on conviction by imprisonment in the county jail for a term not exceeding five year^. (Laws 1869, chap. 907, § 7.) The honds. — ^It shall be the duty of such com- missioners, with all reasonable dispatch, to cause to be made and executed the bonds of such municipal cor- poration, attested by the seal of such corporation affixed 'thereto, if such corporation has a common seal, 224 MUNICIPAIi AID IN THE and, if not, then by tljeir individual seals, and signed and certified by said commissioners, wto are hereby anthorized and empowered to fix sucli common seal thereto, and to sign and certify such bonds. Such bonds shall become due and payable at the expiration of thirty years from their date, and shall bear interest at the rate of seven per cent per annum, payable semi- annually, and shall not exceed in amount twenty per cent of the entire taxable property within the bounds of said municipal corporation, as shown by said tax list, nor shall they exceed in amount the amount set forth in such petition. The said bonds shall also bear interest warrants, coiTesponding in number and amounts with the several payments of interest to become due thereon, but the commissioners may agree with any holders to register any such bonds, in which case the interest warrants on the registered bonds shall be sur- rendered, and the interest shall be payable only on the production of the registered bonds, which shall then be transferable only on the commissioners' records. The savings banks of this State are authorized to in- vest in said bonds not to exceed ten per cent of their deposits. All taxes except school and road taxes, col- lected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village, or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad, shall be paid over -to the treaslirer of the county in which said town, city or village lies. It shall be the duty of said treasurer, with the money arising from taxes levied and collected as aforesaid, which has heretofore been, or shall hereafter be paid to him (including the interest thereon), to purchase the bonds of said town, issued by said town, to aid in CONSTKUCTION OF KAILEOADS. 225 the construction of any railroad or railroads, wlxen the same can be purchased at or below par ; tlie bonds so purchased to be immediately canceled by said treas- urer and the county judge, and deposited with the board of supervisors. In case said bonds so issued cannot be purchased at or below the par value thereof, then it shall be the duty of said treasurer, and he is h.ereby directed, to invest said money so paid to him as above mentioned, with the accumulated interest thereon, in the bonds of this State, or of any city, county, town or village thereof, issued pursuant to the laws of this State, or in bonds of the United States. The bonds so purchased, with the accumulated interest thereon, shall be held by said county treas- urer as a sinking fund for the redemption and pay- ment of the bonds issued or to be issued by said town, village or city, in aid of the construction of said railroad or railroads. In case any county treasurer unreasonably refase or neglect to comply with the provisions of this act, any tax payer in any town, village or city theretofore having issued bonds in aid of the construction of any railroad or railroads, is hereby authorized to apply to the coimty judge, on petition, for an order compelling said treasurer to execute the provisions of this act. And it shall be the duty of said county judge, upon a proper case being made, to issue an order directing said county treasurer to execute the provisions of this act. All provisions of law now in force, relating to the enforcement of the decrees or orders of the Su- preme Court, are hereby declared to apply to and de- volve upon said county judge in the enforcement of said order. The county treasurers of the several coun- ties of this State, in which one or more towns are situ- ated, which have issued bonds for railroad purposes, shall execute a bond, with two sufficient sureties to be 226 MUNICIPAL AID IN THE approved by tlie county judge of tlie counties respec- tively, to the People of the State of New York, in such penal sum as may be prescribed by the board of supervisors of the respective counties, conditioned for the faithftd performance of the duties devolving upon him, in pursuance of the provisions of this act. In case of a vacancy in the office of commissioners, or in case all commissioners are notified of any meeting, a majority- of the commissioners shall have and exercise all the powers and duties of the three commissioners. The said commissioners may issue the said bonds, pay- able at any time they may elect, less than thirty years, any law heretofore passed to the contrary, but they shall not so issue said bonds that more than ten per cent of the principal of the whole amount of bonds issued shall become due or payable in any one year. (Laws 1869, chap. 907, § 4 ; Am'd Laws 1870, chap. 789, § 1 ; Am'd Laws 1871, chap. 283, § 1 ; Am'd Laws 1871, chap. 925, § 6.) Bonds to Ibe registered. — The bonds of any municipal corporation which may be issued under the provisions of this act shall be registered in the office of the county clerk of the county in which such cor- poration is situated, and shall have the words " regis- tered in the county clerk's office " written or printed upon them, attested by the official seal of said clerk ; and said clerk shall receive for each attestation the sum of twenty cents. (Laws 1869, chap. 907, § 8.) When non-negotiaWe.— It shall be lawful for the owners or holders of any bond issued by any vil- lage, town, city or county in this State, pursuant to law, and made payable to the bearer thereof, to render such bonds non-negotiable, except by the owner's in- CONSTKUOTION OF KAILROADS. 227 dorsement, by indorsing upon the same, and subscrib- ing a statement, that said bond is the property of such owner, and thereupon the priiicipal sum of money mention in said bond shall only be payable to said owner, or his legal representatives or assigns. (Laws 18V0, chap. 438, § 1.) Payment of the Bonds.— The bonds of any municipal corporation, issued pursuant to the pro- visions of this act, shall be a charge upon the real and personal estate within the limits thereof, and the prin- cipal and interest thereof when due (or so much thereof as shall fail to be met by the interest on such railroad bonds, or the dividends on such railroad stock, or the sinking found herein provided for), shall be collected and paid in like manner as other debts, obligations and charges against the said mxmicipal corporation. The said commissioners shall also pro- vide, within three years from the time of issuing said bonds, for the annual payment of at least one per cent of the same, to constitute a sinking fund, so as to secure the final liquidation of said bonds within twenty-five years after their date, and for that purpose they shall receive and apply annually the surplus dividends on the stock held by said towns over the amount necessary to pay the annual interest on said bonds, and if the amount of such surplus dividends is not sufficient for the annual payment of said one per cent, and the said commissioners shall not have received sufficient from the sale of the stock belonging to the town to pay the same, and from other sources as herein provided, then the deficiency shall be reported by said commissioners to the board of supervisors, to be levied and raised annually in the manner herein provided for paying the interest on said bonds. The 228 MUNlOIPAIi AID IN THE treasurer (or other proper oificer of sucL. municipal corporation) shall have the custody of any railroad bonds or certificates of stock that may be subscribed for as aforesaid, and shall collect the interest upon any such bonds, or the dividends upon such stock, as it becomes due or is made payable, and shall apply the same towards the payment of the interest from time becoming due upon the said bonds of said municipal corporation ; any surplus of interest or dividends, after providing for the interest upon the bonds of said municipal corporation, shaU. go to make up a sinking fund for the redemption of the principal of said cor- poration bonds. In case the stock or bonds purchased as aforesaid are sold by said commissioners, such treasurer or other officer shall also invest the proceeds thereof in a like sinking fund ; and in case the same are not sold when the said bonds hereby authorized to be created and issued by said commissioners shall mature, and the principal thereof become payable, the commissioners shall sell the same, or so much thereof as shall be necessary, to pay the outstanding principal sxun due on such bonds in full, and shall pay the pro- ceeds thereof to such treasurer or other proper officer, to be by him applied to the- redemption and payment of such bonds. (Laws 1869, chap. 907, § 6.) Same. — lu all cases where bonds of any town, village or other municipal corporation may have been or shall hereafter be issued according to. law, and in all cases where the payment of the principal or in- terest of such bonds shall not have been otherwise paid or provided for, the same shall be a charge upon the real and personal -property of such town, village or municipal corporation, and shall be assessed, levied, collected, and paid in like manner as other debts, CONSTRUCTION OF EAILEOADS. 229 obligations and charges against sucli town, village or municipal corporation, except that in villages the same shall he assessed, levied and collected by the trustees thereof in the following manner : The commissioners of said village, if any there be, who are or have been duly authorized by law to issue said bonds, or if there shall be no commissioners, then the said trustees, or a majority of them, shall, on or before the first day of January of each year, prepare and file with the clerk of the said village corporation a detailed statement of the amount of bonds which may have been issued by said village, «r which may be a charge upon the same, with the amount of principal and interest which may have become due, or which shall become due during the succeeding year, and such amount of principal and interest which shall be already due, or which sh'all become due during such succeeding year, shall be by the trustees of said village assessed and levied upon the taxable property of said village, and collected with the other taxes which shall be collected from time to time for village purposes ; and whenever, through in- advertence, neglect, or other cause, any portion of the principal or interest due as aforesaid upon such bonds by such municipal corporation shall not have been paid, the same shall be assessed and collected at the first assessment and collection of taxes by such muni- cipal corporation after such failure or omission to pay the same. (Laws 1870, chap. 300, § 1.) Same. — Any commissioner, officer or officers whose duty it shall be to make reports as provided for in the first section of this act, or to make provision for the payment of the principal or interest of such bonds as aforesaid, and who shall fail or refuse to make such reportj or to provide for such payment, 230 MUKIOrPAL AID IN THE shall "be liable to a penalty not exceeding one thousand doUars, nor less than two hundred and fifty dollars, to be sued for and recovered by the holder of any of the aforesaid bonds or obligations. (Laws 1870, chap. 300, §2.) Disposition of redeemed Bonds.— The commis- sioners appointed under and by virtue of the several acts to facilitate the construction of railroads in this State, and who have been duly authorized under said laws to issue bonds of any town, city or village therein, are hereby required to present before the boards of auditors of their respective towns, cities or villages, whose duty it is annually to examine and audit the receipts and disbursements of either town, city or vil- lage officers, at each annual meeting of said boards of town auditors, or the auditing board in any city or village, all such bonds and coupons thereof which have been paid by them respectively, during the year then ending. (Laws 1871, chap. 537, § 1.) Same. — ^It shall be' the duty of the several boards of town auditors, or any auditing board in the cities or villages of this State, before whom such bonds or cou- pons thereof may be presented in pursuance of section one of this act, to cancel the same by cutting out a portion of each bond or coupon so presented, in such manner as to effectually prevent the repayment of the same. (Laws 1871, chap. 537, § 2.) Same. — AU bonds and coupons so presented and canceled shall be deposited for safe-keeping and future reference in the office of the clerk of the county in which such towns, cities or villages are respectively situated, and said boards of town auditors or auditing OONSTEUCTION OF RAILROADS. 231 boards in any city or village shall prepare and sign a certificate showing a full description of all bonds or coupons so canceled and deposited by them, and shall file said certificate in the office of the clerk of their respective towns and villages, and in cities in the office of the clerk of the city. (Laws 1871, chap. 537, § 3.) Municipal aid restricted.— Nothing herein con- tained shaU be construed as permitting any municipal corporation, in or through which a railroad has already been constructed and is in operation, to aid in the construction of any other raUroad under the provisions of this act, unless the railroad already built is assessed or taxed upon the assessment roll specified in this act ; provided, however, that this section shall not apply to any raUroad exempted from taxation by any law of this State. (Laws 1869, chap. 907, § 10 ; Am'd Laws 1871, chap. 925, § 3.) The cities, towns, villages or municipalities in the counties of Cayuga and Tompkins are expressly exempted from the operation of this sec- tion (Laws 1871, chap. 260, § 1). Proceedings to obtain town aid, how re- viewed, — ^Review of proceedings under the acts hereby amended (a) shall be by certiorari, and no writ of certiorari shall be allowed unless said writ shall be allowed within sixty days after the last publication of notice of the judge's final determination, as provided in section two of this act (5), and, where such judgment is so entered prior to the passage of this act, unless said writ is allowed within sixty days after the passage of this act. On the return of the certiorari, the court out of which the same issued shall proceed to consider the matter brought up thereby, and shall review all questions of law and of fact determined for or against 232 CONSTRUCTION OF EAILEOADS. either party Tdj tlie county judge. And tlie said courts or court of appeals in appeals now pending, and ia all future proceedings, may reverse or affirm or modify, in all questions of law or fact, his final determination, or may remand tlie w;hole matter back to said county judge to be again heard and determined by him. And it may by order direct that he proceed thereon de novOy in the same manner and with the same effect as if he had taken no action therein, or it may by such order specify how and in what particulars he shall hear and determine the same on such remanding thereof. Ap- plications for certiorari shall be on notice. On review, persons taxed for dogs or highway tax only shall not be counted as taxpayers, unless that claim was made before the county judge. The county judge shall forthwith proceed to carry into effect all orders of any court on review under this act. (Laws 1871, chap. 925, § 4.) (as) Laws 1869, chap. 907 ; Laws 1870, chap. 507. People ex rel. Av- erill V. Adirondack Company, 57 Barb. 656. (J) Laws 1871, chap. 925, § 3, mde ante p. 215. XVIII, OF THE ASSESSMENT OF THE RAH^ROAD FOR THE PURPOSES OF TAXATION. Railroads subject to taxation. — All lands and aU personal estate within tliis State, whether owned by individuals or by corporations, shall be lia- ble to taxation, subject to the exemptions hereinafter specified. (1 Rev. Stat. 387, § 1.) Railroads constructed on Indian lands, are liable to taxation on such lands (The People ex rel. Erie R. Co. v. Beardsley, 53 Barb. 105). Consolidated railroad company, how taxed. — The real estate of such new corporation, situate withia this State, shall be assessed and taxed in the several towns and cities where the same shall be situ- ated 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 corporation shall in like manner be as- sessed and taxed in. this State, as the number of miles ■ of its railroad situate in this State bears to the number of nules of its railroad situate in the other State or States. (Laws' 1869, chap. 917, § 6.) To be assessed, where.— The real estate of all incorporated companies liable to taxation, shall be assessed in the town or ward in which the same shall lie, in the same manner as the real estate of individ- uals. AU the personal estate of every incorporated 16 234 ASSESSMEliKC FOB THE 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 na principal office, or place for transacting its financial concerns, then in the town or ward where the opera- tions of such company shall be carried on.* (1 Rev. Stat. 389, § 6.) Intent of act. The laws of 1857 (chap. 536, § 1), construed this section in its application to railroad companies ; but such enactment was repealed the following session (Laws 1858, chap. 110, § 1). The intent of the section is to give the inhabitants of the town or ward where the land is situated, the benefit of the tax on the real estate, and the in- habitants of the town or ward where the principal office of the company is, the benefit of the tax on the personal property (Albany & Schenee- tady R. Co. v. Osbom, 13 Baab. 333 ; Mohawk & Hudson E. Co. ■». Clute, 4 Paige, 384 ; Utica Cotton &c. Co. ■». Supervisors of Oneida, 1 Barb. Ch. 433). Residence for purpose of taxation. The railroad company is to be assessed with reference to its real estate, as a creditor of each town and ward through which its road extends (People ex rel. Hudson River R. Co. v. Pierce, 31 Barb. 138 ; People ex rel. Buffalo «&c. R. Co. V. Fredericks, 48 id. 173 ; s. c. 33 How. Pr. 150 ; criticising N. T. & Harlem R. Co. v. Lyon, 16 Barb. 651 ; Fowler ». Westervelt, 40 id. 374 ; s. c. 17 Abb. Pr. 59. See also Belden v. N. Y. & Harlem R. Co., 15 How. Pr. 17 ; Sherwood ®. Saratoga &c. R. Co., 15 Barb. 560 ; Johnson v. Cay- uga &c. R. Co., 11 id. 631 ; Pond ®. Hudson River R. Co., 17 How. Pr. 548), and where the same property is taxed in two townships, but is only liable to taxation in one, the company may apply for an interpleader to compel the tax collectors to settle the right to such tax between them- selves (Mohawk & Hudson R. Co. v. Clute, 7 Paige, 384). Manner of assessment. — All real and per- sonal estate liable to taxation, shall be estimated and assessed by the assessors at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor. (1 Rev. Stat. 393, § 17.) * The remainder of the section, here omitted, relates to the assessment of of toU bridge companies. PUBP0SE8 OF TAXATION. 235 Yalaation of Road. This section was amended in 1857 (chap. 536, § 2), but so much of the amendment as required special notice to be given to the railroad company upon the completion of the assessment roll, was afterwards repealed (Laws 1858, chap. 110, § 1). The assessors are to ascertain the actual value of the land within their town, with the erections or fixtures thereon, at the time of the assessment, irrespective of the consideration whether the road is well or badly managed, or whether it is profitable to the stockholder or not (Albany & Schenectady R. Co. V. Osbom, 13 Barb. 233 ; Albany & West Stockbridge R. Co. v. Town of Canaan, 16 Barb. 244). They inay consider the cost of the real estate, and the productiveness of its use, as part of the data, from which to judge of its value, and in order to enable them to judge how valuable that portion of the road in their town is, they are entitled to regard it as an essential portion of a valuable and completed railroad (People ex rel. Buffalo &c. R. Co. v. Fredericks, 48 Barb. 173 ; s. c. 38 How. Pr. 150). Capital liable to taxation.— All moneyed 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. (1 Rev. Stat. 414, § 1.) How taxed. Such capital stock is to be assessed at its actual value, and taxed in the same manner as real and personal estate (Laws 1857, chap. 456, § 3). Such portion of the capital of the company, as is invested in the railways, fixtures and real estate necessary for the opera- tion of the railroad, is taxable as real estate (1 Rev. Stat. 387, § 2) ; and the residue which remains, after deducting all the company's real estate, including the railway itself, from the whole amount of capi- tal, is taxable as personal estate (Mohawk & Hudson R. Co. v. Clut^, 4 Paige, 384). Statement required of company. The provisions of the twenty-three sections of title four, chapter thirteen, of the first part of the Revised Statutes, entitled "Regulations concerning the assessment of taxes on incorporated companies, and the commutation or collection thereof," under which the taxation of railroad companies had therefore been regulated (Mohawk & Hudson R. Co. «. Clute, 4 Paige, 384), were declared by the Laws of 1857, chap. 536, § 0, not applicable to railroad companies, and five additional sections were added to the said title, to meet such cases. These new sections, however, were repealed the follow- ing year (Laws 1858, chap. 110, § 1). Upon the well settled principle that the repeal of a repealing statute revives the act first repealed (Wheeler «. Roberts, 7 Cow. 536), it would seem that the application of the 236 ASSESSMENT FOB THE •twenty three sections of said title four, to railroads, is now revived. The 3)rovisions of this title, in order to enable the assessors to ascertain what part of the capital stock is taxable as personal estate, require the presi- -dent or other proper officer of the company, to deliver to the assessors (as also to the comptroller) a statement under oath, showing the amount -of capital paid in, or secured; the town or ward in which the principal office, or place of transacting the financial business of the company is situated, and specifying the real estate owned by the company, the places where the same is situated, and the actual amount paid for it by the company (1 Eev. Stat. 414, 415, §§ 3, 3). Section four prescribes a penalty of $350 for neglect to make such statement. The court will not interfere by injunction to relieve a company against its own mistake in its written statement, after the town and county officers have acted there- on (Mohawk & Hudson R. Co. v. Clute, mprd). The duties of the assessors in making up the assessment roll, are defined in the sixth sec- tion of the same title. If the company deems itself aggrieved by the assessment roll, it is entitled to a hearing before the assessors (1 Rev. Stat. 393, § 20; see also Laws 1857, chap. 536, § 3). But although the assessors are bound to " hear and examine " such applicants, they are not thereby subjected to an arbitrary rule (People ex rel. Buffalo &c. R. ^Co. V. Fredericks, 48 Barb. 173). They may, nothwithstanding such ex- amination, fix the value at such sum as they deem just, even though they grossly err in their estimate, and a tax based on such assessment, the pro- ceedings being regular, and the assessors having jurisdiction, cannot be assailed, unless the assessed value of the property is so outrageously ex- aggerated as to point clearly to corruption or fraud (Albany &c. R. Co. «. Town of Canaan, 16 Barb. 344). But it seems, that the statement de- livered to the assessors should be regarded as prima facie evidence of value (People ex rel. TS. Y. Cent. R. Co. v. Ross, 15 How. Pr. 63). The assessors, however, are under no obligation to allow such statement to have any weight, when not delivered untU after the completion of the assessment roll {Id). Where the assessment stated the length of the road, but not the number of acres of land assessed to the company: Held, that such omission was at most an irregularity, and did not affect its TaUdity (Albany &c. R. Co. ■». Town of Canaan, supra). Annual statement to be delivered to county treasurer. — It shall be the duty of the clerk of the board of supervisors of the several counties of this State (except New York and Kings counties), within five days after the making out or issuing of the annual tax warrants by the board of supervisors of their respective counties, to prepare and deliver to the county treasurer a statement showing the title of all railroad PURPOSES OF TAXATION. 23T corporations in such, county, as appears on tlie last assessment roll of the towns or cities in sucli county, the valuation of the property, real, and personal, of such corporation in each town or city, and the amount of tax assessed or levied on such valuation in each town or city in their county. (Laws 1870, chap. 560,, Tax, to whom paid.— 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. (Laws 1870, chap. 506, § 2.) Same. — Nothing in this act shall be construed ta prevent any raiboad 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 nine hundred and seven of the session laws of eighteen hundred and sixty-nine. (Laws 1870, chap. 506, § 5.) Tax, how collected.— In case any railroad com- pany shall faU to pay such tax within said thirty days, it shaU 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 provided by law, together with five per cent fees ; but no town or city collector shall collect 238 ASSESSMENT FOK THE any tax levied or assessed upon tte property of any railroad company in said counties by tlie supervisors of the county until tlie receipt of such notice from the county treasurer. (Laws 1870, chap. 506, § 3.) Payment, how credited.— 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 amounts shall ex- ceed the stLDi due from said town or city, the surplus shall, 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. (Laws 1870, chap. 506, § 4.) Yaluation of railroad property apportioned among school-districts. — It shall be the duty of the town assessors, within fifteen days after the com- pletion of their annual assessment list, to apportion the valuation of the property of each and every railroad 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, according 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. (Laws 1867, chap. 694, § 1.) The apportionment. — Such apportionment shall be in writing, and shall be signed by said assessors, or a majority of them, and shall set forth the number of PUEPOSBS or TAXATION. 239 «acli district and tlie amount of tlie valuation of llie property of each, railroad company, apportioned to •each, of said districts ; and such apportionment 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 valuation 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 assessment and apportionment. (Laws 1867, chap. 694, § 2.) Neglect of assessors to make apportion- ment. — In case the assessors shall neglect to make such apportionment, it shall be the duty of the super- visor of the town, on the application of the trustees or board of education of any district, or of any railroad company, to make such apportionment in the same manner and with the like effect as if made by said assessors. (Laws 1867, chap. 694, § 3.) Certified statement to be furnished by town- clerk. — ^The town-clerk shall, whenever requested, farnish 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. (Laws 1867, chap. 694, § 4.) Alteration in school-district, eflfect of.— In case any alteration shall be made in any school-district, affecting the property of any railroad 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. (Laws 1867, chap. 694, § 5.) XIX. OF THE APPLICATION OF THE GENERAL EAILROAD ACT. General act of 1850, applicable to existing corporations. — AH existing railroad corporations within tMs State shall respectively have and possess aU the powers and privileges contained in this act; and they shall be subject to aU the duties, liabilities and provisions not inconsistent with the provisions of their charter, contained in sections nine, thirteen, four- teen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty.one, twenty-two, twenty-three, twenty- .four, twenty-five, twenty-six, twenty-seven, twenty- eight (except subdivision nine), thirty, thirty-one,, thirty-two, thirty-three, thirty-four, thirty-five, thirty- six, thirty-seven, thirty-eight, thirty-nine, forty, forty- one, forty-two, forty-three, forty-four, forty-five, forty- six, of this act. (Laws 1850, chap. 140, § 49.) The sections here referred to, relate to proceedings to acquire real estate where the consent of the owner cannot be obtained. In acquiring such real estate, under the general act (Laws 1850, chap. 140, § 28, subd.- 3), the company is only limited to its necessities, and the court at special term (In the matter of Rensselaer & Saratoga R. Co. ». Davies, Court of Appeals dedsion 1871, not yet reported), as well as a jury (See Moss «. Averell, 10 N. T. 463), may pass on the question of necessity. Section two, of chapter four hundred and forty-four of Laws of 1857, provides that any railroad corporation in this State may acquire the title in fee, by the special proceedings of the general railway act, to any land which it may require for roadway and for necessary buildings, depots and freight grounds. It is therefore, optional with a company chartered under a special aet, to proceed to acquire title to lands, in the manner provided in its charter (Clarkso'n v. Hudson River R. Co., 13 N. Y. 304 ; Visscher GENERAL EAILROAD ACT. 241 ®. Same, 15 Barb. 37; Hudson River R. Co. v. Outwater, 3 Sandf. or under the provisions of the general act (Laws 1857, chap. 444, § 2 ;^ Hosier v. Hilton, 15 Barb. 657). The provisions contained in the above section, are not unconstitutional in their application to existing corpora- tions (Suydam v. Moore, 8 Barb. 358). Eepeal of railroad act of 1848.— The act eijtitled " An act to autliorize tlie formation of railroad corporations," passed March 26, 1848, and tlie acts amending tlie same, are hereljy repealed; but all rail- road companies formed under said act are hereby con- tinued in existence, in the same manner as if said acts were not repealed ; and such companies shall he subject to all the provisions, and shall have the same povfers, rights and privileges, and be subject to the same duties, as if they had been incorporated under this act ; and the time limited by said act, for the expenditure of ten per cent of their capital stock, is hereby extended two years from the passage of this act ; and the time limited in said section of said law for their completion, is hereby extended to five years from the passage of this act ; and also the time for completing any railroad organized previous to March 27, 1848, whose road was under contract prior to February 1, 1850, to be com- pleted within the time prescribed by its charter, is hereby extended for one year. (Laws 1850, chap. 140^ §50.) A P PEN D I X. FORMS. Articles of Association. (&e ante, page 9.) Know ai,l Men by these Presents, That we^ the under- signed, under and in pursuance of an act of the Legislature of the State of New York, entitled "An act to authorize the formation of JRailroad Corporations and to regulate the same," passed April 2d, 1850, and the acts amendatory thereof and supplementary thereto, have associated ourselves together for the purpose of constructing, maintaining and operating a rail- road for public use, in the conveyance of persons and property, and for that purpose, have made, signed and executed these Articles of Associiation. First. The corporate name of said company shall be Railroad Company. Second. The company is to continue in existence for the period of years. Third. The places from and to which said railroad is to be constructed, maintained and operated, are as follows : Com- mencing at or near , in the county of , and State of New York, and running thence by the most direct and fea- sible route, via {here set forth the names of the towns, die, through which it is proposed to construct said railroad), and terminating at or near , in the county of , and State of New York. Fourth. The length of said railroad, as nearly as may be estimated, is miles, and the same is intended to be con- structed through or into the counties of Fifth. The amount of capital stock of said Eailroad Com- pany shall be {it cannot he less than $10,000 for every ^ mile of road proposed to he constructed) dollars, consisting of shares, of dollars each. Sioeth. The names and places of residence of thirteen 244 APPENDIX. directors of said company, whp shall manage its aflfairs for the first year, and until others are chosen in their places, are as follows, to wit : {here insert after the name of each director Ms place of residence). Is WITNESS WHBEEOF, wc havc hercunto respectively sub- Bcrihed our names and places of residence, and severally agree to take the number of shares of stock of said company set oppo- site our respective names. Dated, &c. Names of Subscribers. Places of Hesidence. No. Shares subscribed. {The Articles of Association m-ust lye signed lyy at least twenty-f/oe persons. A foe-cent IT. 8. Int. Bev. Stamp mvst he affixed to each sheet.) Affldayit of Directors to Articles of Association. {See ante, page 13.) State of New Toek, ) County of ) ' " {The affidavit should he made hy at least three of the Di/rectors named in the Articles of Associatiori), being sever- ally duly sworn, each for himself doth depose and say that he is a Director named in the within {or annexed) Articles of Association of the Eailroad Company. That one thousand dollars of stock for every mile, to wit : miles of railroad^ proposed to be made in, under and by vir- tue of said Articles of Association, has been, and is, sub- scribed thereto, and ten per cent paid thereon in good faith, andin cash, to the Directors named in said Articles of Asso- ciation. That the amount of stock required by the second section of the act referred to, in said Articles of Association, has been in good faith subscribed, and ten per cent paid in cash thereon as aforesaid, and that it is intended in .good faith to construct, maintain, and operate the railroad mentioned in said Articles of Association. {Signatures.) Sworn to before me this ) day of , 18 . f {The notary taking the affidavit should affix his seal.) FORMS. 245 Certificate of Stock. I {Name of corporation^ No. [pf Gertificate) {Nimber of) shares. This is to oeetifTj that is entitled to o shares of dollars each of the capital ffl stock of the Eailroad Company, trans- ferrable only on the books of the said company, ^ by the said , or his attorney, upon the sur- of render of this certificate. £ ^-^ "Witness the seal of the Eailroad ^ (seI^\ Company, at the city of , this day of cQ \cri^ ' , 18 . {Signatv/re of) President. {Signature of) Secretary. Transfer of Stock. Know All Men bt these Presents, that I, , of , for value received, have bargained, sold, assigned, and transferred, and by these presents do bargain, sell, assign, and transfer, unto , of , shares of the capital stock of the Kailroad Company, stand- ing in my name on the books of said company ; and I do hereby constitute and appoint the said my true and lawful attorney, irrevocable, in my name or otherwise, but to his own use and benefit, and at his own costs and charges, to take all lawful ways and means for the recovery and enjoyment thereof. "WrmEss my hand and seal, this day of , 18 . Signed, sealed, and delivered ) in presence of >• {Signature and seal.) {Signature of Witness.) ) 246 APPENDIX. Power to transfer. Know All Men by these Peesents, that I, , of , do hereby constitute and appoint of , my true and lawful attorney, for me and in my name and behalf, to sell, assign, and transfer to , of , the whole or any jjart of shares of the capital stock of the Eailroad Company, standing in my name, on the books of the said company, and for that purpose to make and execute all necessary acts of assignment and transfer. Witness (cfec, as in, preceding form). Power to collect Dividend. Enow All Men bt these Presents, that I, , of , do authorize, constitute, and appoint , of , to receive from the Railroad Com- pany the dividend now due me on all stock, standing in my- name, on the books of the said company, and receipt for the same ; and hereby ratifying and confirming all that may law- fully be done in the premises by virtue hereof. "Witness (c&c, as im, preceding form). Proxy to vote at election. Know All Men by these Peesents, that I, j of , do hereby appoint , of , my attorney for me, and in my stead, to vote as my proxy, at any election of the Directors of the Eailroad Company, according to the number of votes I should be entitled to cast, if then personally present. Witness (c&c, as in preceding form). . "FORMS. 24T Notice of filing Map and Profile. (See ante, page 59.) To {<&c., occupant of land over which route of road passes) : Take notice that a map and profile of the route intended to be adopted by the Railroad Company, in the county of , certified in due form of law by the president and engi- neer of the said company, was on the day of > 18 , duly filed in the ofiice of the register {or if there ie no register, then, in the office of the county cleric) of the county of , and that the said route designated thereby passes over your land {indi- cating the same). Dated, &c. {Signature and title of secreta/ry of railroad company^ Notice of application for appointment of Commissioners. {Bee ante, page 60.) To THE Raileoad Compant : Take notice that the Petition of , together with the survey, map and profile, copies of all of which are herewith served upon you, will be presented to the Supreme Court of the State of ISTew York, at a special term thereof, appointed to be held in and for the county of , at the court-house in the city {or otherwise) of , on the day of , 18 , at o'clock in the noon of that day, or as soon thereafter as counsel can be heard, and that a motion will then and there be made that the prayer of the said petition be granted. Dated, &c. Tours, &c., {^nature of attorney for land owner) [The order appointing the commissioners, report of com- missioners, and subsequent proceedings thereon, may be readily drafted upon the forms furnished in the proceedings, to acquire title to real estate. Vide post, page-252 et seq.} 248 APPENDIX. Petition of Railroad Company for appoint- ment of Commissioners of Appraisal. {8ee ante^ page 67.) NEW TOEK SUPEEME COUET. County of In the matter of the application of the Eailroad Company. To THE SuPEEME CoUET OF THE SxATE OF NeW YoEK \ The Petition of the Eailroad Company respectfully shows, that the said company is a corporation duly organized under and by virtue of an act of the Legislature of the State of Ifew York, entitled "An act to authorize the formation of railroad corporations, and to regulate the same," passed April 2d, 1850, and the several acts amendatory thereof and supple- mentary thereto ; that the articles of association of said com- pany, made and executed in due form, were filed in the office of the Secretary of State, and said company became a body •corporate, pursuant to said act, on the day of ,18 ; that it is the intention of the said company, in good faith, to construct and finish a railroad from and to the places named for that purpose in said articles of association, to wit : Ooni- mencing at or near , in the county of and State of New York, and running thence, by the most direct and feasi- ble route, via {insert names of towns, c&o., through which it is proposed to construct said railroad), and terminating at or near , in the county of and State of New York; that ten thousand dollars for every mile of the said railroad pro- posed to be constructed in this State, has been in good faith sub- scribed to the capital stock, and ten per cent thereof paid in, as required by said act ;* that the said company has surveyed the line or route of its proposed road, and has made a map or * Laws 1851, Chap. 19, § 3, as amended (see ante, page 65). By the Laws of 1860, Chap. 140, § 14 (see ante, page 6Y) the whole capital stock was required to be subscribed. FOEMS. 249 survey thereof, by which such route or line is designated, and that it has located its said railroad according to such survey, and has filed certificates of such location, signed by a majority of the directors of said railroad company, in the regis- ter's office {or, if there he no register's office in the county, then in the offiice of the county clerk) of the counties of and , those being^ the counties, and the only counties in the State, through' or into which the said railroad is to be constructed. That the real estate which the said company seeks to acquire is bounded and described as follows : {Insert descrip- tion,!) That the names and places of residence of the parties, so far as the same can by reasonable diligence be ascertained, who own or have, or claim to own or have, estates or interests in the said real estate, are {insert names and places of resi- ■denci). Tour Petitioner further showsj upon information and be- lief, that {insert allegations respecUng said real estate. If a/ny of the j>a/rties iefore recited are infants, thei/r ages, as near as may he, must he stated, and if any of such persons are idiots or persons of unsound mind, or are unknown, that fact must he stated, together with such other allegaig^ons and statements of liens or incumbrances on said real estate, as the company may see fit to make). Your Petitioner further shows, that the real estate described as aforesaid, is required for the purposes of the incorporation of said company, to wit : for the purpose of constructing and operating the said proposed road, and that the said company has not been able to acquire title thereto, for the reason {here state the reason of such ijndhililjy, — as, that the owners thereof refuse to sell the same for a/ny reasonable compensation). Tour Petitioner therefore, with the view of acquiring title to. the said real estate for the purposes aforesaid, prays for the appointment of three disinterested and competent freeholders, who reside in the said county of , where the said premises are situated, or in some county adjoining thereto, commission- ers, to ascertain and appraise the compensation to be made to tke owners or persons interested in the said real estate, pursu- ant to the provisions of said act, and for such farther or other order as to the court may seem just and proper. State of New Toek, ) COUNTY of ) ^^' ' , of , in said county, being duly sworn, doth depose and say,, that he is President {or other officer) ■of the Kailroad Company, the Petitioner above 17 250 APPENDIX. named ; that he has read the foregoing petition by him sub- scribed, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information or belief, and as to those matters he believes it to be true. Deponent further says, that the reason why the verifica- tion is not made by the Petitioner herein, is that it is a cor- poration ; and that this deponent is an officer of the same, to wit, President {or otherwise), and that his knowledge is derived from having witnessed the transactions set forth in said Peti- tion. {Signature.) Sworn to before me this | day of , 18Y . | Notice to be served on resident land-owner. {See ante, page 68.) {Title.) To, ( of , in said county, being duly sworn, doth depose and say, that he is one of the Petitioners herein ; that he has read the foregoing Petition, by him sub- scribed, and knows the contents thereof, and that the same i» true of his own knowledge, except as to the matter therein stated on information or belief, and as to those matters, he believed it to be true. . , {Signature of one of Petitioners.) Sworn to before me ) this day of , 18 . j Order for publication Notice of Hearing. {See cmte, page 314.) 1 I Title. )■ On the Petition herein, bearing date the day of ,, ] 8 , and on motion of , Esq., attorney for said Peti- tioners. It is oedeeed that a notice be forthwith published in the , a newspaper published in the said county of , directed to whom it may concern, and setting forth that on the day of ,18 , at o'clock in the noon of that day, the Honorable, the Judge of this Court will proceed to take proof of the facts set forth in said Petition, as to the number of tax payers joining in said Peti- tion, and as to the amount of taxable property represented by them. Dated, &c. POEMS. 26& Ifotice of hearing to take proof of facts set forth in Petition. {See ante, page 214.) {Title.) To WHOM rr mat conoeen : Notice is hereby given, that on the Petition of , and others, therein named, purporting to represent a ma- jority of the tax payers of the city {or town, or incorporated village) of , whose names appear on the last preced- ing assessment roll or tax list thereof, setting forth that the said Petitioners, constituting a majority of such tax payers, as aforesaid, desire that the said city {or town, or incorporated village), shall create and issue its bonds to the amount of dollars, (which said amount, it is alleged in said Petition, does not exceed twenty per centum of the whole amount of taxable property, as shown by said assessment roll or tax list), and invest the same, or the proceeds thereof, la- the stock {or bonds) of the Eailroad Company, the Honorable , county judge of the county of , will proceed to take proof of the facts set forth in said Peti- tion, as to the number of tax payers joining in said Petition, and as to the amount of taxable property represented by them, at the court rooms of said county court, in the of , on the day of , 18 , at o'clock in ihe noon of that da,y. Dated, &c. 270 APPENDIX. Order appointing Commissioners: {See ante, pages 217 and 219.) {Title.) TJpon the filing the Petition herein, and order made there- on, with a copy of the notice to take proof of the facts set forth in said Petition, and the affidavit of publication of the said notice in the manner required by law, and by the order rtlade in this proceeding, as aforesaid, together -with the testimony taken herein ; and it appearing to the satisfaction of this court, that the whole number of tax payers in the city (or town, or incorporated village) of , whose names appear upon the last preceding assessment roll or tax list — beiug the assessment roll or tax list for the year 18 , is (insert number), and that of this number, {insert number) have signed the said petition, being more than one-half of said tax payers ; and it further appearing that the total valuation of the taxable property of the said city {or town, or incorporated village), upon the said assessment roll or tax list is dollars, and that the valuation of the property of the peti- tioners, as represented upon the said assessment roll or tax list is dollars, being dollars in. excess of one-half of the total valuation of the taxable property of said city {or town, or incorporated village), now, on motion of , It is adjudged, deceeed, and deteemined, that the said Petitioners herein do represent a majority of the tax payers of the said city {or town, or incorporated village), as shown by the last preceding tax list or assessment roll, that is to say,^ the tax list or assessment roll' for the year ; and do rep- resent a majority of the taxable property upon said tax list or assessment roll ; And it is heeeet oedeeed, that , and , three freeholders, residents and tax payers, within the corpo- rate limits of said city {or town, or incorporated village) be, and they hereby are, appointed commissioners for the period of five years next ensuing, and until others are appointed by a county judge of this county, to cause to be made or executed^ in due form of law, with all reasonable dispatch, bonds of the said city (or town, or incorporated village) of ,of dollars- each, to the amount of dollars, and to issue, sell, or dis- pose of the same, and invest the same or the proceeds thereof,. FOEMS, 271 in, and to subscribe in the name of the said city {fir town, porated. Laws 1836, ch. 306. Brooklyn and Jamacia RaUroad.- Incorporated, Laws 1883, ch 256. Charter amended. Laws 1848, ch. 373 ; Laws 1860, ch. 460. May AND OTHER EKAOTMENTS, 281 demise its road to Long Island Railroad, Laws 1836, ch. 94. May alter route of part of Brooklyn and Jamaica Turnpike, Laws 1837, ch. 377. Brooklyn, Prospect Park and Flatbnsh Railroad.— Construction of, authorized, Laws 1867, ch. 895. Brooklyn and Rockaway Beach Railroad.— May abandon part of its road, Laws 1864, ch. 172; Laws 1866, ch. 366. May extend road to Hunter's Point, Laws 1871, ch. 759. Brooklyn Steam Transit Co. — Incorporated, Laws 1871, ch. 940. Brooklyn and Winfleld Railroad. — Construction of, authorized, Laws 1869, ch. 718. Name changed to Brooklyn, Winfleld & Newtown Raihoad, Laws 1870, ch. 612. (See Brooklyn, Winfleld and New- town Railroad.) Brooklyn, Winfleld and Newtown Railroad. — Brooklyn & Winfleld, changed to, Laws 1870, ch. 612. May extend its road. Laws 1871, Ch. 622. (See Brooklyn and Winfleld Railroad.) Buffalo and Alleghany Valley Railroad. — ^May sell road to Buffalo & Pitts- burg Railroad, Laws 1858, ch. 281. May extend road, Laws 1862, ch. 143. Consolidated with Buffalo & Washington Railroad, Laws 1865, ch. 439. (See Buffalo & Washington Railroad, and Buffalo, New Tork and Philadelphia Railroad.) Bnffalo and Batayia RaUroad. — Incorporated, Laws 1838, ch. 241. Bnffalo and Black Rock Railroad. — Incorporated, Laws 1833, ch. 292. Authorized to construct road on State lands. Laws 1834, ch. 91. Appraisal of canal damages to, Laws 1851, ch. 289. Bnffalo and Bradford Railroad. — May consolidate with Buffalo & Pitts- burg Railroad, Laws 1858, ch. 102. (See Buffalo and Pittsburg Railroad.) Buffalo, Bradford and Pittsburgh RaUroad. — Time for completion of, ex- tended, Laws 1860, ch. 40. Bnfiialo City Railroad. — Incorporated, Laws 1867, ch. 565. Time for com- pletion of, extended. Laws 1869, ch. 764. Buffalo and Conhocton Valley RaUroad. — Name changed to Buffalo, Corn- ing & New Tork Railroad, Laws 1863, ch. 41. (See Buffalo, Com- ing & New Tork Railroad.) Buffalo, Corning and New York Railroad. — Name changed from Buffalo & Conhocton Valley Railroad, Laws 1852, ch. 41. May increase capital stock. Laws 1854, ch. 146. Time for completion of, ex- tended, Laws 1855, ch, 460. Bnffalo, Corry and Pittsburg Railroad. — Act in regard to supply of water required for. Laws 1868, ch. 847. Railroad companies may loan credit to. Laws 1869, ch. 715. Bnffalo East Side Street RaUroad.— Incorporated, Laws 1870, ch. 774. Charter amended. Laws 1871, ch. 886. Bnffalo and Erie Railroad.— Incorporated, Laws 1832, ch. 129. Charter amended, Laws 1836, ch. 263. Bnffalo Extension of Atlantic and Great Western RaUroad.— May con- solidate with Atlantic & Great Western Raihoad (in New Tork), Laws 1865, ch. 614. 19 282 TABLE 01' BAlIiBOAD OHAR'TBES Buffalo and Hinsdale Eailroad.— Incorporated, Laws 1846, ch. 256. Buffalo and Lake Huron Eailroad.— May purchase and hold real estate, Laws 1857, oh. 360. Declared a corporation under general act of 1850, Laws 1858, ch. 131. Buffalo and Lockport Railroad. — May consolidate with Buffalo & Rofhea- ter Railroad, &c., Laws 1853, ch. 76. Buffalo and New York City Railroad. — May construct branch road. Laws 1853, ch 168; Laws 1853, ch. 535. May increase capital stock, Laws 1854, ch. 356. Buffalo, New York and Erie Railroad. — Manner of acquiring real estate for, Laws 1858, ch. 39. Buffalo, New York and Philadelphia Railroad. — Bufialo & Washington Eailroad, changed to, Laws 1871, ch. 439. (See BuflFalo & Wash- ington Railroad.) Buffalo and Niagara Falls RaUroad. — Incorporated, Laws 1834, ch. 369. Charter amended. Laws 1841, ch. 73; Laws 1846, ch. 313; Laws 1849, ch. 353. May consolidate with Lewiston Railroad, Laws 1851, ch. 375; Laws 1853, ch. 46. May loan credit to railroad from Lockport to Tonawanda, Laws 1853, ch. 397. Buffalo and Oil Creek Cross-Cut Railroad. — ^Municipal aid to. Laws 1857, ch. 711 ; Laws 1866, ch. 430. May consolidate with Cross-Cut Railroad of Pennsylvania, Laws 1867, ch. 753. Buffalo and Pittsburg RaUroad. — ^Weight of iron rails used by, Laws 1856, ch. 151. Time for completion of, extended. Laws 1857, ch. 319. May consolidate with Buffalo & Bradford Railroad, Laws 1858, ch. 103. May purchase Buffalo & Allegany Railroad, Laws 1858, ch. 331. Municipal aid to, Laws 1853, ch. 356 ; Laws 1853, ch. 351 ; Laws 1854, ch. 337; Laws 1859, ch. 348; Laws 1864, ch. 344; Laws 1868, ch. 795; Laws 1871, ch. 656. May terminate road at north Pennsylvania State line, Laws 1853, ch. 496. May use iron rail of less than prescribed weight, Laws 1856, ch. 151. Buffalo and Rochester Railroad. — ^May convey road to Attica & Homells- ville Railroad, Laws 1851, ch. 76. Time for completion of, ex- tended. Laws 1853, ch. 91. May consolidate wUh Rochester, Lockport & Niagara Falls Eailroad, Laws 1853, ch. 76. Buffalo and State Line Railroad.— Public use of, declared, Laws 1848, ch. 301. Railroads may loan credit to. Laws 1850, ch. 147. Or- ganization of, confirmed. Laws 1853, ch.43. May consolidate with the Erie & North-east Railroad Co., Laws 1867, ch. 66. May pur- chase or lease property of Erie & North-east Railroad Co.. Laws 1857, ch. 363. ' Buffalo Street Railroad — Act for relief of, Laws 1866, ch. 479. May purchase Niagara Street Railroad, Laws 1868, ch. 323. Buffalo and Washington Railroad.— Consolidated with Buffalo and Alle- ghany Valley Railroad, Laws 1 865, ch. 439. May consolidate with Sinnomohonmg & Portage Railroad, Laws 1866, ch. 673. May a'pply for appraisal of lands, Laws 1868, ch. 133. Municipal aid to, Laws 1864, ch. 844; Laws 1866, ch. 840; Laws 1866 ch 849- Laws 1868, ch. 143; Laws 1868, ch. 308; Laws 1868,' ch 334; Laws 1868, ch. 666; Laws 1868, ch. 719; Laws 1869, ch 331- Laws 1870, ch. 670. Name changed to Buffalo, New York & Philadelphia Railroad, Laws 1871, ch. 439. AND OTHER ENACTMENTS. 283 Buffalo and WiUiamsyille Kailroad. — Incorporated, Laws 1868, eh. 414. Ee incorporated, Laws 1870, ch. 671. Canajoharie and Catskill Kailroad. — Incorporated, Laws 1830, eh. 265. Charter amended, Laws 1887, ch. 217. Municipal aid to, Laws 1837, ch. 321. State aid to. Laws 1838, ch. 240. CanandaJgna Eailway.— Incorporated, Laws 1828, ch. 196. Canandaigua and Corning Bailroad. — Incorporated, Laws 1845, ch. 328. Charter amended. Laws 1846, ch. 181 ; Laws 1847, ch. 70 ; Laws 1849, ch. 129 ; Laws 1850, ch. 54. Ccmarsie to Oravesend. — Railroad from, authorized. Laws 1863, ch. 513. Carthage, Watertown and Sackett's Harhor Railroad. — Town aid to, Laws 1869, ch. 75 ; Am'd Laws 1870, ch. 52. Cassadaga and Erie Railroad. — Incorporated Laws 1886, ch. 408. Castleton and West Stockhridge. — Incorporated, Laws 1834, ch. 292. liTame changed to Albany and West Stockbridge Railroad, Laws 1836, ch. 262. (See Albany and West Stockbridge Railroad.) CatsklU and Ithaca Railroad. — Incorporated, Laws 1828, ch. 306. Charter amended. Laws 1829, ch. 62. Cattarangns Railway. — Confirming acts of tax-payers relative to muni- cipal aid to. Laws 1868, ch. 510. Time for beginning construc- tion of, extended. Laws 1870, ch. 278. Cayuga Lake Railroad. — Town aid to, Laws 1869, ch. 314; Am'd Laws 1870, ch. 152. Caynga and Susquehanna Railroad. — Incorporated, Laws 1843, ch. 321. Charter amended, Laws 1846, ch. 180; Laws 1847, ch. 150; Laws 1851, ch. 103. Use of pier granted to, Laws 1850, ch. 231. Capital stock of, reduced, Laws 1859, ch. 94. Cazenoria and Canastota Railroad. — Rate of passenger fare of, Laws 1869, ch. 145. Municipal aid to. Laws 1868, ch. 140. Chemung' Railroad. — Incorporated, Laws 1845, ch. 350. Charter amended, Laws 1847, ch. 96; Laws 1853, ch. 82; Laws 1857, ch. 286. Chemung and Ithaca Railroad. — Incorporated, Laws 1837, ch. 466. Charter amended. Laws 1838, ch. 239, Chenango Valley Railroad. — Incorporated, Laws 1863, ch. 198. Charter amended, Laws 1865, ch. 673. Central Railroad (of Long Island). — May construct draw-bridge over Flushing Creek, Laws 1871, ch. 921. Central Park, North and East River Railroad. — Incorporated, Laws 1860, ch. 511. Cherry Talley and Mohawk River Railroad. — Municipal aid to, Laws 1864, ch. 255. Time for completion of, extended, Laws 1866, ch. 488. May connect with Albany and Susquehani^a Railroad, Laws 1867, ch. 932. Name changed to Cherry Valley, Sharon and Albany Railroad, Laws 1869, ch. 147. (See Cherry Valley, Sh9,ron and Albany Railroad.) Cherry Valley, Sharon and Albany Railroad.— Cherry Valley and Mohawk Railroad changed to. Laws 1869, ch. 147. May extend its road. Laws 1871, dh. 309. (See Cherry Valley and Mohawk Railroad.) 584 TABLE OF EAJDLROAD CHARTERS Cherry Valley and Spraker's Horse-power Railroad. — Incorporated, Laws 1860, ch. 355. Charter amended. Laws 1864, ch.^ 199. Municipal aid to. Laws 1864, ch. 73; Laws 1864, ch. 199. Cherry Yalley and Susquehanna BaUroad. — Incorporated, Laws 1836, ch. 434. Ohittenango depot to milage of Oasenovia. — Act in aid of construction of railroad from. Laws 1868, ch. 876. Clifton Iron Go. — ^Railroad franchise conferred on. Laws 1868, ch. 195. Clove Branch Railroad. — Extension of road of. Laws 1869, ch. 68 ; Am'd Laws 1870, ch. 503. Coeyman's Railroad. — Incorporated, Laws 1836, ch. 434. Cold Spring RaUroad. — Incorporated, Laws 1839, ch. 399. Coney Island and Bi'ooklyn Railroad. — Construction of, authorized, Laws 1861, ch. 834. May extend its road, Laws 1868, ch. 675. Cooperstown and Cherry Yalley Railroad. — Incorporated, Laws 1837, ch. 433. Cooperstown and Susquehanna Valley RaUroad. — Municipal aid to, Laws 1865, oh. 758; Laws 1867, ch. 433; Laws 1869, ch. 519. Certain privileges granted to, Laws 1866, ch. 787. Coming and Blosshurgh Railroad. — Tioga Railroad changed to. Laws 1851, ch. 90. Coxsackie and Schenectady RaUroad. — ^Incorporated, Laws 1837, ch. 434. Chartey amended, Laws 1838, ch. 335. Cross-Cut Raih-oad (Pa). — May consolidate with Buffalo and Oil Creek Cross-cut Railroad, Laws 1867, ch. 753. Dansville and Rochester Railroad. — Incorporated, Laws 1838, ch. 52. Delaware RaUroad. — Incorporated, Laws 1836, ch. 406. Delaware, Lackawana and Western Railroad. — May make contracts in this State, Laws 1855, ch. 344. May purchase lands in this State, Laws, 1864, ch. 124. May purchase real estate in city of New York, Laws 1865, ch. 406. Division Avenue Raili-oad (Brooklyn).— Construction of, authorized. Laws 1853, ch. 468. Charter amended, Laws 1854, ch. 46. Dry Dock, East Broadway and Battery Railroad.— Construction of, authorized. Laws 1860, ch. 512. May extend road. Laws 1866, ch. 866 ; Laws 1866, ch. 868 ; Laws 1866, ch. 883. Dunkirk and Fredonia Railroad.— Incorporated, Laws 1864 ch. 365. Charter amended. Laws 1866, ch. 34. ' Dunkirk, Warren and Pittsburg Railroad ^Municipal aid to. Laws 1867, ch. 673 ; Laws 1868, ch. 427 ; Laws 1870, ch. 383. Dutchess RaUroad.— Incorporated, Laws 1833, ch. 61. See also Laws 1836, ch. 477. Dutchess and Columbia RaUroad — Act to facilitate acquisition of real estate required by. Laws 1867, ch. 486 ; Am'd, Laws 1868 ch 184. Municipal aid to, Laws 1868, ch. 301. May change northern ter- minus of road. Laws 1868, ch. 184. East Genesee St. and Seward Ave. RaUway (Auburn).— Incorporated Laws 1871, ch. 537. '^ ' Aim OTHER ENACTMENTS. 285 East New York and Jamaica Bailroad. — Incorporated, Laws 1863, ch. 507. Charter amended. Laws 1865, ch. 760 ; Laws 1866, ch. 80. May consolidate with Jamaica and Brooklyn Plank-road Co., Laws 1871, ch. 324. ' Elevated Bailway (Greenwich St., New York). — Construction of, author- ized, Laws 1867, ch. 489. Time for construction of, extended, Laws 1868, ch. 855. Elmira and Horseheads Railway. — Construction of, authorized. Laws 1866, ch. 659. Act 1866, revived. Laws 1870, ch. 233. Ai-ticles of Association confirmed, Laws 1871, ch. 442. Elmira and Williamsport Railroad.— Incorporated, Laws 1832, ch. 216. Charter revived. Laws 1846, ch. 190. Erie Railway. — Concerning organization of, upon foreclosure sale of New York and Erie Railroad, Laws 1863, ch. 66. May increase capital stock. Laws 1864, ch. 561. May run cars through certain streets . in city of Buffalo, Laws 1866, ch. 851. Restrictions in regard to directors of. Laws 1868, ch. 278 ; Am'd, Laws 1869, ch. 316. (See New York and Erie Railroad.) Erie and Cattarangns Railroad. — Incorporated, Laws 1887, ch. 433. Erie and Genesee Valley Railroad. — Municipal aid to, Laws 1853, ch. 287; Laws 1868, ch. 443; Laws 1869, ch. 648. May apply for appraisal of lands, Laws 1869, ch. 336. Erie and Kew England Railroad. — ^May establish steam ferry across Hud- son River, Laws 1868, ch. 583. Erie and New York City Raili-oad. — Sale of, to the Atlantic and Great Western Railroad, authorized, Laws 1860, ch. 234. Municipal aid to. Laws 1855, ch. 133; Laws 1863, ch. 95. Time for com- pletion of, extended, Laws 1857, ch. 82 ; Laws 1863, ch. 357. Rela- tive to satisfaction of judgments against. Laws 1854, ch. 336. May acquire title to real estate, how, Laws 1853, ch. 593. (Se6 Erie Rail- way.) FayetteviUe and Syracuse Plank Road. — May lay railroad track. Laws 1868, ch. 839. May lay wooden rail, Laws 1869, ch. 389. Fifth Ward Railroad (Syracuse.) — Construction of, authorized. Laws 1868, ch. 151. Fish HoDse and Amsterdam Railroad. — Incorporated, Laws 1833, ch. 316. Fishkill RaUroad. — Incorporated, Laws 1868, ch. 454. FiMM to easterly line of Nenj^ York State). — Public use of railroad from, declared, Laws 1848, ch. 338. Flashing Railroad. — May construct draw-bridge across Flushing Creek, Laws 1853, ch. 164 ; Am'd, Laws 1854, ch. 358. Flushing and North Side Railroad. — May construct draw-bridge over Flushing Creek, Laws 1870„ch. 123. May receive additional fare. Laws 1870, ch. 775. May consoUdate with Flushing and Wood- side Railroad, and New York and Flushing Railroad, Laws 1869, ch. 143. Flushing and Woodside RaUroad. — Flushing and North Side Railroad may purchase stock of. Laws 1869, ch. 142. Fonda, Johnstown and GloversvUle Railroad. — Articles of association of, legalized and confirmed, Laws 1867, ch. 716. Municipal aid 286 TABLE OF EAILKOAD 0HAEXEE8 to, Laws 1867, ch. 17; Laws 1867, ch. 81; Laws 1868, ch. 588. Required to restore public highway to its original line. Laws 1869, ch. 911. Certain claims of town of Johnstown against, dis- charged. Laws 1870, ch. 305. Fonda and Ogdensburgh Bailroad. — Incorporated, Laws 1866, ch. 894. Forestport Railroad. — ^Incorporated, Laws 1868, ch. 505. ^^ Forest of Dean Iron Mine'''' to Hudson Sker. — Construction of railroad from, authorized, Laws 1865, ch. 273. Forestport, Grant's Mills and Black Eiyer Railroad. — ^Incorporated, Laws 1867, ch. 949. Fort Edward, Sandy Hill and Glens FaUs Railroad. — Not required to comply with certain provisions of general act, Laws 1863, ch. 38. Construction of, authorized, Laws 1866, ch. 636. Municipal aid to. Laws 1867, ch. 919; Laws 1867, ch. 953; Laws 1868, ch. 32; Laws 1868, ch. 317. Fredonia and VanBuren Harbor Railroad. — Incorporated, Laws 1836, ch. 417, Genesee and Cattarangns Railroad. — Incorporated, Laws 1837, ch. 425. Genesee and Water Street Railroad (Syracuse). — ^Provisions of general act construfed with reference to, Laws 1866, ch. 388. May extend its road, Laws 1871, ch. 839. Geneseo Railroad. — Incorporated, Laws 1848, ch. 246. Charter amended, Laws 1849, ch. 4. ' Geneseo and Pittsford Railroad,— Incorporated, Laws 1836, ch. 430. Geneva and Canandaigna Railroad.— Incorporated, Laws 1828, ch. 340. Charter amended. Laws 1831, ch. 307. Gilboa Railroad. — Incorporated, Laws 1839, ch. 179. Goshen and Albany Railroad.— Incorporated, Laws 1842, ch. 241. Char- ter amended. Laws 1844, ch. 95 ; Laws 1845, ch. 336. Goshen and Deckertown Railroad.— "Weight of rail used bv. Laws 1868. ch. 384. ^' ' Goshen and New Jersey Railroad.— Incorporated, Laws 1837, ch. 416. Grand Street and Newtown Railroad (Brooklyn),— Incorporated, Laws 1860, ch. 462. Charter amended. Laws 1862, ch. 199 ; Laws 1863, ch. 217. Rate of fare on, Laws 1867, ch. 554. May construct double track, &c., Laws 1870, ch. 746. Grand Street, Prospect Park and FlatbnshRailroad.— May extend road. &c.. Laws 1870, ch. 530; Am'd, Laws 1871, ch. 743. Grand Trunk RaUway (of Canada).— Legal proceedings against, regu- lated, Laws 1868, ch. 752. Great An Sable Railroad.— Incorporated, Laws 1828, ch. 238. See, also. Laws 1832, ch 69; Laws 1833, fch. 277; Laws 1837, ch. 414. Char- ter amended, Laws 1839, ch. IW. Great Western Railroad (Canada WeBt).-Railroads may take stock in, ch^^ ch. 157. Proceedings against, regulated. Laws 1857, Greene Railroad. — ^Incorporated, Laws 1838, ch. 179. ATSra OTHER ENACTMENTS. 287 Greenpoint, Prospect Park and Greenwood BaUroad (Brooklyn). — Con- struction of, authorized, Law8 1866, ch. 833. Greenpoint and Calyary Kailroad. — Incorporated, Laws 1865, ch. 763. Greenpoint and Williamsburgh BaUroad. — Incorporated, Laws 1864, ch. 333. May consolidate with Nassau Baikoad, of Brooklyn, Laws 1868, ch. 576. Greenwich Bailroad Equipment Co. — Incorporated, Laws 1871, ch. 261. Hackensack and New York Bailroad. — May extend road into this State, Laws 1870, ch. 304. , May build draw-bridge oyer Minnisceongo Creek, Laws 1871, ch. 183. Hallett's Cove Eailway. — Incorporated, Laws 1838, ch. 305. Charter amended. Laws 1833, ch. Ill ; Laws 1837, ch. 3. Harlem Brfdge, Morrisania and Fordham Bailroad. — Construction of, authorized, Laws 1863, ch. 361. Weight of rails, &c., used by, Laws 1866, ch. 815 ; Laws 1871, ch. 658. Fare allowed on. Laws 1867, ch. 893. May lay track in Lincohi Ave., Laws 1871, ch. 658. Harlem Biver and Port Chester Bailroad. — Incorporated, Laws 1866, ch. 763. Charter amended, Laws 1869, ch. 733; Laws 1871, ch. 605. Herkimer, Mohawk and Dion Bailroad. — ^Incorporated, Laws 1865, ch. 769. Herkimer and Trenton BaUroad. — Incorporated, Laws 1836, ch. 344. Charter amended. Laws 1837, ch. 398; Laws 1839, ch. 234. HicksyiUe and Cold Spring Branch Bailroad. — Incorporated, Laws 1851, ch. 306. Time for completion of, extended. Laws 1859, ch. 138. HicksriUe and Huntington BaUroad. — Incorporated, Laws 1865, ch. 536. Honeyoye Bailroad. — Incorporated, Laws 1836, ch. 413. Charter am'd. Laws 1837, ch. 191. Eoreeheads to Mlmvrai — Construction of railroad from, authorized. Laws 1866, ch. 659. Act of 1866 revived. Laws 1870, ch. 333. Honsatonic and Northern BaUroad. — ^May accept grant for railroad pur- poses, made by State of Connecticut, Laws 1865, ch. 673. Hudson Avenue BaUroad (Brooklyn). — Construction of, authorized. Laws 1866, ch. 738. May extend track, &c.. Laws 1869, ch. 723. Hudson and Berkshire BaUroad. — Incorporated, Laws 1838, ch. 304. See, also, Laws 1833, ch. 303; Laws 1834, ch. 303. Charter amended. Laws 1837, ch. 113; Laws 1840, ch. 87; Laws 1846, ch. 317. Certain lands granted to. Laws 1839, ch. 380; Am'd, Laws 1849, ch. 366. Municipal aid to. Laws 1837, ch. 413. State aid to. Laws 1840, ch. 179. Comptroller authorized to suspend legal proceedings against. Laws 1850, ch. 337. Hudson and Delaware Bailroad. — ^Incorporated, Laws 1830, ch. 363. Charter revived. Laws 1835, ch. 136. Charter amended. Laws 1843, ch. 141. Hudson Biver Bailroad. — Incorporated, Laws 1846, ch. 216. Charter amended. Laws 1848, ch. 30 ; Laws 1850, ch. 9. Municipal aid to, Laws 1850, ch. 323. May build bridge over Nepperhan Creek, Law^ 1866, ch. 705. Kestrictions in regard to directors of. Laws 1868, ch. 278 ; Am'd, Laws 1869, ch. 916. 288 TABLE OF EAILEOAD CHAETBBS Hudson River Suspension Bridge and New England Railway. — Hudson Higiland Suspension Bridge Co., changed to, Laws 1870, ch. 769. Hunter's Point, Newtmnn and, Flushing Twmpike Rood Co, — Railroad franchise conferred on, Laws 1867, ch. 537. Hunter's Point, Ravenswood and Astoria Railroads — Construction of, authorized, Laws 1863, ch. 494. Hunter's Point and Rockaway Beach Railroad. — Construction of, au- thorized. Laws 1867, ch. 504. Ithaca and Athens RaUroad. — ^Ithaca and Tonawanda Railroad changed to. Laws 1870, ch. 33. (See Ithaca and Tonawanda RaUroad.) Ithaca and Auburn Railroad. — ^Incorporated, Laws 1836, ch. 414. Ithaca and Geneya Railroad. — Incorporated, Laws 1883, ch. 96. Ithaca and Owego RaUroad. — Incorporated, Laws 1838, ch. 81. Charter amended. Laws 1833, ch. 75; Laws 1834, ch. 361; Laws 1840, ch. 344. State aid to. Laws 1838, ch. 395. Ithaca and Port Renwick RaUroad. — Incorporated, Laws 1834, ch. 114. Charter amended. Laws 1835, ch. 339 ; Laws 1836, ch. 54. May construct canal. Laws 1835, ch. 339. Ithaca and Tonawanda RaUroad. — Mimicipal aid to. Laws 1866, ch. 645 ; Laws 1867, ch. 873. Name changed to Ithaca and Athens RaUroad, Laws 1870, ch. 33. JamesyUle Railroad. — Incorporated, Laws 1836, ch. 413. Johnstown Railroad. — Incorporated, Laws 1836, ch. 343. Jordan and Skaueateles RaUroad. — Incorpora,ted, Laws 1837, ch. 348. Junction Canal and Railroad. — ^Incorporated, Laws 1866, ch. 570. Kingston and Rondout Railroad. — ^May purchase franchises of Union Plank Road Co., Laws 1866, ch. 110. Kingston Turnpike and Railroad. — Incorporated, Laws 1835, ch. 130. Charter amended. Laws 1837, ch. 386. Lake Ontario, Auburn and New York RaUroad. — May apply for ap- praisal of lands. Laws 1854, ch. 331. Authorizing appointment of commissioners to appraise lands taken by, Laws 1857, ch. 880; Am'd, Laws 1858, ch. 300. Corporate existence, &c., of, continued, Laws 1861, ch. 184 ; see, also. Laws 1869, ch. 805. Municipal aid to. Laws 1860, ch. 405. Lake Champlain and Ogdensburgh Railroad. — Incorporated, Laws 1833, ch. 305. Charter amended, Laws 1833, ch. 380. • Re-incorporated, Laws 1836, ch. 436. New charter amended. Laws 1887, ch. 464. Survey for, authorized. Laws 1838, ch. 300. Late Ontario and Hudson River RaUroad.— Sackett's Harbor and Sara- toga RaUroad, changed to, Laws 1857, ch. 380. Act to facilitate construction of. Laws 1860, ch. 37. Extending time for completion of, Laws 1861, ch. 45. (See Sackett's Harbor and Saratoga Rail- road.) Lake Ontario Shore Railroad.— Municipal aid to. Laws 1868, cii. 811 : Laws 1869, ch. 341 ; Laws 1871, ch. 137. lansingborgh and Troy Railroad ^Incorporated, Laws 1836, ch. 373. lake and River Improvement and RaUroad and Land Co. of the New York WUderness.— Incorporated, Laws 1865, ch. 683. AND OTHER ENACTMENTS. 289 Lebanon Springs Railroad. — ^May construct extension of their road, Laws 1853, ck 35; Am'd, Laws 1853, ch. 461. Time for completion of, extended, Laws 1857, ch. 150; Laws 1880, ch. 285; Laws 1863, ch. 441; Laws 1867, ch. 46. May construct branch road, and create preferred stock, Laws 1864, ch. 145. Municipal aid to. Laws 1866, ch. 373. Railroads may take stock in. Laws 1855, ch. 350. lewiston Railroad. — Incorporated, Laws 1836, ch. 260. Charter amend- ed, Laws 1840, ch. 361. To relay track with heavy iron rail, Laws 1849, ch. 256. May change location of road. Laws 1850, .ch. 105. May consolidate with Buifalo and Niagara Palls Railroad, Laws 18-51, ch. 375 ; Am'd Laws 1853, ch. 4a. Time allowed for construction of road, Laws 1853, ch. 46. LiTerpool and Syracuse Railroad. — Construction of, authorized, Laws 1868, ch. 709. lockport and Batavia Railroad. — Incorporated, Laws 1836, ch. 424. Lochport and Niagara Falls Railroad. — Incorporated, Laws 1834, ch. 177, Charter amended, Laws 1841, ch. 133; Laws 1847, ch. 408. To relay track with heavy iron rail. Laws 1849, ch. 359. May straighten and improve its track, Laws 1851, Ch. 337^ Act for re- lief of creditors of. Laws 1850, ch. 111. May increase capital stock. Laws 1837, ch. 99; Laws 1843, ch. 36. Lockport and Yonagstown Railroad. — Incorporated, Laws 1836, ch. 407. Charter revived, Laws 1838, ch. 277. Long Island Railroad. —Incorporated, Laws 1834, ch. 178. Charter amended, Laws 1839, ch. 377; Laws 1845, ch. 116; Lawsl845,ch. 389; Laws 1847, ch. 166; Laws 1853, ch. 148; Laws 1857, ch. 153; Laws 1859, ch. 444; Laws 1880, ch. 65 ; Laws 1861, oh. 253; Laws 1861, ch. 577 ; Laws 1833, ch. 413. May increase capi- tal stock. Laws 1867, ch. 368. May take demise of Brooklyn and Jamaica Railroad, Laws 1836, ch. 94. May c >nstruct branch road, Laws 1836, ch. 358 ; Laws 1869, ch. 101. State aid to, Laws 1840, ch. 193. Time for reimbursement of stock issued by State in aid of, fixed. Laws 1858, ch. 36. Act supplementary to charter. Laws 1859, ch. 444. Closing tunnel of, in Atlantic street (Brooklyn), Laws 1859, ch. 484 ; Am'd, Laws 1860, ch. 100. Municipal aid to. Laws 1869, ch. 101. Long Island City and Calvary Cemetery Railroad. — Incorporated, Laws 1871, ch. 681. Madison Connty Railroad. — Incorporated, Laws 1829, ch. 160. Charter amended, Laws 1836, ch. 409. Maiden Railroad. — Incorporated, Laws 1837, ch. 421. See, also. Laws 1863, ch. 478. Charter amended. Laws 1866, ch. 689. Manheim and Salisbury Railroad. — Incorporated, Laws 1884, ch. 195. Charter amended, Laws 1836, ch. 442. Name changed to Mohawk and St. Lawrence Railroad, Laws 1837, ch. 387. Maspeth Railroad and Bridge Co. — Williamsburgh and Newtown Bail- road may consolidate with Maspeth Ave. and Toll-bridge Co. and form. Laws 1867, ch. 598. (See Williamsburgh and Newtown Rail- road.) Mayrille and Portland RaOroad.— Incorporated, Laws 1832, ch. 63. Charter amended, Laws 1834, ch. 96 ; Laws 1837, ch. 393. 30 290 TABLE 01" BAILEOAD CHAKTBR8 Medina and Darlen Railroad.— Incorporated, Laws 1834, ch. 376. Char- ter amended, Laws 1839, ch. 315. Medina and lake Ontario Bailroad.— Incorporated, Laws 1836, ch. 340. Metropolitan Railroad (Brooklyn).— Constiuction of, authorized. Laws 1866, ch. 910. Middlebnrgli and Schoharie Railroad.— Municipal aid to, Laws 1867, ch. 808; Am'd, Laws 1868, ch. 57. Weight of rail used by. Laws 1868, ch. 57. MIddletown and Crawford Railroad.— Municipal aid to, Laws 1868, ch. 788. Weight of rail used by, Laws 1871, ch, 453. MIddletown Horse Railroad. — Incorporated, Laws 1870, ch. 367. Middletown, Unionville and Water Gap Railroad.— Weight of rail used by. Laws 1868, ch. 365. Mohawk and Hudson Railroad.- Incorporated, Laws 1836, ch. 253. Charter amended, Laws 1838, ch. 133. May construct branch ' road, Laws 1883, ch. 79. May increase capital stock, Laws 1884, ch. 30 ; Laws 1884, ch. 89. May discontinue part of road, borrow money, &o., Laws 1887, ch. 888. May construct new sec- tion of road, Laws 1838, ch. 334. Name changed to Albany and Susquehanna Railroad, Laws 1847, ch. 91. (See Albany and Susquehanna Railroad.) Mohawk and Moose River Railroad. — Incorporated, Laws 1857, ch. 435. Mohawk and St. Lawrence Railroad. — Manheim and Salisbury Railroad changed to. Laws 1837, ch. 387. (See Manheim and Salisbury Railroad.) Mohawk Valley Railroad. — ^May consolidate with Syracuse and Utica Railroad, Laws 1853, ch. 76. Mohawk Yalley and Piseco Raili-oad. — Incorporated, Laws 1863, ch. 163. Montgomery and Erie Railroad. — Municipal aid to. Laws 1867, ch. 887. Monticello and Port Jervis Railroad. — Organization, &c. of, confirmed. Laws 1869, ch. 111. Municipal aid to. Laws 1868, ch. 553 ; Am'd Laws 1869, ch. 96. Town bonds issued by commissioners in aid of, legalized. Laws 1871, ch. 809. Nassau Railroad (Brooklyn). — Construction of, authorized. Laws 1866, ch. 833. Change of route of, Laws 1868, ch. 386. May consolidate with Greenpoint and Williamsburgh Railroad, Laws 1868, ch. 576. Newark Railroad. — Incoiporated, Laws 1836, ch. 438. New Brighton and Onondaga Talley Railroad.— Incorporated, Laws 1869, ch. 580. Charter amended. Laws 1870, ch. 343. Newhnrgh Horse Railroad.— Construction of, authorized. Laws 1868, ch. 489. ' NewburgU and Wallkill Valley Railroad.— Act to facilitate the construc- tion of, Laws 1868, ch. 803. Newtown and Flushing Railroad.— May construct drawbridge over Flushing creek. Laws 1871, ch. 518. AND OTHEE ENACTMENTS. 291 New- York and Albany Railroad. — Incorporated, Laws 1833, ch. 163. Charter amended, Laws 1833, ch. 375 ; Laws 1836, ch. 268 ; Laws 1837, ch. 411; Laws 1838, ch. 399; Laws 1843, ch. 184. May borrow money. Laws 1839, ch. 183. Time for completion of, ex- tended, Laws 1871, ch. 358. New York Bridge Co. — Railroad franchise conferred on. Laws 1869) ch. 36. New York and BrooMyn Iron Tvbulan- Tunnel Oompany. — Incorporated, and railroad frachise conferred on, Laws 1868, ch. 550. Charter amended, Laws 1869, ch. 353. Sew York and BrooMyn Sail Way Bock Co. — Incorporated, Laws 1837, ch. 303. New York Central Eailroad.— Relative to payment of fare on. Laws 1857, ch. 338;.Am'd Laws 1858, ch. 137. Maji erect railroad station in village of Geddes, Laws 1860, ch. 453. , May run cars in streets of Buflfalo, Laws 1866, ch. 851. Highway tax of, how applied. Laws 1863, ch. 130. Restrictions in regard to directors ot; Laws 1868, ch. 378; Am'd Laws 1869, ch. 916. May increase capital stock. Laws 1869, ch. 918. Disposition of highway tax paid by, Laws 1862, ch. 130 ; Am'd Laws 1871, ch. 430. New York City Central Underground Railway. — ^Incorporated, Laws 1868, ch. 330. Charter amended, Laws 1869, ch. 834. New York and Connecticut Railroad. — Incorporated, Laws 1846, ch. 315. New York and Erie Railroad, — ^Incorporated, Laws 1833, ch. 334. Char- ter amended. Laws 1833, ch. 183; Laws 1835, ch. 247 ; Laws 1843, ch. 337; Laws 1844, ch. 118; Laws 1857, ch. 356: Laws 1860, ch. 160; Laws 1861, ch. 119; Laws 1863, ch. 66. Survey of route authorized, Laws 1834, ch. 311. Commissioners appointed to de- termine route of. Laws 1846, ch. 199. State aid to. Laws 1836, ch. 170: Laws 1836, ch. 336; Laws 1840, ch. 196; Laws 1845, ch. 325; Laws 1846, ch. 318. Sale of, postponed, and company allowed to resume constructioo of road, Laws 1843, ch. 300. May construct branch to Newburgh, Laws 1845, ch. 49; con- structed. Laws 1848, ch. 361. Relating to sale of, under foreclos- ure, Laws 1860, ch. 160. Incorporation of purchasers of, under foreclosure sale. Laws 1861, ch. 119. (See Erie Railway.) New York and Plnshijig Railroad. — Weight of rail used by. Laws 1861, ch. 105. Maybe consolidated with Flushing and Northside Rail- road, Laws 1869, ch. 143. New York and Harlem Railroad. — Incorporated Laws 1831, ch. 368. Charter amended, Laws 1832, ch. 93 ; Laws 1835, ch. 101 ; Laws 1836, ch. 305 ; Laws 18:37, ch. 55 ; Laws 1839, ch. 166 ; Laws 1840, ch. 243 ; Laws 1845, ch. 333 ; Laws 1846, ch. 200 ; Laws 1848, ch. 143; Laws 1849, ch. 75; Laws 1849, ch. 317. Relating to use of streets of New York by. Laws 1859, ch. 387 ; Laws 1867, ch. 880. Par value of shares, reduced. Laws 1855, ch. 397. Increase of capital stock, regulated. Laws 1P53, ch. 153 ; Laws 1853, ch. 38. Restrictions in regard to directors of. Laws 1868, ch. 278 ; Am'd, Laws 1869, ch. 916. Relation to bridges of. Laws 1857, ch. 307. Act in relation to new passenger depot of, in the city of New York, Laws 1869, ch. 919. New York and Highland Suspension Bridge Railway, — May build bridge over Harlem river, Laws 1869, ch. 794. 292 TABLE OF EAILROAB CHAETBES New York, Honsatonic and Northern Eailroad.— May accept grant for railroad purposes, trom State of Connecticut, Laws 1865, ch. 673. Act in relation to, Laws 1868, ch. 363. New York and Jamaica Railroad.— Long Island Railroad may purchase, Laws, 1860, ch. 65. New York and New Haven Eailroad. — May extend its road from Con- necticut line to connect with N. Y. and Harlem Eailroad, Laws 1846, ch. 195. New York and New Eochelle Eailroad. — Time for construction of, ex- tended, Laws 1854, ch. 43. May construct bridges across Harlein and other rivers. Laws 1853, ch. 382. New York Northern Eailroad. — Incorporated, Laws 1886, ch. 845. Char- ter amended. Laws 1871, ch. 314. New York and Osweg'o Midland Eailroad. — Municipal aid to, Laws 1866, ch. 398 ; Laws 1867, ch. 917 ; Laws 1868, ch. 61 ; Laws 1889, ch. 84. May extend road. Laws 1871, ch. 398. May consolidate with Utica, Clinton, and Binghampton Eailroad, &c.. Laws 1870, ch. 794. New York Eailway. — Incorporated, Laws 1871, ch. 800. Act supple- mentary to charter. Laws 1871, ch. 808. New York and Eoekaway Eailroad. — May construct draw-bridge over Foster's meadow canal. Laws 1871, ch. 615. New York and White Plains Eailroad. — May construct draw-bridge over Bronx Eiver, Laws 1871, ch. 863. Niagara Falls Suspennion Bridge Oortvpany. — Railroad franchise confer- red on. Laws 1867, ch. 339. Niagara Street Eailroad (Buffalo.) — Manner of acquiring land for. Laws 1860, ca. 145. Grant to, confirmed, Laws 1867, ch. 131. Buffalo Street Railroad may purchase. Laws 1868, ch. 333. Ninth Avenue Eailroad.— Confirming grant to, Laws 1860, ch. 411. May use portion of track of Dry Dock, East Broadway and Bat- tery Railroad, Laws 1866, ch. 868. Northern Eailroad.- Incorporated, Laws 1845, ch. 334. May borrow money. Laws 1847, ch. 35. Compensation of trustees of second mortgage bonds of, Laws 1865, ch. 386. Time for construction of, extended, Laws 1854, ch. 60. May increase capital stock. Laws 1851, ch. 328. May tuke stock in railroad to Pottsdam, Laws 1851, ch. 262. May extend road. Laws 1851, ch. 343. Stock- holders and bondholders of, authorized to form Ogdensburgh and Champlain Railroad, Laws 1855, ch. 401. Formation rf Uailroad in place of late, authorized. Laws 1857, ch. 199. Am'd Laws 1858, ch. 330 ; Am'd Laws, 1864, ch. 143. (See Ogdensburgh and Lake Champlain Railroad.) Northern Eailroad (of New Jersey.)— May construct part of its road in this State, Laws 1858, ch. 353. Northern Paciiic Eailway.— Concurrent resolutions relative to. Laws 1867, page 3494. ' ' Northern Slackwater and Eailway — Incorporated, Laws 1846, oh. 311. Charter amended, Laws 1848, ch. 374. AKD OTHEE EKACTMENTS. 293 North Side Bailroad (L. I.) — May construct draw-bridges, Laws 1867, ch. 676. North Shore Railroad (L. lO^May construct drawbridge over Little Necli: Creek, Laws 1864, ch. 350. Weight of rail used by, Laws 1864, ch. 350. Oakwood Street Railroad (Syracuse).— May change route of its road, Laws 1871, ch. 901. Ogdensburgh, Clayton, aiid Rome Railroad. — Municipal aid to, Laws 1853, ch. 283. Am'd Laws 1860, ch. 327. May apply for ap- praisal of lands. Laws 1854, ch. 11. Ogdensbnrgh and Lake Champlain Railroad. — Incorporated in place of Northern Railroad dissolved, Laws 1857, ch. 1C9. Charter amended. Laws 1866, ch. 37. Survey of, authorized, Laws 1838, ch. 300 ; Laws 1840, ch. 2S3 ; Laws 1848, ch. 346. Municipal aid to. Laws 1866, ch. 183 ; Am'd Laws 1869, ch. hlS. May construct branch road, Laws 1866, ch. 183. To grant facilities for trans- portation to Plattsburgh and Montreal Railroad, Laws 1866, ch. 46. May issue additional stock. Laws 1871, ch. 790, (See North- ern Railroad.) Ogdensburgh Marine Railroad.— May borrow money, Laws 1854, ch. 31. Olean Village to Erie Eailway deipot at Olean. — Act authorizing con- struction of railroad from, Laws 1868, ch. 679. , One Hundred and Twenty-flfth Street Railroad (N. T.)— Sale of fran- chise for, Laws 1870, ch. 504. Oneida Talley Railroad. — Incorporated, Laws 1864, ch. 397. Orange and Sussex Canal Company. — Railroad franchise conferred on, Laws 1838, ch. 169. Oswego (Fortification Gh-ounds in City of). — Consent State of New York, granted to railroads to cross, Laws 1870, ch. 70. Oswego [Towns in County of). — ^May aid in construction of railroad in said county. Laws 1869, ch. 451. Oswego City Street Railroad. — Construction of, authorized. Laws 1869, ch. 636. Oswego, Binghampton, and New York Railroad. — Time for completion of, extended, Laws 1857, ch. 243. Oswego and Cortland Railroad. — Incorporated, Laws 1836, ch. 431. Oswego Marine Railroad. — Incorporated, Laws 1831, ch. 196. Oswego and Rome Railroad. — Weight of rail used by. Laws 1863, ch. 293. May issue preferred stock, Laws 1866, ch. 544. Buildings of, in city of Oswego, how located, &c.. Laws 1865, ch. 245. Oswego and Syracuse Railroad. — Incorporated, Laws 1839, ch. 270. Charter amended. Laws 1841, ch. 17. Charter revived. Laws 1845, ch. 320. Charter amended, Laws 1847, ch. 65. May con- solidate with Syracuse and Binghamton Railroad, Laws 1853, ch. 205 May erect railroad station in village of Geddes, Laws 1860, ch. 453. May change time for election of directors, Laws 1864, ch. 188. Transportation of freight on. Laws 1847, ch. 270. 294 TABLE OF EAILEOAD CHARTERS Oswego and Troy Railroad. — Municipal aid to, Laws 1854, ch. 375. Oswego aad TJtica Railroad,— Incorporated, Laws 1836, ch. 343. Char- ter amended. Laws 1838, eh. 98. Otsego Railroad. — Incorporated, Laws 1832, ch. 313. Panama Railroad.— Incorporated, Laws 1849, ch. 284. Charter amend- ed. Laws 1855, ch. 364. Park Are. RaUroad (Brooklyn). — Construction of, authorized, Laws 1870, ch. 600. Penfleld and Canal Railroad. — Incorporated, Laws 1837, ch. 345. Plank Road Railroad. — Incorporated, Laws 1866, ch. 749. Charter amended. Laws 1871, ch. 716. Plattshnrgh and Montreal Railroad. — Public use of, declared, Laws 1849, ch. 265. May increase rate of fare, Laws 1858, ch. 154. Number of directors of; reduced. Laws 1866, ch. 486. To grant facilities for transportation to Ogdensburgh and Lake Champlain Railroad, Laws 1866, ch. 46. Act for benefit of holders of mort- gage bonds of, Laws 1867, ch. 376. Plattshurgh and Rouse's Point Railroad. — May construct draw-bridge over Big Chazy River, Laws 1851, ch. 530. Pneumatic Transit Co. (N. T. City).— Incorporated Laws 1868, ch. 842. Charter amended, Laws 1869, ch. 512. Port Byron and Auburn Railroad. — Incorporated, Laws 1839, ch. 154. Pottsdam .and Watertown Railroad. — May commence construction of its road, Laws 1853, ch. 160. Discharge of judgment against. Laws 1853, ch. 239. May increase rate of fare. Laws 1859, ch. 217. Poughkeepsie City Railroad. — Incorporated, Laws 1866, ch. 368. See, also, Laws 1869, ch. 654. Poughkeepsie and Eastern Railroad. — Incorporated, Laws 1866, ch. 546. Charter amended, Laws 1868, ch. 551 ; Am'd, Laws 1869, ch. 600; Am'd Laws 1871, ch. 838. Cancellation of bonds of, Laws 1871, ch. 23. Pullman Pacific Oar Go. — Incorporated, Laws 1868, ch. 319. Queens County Railroad. — Weight of rail used by, Laws 1871, ch. 566. Ravenswood, Hallett's Cove, and WUliamsburgh Turnpike. — Railroad franchise conferred on, Laws 1860, ch. 198. See, also. Laws 1863, ch. 494. Rensselaer and Saratoga Railroad.— Incoi-porated, Laws 1833, ch. 131. Charter amended, Laws 1843, ch. 232. Capital stock increased, Laws 1836, ch. 118. May borrow money. Laws 1838, ch. 380. Manner of forming train, Laws 1864, ch. 107. Rio de Janeiro Street Railroad.— Management of, regulated, Laws 1870, ch. 763. Rochester and Brighton Raili-oad.— Rate of fare on, &c., Laws 1865, ch. 754. Rochester Canal and Railroad.— Incorporated, Laws 1831, ch. 89. Char- ter amended, Laws 1833, ch. 36. Rochester and Charlotte Railroad. — Inooi-porated, Laws 1836, ch. 411. Rochester City and Brighton Railroad.— May operate railroad, &c.. Laws 1869, ch. 34. ' ANB OTHEE ENACTMEKTS. 295 Eochester and Genesee Valley Kailroad.— Election of directors for, Laws 1851, ch. 387, § 290 ; Am'd, Laws 1867, ch. 59. Municipal aid to, Laws 1853, ch. £87. City of Rochester authorized to sell stock of. Laws 1860, ch. 430 ; Am'd, Laws 1868, ch. 382. Rochester and loekport Railroad.— Incorporated, Laws 1887, ch. 427. Charter amended, Laws 1888j-ch. 303. Rochester, Loekport and Niagara Falls Railroad.— May straighten its track. Laws 1851, ch. 327. May loan its credit to railroad from Loekport to Tonawanda, Laws 1852, ch. 397. May consolidate with the Buffalo and Rochester Railroad, Laws 1853, ch. 76. Eochester and Pine Creek Railroad. — Rate of passenger fare on. Laws 1871, ch. 549. Eochester and Syracuse Railroad. — May consolidate with the Buffalo & Rochester Railroad, &c., Laws 1858, ch. 76. Rome and Clinton Railroad. — Municipal aid to, Laws 1869, ch. 593 ; Am'd Laws 1870, ch. 505. Rome and Oswego Railroad. — ^May abandon part of i^s road, Laivs 1854, ch. 80. May sell or lease part of its road, Laws 1855, ch. 453. Rome and Port Ontario RaUroad. — Incorporated, Laws 1887, ch. 417. Rondont and Oswego Railroad. — Municipal aid to. Laws 1866, ch. 648; Laws 1867, ch. 838; Laws 1869, ch.ll ; Laws 1870, ch. 397; Laws 1871, ch. 682. May increase rate of fare. Laws 1870, ch. 510. Extension of, by steam ferry, Laws 1871, ch. 458. Eondout and Port Jervis Raili'oad. — Time for completion of, extended, Laws 1870, ch. 513. Rntland and Whitehall Railroad. — ^Incorporated, Laws 1836, ch. 418. Sackett's Harbor RaUroad. — ^Extending power of, to purchase land, Laws 1855, ch. 133. Sackett's Harbor and EUisbnrgh Railroad. — Act in relation to, Laws 1851, ch. 408. May increase rate of fare. Laws 1857, ch. 740. Sackett's Harbor, Rome and New York Railroad, — Capital stock re- duced. Laws 1860, ch. 343. Sackett's Harbor and Saratoga Railroad. — ^Incorporated, Laws 1848, ch. 307. Charter amended. Laws 1851, ch. 73 ; Laws 1853, ch. 344 ; Laws 1855, ch. 122. May construct portion of its road in Warren and Essex counties, Laws 1854, ch. 373. Lands of, exempt from taxation, Laws 1857, ch. 98. Name changed to Lake Ontario and Hudson River Railroad, Laws 1857, ch. 380. (See Lake On- tario and Hudson River Railroad.) Sackett Street Railroad (Brooklyn). — Construction of, authorized, Laws 1866, ch. 913.* Salina and Port Watson Railroad. — ^Incorporated, Laws 1839, ch. 376. Saratoga {Towns in County of) may aid in construction of railroad from Mechaaicsville to towns of Moreau and Fort Edward* &c., Laws 1868, ch. 834 ; Laws 1869, ch. 514. * Bound with Laws 1867, page 13. 298 TABLE OB" EAILKOAD CHAETEKS Saratoga and Fort Edward Kailroad.— Incorporated, Laws 1833, oh. 166. Saratoga and Montgomery Kailroad.— Incorporated, Laws 1836, ch. 361. Saratoga and Schenectady Railroad. — ^Incorporated, Laws 1831, ch. 43. Charter amendsd, Laws 1831, ch. 141 May use part of track of Utica and Schenectady Railroad, Laws 1838, ch. 393. Saratoga Springs {Village of ). — Railroad in, authorized. Laws 1870, ch. 675. Saratoga Springs and Schuyleryille Railroad.— Incorporated, Laws 1833, ch. 315. Saratoga and Washington Railroad. — Incorporated, Laws 1834, ch. 349. Charter amsnded, Law3 1840, ch. 109 ; Laws 1844, ch. 367 ; Laws 1847, ch. 58; Laws 1848, ch. 74. Time for completion of, ex- tended, Laws 1850, ch. 149. Schenectady and Catskill Railroad. — Incorporated, Laws 1846, ch. 313. Charter amended, Laws 1848, ch. 67 ; Laws 1850, ch. 53. Schenectady and Ogdensburgh Railroad. — Surrey for route of, author- ized, Laws, 1886, ch. 897. Schenectady and Susq[nehauna Railroad. — Incorporated, Laws 1846, ch. 308. Schenectady and Troy Railroad. — Incorporated, Laws 1836, ch. 437. Charter amended. Laws 1839, ch. 31. State aid to, Laws 1840, ch. 399. Capital stock increased, Laws 1843, ch. 135. Authoriz- ing tax in city of Troy for payment of debts of, Liws 1850, ch. 334. May consolidate with Albany and Schenectady Railroad, &c.. Laws 1853, ch. 76. Report required of, Laws 1847, ch. 370. Schenectady and Utica Railroad. — Time for construction of road ex- tendsd. Laws 1869, ch. 751. Schoharie {Village of). — Construction of horse-railway in, authorized, Laws 1871, ch. 381. Schoharie and Otsego River Railroad. — Incorporated, Laws 1833, ch. 363. Schoharie Valley Railroad. —Number of directors of, reduced. Laws 1867, ch. 616. Municipal aid to, Laws 1866, ch. 160 : Laws 1868, ch. 307 ; Laws 1871, ch. 889. Scottsville and Canandaigna Railroad. — Incorporated, Laws 1838, ch. 310. Scottsville and Le Roy Railroad. — Incorporated, Laws 1836, ch. 430. Charter amended, Laws 1837, ch. 389. Second Avenue Railroad (ITew York). — ^May construct draw-bridge across Harlem River, Laws 1855, ch. 373. May discontinue por- tion of road, Laws 1857, ch. 319 ; Laws 1857, ch. 551. Seneca Falls and Waterloo Raili-oad.— Incorporated, Laws 1866, ch. 197. ' Seneca Street Railroad (Buffalo).— !i.cts of common couuQil in reference to, confirmed, Laws 1866, ch. 375. ANB OTHER ENACTMENTS. 297 Sharon and Root Railroad.— Incorporated, Laws 1838, ch. 304. Sheepshead Bay and Sea Shore Railroad.— Construction of, authorized, Laws 1865, ch. 769. Silver Lake Railroad. — Municipal aid to, Laws 1869, ch. 25. Sinnomahoning Portage RaUroad (Pa.)— BufiFalo and Washington Rail- road may consolidate with. Laws 1866, ch. 672. Skaneateles Railroad.— Incorporated, Laws 1836, ch. 871. Charter amended. Laws 1838, ch. 68; Laws 1841, ch. 135; Laws 1845, ch. 50. Re-incorporated, Laws 1866, ch. 635. New charter amended, Laws 1867, ch. 175 ; Laws 1868, ch. 383. Weight of rails used by. Laws 1866, ch. 663 ; Am'd Laws 1867, ch. 699 ; Am'd Laws 1869, ch. 188. Sodas Point Railroad. — Relative to inspectors of election for directors of, Laws 1855, ch. 174; Am'd Laws 1856, ch. 153. Sodas Point and Southern Railroad. — Municipal aid to, Laws 1853, ch. 361 ; Am'd Laws 1854, ch. 361. Railroads may subscribe to capital stock of. Laws 1853, ch. 435. Appointing inspectors of election for directors of, Laws 1855, ch. 174. Time for completion of, extended, Laws 1860, ch. 384; Laws 1870, ch. 340. South Brooklyn and Bergen Street Railroad.— Construction of, author- ized. Laws 1863, ch. 303. Southern Central Railroad. — ^Municipal aid to. Laws 1853, ch. 375; Laws 1866, ch. 433; Am'd Laws 1867, ch. 433 ; Am'd Law,s 1867, ch. 918 ; Am'd Laws, 1868, ch. 173. Time for completion of, ex- tended. Laws 1870, ch. 245. South Side Railroad (L. I.) — Certain privileges granted to. Laws 1861, ch. 106. Capital stock increased, Laws 1866, ch. 135. May alter par value of^ shares of capital stock. Laws 1871, ch. 854. Time for completion of, extended. Laws 1864, ch. 245 ; Laws 1866, ch. 185. May extend its road. Laws 1867, ch. 369. May use steam- dummy in streets of Brooklyn, Laws 1869, ch. 878. Spnyten Dnyvil and Port Morris Railroad. — Construction of, author- ized. Laws 1867, ch. 706. Staten Island Railroad. — Incorporated, Laws 1836,. ch. 435. May run steam ferry-boats. Laws 1853, ch. 61 ; Laws 1857, ch. 107. Time for construction of railroad extended, Laws 1853, ch. 453 ; Laws 1855, ch. 366. Staten Island Bridge Oompcmy. — Railroad franchise conferred on. Laws 1870, ch. 795. St. La/wrence and FranMin (Towns in Counties of) may aid in construc- tion of railroad in said counties irom, Potsdam Junction to Province line. Laws 1868, ch. 737. Syracuse (Oity of). — Authorizing construction of railroads in certain streets of, Laws 1871, ch. 93. See, also. Laws 1859, ch. 483. Syracuse and Binghampton Railroad. — Municipal aid to. Laws 1853, ch. 114. May consolidate with Oswego and Syracuse Railroad, Laws 1853, ch. 305. (See Oswego and Syracuse Railroad.) Syracuse, Binghampton and New York Railroad.— Syracuse and South- ern Railroad changed to. Laws 1858, ch. 374. 31 298 TABLE OF KAILEOAD CHAETERS Syracuse and Chenango Valley Eailroad,— Municipal , aid to, Laws 1868, ch. 541; Laws 1868, ch. 570; Laws 1869, ch. 60; Laws 1871, ch. 789. Subscription to stock of, regulated,' Laws 1871, ch. 334. May take transfer of property, &c., of Syracuse, Fayetteville and Manlius Railroad, Laws 1868, ch. 74. (See Syracuse, Fayetteville and Manlius Railroad.) Syracuse, Cortland and Binghampton Railroad. — Incorporated, Laws 1836, ch. 433. Public use of, declared, Laws 1848, ch. 303. Syracuse, FayetteTille and Manlius Railroad. — Organization of, con- firmed, Laws 1867, ch. 916. May transfer its property, &c., to the Syracuse and Chenango Valley Railroad, Laws 1868, ch. 711. (See Syracuse and Chenango Valley Railroad.) Syracuse and Geddes Railroad. — Construction of, authorized. Laws 1861, ch. 193 ; Laws 1863, ch. 406. Syracuse Northern Railroad. — Municipal aid to, Laws 1868, ch. 544; Laws 1868, ch. 571 ; Laws 1869, ch. 66. May mortgage its prop- erty. Laws 1871, ch. 373. May construct swing-bridge over Os- wego Canal, Laws 1871, ch. 353. Syracuse and Onondaga RaUroad (No. 1). — Incorporated, Laws 1836, ch. 348. Syracuse and Onondaga Railroad (No. 2). — Construction of, authorized, Laws 1868, ch. 340. Time within which, may organize. Laws 1866, ch. 583. May construct branch road, Laws 1869, ch. 695. Syracuse to Onondaga Hill. — Construction of railroad from, authorized. Laws 1870, ch. 511. Syracuse 'and Onondaga Valley Railroad. — Incorporated, Laws 1866, ch. 384. Syracuse and Southern Railroad. — ^May change its name to Syracuse, Binghamton and New York, Laws 1857, ch. 314. (See Syracuse, Binghamton and New York Railroad.) Syracuse Stone Railroad. — Incorporated, Laws 1836, ch. 347. Syracuse and Utica Railroad. — Incorporated, Laws 1836, ch. 393. Char- ter amended. Laws 1841, ch. 34.' Report required of, Laws 1844, ch. 355; Laws 1847, ch. 370. May borrow money. Laws 1845, ch. 343. May consolidate with Rochester and Syracuse Railroad, &c., Laws 1853, ch. 76. Tram-roads in certain Counties. — Construction of, authorized, Laws 1865, ch. 448. Extended, Laws 1868, ch. 364. Third Avenue Railroad (New York). — May lay switch in 130th street, Laws 1867, ch. 337. Tioga Railroad. — Name changed to The Coming and Blossburgh Rail- road, Laws 1851, ch. 90. Tonawanda Railroad. — Incorporated, Laws 1833, ch. 341. Charter amended. Laws 1840, ch. 116; Laws 1844, ch. 17. Report required of, Laws 1844, ch. 335 ; Laws 1847, ch. 370. State aid to. Laws 1840, ch. 300. May connect with Auburn and Rochester Railroad, Laws 1844, ch. 50. Rate of fare on, Laws 1846, ch. 393. Time for completion of, extended. Laws 1848, ch. 151. May consolidate with Attica and Buffalo Railroad, Laws 1850, ch. 336. Trenton and Sackett's Harhor Railroad.— Incorporated, Laws 1837, ch. 438. ' AND OTHER ENACTMEKTS. 299 Troy and Albia Bailroad. — Provisions of general railroad act construed with reference to, Laws 1866, ch. 334; Am'd, Laws 1869, ch. 80. May extend road, Laws 1867, ch. 779. Troy and Boston RaUroad.— May lease part of "Western Vermont Eail- road and build branch, Laws 1851, ch. 533. Time for construc- tion of, extended. Laws 1855, ch. 128; Laws 1857, ch. 518. May erect freight depot, &c., in city of Troy, Laws 1859, ch. 109. Kate of fare on. Laws 1867, ch. 193. Chapter 193 of Laws 1867 re- pealed, Laws 1869, ch. 607. Troy and Cohoes Bailroad. — Provisions of general railroad act construed with reference to. Laws 1863, ch. 85. Eate of fare on. Laws 1871, ch. 71. Troy and Greenbush Bailroad. — Incorporated, Laws 1845, ch. 323. May increase its capital stock, Laws 1848, ch. 38. Troy and Lansingbnrgh Bailroad. — Provisions of general act construed with reference to, Laws 1861, oh. 295. Troy and Stoctbridg'e Bailroad. — Incorporated, Laws 1832, ch. 297. Charter amended. Laws 1837, ch. 374; Laws 1839, ch. 106. Troy to Easterly Line of Bensselaer bounty. — ^Public use of railroad from, declared. Laws 1848, ch. 173; Laws 1849, ch. 329. Troy Turnpike and Bailroad. — ^Incorporated, Laws 1831, ch. 182. Char- ter amended. Laws 1835, oh. 25; Laws 1837, ch; 169; Laws 1838, ch. 185 ; Laws 1839, ch. 368. Charter revived. Laws 1846, ch. 320. May transfer part of road-bed to city of Troy, Laws 1856, ch. 50. Troy Union BaUroad. — Construction of, authorized. Laws 1851, ch. 255. Taxation of, regulated. Laws 1853, ch. 462. Redemption of town bonds issued in aid of. Laws 1862, ch. 59. City of Troy to raise monev by taxation to pay interest on bonds issued in aid of. Laws 1859, "ch. 386. Tyrone and Geneva Bailroad. — Incorporated, Laws 1887, ch. 472. Twenty-third St. Bailroad (New York). — Construction of, authorized. Laws 1869, ch. 823. Ulster County Bailroad. — Incorporated, Laws 1836, ch. 421. Unadilla and Schoharie Bailroad. — Incorporated, Laws 1836, ch. 269. Union BaUroad. — Syracuse, Binghamton and New York Railroad may purchase road, &c., of, Laws 1858, ch. 274. University Railway (Syracuse). — ^Incorporated, Laws 1871, ch. 516. Union TUlage and JohnsonviUe Bailroad. — Weight of rail used by. Laws 1867, ch. 172. May change name to Greenwich and Johnsonville Railroad, Laws 1869, ch. 341. Municipal aid to, Laws 1869, ch. 340. Utica and Binghamton Bailroad. -^Municipal aid to. Laws 1854, ch. 367 ; Laws 1854, ch.-372 ; Laws 1854, ch. 377 ; Laws 1855, ch. 66 ; Laws 1855, ch. 504. Time for construction of, extended, Laws 1855, ch. 237 ; Laws 1857, ch. 510. May apply for appraisal of lands. Laws 1854, ch. 378. Utica and Black Biver Bailroad. — ^Municipal aid to, Laws 1866, ch. 624 ; Am'd, Laws 1868, ch. 240 ; Am'd, Laws 1869, ch. 832. Time- for completion of, extended, Laws 1866, ch. 327. May apply for appraisal of lands. Laws 1866, ch. 837. 300 TABLE OF EAILROAD CHAETEE8 Utica, Chenango and Susquehanna Valley Eailroad. — May apply for appraisal of land, Laws 1866, ch. 664; Am'd, Laws 1867, ch. 333; Am'd, Laws 1869, ch. 390. Act in relation to, Laws 1868, ch. 361. May extend road, Laws 1869, ch. 380. Municipal aid to. Laws 1866, ch. 50; Laws 1866, ch. 364; Am'd, Laws 1867, ch. 334; Laws 1867, ch. 581. Time for completion of, extended, Laws 1870, ch. 508. Utica City EaQroad. — May change name to Utica and Waterville Rail- road, Laws 1864, ch. 177. Municipal aid to, Laws 1866, ch. 376. May apply for appraisal of lands. Laws 1866, ch. 837. Utica, Clinton and Binghamton Eailroad, — Utica and Waterville Rail- road changed to, Laws 1868, ch. 51. Municipal aid to. Laws 1869, ch. 77. May consolidate with New York and Oswego Mid- land Railroad, Laws 1870, ch. 794. May use swing- bridge over Erie Canal, Laws 1871, ch. 350. (See Utica and Waterville Rail- road.) Utica and Mohatrk Street Eailroad. — ^Incorporated, Laws 1869, ch. 894. Utica and Schenectady Eailroad. — ^Licorporated, Laws 1833, ch. 394. Charter amended. Laws 1844, ch. 335. May carry U. S. mail. Laws 1837, ch. 13. May carry extra baggage. Laws 1837, ch. 363. May borrow money. Laws 1845, ch. 343. Report required of. Laws 1847, ch. 370. May consolidate with Syracuse and Utica Railroad, Laws 1853, ch. 76. Utica and Susquehanna Eailroad. — Incorporated,' Laws 1833, ch. 388. Utica and Waterville Eailroad. — ^Utica City Eailroad changed to. Laws 1864, ch. 177. May change name to Utica, Clinton and Bingham- ton Railroad, Laws 1868, ch. 51. (See Utica, Clinton and Bingham- ton Eailroad.) Van Brunt Street and Erie Basiu Eailroad. — ^May lay track in Elizabeth street, Laws 1867, ch. 533. Waddington {Town of, St. Lawrence Oo.). — May aid in construction of branch road, Laws 1869, ch. 313. Walltill Valley Eailroad. — ^Municipal aid to. Laws 1866, ch. 880 ; Am'd, Laws 1867, ch. 813 ; Laws 1868, ch. 45; Laws 1868, ch. 311 ; Laws 1870, ch. 763. May extend road. Laws 1868, ch. 311 ; Laws 1870, ch. 368 ; Laws 1870, ch. 763. May connect with other railroads. Laws 1867, ch. 757. Warren County Eailroad. — Incorporated, Laws 1833, ch. 167. Warsaw {Village of). — Construction of railroad in, authorized. Laws 1869, ch; 553. Warsaw and Le Eoy Eailroad. — Incorporated, Laws 1834, ch. 391. Char- ter amended. Laws 1836, ch. 105. Warwick Eaili'oad.— Incorporated, Laws 1837, ch. 415. Charter re- vived. Laws 1843, ch. 339. Warwick Valley Eaili-oad.— Weight of rail used by. Laws 1861, ch. 333. May extend its road, Laws 1866, ch. 630. Washington County Central Eailroad. — Time for constructing road ex- tended. Laws 1855, ch. 403. Watertown and Cape Vincent Eailroad.— Incorporated, Laws 1836, ch. • 341. Charter revived, Laws 1845, ch. 331. AND OTHER ElfAOTMEKTS. 301 Watertown and Rome EaUroad.— Incorporated, Laws 1832, ch. 173. Charter revived, Laws 1836, ch. 383; Laws 1837, ch. 346; Laws 1845, ch. 337 ; Laws 1847, ch. 147. Charter amended, Laws 1849, ch. 235; Laws 1853, ch. 336. 'To endorse and guarantee the bonds of Potsdam and Watertown Railroad, Laws 1854, ch. 154. Time of holding election for directors of, changed. Laws 1857, ch. 473. WateiTliet and Schenectady BaOroad. — Incorporated, Laws 1836, ch. 416. Watemliet Turnpike Company. — ^Railroad franchise conferred on, Laws 1862, ch. 333. Weatehester (^County of). — Construction of railroad in certain towns of, authorized. Laws 1860, ch. 143. Westchester County Railroad. — May construct bridges over Bronx River, &c., Laws 1857, ch. 478. Time for construction of, ex- tended. Laws 1858, ch. 189. West Side and Yonkers (patent) Railway. — ^May construct elevated rail- way in counties of New York and Westchester, Laws 1867, ch. 489. Time for construction of, extended. Laws 1868, ch. 855. West Shore Railroad. — ^May occupy certain land under water. Laws 1865, ch. 556. Time for construction of, extended, Laws 1867, ch. 384. Whitehall and Plattsbnrgh Railroad. — ^PubUc use of, declared. Laws 1849, ch. 394. Municipal aid to. Laws 1853, ch. 176 ; Laws 1867, ch. 874. State aid to. Laws 1867, ch. 103; Am'd Laws 1869, ch. 352. May construct road across certain bays and inlets. Laws 1868, ch.40. May iucrease fare, and establish ferry. Laws 1869, ch. 682. Repeal of § 3 of chap. 683, Laws 1869, Laws 1871, ch. 686. Time for constructing, extended. Laws 1871, ch. 844. WiUiamsbnrg'h and Flatbnsh Railroad. — Route of road, authorized. Laws 1866, ch. 771. WUliamsbnrgh and Newtown RaUroad. — ^May consolidate with Maspeth Avenue and Toll-bridge Company, Laws 1867, ch. 598. WiUiamsport and Elmira Railroad. — May construct part of its road in this State, Laws 1850, ch. 333. Municipal aid to, Laws 1853, ch. 303. ■* Woodside and Flushing Railroad.— May construct draw-bridge over Flushing Creek, Laws 1864, ch. 351. Weight of rail used by Laws 1864, ch. 251. INDEX AGREEMENT — as to construction of so much of railroad as is com- mon to two companies, 112, 113. for consolidation, how made and submitted, 204. must be adopted by vote of two thirds of stockholders, 205. to be filed in office of Secretary of State, 205. on part of landowner to erect railroad fences, 103. to erect fence, need not be in writing, 104». to fence, effect of, 104k. See Lease. AMENDMENT to articles of association, 11. See Articles of Association. to charier, power to make, reserved to Legislature, 28. ANIMALS — Company not liable for injury to, when, lOlra. liability of Company for injury to, after erection, &c., of fences 100». Sec Fences. transportation of, regulated, 111-119. See Live Stock. APPEAL /rom. appraisal and report, how, and when taken. Id, 81n. not to affect possession by Company of land appraised, 80. technical error no ground of, l5n. to be heard, where, 80, 82n. what may be' reviewed on, 82k. will be sustained, when, 82w. will lie, when, 81n. will not lie, when, 82n. from determination of commissioners, of route of road, how and when taken, 61. where to be heard, 61. APPEAISAL of land for railroad purposes, appeal from, will lie, when, 82w. will not lie, when, 81». 304 INDEX. APTEAl&AL— (continued). court on appeal, may grant new, 80. duty of commissioners regarding, 74. how determined, '76m. in whose favor to be made, 77m. not affected by change of ownership, 77. party cannot claim as a right, a second, 83m. party may appeal from, within twenty days after confirmation of report, 79. of salt lands of State required by railroad, how to be made, 91. of State lands, required by company, 90, 91. railroad company rtiay acquire title to State lands by, 90, 91. See Compensation ; Lands, &c. ARTICLES OF ASSOCIATION, certified copy of, presumptive evi- dence of incorporation, 25. company may alter and amend, 17. corporate character to be determined from, 25w. defect in, who may take advantage of, 24. how subscribed, 10. irregularity in, how cured, 17, 18b. may be amended, upon agreement as to construction of line common to two companies, 112-113. of companies using narrow gauge, 14. subscribers, how affected by omission to file, 1 In. 1 2n. to be filed in office of Secretary of State, 10, 12m. to be indorsed and recorded in office of Secretary of State, 10. to be regarded as one instrument though consisting of several papers, 12w. what to be stated in, 9, 14. when to be filed, 13. ARTICLES OF CONSOLIDATION, how made and submitted, 204. must be adopted by vote of two.-thirds of stockholders, 205. to be indorsed by secretaries of respective companies, 205. to be filed in office of Secretary of State, 205. BAGGAGE, check to be affixed to, 172, 174, 175. company bound to deliver, within reasonable time, 173». delivery of, to company, what a sufficient, l74re. liability of company for non-delivery of, 173m, 174». penalty for refusing check to, 172, 175. passenger to remove, within reasonable time, l74n, proof, to entitle one to recover for loss of, l74w. INDEX. 305 BAGGAGE— (con^mwee^). reasonable amount of, how determined, 11 Sn. to be delivered up on presentation of check, 175. transportation of, by boat and railroad to New York, regulated, 169. unclaimed, how disposed of, 11 6, 111. sale of, how conducted, 176, 177. what deemed, 173». what is a reasonable time for delivery of, l74w. See Freight. BELL not required to be rung after engine has passed crossing, 139». omission to ring, at crossing, competent evidence of negligence, 140». penalty for neglect to ring, at crossing, 138, 139n. to be placed on locomotive, 138. to be rung at crossing, 138, 139w. to be rung at what distance, from crossing, 138, 139w, 140n. See Signals. BONDS, railroad, maybe issued, convertible into stock, 209, 210w. may be rendered non-negociable, how, 210. transferable by indorsement, 211. toton, in aid of railroad to bear interest warrants, 224. savings banksvmay invest in, 224. county treasurer to purchase, when, 224. disposition of redeemed, 230. how paid, 227, 228, 229. may be issued, to what amount, 215. may be rendered non negoti§,ble, how, 226. money received by railroad for sale of, how applied, 223. proceedings for authority to issue, 214, 217, 219. to be a charge upon real estate within said town, 227, 228. to be registered, 226. requisite of, 223, 226. when to be delivered to company, 220. BOOKS of subscription to be opened, 34ra. presumption as to when, were closed, 36«. president has no right to produce, in suit against company, 58n. subscription not invalidated by use of subscription papers in- stead of, 34n. subscription in, when of no effect, 34w. 306 INBEX. BOOKS — [continued) . transfer, right to rote, determined from, 55w. to be open to stockholders, previous to election, 56. BRIDGE — abandonment of its road, will not excuse company for non- repair of, 115». company may puroiase private, 11 5n. injunction will not be granted to restrain company from erecting wooden, 115w. liens for labor, &c., employed in erection of, 128. to be constructed, where necessary to carry highway over railroad, 115n. BY-LAWS relative to transfer of stock, 32m, SSn. respecting election, to be published, 54». restricting choice of electors, void, 55n. to be set forth in pleading, whenever to be brought to notice of court, SSn. CANADA THISTLES. See Noxious Weeds. CANAL COMMISSIONERS. See Commissioners. CANALS, change of route of railroads crossing, 107. supervisory power over railroads crossing, in whom vested, 106, 107. CANAL TOLLS, repeal of, 179. CAPITAL, directors prohibited from paying away, 52n. how assessed and taxed, 235. liable to taxation, 235. liability of "stockholders for corporate debts, where, is not paid in, 42, 43«. may be increased, when, 37. may be reduced upon construction of line common to two companies, 112, 113. may be reduced upon location of part of road in adjoining State, 111. may be reduced upon terminating road at point of inter- section with second railroad, 38». See Stock. CARS, care required of company in moving its, 163?i. company liable for goods placed in, when, 165«, 166w. company to render assistance to passengers in getting in or out ■ of, 163«,. defective, company liable for, 164». 165w. horse, care required in management of, 163w. parol agreement as to stoppage of, void, 164m. INDEX. 307 CAR — {continued). passenger, penalty for neglect to provide drinking water in, 134. platforms of, how constructed, 134. position of, in train, 133. to be provided with drinking water for passengers, 134. passengers injured while on platform of, cannot recover, when, 195. passengers may be ejected from, when, 161w. sleeping, may be placed on railroad, when, 13'?. rate of charge for use of, 137. tickets issued for, 13 7. what must be established in action for negligent management of, 163m. CATTLE-GUARDS, animal to be deemed lawfully on highway, in action to recover for want of, lOlw. company to construct and maintain, St, 99w, lOOre, 102. liability of company for non- repair of, lOOw, lOln. need not be constructed, where, 99m. CHARTER, amendment to, will not impair force of a subscription, 28». extent of, 28w. notice of application for, 28w. cannot be amended to change purpose of incorporation, 28w, forfeited for non-user, 26. reservation to legislature of power to amend, not unconstitu- tional, 28«. subject to amendment and repeal, 28. CHECK, baggage to be delivered up on presentation of, 175. penalty for refusing, 172, 175. requisites of, 175. to be affixed to baggage, 172, 174, 175. See Baggage. CITY RAHiROAD, annual report required of, 148. care required in management of oars of, 163n. grants to, confirmed, 124. notice of intent to make, to be given by common council, 124. regulations regarding construction of, in city of New York, 125. in city of Buffalo, 125, 126k. right of way is only interests which, has in street, 123w. to compensate landowner for additional burden imposed on street, 122». when may be constructed, 121, 124i 308 KTDEX. COMMISSIONERS, canal, may assent to change of route of railroad at canal crossing, 107. supervisory power of, over railroad, 106, lOT, 114. of appraisal, appointed, when, '72, 73w, 112. cannot appraise land, with reservation of easement to owner, 76n. compensation to, "75. court to fill vacancies in, 'IZn. court to fix time and place for first meeting of, Y2. duty of, to administer oaths to witnesses, 74. to appraise land at its actual value, 76w. to ascertain and determine compensation to land- owner, "74, 76m. to determine sum to be paid guardian, attorney, &c., 74. to give notice of meetings to parties interested, 74. to hear proofs and allegations of parties,74, 75». to issue subpoenas to witnesses, 74. to make report of proceedings to court, 74. to reduce testimony of witnesses to writing 74. to take and subscribe oath of o£Bce, 73, 75». may adjourn proceedings, 74. may be appointed to settle differences as to railroad connection, 112. not to allow consequential damages, 76«. not to allow deduction in assessing damages, on account of real or imaginary benefits, 74, 76k, 77k. order appointing, court may vacate, 73k. order of procedure of, 75k. payment of compensation to, 75. petition for appointment of, to contain, what, 67. principles upon which, are to make the award, 76k. qualifications of, 72. vacancies in, how filled, 73 k. when company may apply for appointment of, 65, 66. of highways, may bring action against railroad for neglect of its duty respecting highways, 120. may consent in writing that railroads be constructed on highway, 119. notice of application for authority to construct railroad along highway, to be given to, 114. RTDEX. 309 COMMISSIONERS— (corj^mwecZ). to examine proposed route, appointment of, 60. appeal from decision of, 61. determination of, how to be rendered, 61. fees of, 61. petition for appointment of, 60. qualifications of, 60. to issue bonds in aid of railroad, annual statement required of, 222, 229. appointment of, 219. compensation of, 220. duties of, 221, 222, 223, 227, 230. penalty for neglect to make annual statement required of, 229. powers of, 220, 221, 222. qualifications of, 219. term of ofSce of, 219. to deliver bonds or proceeds to company, when, 220, 221. to represent municipal corporation at meetings of railroad stockholders, 221. to subscribe to the stock or bonds of railroad, 221. COMMON COUNCIL cannot authorize extension of city railroad, 122w. cannot grant railroad privileges without legislative sanction, 121w. may permit construction of city railroad, when, 121, 124. to give notice of intention to construct street railroad, 124. unauthorized act of, may be legalized by legislature, 122w. COMPANY, acts of director do not bind, when, 49w. acquires title to land under special proceedings when, 78. allowed reasonable time to transport property, 166m. assessed for taxation, how, 234, 236?i. cannot abandon or discontinue use of its road, 97w. cannot be compelled to re-cypen &c. abandoned portion of its road, 27w. cannot issue valid certificates of stock, in excess of limit, 34k. cannot limit its liability for injury &c. to goods, by regulation, 16Vw. cannot purchase its own or other corporate stock, 32, 34b. care required of, in moving its cars, 163w. in transportion of live stock, 177, 178. 310 INDEX. COMPAJn:— {continued). cames into existence, when, 10. compensation to, for transportation of immigrant, 18Y, 189. for transportation of mails, 180. for transportation of persons, 160. for transportdtion of property, 160. complaint against, for non-delivery of goods, IQin. in action by stockholder against, 46». consolidated, fare allowed, 207. how taxed, 207. subject to provisions of general act, 208. continues in existence until judicially dissolved, 30». creditors of, may apply for appointment of receiver, 43n. crossing turnpike &c., to pay compensation for same, 120, 121k. 'damages recoverable against, for non-delivery of goods, 168«. declarations of railroad employees, when not admissible against, 163w. delivery of property to, what deemed a sufficient, 165». directors of, may apply for its dissolution, 49m. dissolution of, 26, 27w, 29. duty of, in delivering goods, 167m. in constructing car platforms, 134. to affix check to baggage, 172, 174. to affijrd equal facilities for transportation to competing companies, 162. to construct and maintain farm crossings &c., 97, 98». to deliver baggage within reasonable time, 173m. to deliver up goods on demand, 167w. to designate &c. uniform for its employees, 134, 156. to designate person on whom process &c. can be served, 130. to destroy noxious weeds along track, 133. to erect fences on sides of its road, 97, lOOw. to erect and maintain buildings for use of passengers &c., 106. to erect signboards at railroad crossing, 105. to furnish sufficient accommodations for passengers, 162. to giye signals at railroad crossing, 138. to make annual report, 142, 148. to make map and profile of proposed route, 59. to render assistance to passengers in getting on or off cars, 163». INDEX. 311 COMPANY— (conimwecZ). duty of, to start and run trains at regular times, 134n. to transfer stock, on surrender of certificate &c., 32». to transport mails, 180. election of directors of, 48. exercise of powers of, how regulated, 23n. existence of, to be proved when, 24. general act of 1850, applicable to existing, 240. has no lien on goods for inconvenience &c. occasioned by non- removal, 167m. has prior right to use of its tracks along street, 123w. how organized, 9. how revived after dissolution, 29m. incorporated under act of 1848, subject to provisions of act of 1850, 241. injury to property of, how punished, 127, 128. land owner to give notice of defect in fence to, lOOn. land purchased with corporate funds, vests at once in, 63». laying track along street &c., to make compensation to owners of fee, 122w. legislature may amend charter of, 28. liable to forfeiture of charter, for non-user, 26, 30n. liability of, for death from its wrongful act, 196. for defect in cars, 164, 165k. for delay in transporting passengers, 166». for delay in transporting property, 166m. for delivery of property to wrong person, 166», 167»i. for indebtedness of contractor to laborer, 129. for injury to animals entering through gap in fence, 100». for injury to goods transported by it, 167w, for injury to mail agent, 180. for loss of property on connecting line, l7l, l72ra. for neglect to provide drinking water in cars, 134. for negligence in maintaining track, 96«, for negligence in using defective ties, 96w. for negligent acts of employees, 163«, 164». for non-delivery of baggage, 11 3n, l74w. for property placed in its cars, 166w. for transfer of stock, upon forged power of attorney, 33«. for willful acts of employees, 164«. 312 INDEX. COMPANY— {continued). liability of, receiving freight for transportation, 171. retaining in its employ persons of intemperate tabits, 154. restricted after erection of railroad fences, 97, lOOn. until fences are erected &c., 97. may acquire additional land for its road, how, 85. may agree with a second company for construction of so much of its line, as is common to both, 112, 113. may alter and amend articles of association, when, 17, 112, 113. may apply for amendment to charter, how, 28m. may apply for appointment of commissioners of appraisal, when, 65, 66. may apply to Governor for appointment of railway police, 168. may be sued by a stockholder therein, when, 46. may borrow money for its railroad, 209. may bring action to enforce payment of calls, 36w. may bring action to forfeit stock for non-payment, 36n. may bring action to have spurious ceitifioates of stock declared void, 4 On. may cause preliminary survey of its road, to be made, 59. may consolidate with a second railroad, when, 203. may construct its road, across or upon water course, street, highway &c., 114. may construct narrow guage road, 94. may construct street railroad, when, 121, 124. may contract for use of road of a second company, 200. may cross, intersect &c. track of second railroad, 112. may eject passengers from trains, for non-payment of fare, 181, 182b. may extend its existence, how, 25. may file notice discontinuing services of railway police, 159. may increase its capital stock, when, 37. may issue free passes, 193. may issue bonds convertible into stock, 209, 210w. / may join and unite its road with that of a second company, 112. may limit its liability to passenger by contract, when, 194w. may mortgage property to secure loan, 209. may proceed to perfect defective title to land, how, 84. may purchase land, 62. may receive voluntary grants of land, 62. may sell tickets for Hudson River steam-boats, 169». INDEX. 313 OO^T ANY— {continued). may take land necessary for proper construction and security of its road, 94. may take possession of land, upon filing order confirming com- missioners' report &o., 79. may terminate its liability as-carrier, how, 167«. may terminate its road at point of intersection with a second railroad, 112, 113. mere resolution of corporators, cannot dissolve, 31n. name of, to be stated in articles of association, 10. notice of laying out street &c. across track, to be given to, 117. not liable for delay in transporting property, when, 16,6m. for goods taken from it by legal process, 16 7«. for injuries to passenger violating its regulations, when, 195. for omission to give signals, when, 140n, 141n. > for property left in its cars, when, 165», 166k. to employee, for injury from negligent act of fellow- servant, 164». to employee, for injury from omission to fence its road, lOlw. not required to keep flagman at railroad-crossing, 105. to pay canal-tolls, 179. not to construct railroad over canal, without consent of canal commissioners, 107. payment of tax imposed on, 237. powers of, 10, 16, 19-23,, 69, 62, 94, 106, 114, 160. penalty for neglect of, to designate &c. uniform for its em- ployees, 135, 136, 156, 157. penalty for neglect of, to give signals at crossing, 138, 142w. to make annual report, 151. imposed on, for exacting excessive fare, 181. for neglecting to take highway across track, 118. receiver of, may be appointed, when, 43w. relationship between stockholder and, how established, iln. remedy against, to be exhausted, before suing stockholder, 44». required to transport mail, 180. residence of, 234re. restricted in acquiring land, to its necessities, 63». right of action against, for non-delivery of goods, is assignable, 168«. 33 314 INDEX. COUF ANY— (continued). service of process &c. on, 130, 131n, 132. statement required of, for purposes of taxation, 235n. relative to transportation of immigrants, 189. stockholders are competent witnesses for, or against the, 42w. . liable for debts of, 42. subject to provisions of Revised Statutes, 10, 13«. subject to taxation, 233. to be assessed and taxed, where, 233. to be sued in justice's court by long summons only, 130n. to cause highway &c., to be taken across its tiaCk, when, 118. to dispose of unclaimed freight, &c., how, 175-177. to give preference in transportation, to perishable property, 166n. to lay out its road, not exceeding six rods in width, 94. to operate narrow gauge road, how formed, 14. stationary railroad, how formed, 15. to pay compensation to its railway police, 159. to prove charter and user under it, to establish its existence, 25n, to refuse employment to persons of iutemperate habits, 164. using stationary power, how named, 16. may cortstruct road in foreign State, when, 16. what, shall not consolidate, 203. when guilty of negligence in arranging its time tables, 163». who deemed managing agent of, ISln. weight of rail to be used by, 66, 95. to be increased, when, 95. See Connecting Railroads ; Consolidation of Railroad ; Railroad &c. COMPENSATION, company cannot avoid payment of, to land-owner by a change of its route, 81w, 83n. court to direct to whom, to be paid, 78, 83. deduction on account of benefit to land-owner, not allowed in ascertaining 74, 76?i, 77n. diminished by second ?ippraisal, efi'ect of, 80. disagreement as to, a material requirement of the special proceedings, 64n. for land taken for railroad, in whose favor assessed, 77n. for trees cut down by railroad company, 94. increased by second report, effect of, 80. need not be made for land on navigable stream below high- water mark, taken for railroad, 91w. INDEX. 315 COMPENSATIO'N— (continued). payment of, to commissioners of appraisal, 75. to land-owner, prima facie evidence of, 80n. railroad may occupy salt lands of State, upon making, 91. reference may be ordered to determine conflicting claims to, 83. to commissioners of appraisal, 75. to commissioners to examine proposed route, 61. to land-owner, for land taken for railroad purposes, 74, 76». for construction of railroad along street, 122w. to turnpike or plank-road company, crossed by railroad, 121w. See Appraisal, Land, &c. CONDUCTOR, liability of, for placing baggage cars in rear of passen- ger cars, 133. for wrongful act, causing death, 199. not entitled to collect fare, without indicia of oflBce on hat or cap, 155, 182n. See Employees or Railroad. CONNECTING RAILROADS, duty of, ujnder act of 1847, 168m. liability of, for non-delivery of freight, 171, l72n. may alter articles of association, 17, 112. terminating at Albany, regulation as to, 169w. to aflbrd equal facilities in transportation to each other, 162. to unite in forming intersections and connections, 112, 113. CONSOLIDATION OF RAILRCfADS, authorized, 203. effect of, 205, 206. fare allowed upon, 207. perfected, when, 205. proceedings to effect, 203. provisions as to, not applicable to street railroads, 203w, 206. CONTRACTOR, liability of company for indebtedness of, to la- borer, 129. term defined, 129». CORPORATE EXISTENCE, certificate extending, to be filed, 26. how extended, 25. proof of charter and user under it, sufficient to estab- lish, 25». to be proved, when, 24. to cease, when 26. who may question, 24». 316 INDEX. COEPORATE POWERS conferred by general act, 19-22, 59, 62, 94, 106, 114, 160. by Revised Statutes, 10, 22n. enumerated, 19-22. exercise of, Low regulated, 23n. of companies operated by stationary power, 16. ' CORPORATE SEAL, how used, 22ji. CORPORATION, municipal, construed in reference to railroad laws of 1869, 215. COURT, county, to ratify contract respecting laying out railroad through Indian lands, 92«. Supreme, has general jurisdiction over corporation, &c., 23m, 29», 30w, 31m, 49m, has original jurisdiction in special proceedings to acquire land, 60, 67. may authorize trustee, &c., to convey land to rail- road, 98. COUNTY JUDGE has original jurisdiction of proceedings to bond municipal corporation in aid of railroad, 214-219, 231. CREDITOR OF COMPANY cannot enforce stockholders liability after appointment of receiver, 44w. liability of stockholder for debts due, 42, 43m. ■ may apply for appointment of receiver of com- pany, when, 43m. to exhaust remedy against company before proceeding against stockholder, 44m. occupants o^ notice of time and place of, filing map, &c., to be given to, 60. oflBcers, &c., of company may enter upon, for purposes of making preliminary survey of route, 59. railroad, apportionment of, within school district, 238, 239. assessed and taxed, where, 233. change of route will not revest title to, in former owner, lllw. company may acquire additional, how, 85. court has power to amend proceedings to acquire, 84. to carry proceedings to acquire into efi'ect, 83. deemed taken for public use, 63, 64re, 79. defective title to, how corrected by company, 84. how cured before act of 1850, 8ln, 326 INDEX. LAND, railroad, — {continued). how assessed for taxation, 234, 235n. liable to taxation, 233. manner of acquiring, against consent of owner. 63, 64, 240w. for new or altered line of road, 107, 109. nature of estate acquired in, 8]w. purchased with corporate funds, vest at once in com- pany, 63re. title to, how acquired previous to 1850, 65. when trustee is unauthorized to sell, 89. vested in company tow, 80re. what deemed a defective, 86n. when proceedings may be had to obtain title to, 65, 66. required for highway, at crossing, company may take, 119. salt, appropriation of, for railroad purposes, is not a sale, 91w. railroad may occupy, upon making compensation, 91. special estates in, how acquired by railroad, 88. State, commissioners of land ofBce may grant title of, to rail- road, 90. title to, how acquired b^ railroad, 90. LAND-OWNER aggrieved by proposed location of road, may apply for appointment of commissioners, 60. cannot erect fences, and recover of company therefor, lOOw. commissioners to ascertain and appraise compensation to, 72. company to construct farm-crossings for use of, 97, 98w, lOOw. compensation to, includes what, 76«. made to, on laying railroad in street, 122re, consulted in reference to construction of city railroads, 121. liability of, for neglect to erect fence, after notice from com- pany to such effect, 103. may appeal from decision of commissioners, 61. be divested of his real estate without his consent, 63, 64, produce before commissioners evidence of value of land, &c., 75re. prima facie evidence of payment of compensation to, §0m. to apprise company of defects in fence, &c., lOOn. be heard on subject of appraisal, 75n, erect railroad fences, when, 103. LEASE, annual report required of railroad held under, 202. lessees of railroad may take surrender of capital stock of road held under, 200. INDEX. 327 LEASE^(conimMecZ). railroad may be held under, 200. right to rent reserved in, of part of track, passes with title to such track, 200m. LENGTH OF EOAD, inquiry into, when proper, lln. may be altered upon agreement as to construction of line com- mon to two companies, 112, 113. misstatement of, no defense to action on subscription, 11m, 36re. need only be stated approximately in articles of association, 11». neglect to make whole, no defense to action for calls, 36w. LESSEES OF RAILROAD may take surrender of capital stock of road held under lease, 200. to erect and maintain fences, 104, 105, 201. make annual report, 202. See Lease. LIVE STOCK, care of, during transportation, how compensated, 178, 1%9. liabilitv of company for injury to, in transportation, ll8n. penalty for violating provisions relative to transportation of, l79. period of confinement of, in cars, regulated, 111, transportation of, regulated, 17Y. MAIL, compensation to company for transportation of, 180. duty of company to convey, 180. transportation of, provided for, 180. MAIL-AGENT, liability of company for injury to, 180. MAP AND PROFILE exhibiting characteristics of road, to be trans- mitted to State Engineer, &c., 93w, 143. notice of time and place of filing, to be given to actual occu- pants of land, 60. of proposed route, near or across canal, to be furnished canal commissioner, 107. notice of filing, to be given to occupant of land, 60. to be certified and filed, 59, 60. of road constructed, how drawn, 93. to be filed, when and where, 93. requisites of, 93. MAP of new or altered route across canal, to be filed, 107. directors to file,^in proper county, 109. MECHANICAL POWER, authority to use, authorizes use of steam- power, 160w. 328 INDEX. MORTGAGE may cover property subsequently acquired, 209m, 210w. mortgagee may purchase railroad at sale under, 212. of real and personal property of railroad, to be recorded, 211. railroad company may execute, on corporate property, 209. rights acquired by purchase of railroad franchise, at sale under, 213. stockholder may redeem, on foreclosure, 211, 212. MORTGAGEE, compensation to be assessed to, 11n. may purchase railroad at foreclosure sale, 212. MUNICIPAL AID to railroads, appointment of commissioners to ex- tend, 219. consent of taxpayers to granting, how perpetuated, 218. defect in, how cured, 21 9k. compensation of commissioners to extend, 220. how applied by company, 223. extended, 214. notice of application for leave to extend, 2,14. hearing, on petition for, 21 "7. judgment on petition for, 217. proceedings for, when county judge disqualified to act, 218. petition for authority to extend, what to state, 214. to be filed with county cleri, 218. proceedings to extend, how reviewed, 231. qualifications of commissioners to extend, 219. restricted, 231. vacancies in commission to extend, how filled, 220. who may petition for leave to extend, 214, 215. "MrNICIPAL CORPORATION" construed in reference to railroad laws of 1869, 215. NAME OF COMPANY, change of, 12?i. mistake in pleading, 12n. to be stated in articles of association, 10. using stationary propulsion, 16. NON-USER, forfeiture of charter for, 26. proviso as to forfeiture of charter for, a mere defeasance, 21 n, remedy for, 2ln, 30«. NOTICE, company cannot limit its liability for loss of baggage by, on ticket, 16 In. discontinuing services of railway police, to be filed, where, 159. for confirmation of commissioners' report, 18, INDEX. 329 l!iOTlC'E— (continued). of appeal from appraisal and report of commissioners, 79. appeal from determination of commissioners as to proposed route, 61. application for amendment, &c., to charter, 28». application for appointment of commissioners to examine pro- posed route, 60. application for order authorizing construction of railroad along highway, 114. application to set aside election, to whom to be given, 54». defective fence, to be given to company, IOOji. Election to be given, when held on day subsequent to desig- nated one, 53n. filing map and profile of proposed route, 60. forfeiture of stock for non-payment of calls, 35. hearing upon application to extend municipal aid to railroad, 214. intention to construct street railroad to be given, 124. judgment upon application to extend municipal aid to rail- road, to be published, 218. laying out street across railroad to be given to company, 117. meeting of commissioners, to be given to parties interested, 74. stockholders to consider agreement of consolida- tion, 204. stockholders to increase capital stock, 37. presentation of petition for appointment of commissioners of appraisal, upon whom to be served, 68. how served in cases not provided for, 71. on infant, 70. on non-resident, 69. on person of unsound mind, 70. on resident, 69. on unknown party, 70. object of, 73w. proposed consolidation of railroads, 204. readiness to receive subscriptions to capital stock, 34. regulations of company, how affect its liability, 195. running time of trains to be given, 163w. sale of unclaimed baggage, 176, 177. freight, to be published, 176, 177. to actual occupants of land, to be given by company, 60. 33 330 INDEX. 'NOTICE— (continued). to company of application for appointment of commissioners, 60. company of indebtedness of contractor to laborers, 129. delinquent stockholder, not necessary to support action for calls, 36k. stockholders of meeting to increase capital stock, SY. preparatory to forfeiting stock, what to state, 35. to charge them with liability for debt due laborer of company, 43. NOXIOUS WEEDS, company to destroy, along track, 133. penalty for neglect to destroy, 133.. OFFICERS having charge of transfer books, to submit them to exam- ination of stockholders, 56. issuing fraudulent certificate of stock, how punished, 39. issuing unauthorized certificate of stock, how punished, 38. liability of, fraudulently issuing stock, 40. may enter upon individual's land, for purpose of making pre- liminary survey, 58. stock held by, how transferred, 33m. stock held by, how voted on, 55w. to be appointed by directors, 58. See Directors ; President ; Secretary ; Treasurer. OCCUPANT OF LAND, notice of filing map and profile of proposed route, to be given to, 60. remedy of, aggrieved by proposed location of route, 60. PASSENGER bound to obey reasonable regulations imposed by com- pany, 16 1??. company liable for injuries to, 163w., 164w. to furnish requisite information to, 163n. render assistance to, in getting in and out of car, 163n. fare to be returned to, 1'72. gratuitous, company may limit liability to, by contract, 194w. who deemed, 194?i. injured while on platform of car, cannot recover, when, 195. may be ejected for non-payment of fare, 181, 182b. from car, on what grounds, 181, 182m. recover for delay in his transportation, when, 166m. penalty for soliciting emigrant as, before landing, 192. refusing to obey regulations of company, may be ejected from car, 16 In. INDEX. 331 I FASSE'NG'ER— (continued). to be furnislied. with check for baggage, 1'72. to be furnished with sufficient accommodation, 162. remove baggage within reasonable time, 11 in. transportation of, by boat and railroad to New York regu- lated, 169re. what deemed sufficient accommodation for, 195n. who deemed, 161m. PERSONS of unsound mind, see Idiot. PETITION, defects in, cannot be raised on motion to confirm report, iSn. for appointment of commissioners to examine proposed route, 60. upon whom served, 60. for appointment of commissioners of appraisal, how served in cases not provided for by statute, 71. on infant, 70. on non-residents, 69. on person of unsound mind, 70. on resident, '69. on unknown party, 70. objections to, how raised, 68n. on whom served, 68. what may be considered on presentation of, 73n. what to contain, 67, 68. for authdrity to issue town bonds in aid of railroad, 214. issue raised by denial of facts alleged in, 73ra. legal evidence only allowable to disprove allegation in, 73w. objections to, when to be raised, 73». object of notice of presentation of, 73m. to court for authority to trustee, &c., to convey land to railroad, 90. waiver of defects in, what deemed, ISfi. PLEDGEE of stock, can compel transfer, when, 33m. not liable as a stockholder, 41. rights of, 33m. POLICE, see Kailway Police. PRELIMINAEY SURVEY, company may cause, to be made, 59. PRESIDENT, authority of, to collect subscriptions, 58». directors to appoint, 58. has no authority to produce books in suit against company, 58». to certify, to map of road, 93. and profile of proposed route, 60. See Officebs. 332 EJTDEX. PKOFILE, exhibiting characteristics of road to be transmitted to State engineer, &c., 143. notice of time and place of filing, to be given to actual occu- pant of land, 60. of proposed route near or across canal to be furnished Canal Commissioners, 107. ^ notice of filing, to whom to be given, 60. to be certified and filed, 59, 60. of road constructed, how drawn, 93. to be filed, when and where, 93. requisites of, 93. KAILROAD CROSSINGS, care required of person at, UOn, 141w. penalty for neglect to sound signals at, 138. signals need only be sounded as engine approaches, 138, I39n. signals required at, 138. sign-boards to be placed at, 105. RAILROAD FENCES. See Fences. RAILROADS, assessment and taxation of; 92k, 233 et seq. city, grants to, confirmed, 124. injury to, how punished, 127, 128. in streets of Bufialo, 125, 126». New York, 125. legislature may authorize towns to subscribe for stock or bonds of, 216». lessees of, to erect and maintain fences, 201. to make annual report, 202. may take transfer of capital stock of road held under lease, 200. may be held under lease, 200. may be located in part in adjoining State, when necessary, 111. new routes of, how established and laid out in cities, 108. petition for authority to extend municipal aid to, what to state, 214. rights acquired by purchasers of franchise of, 213. rolling stock of, leviable as personal property on execution, 213». sleeping cars may be placed on, when, 137. stockholders may purchase, at sherifi^s sale, 213m. town aid to, commissioners to extend,, how appointed, 219. bow extended, 214. petition for, to be filed with county clerk, 218 iifDEX. 333 BAILROABS— (continued). town aid to, petition for, what to state, 214. proceedings for, how reviewed, 231. proceedings on petition for, 214, 218. restricted, 231. who may petition to extend, 214, 215. unauthorized, are not^er se, nuisances, 123w. See CoMPANT ; Connecting Railroads ; Consolidation of Rail- roads, &c. RAILS, company liable for negligence in laying, 96n. penalty for maliciously removing, displacing, &c., 127. weight of, to be used, 95. to be increased, when, 95. RAILWAY POLICE, company may apply for appointment of, .158. oath required of, 158. powers of, 158. services of, how discontinued, 159. to be appointed by the governor, 158. to be paid by company at whose request appointed, l59. * to wear metallic shield, as indicia of office, 159. RECEIVER, creditor may apply' for appointment of, iSn. manner of appointment of, 43». may be appointed, when, 43«. right of action for unpaid subscriptions vested in, 44w. REPORT, annual, required of company, 142, 148. duty of State engineer and surveyor, relative to, 147. lessees of road, to make, 148. penalty for neglect to "make, 151. requisites of, 142-148, 148-151. of commissioners of appraisal, appeal from, sustained when, ISn. appeal from, will lie, when, 79, 81re, 82re. certified copy order confirming, to be recorded, 79. company has no right to land, until order is made, con- firming, 78». court cannot set aside, on motion, 79w. court to confirm, 78w. duty of court upon coming in of, 78. efiect of order amending, 83m. effect of order confirming, 79. how signed, 77k. may embrace succession of appraisals, 77ra. may be reviewed, how, 78m. 331 INDEX. UEFOUT— (continued). of commissioners of appraisal, notice of confirmation of, to be given, 78. on second appraisal, to be conclusive, 80. party may appeal from, 19. teclinical error in, to be disregarded, ISn. to be filed where, 110m. to be made to Supreme Court, '74. ROAD. See Highways. EOAD BED, company may change, to improve grades or curves, 109. directors may change grade of, to avoid accidents, 108. land for new or altered, how acquired, 107, 108. width of, 94. ROUTE, alteration of, mav be made, when, 61. appeal from commissioners' decision regarding, 61. change of, does not revest title to land previously acquired 'by company, in former owner, 111». effect of, lllw. commissioners' decision regarding, when must be made, 61. company cannot avoid payment of compensation for land, by a change of, 81w, 83n. effect of change of, lllw. map and profile of intended, to be filed, 69. petition for appointment of commissioners to examine proposed, 60. preliminary survey of, 59. qualifications of commissioners to examine proposed, 60. time of changing, 109, llOn. SECRETARY may be appointed by directors, 68m. not liable to an action in nature of a quo warranto, 58n. SECRETARY OF STATE, agreement for consolidation of railroad, to be filed in office of, 205. certificate extending corporate existence to be filed with, 168. of, to articles of association, evidence of the filing and recording, 25re. oath required of railway police, to be filed with, 168. to indorse and record articles of association, 10. SIGNALS, absence of, required for guidance of company's servants cannot be taken advantage of by stranger, 140». company not liable for omission to give, when, 140re 141w. not required after locomotive has passed crossing, 139«. INDEX. 335 SIG'NALS— {continued). omission to give, competent evidence of negligance, 140n. penalty for neglect to give, at crossing, 138, 139re. required at railroad crossing, 138. to be sounded at what distance from crossing, 138, 139«, 140re. See Bell ; Whistle. SIG-N BOARD to be placed at railroad crossings, 105. SPECIAL PROCEEDINGS, disagreement as to compensation, a material requirement of, 64ra. interest of infants, &c., how protected in, Tl. land required for railroad purposes may be acquired by, 63, 64, 65w. of general act, when need not to be followed, 65n. rights of unknown party, how protected in, 71. to acquire land must be strictly followed, 64?i. See Appraisal ; Compensation ; Land;