(SnruFU ICam i>d|nDl ICibtarji Cornell University Library The original of this 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/cu31924022794345 WHITE ON CORPORATIONS CONTAINING THE LAWS CONCERNING Business, Railroad, Ferry, Navigation, Stage Coach, Tramway, Pipe Line, Gas and Electric Light, Water-Works, Telegraph and Telephone, Turnpike, Plank-Read and Bridge Corporations ; Joint-Stock Associations, Etc. INCLUDING THE LAWS ON TAXATION, DISSOLUTION AND RECEIVERS, STATUTORY CONSTRUCTION, CONDEMNATION OF REAL PROPERTY, CODE PROVISIONS, ETC. ALSO All Statutes of the State of New York and of the United States Affecting the Class of Corporations Above Enumerated, TOGETHER WITH Annotations and Forivis. By frank white, Counselor-at-Law, Examiner of Corporation Certificates in the Office of the Secretary of State, Editor of " White's Manual of Corporation Laws," (iSgo), and " White's Manual for Foreign Corporations," (1893). SECOND EDITION. Albany, N, Y. : WHITE LAW BOOK COMPANY. Pecember, 1895. 2-817 COPYEIGHT, 1894, By PKANK white. COPYRIGHT, 1895, By frank white. THE ARGUS COMPANY', PRINTERS, BINDERS AND ELECTROTYPERS. ALBANY, N. T. TO THE ' Honorable CHARLES R. INGALLS, For Twenty-six Years A Justice of the Supreme Court of the Svate of New York, As an expression, of respect and admiration for his eminent services ' as a Jurist, and for his pure and noble character, illumined by great civic virtues and the adornments which grace the dignity of private life. PREFACE Since the publication of the editor's " Manual of Corpoamtion Laws," In 1890, numerous important changes have been wrought in the corporation laws of the State of New York, which have uniformly been in the line of more liberal treatment towaa-d the rapidly increasing class of corporate bodies popularly termed Industrial corporations. The modifications referred to have doubtless been a potent factor in popularizing our corporation statutes, resulting in a steady growth in the number of stock corporations organized within the Sitate. But 'this increase in domestic corporations and consequent decrease in the number of fugitive cwporations seeking to evade the laws of the State, or to secure some real or fancied advantage, by a,cqulring corpco-ate poAvers and fran.cihises from other sovereignties, may also be accounted for by another cause, to wit: During the panic of 1893, the downfall of many foreign corporations, capitalizedi by citizens of, and doing business wholly within this State, was precipitated by the facility with which attacbments are obtainable against such corporations. In this connection the predlctipn is hazarded that, in every succeeding legisilaljire, there will be found lawyers versed in corporation taatters, whcHse efCoTits will be unremittingly directed/ toward such constitutional legislation as may be necessary to apprehend the fugitive coirporations, and to return them to their legitimate domicile witliin the territoriai limits of the Stata The editor, before laying aside his pen at :the conclusion of the three years of labor involved in the completion of this volume, which represents long bours of nightly toil, expended after the ending of has daily duties to the Staite, desires to express his sincere thanks to the members of the baa- for the generous reception accorded his former effort, and trusts that in this work he may be deemed. In some degree at least, to have made good his pledges to the many lawyers who have requested the preparation by him of a more comprehensive work on the same subject. FRANK WHITP]. Albany, N. Y., November 10, 1894. vi PEEFACE. EDITOR'S NOTE TO SECOND EDITION. In placing tMs, the second edition of " White on Corporations," before the legal profession, I desire to state that the wiorlc has been completely revised, repaged and reindexed, matter rendered obsoleite by new legisla- tion or otherwise liaving been eliminated and a large amount of new matter added, including all the amendments and independent enactments affect- ing loorporations. The number of citations has also been greatly aug- mented, embracing the latest decisions of the courts of tMs St&.te, many of which are of the utmost importance in construing .the revised laws. During the legislative session of 1895 numerous important amendments and additions to the corporation laws were placed upon the statute books. The procedure for the formation of business corporations has, in a great measure, been simplified by amending sections 2 and 3 of the Business Corporations Law. As this law existed prior to 1895 it was necessary, after filing tlie certificates of incorporation in the proper ofiiices, to file a further certifieate to the efEeot that one-half of the capital stock had been subscribed before the new corporation was permitted to begin business; but, as now amended, this law permits the new corporation to begin busi- ness immediately after filing the certificate of incorporation in the office of the Secretary of State, and a duplicate thereof, or a .certified copy, in the office of the county clerk, provided the amount of capital, with which the certificate of incorporation states the coi-poration will begin business, shall have been paid in an money or property. Another new provision Is the one embraced in the General Corporation Law, section 38, authorizing a waiver of notices of meetings in certain cases. Foreign corporations have also received attention, as predicted in the foregoing preface to the first edition, an act having been passed imposing upon them a franchise tax for the privilege of doing business within the State. (See page 70 of this volume.) The Railroad Law escaped with only a few changes, the amended sec- tions being Nos. 42, 59, 77, 84, 90 and 91. F. W. Albany, N. Y., December 21, 1895. TABLE OF CONTENTS. NOTE.— For the pui-pose of finding any particular proTiston, reference should be had to the index. Page. The General Corporation Law 1-55 Schedule of Laws Repealed 56-66 The Organization Tax Law 67, 68 Taible of Amounts Payable for Organization 69 License Tax upon Foreign Corporations 70 Fees of Secretary of State and County Clerk 71, 72 Information as to Transmisision of Papers and Payments 72 The Stock Corpora/ton Law I 73-135 Federal Anti-Trust Law ' 85 The Business Corporations Law 136-153 The Transportation Corporations Law 154-212 Ferry Corporations 154-159 Navigation Corporations -. 160-162 Stage Coacih Corporations 162, 163 Tramway Corporations 163, 164 Pipe Line Corporations 165-174 Gas and Electric Light Corporations 174-181 Water- works Corporations 181-186 Telegraph and Telephone Corporations 186-190 Turnpike, Plank-road and Bridge Corporations 191-209 Miscellaneoijs Acts Applicable to Transportation Corporations. . . . 213-221 The Railroad Law 222-353 The New York Rapid Transit Act 354-415 Miscellaneous Railroad Laws 416-458 The Interstate Commerce Act 459-485 Miscellaneous Statutes Affecting Corporations Generally 486-494 Penal Code Provisions 495-526 Criminal Code Provisions , 527-531 Civil Code Provisions 532-548 viii TABLE OF CONTENTS. Page. The Oondemnation Law 549-571 Dissolution and Receivers 572-606 Constitutional Provisions 607-613 TBie Statutory Construction Law 614-625 Taxation of CorporatioiLS, State Laws Regulating 626-669 TJnjited States Incoime Tax A^t (declared' unconstiitutional) 669 Joint-Stock Aissociation Law 670-673 Forms 675-841 Index to Forms. 843-849 General Index 851-906 THE GENERAL CORPORATION LAW. La'ws op 1892, Chaptek 687.* Being "An act to amend the General Corporation Law" (Laws of 1890, chapter 563), entitled "An act in relation to corporations, constituting chapter thirty-five of the general laws," as amended to July 1, 1895. The General Corporation Law. Section 1. Short title. 2. Classification of corporations. 3. Definitions. 4. Qualifications of incorporators. 5. Filing and recording certificates of incorporation 6. Corporations of the same name prohibited. 7. Amended and supplemental certificates. 8. Lost or destroyed certificates. 9. Certificate and other papers a.s evidence. 10. Prohibition of other than statutory powers. 11. Grant of general powers. 12. Limitation of amount of property of a non-stock corpora- tion. 13. Acquisition of additional real property. 14. Acquisition of property in other states. 15. Certificate of authority of a foreign corporation. 16. Proof to be filed before granting certificate. 17. Acquisition of real property in this state by certain foreign corporations. 18. Acquisition by foreign corporations of real property in this state upon judicial sales. 19. Prohibition of banking powers. , 20. Qualification of members as voters. 21. Proxies. 22. Challenges. 23. Effect of failure to elect directors. — __ — _ 1 . *The General Corporation Law (L. 1890, ch. 563) wan passed June 7, 1890, to take effect May 1, 1891. By the Laws of 1898, chapter 687, passed May 18, to take effect immediately, said law was amended and entirely re-enacted, and was further amended in 1894 and 1895. Short Title. The General Corporation I.aw, § 1 . Section 24. Mode of calling special election of directors. 25. Mode of conducting special election of directors. 26. Qualification of voters and canvass of votes at special elections. 27. Powers of Supreme Cotu-t respecting elections. 28. Stay of proceedings in actions collusively brought. 29. Quorum of directors and power of majority. 30. Directors as trustees in case of dissolution. 31. Forfeiture for non-user. 32. Extension of corporate existence. 33. Conflicting corporate laws. 34. Laws repealed. 35. Saving clause. 36. Construction. 37. Law revived. Section 1. Short title. — This chapter shall be known as the general corporation law. (Former section 1, L. 1890, ch. 563, re-enacted by L. 1892, ch. 697.) Neither the General Corporation Law nor the Stock Corporation Law contains the provisions for the formation of corporations. The General Corporation Law contains the general provisions which are applicable to corporations of every kind organized under the laws of the State of New York, whether they be stock or non-stock corporations, unless specific exceptions are made, as, for instance, in section 5 of this law, in relation to religious, cemetery, monied, municipal or Are department corporations. The commissioners of statutory revision found in each of the numerous laws for the creation and regulation of different classes of corporations many provisions common to all such laws, which, being almost identical in phraseology, served to make the statutes of which they were component parts cumbersome and unwieldly without apparently serving any good purpose. To illustrate : Each act authoriz- ing the organization of new corporations provided the same method of filing and recording certificates, an unvarying reproduction of the general powers contained in the Revised Statutes, and other matters in the line of uniform corporate legislation. Therefore, piirsuant to the plan of the revisers, these numerous provisions, so frequently re-enacted in different corporation acts and applicable to all corporations, except as stated, were consolidated and grouped into one general act, entitled the General Corporation Law, the full text of which appears on these pages. The Stock Corporation Law, comprising the provisions common to stock corporations only, is the result of the same method of generalization, so that in the several laws authorizing the formation of various kinds of corporations having capital stock, to wit: The Railroad Law, the Banking Law, the Insurance «Law, the Transportation Corporations Law (telegraph, gas and electric light, water-works, pipe-line, navigation, etc., corporations) and the Business Corporations Law, only those matters have been inserted which are peculiar to the particular class provided for, all other provisions Classification of Corporations ; Definitions. 3 The General Corporation Law, §§ 3, 3. applicable to corporations formed under either of said laws being found In the General Corporation Law and the Stock Corporation Law. The provisions of the General Corporation Law and the Stock Corpora- tion Law are also applicable to corporations heretofore organized under either of the general laws for the formation of corporations which were repealed in 1890 and 1892, as well as to corporations organized under special acts. § 2. Classification of corporations. — A corporatfon shall be either, 1. A municipal corporation, 2. A stock corporation, 3. A non-stock corporation, or 4. A mixed corporation. A stock corporation shall be either, 1. A monied corporation, 2. A transportation corporation, or 3. A business corporation. A non-stock corporation shall be either, 1. A religious corporation, or 2. A membership corporation. A mixed corporation shall be either, 1. A cemetery corporation, 2. A library corporation, 3. A co-qperative corporation, 4. A board of trade corporation, or' 5. An agricultural and horticultural corporation. A transportation corporation shall be either, . 1. A railroad corporation, oi* 2. A transportation corporation other than a rail- road corporation. A membership corporation shall include benevolent orders and fire and soldiers' monument corporations. A reference in a general law to a class of corporations described in accordance with this classification shall include all corporations theretofore formed belonging to such class. (New provisions, added by L. 1892, ch. 687.) This section discloses the plan under which the corporation laws are revised. § 3. Definitions. — 1. A municipal corporation Includes a county, town, school district, village and city, and any other Definitions. The General Corporation Law, § 3. territorial division of the State established by law with powers of local government. 2. A stock corporation is a corporation having a capital stock divided into shares, and which is authorized by law to distribute to the holders thereof dividends or shares of the surplus profits of the corporation. A corporation is not a stock corporation because of having issued certificates called certificates of stock, but which are in fact merely certificates of membership and which is not authorized by law to distribute to its members any dividends or share of profits arising from the operations of the corporation. 3. The term non-stock corporation includes every corpo- ration other than a stock corporation, 4. A moneyed corporation is a corporation formed under or subject to the banking or the insurance law. 5. A domestic corporation is a corporation incorportited by or under the laws of the State or colony of "New York. Every corporation which is not a domestic corporation is a foreign corporation, except as provided by the code of ciA'il procedure for the purpose of construing such code. 6. The term directors, when used in relation to corpora- tions, shall include trustees or other persons, by whatever name known, duly appointed or designated to manage the affairs of the corporation. 7. The term, certificate of incorporation, shall include articles of association or any other written instruments required by law to be filed, to effect the incorporation of a corporation, including a certified copy of an original certi- cate of incorporation filed for such purpose in pursuance of law. 8. The term, member of a corporation, shall include every person having a right to vote at a meeting of the cor- poration for the election of directors, other than a person having a right to vote only upon a proxy. 9. The term, office of a corporation, means its principal office within the State or principal place of business within the State, if it has no principal office therein. 10. The term, business of a corporiation, when used with reference to a non-stock corporation, includes the operations for the conduct of which it is incorporated. Definitions. The General Corporation Law, § 3. 11. The term, corporate law or laws, wheu used in any law forming a part of the revision of the general laws of the State of which this chapter is a part, means the general laws of this State relating to corporations included in such revision. (Ponmeir section 2, L. 1890, di. 563, as amended by L. 1892, cli. 687, and L. 1895, oh. 672.) Tiife amendment of 1895 tooli effect May 14. A oorpopation created by act of Congress, if it is located in the State of New York alone, is a domestic corporation, but it derives its powers and faculties from the sov&reigJi csreattng it, and from no other source, and it Is subjected to whatever limitartions and disa.bilitiee grow out of the laws of the United States. (McLianaian v. Mott, 73 Hun, 131.) Under the foregoing section the terms " principal office " and " principal place of business" are synonymous when used in respect to corporations organized under the laws of this State. (People ex rel. Knickerbocker Press V. Barker, 87 Hun, 341.) The paragraph in relation to directors and trustees appears to be merely a definition of terms, and to make the word, directors, when used in these laws, applicable to corporations heretofore formed, in which the managing officers are designated as trustees. The statutes regulating municipal corporations are not within the scope of this work, which is devoted to what are generally termed private corporations, or corporate bodies formed by the voluntary agreement of their members. For general provisions applicable to all stock corporations, see the Stock Corporation Law. For provisions specially applicable to monied corporations and the formation thereof, see the Banking Law (L. 1892, ch. 689) and the Insm-- ance Law (L. 1892, ch. 690.) For provisions ,which are specially applicable to business corporations, and for the formation thereof, see the Business Corporations Law, post. For the provisions which are specially applicable to, and iregulatlng the formation of, ferry corporations, stage-coach corporations, tram-way cor- porations, pipe-line corporations, gas and electric-light corporations, water-works corporations, telegraph and telephone corporations, naviga- tion corporations, turnpike, plank-road, and bridge corporations,' see the Transportation Corporations Law, post. Under the foregoing definition a railroad corporation is, of course, a stork corporation. (Oelberman v. N. Y. & Northern R. R. Co., 77 Hun, 332.) For provisions specially applicable to railroad corporations, and for the formation thereof, see the Railroad Law, post. The principle, that acts in the nature of corporate proceedings under color of organization may. constitute a corporation de facto, is not appli- cable as between the parties to the proceedings, who have knowledge of the delects. (Childs v. Smith, 55 Barb., 45; 38 How. Pr., 328; reviewed, 46 N. T., 34.) Qualifications of Incoepoeatoes. The General Corporation Law, § 4. The right to be a corporation is a distinct, independent franchise, com- plete within itself, having no necessary connection with other distinct franchises, which are the subjects of legislative grants, and which may or may not be given to corporations once created, as well as to natm-al persons, as to the legislature may seem advisable. (Southern Pacific R. Co. V. Orton, 32 Fed. Rep., 457.) As to monied corporations see People v. Board of Supervisors of New York (16 N. Y., 424; Tallmage v. Pell, 7 N. Y., 328). A corporation is deemed a resident of the county where its principal business office is located. (Conroe v. The Nat. Pro. Ins. Co., 10 How. Pr.. 405; Rossle Iron Works v. Westbrook, 36 St. Rep., 555.) § 4. Qualifications of incorporators. — A certificate of incor- poration' must be executed by natural persons, who must be of full age, and at least two-thirds of them must be citi- zens of the United States and one of them a resident of this State. This section shall not apply to a corporation formed by the reincorporation or consolidation of existing corpora- tions, or to the reorganization of a corporation upon the Bale of the property and franchises of a previously existing cor- poration or otherwise. (New provisions, added by L. 1892, ch. 687, as amended by h. 1895, oh. 672.) Prior to the last amendment, -wMdi look effect May 14, 1895, at least a majority of liie persons who signed a certificate of incorporaition were required to be residents of this Staite. Now one resident 1& sufi^cdent. The terms of the foregoing section preclude corporations, co-partner- ships and minors from acting as incorporators. This section materially changes the qualifications heretofore required of incorporators. A majority of former acts provided that all the incor- porators be citizens of the United States, and a majority of them citizens and residents of this State. The incorporators cannot delegate the power to agree upon the terms of organization. (In re N. Y., L. E. & W. R. R. Co., 35 Hun, 220; affirmed 99 N. Y., 12.) Promoters of a corporation may agree as to the management thereof before incorporation. (King v. Barnes, 109 N. Y., 267.) Each member of a fil-m, engaged under the firm name in organizing a corporation, is liable for the misrepresentations and concealments of the others, committed in promoting the enterprise. (Walker v. Anglo-Am. M. & T. Co., 72 Hun, 334.) Persons engaged in organizing a corporation, who induce others to subscribe for stock, by issuing statements and prospectuses, are liable for damages if they make material mistepresentatlons, or conceal material facts, to the injury of those whom they Induce to subscribe, and this liability extends to all those who are Induced by their agents to subscribe for shares. (Walker v. Anglo-Am. M. & T. Co., 72 Him, 334; Filing and Recoeding Ceetifioates of Incokpoeation. T The General Corporation Law, § 5. Brewster v. Hatch, 122 N. Y., 349; Morgan v. Skiddy, 62 N. Y., 319; Getty V. Devlin, 54 N. Y., 403, 70 N. Y.,. 504.) A purchaser of shares from a stockholder In an existing corporation had no interest in the application of the money paid therefor, but it is different with one who agrees to subscribe for shares in a corporation to be created. (Walker v. Anglo-Am. M. & T. Co., 72 Hun, 334.) After accepting the benefits under a plan adopted by its promoters, the corporation becomes subject to the terms of the plan. (Rogers v. New York and Texas Land Co., 134 N. Y., 197.) § 5. Filing and recording certificates of incorporation. — Every certificate of ■ incorporation and amended or supple- mental certificate hereafter executed shall be in the English language, and except of a religious, cemetery, iJioneyed, municipal or fire department corporation, shall be filed in -the office of the secretary of State, and shall be by him duly recorded and indexed in books specially provided there- for; and a certified copy of such certificate or amended or supplemental certificate with a certificate of the secretary of State of such filing and record, or a duplicate original of such certificate or amended or supplemental certificate shall be filed and similarly recorded and indexed in the office of the clerk of the county in which the office of the corporation is to be located, or, if it be a non-stock corporation, and such county be not determined upon at the time of executing the certificate of incorporation, in such county clerk's office as the judge approving the certificate shall direct. All taxea required by law to be paid before or upon incorporation and the fees for filing and recording such certificate must be paid before filing. No corporation shall exercise any corporate powers or privileges until such taxes and fees have. been paid. I ' ' ' ' (Conner .section 3, L. 1890, ch. 563, as amended by L. 1892, ch. 687, and L. 1895, eh. 672.) By the last lamendment, wiiicli took effect May 14, 1895, the provision was dniserted requiring certifiicates to be dn the English language, so that all the recitals including the corporate name must now be in English. The formation at a corporation by a firm when financially embarrassed and only two years before assignments for the benefit of creditors were m'ade by the members of the firm, does not, dn itself, aiford any evidence of am intent to defraud the firm creditors, there being no evidence show- ing a connection between these two acts. (First Nait. Bk. v. Wood, 86 Hun, 491.) Between a oorpomtion de facto and its officers a relattion exists which will be recognized as effectual to enable them through such relation to 8 Filing and Recoeuing Cretifioatks of Incorpoeation. The General Corporation Law, § 5. justify the ezeo-cise of their functions in the .management and operation of its business, and for that purpose it is, as to third persons, no less effectual than a oorporaition de jure. (IJamming v. GaJusha, 81 Hun, 247.) Wihere a corporation, organized under an unconstitutional act, assumed and exercised corporate powers thereunder, it became a corporation de faoto, if not de jure, and it required the judgment of a competent court or an express act of the legislature to terminate its existence. (Coxe v. State of New York, 144 N. Y., 396.) Heretofore duplicate original certificates were required to be executed and filed. Under the above section an original certificate must be filed in the office of the Secretary of State, and either a certified copy thereof or a duplicate original in the office of the county clerk. The act relative to the tax payable to the State Treasurer for the privilege of organization and for increasing the capital stock of corpo- rations, and the statutes prescribing the fees payable to the office of the Secretary of State and to county clerks appear, post. The Secretary of State is not required to file a certificate unauthorized by the act. The right to file with such officer a certificate, by which a body politic and corporate is to be ipso facto created, only exists in behalf of those who bring themselves within the terms of the act. (People ex rel. Blossom v. Nelson, 46 N. Y., 477; People ex rel. Davenport v. Rice, 22 N. Y. Supp., 631; id., 68 Hun, 24; id., 52 St. Rep., 50.) The Secretary of State will not be compelled to file the certificate of incorporation of a company to be formed as a social organization when its purposes are in reality those of a business corporation. (People ex rel. Davenport, supra.) In case the Secretary of State refuses to file a certificate and the party presenting the same feels aggrieved, the remedy is by mandamus under the Code of Civil Procedure. (People ex rel. N. Y. Phonograph Co. v. Rice, 128 N. Y., 591, affirming 57 Hun, 486; People ex rel. Eickemeyer Field Co. v. Rice, 138 N. Y., 614; id., 51 St. Rep., 93.) If it is desired to restrain the Secretary of State or county clerk from filing a certificate, the proceedings, should be by injunction. An injunc- tion order against the Secretary of State can only be granted by the Supreme Court at a term thereof, sitting in the third judicial department. (See Code of Civil Procedure, section 605, post.) Where a peremptory mandamus is applied for, which by its terms acts as a restraint upon State officers engaged in, or about to perform a duty imposed by statute, and it is sought for to be used as a restraining order or injxmction, the limitation upon the granting of such an injimction by section 605 of Code of Civil Procedure applies; that is, it "shall not be granted, except by the Supreme Court at a term thereof, sitting in the department in which the officer or board is located, or the duty required to be performed." (People ex rel. Derby v. Rice, 129 N. Y., 461.) The Secretary of State does not require the certificate of a county clerk as to the authority of a notary public, commissioner of deeds, or of a justice of the peace of this State who takes the acknowledgment of the execution of a corporation certificate to be filed in his office, but if a duplicate of such paper is to be filed in the office of the clerk of a county Corporate Names. The General Corporation Law, § 6. other than the oue in which such notary, commissioner or justice is acting, the certificate of the county clerlt should be obtained. , Subscriptions to the stock oi a. de facto corporation are binding upon incorporators. (Dorris v. French, 4 Hun, 292; Eaton v. Aspinwall, 19 N. Y., 119; Dewitt v. Hastings, 69 N. Y., 518; L. O. R. R. Co. v. Munson, 16 N. Y., 451. See, also, Bufealo, etc., R. Co. v. GifiEord, 87 N. Y., 294; Dorris v. Sweeny, 04 Barb., 636; id., 60 N. Y., 463.) Corporations organized under the Banking Law are required to file duplicate certificates of incorporation, one in the oflace of the clerk of the county where located, or the principal office of the corporation is to be situated, and the other in the office of the Superintendent of Banks. See Banking Law (L. 1892, chap. 689), sections 40, 100, 150, 170, 180, 210. Corporations organized under the Insurance Law are required to file their certificates of incorporation only in the office of the Superintendent of Insurance, except in the case of town and county co-operative insur- ance corporations, which are required to file their certificates in the , office of the town or county clerk and in the office of the Secretary of State. See Insurance Law (L. 1892, chap. 690), sections 70, 110, 150, 170, 200, 230, 250, 263. An organization such as will create a corporation de jure, does pot exist until the certificate of incorporation is filed in accordance with law. (Childs v. Smith, 46 N. Y., 34; id., 38 How. Pr., 328.) It would seem that the filing of the certificate in the office of the Secretary of State is sufficient to effect incorporation; and an omission to file the duplicate in the office of the county clerk would not vitiate the incorporation so as to render the members partners as between themselves. (Raisbeck v. Oesterricher, 4 Abb. N. C, 444. See, also, Western Transportation Co. v. Scheu, 19 N. Y., 408; Oswego Starch Factory v. DoUoway, 21 N. Y., 449-; Union Steamboat Co. v. City of Buffalo, 82 N. Y., 351; Jessup v. Carnegie, 80 N. Y., 441; Baton v. Aspjnwall, 19 N. Y., 121; affirming 3 Abb. Pr., 417.) § 6. Corporate names.— No certificate of incorporation of a proposed corporation having the same name as an exist- ing domestic corporation, or a name so nearly resembling it as to be calculated to deceive, shall be filed or recorded in any office for the purpose of effecting its incorporation. A corporation formed by the reincorporation, reorganiza- tion or consolidation of other corporations or upon the sale - of the property or franchises of a corporation, may have the same name ap the corporation or one of the corporations to whose franchises it has succeeded. No corporation shall be hereafter organized under the laws of this State with the word bank, insurance, indemnity, guarantee or benefit as part of its name, except a corporation formed under the banking law or the insurance law. ■ (Poi-mer section 4, L. 1890, ch. 563, as amended by L. 1892, oh. 687, and L. 1895, ch. 672.) 10 CoEPORATE Names. The General Corporation Law, g 6. By lilie last amendmenit, wliiQli took effect May 14, 1895, Oie head note of this section was changed and the last sentence added. A oorparation existing under the laws of tide State of New York cannot, In legal proceedings, be properly designated by two names, and cannot, except as aurthordzed by law, change Its own name, either directly or by user, nor can the public give it a name other than that of its creation, by which it can be recognized in judicial proceedings. (Matter of U. S. , Mortgage Co. for leave to change its name, 83 Hun, 572.) Upon an applica- tion by a 'C»rpoiration for a change of name, which is opposed by ajiiather corporation on the gi'ound that the proposed new name will result in confusion, the absence of any element of franid as not controlling, as (the court will interfere where there is reasonahle ground to conclude that the granting of the application, will result In injury to the comiplaining cor- poration, or in' imposition or /deceit upon the public, by destroying the Idenlaty of such corporations. (Id.) TIhe law protects the right of a man *o use his own name in his own business, even if such use Injures another who has established a prior business of the same kind and gained a reputation which goes with the name. (Ohas. S. Biggins Company v. Hlggins Soaip Company, 144 N. Y., 462; reversing 71 Hun, 101.) An exclusive night may be acquired in the name in wJiich a business has been carried on, whether of a partnership or of an individual, and it will be proteoted againsft infringement by another who assumes it for the purposes of deception, or even if inno- cently used without right, to the deitriment of another, and -this right, which is in the nature of a right to a trade miark, may be sold or assigned. (Id.) The same rule aipiplies respecting corporate names, and an injunc- tion lies to restrain the simulation and use by one Corporation of the name of a prior corporation which tends to create confusion and to enable the later corporation to obtain, by reason of the similarity of names, the business of the prior one. (Id.) Every man has the absolute right to use his own name in his own busi- ness, even though he may thereby interfere with and injure the business of anoither bearing the same name, provided he does not resoo^t to any artifice or contrivance to produce the impression that the establishments are identical. (Meneely v. Meneely, 62 N. Y., 467.) However, ttie right of one to use his own name in his own business is something very different and distinct from the lending or giving of his name to a corpo- ration with a view of making it similar to that enq)loyed by other; persona in the same kind, of business. (Frank B. De Long v. The De Long/ Hook and Eye Co., 10 Misc., 577.) When the term of existence of a corporation has expired by limitation there seems to be no reason why the same corporate name may not be tised by a new corporation, unless such name has been continued in use by a co-partnership succeeding the defunct corporation and having a property interest in the name. The Secretary of State must decide ,in the first instance whether the proposed name is, or is not, within the statutory prohibition. State v. McGrath, 5 S. W. Rep., 29.) Change of Coepoeate Name ; Petition by Individual. 1 1 The General Corporation Law. The right to the exclusive use of a name will be protected upon the same principle that persons are protected in the use of trade- marks. (Id.) It is unnecessary to determine that there isi intent to do wrong. The right to protection of name is based upon the proprietary right acquired by the use thereof. (American Grocer v. The Grocer, 25 Hun, 398. See, also, Commercial Union Assur. Co. v. Smith, 18 State Rep., 151, 2 N. Y. Sup. 296; Matter of U. S. Mer. R. & Col. Assn., 22 State Rep., 494, 115 N. Y., 176; Railway Age v. Gaxnett, 17 Weekly Dig., 250; Farmers' Loan and Trust Co. v. Farmers' Loan and Trust Co., of Kansas, 21 Abb. N. C, 104; Hygeia Water Ice Co. v. N. Y. Hygeia Ice Co., 19 N. Y. Supp., 602; 47 State Rep., 71, affirmed 140 N. Y., 94; Employers' Liability Assurance Corporation v. Employers' Liability Ins. Co., 61 Hun, 552; In re Bank of Attica, 1 1 N. Y. Supp., 648 ; 35 St. Rep., 708.) Provisions restricting the use by corporation^ of the name " university " or " college " are contained in the University Law (L. 1892, ch. 378), sec- tion 33, as follows : " No individual, association or corporation not holding university or college degree-conferring powers by special charter from the Leglslatiu-e of this State or from the Regents, shall confer any degrees, nor after January first, eighteen hundred and ninety-three, shall transact business under, or in any way assume the name university or college, till It shall have received from the Regents, under their seal, written per- mission to use such name, and no such permission shall be granted by the Regents, except on favorable report after personal inspection of the Institution by an ofScer of the University. * • * Violation of this section shall be a misdemeanor. » * * » In re Crown Bank, 41 Chancery Division./ 634 (Great Britain), held, that the name of a corporation may be' considered in construing the objects stated in its memorandum of association (i. «., certificate of Incorpoi-ation.) * Change of corporate name. — The existing provisions regulating changes of corporate names are now contained in the Code of Civil Procedure, having been added thereto by an amendment passed April 13, 1893, chapter 366, which reads as follows: Petition by individual. — A petition for leave to assume another name may be made by a resident of the State to thei county court of the county in which he resides, or, if he resides in the city of New York, either to the supreme court or to the city court of New York. The petition of an infant shall be made by his general guardian, or by the guardian of his person, or by his next friend. (Code of Civil Procedure, § 2410, as amended by L. 1895, ch. 946.) * Chapter 322, Laws of 1870, as amended by ch. 280, Laws of 1876, and ch. 88, Laws of 1891, by the terms of which corporations were heretofore authorized to change their names, was repealed In 1892 ; see schedule of laws lepealed, appended to this law, post. 12 Change of Corporate Name ; Contents of Petition. The General Corporation Law. Petition by corporation. — A petition to as.sume another corporate name may be made by a domestic corporation, whether incorporated by a general or special law, to the supreme court at a special term thereof, held in the judicial district in which its principal business office shall be situ- ated, or, if it be other than a stock corporation, at a special term held in the judicial district in which its certificate of incorporation is filed or recorded, or in which its principal property is situated, or in which its principal operations are or theretofore have been conducted. If it be a banking insurance or railroad corporation, the petition must be authorized by a resolution of the directors of the corpora- tion, and approved if a banking corporation, by the super- intendent of banks; if an insurance corporation, by the superintendent of insurance, and if a railroad corporation, by the board of railroad commissioners. The petition to change the name of any other corporation must have annexed thereto a certificate of the secretary of state, tliat the name which such corporation proposes to assume is not the name of any other domestic corporation or a name which he deems so nearly resembling it, as to be calculated to deceive. {Qode of Oivil Procedure, sec. 2411.) For forms in proceedings to change corporate name see post, forms Nos. 1, 3, 3 and 4. Contents of petition. — The petition must be in writing, signpd by the petitioner and verified in like manner as a pleading in a court of record, and must specify the grounds of the application, the name, age and residence of the indi- vidual whose name is proposed to be changed, and the name which he proposes to assume, and if the petitioner be a cor- poration, its present name, and the name it proposes to assume, which must not be the name of any other corpora- tion, or a name so nearly resembling it as to be calculated to deceive; and if it be a railroad corporation, a corporation having banking powers or the power to make loans upon pledges or deposits, or to make insurances, that the petition has been duly authorized by a resolution of the directors of the corporation and approved by the proper ofiicer. {Code of Civil Procedure, sec. 2412.) ^^ Cha^igb OF OoEPOEATE Name ; Oedee Foe. 13 The General Corporation Law. Notice of presentation of petition. — If the petition be to change the name of an infant, and is made by the infant's next friend, notice of the time and place at which the petition will be presented must be served upon the father, or if he is dead or can not be found, upon the mother, or if both are dead or can not be found, upon the general guardian or guardian of the person of the infant, in like manner as a nptice of a motion upon an attorney in an action, unless it appears to the satisfaction of the court that the infant has no father or mother, or that both reside without the state or can not be found, and that he has no guardian residing within this state, in which case the court may dispense with notice or require notice to be given to such persons and in such manner as the court thinks proper. If the petition be made by a corporation located elsewhere than in the city and county of New York, notice of the pre- sentation thereof shall be published once in each week for six successive weeks in the State paper (at Albany in which notices by state offlcers are authorized by law to be pub- lished), and in a newspaper of every county in which such corporation shall have a business office, or if it has no busi- ness office, of the county in which its principal corporate property is situated or in which its operations are or there- tofore have been principally conducted, which newspaper, if it be a banking corporation, shall be designated by the superintendent of banks, if any * insurance corporation, by the superintendent of insurance, or if a railroad corpora- tion, by the railroad commissioners. In the city and county of New York such notice shall be published once in each week for six successive weeks in two daily newspapers pub- lished in such county. {Code of Oiml Procedure, sec. 2413, as ame nded by L. 1894, ch. 264.) Order.— If the court to which the petition is presented is satisfied thereby, or by the affidavit and certificate presented therewith, that the petition is true, and that there is no rea- sonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the inter- ests of the infant will he substantially promoted by the change, and, if the petitioner be a corporation, that the peti- tion has been duly authorized and that notice of the presen- * So In the original. 14 Change of Coepokate Name; When to Take Effect. The General Corporation Law. tation of the petition, if required by law, has been made, the court shall make an order authorizing the petitioner to assume the name proposed on a day specified therein, not less than thirty days after the entry of the order. The order shall be directed to be entered and the papers on which it was granted, to be filed within ten days thereafter in the clerk's office of the county in which the petitioner resides, if he be an individual, or in the office of the clerk of the city court of New York if the order be made by that court, or, if the petitioner be a corporation, in the office of the clerk of the county in which its certifi'cate of incorporation, if any, shall be filed, or if there be none filed in which its principal office shall be located, or if it has no business office, in the county in which its principal property is situated, or in ' which its operations are or theretofore have been princi- pally conducted, or in the office of the clerk of the county in which the special term granting the order is held; and, if the petitioner be a corporation, that a certified copy of such order shall, within ten days after the entry thereof, be filed in the office of the secretary of State; and also, if it be a banking corporation, in the office of the superintendent of banks, or if it be an insurance corporation, in the office of the superintendent of insurance, or if it. be a railroad cor- poration, in the office of the board of railroad commissioners. Such order shall also direct the publication, within ten days after the entry thereof of a copy thereof in a designated newspaper, in the county in which the order is directed to- be entered, at least once if the petitioner be an individual, or if the petitioner be a corporation, once in each week for four successive weeks. The county clerk, in whose office an order changing the name of a corporation is entered, shall record the same at length in the book kept in his office for record- ing certificates of incorporation. (Code of Oivil Procedure, § 2414, as amended by L. 1895, ch. 946.) When change to take eflfect.— If the order shall be fnlly complied with, and within forty days after the making of the order, an affidavit of the publication thereof shall be filed and recorded in the office in which the order is entered, and in each office in which .certified copies thereof are required to be filed, if any, the petitioner shall, on and after Amended and Supplemental Ceetificates. 15 The General Corporation Law, § 7. the day specified for that purpose in the order, be knowu by the name which is thereby authorized to be assumed, and by no other name. No proceedings heretofore had under sec- tions two thousand four hundred and fourteen and two thou- sand four hundred and fifteen of the code of civil procedure for the change of the name of a corporation, shall be invalid by reason of the non-filing of an affidavit of the publication of the order changing such name within twenty days from the date thereof. (Oorfe of Oivil Proced'iJi,re, sec. 2415, as amended ly L. 1894, ch. 264.) Substitution of new name in pending action or proceed- ing. — An action or special proceeding, civil or criminal, com- menced by or against a person whose name is so changed shall not abate, nor shall any relief, recovery or other pro- ceeding therein be prevented, impeded or impaired in con- sequence of such change of name. The plaintiff in the action or the party instituting the special proceeding, or the people, as the case requires, may, at any time, obtain an order amending any of the papers or proceedings therein, by the substitution of the new name, without costs and without prejudice to the action or proceeding. {Code of Civil Procedure, sec. 2416.) Reports by clerks to state oflacers.— The clerk of each county and of each court, shall annually, in the month of December, report to the secretary of state all changes of names of individuals or of corporations, which have been made in pursuance of orders filed in their respective offices during the past year and' since the last previous report, and also report in like manner to the superintendent of banks all changes of the names of banking corporations, and to the superintendent of insurance all changes of names of corporations authorized to make insurances. The secre- tary of state must cause to be published, in the next volume of the session laws a tabular statement showing the original name of each person and corporation and the name which he or it has been authorized to assume. , {Code of Oivil Procedure, sec. 2417.) § 7. Amended and supplemental certificates.— If in the original or amended certificate of incorporation of any corporation, or if in a supplemental certificate of any cor- poration any informality exist, or if any such certificate 16 Amended and Supplemental Ceetificatks. The General Corporation Law, § 7. contain any matter not authorized by law to be stated therein, or if the proof or acknowledgment thereof shall be defective, the corporators or directors of the corporation may make and file an amended certificate correcting such informality or defect or striking out such unauthorized mat- ter; and the certificate amended shall be deemed to be amended accordingly as of the date such amended certifi- cate was filed, and upon the filing of such an amended certificate of incorporation, the corporation shall then for all purposes be deemed to be a corporation from the time of filing the original certificate. The supreme court may, upon due cause shown, and proof made, and upon notice to the attorney-general, aud to such other persons as the court may direct, and upon such terms and conditions as it may impose, amend any certifi- cate of incorporation which fails to express the true object and purpose of the corporation, so as to truly set forth such object and purpose. When an amended or supplemental certificate is filed, an entry shall be made upon the margin of the index and record of the original certificate of the date and place of record of every such amended certificate. The amendment of a certificate under this section shall be without prejudice to any pending action or proceeding, or to any rights previously accrued. (Former section 5, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) For forms of pwpers vnder tTie foregoing section see post, forms Nos. 5, fi, 7 and 8. Under chapter 135, Laws of 1870, now repealed, it was beld that the act was intended to enable corporations to remedy ■patent omissions that Is, the omission of things which are required to be stated, and which being omitted, make the certificate imperfect upon its face. (Matter of N. Y., L. E. and W. R. R. Co., 25 Hun, 556.) Section 7 above, however, is much broader and more liberal in its terms, and seems to permit the correction of the specified irregularities, whether they are patent upon the face of the certificate or not. A corporation de facto may legally do and perform every act which the same entity could do or perform were it a de jure corporation; and as to all the world except the parajnount authority under which it acts, and from which it receives its charter, it occupies the same iwsition as though in all respects valid; and, even as against the State, except in direct pro- ceedings to, arrest its usurpation of power, its acts are to be treated as efScacious. (Lamming v. Galusha, 81 Hun, 247.) If in proceedings taken for the formation of a corporation an attempt has been made to comply with the general law under which It is sought Lost Ceetificatks ; Ceetificates as Evidence. 1 7 The General Corporation Law, §g 8, 9. to be cteated and the in'oorporation papers have been filed, from which the formation of the corporation may be presumed, and is followed by user, it becomes a corporation de facto, with all the rights as to third persons which that imports, although its articles filed are in some par- ticulars defective. (Lamming v. Galusha, 81 Hun, 247.) The validity of a corporation cannot be impeached by third persons by showing aliunde the certificate of incorporation that •certain requisites of the statute have not been complied with. (Id.) It would seem that this section does not apply to corporations hereto- fore formed under the Rapid Transit act of 187o, chapter 606. (See In re N. Y. Cable Ry. Co., 109 N. Y., 32.) § 8. Lost or destroyed certificates! — If either of the certificates of incorporation shall be lost or destroyed after filing, a certified copy of the other certificate may be filed in the place of the one so lost or destroyed and as of the date of its original filing, and such certified copy shall have the same force and effect as the original certificate had when filed. (Former section 6, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) Where the certificate filed in the county clerk's office is lost, it is com- petent to prove by oral evidence that a certificate was in fact filed. (N. Y. Car Oil Co. v. Richmond, 6 Bosw., 213.) § 9. Certificate and other papers as evidencfe. — The certifi- cate of incorporation of any corporation duly filed shall be presumptive evidence of its incorporation, and any amended certificate or other paper duly filed or recorded relating to the incorporation of any corporation, or its existence or man- agement, and containing facts required or authorized by law to be stated therein, shall be presumptive evidence of the existence of such facts. i (Former section 7, L. 1890, oh. 563, as amended by L. 1892, ch. 687, and L. 1895, ch. 672.) The only changes made to this section by the last amendment were the insertion of the words " or recorded " and " or authorized " in the fourth and sixth lines, respectively. This section is in addition to, and does not repeal or supersede section 933 of the Code of Civil Procedure, which provides that a duly certified copy of a paper filed in a public ofBce is evidence as though the original were produced. The full text of said section is as follows, to wit: A copy of a paper, filed, kept, entered, or recorded, pursuant to law, in a public office of the State, the officer having charge of which has pursuant to law, an official seal; or with the clerk of a court of the State: or with the clerk or secretary of either house of the Legislature, or of 18 Limitation of Powers. The General Corporation Law, § 10. any other public body or public board, created by authority of a law of the State, and having, pm-suant to law, a seal; or a transcript from a record, kept, pursuant to law, in such a public office, or by such a clerk or secretary, is evidence, as if the original was produced. But to entitle it to be used in evidence, it must be certified by the clerk of the court, under his hand and the seal of the court; or by the officer having the ciistody of the original; or his deputy or clerk, appointed pursuant to law, under his official seal and the hand of the person certifying, or by the presiding officer, secretary, or clerk of the public body or board, appointed, pursuant to law, under his hand, and, except where it Is certi- fied by the clerk or secretary of either house of the Legislature, under the oiEcial seal of the body or board. {Code of Civ. Pi-o., sec. 933.) A certified copy is proof, prima facie, of the genuineness of the signa- tures thereto attached in an action against a subscriber for the amount of stock purporting to be subscribed by him. (Matter of N. Y., L. & W. R. R. Co., 35 Hun, 220; affirmed, 99 N. Y., 12.) All that a corporation is called upon to prove, to establish its existence, is its charter, and user under it. (Jones v. Dana. 24 Barb., 395; U. S. Ins. Co. V. Tillman, 1 Wend., 555.) An objection that there was a failiure to prove the incorporation of a company of another State, because the certificate of its Secretary of State, under the great seal, was not exemplified, as required by section 906 of United States Revised Statutes, is without force. (U. S. Vinegar Co. v. Foehenbach, 74 Hun, 435.) § 10. Limitation of Powers. — No corporation shall possess or exercise any corporate powers not given by law, or not necessary to the exercise of the powers so given. The cer- tificate of incorporation of any corporation may contain any provision for the regulation of the business and the conduct of the afifairs of the corporation, and any limitation upon its powers, or upon the powers of its directors and stockholders, which does not exempt them from the performance of any obligation or the performance of any duty imposed by law. (Former section 9, L. 1890, ch. 563, as amended by L. 1892, ch. 687, and by L. 1895, ch. 672.) The amendment of 1895, which took effect May 14, changed the head note of this section and added the last sentence, which embraces the same provisions as those contained in section 2 of the Business Corpora- tions Law. A corporation, in order to attain its legitimate objects, may deal pre- cisely as an individual may, who seeks to accomplish the same ends. (Barry v. Merchants' Exchange Co., 1 Sandf., Chan. 289; SafCord v. Wycoff, 4 Hill, 422.) Unless restrained by law, every corporation has the incidental power to make any contract necessary to advance the objects for which it was created. (Legrand v. Manhattan Mer. Assn., 80 N. Y., 638.) Geant of General Powers. 19 The General Corporation Law, § 11. A manulacturing corporation lias no power to indorse accommodation notes. (Nat. Park Bank t. G. A. M. W. & S., 116 N. Y., 281.) Contracts of corporations are ultra vires wheu tliey involve adventures outside of and not within the scope or powers given by their charter. (Jennison et al. v. C. &. Bank, 122 N. Y., 135.) A corporation can not avail itself of the defense of ultra vires, when the contract has been in good faith fully performed by the other party, and the corporation has had the full benefit of the performance and of the contract. (Lienkauf v. Lombard, 137 N. Y., 417; Whitney- Arms Co. v. Barlow, 63 N. Y., 62; Watts-Campbell Co. v. Yuengling, 51 Hun, 302.) A person dealing with a corporation is chargeable with notice of 'its powers and the purposes for which it was formed, and when dealing with its agents or officers is bound to know the extent of their power and authority. A corporation necessarily carries its charter wherever it goes, for that is the law of its existence. (Jennison v. The Citizens' Savings Bank, 122 N. Y., 140; Alexander v. Cauldwell, 83 N. Y., 480; see, also, Patterson v. Robinson et al., 116 N. Y., 198; Wilson v. Kings Co. E. R. R. Co., 114 N. Y., 491; Martin v. N. F. P. Co., 122 N. Y., 165; Wahlig V. S. P. M. Co., 25 N. Y. State Rep., 864.) As to right of ^telegraph companies in making pooling contracts. (See Benedict v. West. Un Tel. Co., 9 Abb., N. C, 214.) Whenever privileges, granted by the Legislature to a corporation, come under review in the courts, they are to be strictly construed against the corporation; nothing passes but what is granted in clear and explicit terms. (People ex rel. Third Ave. R. R. Co. v. Newton, 112 N. Y., 396 ) § 11. Grant of general powers. — Every corporation as such has power, though not specified in the law under which it is incorporated: 1. To have succession for the period specified in its cer- tificate of incorporation or by law, and perpetually when no period is specified. 2. To have a common seal, and alter the same at pleasure. 3. To acquire by grant, gift, purchase, devise or bequest, to hold and to dispose of such property as the purposes of the corporation shall require, subject to such limitations as may be prescribed by law. 4. To appoint such oflScers and agents as its business shall require, and to fix their compensation, and 5. To make by-laws, not inconsistent with any existing law, for the management of its property, the regulations of its affairs, and the transfer of its stock, if it has any, and the calling of meetings of its members. Such by-laws may also fix the amount of stock, which must be represented at meet- ings of the stockholders in order to constitute a quorum, unless otherwise provided by law. By-laws duly adopted at a 20 Ghant of General Powees. The General Corporation Law, §11. meeting of the members of the corporation shall control the action of its directors. No by-law adopted by the board of directors regulating the election of directors or officers shall be valid unless published for at least once a week for two successive weeks in a newspaper in the county where the election is to be held, and at least thirty days before sucli election. Subdivisions four and five of this section shall not apply to municipal corporations. (Former section 8, I^. 1890, cli. 563, fls ameucied by Z,. 1802, ch. 687, and L. 1895, ch. 672.) Fur form of by-laws, see post, form Xu. 9. By the amendment of 1895 the words " and the calling of meetings of its members " were inserted in the first sentence of subdiviision five, and also the words " adopted by the board of directors " in the last sentence but one. A contract made by a treasurer of a corporation in disregard of a by-law restricting the execution of such a contract is not binding on the corpora- tion. (Parmelee v. Associated Physicians and Surgeons, 9 Misc. R., 458; but see cases therein cited.) The unexplained presence of a corporate seal upon promissory notes of a corporation does not affect their apparent character and require them to be regarded as sealed instruments. (Weeks v. Esler, 143 N. Y., 374.) A corporatiouj' possesses not only powers specifically granted in terms by its charter, but also such powers as shall be necessary to the exercise of the powers so enumerated and given. The unexpressed and incidental powers possessed by a corporation are not limited to suth as are abso- lutely or indispensably necessary to enable it to exercise 'the powers speoifioally granted. Whatever incidental powers are reasonably neces- sary to enable it to perform its corporate functions are implied from the powers affirmatively granted; but powers merely convenient or useful are not implied if they are not essential, having in view the nature and object of the incorporation. (People ex rel. Tiffany v. Campbell, 144 N. Y., 166.) Where promissory notes were executed by the president and treasurer, who had been accustomed to sign the same, and the money borrowed thereon for the corporation was used for its benefit, such notes are valid, although the by-laws provided that all notes and obligations should be signed by the secretary. (Xlilbank v. De Riestbal, 82 Hun, 537; Grant v. George C. Treadwell Co., 82 Hun, 591.) No provision relative to suing and being sued was enacted in the above section, because contained in the State Constitution, article 8, section 3, as follows: "All corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons." Under the second paragraph of subdivision 5 above, a daily publication of the by-law is not intended. A publication once a week for two weeks is sufficient. (Wood v. Knapp, 1(X) N. Y., 109.) 1. The term of existence may be extended. (See see. 32, post.) Grant of Geneeal Powers. 21 The General Corporation Law, § 11. 2. The corporate seal Is not always necessary in order to bind the corporation. It is of great value as showing the acts of the corpora- tion. (Lienkauf v. Coleman, 110 N. Y., 50; Whitford v. Laidler, 94 N. Y., 145.) 3. A maximum limit of property that may be held by a non-stock corporation is prescribed in the next succeeding section. No such limit is prescribed for stock corporations. 4. See section 29, post, and the Stock Corporation Law, sections 20, 27 and 28. 5. Directors may make necessary by-laws, subject, however, to the by-laws duly adopted by the members of the corporation. (See . section 29, post.) The by-laws should fix the time and place of the elec- tion of directors. (See Stock Corporation Law, section 20, post, and section 23, post. The by-laws should prescribe the manner of appointing inspectors of election (id., section 28, post), and they should prescribe the manner of trans- ferring stock. (Id., section 40, ijosf.) An action to have a by-law declared illegal and void Is not maintain- able when enforcement of such by-law will not subject the party to irreparable injury. (Thomas v. Musical Mut. Pro. Union, 121 N. Y., 45.) Directors may select an executive committee and give it power to transact the business of the company during intervals between meetings of the board, and such committee may delegate one of its number to do ministerial acts, indorsing checks, etc. (Sheridan El. Lt. Co. v. Chat. N. Bk., 127 N. Y., 517.) ' A corporation can only have an existence under the express law of the state by which it is created, and can exercise no power or authority which is not granted to it by the charter under which it exists, or by some other legislative act. (Oregon R. R. Co. v. Oregoniah R. R. Co., 130 TJ. B., 1.) When a corporation is organized under general laws the certificate of incorporation stands In the place of a legislative charter. (Id.) For llmi'.Ations as to right to acquire real property see next section; also State Constitution, article 8, sections 1, 3, post. A corporation although created only for a term of years, may purchase and hold lands in lee. (NicoU v. N. Y. & Erie R. R. Co., 12 N. Y., 121; People V. O'Brien, 111 N. Y., 38.) When property or rights have been acquired or become tested, no amendment or alteration of -the charter can take away the property or rights which have become vested under a legitimate exercise of the powers granted. (Albany B. R. Co. v. Brownell, 24 N. Y., 345; People V. O'Brien 111 N. Y., 1; Id., Ill N. Y., 52.) , A , corporation may take title to all kinds of property, even the stock of another corporation, in the payment of a debt. (H. & G. Man. Co. v. H. & W. Metal Co., 38 State Rep., 157.) Where a corporation is authorized, under certain circumstances, to hold and convey real property, it will be presumed, in the absence of proof to the contrary, that real property conveyed by it was held and conveyed in pursuance of its powers. (Farmers' Loan & Trust Co. v. Cnrtiss, 7 N. Y., 466.) 22 Acquisition of Additional Real Property. The General Corporation Law, §§ 13, 13. A corporation can not take and hold property by devise or bequest beyond the maximum permitted by its charter, or the statute under which it is organized. (McGraw v. Cornell Univ., Ill N. Y., 66.) By-laws of stock corporations are, as to third persons, private regula- tions binding as between the corporation and its members or third persons having knowledge of tliem, but of no force as limitations iei' se as to third persons ot an authority which, except for the by-laws, would be construed as within the apparent scope of the agency. (Rathbun v. Snow, 123 N. y., 349.) A by-law, enadted under express authority of an act of the Legislature, and In conformity with the power conferred, has the same force as if enacted by the Legislature. (Brick Church v. Mayor, etc., of N. Y., 5 Cow., 538; McDei-mott v. Board of Police, 5 Abb. Pr., 422.) A by-law must be reasonable, and adapted to the purposes of the corporation, or it is void. (People v. Medical Soc, 24 Barb. R., 570; see also Matthews v. Associated Press, 136 N. Y., 333; Compton v. The Chelsea, 128 N. Y., 537; Kent v. Quicksilver Mining Co., 78 N. Y., 159.) In failing to comply with a by-law the corporation neglects to perform a duty which it owes to the public, and If Its neglect results In injury, there is secured to the person Injured the right to be indemnified by the corporation. (Knox v. Eden Musee, eta, 74 Hun, 483.) § 12. Enlargement of limitations upon the amount of the property of non-stock corporations. — If any general or special law heretofore passed, or any certificate of incor- poration, shall limit the amount of property a corporation other than a stock corporation may take or hold, such cor- poration may take and hold property of the value of three million dollars or less, or the yearly income derived from which shall be five hundred thousand dollars or less, not- withstanding any such limitations. In computing the value of such property, no increase in value arising otherwise than from improvements made thereon shall be taken into account (New t)rovisions, added by L. 1892, ch. 687, as amended by L. 1894, ch. 400.) Tlie foregoing limitations do not affect .stock corporations. .\s to what are classified as stock and non-stock corporations, respectively, .see sections 2 and 3, ante. § 1 3. Acquisition of additional real property. — When any corporation shall have sold or conveyed any part of its real property, the supreme court may, notwithstanding any restriction of a general or special l/'iW, authorize it to pur- chase and hold from time to time other real property, upon satisfactory proof that the value of the property so pur- Acquisition of PEOPEETr in Other States. 23 Tlie General Corporation Law, §§ 14, 15. chased does not exceed the value of the property so sold and conveyed within the three years next preceding the application. (Former section 10, L. 1S90, cb. o(i3, as amended by L. 1892, cli. 687.) It seems that this provision is to be read in connection with the preceding section only, and is not intended to apply to stock corporations. The words " notwithstanding any restriction of a general or special law " were inserted by the amendment of 1892. As to efCect of a conflicting provision in another law, see section 33, post, and Statutory Construction Law, section 32, post. § 14. Acquisition of property in other states.— Any domestic corporation transacting business in other states or foreign countries may acquire and dispose of such prop- erty as shall be requisite for such corporation in the con- venient transaction of its business. (Former section 11, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) Any corporation acquiring property in other States or foreign countries should also consult the statutes of the State or country in which the property is located. A corporation of th.is State can exercise no power in another State without the sanction of such State. (Runyan v. Lessee of Coster, 14 Peters (U. S.). 122; Demarest v. Flack, 128 N. Y.. 205; Hickory Farm Oil Co. V. Buf., etc., R. R. Co., 2 Ry. & Corp. L. J., 470.) Every power which a corporation exercises in another State depends for its validity upon the laws of the sovereignty in which it is exercised, and a corporation can make no valid contract without the sanction, express or implied, of such sovereignty. (Runyan v. Lessee of Coster, 14 Peters (U. S.), 129; Briscoe v. Southern Kansas Ry. Co., 40 Fed. Rep., 280.) If such other State does not permit the corporation to acquire or hold real property, it must be expressed in some affirmative way. It can not be inferred. (Cowell v. Springs Co., 100 U. S., 55; Christian Union v. Yount, 101 U. S., 352.) § 1 5. Certificate of authority of a foreign corporation.^ No foreign stock corporation other than a monied corpora- tion, shall do business in this state without having first procured from the secretary of state a certificate that it has complied with all the requirements of law to authorize it to do business in this state, and that the business of the corporation to be carried on in this state is such as may be lawfully carried on by a corporation incorporated under the laws of this state for such or similar business, or, if more than one kind of business, by two or more corporations so 24 Cketificate of Authoeitt of a Foekign Coepoeation. The Geteral Corporation Law, g 15. incorporated for such kinds of business respectively. The secretary of state shall deliver such certificate to every such corporation so complying with the requirements of law. No such corporation now doing business in this state shall do business herein after December 31, 1892, without having procured such certificate from the secretary of state, but any lawful contract previously made by the corporation may be performed and enforced within the state subsequent to such date. No foreign stock corporation doing business in this state without such certificate shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate. (New provisions, added by L. 1892, ch. 687.) For definitions of " foreign," " stocli " and " monied " corporations, espectively, see section 3, ante. In relation to the proof to be filed with the Secretary of State in order to obtain the certificate of authority above provided for, see section 16. For forms of papers wider these prorUions, see post, forms Nos. 10, fl, 12 and 13. The requirement as to the certificate of authority to be obtained by foreign stocli corporations, and the section prescribing the proof to be filed in order to procure such certificate, embrace new provisions of the General Corporation Law of the Staite of New Yorls, having been added thereto by Laws of 1892, chapter 687. The penalty imposed upon foreign stocli corporations doing business in this State for a failure to obtain the certificate of authority required under this pro- vision Is that such delinquent corporation shall not be permitted to maintain any action in our courts upon any contract made by it in New York State during such delinquency. The question Is frequently aslied the Secretary of State by lawyers representing foreign corporations, whether he will require a corporation selling goods In the State, but having no oflSce therein, to comply with this law. This inquiry is probably not made by those who give the statute a careful examination, as the provisions of the foregoing section of the law and of the next succeeding section, post, page 29, do ! not confer upon the Secretary of State super- visory power over corporations organized in other States and doing business here so as to enable him to enforce a compliance with the terms of those sections. It rests entirely with the corporation itself to elect whether or not it will bring itself under the protection of the laws of this State, so as to be permitted to maiie enf orcible contracts within the State. The foregoing section provides that no foreign stocli corpora- tion, other than a banldng or insurance corporation, shall do business in the State without having procured from the Secretary of State a certificate of authority, and the next section, entitled, " Proof to be filed before granting cercificate," post, page 29, provides that, before the granting of such certificate, the corporation applying for the same must file a sworn copy of its charter or certificate of incoi-poration, and a Certificate of Authority of a Foekign Coepoeation. 25 The General Corporation Law, § 15. statement under its corporate seal, setting forth the business or objects of the corporation which it is engaged in carrying on, or which it proposes to carry on, within the State, and a place within the State which is to be its principal place of business, and designating, in the manner prescribed in the Code of Civil Procedure, a person upon whom process against the corporation may be served within the State. The statute requires every foreign stock corporation doing business in the Sitate of New York, except banks and insurance companies, which are governed by other laws, to comply witli these provisions. The two most recent decisions under this statute are utterly irrecon- cilable as will be apparent from a consideratiion of the conclusions reached: In the New York Common Pleas, General Term, April, 1895, it was held that contracts made by a foreign corporation before it had obtaiined a certificate of authority to transact business within the State are nevertheless enforcible by action as soon as such certifioate is pro- cured# (Neuchatel Asphalte Co., Limited v. The Mayor, etc., of New York, 12 Misc. R., 26; modifying 9 Misc. R., 376.) But in the General Term of the Supreme Court, April, 1895, the oipposite contentiion was upheld, and the determina;tion was to the effeat that a foreign coi-poration had a right to go on with its busdness in the ordinary way without a certifioate up to and including December 31, 1892, and, after that date, i>6rform and enforce any lawful contracts previously made, but that if, after that date, it desired to do business beyond the performance and enforcement of previous contracts, it must have a certificate. (Providence Steam and Gas Pipe Co. v. Connell, JS6 Hun, 319.) Unless the view taken by the court in the case last cited is the proper one the statute would seem to be quite ineffectual and the evident purpose of the legislature in enacting this law would be defeated by simply making the pemalty of no avail. The statute prohibits the tnansaction of business within the State without a certificate of authority, and prescribes as a penaJity, to be imposed upon foreign corporations making contracts in defiance of that iDroJiIbition, that such contracts shall not be enforcible; therefore. It would seem, if the non-enforcible character of the contracts so made is to be reasoned away and destroyed by the courts the very essence and aim of the act is defeated, and foreign corporations may, in defiance of the prohibition, continue to do business in the State and make contracts ad libitum without fear or risk of incurring any penalty, so long as such corporation has an assurance that It may evade the statute by thereafter obtaining a certifi- cate of authority whenever the time shall arrive for the enforcement of its contraats by action In the court. The restrictions contained in this section relate only to contracts made within the State of New York. (Novelty Mfg. Co. v. Connell, 88 Hun, 254.) Where a foreign corporaiMon had no islace of business in this State, but took orders by means of drummers; . held that It did not do business within this State within the meaning of the two preceding sections, and even if such business were within the meaning and intent of said provi- sions, that the statute is violative of the commerce clause of the Federal Constitution and void in so far as it attempts to regulate the transactions in question. (Murphy Varnish Co. v. Connell, 10 Misc., 553.) 26 Certificate of Authority of a Foreign Coefoeation. The General Corporation Law, § 15. The Code of Civil Procedure provides in what cases attachments may be issued, and what is necessary to t)e shown by the plaintiff to entitle him to the attachment, but these provisions are not exclusive, and the legislature may affix other conditions to the right of invoking such remedy. As a remedy by attachment is a step in an action the provisions of section 15 of the General Corporation Law apply, and the papers upon which a foreign coi-poration doing business in the State, in relation to a transac- tion within the State, must show, for the purposes of the attachment, that the corporation has complied with said section 15. (Sawyer Lumber Co. V. Bussell, 84 Hun, 114.) Resident stockholders of a foreign , corporation may maintain an action to prevent waste and to compel restitution for stock or property improp- erly diverted. (Nash v. Hall, 11 Misc. E., 468.) Upon the application of stockholders of an insolvent foreign corporation, doing business and having assets in this State, but no officers empowered to hold such assets, the courts of this State have power ito aip^int a receiver of such coi"poration to preserve the assets within their jurisdiction for the protection of domestic creditors. (Hall v. Holland House Co., 12 Misc., 55.) Where the act of incorporation of a foreign corporation declares in terms that each stockholder shall be individually liable for the debts of the corporation the courts of this State are open to a creditor of such corporation to enforce the liability of the stockholder for such debts according to the terms of the charter. (JIarshall v. Sherman, 84 Hun, 186.) The provisions of this section apply to actions on contract only and have no application to a judgment creditor's action brought to set aside alleged fraudulent transfers and conveyances. (Joseph Sohlitz Brewing Co. V. Ester, 86 Hun, 22.) An attachment may issue against 'the property of a foreign corporation within the limits of the State, however solvent it may be, and however great its ability to pay all claims against it on demand. It is powerless to prevent a creditor, or a fictitious claimant even, from obtaining an attachment against its property in this State. (Robertson v. Ongley Elec- tric Co., 82 Hun, 585.) An action to enforce the statutory liability of the stockholders of an Insolvent foreign corporation 'cannot be maintained in the courts of the State of New York when the statutes of the State in which such foreign corporation is located provide a special remedy, which is exclusive of all other remedies, and can only be administered in such State. Where the remedy is of such a character that it can only have effectual operation in one forum, a party interested should not be permitted to enforce it in another place. (Cleveland, Lorain and Wheeling Ry. Co. v. Kent, 87 Hun, 329.) Statutes relating to procedure have no extra territorial effect. (Id.) Where a foreign corporation consigns goods to persons in this State for sale, and sales are made by the factor in his own name and tiie proceeds collected and accounted for by him, such corporation does not do business in this State within the meaning of this provision, and no certificate is necessary to enable it to maintain an action to recover the Certificate of Atjthoeity of a Forei&n Ogepoeation. 27 The General Corporation Law, § 15. net proceeds of such goods. (Bertha Zinc & Mineral Co. v. Clute, 7 Misc. R., 123.) Every foreign stock corporation that has filed the necessary papers and procured the certificate of the Secretary of State required by section 15 is accorded the same right to transact business here as domestic corporations. (Lancaster v. Amsterdam Improvement Co., 140 N. Y., 57.) This right, so far as it relates to dealing in lands, is not restricted by the provisions of sections 17 and 18. (Id.) Where such corporation is regularly organized under the lavrs of another State, the facts that its incorporators are citizens of this State, and that it has its principal office and conducts its business here do not afCect the validity of its organization, or exclude it from recognition by the courts of this State. (Id.) Where it has filed a certificate of incorporation required by the laws of its state, it is a corporation de facto, and any question affecting it because of alleged irregularities in organization, is a matter for the government of that State to Inquire into. (Id.) A foreign stock corporation is not prevented from maintaining an action of replevin by the foregoing section, such action being purely ex delicto, and not ex contractu. (American Typefounders Co. v. Connor, Misc. R., 391; 36 N. Y. Supp., 743.) This statute does not appear to be an interference with interstate commerce. (See Smith v. Alabama, 124 U. S., 465.) It provides for the proper carrying on of such commerce by foreign corporations. It Is only when an action is brought uppn a contract made in this State in defiance of the laws of the State which were in force when the contract was made, and when the foreign corporation still disobeys these laws that the penalty of the act is incurred and that the courts will deny their aid in the enforcement of a contract. (Lasher v. Stimson, 145 Pa., 30; Hagerman v. Empire Slate Co., 97 Pa., 536; People v. Formosa. 131 N. Y.. 478; People v. Fire Assn., 92 N. Y., 311; Am. Ins. Co. v. Wellman, 69 Ind., 413; Gin. Mut., etc., Co. v. Rosenthal, 55 111., 85; Wood M. M. Go. V. Caldwell, 54 Ind., 273.) Corporations are not citizens within the meaning of the Constitution of the United States, article 4, section 2, clause 1, declaring that " the citizens of each State shall be entitled to all privileges and immunities of citizens, in the several States." They are creatures of local law, and have not an absolute right of recognition in other States, but depend for that and for the enforcement of their contracts upon the assent of those States, which may be given accordingly on such terms as they please. The privileges and immunities secured to citizens of each State in the several States by this clause of the Constitution, are those privileges and immunities which are common to the citizens in the latter States vmder their Constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not , secured by it in other States. (Paul v. Virginia, 8 Wallace (U. S.), 168. Same rule upheld in Pembrina Mining Co. v. Pennsylvania, 125 U. S., 181; Norfolk & W. R. R. v. Pennsylvania, 136 U. S., 114, and Horn Silver Mining Go. v. New York State, 143 U. S., 805.) The provisions in the fourteenth amendment to the United States Constitution, section 1, that " no State shall deny to any person withm 28 Ceetificate of Authoeitt of a Foreign Corfoeation. The General Corporation Law, § 15 its jurisdiction tlie equal protection of the laws," do not prohibit a State from requiring for the admission within its limits of a corporation such conditions as it chooses. (Pembrina Mining Co. r. Pennsj'lvania, 125 U. S., 181.) The only limitation upon this power of the State to exclude a foreign corporation from doing business within its limits, or hiring offices for that purpose, or to exact conditions for allowing it to do business or hire offices there, arises where the corporation is in the employ of the federal government, or where its business is commerce, interstate* or foreign. (Pembrina Mining Co. v. Penn., supra; People ex rel. Southern Cotton Oil Co. V. Wemple, 131 N. Y., 64.) The right of a State to prescribe generally by its Constitution and laws, the terms upon which a foreign corporation shall carry on its business In the State, is well settled. (Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Phila. Fire Assn. v. New York, 119 U. S. 110.) A foreign corporation cannot avail itself of the statute of limitations of the State of New York in an action brought in the New York courts. (Robeson v. Central R. R. Co. of N. J., 76 Hun, 444; Boardman v. Lake Shore and M. S. Ry. Co., 84 N. Y., 185; Rathbun v. Northern Central Ry. Co., 50 N. Y., 656; Olcott v. Tioga R. E. Co., 20 N. Y., 210; Mallory v. Tioga R. R. Co., 3 Keyes, 354.) A corporation formed by consolidation of a domestic and a foreign cor- poration, is a doraestic corporation. (People e.v rel. L. S. and M. S. Ry. Co., 70 N. Y., 220; People v. N. Y., Chicago and St. L. R. R. Co., 129 N. Y., 474.) Foreign corporations doing business in this State must conform to our laws relating to such corporations, and comply with the terms laid down by us as conditions of allowing them to transact business here. (Demarest V. Flack, 128 N. Y., 205.) The legislatiu'e has exclusive power to say whether any, and if so, what terms shall be Imposed as a condition of doing business here. (Id.) The doing of insolated acts of business within a State is not " doing business " within such a prohibition. (Cooper Mfg. Co. v. Ferguson, 113 U. S., 727.) A foreign corporation seeking to do business in this State must obey its laws and conform to its public policy. (People v. Formosa, 131 N. Y., 478.) The legislature may, as to them and as to domestic corporations, pre- scribe terms for doing business here, and may enact laws regulating their conduct and that of their agents, and enforce obedience to those laws by such penalties, forfeiture and punishments as it may within constitutional limits prescribe. (Id.) Public policy does not forbid the transaction of business in this State by a corporation formed in another State by citizens of this State, for the purpose of transacting business here. (Demarest v. Flack, 128 N. Y., 205; Lancaster v. Amsterdam Improvement Co., 140 N. Y., 576.) Foreign corporations are permitted to exercise in this State the powers *Asto the class of business to which the federal statute, known as the "Interstate Commerce Act" applies, see that act, post. Proof to be Filed before G-eanting Ceetificate. 29 The General Corporation Law, § 16. with which they are endowed, unless such exercise is repugnant to our policy or injurious to our interests. (Sherwood v. American Bible Soc'y, 4 Abb. Ot. App. Dec, 227; Bard v. Poole, 12 N. Y., 495; Merrick v. Van Santvoord, 34 N. Y., 208; In re Estate of Prime, 136 N. Y., 347.) Under the provisions of the Code of Civil Procedure, in reference to pro- ceedings supplementary to execution (sees. 2435, 2452, 2458, 2463), such proceedings may be instituted against a foreign corporation having no agent and doing no business in this State, and a receiver of its property in this State may be appointed. (Logan v. McCall Pub'g Co., 140 N. Y., 447.) The policy of this State does not preclude a creditor of such a cor- poration from obtaining a preference upon assets here. (Id.) An assignment for the benefit of creditors, made in this State by an insolvent foreign corporation, valid under the law of its domicile, will be recognized as valid here. (Vanderpoel v. Gorman, 140 N. Y., 563.) Such an assignment is not violative of the provision of the Stock Corporation Law, section 48, which prohibits a transfer or assignment by a corpora- tion in contemplation of insolvency; that provision refers solely to domestic corporations. (Id.) In the absence of any statute or of a by-law of the corporation providing otherwise, such an assignment may be executed by the president and secretary under authority of its board of managers. (Id.) Under the provisions of the Code of Civil Procedm-e (sees. 2435, 2452, 2458, 2463), in reference to proceedings supplementary to execution, such proceedings may be instituted against a foreign corporation not doing business in this State, nor having any business or fiscal agency therein, or agency for the transfer of its stock, and a receiver of its property in this State may be appointed. (Logan v. McCall Publishing Co., 140 N. Y.. 447.) The policy of this State does not preclude the creditor of such corpora- tion from obtaining a preference upon assets here. (Id.) Where an attorney rendered professional services to a foreign corpora- tion, under a contract made in the State of New York, and part of such services were rendered in said State, the case is within section 1780 of the Code of Civil Procedure; and there is no merit in the contention that because the price of the services to be rendered under the contract was not fixed by it, there was no contract within the meaning of the section of the Code mentioned. (Robeson v. Central R. R. Co. of N. J., 76 Hun, 444.) For said section see Code provisions herein, post. A statute of this State granting powers and privileges to corporations must, in the absence of plain Indications to the contrary, be held to apply only to domestic corporations. {In re Estate of Prime, 136 N. Y., 347.) Corporations formed under Insurance Law and Banking Law are required to obtain similar certificates from the Superintendent of Insur- ance and Superintendent of Banks, respectively, before commencing busi- ness. (See Insurance Law, sees. 9, 31; Banking Law, sees. 31, 32.) § 16. Proof to be filed before granting certificate. — Before granting such certificate the secretary of State shall require every such foreign corporation to file in his office a sworn 30 Peoof to be Filed before Granting Cektifioate. The General Corporalion Law, g 16. copy in the English language of its charter or certificate of incorporation and a statement under its corporate seal par- ticularly setting forth the business or objects of the corpora- tion which it is engaged in carrying on or which it proposes to carry on within the State, and a place within the State which is to be its principal place of business, and designat- ing in the manner prescribed in the Code of Civil Procedure a person upon whom process against the corporation may be served within the State. The person so designated must have an office or place of business at the place where such corporation is to have its principal place of business within the State. Such designation shall continue in force until revoked by an instrument in writing designating in like manner some other person upon whom process against the corporation may be served in this State. If the person so designated dies or removes from the place where the cor- poration has its principal place of business within the State, and the corporation does not within thirty days after such death or removal designate in like manner another person upon whom process against it may be served within the State, the secretary of state may revoke the authority of the corporation to do business within the State, and process against the corporation in an action upon any liability incur- red within this State before such revocation, may, after such death or removal, and before another designation is made, be served upon the secretary of state. At the time of such ser- vice the plaintiff shall pay to the secretary of state two dollars to be included in his taxable costs and disbursements, and the secretary of state shall forthwith mail a copy of such notice to such corporation if its address, or the address of any officer thereof, is known to him. (New provisions added by L. 1892, cb. 687, as amended by L. 1895, ch. 672.) For forms under this section, see post, forms Nos. 10, 11, 12 and 13. The last amendment was merely the insertion of the words " in the English language " in the fourth line. The Secretary of State has rejected many papers drawn under this sec- tion which in his opinion set forth objects not within the scope of the act, but in only one case has his action been contested in the courts. In this case a corporation organized under a special act of the legislature of the State of New Hampshire was authorized to carry on the business of a safe deposit and trust company and to deal in money and securities. Pkoof to be Filed befoee Granting Ceetifioatk. 31 The General Corporation Law, § 16. Said corporation desired auttiority to carry on in tliis State a portion of the business which it was organized to carry on, and presented for filing papers in which the business to be carried on here was stated to be the purchase and sale of the stock, bonds and other written evidences of indebtedness of public corporations, to wit, stock, bonds and other written evidences of indebtedness of States, "cities, villages, towns and other political subdivisions. The Secretary of State refused to file the papers or to issue a certificate for the reason that it being a banking corporation, Invested with banking powers, could not do business by authority from the office of the Secre- tary of State. The corporation applied for a writ of mandamus to compel the filing of the papers. The writ w;as denied. Decided March 18, 1893, In Supreme Court, Special Term, Third Department; Ilerrick, Justice. No appeal was taken. (People ex rel. E. 11. HoUirs & Sons v. Kice ) The provisions of the Code of Civil Procedure, referred to in the fore- going section, are as follows: Provisions of the Code of Civil Procedure, referred to in the foregoing section. Personal service of the summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof within the State as follows: 1. To the president, treasurer, or secretary; or if the cor- poration lacks either of those officers, to the offlcer perform- ing corresponding functions under another name. 2. To a person designated for the purpose by a writing, under the seal of the corporation, and the signature of its president, vice-president, or other acting head, accompanied with the written consent of tliepersoh designated, and filed in the office of the secretary of state. The designation must specify a place, within the State, as the office or residence of the person designated; and if it is within the city, the street and street number, if any, or other suitable designation of the particular locality. It remains in force, until the filing in the same office of a written revocation thereof, or of the consent, executed in like manner; but the person designated may, from time to time, change the place specified as his office or residence, to some other place within the state, by a writing, executed by him, and filed in like manner. The secretary of state may require the execution of any instrument, speci- fied In this section, to be authenticated as he deems proper, and he may refuse to file it without such an authentication. An exemplified copy of a designation so filed, accompanied 32 Peoof to be Filed before Granting Certificate. The General Corporation Law, § 16. with a certificate that it has not been revoked, is presump- tive evidence of the execution thereof, and conclusive evi- dence of the authority of the officer executing it. 3. If such a designation is not in force, or if neither the person designated, -nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the state, or the cause of action arose therein; to the cashier, a director, or a man- aging agent of the corporation, within the state. {Code of Ciml Procedure, sec. 432.) The provisions of this article, relating to the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceeding is commenced in a court, or before an officer, except a proceed- ing to punish for contempt, and except where special pro- visions for the service thereof is otherwise made by law, {Code of Civil Procedure, sec. 433.) Proof of service, as prescribed in this article, must be made by affidavit, except as follows : 1. If the service was made by the sheriff, it may be proved by his certificate thereof. * * * {Code of Cioil Procedure, sec. 434.) An agent of a foreign newspaper corporation who signs as its " eastern representative," and conducts all its business transacted dn the State, is the managing agent of the ■corporation within rthe meaning of subdivision 3 of the foregoing section. (Palmer v. Chicago Evening Post Co., 85 Hun, 403.) Where the person designated by a foreign corporation cannot be found within the State, a delivery of the summons and complaint to the cus- todian of property attached and a delivery thereof by the latter to the managing agent of the corporation, who calls the attention of the board of directors of the corporation thereto, is a sufficient service to support the attaohment, although the papers were not delivered to suoh agent with intent to effect a service, and were subsequently returned to said custodian. (ICieley v. Central Complete Combustion Mfg. Co., 13 Misc. R., 85.) Where it appears that a person has been managing agent for a corpora- tion, the burden rests upon the corporation to show a termination of such relation. (Id.) In determining what agents are managing agents under this section of the code each case must necessarily depend upon its own facts. A reas- onable requirement is that the person served should be of sufficient responsibility to render It probable that the company will receive notice of the service. (Coler v. Pittsiburgh Bridge Company, 84 Hun, 285.) An agent who has general supervision of a business Is a managing Acquisition OF Real Property by Fobkign Coeporations. 33 The General Corporation Law, § 17. agent, although the distrtot in which his powers are exercised may be limited. (Mullins v. Met. Life Ins. Co., 78 Hun, 297; Ives v. Same, 78 Hun, 32.) An agent who merely superintends certain soliciting agents and has no authority to employ or discharge them is not a managing agent. (Schryver v. Same, 29 N. Y. Supp., 1092.) The tei-m " managing agent " includes any person holding some respon- sible and representative relation to the company. (Coler v. Pittsburgh Bridge Co., 146 N. Y., 281.) The term " managing agent " imports some person invested by the cor- poration with general powers involving the exercise of judgment and discretion. Where the foreign corporation has not designated any person as prescribed, the service of a summons upon one having no other con- nection with the corporation than that of attorney of record in an action to which the corporation is a party, gives the court no jurisdiction. (Taylor v. Granite State P. Assn., 136 N. Y., 343; Reddington v. Mariposa L. & M. Co., 19 Hun, 405; Palmer v. Penn. Co., 35 Hun, 369; Tuchband V. C. & A. R. R. Co., 115 N. Y., 437. See, also, A. & P. Tel. Co. v. B. & O. R. R. Co., 87 N. Y., 355; Pope v. Terre Haute C. & M. Co., 87 N. Y., 137; Childs V. Harris Mfg. Co., 104 N. Y., 477.) Service of summons on the general superintendent of the work of oper- ating the lines of a domestic telegraph company is sufficient as a service on the " managing agent." (Barrett v. Am. Telephone & Teleg. Co., 138 N. Y., 491.) § 17. Acquisition of real property in this state by certain foreign corporations — Any foreign corporation created under the laws of the United States, or of any state or temtory thereof, and doing business in this state, may acquire such real property in this state as may be necessary for its corporate purposes in the transaction of its business in this state, and convey the same by deed or otherwise in the same manner as a domestic corporation. , (Former section 12, L.. 1890, ch. 563, as amended by L. 1892, ch. 687.) Public policy does not forbid transaction of business in this State by a corporation formed In another State by citizens of this State, for tjie pm-pose of transacting business here. (Demarest v. Flack, 128 N. Y., 205.) The courts of this State will not Interfere with the internal adminis- tration of the affairs of a foreign corporation. (Fisher v. Charter Oak Life Ins. Co., 52 Super. Ct, 179; Berford v. N. Y. Iron Mine, 56 Super. Ct, 236.) This section permits corporations organized under the laws of any State or territory of the United States to acquire real estate here for its cor- porate purposes, and convey the same in like manner as a domestic cor- poration. (See Chautauqua Co. Bk. v. Risley, 19 N. Y. 369; Moss v. Aver- 111, 10 Id. 449.) Whether a corporation holds real property in excess of the limit permitted by law is a question that can be raised only in a direct proceeding by the State against the corporation. (Barnes v. Suddard, 117 111. 237.) 3 34 Acquisition of Real Peopertt by Foreign Coepoeations. The General Corporation Law, § 18. As to a foreign corporation wliicla holds real estate contrary to law, see Fritts V. Palmer (132 U. S. 282), and the dissenting opinion therein. The power of corporations to take and hold property is a corporate power and depends upon their charters. The law of this State cannot enlarge or change the powers of a foreign corporation. They are solely those given by the law of domicile. Foreign corporations are permitted by comity to exercise their powers within this State, when not in contra- vention of our statutes or public policy. {In re Estate of Prime, 136 N. Y. 347.) § 18. Acquisition by foreign corporation of real property in this state. — Any foreign corporation may purchase at a sale upon the foreclosure of any mortgage held by it, or, upon any judgment or decree for debts due it, or, upon any settlement to secure such debts, any real property within this state covered by or subject to such mortgage, judg- ment, decree or settlement, and may take by devise any real property situated within this state and hold the same for not exceeding five years from the date of such purchase, or from the time when the right to the possession thereof vests in such devisee, and convey it by deed or otherwise in the same manner as a domestic corporation. (Former section 13, L. 1800, ch. 5G3, as amended by L. 1892, ch. 687, and L. 1894, ch. 136.) By the amendment of 1804 the provision was inserted extending to foreign corporations the right to acquire real property by devise. Sections 17 and 18 afford no warrant for ignoring the broad and general authority contained in sections IS and 16. Section 18 may still have an office to perform in limiting the period of time for which a foreign corporation, without a certificate from the Secretary of State, may hold land taken for a debt, or purchased at a sale under a judgment or decree; while the necessity for retaining section 17 is not readily perceived. The foreign cor- poration, which desires to acquire real property, solely for use connected with the transaction of its business here, must, under section 15, procure the certificate of the Secretary of State as a condition of being permitted to carry on business and, having the certificate, Its right to do business as freely as a domestic corporation, necessarily carries with it the recos- nitlon of the right to acquire and hold what real property may be neces- sary for that purpose. Both sections, possibly, were retained in the revis- ion of the corporation laws out of abundant caution. Neither section is a new enactment; but merely the continuation of an existing law. Whalv ever the reason to be assigned for retaining sections 17 and 18, the pro- visions of sections 15 and 16 contain an authoritative declaration by the legislature, and no attempt should be made to refine away their compre- hensive meaning. It is not the policy of this State to prevent foreign corporations from acquiring and holding real property here, if desired, for the transaction of any lawful business. (Lancaster v. Amsterdam Improvement Co., 140 N. Y., 576.) Peohibition of Banking Powers ; Qdalification of Voters'. 35 The General Corporation Law, §§ 19, 20. §19. Prohibition of banking poAvers. — No corporation except a corporation formed under or subject to tlie banking laws, shall by any implication or construction be deemed to possess the power of carrying on the business of discount- ing bills, notes or other evidences of debt, of_reefiiang d^osits, of buying gold or silver bullion or foreign coins, or buying and selling bills of exchange, ot shall issue bills, notes or other evidences of debt for circulation as money. (Former section 14, L. 1890, cli. 563, as amended by L. 1892, cli. 087.; By the amendment the words " carry on the business of," in the fourth line, were inserted, and the beginning of the section was changed from " No corporation which is not a monied corporation shall," etc, so as to read as above. It Is the settled policy of the Legislature to prevent corporations not formed for banking purposes from carrying on, or in any way interfering with the same. (N. Y. Loan & Trust Co. v. Helmes, 77 N. Y., 64; see, also, N. Y. Life Ins. & Trust Co. v. Beebe, 7 N. Y., 364; Pratt v. Short, 79 N. Y., 443-444.) Certificates of deposit irredeemable within twenty years and bearing interest as loans are violations of this provision. (N. Y. Life Ins. & Trust Co. V. Beebe, 7 N. Y., 364.) ■ § 20. Qualification of members as voters. — At every election of directors and meeting of the members of any corporation, every member who is not in default in the payment of his subscriptions upon his stock or disqualified by the by-laws, shall be entitled to one vote, if a non-stock corporation, and, if a stock corporation, to one vote for every share of stock held by him for ten days immediately preceding the election or meeting. Every pledgor of stock standing in his name on the books of the corporation shall be deemed the owner thereof for the purposes of this section. The certificate of incorporation of any stock corporation may provide that at all elections of directors of such cor- poration, each stockholder shall be entitled to as many votes as shall equal the number of his shares of stock multiplied by the number of directors to be elected, and that he may cast all of such votes for a single director or may distribute them among the number to be voted for, or any two or more of them as he may see fit, which right, when exercised, shall be termed cumulative voting. The stockholders of a cor- poration heretofore formed, who, by the provisions of laws existing on April 30, 1891, were entitled to the exercise of 36 . Qualification of Members as Yoteks. The General Corporation Law, § 30. Biich right, may hereafter exercise such, right according to the provisions of this section, No person shall vote or issue a proxy to vote at any meet- ing of the stockholders or bondholders, or both, of a stock corporation, upon any stock or bonds which have not been owned by him for at least ten days next preceding such meeting, notwithstanding such stock or bonds may stand in his name on the books of the corporation. No member of a corporation shall sell his vote or issue a proxy to vote to any person for any sum of money or any thing of value. The books and papers containing the record of member- ship of the corporation shall be produced at any meeting of its members upon the request of any member. If the right to vote at any such meeting shall be challenged, the inspectors of election, or other persons presiding thereat, shall require such books, if they can be had, to be produced as evidence of the right of the person challenged to vote at Buch meeting, and all persons who may appear from such books to be members of the corporation may vote at such meeting in person or by proxy, subject to the provisions of this chapter. A portion of the foregoing section was contained in Stocli Corporation Law of 1890, section 54. Other provisions of former section 54 of Stocli Corporation Law, have been embodied in sections 21, 22 and 24 of this law by L. 1892, ch. 687. Under Laws of 1875, chapter 611, section 26, now repealed, the right of cumulative voting In electing directors was given to the stockholders of every company incorporated thereunder, but this right was eliminated from the statutes by the repeal of said act of 1875 in the revision of 1890. The first sentence of the third paragraph of the preceding section, how- ever, enables stock corporations hereafter organizing to provide In the certificate of incorporation for such method of voting, and the same para- graph in the next sentence restores the privilege of cumulative voting to stockholders of companies heretofore created tmder the act of 1875. Under this system of voting, minority stockholders, by massing their votes, are enabled to secure representation in the board of directors. Another change is the privilege extended to stockholders of voting upon stock held by them for ten days (instead of thirty) before a meeting or an election of directors. The provision that every pledgor of stock standing in his name may vote, is new. A court of equity has no power to restrain a corporation which has legally purchased stock in another corporation from voting on the stock so purchased, upon allegation or proof that it Intends to cause a board of Proxies. 37 The General Corporation Law, § 21. directors to be elected, who, by iiieir action or non-action may injure the interests of the minority stockholders. (Oelbermann v. N. Y. and N. Ey. Co., 77 Hun, 332.) When the regular stock book of the corporation is not accessible to the directors present it is their duty to provide a new one to enable stockholders to exercise the rights given them by law. (In, re The Argus Company v. Manning, 138 N. Y., 557.) If a new stock book has been legally adopted and the inspectors have been enjoined from using it they are placed in the same position as if it could not be found, and have no right to use a former stock book in determining challenges. (Id.) An agreement between stockholders that neither of them will sell, assign or dispose of his stock, without having first given the other an opportunity to purchase, does not preclude the passing of a legal title to stock by a transfer made in violation of the agreement, although the transferee was cognizant of the agreement. Enforcement of specific per- formance of such agreement by a court of equity rests in the discretion of the court. [In re The Argus Co. v. iManning, 1B8 N. Y., 557.) No stockholder is bound to vote for a larger number of persons than he chooses. (Vandenburgh v. Broadway Ry. Co., 29 Hun, 3.56.) A corporation acting in good faith, and without notice of rights of others, may treat registered shareholders, as actual owners of shares standing in their names, but the assignees of shares having possession of the certificates, though holding under unregistered transfers, are not bound by contracts between the registered shareholder, the corporation and all other shareholders which are not within the express or implied powers of corporations, or of their shareholders. (Campbell v. A. Z. Co., 122 N. Y., 455.) An election will not be set aside on account of a mere informality. (In re H. R. K. R. Co., 19 Wend., 135 ; Partridge v. Badger, 25 Bsirb., 14G.) A shareholder has a legal right, at a meeting of the shareholders, to vote upon a measure even though he has a personal interest therein separate from other shareholders. In such a meeting each shareholder represents himself and his own interests solely, and he in no sense acts as a trustee or representative of others. (Gamble v. Queens County W. Co., 33 N. Y. St. Rep., 90; see Richardson v. Green, I33 U. S., 30.) If votes erroneously rejected would, if received, have elected a certain ticket, the election will be set aside. {In re I.. I. R. R. Co., 19 Wend., 87 ; ex •parte Murphy, 7 Cow., 153.) . When the right of cumulative voting exists by statute it may be enforced by mandamus. (Cross v. W. Va. C. Ry Co., 12 So. E. Rep., 1071.) §21. Proxies. — Every member of a corporation, except a religious corporation, entitled to vote at any meeting thereof may so rote by proxy. No officer, clerk, teller or bookkeeper of a corporation formed under or subject to the banking law shall act as proxy for any stockholder at any meeting of any such corporation. 38 Challenges. The General Corpiiralion Law, § 23. Every proxy must be executed in writing by the member himself, or by his duly authorized attorney. No proxy here- after made shall be valid after the expiration of eleven months from the date of its execution unless the member executing it shall have specified therein the length of time it is to continue in force, which shall be for some limited period. Every proxy shall be revocable at the pleasure of the person executing it; but a corporation having no capi- tal stock may prescribe in its by-laws the persons who may act as proxies for members, and the length of time for which proxies may be executed. (Thus amended by L. 1892, ch. 687.) For forms of proxies see post, forms Nos. 14, 15 and 16. Part of the foregoing provisions were embodied in Stock Corporation Law of 1890, section 54. Other parts of said section 54 have been trans- ferred to sections 20 and 22, respectively, of this law, by L. 1892, ch. 687. The requirement that proxies be executed in writing by the member himself, or by his duly authorized attorney, is new. The special powers to non-stock corporations to regulate the giving of proxies were also added in 1892. A pro.xy need not be a stockholder. [In re Lighthall Mfg. Co., 47 Hun, 258.) The inspectors of election have no power to try and determine the gen- uineness of the proxies offered to be voted on. If they are apparently the acts of the stockholders, and regular upon their face, that ends the matter, so far as tlie inspectors are concerned. {In re Cecil, 36 How. Pr., 477 ; see, also, In, re White v. N. Y. State Agricultural Society, 45 Hiiu, 580.) A proxy which merely states the year and month of the election, the day not having been determined when it was signed, is sufficient. {In re U. S. Cremation Co., 18 N. Y. Supp., 905; 46 State Eep., 135.) An irrevocable ]iro.xy given to secure a debt is invalid. {In re Germicide Co., 65 Hun, 60C; 48 State Rep., 294.) § 22. Challenges.— Every member of a corporation offering to vote at any election or meeting of the corporation shall, if required by an inspector of election *or other officer presid- ing at such election or meeting, or by any other member present, take and subscribe the following oath: "I do solemnly swear that in voting at this election I have not, either directly, indirectly or impliedly, received any promise or any sum of money or anything of value to influence the giving of my vote or votes at this meeting or as a considera- tion therefor." If it is a stock corporation, the oath so taken and subscribed shall contain the following additional provision: "That I have not sold or otherwise disposed of Effect of Failure lo Elect Dieectoes. 39 The General CorpDi-atioii Law, § 33. my interest in or title to any shares of stock or bonds in respect to which I offer to vote at this election, but that all such shares or bonds are still owned by me," but if such stock or bonds be pledged, the oath may so state. Any person offering to Tote as proxy for any other person shall present his proxy and, if so required, take and subscribe the follow- ing oath: "I do solemnly swear that I have not, either directly, indirectly or impliedly, given any promise or any sum of money or anything of value to induce the giving of a proxy to me to vote at this election, or received any promise or any sum of money or anything of value to influence the giving of my vote at this meeting, or as a consideration therefor." If a stock corporation, the oath so taken and subscribed shall contain the following additional provision: "And that the title to the stocks and bonds upon which I now offer to vote is, to the best of my knowledge and belief, truly and in good faith vested, in the persons in whose names they now stand," but if such stocks or bonds be held as secur- ity, the oath may so state. The inspectors or persons pre- siding at the election may administer such oath, and all such oaths and proxies shall be filed in the offlce of the corporation. (Thus amended by L. 1892, ch. 687, and L. 1895, ch. GT2.) For forms under this section see post, forms Nos. 17 and 18. For form of oath of inspectors and certificate of result see post, forms Nos. 39 and 40. By the amendment of 1895, which took effect May 14, the words " but If such stock or bonds be pledged, the oath may so state," were inserted, also the words " but if such stocks or bonds be held as security, the oath may so state." The above provisions were embraced in the Stock Corporation Law of 1890, section 54. Other provisions of said section 54 were transferred to the two preceding sections by L. 1892, ch. 687. §23. Effect of failure to elect directors.— If the directors shall not be elected on the day designated in the by-laws, or by law, the corporation shall not for that reason be dis- solved; but every director shall continue to hold his ofSce and discharge his duties until his successor has been elected. (Former section 18, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) Provisions in statutes and by-laws requiring the election of directors to be had on a specified day are regarded as directory, and the election, 40 Calling and Condtjcting Special Election of Diekctors. The General Corporation Law, §§ 24, 25. if not lield on the regular day, may be held at a later day, and the direc- tors then chosen, will be directors dejure. (Beardsley v. Johnson, 121 N. Y., 224.) Officers holding over and continuing to act are directors de jure until .their successors are chosen. (Phila. & Rdg C. & I Co. v. Hotchkiss, 82 N. y., 474.) The continuous neglect of a corporation for a number of years, to hold any election of officers, affords a proper case for the issue of a mandamus on the relation of a corporator, without proof of a special request. (People ra r«Z. Walker T. Albaii.y Hospital, 11 Abb. I r. (N. t?.), 4; see also. People V. Twaddell, 18 Hun, 427; In re Vandenburgh v. Broadway Ry. Co.. 29 Hun, 348.) § 24. Mode of calling special election of directors. — If the election has not been held on the day so designated, the directors shall forthwith call a meeting of the members of the corporation for the purpose of electing directors, of which meeting notice shall be given in the same manner as of the annual meeting for the election of directors. If such meeting shall not be so called within one month, or, if held, shall result in a failure to elect directors, any member of the corporation may call a meeting for the pur- pose of electing directors by publishing a notice of the time and place of holding such meeting. at least once in each week for two successive weeks immediately preceding the election, in a newspaper published in the county where the election is to be held and in such other manner as may be prescribed in the by-laws for the publication of notice of the annual meeting, and by serving upon each member, either personally or by mail, directed to him at his last known post-office address, a copy of such notice at least two weeks before the meeting. (Thus amended by L. 1892, ch. GST.) For form of notice of special election see po»t, forms Hos. 19 and 20. Provisions somewhat similar to the above were formerly contained In •the Stock Corporation Law of 1890, sections 53, 54 and 55. However, the right of a member to call a meeting in case of a month's delay or failure to elect directors is different from the old provision, while the provisions for calling a meeting forthwith by the directors was added by L. 1892, ch. 687. As to notice of annual meeting for election of directors of a stock cor- poration, see section 20 of the tftock Corporation Law, post; see, also, section 11 of this law, subdivision 5, second paragraph, ante. § 25. Mode of conducting special elections of directors. — Such meeting shall be held at the office of the corporation, or if it has none, at the place in this state where its prin- Qualification of Yotees and Canvass of Votes. 41 The General Uorpoiation Law, § 36. cipal business has been transacted, or if access to such office or place is denied or can. not be had, at some other place in the city, village or town where such office or place is or was located. At such meeting the members attending shall constitute a quorum. They may elect inspectors of election and direct- ors and adopt by-laws providing for future annual meet- ings and election of directors, if the corporation has no such by-laws, and transact any other business which may be transacted at an annual meeting of the members of the corporation . (Thus amended by L. 1892, ch. 087.) This section was taken from the Stocli Corporation Law of 1890, sec- tion 53, and changed in phraseology by L. 1892, ch. 687. As to Inspectors, see also, section 38 of the Stock Corporation Law, pout. (See In re Lighthall Mfg. Co., 47 Hun, 358.) § 26. QiUalification of voters and canvass of votes at special elections.— In the absence at such meeting of the books of the corporation showing who are members thereof, each person, before voting, shall present his sworn statement setting forth that he is a member of the corporation ; and if a stock corporation, the number of shares of stock owned by him and Standing in his name on the books of the cor- poration, and, if known to him) the whole number of shares of stock of the corporation outstanding. On tiling such statement, he may vote as a member of the corporation; aud if a stock corporation, he may vote on the shares of stock appearing in such statement to be owned by iiim and standing in his name on the books of the corporation. The inspectors shall return and file such statements, with a certificate of the result of the election, verified by them, in the office of the cjerk of the county in which such elec- tion is held, and the persons so elected shall be the direct- ors of the corporation. (Thus amended by L. 1892, ch. 687.) Fm- form of sworn statement of voter see post, form No. 31. This section is part of section 53 of Stock Corporation Law as enacted in 1890, with verbal changes to make it apply to different classes of corporations. The right to vote is determined by the transfer books which are con- clusive upon the Inspectors. (See People v. Tuthill, 31 N. Y., 550.) For form of inspectors' certificate for filing in county clerk's office see Stock Corporation Law, section 28, post. 42 Powers of Supreme Coukt Respecting Elections. The General Corporation Law, § 27. § 27. Powers of supreme court respecting elections. — The supreme court shall, upon the application of any person or corporation aggrieved by or complaining of any election of any corporation, or any proceeding, act or matter touch- ing the same, upon notice thereof to the adverse party, or to those to be affected thereby, forthwith and in a summarj^ way, hear the affiduTits, proofs and allegations of tiie parties, or otherwise inquire into the matters or causes of complaint, and establish the election or order a neAV election, or make such order and give such relief as right and justice may require. (Formei- section 15, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) For form of petition to set aside election of directors see post, form No. 22. Where one set of trustees claim to he de facto in office, and have pos- session of the corporate books and assets, and it apipears that a rival board of trustees, claiming to be such trustees de jure, are seeking to O'btain possession and control of the coiijorate assets, a court of equity will interfere, not to decide who are the legal trustees, but to prevent an unseemly struggle for possession between the rival boards of trustees; and, on a proper ease being made, a court of equity will interfere by injunction and restrain the claimants out of possession from interfering with the possession of the corporate books and assets till the t^tle of the rival claimants to office as trustees can be properly adjudicated upon either in an action at law or by a proceeding in the nature of a quo warranto, or by the summary proceeding provided by section 27 of tlie General Coi-poration Larsv. (llodel Building and Loan Ass'n v. Patterson, 12 IDsc. R., 400.) But the granting of such injunction is not to be con- strued as in any manner passing upon the validity of the claim of either set of claimants to the trusteeship which they claim to hold. (Id.; Re!s V. Rhode, 6 Civ. Proc. Rep., 406; Ciancimino v. Man, 1 Misc. Rep., 121; 48 N. Y. St. R., 607, and cases cited.) Only some person whose rights have been infringed and who is justly entitled to complain may institute procecrlings under this section {In re Syracuse C. & N. Y. R. R. Co., 91 N. Y., 1.) Upon an application under this section the coiu-t may go behind entries In the transfer book and determine whether a transfer appearing thereon was a sale or only a pledge. (Strong v. Smith, 15 Hun, 222, afC'd 80 N. Y., 637.) The object of the section is to provide a summary mode of redressing a wrong done at an election of the officers of the corporation. The provision as to notice does not make, it necessary to notify all the stockholders. Notice to the persons who claim to be elected and to the corporation is sufficient. (In re Schoharie Valley IJ. R Co.. 1 Abb., N. S., 394.) The corporation must be a party and is entitled to notice. In re Pioneer Paper Co., S6 How., 111.) This proceeding and the one under the Code (sees. 1948-1956) are exclus- ive of all other methods of testing the legality of an election. (W. S. R. R. Co. V. Hay, 14 Abb. N. S., 191.) Stay of Pbooebdings in Actions Collusively Brought. 43 The General Corporation Law, § 28. All the persons complaining should be named and the alleged irregulari- ties set out. t/« re Mohawk and H. K. R. R. Co., 19 Wend., 135.) The objections upon which the proceedings are based should be taken at the time of the election. {In re Llghthall Mfg. Co., 47 Hun, 258.) (See also People ex rel. Putzel v. Simonson, 61 Hun, 338; Matter L. I. R. R. Co., 19 Wend,, 37; In re U. S. Cremation Co., 46 N. Y. St. R., 135; Vandenburgh v. Broadway Underg. C. Ry. Co., 29 Hun, 348.) The fact that another party is joined, without authority, as petitioner with a stockholder, does not affect the right of the latter to have hla petition heard. (In re Argus Company v. Manning, 138 N. Y., 557.) An order to show cause in proceedings under this section may be granted by a justice of the Supreme Court out of court. (Id.) The receipt of illegal votes in favor of one who has received a majority of the legal votes cast will not defeat his election. (Id.) The fact that one holds stock subject to the enforcemnt of an eqtiitable remedy does not interfere with his legal title, nor preclude the corporation from according to him all the rights of a stockholder. (Id.) In determining who are stockholders the court will not be bound by the transfer book. (Strong v. Smith, 15 Hun, 222.) ^ § 28. Stay of proceedings in actions collusively brought.— If an action is brought against a corporation by the pro- curement or default of its directors, or any of them, to enforce any claim or obligation declared void by law, or to which the corporation has a valid defense, and such action is in the interest or for the benefit of any director, and the corporation has by his connivance made default in such action, or consented to the validity of such claim or obliga- tion, any member of the corporation may apply to the supreme court, upon affidavit, setting forth the facts, for a Bt-ay of proceedings in such action, and on proof of the facts in such further manner and upon such notice as the court may direct, it may stay such proceedings or set aside and vacate the same, or grant such other relief as may seem proper, and which will not injuriously affect an innocent party, who, without notice of such wrongdoing and for a valuable consideration, has acquired rights under such pro- ceedings. (Former section 16, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) A person applying for a stay of proceedings under this section is not entitled to the same if he fails to show that the actions were collusively brought in the interest, or for the benefit, of a director of the coi-poration. (Matter of Gardner, a stockholder of the Walker Tailoring Co., 86 Hun, 30.) As to what facts are sufficient to constitute a cause of action. (Phenls. Nat. Bk. V. A. B. Cleveland Co.. 34 N. Y. St. Rep.. 498; Meyers v. Scott, 20 N. Y. St. Rep., 35.) 44 Qdoeum of Dibectoes and Powers of Majoeitt. The General Corporalion Law, § 29. WLen injunction pendente lite is proper. (Hoyt v. ISIalone, ill N. Y. St. Rep., 739.) When resident stockholders may maintain action to restrain foreign corporation. (Ives v. Smith, 28 W. Y. St. Rep., 917; see Rogers v. Phelps, 31 N. Y. S. R.. 872.) Where a contract of a corporation was voidable, as a scheme concocted by the directors, but all the members of the corporation assented to such contract, no fraud was practiced upon the company. (Barr v. N. Y., L. B. & W. R. R. Co., 125 N. Y., 263; see also, Thomas v. Mus. Pro. Union, 121 N. Y., 45.) § 29. Quorum of directors and powers of majority. — The affairs of every corporation shall be managed by its board of directors at least two of whom shall be residents of this state. Unless otherwise provided by a law a majority of the board of directors of a corporation at a meeting duly assembled shall be necessary to constitute a quorum for the transaction of business, and the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. Subject to the by-laws, if any, adopted by the members of a corporation, the directors may make necessary by-laws of the corporation. (Thus amended by L. 1892, ch. 687.) Prior to amendments of 1892, a majority of the directors were required to be residents of this Stnte. (See note to sec. 20, Stock Corp. Law, j^ost.) Section 11, subdivision 5, ante, provides that by-laws adopted at a meet- ing of the members of the corporation, shall control the directors; also, that a by-law regulating election of directors or officers must be published. A'i to quorum, see also, !>tatutory Coustrucliou Law, section I'.i, yvxt. The directors are vested with no title to the corporate property; they have legal privity with the corporation ouly, and for the consequences of their malfeasance or want of due care their liability is to it, and It is only on the refusal of the corporation to sue that a stockholder, by virtue of his equitable interest, may do so on behalf of the corporation for the ulti- mate benefit of himself and other stockholders, making the corporation a party defendant; and then the action must necessarily be in equity. (Empire State Sav. Bk. v. Beard, 81 Hun, 184; and oases 'Oited.) A right of action, in equity, by a corporation against its directors has been recog- nized for loss of corporate property, occasioned by breach of their fiduciary obligations, whether arising from malfeasance or culpable negli- gence. (Id.) As between the directors and stockholders a trust relation exists, and that of the latter is deemed the relation of cestui que trust. (Id.) Where the board of directors, at a meeting thereof, authorize proceedlngB for the voluntary dissolution of the corporation, and an attorney Is employed who takes the requisite action to accomplish such dissolution. Quorum of Dieectoks and Poavees of Majoeitt. 45 The General Corporation Law, § 29. the proceeding is that of the corporation, and the directors are not per- sonally liable to the attorney unless by special promise they undertook to pay him for his services. (Drew v. Longwell, 81 Hun, 144.) Khe directors are the managing officers of a corporation, and are pri- marily llajble to it for losses occasioned by their negligence, for which it has a remedy by action at law. Their legal privity is with the corpora- tion only, but when a corporation refuses to sue for such cause, or when It is controlled by directors who are charged with liability, and, therefore, may be supposed not to permit a faithful prosecution of themselves, a shareholder may bring an action in equity for the requisite relief, in which a'Otion the corporation must be made a party defendant. (Bloom v. Nat. United Benefit Sav. and Loan Co., 81 Hun, 120.) Directors must exercise the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs. (Id.) While it is the duty of courts to protect corporations from unauthorized acts of its officers, yet when directors permit its officers to hold themselves QUI as clothed with full power to manage all its affairs for a long time,_ and thus lead innocent persons to contract with them, they cannot repu- ' diate such contracts by involiing a by-law which they had allowed to fall into disuse. (Parmelee v. Associated Physicians and Surgeons, 11 Misc. R., 363.) Where a corporation consists of a small number of persons, it may trans- act business by conversation without the formality of resolutions. (Hall V. Herter Brothers, 83 Hun, 19.) The board may delegate its authority to agents, or to a quorum com- pose4 of less than a majority of the number. (Hoyt v. Thompson's Execu- tor, 19 N. Y., 201.) All powers directly conferred by statute, or impliedly granted, of neces- sity, must be exercised by the directors who are constituted by the law as the agency for the doing of corporate- acts. (Beveridge v. N. Y. B. R. Co., 112 N. Y., 22; Leslie v. Lorillard, 110 N. Y., 536; People's Bank v. St Anthony R. C. Church. 109, N. Y.. 512.) Corpcfrate powers must be exercised by the directors, subject to the general law and the by-laws of the corporation. They have the fullest power to regulate the concerns of a corporation. (Beveridge v. N. Y. B. R. Co., 112 N. Y., 23.) No director can vote at a meeting of the board of directors by proxy. (The Craig Med. Co. v. The Merchants' Bank of Rochester, 59 Him, 561.) The business of a corporation must be carried on by .the board of direct- ors, but such board may appoint an executive committee of its own mem- bers with power to transact Its business during the Intervals between the meetings of the board. (Olcott v. Tioga R. R. Co., 27 N. Y., 546; Sheri- dan Elec. L. Co. V. Chatham Nat Bank, 40 State Rep., 313; 127 N. Y., 517.) A director or stockholder of a corporation is not chargeable with actual knowledge of its business merely because he is a director or stockholder. (Rudd V. Robinson, 36 State Rep., 501.) A director of a corporation is not exactly In the position of a trustee having the title to property held In trust for another. He has no title to the property of the corporation. The title Is In the company Itself. (Pres- ton T. Loughran, S4 State Rep., 393.) 46 DiRECTOES AS Teustees in Case of Dissolution. The General Uorporation Law^ § 30. A director is not excluded from dealing with a corporation. (Id., 395.) He can loan money to It and become its creditor, and he can receive by the act of the corporation security for his debt. (Id., 395.) He may foreclose a mortgage against the corporation, and may protect himself by bidding at the sale, ad., 395.) ' A director can not, while serving as such, divest himself of the knowl- edge which he has acquired in confidence of corporate afCalrs or of the value of corporate property, nor be allowed to use it to his own advan- tage. (Hoyle V. Pittsburgh & Montreal R. R. Co., 54 N. Y., 329.) The relation existing .between a director and the corporation Is that of trustees. (Butts v. Wood. 37 N. Y.. 317.) A director can only become the purchaser of property of the corporation subject to its right to elect to disafiSrm the sale and demand a resale. (Hoyle V. Plattsburgh & Montreal R. R. Co., of N. Y., 329; see, also, Bulkley v. Whitcomb. 121 N. Y., 107; Gardner v. Ogden, 22 N. Y., 332; Kelsey v. Sargent. 40 Hun. 150; citing, 38 N. Y.. 201; 39 N. Y.. 202; 37 N. Y., 317; 73 N. Y., 511; 54 N. Y., 314; 56 N. Y., 486; 103 N. Y., 58; 41 Hun, 189.) The trustees (or directors) of a corporation have no separate or individ- ual authority to bind the corporation, and this, although a majority of the whole number acting singly and not collectively as a board should assent to the particular transaction. Such action must be taken at a formal meeting of the board duly assembled as such. (People's Bank v. St. Anthony's Church, 109 N. Y., 512; affirming, 39 Hun, 498.) § 30. Directors as trustees in case of dissolution. — Upon the dissolution of any corporation, its directors, unless other persons shall be appointed by the legislature, or by some court of competent jurisdiction, shall be the trustees of its creditors, stockholders or members, and shall have full power to settle its affairs, collect and pay outstanding debts, and divide among the persons entitled thereto the money and other property remaining after payment of debts and necessary expenses. Such trustees shall have authority to sue for and recover the debts and property of the corporation, by their name as such trustees, and shall jointly and severally be personally liable to its creditors, stockholders or members, to the extent of its property and effects that shall come into their hands. (Thus amended by L. 1892, ch. 687.) This section consolidates former sections 19 and 20. and re-enacts their provisions unchanged. A cause of action for injuries caused by negligence of a corporation survives its dissolution, and the action may be maintained against its directors. (Jlarstaller v. Mills, 143 N. Y., 398.) The legislature intended by this provision that the corporate property should be held and administered upon by the directors, where other per- DiEECTOES AS TeDSTEES IN CasB OF DISSOLUTION. 47 The General Corporation Law, § 80. sons were not appointed, for tlie purpose of its distribution in the settle- ment of all existing claims upon it, whether the claimant was a creditor in the legal sense or not. The term " creditor," in view of tjie evident purpose of this act, includes persons to whom the corporation was under any enforceable obligaition, as well as those to whom it was indebted. (Marstaller v. Mills, 143 N. Y., 398.) When the term of existence of a corporation expires no dissolution by the court is necessary. (Sturges v. Vanderbilt, 73 N. Y., 384; People v. Walker, 17 N. Y., 503.) For provisions as to voluntary and involuntary dissolutions, see Code Civil Procedure, sections 1784-1813, 2419-2431, post. Upon the dissolution of a corporation, its real property does not revert to the grantors thereof, but passes to the trustees under this section. (Heath v. Barmore, 50 N. Y., 302.) Upon the dissolution of a corporation, its remaining directors become vested with the title to its property and responsible to its creditors and stockholders for the value thereof. (People v. O'Brien, 111 N. Y., 1.) Upon the expiration of the charter, the title to the corporate property vests in the directors then in office, in trust for the creditor's and stock- holders. (Central City Savings Bank v. Walker, 66 N. Y., 424; see London L F. Co. V. Terbell, 48 N. Y., 427.) This section expressly limits the liability of the directors as trustees to the extent of the property and effects that shall come into their hands. (Hoftman v. Van Nostrand, 42 Barb., 174.) A corporation which has been enjoined from the exercise of its cor- porate franchises and deprived of its property, and thus has ceased to exist for all practical purposes, is not thereby actually dissolved. Until a judgment dissolving it is rendered, creditors may proceed by suit against it, unless restrained by injunction, and its stockliolders do not cease to he such. (Kincaid v. Dwindle, 59 N. Y., 548; Decker v. Gardner, 124 N. Y., 339.) The assets of a corporation, upon its dissolution, become a fund for the payment of its debts, including those to mature as well as accrued indebtedness, and all open and subsisting engagements entered into by the corporation. (People v. National Trust Co., 82 N. Y., 283.) The foregoing section empowers the directors of a corporation to act as trustees for the settlement of its affairs in case of the termination of the existence of the corporation by limitation, or in case of a dissolu- tion, when no other persons are appointed by the court or legislature to act as trustees for the pm-pose of winding up its affairs. A corporation cannot cease to exist of its own will; its life continues until either the charter period has expired or the court has decreed a dis- solution. (People V. Ballard, 134 N. Y., 269; id, 136 N. Y., 639.) A busi- ness corporation, therefore, cannot sell all of its property to another cor- poration, either foreign or domestic, organized through its procurement, for the purpose of taking its place and its assets and carrying on its busi- ness; as this is a practical dissolution of the corporation. (Id.) While the stockholders who assented to such an unlawful disposition of the corporate property may be estopped thereby, those not assenting are not bound, and the State may demand that those of the officers of the 48 FOEFEITUEE FOB NON-USKB ; CoEPOEATE EXISTENCE. The General Corporation Law, §§ 31, 32. corporation wlio did the wrong shall make restitution. (Id.) The fact that the trustees, in maMng the transfer, acted in good faith does not validate it, and the fact that there may be difficulty in the final adjust- ment of rights because some of the stockholders assented, constitutes no defense to the action. (Id.) But all the stockholders uniting might undoubtedly surrender the franchises of a corporation and work its dis- solution. Penike v. N. Y. & R. Lime & Cement Co., 80 N. J., 606.) Query, can a portion of them do so in the absence of statutory authority when the corporation is unable to conduct its business without loss. (People V. Ballai-d, 136 N. Y., 639.) i Subsequent to the determination of the matters in controversy in Denike V. N. Y. & R. Lime & Cement Co. (80 N. Y., 606), and People v. Bal- lard (136 N. Y., 639), last above cited, new provisions were enacted whereby a stock corporation may, under prescribed restrictions, sell and convey its property, rights, privileges and franshises to a domestic cor- poration. (See Stock Corporation Law, sec. 33, post.) §H1. Forfeiture for non-user. — If any corporation, except a railroad, turnpike, plank-road or bridge corporation, shall not organize and commence the transaction of its business or undertake the discharge of its corporate duties within two years from the date of its incorporation, its corporate powers shall cease. (Former section 21, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) By this amendment the period within which a corporation Is compelled to exercise a user of its corporate rights and franchises is changed from one year to two years. A corporation omitting to perform a duty imposed by its charter or to ' comply with its provisions does not i2}so facto lose its corporate character, or cease to be a corporation, but simply exposes Itself to the hazard of being deprived of its corporate character and franchises by the judgment of the court in an action instituted for that purpose by the Attorney-Gen- eral in behalf of the people. (Brooklyn Steam Transit Go. v. Brooklyn, 78 N. Y., 529; Day v. Ogdensburg & Lake Champlain B. R. Co., 107 N. Y., 129.) If a cause of forfeiture against the corporation exists, there is nothing In the conduct of any of the stockholders or officers of the corporation which can defeat the rights of the people to enforce the forfeiture. (People V. B. S. & C. Co., 131 N. Y., 144; Application of B. E. R. R. Co., 125 N. Y., 434; People v. Atlantic Avenue R. R. Co., 125 N. Y., 513.) Where it appears that a corporation has never exercised its powers or franchises and that such non-user is willful and without justification, and, also, that it has conspired, through Its officers, to do Illegal acts, the Attorney-General may maintain an action for Its dissolution. (People v. The Milk Exchange, Ltd, 133 N. Y., 505.) § 32. Extension of corporate existence.— Any domestic corporation at any time within three years before the expira- tion thereof, may extend the term of its existence beyond the Extension of Coepoeate Existence. 49 The General Corporation Law, § 33. time specified in its original certificate of incorporation, or by law, or in any certificate of extension of corporate exist- ence, by tbe consent of the stockholders owning two-thirds in amount of its capital stock, if not a stock corporation, by the consent of two- thirds of its members, in and by a certifi- cate signed and acknowledged by them and filed in the offices in which the original certificates of its incorporation were filed, if at all, and, if not, then in the offices where cer- tificates of incorporation are now required by law to be filed, and the officers with whom the same may be filed shall thereupon record them in the books kept in their respective offices for the record of such certificates, and make a mem- orandum of such record in the margin of the original cer- tificate in such book, if any, and thereupon the 'time of exist- ence of such corporation shall be extended, as designated in such certificate, for a term not exceeding the term of which it was incorporated in the first instance.* If the term of e?;istence of any domestic corporation shall' have expired and it shall be made satisfactorily to appear to the supreme court that such corporation was legally organized, pursuant to any law of this state, and that through mistake it shall have issued its bonds payable at a date beyond the date fixed in its charter or certificate of incorporation for the expiration of its corporate existence, and such bonds shall be unmatured and unpaid, the supreme court may, upon the application of any x>t>rson interested, and upon such notice to such other paitics as the court may require, by order, authorize the filing and recording of a certificate reviving the existence of such corporation, upon such con- ditions and with such limitations as such order shall specify, and extending such corporate existence for a terra not exceeding the term for which it was originally incorporated. Upon filing and recording such certificate in the same man- ner as certificates of extension of corporate existence duly issued before the expiration of the existence of a domestic corporation is authorized by law to be filed and recorded, such corporate existence shall be revived and extended in pursuance of the terms of such order, but such revival and extension shall not affect any litigation commenced after such expiration and pending at the time of such revival . * See explanatory note at end of section. 4 50 Conflicting Cokpoeate Laws. The General Corporation Law, § 33. If a corporation formed under or subject to the banking law, such certificate shall not be filed or recorded unless it shall have indorsed thereon ihe written approval of the sup- intendent of banks; or, if an insurance corporation, unless it shall have indorsed thereon the written approval of the superintendent of insurance; and, if a tum-pike or bridge corporation, it shall not be filed unless it shall have indorsed thereon or annexed thereto a certified copy of a resolution of the board of supervisors of each county in which such turn-pike or bridge is located, approving of and authorizing such extension. Every corporation extending its corporate existence under this chapter or under any general law of the state shall thereafter bfe subject to the provisions of this chapter and of such general law, notwithstanding any special provisions in its charter, and shall thereafter be deemed to be incor- porated under the general laws of the state relating to the incorporation of a corporation, for the purpose of carrying on the business in which it is engaged, and shall be subject to the provisions of such laws. (Former section 22, L. 1890, cli. 563, as amended by L. 1892, cli. 687.) ' For form of certificate of extension of existence see form No. 28. As far as tlie * tliis section is a rerbatim re-enactment of former section 22. Tlie provision for reviving a corporation after tlie termination of its period of exisljpnce is new, as are also the special provisions con- cerning the extension of existence of banlung, insurance, turnpilie and bridge corporations, and the provisions of the last paragraph that every corporation availing itself of the right to prolong its life under this sec- tion shall be subject thereafter to the provisions of this law and of the existing law regulating the formation of that particular class of corpora^ tions. (See People ex rel. Newburgh v. Plank-road Co., 86 N. Y., 1.) § 38. Conflicting corporate laws.— If in any corporate law there is or shall be any provision in conflict with any provisions of this chapter or of the stock corporation law, the provisions so conflicting shall prevail, and the provis- ion of this chapter or of the stock corporation law with which it conflicts shall not apply in such a case. If in any such law there is or shall be a provision relating to a matter embraced in this chapter or in the stock corporation law, but not in conflict with it, such provision in such other law shall be deemed to be in addition to the provision in this chapter or in the stock corporation law relating to the same Conflicting Coepoeate Laws. 51 The General Corporation Law, § 33. subject-matter, and both provisions shall, in such case, be applicable. (Added by L. 1892, ch. 687.) When a statute amends a fornier statute " so as to read as follows," it operates as a repeal by implication of inconsistent provisions in the former law, 'and of provisions omitted in the amended law. {In re Estate of Prime, 136 N. Y., 347.) Where the amended act re-enacts provisions in the former law, either ipsissimis verbis or by the use of equivalent though different words, the law will be regarded as having been continuous, and the new enactment as to such parts will not operate as a repeal so as to effect a diaty accrued imder the prior law, although as to all new trans- actions, the later law will be referred to as the ground of obligation. (Id.) Provisions In the Business Corporations Law, the Transportation Corpo- rations Law and the Railroad Law similar to and not in conflict with the provisions of the General Corporation Law and the Stock Corporation Law, tnust be deemed to be in addition to the provisions of said last men- tioned laws. (Oelbermann v. N. T. & Northern Ry. Co., 77 Hun, 332.) Where a general act conflicts with a special act, the latter is not to be deemed repealed by implication. {In re Brown v. Duane, 39 St. Rep., 694.) Special privileges granted by the Legislature to a gas company in con- sideration of its furnishing gas at a specified price were not taken away by the repeal of the law granting them and the enactment of provisions similar to the foregoing section. (People ex rel. Standard Gas Light Co. v. Gilroy, 33N. Y. Supp., 271.) Although a statute is not expressly repealed by a subsequent legislative enactment upon the same subject, yet, if it appears by the provisions of the later statute that it was intended to cover the subject-matter of the former, the prior statute will be deemed by implication to have been repealed or superseded. (People v. Vosburgh, 76 Hun, 562.) Where a revising statute covers the whole subject-matter of antecedent statutes, and such plainly appears to have been the legislative intent. It is to be deemed to contain the entire law upon the subject, and it virtually repeals the former enactments, although there is no express provision to that eflfect and although provisions of the former acts are omitted in the revising statute. (Matter of N. Y. Institution for Deaf, etc., 121 N. Y., 234.) i A repeal of statutes by implication is not favored in the law; and when both the latter and former statute can stand together, both will stand unless the former is expressly repealed, or the legislative intent to repeal it is very manifest. (People ex rel. Kingsland v. Palmer, 53 N. Y. 83, 88.) Where it is intended to alter or repeal an existing statutory enactment, the act itself should contain provisions to that efiCect, or it should be plainly manifest that such was the design, by the latter act being repug- nant to and inconsistent with the former. A statute may sometimes be regarded as being repealed by reason of Its inconsistency with a subse- quent statute and by implication; but repeals by implication are not favored in the law, and it is only in cases where the repugnauey is clear and manifest, and the two statutes can not be reconciled or stand together, that this rule can be applied. In the case considered, the two 52 Laws Repealed ; Saving Clause. The General Corporation liaiw, §§ 34, 35. statutes can consistently stand together and each have effect in reference to the subject to which it relates. They both may be considered as onb law, embracing separate provisions as to different classes of cases. (Mark et al. V. The State, 97 N. Y., 578.) A repeal by implication because of inconsistency or repugnancy should never be declared where a reasonable construction will harmonize statutes alleged to be conflicting. (People v. Crissey, 91 N. Y., 632.) The invariajjle rule of construction in respect to the repealing of stat- utes by implication, is, that the earliest act remains in force, unless the two are manifestly inconsistent with and repugnant to each other, or, unless in the latest act, some express notice is taken of the former, plainly indicating an intention to abrogate it. As laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legis- lature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. (Bowen v. Lease, 5 Hill, 226.) §34. Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed. Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed . (Former section 23, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) The provisions of the second sentence are also embodied in the Statu- tory Construction Law, section 31, post. The effect of the repeal of a repealing law is to restore the law , repealed by the latter, in the absence of a contrary intention expressly declared or necessarily to be implied from the enactment of the provisions conflicting with those of the law which would otherwise be revived. (Ottman v. Hoff- man, 7 Misc. R., 714, and cases there cited.) The annexed schedule includes laws repealed by the General Corpora- tion Law, the Stock Corporation Law, the Railroad Law, the Transporta- tion Corporations Law and the Business Corporations Law, respectively, In 1890. § 35. Saving clause. — The repeal of a law or any part of it specified in the annexed schedule shall not affect or impair any act done, or right accruing, accrued or acquired, or lia- bility, penalty, forfeiture or punishment incurred prior to May 1, 1891, under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such' law had not been repealed. All actions and proceedings, civil or criminal, commenced under or by virtue of the laws so repealed, and pending on April 30, 1891, may be prosecuted and defended Construction. 53 The General Corporation Law, § 36. to final effect in the same manner as they might under the laws then existing, unless it shall be otherwise specially provided by law. (Former section 24, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) • Provisions similar to the foregoing are embodied in the Statutory Con- struction Law, section 31, post. The repeal of the Business Corporation Act of 1875 by chapter 687, Laws of 1892, did not affect a cause of action existing under the former statute, upon which proceedings were commenced May 19, 1892, as it was pre- served by the foregoing saving clause. (Ciiristle v. Bowne, 83 Hun, 107.) The liability of stockholders in a corporation formed under L. 1875, oh. 611 (now repealed), for debts of the corporation thereafter incurred until the capital stock is all paid in, was preserved by the saving clauses of the repealing acts of 1890 and 1892. (Berwiud-White Coal Mining Co. v. Ewart, 11 Misc., 490.) A proceeding regularly commenced by a corporation under a then exist- ing law, which was thereafter repealed, represents a right accruing or in process of enforcement. The acts done are not impaired by such repeal," and the rights accruing were preserved and could be asserted and enforced as fully as if no repeal had been enacted. (Cameron v. N. Y. & Mt. Vernon Water Co., 62 Hun. 269; afiE'd, 133 N. Y., 336.) § 36. Construction. — The provisions of this chapter, and of the stock corporation law, the railroad law, the transporta- tion corporations law, and the business corporations law, so far as they are substantially the same as those of laws exist- ing on April 30, 1891, shall be construed as a continuation of such laws modified or amended according to the language employed in this chapter, or in the stock corporation law, the railroad law, the transportation corporations law, or the business corporations law, and not as new enactments . Keferehces in laws not repealed to provisions of laws incorporated into the general laws hereinbefore enumerated and repealed, shall be construed as applying to the provis- ions so incorporated. Nothing in this chapter or in the other general laws here- inbefore specified shall be construed to amend or repeal any provision of the Criminal or Penal Code or to impair any right or liability which any existing corporation, its officers, directors, stockholders or creditors may have or be subject to or which any such corporation, other than a rail- road corporation, had or was subject to on April 30, 1891, by virtu.e of any special act of the legislature creating such 54- Law Revived ; As to Acts of Dieectobs. {The General Corporation Law, §§ 37, 38, 89. corporation or creating or defining any such right or liabil- ity, unless such special act is repealed by this chapter. (Former section 25, L. 1890, ch. 563, as amended by L. 1892, ch. 687.) Provisions similar to the first and second paragraph of the preceding section were also enacted in the Statutory Construction Law, section 86, post. The legislature has power, without violating the Federal Constitution, to repeal or amend laws pertaining to business or stock corporations formed under the law of 1875, and to prescribe the liability of stockholders in such corporations to its creditors for debts contracted after the act was repealed or amended. (Bei^wlnd-White Coal Mining Co. v. Ewart, 11 Misc., 490.) A later statute covering the same subject matter as a prior statute and embracing new provisions operates to repeal the prior act, although the two acts are not in express terms repugnant. (McDermott v. Nassau Electric R. R. Co., 85 Hun, 422; see also People v. Wilmerding, 136 N. Y., 363.) . § 37. Law revived. — Chapter three hundred of the laws of eighteen hundred and fifly-five, entitled " An act to incor- porate the Baptist Historical Society of the city of New York," which was inadvertently repealed by the transpor- tation corporations law, is revived and re-enacted, and shall be of the same force and effect as if it had not been repealed, (Added by L. 1892, ch. 687.) This section is self-explanatory. § 38. When notice or lapse of time unnecessary. — When- ever under the provisions of any of the corporate laws a cor- poration is authorized to take any action after notice to its members or after the lapse of a prescribed period of time, such action may be taken without notice and without the lapse of any period of time, if such action be authorized or approved, and such requirements be waived in writing by every member of such corporation, or by his attorney there- unto authorized. (New provisions, added by L. 1895, ch. 672.) It should be noted that the waiver above provided for applies to matters affecting the members of the corporation. Where the Interests or rights of •creditors or others are concerned this section would not appTy. § 39. As to acts of directors. — Whenever, under the pro- visions of any of the corporate laws, a corporation is author- ized to take any action by the agreement or action of its Altkeation and Repeal of Chaetee. 55 The General Corporation Law, § 40. directors, managers or trustees, such agreement or action may be taken by sucb directors, regularly convened as a board, and acting by a majority of a quorum, except when otherwise esxpressly required by law or the by-laws of the corporation and any such agreement shall be execij.ted in behalf of the corporation by such officers as shall be desig- nated by the board of directors, managers or trustees. (New provisdons, added by L. 1895, ch. 672.) . §40. Alteration and repeal of charter.— The charter of every corporation shall be subject to alteration, suspension and repeal, in the discretion of the legislature. (New, added by L. 1895, eh. 672.) 1: 56 SCHEDQLE OF LaWS RePEAI.KD. The General Corporation Law. Schedule of Laws Repealed. Revised Statutes Part 1, chapter 18 . All. Laws op Chapter Sections. 1811 67 . All. 1815 47 . All. 1815 202 . All. 1816 58 . AJl. 1817 223 . All. 1818 67 . All. 1819 102 , All. 1821 U . All. 1822 213 . All. 1836 284 . All. 1836 316 . All. 1838 160 . All. 1838 161 . All. 1838 262 . AIL 1839 218 . All. 1842 165 . All. 1846 155 . All. 1846 215 . 17, 18. 1847 100 . 3,4. 1847 210 . All. 1847 : 222 . All. 1847 270.... . All. 1847 272..... . All. 1847 • 287 . All. 1847 398 . All. 1847 404 . All. 1847 405 . All. 1848 37 . All. 1848 40 . All. 1848 45 . All. 1848 259 . All. 1848 265 . All. 1848 360 . All. 1849 250 . All. 1849 362.. . All. 1850 71 . All. 1850 140 . All. 1851 14 . All. Schedule of Laws Hepealed. The General Corporation Law. Laws of chapter ,, Sections. 1851 19 All. 1851 98 All. 1851 107 All. 1851 487. All. 1851 497 All. 1852 228 All. 1§52 372 All. 1853 53 All. 1853 117 All. 1853 124 All. 1853 135 All. 1853 245 All. 1853 333 All. 1853 471'. 1, 2, 4. 1853 481 All. 1853 502 All. 1853 G26 All. 1854 3 All. 1854 87 All. 1854 140 All. 1854 201 All. 1854 232 All. 1854 269 All. 1854 282 I All. 1854 312 All. 1855 ' 301 All. 1855 302 All. 1855 390 All. 1855 478 All. 1855 485 All. 1855 495 AH. 1855 54G All. 1855 559 All. 185G C5 All. 1857 • 29 All. 1857 83 All. 1857 185 All. 1857 202 All. 1857. . ; 262 All. 1857 444 All. 1857 546 All. 57 58 Schedule of Laws Ekpealed. The General Corporation Law. — « Laws of Chapter Sectiot.s. 1857 558 All. 1857 643 All. 1857 776 All. 1858 10 All. 1858 125 All. 1859 209 All, 1859 311 All. 1859 455 All. 1860 116 All. 1860 269 All. 1860 523 All. 1861 149 All. 1861 170 All. 1861 215 .• All. 1861 238 All, 1862 205 All. 1862 248 All. 1862. 425 All, 1862 438 All, 1862 449 All. 1862* 472 All, 1863 63 All, 1863** 134 All. 1863 346 All, 1864 85 All, 1864 337 All, 1864 517 All, 1864 582 AD, 1865 234 All. 1865 246 All. 1865 307 All. 1865 691 All. 1865 780 All. 1866 73 All. 1866 259 All, 1866 322 All. 1866 371 All. * So in the original law, although erroneoasly printed as 1823 in the SrBsion LawB of i89°i page 1817. **So in the original law, althoagh |erroneonely printed as 1866 in the Session Laws of 1802 page 1817. Schedule of Laws Repealed. The General Corporation Law. LawB of Chapter Sections. 1866 697 All. 1866 780.- All. 1866 799 '..... All. 1866 838 All. 1867 12 All. 1867 49 All. 1867 248 All. 1867 254 All. 1867 419 All. 1867 480 All. 1867 509 All. 1867 775 All. 1867 906 All. 1867 937 AIL 1867 960 AIL 1867 974 All. 1868. 253 AIL 1868 290 AIL 1868 573 All. 1868 781 AIL 1869 234 All. 1869 237 AIL 1869 605 AIL 1869 706 All. 1869 844 AIL 1869 917 AIL 1870 124 AIL 1870 135 All. 1870 322 AIL 1870 443 All. 1870 568 AIL 1870 773 All. 1871 95 '^>^- 1871 481 All. 1871 535 AIL 1871 560 All. 1871 657 • AIL 1871 669 AIL 1871 697 • All. 1871 883 AIL 1872 81 AIL 59 60 Schedule of Laws Repealed. The General Corporation Law. Laws of Chapter Sectione. 1872 \ 128 All. 1872 146 All. 1872 248 All. 1872 283 All. 1872 350 All. 1872 374 All. 1872 426 All. 1872 609 All. 1872 611 All. 1872 779 All. 1872 780 All. 1872 820 All except 1872 829 All. 1872 843 All. 1873 151 AU. 1873 352 All. 1873 432 All. 1873 440 All. 1873 469 All. 1873 016 All. 1873 710 All. 1873 737 All. 1873 814 All. 1874 76 All. 1874 143 All. 1874 149 AU. 1874 240 All. 1874 288 All. 1874 430 All, 1875 4 All. 1875 58 All. 1875 88 All. 1875 108 All. 1875 113 All. 1875 119 All. 1875 120 All. 1875 159 All. 1875 193 All. 1875 256 All. 1875 319 All. 1S75 365 AU. 20. SOHEDCLE OF LaWS KePEALED. 61 The General Corporation Law. Laws of 1875.. 1875.. 1875.. 1875.. 1875.. 1875.. 1876.. 1876.. 1876.. 1876. . .1876.. 1876.. 1876., 1876. 1876. JL877. 1877. 1877. 1877. 1877. 1877. 1877. 1878. 1878. 1878. 1878. 1878. 1878. 1878. 1878. 1878. 1878. 1879. 1879. 1879. ;L879. 1879. 1879. 1879. 1879. 1879. Chapter . 445.. . 510.. . 586.. . 598.. . 606.. . 611.. . 77.. . 135.. . 198.. . 280.. . 358.. . 373.. , . 415.. . . 435., . . 446., . . 103. . . 158.. . . 164. . . 171. . . 224. . . 266. . . 374. . . 61. ..'121. . . 163. . . 203. . . 210. . . 261. . . 264. . . 316. .. 334. .. 394. .. 214. .. 253. .. 290. .. 293. .. 350. .. 377. .. 393. ..395. .. 413. Sections. All. All. All. All. All. AU. , All. , AU. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All., . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. ,. All. , . All. ,. All. ,. All. 62 Schedule of Laws Repealed. The General Corporation Law. Laws of Chapter Sections. 1879 415 All. 1879 441 All. 1879 503 AH. 1879 505 All. 1879 512 All. 1879 541 All. 1880 5 All. 1880 85 All. 1880 90 All. 1880 94 All. 1880 113 All. 1880 133 ; . All. 1880 155 All. 1880 182 All. 1880 187 All. 1880 223 All. 1880 225 All. 1880 241 All. 1880 254 All. 1880 263 All. 1880 267 All. 1880. 349 All. 1880 415 All. 1880 417 ■ All. 1880 484 All. 1880 510 !a11. 1880 575 All. 1880 582 All. 1880 583 All. 1880 585 All. 1881 22 All. 1881 58 All. 1881 77 All. 1881 117 AH.- 1881 148 All. 1881 213 All. 1881 23^ All, 1881 295 All. 1881 296 All. 1881 311 All. 1881 313 All. Schedule of La.W8 Repealed. 63 The General Corporation Law. Laws of 1881.. 1881.. 1881. . 1881.. 1881.. 1881. . 1881.. 1881.. 1881.. 1881.. 1881.. 1881.. 1881.. 1881. . 1881.. 1881. . 1881. . 1882.. ,1882. , 1882. , 1882. 1882. 1882. 1882. 1882. 1882. 1882. 1882. 1882. 1883. 1883. 1883. 1883. 1883. 1883. 1883. 1883. 1883. 1883. 1883. 1883. Chapter . 321... . 337... . 338... . 351... . 399... . 422... . 464... . 468... . 470... . 472... . 485... , . 551.. . . 589.. . . 649.. , . 650.. . . 674.. . . 685.. . . 73.. . . 82.. . . 140.. . . 273.. . . 289.. . . 290.. . . 306.. . . 309.. . . 349.. .. 353.. .. 393.. .. 405.. .. 40.. .. 71.. .. 102.. .. 216.. .. 232.. .. 237.. .. 238., .. 240.. . . 287., . . 323., ... 361. ,.. 381. Sections. All. All. , All. AU. , All. , All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. . All. , . All. , . All. . . All. . . AU. . . All. . . All. . . All. . . All. . . All. . . All. . . All. 64 Schedule of Laws Repealed. The General Corporation Law. Laws of Chaptt r Sections. 1883 382 All. 1883 384 All. 1883 386 AIL 1883 387 All. 1883 388 All. 1883 409 All. 1883 482 All. 1883 483 All. 1883 497 All. 1884 140 All. 1884 193 All. , 1884 208 All. 1884 223 All. 1884 252 All. 1884 267 All. 1884 367 All. 1884 386 All. 1884 397 All. 1884 421 All. 1884 422 All. 1884 439 All. 1884 441 All. 1884 444 All. 1885 84 All. 1885 127 All. 1885 141 All, 1885 153 All. 1885 171 All. 1885 305 All. 1885 369 All. 1885 422 All. 1885 423 All. 1885 489 All. 1885 498 All, 1885 535 All. 1885 540 All. 1885 549 All. 1886 65 All. 1886 182 All. 1886 271 All. 1886 321 All. Schedule of Laws Eepealed. 65 The General Corporation Law. Laws of Chapter • Sections. 1886 322 ; All. 1886* 403 All. 1886 415 All. 1886 509 AH. 1886 551 All. 1886 579 All. 1886 586 ". All. 1886 592 All. 1886 601 All. 1886 605 All. 1886 634 All. 1886 642 All. 1887 450 All. 1887 486 All. 1887 536 All. 1887. . , 570 All. 1887 616 All. 1887 622 All. 1887 724 All. 1888 189 All. 1888 306 All. 1888 313 All. 1888 359 All. 1888 394 All. 1888 447 All. 1888 462 All. 1888 513. ; All. 1888 514 All. 1888 549 All. 1888 560 All. 1889 57 All. 1889 76 All. 1889 78. . . ; All. 1889 236 All. 1889 242. All. 1889 281 All. 1889 332 All. 1889 369 All. 1889 426 , All. *So 1q the original law, althoagh erroneously printed as 1887 in the Session Laws of 1893 >■ age 1823. 5 66 Schedule of La.ws Repealed. The General Corporation Law. Laws of Chapter Sectione. 1889 519 All. 1889 524 All. 1889 531 All. 1889 532 All. 1889 564 All. 1890 23 All. 1890 98 All. 1890 119 All. 1890 193 All. 1890 292 All. 1890 416 All. 1890 421 All. 1890 483 All. 1890 , 497 All. 1890 505 All. 1890 508 All. 1890 543 All. 1891 57 All. 1891 287 All. J.892 2 All. To each of the revised corporation laws passed in 1890, to wit, the •General Corporation Law (ch. 563), the Stock Corporation Law (ch. 564), the . Railroad Law (ch. 565), the Transportation Corporations Law (ch. 566), and the Business Corporations Law (ch. 567), there was appended a separate schedule of the laws repealed by each of said acts. The amendatory legislation of 1892, however, coni- ibined these several Independent repealing schedules Into the foregoing -schedule of laws repealed, and annexed the same to the General Corpo- ration Law. The separate schedules theretofore appended to the Stock •Corporation Law, the Railroad Law and the Business Corporations Law were thereupon eliminated; but the schedule affixed to the Transportation Corporations Law was left undisturbed, although the acts enumerated therein were also embodied in the foregoing schedule. Tax Upon Organization. 67 Statutory Payments for Incorporation. TAX UPON ORGANIZATION. Laws op 1886, Chapter 143, as AMEtfOED. An act to tax stock corporations for the privilege of organization. Section 1. Every corporation, joint-stock company or association incorporated by or under any general or special law of this state, having capital stock divided into shares, shall pay to the state treasurer, for the use of the state a tax of one-eighth of one per centum upon the amount of the capital stock which said cor- poration, jioint-stock company 'or associ£(,tion is author- ized to have, and a like tax upon any subsequent increase thereof. The said tax shall be due and payable upon the incorporation of said corporation, jpint-stock com- pany or association, or upon the increase of the capital thereof; and no such corporation, joint-stock company or association shall have or exercise any corporate powers until the said tax shall have been paid. And the secretary of stat6 and any county clerk shall not file any certificate of incorporation or articles of association or certify or give any certificate to any such corporation, joint-stock com- pany or association, until he is satisfied, that the said tax has been paid to the state treasurer; and no such company, incorporated by any special act of the legislature shall go into operation or exercise any corporate powers or privi- leges until said tax has been paid as aforesaid. But this act shall not apply to literary, scientific, medical and relig- ious corporations, or corporations organized under the bank- ing laws of this state or under chapter one hundred and twenty-two of the laws of eighteen hundred and fifty-one, entitled " An act for incorporation of building, mutual loan and accumulating fund associations," andT the acts amenda- tory thereof. In qase of the consolidation of two corpora- 6S Tax Upon Ouganization. Statutory Payments for Incorporation. tions into a new corporation said new corporation shall be required to pay the tax hereinbefore provided for only upon the amount of its capital stock in excess of the aggregate amount of capital stock of said two corporations. Sec. 2. The taxes imposed by this act and the revenue derived therefrom, shall be applicable to the general fund and for the payment of those claims and demands which shall constitute a lawful charge upon that fund, (Thus amended by L. 1887, ch. 284, and L. 1892, ch. C6S.) In 1892, section one was amended by adding tlie last sentence contain- ing tlae provision that upon the consolidation of two corporations the tax shall be paid only upon so much of the capital stock of the consolidated corporation as is in excess of the aggregate capitalization of the two constituent companies. This new protision has since been construed as meaning two or more corporations, so that it applies in case of the con- solidation of any ' number of corporations. (People , (.!: rel. Eiclienieyer Field Co. v. Rice, 138 N. Y., G14; 51 St. Rep., 93; aff'g 49 St. Rep., 46.) Said amendment and the decision based thereon abrogate the rule that the tax is payable upon the entire capital stock of the new or consoli- dated corporation, as laid down in People ex rel. N. Y. Plionograpli Co. V. Rice, 57 Hun, 486, aff'd 128 N. Y., 591. When the consolidation is of a domestic corporation with a corporation of another State it is not liable to such tax, even upon the capital stock in excess of the aggregate amount of capitalization of the constituent companies. (Peo. v. Chicago & St. L. R. R. Co., 129 N. Y., 474, revers- ing 61 Hun, 66; Peo. v. Fitcliburg R. R. Co., 129 N. Y., 654.) The tax was held to be payable in the case of a reorganization under the Business Corporations Law, sec. 4 (former sec. 5), where the corpora- tion made important changes. (In r« N. Y. & Suburban Invfstment Co., 16 N. Y. Supp., 213; 40 N. Y., St. Rep., 139.) No appeal was taken from this determination of the Special Term. Such tax must also be paid upon a reorganization of a corporation under L. 1874, ch. 430, as amended by L. 1876, ch. 446 (now repealed and superseded by sec. 3, Stock Corporation Law, post) ; Peo. ex rel. Schurz V. Cook, 110 N. Y.. 448; Peo. e.v rel. Mertens v. Cook, Id. In such case the right to be a corporation, possessed by the old corporation, was not mortgaged nor sold, and so did not pass to the purchasers. They obtain such right upon filing the certificate, and then only by direct grant of the State. (Id.) Tax Upon Organization. f!9 Statutory Payments for Incorporation. ORGANIZATION TaX TaBLE, ShOWING OnK-EIGHTH OF OnE PeE Cent on Yarious Amocnts. Capital stock. Tax. $100 -. ., $0 13 200 25 300 38 400 50 500 63 600 75 700 88 800 1 00 900 1 13 1,000 ■. 1 25 1,200 1 50 1,500. 1 88 1,800 a 25 2,0n0 2 50 2,250 2 83 3,500 3 13 2,800 8 50 3,000 ;.. 3 75 3,500 4 38 4,000 5 00 4, .'500 5 63 5,000 6 25 5,500 6 88 6,000... 7 50 6,500 8 13 7,000 8 75 7,500.. 9 28 8,000 loop 8,500 10 63 9,000 11 25 9,500 11 88 10,000 .■ 12 50 13,000., 15 00 15,000 .18 75 18,000 23 50 20>000 25 00 25,000 81 25 30,000 37 50 35,000 43 75 40,000 50 00 45,000 56 25 50,000 62 50 55,000 68 75 60,000 75 00 ' 65,000 81 25 70,000 87 50 75,000 93 75 80,000 100 00 85,000 106 35 Capital stock. Tax. $90,000 $113 50 95,O0O.... 118 75 100,000 125 00 125,000 156 25 150,000 187 50 175,000 218 75 200,000 250 00 225,000 381 35 250,0011 312 50 275,000 343 75 300,000 875 00 325,000. 406 25 350,000 437 50 375,000 468 75 400,000 500 00 425,000, 531 25 450,000 562 50 475j000 593 75 5011,000 625 50 525,000 656 25 550,000 687 50 575,-000 718 75 600,000.. 750 00 625,000..^ 781 25 650,000 812 50 675,000 843 75 700,000..... 875 00 725,000 906 25 750,000 937 50 775,000 968 75 800,000 1,000 00 835,000 1,031 25 850,000 1,063 50 875,000 1,093 75 900,000.... 1,125 00 925,000 l,15fi 25 950,000 1,187 50 975,000 1,318 75 1,000,000 1,250 00 1,250,000 1,563 50 1,500,000 1,875 00 1,7.50,000 3,187 50 2,000,000 2,500 00 3,000,000 8,750 00 5,000,000 6,250 00 10,000,000 12,500 00 15,000,000 18,750 00 30,000,000 25,000 00 25,000,000 31,350 00 70 License Tax Upon Foreign Corporations. Statutory Paymenis for Incorporation. LICENSE TAX UPON FOREIGN CORPORATIONS. Laws of 1 895, Chapter 240. An Act to provide for licensing foreign stock corporations. (Became a law April 4, 1895.) Section 1. Every foreign corporation except banking, fire, marine, casualty and life insurance companies, and cor- porations wholly engaged in carrying on manufactures in this State, co-operative fraternal insurance companies, endowment orders and building and loan associations, now authorized to do business in this State, under the provisions of chapter six hundred and eighty-seven of the Laws of eighteen hundred and ninety-two, entitled "An Act to amend the general corporation law," shall pay to the State treasurer for the use of the State, a license fee of one-eighth of one per centum for the privilege of exercising its corpor- ate franchises or carrying on its business in such corporate or organized capacity in this State, on the first day of December, eighteen hundred and ninety-five, to be computed upon the basis of the amount of capital stock employed by it within this State during the year preceding that date, and every such foreign corporation which shall hereafter be authorized to do business in this State shall pay a like license fee for the privilege, to be computed upon the basis of the capital stock employed by it within this State for its busi- ness during the first year of carrying on its business in this State. The amount of capital upon which such taxes shall be paid shall be fixed by the comptroller, who shall have the same authority to examine the books and records in this State of such foreign corporations, and the employes thereof, and the same power to issue his warrant for the collection of such taxes, as he now has with regard to domestic cor- porations. Every such foreign corporation hereafter author- ized to do business in this State shall, before receiving the certificate of authority provided by law, pay to the State License Tax Upon Foreign Coepoeations. 71 statutory Payments for Incorporation. treasurer, for the use of the State, the tax hereinbefore pro- vided for. No action shall be maintained or recovery had in any of the courts of this State by such foreign corpora- tion doing business in this State, without obtaining the cer- tificate of authority, prescribed by law, and a receipt for the license fee hereby imposed. This act is very unfortunately worded. It provides in effect that no cer- tificate shall be issued authorizing a foreign corporation to transact business within the State until a tax has been paid based upon the amount of capital stock employed by it within the State during the first year of carry- ing on its business here. lAs the corporation is not permitted to do business in ttie State until a tax based upon the first year's business has been paid and a certiflcate has been issued, it will ; readily be seen that the act is very faulty and needs to be remodeled by the legislature so as to eliminate its absurdities. Fees Payable to Secretary of State and County Clerks. Secretary of State. — The fees to be collected by the Secretary of State, in connection with corporation certificates, are regulated by the Executive Law (L. 1892, ch. 683), section 26, which provides as fallows: * «♦**«* 2. Searching the records in his office for any one year and for every other year in which such search is made, six cents; 3. For a copy of any paper or record not required to be certified or otherwise authenticated by him, ten cents per folio ; 4. For a certified or exemplified copy of any law, record or paper, fifteen cents per folio; 5. For a certificate under the great seal of the State, one dollar; 6. For recording a certificate, notice or other paper required to be recorded, except as otherwise provided by this section, fifteen cents per folio ; 7. For a certificate of the official character of a commis- sioner of deeds residing in another State or a foreign coun- try, twenty-five cents, and for every other certificate under the seal of his office, one dollar; 12. For filing and recording the original certificate of incorporation of a railroad corporation for the construction 72 Filing and JRecordixg Fees. Statutory Payments for IncorpoTation. of a railroad in a foreign country, fifty dollars; for filing the original certificate of every other railroad corporation, twenty-five dollars ; for filing the original certificate of any other stock corporation, ten dollars; 13. For filing the certificate of a foreign corporation desiring to do business in the State, ten dollars. The Executive Law, above mentioned, repealed .tbe fee bill of 1882, ch. 156, which previously regulated the filing, recording and miscellaneous foes payable at the office of the Secretary of State. County Clerks. — The provisions as to fees payable to County Clerks are contained in the Code of Civil Procedure, section 3304, as follows: A county clerk is entitled, for the services specified in this section, except where another fee is allowed therefor by special statutory provision, to the following fees : For a copy of an order, record, or other paper, entered or filed in his office, eight cents for each folio. For recording any instrument, which must or may legally be recorded by him, ten cents for each folio. For filing any paper required by law to be filed in his office, other than as expressly provided for in this section, six cents. Transmission of Papers and Payments. When corporation papers are transmitted by mail for filing at Albany, the most satisfactory and expeditious results will be secured by observ- ing the following suggestions, ta wit : The tax of one-eighth of one pec cent upon the capital stock for the privilege of organization of a stock corporation (or for an increase of capital stock) should be remitted directly to State Treasurer, Albany, N. Y. All such tax payments, exceeding in amount the sum of twenty five dollars, are required, by a rule of the Treasurer's office, to be made in cash or by certified check, New York draft, post-office money order or ■express order. All corporation certificates should be mailed in a separate enclosmre, addressed to Secretary of State, Albany, N. Y., together with the filing and recording fees of that office. Do not forward to the State Treasurer any certificate intended for ■filing in the office of the Secretary of State, as Is often done. On the other hand, do not send the organization tax to the Secretary of State. The statute provides for its payment to the State Treasurer, who will upon receiving such payment, if the same be in acceptable form, as above required, immediately notify the Secretary of State to that effect, and the latter official will simultaneously, if the certificate is unobjectionable, give notice to apply the tax and issue receipts therefor. THE STOCK CORPORATION LAW. Laws of 1892, Chaptee 688.* Being "An act to amend the Stock Corporation Law" fATIONS PiiOiriBI'IED. The 8tock Corporation Law, § 7 A corporation which controls] the market and requires its stockholders to fix prices of a commodity is a combination inimical to trade and commerce, and so unlawful. (People v. Milk Exchange, Limited, 145 X. Y., 267.) When a corporation is organized for the purpose of forming a combina- tion to unlawfully fix the price of an article and limit the supply thereof, proceedings to forfeit its charter may be instituted by the Attorney- General of the State. (People v. The Milk Exchange, Ltd., 133 N. Y., 565.) Corporations cannot enter into a combination similar to a partnership between individuals, massing their stock, and sharing profits and losses, without express authority by charter. (People v. North Iliver Sugar Ref'g Co., 121 N. Y., 582; 3 N. Y. Supp., 401; Mallory v. Hanaur Oil Works, 86 Tenn., 598.) It seems that an action by the Attorney-General to annul a charter, or a criminal prosecution, is the only mode of redress to individuals for injuries occasioned by unlawful combinations. (Thomas v. Musical Mut. Prot. Union, 121 N. Y., 45.) A corporation engaged in an illegal trust combination is estopped from setting up the illegality of the combination in an action against the receiver of the trust. (Pittsbm-gh Carbon Co., Ltd., v. McMillin, 11& N. Y., 46.) Combination to advance price of article of food is unlawful. (Leonard V. Poole, 114 N. Y., 371.) The validity of a purchase of the business of another to prevent compe- tition, if supported by a consideration, will depend upon its reasonable- ness as between the parties. (Diamond Match Co. v. Roeber, 106 N. Y., 473; however, see Tode v. Gross, 127 N. Y., 480; Richardson v. Buhl, 43 N. W. Rep., 1102.) A contract whereby a competitor is removed, but not excluding all comitetition, is not objectionable. (Leslie v. Lorillard, 110 N. Y., 519.) It is not against public policy for two corporations engaged in the same general line of business to consolidate. (Cameron v. N. Y. & Mt. V. Water Co., G2 Hun, 209; aff'd on other grounds, 133 N. Y., 336; Holmes & Griggs Mfg. Co. V. Holmes & W M. Co., 127 N. Y., 232.) An association of corporations to use a patented article, there being no community of profits and losses, is not unlawful. (Good v. Daland, 121 N. Y., 1.) As to ti-ansportation agreements. See Tonawanda V. R. R. Co. v. N. Y., L. E. & W. R. R. Co., 123 N. Y., 040, 310.) As to rights of certificate holders where a trust has been dissolved, see Cameron v. Haveraeycr, 12 N. Y. Supp., 126; Gray v. Oxnard Bros. Co., 59 Hun, 387.) Additional prohibition — Anollier prohibition of nr nopolies was added to the statutes of this state by L. 1893, ch. 716, entitled : " An act to prevent monopolies in articles of general necessity," which reads as follows: " Section 1. Every contract or combination in the form of trust or other- wise, made after the passage of this act, whereby competition in the state of New York in the supply or the price of any article or com- modity of common use in said state for the support of life and health CuMBINATIONS PROHIBITED. 85 The Stock Corporation Law, § 7. may be restrained or prevented, for the purpose of advancing prices, Is hereby declared Illegal. Sec. 2. Every person who shall, after the passage of this act, make a,ny such contract, or engage in any such combination, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a line not exceeding five thousand dollars, or by imprisonment not longer than one year, or by both such fine and imprisonment." Federal Anti Trust Law. — Besides the foregoing provisions of State Laws upon this subject, an act of the United States, generally called the " Sherman Anti-Trust Law," was passed by Congress July 2, lg90, ch. 647, and entitled: "An Act to protect trade and commerce against unlawful restraints and monopolies," the full text of which is as follows: Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign tiations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be pimished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the coiu't Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on convic- tion thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any State or States or the Disti-ict of Colum- bia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every per- son who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on convic- tion thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said pun- ishments, in the discretion of the court. Sec. 4. The several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney- General, to institute proceedings In equity to prevent and restrain such violations. Such procedings may be by way of petition setting forth the case and praying that such violations shall be enjoined or otherwise pro- hibited. When the parties complained of shall have been duly notified of such petition the com-t shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before 86 Combinations Pkohibited. The Stock Corporation Law, § 7. final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just In the premises. Sec. 5. Whenever it shall appear to the court before which any pro- ceeding under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside In the dis- trict in which the coiu-t is held or not; and subpoenas to that end may be served in any district by the marshal thereof. Sec. 6. Any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned In section one of this act, and being in the course of transportation from one State to another, or to a foreign country, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure and condem- nation of property imported into the United States contj-ary to law. Sec. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover three fold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee. Sec. 8. That the word " person," or " persons," whenever used in this act, shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country. Article 1 of this law terminates with section 7, supra, and the next article (II) begins with section 20. The revised corporation laws were enacted in this manner with intervals between the articles in the numer- ical order of sectioning, instead of maintaining a continuity ^of section numbers, so as to allow for internal amendatory expansion of each law by the insertion of new sections in proper logical connection. DiEECTOteS. ST The Stock Corporation Liiw, § 20. ARTICLE II. Directors and Officees; Their Election, Duties and Liabilities. Section 20. Directors. 21. Change of number of directors. I 22. When acts of directors void. 23. Liability of directors for making nnauthorized dividends. 24. Liability of directors for contracting unauthorized debts and over issue of bonds. 25. Liability of directors for loans to stockholders. 26. Transfers of stock by stockholders indebted to corporation. 2T. Officers. 28. Inspectors and their oath. 29. Books to be kept 30. Annual report. 31. Liability of officers for false certificates, reports or public notices. 32. Alteration or extension of business. 33. Sale of franchise and property. § 20. Directors. — The directors of every stock corpora- tion shall be chosen from the stockholders at the time and place fixed by the by-laws of the corporation by a plurality of the votes of the stockholders voting at such election. Vacancies in the board of directors shall be filled in the manner pescribed in the by-laws, and if a director shall cease to be a stockholder his office shall become vacant. Notice of the time and place of holding any election of direc- tors shall be given by publication thereof, at least once in each week for two successive weeks immediately preceding such election, in a newspaper published in the county where such election is to be held, and in such other manner as may prescribed in the by-laws. Policyholders of an insurance corporation shall be eligible to election as directors. At least one-fourth in number of the directors of every stock coporation shall be elected annually, (Former section 20, L. 1890, ch., 564, as amended by L. 1892, ch. 688.) For form of notice of annual meeting, see post, form No. 35. This section, as above amended, makes several desirable changes. It permits of a classification of directors, so that one-half of the board may be elected for one year and the other half for two years, or the board may be divided into thirds for terms of one year, two and three years respectively, or classified so as to be chosen for terms of one year, two, three and four years respectively. Under the former practice the entire' 88 Directors. The Stock Corporation Law, § 20. board was required to be elected annually. Tlie directors are to be elected by a plurality (instead of a majority as heretofore) of the votes of stock- holders voting at the election. Notice of election is now required to be published for two successive weeks immediately preceding the election. At least two of the directors of eveiy corporation must be residents of this State. (Gen. Corp. Law, sec. 29, ante.) No liability for a dissolution arises from failure to elect directors on the day fixed in the by-laws. (Gen. Corp. Law, sec. 23, ante.) But see the Stock Corporation Law, sec. 22, as to neglect or refusal of direct- ors to adopt by-laws for holding aiinual election. Unless others are appointed by the court the directors shall be trustees of creditors, etc., in case of dissolution. (Gen. Corp. Law, sec. 30, ante.) The number of directors may be changed. See next succeeding section. By-laws adopted at a meeting of members of the corporation control action of directors. (Gen. Corp. Law, sec. 11, sub. 5, ante.) Any by-law regulating election of directors or officers must be published. (Id.) The directors may appoint officers of the corporation. (See sec. 27, post.) The directors shall manage the affairs of every corporation and a major- ity of the board of directors constitutes a quorum. (Gen. Corp. Law, see. 29, ante.) And the act of a majority at a meeting having a quorum is the act of the board. (Id.) At elections of directors each stockholder has one vote for every share of stock held by him for ten days, unless cumulative voting has been provided for under Gen. Corp. Law, sec. 20, ante. For liability of directors for unauthorized dividends; for unauthorized ■debts, loans to stockholders, etc., see sees. 23, 24, 25, post. For penalty for failure to make reports and for false certificates, reports, etc., see sees. 30, 31, post. For penal provisions relative to misconduct of directors, see Penal Codo, sees. 590, 594, G02, (310. 611, 614, post. The term directors when used in these laws, includes trustees. (Gen. Corp. Law, sec. 3, ante.) This provision of said section 3 is, it seems, intended merely for a definition of terms and that the managing board of a corporation organized under Laws 1848, ch. 40 (now repealed), should still be called trustees. A special meeting for electing directors may be called. (Gen. Corp. Law, sees. 24. 25, 26, ante.) In certain cases any member of the cor- poration may call such meeting. (Id.) As to proceedings to compel directors to account for their official con- duct; to transfer to the corporation property belonging to the same, etc., or for the removal of such director, see Code Civ. Pro., sees. 1781-83 and sees. 1811-12, post- As to inspectors of election and their election, see sec. 28, post. An owner of property may sell it to a corporation of which he is a stock- holder and trustee. If he does not, while acting in his own interests, also act as trustee or representative of the corporation. (Gamble v. Q. 0. W. €o., 123 N. Y., 91.) Directors cannot vote by proxy at meetings of the board. (Craig Medi- cine Co. V. Merch. Bk., 59 Hun, 501.) Directors. 89 The Stock Corporation Law, § 20. In the absence of any proof of authority conferred upon an auditing board, beyond its usual functions to allow or reject claims, it has no authority to rescind a contract or determine the future action of the cor- poration. Such authority is in the board of directors or trustees. (Skin- ner V. Wood M . & E. Mach. Co., 140 N. Y., 217.) The mere fact that a party is a trustee or director of a corporation does not make him chargeable with actual knowledge of its business trans- actions and of the entries made on its books so as to render such books j)er se evidence against him. (Powell v. Conover, 75 Hun, 11.) Where a candidate at a corporate electiori receives a majority of the legal votes cast, the receipt of illegal votes in his favor will not defeat his election. (Argus Co. v. Manning, 138 N. Y., 557.) Neither stockholders nor directors can do a corporate act, out of the jurisdiction creating the corporation, which can bind those who do not participate in it. (Ormsby y. U. CM. Co., 56 N. Y., 623.) As soon as a director parts with all beneficial interest in and control over his stock and causes the officers of the corporation to have knowledge of the fact by requesting a transfer on the corporate books, the statute operates to divest him of his office, and he ceases ta be a director. (Chem. Nat. Bk. v. Colwell, 132 N. Y., 250; Id., 43 St. Rep., 876; Beards- ley v. Johnson, 121 N. Y., 224.) The election of a disqualified person does not make him- even a de facto director. (In re Newcomb, 42 St. Rep., 442.) Management of the affairs of the corporation is with the directors thereof. / It is only where the statute or the by-laws require it that co-operation of stockholders is needed. (Beveridge v. N. Y. El. R . R . Co., 112 N. Y., , 1; Dabney v. Stevens, 40 How. Pr., 341 Sheridan Elec. L. Co. v. Chatham Nat. Bk., 127 N. Y., 517; afC'g 52 Hun, 580.) But the board of direct- ors or trustees may appoint an executive committee of its members to transact the business of the corporation during the interval between the meetings of the board. (Sheridan E. L. Co. v. Chatham N. Bk., 127 N. Y., r)17; Olcott V. Tioga R. R. Co., 27 N. Y., 546; see, also, Hoyt v. Thomp- son's Executors, 19 N. Y., 207.) The directors may make any contract which the law permits the cor- poration to malce. (Beveridge v. N. Y. El. R. R. Co., 112 N. Y., J.) The directors have no implied power to make articles of association, iind hence none for making any amended certificate, [In re N. V. Cable R. Co., 109 N. Y., 32.) The collective authority of the trustees, acting as a board is necessary. In order to bind the corporation by the action of the trustees. (Cammeyer v. Churches, 2 Sandf. Ch., 186; Constant v. Rector, 4 Daly, 305.) Directors are authorized to manage the business of the corporation, .audit and pay its debts, and make contracts within the ordinary scope and business of the corporation. (Kelsey v. Sargent, 40 Hun, 150.) If officers or trustees do an imauthorized act or incur indebtedness which would not create a corporate liability, the stockholders may sub- sequently ratify the acts and validate the originally imauthorized trans- action. (Martin v. Niagara F. P. Co., 122 N. Y., 172, afC'g 44 Hun, 130.) If an officer is allowed without interference for a long period to conduct the business of a corporation the inference that he has authority is Justified. (Id.) 90 Directors ; Number of ; When Acts Yoid. The Stock Corporation Law, §§21,22. § 21. Change of number of directors. — The number of directors of any stock corporation may be increased or reduced, but not above the maximum nor below the mini- mum number prescribed by law, when the stockholder* owning a majority of the stock of the corporation shall so determine, at a meeting to be held at the usual place of meeting of the directors, on two weeks' notice in writing to each stockholder of record. Such notice shall be served personally or by mail, directed to each stockholder at his last known post-oflftce address. Proof of the service of such notice shall be filed in the office of the corporation at or before the time of such meeting. The proceedings of such meeting shall be entered in the minutes of the corporation' and a transcript thereof, verified by the president and secre- tary of the meeting shall be filed in the offices where the original certificates of incorporation were filed. If a cor- poration formed under or subject to the banking law, the consent of the superintendent of banks, and if an insurance corporation, the consent of the superintendent of insurance, shall be first obtained to such increase or reduction of the number of directors. (Former section 21, L. 1890, ch. 564, as amended by L. 1892, ch. 688.) For form of certificate, see post, forms Nos. 36, 37, 38. The changes In this section by the amendment of 1892 were : Reducing time of notice of stoclsholders' meetings from thirty days to two weeks, adding the requirement for filing proof of service, and the provisions relative to banks and insurance corporations. A reduction in the number of directors can not be assailed collaterally In an action by a creditor to enforce a corporate debt, although no cer- tificate of such reduction was filed. (Wallace & Sons v. Walsh, 125- N. Y., 25.) The verified transcript above provided for must be filed and recorded In the office of the Secretary of State and a duplicate original must also be filed and recorded in the county clerk's office in which the certificate of incorporation was filed. (Gen. Corp. Law, sec. 5.) § 'J2. When acts of directors void. — When the directors of any corporation for the first year of its corporate exist- ence shall hold over and continue to be directors after the first year, because of their neglect or refusal to adopt the by-laws required to enable the stockholders to hold the annual election for directors, all their acts and proceedings while so holding over, done for and in the name of the cor- poration, designed to charge upon it any liability or obliga- DiEECTOEs; Liability of. ' 91- The Stock Corporation Law, § 23. tion for the services of any sucli director, or any officer, or attorney or counsel appointed by them, and every such lia- bility or obligation shall be held to be fraudulent and void, (Former section 22, L. 1890, ch. 564, re-enacted without change by L. 1892, ch. 688.) No liability for a dissolution arises from failure to elect directors on the day fixed In the by-laws. (Gen. Corp. Law, sec. 23.) In certain cases any member of the corporation may call d meeting to- elect directors (Gen. Corp. Law, sec. 24.) § 23. Liiability of directors for making unauthorized dividends.— The directors of a stock corporation shall not make dividends, except from the surplus profits- arising from the business of such corporation; nor divide, vrithdraw or in any way pay to the stockholders, or any of them, any part of the capital of such corporation, or reduce its capital stock, except as authorized by lawi In case of any violation of the provisions of this section, the directors under whose administration the same may have happened, except those who may have caused their dissent therefrom to be entered at large upon the minutes of such directors at the time,^ or were not present when the same happened, shall jointly and severally be liable to such corporation and to the credi- tors thereof to the full amount of the capital of such cor- poration so divided, withdrawn, paid out or reduced. But this section shall not prevent a division and distribution of the assets of any such corporation remaining after the payment of all its debts and liabilities upon the dissolution of such corporation or the expiration of its charter. (Former section 23, L. 1890, ch. 564, as amended by L. 1892, ch. 688.) As to other actions against directors or trustees for misconduct, see- ■ Code Civ. Pro., sees. 1781-3, and 1790-6, post; and for penal provisions rela- tive thereto, see Penal Code, sees. 594, 602, 610-11 and 614, post. Directors are liable for unauthorized debts and for loans to stockholders ^ see next succeeding sections. They are also liable for failure to make' annual reports and for false reports; see sees. 30 and 31. Directors of a corporation have no right to pay dividends unless they leave the capital stock unimpaired. (Berwind-White Coal Mining Co. v. Ewart, 11 Misc. R., 490.) Dividends declared by a corporation, but payable at a future time, are no- longer a part of the assets of the corporation, but become at once the property of the shareholders, and are thereafter held by the corporation simply as a trustee for the shareholder. (Matter of Kernochan, 104 N. Y.r 616, 624; Hopper v. Sage, 112 N. Y., 530; Jermain v. L. S. and M. S. Ry. 92 DiEECTORs ; Liabiliiy of. The Stock Corporation Law, § 24. Co., 91 N. Y., 488, 492; People ex rel. U. S. Trust Co. r. Barker. 86 Hun, 131.) Where the surplus of a corporation properly applicable to a dividend Is ample for that purpose and the directors in bad faith, and without reason- able cause, refuse to declare one, the courts will interpose and direct the declaration of a reasonable dividend. (Hiscock v. Lacy, 9 Misc., 578.) The term capital as used in this section means the property of the cor- poration contributed by its stockholders or otherwise obtained by it, to the extent required by its charter. When the propertj' exceeds that limit the excess is surplus and may be divided in money or property or by a scrip dividend. (Williams v. W. U. T. Co., 93 N. Y., ISS; Burrell v. Bushwick ,E. R. Co., 75 N. Y., 211.) This section is intended to prevent the division, distribution, withdrawal and reduction of the property of a corporation below the sum limited in its charter. (Williams v. W. U. T. Co., 93 N. Y., 187; Rorke v. Thomas, 66 N. Y., 559.) Dividends are payable to the person in whose name the stock stands on the books of the corporation or his legal representatives. Officers of a corporation are not required to demand production of the certificate of stock before paying dividends thereon. (Brisbane v. D. L. & W. R. R. Co., 94 N. Y., 204; Jermain v. L. S. & M. S. Ry. Co., 91 N. Y., 483; Boadman v. Same, 84 N. Y., 157.) The rate of dividend to be paid, and the amount of surplus to be retained by a cprporation miist rest in the fair and honest discretion of its direct- ors. (McNab V. McNab & H. Mfg. Co., 62 Hun, 18; Beveridge v. N. Y. El. R. R. Co., 112 N. Y., 1.) Under laws of 1848, ch. 40 (now repealed), it was held that if the trus- tees choose to bear the responsibility, they have power to declare and pay dividends though no surplus exists beyond the capital, at least until some judicial restraint intervenes to prevent. (Edison Gen. Electric Co. V. Barker, 141 N. Y., 251.) § 24. Liability of directors for unauthorized debts and over-issue of bonds.— JMo slock corporation, except a monied corporation, shall create any debt, if thereby its total indebtedness not secured by mortgage shall exceed the amount of its paid-up capital stock, and the directors creating or consenting to the creation of any such debt shall be personally liable therefor to the creditors of the corpo- ration. If bonds or other obligations of the corporation, secured by mortgage, are issued in excess of the amount authorized by law, or in violation of law, the directors voting for such over-issue, or unlawful issue, shall be personally liable to the holders of the bonds or other obligations illeg- ally issued for the amount held by them, and to all persons sustaining damage by such illegal issues for any damage caused thereby. (Former section 24, L. 1S90, ch. 564, as amended by L. 1892, ch. 688.) DiREOTOES ; Liability of. 9*^ The Stock Corporation Law, § 25. As to mortgages and bonds of a stock corporktion, and the amounts authorized, see sec. 2, ante. An individual creditor of the corporation can not maintain an action In his own behalf for the recovery of his own debt against the otlicers assenting to the unlawful increase of the company's indebtedness. (Hor- nor V. Henning, C3 U. S., 228; Anderson v. Speers, 21 Hun, 568.) • The liability created by this section is a contract and not a penal lia- bility, and it is confined to the directors who create or consent to the creation of the prohibited debt. (Nat, Bank of Auburn v. Dillingham, 86 Hun, 100.) The language of the statute that the liability is to the creditors of the corporation is not to be so construed as to add to the security of all the creditors of the coi-poration. Their responsibility is for the debt Incurred by them and for nothing' more, and the words " to the creditors of the corporation " can only be construed as descriptive of the persons to whom the particular debt is owing. (Id.) In an action under this section, all the directors assenting must be joined as parties. (McClave v. Thompson, 36 Hun, 365.) The plaintiff must allege that the excess of indebtedness equalled or exceeded the amount of his claim. (Chambers v. Lewis, 28 N. Y., 454; see, also, Robinson v. Attrill, 66 How., 121; Patterson v. Robinson, 116 N. Y., 193.) § 25. Liability of directors for loans to stockholders. — No loan of moneys shall be made by any stock corporation, except a monied corporation, or by any officer thereof out of its funds to any stockholder therein, nor shall any such cor- poration or officer discount any note or other evidence of debt, or receive the same in payment of any installment or any part thereof due or to become due on any stock in such corporation, or receive or discount any note, or other evidence of debt, to enable any stockholder to withdraw any part of the money paid in by him on his stock. In case of the violation of any provision of this section, the officers or directors making such loan, or assenting thereto, or receiving or discounting such notes or other evidences of debt, shall, jointly and severally, be personally liable to the extent of such loan and interest, for all the debts of the corporation contracted before the repayment of the sum loaned, and to the full amount of the notes or other evi- dences of debt so received or discounted, with interest from the time such liability accrued. (Former section 25, L. 1890, ch. 564, as amended by L. 1892, ch. 688.) The principal object of this section is to prevent a reduction of the capital under cover of loans to stockholders. It is intended for the pro- tection of creditors. (A. C. Nellis Co. v. Nellis., 62 Hun, 67; 41 St. Rep., 590.) The trustees or directors can not ratify an act which they •94- Directors; Stock Transfers ; Offickrs. The Stock Corporation Law, §§ 26, 27. coulrl not lawfully do in the first instance. (Id.; Peterson v. Mayor, etc., 17 N. Y., 449; Brady v. Same. 20 N. Y., 312.) To create the liability imposed by this section there must have been a loan of money in such a form as to create an indebtedness and an absolute liability for its repayment by the borrower. (Billings v. Trask, :30 Hun, 314.) The officers making oi^ assenting to any loan of its money to stock- holders are personally liable for all the debts of the corporation con- tracted before payment of such loan. (Boynton v. Hatch, 47 N. Y., 225.) § 26. Transfers of stock by stockholder indebted to corporation. — If a stockholder shall be indebted to the corpo- ration, the directors may refuse to consent to a transfer of his stock until such indebtedness is paid, provided a copy of this section is written or printed upon the certificate of stock. j (Former section 26, L. 1890, ch. 564, re-enacted by L. 1892, ch. 688.) In the absence of above provision the corporation has no lien which it can enforce and no authority to make a by-law embodying a similar pro- vision. (DriscoU V. West, B. & C. Mf'g Co., 59 N. Y., 96.) As to rights of vendee of stock. (Johnson v. Underhill, 52 N. Y., 203; McNeal v. Tenth Nat. Bk., 46 N. Y., 325; Com. Bk. v. Kortright, ^2 Wend., 384.) §27. Officers. — The directors of a stock corporation may appoint from their number a president, and may appoint a secretary, treasurer, and other ofiBicers, agents and employes, who shall respectively have such powers and perform such duties in the management of the property and affairs of the corporation, subject to the control of the directors, as may be prescribed by them or in the by-laws. The directors may require any such officer, agent or employe to give security for the faithful performance of his duties, and may remove him at pleasure. The policyholders of an insurance corporation shall be eligible to election ^r appointment as its officers. (Former section 27, L. 1890, ch. 564, as amended by L. 1892, ch. 688.) This section is permissive, but it is necessary that the corporation should have a president and a secretary, or trSasurer, as reports of ce^- tain stcyck. corporations (see sec. 30, post) and stock certificates must be signed by two ofllcers. (See sec. 40, post.) It will probably be found •convenient in order to secure a compliance with the law in the absence of an officer, to have a president, vice-president, a secretary, and a treasurer. The two last named are not required to be directors, but the president must be chosen from among the directors, and the vice- president should also be a director, if given authority in the by-laws to Offecers. 95 The Stock Corporation Law, § 27, act in behalf of the president in the latter's absence. The statute does not seem to forbid one person from holding two offices. Where officers or agents assume to act in behalf of a corporation and employ a person to perform a service for the corporation, and such service Hs performed with the knowledge of the directors anid principal officers, and the corporation receives the benefit of such service without objection, it is liable under an implied assumpsit. (Prindle v. Washington Life Ins Co., 73 Hun, 448.) While the law looks with disfavor upon contracts made between a director ■or officer of a corporation and the corporation, because it cannot accurately measure the influence of a trustee with his associates, yet a pledge as collateral for a loan actually made by an officer or director to the corpora- tion is not void because of the relation of the parties. fKinsman v. Fisk, -83 Hun, 494.) Where the officers of a corporation signed an agreement in their indi- vidual names, adding the title of the office held by each after his signature, .■and the character in which such officers assumed to act is known to the person dealing with them, the agreement is that of the corporation and not -the individual agreement of its officers. (Groves v. Aeker, 85 Hun, 492.) Where two individuals sign a promissory note, and after their respective names attach the words " Prest." and " Treas.," it. is an individual obllga- -tion of such persons and not the obligation of the corporation, if there is •nothing in the body of the note to indicate that it is a corporate obligation, -even though the name of the corporation be printed on the margin. (First Nat. Bk. of Bklyn. v. Wallis, 84 Hun, 376.) The president of a corporation, having full personal charge of ,the busi- ness which the corporation was organized to transact, represents it, and , .prima facie has power to do any act which the directors could authorize or ratify. (Oakes v. Cattaraugus Water Co., 143 N. Y., 480.) A person who deals with an officer of a corporation, to whose office no ■Inherent executive authority attaches, is chargeable with notice of an .apparent want of authority and so deals with such officer at his peril. (Parmelee v. Associated Physicians and Surgeons, 9 Misc. R., 458, and -cases therein cited.) A corporation is not bound by a contract on its behalf, made by the treasurer in disregard of a by-law prohibiting the execution of such a con- tract by him alone. (Parmelee v. Associated Physicians and Surgeons, •9 Misc., 458.) ♦ A person who is- both a stockholder and a director of a corporation cannot -sustain a claim fpi* salary as president thereof unless his claim Is founded on a contract entitling iim to compensation. (Starbuck v. Housatonic R. R. Co., 83 Hun, 534.) - In an action on a note by a bona fide holder the fact that the note was made by the president of a corporation and was not signed by its treasurer, as required by the by-laws, is not a defense if there was no diversion of -the note or of the proceeds thereof from its original purpose. (Nat. Spraker Bk. V. Geo. C. Treadwell Co., 80 Hun, 363.) A person has a right to assume that the -officers of a 'corporation possess •the authority to act for the corporation in those capacities in which the 96 Officers. The Stock Corporation Law, § 27. corporation holds them out to be its representatives or pt-rmits them so to- act. (Railway Equipment and Pub. Co. v. Lincoln Nat. Bk., 82 Hun, 8.) Where the president of a corporation has been la the habit of executing notes in Its name and his acts in so doing have never been repudiated or questioned by the directors, it is sufficient to sustain a finding by a jury that the president was authorized to execute the notes, although the by-laws of the corporation provided that its notes should be signed by its treasurer together with its president or secretary. (Grant, as Receiver of St. Nicholas Bk. V. George C. Treadwell Co., 82 Hun, 591.) , The president can not supersede an express resolution of the board of directors. (Tradesmen's Nat. Bk. v. Manhattan Lumber Co., 4G St. Rep., 487.) An assignment of a claim by a corporation, executed by its president in the presence of Its secretary and attested by its corporate seal, is suffl- client to protect the debtor in paying the amount of the claim to the assignee. (Purdy v. Nova Scotia JL Ry. & Iron Co., 8 Misc. R., 510.) The secretary of a corporation is one of its general managing agents, and when In the discharge of the duties of his office represents the cor- poration. (Hastings v. Brooklyn Life Ins. Co., 138 N. Y., 473.) Participation by an officer of a corporation in a swindling scheme does not deprive the corporation of the right to attempt to recover by all legal means the moneys out of which it has been unlawfully and wrong- fully swindled. (Farrow v. Holland Tmst Co., 74 Hun, 585.) One dealing with an officer of a corporation is put upon inquiry where the act of the officer would be illegal unless actually authorized, as, e. g., Where securities offered for sale or as security by the officer are appar- ently the property of the corporation. (Knox v. Eden Musee Am. Co., Ltd., 74 Hun, 483.) The corporation is under an Implied obligation to make Indemnity for a loss sustained by the negligent or wrongful exercise by Its officers of the general powers conferred upon' them. (Mutual Life Ins. Co. v. Forty- second St. etc., R. R. Co., 74 Hun, 505.) Officers of corporations are pre- sumed to have the authority to perform the duties which such officers ordinarily perform in corporations of like character. (Id.) The board of directors may appoint an executive committee of Its mem- bers and authorize it to transact the business of the corporation during the interval between the meetings of Its board of direcors. (Sheridan E. L. Co. T. Chatham Nat. Bk., 127 N. Y., 517.) Officers are not Individually liable if It appears dt the face of the instru- ment that they contracted with reference to corporate business and had authority to make such contract. (Whitford v. Laidler, 94 N. Y., 145.) Recognition of a person as manager by the other managers, under a mistaken supposition that he was duly elected, is not, as between the person and the Corporation and where the public or third persons are not concerned, equivalent to, nor can it be made available as an election. (Peo ex. rel. Nicholl v. N. Y. Infant Asylum, 122 N. Y., 190.) The directors control the rate of dividend and the amount of surplus to be held. (McNab v. McNab & Harlln Co., 133 N. Y., G87, aff'g 62 Hun, 18.) When directors who are also officers and own nearly all the stock, they may increase their salaries where each refrains from voting to increase ■ his own salary. (Id.) -Inspectoes and thkik Oath. The Stock Corporatioa Law, § 28 A contract executed in the name of the corporation by its president and secretary and sealed with its corporate seal, is valid and binding upon the corporation until evidence to the contrary shall be produced. (Jourdan v. L. I. R. R. Co., 115 N. Y., 385.) Officers of a corporation can not avail themselves of their position and opportunity to deplete the trust fund for their own benefit. (Bulkley v. Whitcomb, 121 N. Y., 107; see also Johnson v. U. S. & S. Co., 37 N. Y. Bt Bep., 876.) Directors and officers are agents of the corporations and liable to it for unauthorized acts. (Holmes, B. & H. v. Willard, 125 N. Y., 75.) But the corporation may indorse imauthorized acts of directors and officers. (Id.; see, also, Martin v. N. F. P. Mf'g Co., 122 N. Y., 165.) Officers are not entitled to compensation unless the same has been provided for. (Mather v. Eureka N. Co., 118 N. Y., 629.) A contract for a corporation, executed by its president, although without authority of the board of directors, will be presumed to have been ratified unless it dissents within a reasonable time, provided the contract is within the corporate powers of company. (Indianapolis R . M . Co. v. St. L. etc., R. R. Co., 120 U. S., 256; Pittsburg R. R. Co. v. Keokuk Bridge Co., 131 U. S., 371.) In certain cases a corporation can not repudiate acts of its financial manager. (Case Mf'g Co. v. Soxman, 138 U. S., 431.) The president of a manufacturing company having general authority to contract by parol for making and delivering its products, has like authority until It is withdrawn, to authorize the termination and release of such contract. (Indianapolis R. M. Co. v. St. L. R. R. Co., 120 U. S., "256.) § 28. Inspectors and their oath. — The inspectors of election of every stock corporation shall be appointed in the manner prescribed in the by-laws, but the inspectors of the first election of directors and of all previous meetings of the stock- holders shall be appointed by the board of directors named in the certificate of incorporation. No director or officer of a monied corporation shall be eligible to election or appointment as inspector. Each inspector shall be entitled to a reasonable compensation for his services, to be paid by the corporation, and if any inspector shall refuse to serve, or neglect to attend at the election, or his office become vacant, the meeting may appoint an inspector in his place unless the by-laws otherwise provide. The inspectors appointed to act at any meeting of the stockholders shall, before entering upon the discharge of their duties, be sworn to faithfully execute the duties of inspector at such meeting with strict impartiality, and according to the best of their ability, and the oath so taken shall be subscribed by them, and immediately filed in the office of the clerk of the county 7 98 Books to bk Kept. The Stock Corporation Law, § 29. in which such election or meeting shall he held, with a cer- tificate of the result of the vote taken thereat. (Former section 28, L. 1890, ch. 564, as amended by L. 1892. cli. 688.) Foi-form of certificate and oath of inspectors, see post, forms Nos. 39, 40. Unless tlie by-laws of tlie company provide that the inspectors shall be ' stockholders, other persons may be chosen. The use of the word " inspectors " requires that there shall be at least two. (In re Lighthall Mfg. Co., 47 Hun, 258.) An election under the appointment and authority of one inspector is void. (Id.; see, also, Mat- ter Chenango Co. Mut. Ins. Co., 19 Wend., 635.) An election of directors will not be set aside on the ground that the inspectors were not sworn in the form prescribed by the statute; and it seems that if no objection was interposed at the time of the election, it will stand, although no oath whatever was administered to the inspec- tors. (In re Mohawli & H. R. E. Co., 19 Wend., 135; Merrltt v Village of Portchester, 71 N. Y., 309.) Inspectors of a corporate election may be candidates at such election, (Ex parte Willcocks, 7 Cow., 402.) \ § 29. Books to be kept. — Every stock corporation shall keep at its office, correct books of account of all its business and transactions, and a book to be known as the stock-book, containing the names, alphabetically arranged, of all per- sons who are stockholders of the corporation, ^howii;g their places of residence, the number of shares of stock held by them respectively, the time when they respectively became the owners thereof, and the amount paid thereon. The stock-book of every such corporation shall be open daily, during business hours, for the inspection of its stock- holders and judgment creditors, who may make extracts therefrom. No transfer of stock shall be valid as against the coporation, its stockholders and creditors for any pur-, pose, except to render the transferee liable for the debts of the corporation according to the provisions of this chapter, untU it shall have been entered in such book as required by this section, by an entry showing from and to whom trans- ferred. Such latter book shall be presumptive evidence of the facts therein so stated in favor of the plaintiff, in any action or proceeding against such corporation or any of its officers, directors or stockholders. Every corporation that shall neglect or refuse to keep or cause to be kept such books, or to keep any book open for inspection as herein required, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect or refuse. If any officer or Books to be Kept. 99 The Stock Corporation Law, § 39. agent of any sucli corporation shall willfully neglect or refuse to make any proper entry in such book or books, or shall neglect or refuse to exhibit the same, or allow them to be inspected and extracts taken therefrom as provided in this section, the coi^oration and such oflScer or agent shall each forfeit and pay to the party injured a penalty of fifty dollars for every such neglect or refusal, and all damages resulting to him therefrom. (Former section 29, L. ;1890,,ch. 564, as amended by L. 1892, ch. 688.) For form of stock book see post, form No. 41. The production, upon a trial, of a boolr or paper, belonging to or under the control of a corporation, may be compelled, in like manner as if it was in the hands, or under the control, of a natural person. For that purpose a subpoena duces tecum, or an order, made as prescribed in the last section, as the case requires, must be directed to the president, or other head of the corporation, or to the officer thereof, in whose custody the book or paper is. (Code of Civ. Pro., sec. 868.) In a case specified in tlie last section, or where a subpoena dvMS tecum, or an order, made as prescribed in section eight hundred and sixty-six or section eight himdred and sixty-seven of this act, requires a public officer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be sufficiently obeyed, if the book or paper is pro- duced by a subordinate officer or employe of the corporation, or in the public office, who possesses the requisite knowledge to identify it, and to testify respecting the piu-poses for which it is used. If the personal attendance of a particular officer of the corporation or public officer is required, a subpoena, without a duces tecum clause, must also be served upon him. (Code of Civ. Pro., sec. 869.) By virtue of the provisions of the foregoing section, a stockholder of a corporation has the right to inspect the stock book during business hours with his attorney, or other person having the requisite knowledge to obtain for him the information to which he was entitled. (People ex rel. Clason v. Nassau Ferry Co., 86 Hun, 128.) The board of directors dfey adopt a new stock book if for any reason the existing transfer book is not available for use by them for the making of transfers of stock. (Argus Co. v. Manning, 138 N. Y., 557.) This section does ' not affect the validitjr of a stock transfer actually made as between vendor and vendee, although a transfer has not been -entered upon the corporation books. (Johnson v. Underbill, 52 N. Y., 203.) As to evidence to support a recovery of a penalty. (See Kelsey v . Pfandler P. F. Co., 20 N. Y. St. R., 533.) Sufficiency of a complaint. (Levy V. Cohn, 45 N. Y, St. R., 278.) Affidavits in a mandamus proceed- ing. (Martin v. Wm. J. Johnston Co., Lt, 133 N. Y., 692, afC'g 62 Hun, 557.) In contempt proceedings upon failure to produce books required to be kept, presumption is that such books have been kept. (Feulon v. Demp- sey, 50 Hun, 131.) 40 '." 100 Books to be Kept. The Stock Corporation Law, § 39. The provision tliat no transfer of stock shall be valid for any purpose except to render the transferee liable for debts until it shall have been entered in the stock book, is only for protection of the corporation, and does not prevent passing of the entire legal and equitable title, as between the parties, by the delivery of the certificate with agreement and power of transfer. (Chem. Nat. Bk. v. Oolwell, 132 N. Y., 250; see, also, Isham V. Buckingham, 49 N. Y., 2] 6; Robinson v. Nat. Bk., etc., 95 N. Y., 637; Billings V. Robinson, 94 N. Y., 415; Rudd v. Robinson, 126 N. Y., 113.) The book containing the names of the stockholders which every corpo- ration is obliged to keep, is presumptive evidence of the facts therein stated. This section, however, does not make such book the only or even the best evidence of the fact that a person was a stockholder. (Herries V. Wesley, 13 Hun, 492.) The custodian of the books, who submits them for the inspection of a stockholder or creditor but refuses to permit extracts therefrom, subjects himself to the penalty prescribed. (Cortheal v. Bronner, 5 N. Y., 562.) Such custodian is not constituted a judge of the motives of the inspec- tion, or of the manner thereof, or of the purpose which the information is to serve. (Id.) Stockholders have a right to know who are qualified voters and the number of votes each is entitled to cast. (Id.; Peo. ex rel Richmond v. Pacific M. S. Co., 50 Barb., 217.) As to denial of averments of ownership of shares contained in affi- davits upon an application for a mandamus to compel an inspection, see matter of Martin, 41 St. Rep., 409; see, also, Peo. v. Cromwell, 102 N.) Y., 477; Peo. v. Board, etc., 46 Hun., 296; Kelsey v. Pfandler, 20 St. Rep., 533. When the by-laws require the books to be kept by the secretary it is no defense to an application where the treasurer's refusal to permit inspection is unqualified, and not put on the ground of inability. (Mat- ter of Martin, supra.) If deprived of possession of the stock book the directors may open a new one, making it so far as possible a copy of the old book, and, in such case, the inspectors of election may refer to the new book to ascertain who are voters, but if the old book is produced the record therein must govern as to transfers therein before the new book was opened. (Scho- harie Valley R. R. Co., 12 Abb. N. S., 304.) A transfer of stock, valid as between the parties, but not entered on the stock book, does not relieve the transferrer of liability as a stock- holder to the creditors of the corporation. (Shellington v. Howland, 53 N. Y., 371.) A transfer of stock in good faith, when the corporation is solvent, and entered upon the corporate books relieves the transferrer of liability. (Tucker v. Oilman, 121 N. Y., 189; Cutting v. Damerel, 88 N. Y., 410.) Delivery of the certificate, as between owner and assignee, with the assignment and power indorsed, passes the entire title in the stock, sub- ject only to such liens or claims as the corporation may have upon It. (Cushman v. Thayer Mfg. J. Co.. 76 N. Y., 365; McNeil v. Tenth Nat. Bk., 46 N. Y.. 331.) To relieve a stockholder the transfer of stock on" the corporate books must be under a bona fide sale, without any secret understanding or trust in favor of the vendor. (Veiller v. Brown, 18 Hun, 571.) Annual Rkpoet. 101 The Stock Corporation Law, § 30. The corporation is liable for unauthorized refusal to transfer shared on its books. (Dunn v. Star Vive Ins. Co., 19 W. Dig., 531.) Upon a refusal to permit an inspection o( books by person entitled thereto, a mandamus is a matter of absolute right. (Peo. ex rel. McDon- ald v. U. S. U. R. Co., 20 Abb. N. C, 192.) A demand by his attorney- at-law is insufficient. (Id.) § 30. Annual report. — Every stock corporation, except monied and railroad corporations, shall annually, during the month of January, or, if doing business without the United States, before the first day of May," make a report as of the first day of January, which shall state : 1. The amount of its capital stock, and the proportion actually issued. 2. The amount of its debts or an amount which they do not then exceed. 3. The amount of its assets or an amount which its assets at least equal. Such report shall be signed by a majority of its directors, and verified by the oath of the president or vice-president and treasurer or secretary, and filed in the office of the secre- tary of state and in the ofllce of the county clerk of the county where its principal business office may be located. If such report is not so made and filed, all the directors of the corporation shall jointly and severally be personally liable for all the debts of the corporation then existing, and for all contracted before such" report shall be made. No director shall be liable for the failure to. make and file such report if he shall file with the secretary of state, within thirty days after the first day of February, or the first day of May, as the case may be, a verified certificate, stating that he has endeavored to have such report made and filed, but that the officers or a majority of the directors have refused and neglected to make and file the same, and shall append to such certificate a report containing the items required to be stated in such' annual report, so far as they are within his knowledge or are obtainable from sources of information open to him, and verified by him to be true to the best of his knowledge, information and belief. (Former section 30, L. 1890, ch. 564, as amended by L. 1892, ch. 2 and ch. 688.) Pbi' forms of report and certificate of director in lieu of report, see post, formi Ms. 43, 43, 102 Annual Report. The Stock Corporation Law, § 30. The act of 1848, chapter 40, now repealed, required a publication of the report in a newspaper. The foregoing section does not. The term " directors " as used in this section includes trustees or other persons by whatever name known, duly appointed to manage the affairs of the corporation. (Gen. Corp. Law, sec. 3.) The mere making of the report is not sufficient, nor is the fact that It was delivered to an officer of the corporation for filing. The report must bo actually filed, and the omission to do so is not excused by entrusting the duty to another who fails to perform it. (Whitney v. Cammann, 137 N. Y., 342.) ^ Where a debt was contracted by a corporation during the time of its default and failure to file the annual report required by the foregoing sec- tion, the fact that the notes given by such corporation in payment of such obligation, during the continuance of the default, were not due during the continuance of the default or* prior to the time that the report was subse- quently filed, does not relieve the directors from personal liability upon such notes. The debt having been contracted during the default was witliin the statute, although not due, and an extension of time of payment would not discharge the liability of the directors, although it would post- pone the remedy. (Providence Steam and Gas Pipe Co. v. Connell, 86 Hun, 319.) Where a report is filed before any claim accrues against the corporation the officers are not liable. (Witherow v. Slayback, 11 Misc., 526.) There is no obligation to file an annual report after the corporation has abandoned its business and passed into the hands of a receiver. (Id.) No liability attaches against officers of a corporation for a false report, unless the report was filed before the credit was given. (Id.) The verification of an annual report by a person who is both the vice- president and treasurer of the corporation is not irregular because the person verifying the same did not make separate oaths as vice-president and as treasurer. (Novelty JIfg. Co. v. Connell, 88 Hun, 254.) The liability imposed upon the directors of a corporation for a failure to file the annual report is a liability created by the statute in the form of a penalty for specific acts of disobedience. (Id.) The directors are jointly and severally liable for the debts If the report is not filed. (Hoag v. Lament, 60 N. Y., 96; Roach v. Duckworth, 95 N. Y., 399.) An imliquidated claim, arising out of a breach of contract of employ- ment, due at the time of default in filing report, is a debt within the meaning of the statute. (Green v. Easton, 74 Hun, 329.) Unnecessary to obtain judgment against the corporation on such claim before proceed- ing against a director. (Id.) If such judgment Is obtained against the corporation, a recovery cannot be had against a director for the costs Included in such judgment. (Id.) This section does not require the report to specify how much of the stock was paid for in cash and how much in property. (Whltaker v. Mas- terton, 106 N. Y., 281.) , An action to recover the penalty prescribed by this section must be commenced within three years. (Merchants' Bank v. Bliss, 35 N. Y., 412; Annual Report. 103 The Stock Corporation Law, § 30. Losee v. Bullard, 79 N. Y., 404; Duckworth v. Roach, 81 N. Y., 49; Jones V. Barlow, 62 N.' Y., 202; Rector v. Vanderbilt, 98 N. Y., 170; Miller v. White, 50 N. Y., 137; Shaler & H. Q. Co. v. Bliss, 27 N. Y., 297.) As to the failure to make and file an annual report creating a ground for for£eitui-e of corporate rights, see Peo. v. Buffalo Stone & Cement Co.; 131 N. Y., 140; 42 St Rep., 753. An action under this section must be founded on the original claim against the corporation, not upon a judgment recovered against it. (Green V. Easton, 74 Hun, 329; Esmond v. Bullard, 16 Hun, 65; afE'd 79 N. Y., 404; see, also, Whitney A. Co. v. Barlow, 63 N. Y., §2; Jones v. Same, 62 N. Y., 202; Miller v. White, 50 N. Y., 137; Rorke v. Thomas, 56 N. Y., 565; Stephens v. Fox, 83 N. Y., 317. But see, also, Allen v. Clark, 108 N. Y., 269.) An action imder this section does not abate by the death of the creditor, ' but will abate upon the death of the defendant. (Zoller v. O'Keefe, 15 Abb. N. C, 483; Bonnell v. Griswold,- id., 470.) Also held that It abates upon death of either party. (Brackett v. Grlswold, 103 N. Y., 425; Blake V. Same, 104 N. Y., 613; Stokes v. Stickney, 96 N. Y., 323; see, also, Oarr T. Rischer, 119 N. Y., 117; B'k of California v. Collins, 5 Hun, 209.) The cause of action is assignable. (Pier v. George, 86 N. Y., 613; Bon- nell V. Wheeler, 68 N. Y., 294; Bolen v. Crosby, 49 N. Y., 183; Briggs v. Easterly, 62 Barb., 51; Cornell v. Roach, 101 N. Y., 373.) As to reports when the business has been iibandoned. (See Wamsley V. Palmer, 5 N. Y. St. R., 307.) When bankrupt. (Bonnell v. Grlswold, 80 N. Y., 128.) When the corporation may be deemed dissolved so far as liability of trustees is concerned. (Losee v. Bullard, 79 N. Y., 404; Bonnell v. Grls- wold, 80 N. Y., 128; Bruce v. Piatt, 80 N. Y., 379; Bradt v. Benedict, 17 N. Y., 93; Jones v. Barlow, 62 N. Y., 202.) ^ A creditor is not obliged to show special pecuniary damage by reason of neglect to file report. (Merchants' Bank v. Bliss, 35 N. Y., 416.) The penalty provided by this section will be imposed only in cases where the plain language of the provision requires it. (Whitaker v. Mas- terton, 106 N. Y., 277; Brackett v. Grlswold, 103 N. Y., 425.) This section is highly penal and should be strictly construed. (Whitney Arms Co. v. Barlow, 63 N. Y., 62; Wiles v. Suydam, 64 N. Y., 173; Pier V. George, 86 N. Y., 613; Victory W. P. Co. v. Beecher, 97 N. Y., 651; Gadsen v. Woodward, 103 N. Y., 241; Knox v. Baldwin, 80 N. Y., 610; Easterly v. Barber, 65 N. Y., 252; Veeder v. BaJier, 83 N. Y., 156; Stokes v. Stickney, 96 N. Y., 323.) A director can avoid the penalty of an omission by filing a certificate or report. (Butler v. Smalley, 101 N. Y., 71.) This is a saving clause for the protection of the innocent and willing director or trustee from personal liability. (Vincent v. Sands, 58 N. Y., 672.) Trustees retiring from office during the default are liable for then existing debts, but not for those subsequently Incurred. (Id.) Upon a default the trustees then in office are liable for all the company's debts then existing, whether contracted by them or their predecessors, and for all subsequently contracted durin;; J 01 Annual Eeport. The Stock Corporation Law, § ;iO. their term until Ihe report is made. (Id.) Their successors may escape liability by pmmptly complying with the statutes. (Id.) Filing before the time specified is not a compliance. (Cincinnati C. Co. V. O'Keefe, 120 N. Y., 603.) When the acting board has complied with this section it is sufficient (Wallace v. Walsh, 125 N. Y., 26.) A corporation that has not commenced active business is not relieved from filing a report. (Jones v. Barlow, 62 N. Y., 202.) No report Is necessary if business has been entirely abandoned. (Kirk- land V. Kille, 99 N. Y., 390; Carraher v. Mulligan, 28 St. Rep., 439.) Or if the charter has expired. (Gold v. Clyne, 134 N. Y., 262.) Or if a receiver has been appointed. (Huguenot Nat. Bk. v. Studwell, 74 N. Y., 621; Coch- ran V. Smith, 54 N. Y. Super. Ct., 117.) But a pending, contested applica- tion to annul the charter is uo excuse for failing to report. (First Nat Bk., etc., V. Lamon, 41 St. Rep., 684.) It is essential to the liability of one sought to be charged that his occu- pancy of the relation of director, the default and the debt of the corpora- tion have existence at the same time. (Gold v. Clyne, 134 N. Y., 262.) Bonds given by the company, as a mere gratuity, do not constitute a debt upon which to base a recovery under this section. (Norris v. De Wolf, 76 N. Y., 597.) Nor does an indebtedness imposed by fraud or improper practices of the creditor. (Adams v. Mills, 60 N. Y., 533.) Bonds diverted from the purpose for which they were Intended to the knowledge of the holder are not, in his hands, a debt against the corpor- ation under this section. (Kirkland v. Kelle, 99 N. Y., 390.) Torts committed by the corijoration do not render the trustee liable under this section. (Esmond v. Bullard, 79 N. Y., 404.) As to other debts not within the meaning of the section. (Victory W. P. Co. V. Beecher, 97 N. Y., 651; Whitney Arms Co. v. Barlow, 68 N. Y., 34; Lewis v. Armstrong, 8 Abb., N. C, 385; Jones v. Barlow, 62 N. Y., 202; Whitney A. Co. v. Same, 63 N. Y., 62.) A trustee or director who resigns relieves himself from liability there- after incm-red, although the resignation is neither acted upon by the board nor entered in the corporate books. (Blake v. Wheeler, 18 Hun, 496; afif'd 80 N. Y., 128; Chandler v. Hoag, 2 Hun, 613; aff'd 63 N. Y., 624.) As to resignation, see, also, Bruce v. Piatt, 80 N. Y., 379; Van Amburgh v. Baker, 81 N. Y., 46; Reed v. Keese, 60 N. Y., 616; Sanborn v. Lefferts, 58 N. Y., 179; Denning v. Puleston, 55 N. Y., 655; Boughton v. Otis, 29 Barb., 196; afC'd 21 N. Y., 261; Garrison v. Howe, 17 N. Y., 458. In actions against directors the creditor must establish that the debt was contracted by the corporation. (Dabney v. Stevens, 40 Hun, 341.) A creditor consenting to non-filing of report cannot take advantage thereof. (Carraher v. Mulligan, 54 Htin, 638; 28 St. Rep., 439.) A director, who is also a creditor of the corporation, cannot maintain an action against his co-directors. (Easterly v. Barber, 65 N. Y., 252.) One who has acted as director, though not elected, cannot repudiate his directorship and recover from others with whom he acted. (Id.) But when a corporate debt, owned by a director, is assigned by him, abso- lutely for value, the assignee may, on a subsequent failvu-e of the corpora- Liability of Officees fok Falsk Cektifioates. 105 The Stock Corporation Law,' § 31. tion to file a report, proceed under this section though the assignor's directorship continues up to the time of such default. (Cornell v. Roach, 101 N. Y., 373.) Upon a default in filing the report, the directors are personally liable for all the debts of the' corporation then existing, even though such debts are not due. (Carr v. Risher, 119 N. Y., 177; afC'g 50 Hun, 147.) The liability of a person, who became a director after a default in filing the report, is limited to debts incurred during his directorship, and while the default continues. (Shaler & H. Q. Co. v. Bliss, 27 N. Y., 297; Gar- rison V. Howe, 17 N. Y., 458; Boughton v. Otis, 21 N. Y., 261.) A director cannot avail himself of a defense which would not be avail- able by the corporation. (Whitney Arms Co. v. Barlow, 63 N. Y., 62.) Whatever will defeat or abate an action against the corporation will be a defense to the ti-ustees or directors. (Jones v. Barlow, 62 N. Y., 202.) In defending an action the debt may be denied. (Adams v. Mills, 60 N. Y., 533; Rathbim v. Snow, 123 N. Y., 343; Alexander v. Cauldwell, 83 N. Y., 480.) The facts upon which the debt is founded must be proved. The nated admission of the corporation or judgment against the corporation are not evidence against the trustees. (Whitney Arms Co. v. Barlow, 63 N. Y., 62.) However, where a judgment for costs has been recovered against a cor- poration in an action for trespass brought by it, the judgment is a debt of the qorporation and is pnwia facie evidence of the existence of the debt; but, it seems, that in an action against a trustee to recover such a debt he may show that the recovery was either collusive or fraudulent (Allen V. Clark, 108 N. Y., 269, distinguishing Miller v. White, 50 N. Y., 137.) In an action to charge a trustee for a debt due from a corporation a Judgment, rendered on the merits in favor of the corporation in an action by the plaintiff to recover the same debt, may be Introduced in evidence and is conclusive against the plaintiff's right to recover. (Tyng v. Clarke, 9 Hun, 269.) The statute of limitations, though it may have barred creditors from suing the corporation, does not, after the corporation has suffered judg- ment without pleading the statute, bar a receiver from forthwith recover- ing against directors. (Van Cott v. Van Brunt, 2 Abb., N. C, 283.) § 31. Liability of officers for false certificates, reports or public notices. — If any certificate or report made or public notice given by the officers or directors of a stock corporation shall be false in any material representation, the officers and directors signing the same shall jointly and severally be personally liable to any person who has become a creditor or stockholder of the corporation upon the faith of any such certificate, repoi-t, notice or any material representation therein to the amount of the debt contracted upon the faith thereof if not paid when due, or of the damage sustained by any purchaser of or subscriber to its stock upon the faith 106 Altbhation ok Extension of Business. The Stock Corporation Law, § 32. thereof. The liability imposed by this section shall exist in all cases where the contents of any such certificate, report or notice or of any material representation therein shall have been communicated either directly or indirectly to the person so becoming a creditor or stockholder and he became such creditor or stockholder upon the faith thereof. No action can be maintained for a cause of action created by this section unless brought within two years from! the time the certificate, report or public notice shall have been made or given by the officers or directors of such corporation. (Former section 31, h. 1890, ch. 564, as amended by L. 1892, ch. 688.) As enacted in 1890 this section provided relief only to creditors for Injury caused by reliance upon false certificates and reports. The section as above amended, hovyever, extends the remedy to stockholders, defines the cases in which liability under the section exists and fixes a short statute of limitations within which the action must be brought. The term " directors," as used in this section, includes trustees, or other persons by whatever name known, duly appointed to manage the affairs of the corporation. (Gen. Corp. L., sec. 3, page 4.) This section being penal must be strictly construed. (Torbett v. Godwin, 62 Hun, 407; Veeder v. Baker, 83 N. Y., 156.) Untruthful representations which would have no effect upon the judg- ment or conduct of persons dealing with the corporation could not be held to be material. (Walton v. Godwin, 33 St. Rep., 889; id., 58 Hun, 87.) Officers signing a false report are liable only for debts contracted after the report was filed. (Torbett v. Godwin, 42 St. Rep., 323; 62 Hun, 407.) It is not necessary to show that the officers knew the certfficate or report to be false. (Huntington v. Attrill, 118 N. Y., 365; Torbett v. Baton, 113 N. Y., 623; 49 Hun, 209. But see, also, Bonnell v. Grlswold, 89 N. Y., 122; Same v. Same, 80 N. Y., 128; Lake Sup. I. Co. v. Drexel, 90 N. Y., 87; Pier v. Hanmore, 86 N. Y., 95; Butler v. Staley, 101 N. Y., 71.) In an action against a director a judgment against the corporation is neither conclusive nor prima facie evidence of the debt. (Torbett v. God- win, 62 Hun, 407; Brand v. Goodwin, 24 St. Rep., 305.) The action under this section abates upon the death of either party. (Brackett v. Griswold, 103 N. Y., 425; Blake v. Same, 104 N. Y., 613; W;hitaker v. Masterton, 104 N. Y., 280.) The penalty is recoverable by the assignee. (Pier v. George, 86 N. Y., 613; Torbett v. Godwin, 62 Hun, 407.) Only those who make the false report are liable. (Bonnell v. Griswold, 68 N. Y.,*294; Torbett v. Goodwin, 62 Hvm, 407.) The burden is placed upon the plaintiff of establishing that the cer- tificate filed was in point of fact false. (Ferguson v. Gill, 74 Hun, 566.) §32. Alteration or extension of business -^ Any stock corporation heretofore or hereafter organized under any general or special law of this state may extendi or alter its Sale of FEiNOHisE and Peopertt. 107 The Stock Corporation Law, § 33. business and powers so as to include any purposes and pow- ers wliich at the time of such extension may have been con- ferred by law upon corporations engaged in a business of the same general character, or which might be included in the certificate of incorporation of a corporation organ- izing under any general law of this state for a business of the same general character, by filing in the manner provided for the original certificate of incorporation an amended certificate, executed by a majority of its directors, stating the extension of business and powers and rights proposed, and that the same has been duly authorized by a vote of stockholders representing at least three-fifths of the capital stock, at a meeting of the stockholders called for the pur- pose in the manner provided in section forty-five of this chapter, and a copy of the proceedings of such meeting, verified by the affidavit of one of the directors present thereat, shall be filed with such amended certificate. (New, added by L. 1892, ch. 688.) For form of certificate, see post, form No. 44. By proceedings pursuant to the above section any stock corporation organized under the laws of this State may extend or alter its business and powers, so as to include any purpose or powers which, at the time of such extension, might properly be included in the certificate for the formation of a corporation of the same general character imder any general law. (People ex rel. Municipal Gas Co. v. Rice, 138 N. Y., 151. One of the additional powers which stock corporations may acquire by the filing of an amended certificate under the foregoing section is the power to exchange its stock for that of another corporation engaged in a business of the same general character. While this is In effect the merg- ing of the business and franchises of the two corporations, it may be done by an amendment to the certificate, thereby avoiding a resort to the provisions for the consolidation of corporations. (Id.) • §33. Sale of franchise and property. — A stock corpo- ration, except a railroad corporation and except as other- wise provided by law, with the consent of two-thirds of its stock, may sell and convey its property, rights, privileges and franchises, or any interest therein or any part thereof to a domestic corporation, engaged in a: business of the same general character, or which might be included in the certificate of incorporation of a corporation organizing under any general law of this state for a business of the same general character; and such sale and conveyance shall vest the rights, property and franchises thereby transferred lOS Bale of Feanchise and Pkoperty. The Stock Corporation Law, § 33. in the corporation to which they are conveyed for the term of its corporate existence, subject to the provisions and restrictions applicable to the corporation conveying them. Before such sale or conveyance shall be made such consent shall be obtained at a meeting of the stockholders called upon like notice as that required for an annual meeting. If any stockholder not voting in favor of such proposed sale or conveyance shall at such meeting, or within twenty days thereafter object to such sale, and demand payment for his stock, he may, within sixty days after such meeting, apply to the Supreme Court at any special term thereof held in the district in which the principal place of business of such corporation is situated, upon eight days notice to the corporation, for the appointment of three persons to appraise the value of such stock, and the court shall appoint three such appraisers, and designate the time and place of their proceedings as shall be deemed proper, and also direct the manner in which payment for such stock shall be made to such stockholder. The court may fill any vacancy in the board of appraisers occurring by refusal or neglect to serve or otherwise. The appraisers shall meet at the time and place designated, and they or any two of them, after being duly sworn honestly and faithfully to discharge their duties, shall estimate and certify the value of such stock at the time of such dissent, and deliver one copy to such corpora- tion, and another to such stockholder if demanded; the charges and expenses of the appraisers shall be paid by the corporation. When the corporation shall have paid the amount of such appraisal, as directed by the court, such stockholders shall cease to have any interest in such stock and in the corporate property of such corporation and such stock may be held or disposed of by such corporation. (New section, added by L. 1893, ch. 638.) For explanation of interval in numbering between section 33, supra, and section 40, infra, see the note immediately, preceding article 2 of tliis law. Issue and Teansfees of Stock. 109 The Stock Corporation Law, § 40. AETICLE III. Stock ; Stockholders, their Eights and Liabilities. Section 40. Issue and transfers of stock. 41. Subscriptions to stock. 42. Consideration for issue of stock and bonds. 43. Time of payment of subscriptions to stock. 44. Increase or reduction of capital stock. 45. Notice of meeting to increase or reduce capital stock. 46. Conduct of such meeting; certificate of increase or reduction. 47. Preferred and common stock. 48. Prohibited transfers to oflacers or stockholders. 49. Payment by stockholders of mortgage debt pending fore- closure . 50. Application to cotu-t to order issue of new in place of lost certificate of stock. 51 . Order of court upon such application. 52. Financial statement to stockholders. 53. Exhibition of books by transfer agent of foreign corporation. 54. Liabilities of stockholders. 55. Limitation of stockholder's liability. 56. Increase or reduction of number of shares. § 40. Issue and transfers of stock. — The stock of every stock corporation shall be represented by certificates pre- pared by the directors and signed by the president or vice- president and secretary or treasurer and sealed with the seal of the corporation, and shall be transferable in the manner prescribed in this chapter and in the by-laws. No share shall be transferable until all previous, calls thereon shall have been fully paid in. Any stock corporation, domestic or foreign, now existing or hereafter organized, except monied corporations, may purchase, acquire, hold and dispose of the stocks, bonds and other evidences of indebtedness of any corporation, domestic or foreign, and issue in exchange therefor its stock, bonds or other obligations if authorized so to do by a provision in the certificate of incorporation of such stock corporation, or in any certificate amendatory thereof or supplementary thereto, filed in pursuance of law, or if the corporation whose stock is so purchased, acquired, held or disposed of, is engaged in a business similar to that of such stock corpora- tion, or engaged in the manufacture, use or sale of the prop- erty, or in the construction or operation of works necessary 110 Issue and Transfers of Stock. The Stock Corporatiou Law, § 40. or useful in the business of such stock corporation, or in which or in connection with which the manufactured^ articles, product or property of such stock corporation are or may be used, or is a corporation with which such stock corporation is or may be authorized to consolidate. When any such corporation shall be a stockholder in any other corporation, as herein provided, its president or other oflcers shall be eligible to the office of director of such corporation, the same as if they were individually stockholders therein and the corporation holding such stock shall possess and exercise in respect thereof, all the rights, powers and privi- leges of individual owners or holders of such stock. Any stock corporation may, in pursuance of a unanimous vote of its stockholders voting at a special meeting called for that purpose by notice in writing signed by a majority of the directors of such corporation stating the time and place and object of the meeting, and served upon each stockholder appearing as such upon the books of the corpo- ration, personally or by mail at his last-known post-office address at least sixty days prior to such meeting, guarantee the bonds of any other domestic corporation engaged in the same general line of business. (Former section 40, L. 1890, ch. 564, as amended by L. 1892, ch. 688.) For form of certificate of stock, see post, form Xo. 45. For form of demand for transfer of certificate of stock, see post, form No. 46. For method of transferring stock, see section 29, ante. By the amendment of 1892 the provisions of former section 40 of this law and section 12 of the Business Corporations Law were consolidated and materially changed. This section now extends to corporations greater privileges in regard to holding bonds and stocks of other corporations than have heretofore been conferred by any law of this State. The pro- vision making an officer of one corporation eligible as a director in another is also new, likewise the last clause in the above section conferring authority to guarantee the bonds of any other domestic corporation engaged "in the same general line of business. Persons who are merely stockholders and hold no office in a corporation do not hold positions of trust or confidence toward each other, and one In accepting an offer to purchase his stock by another is under no obligation to volunteer the information that the company is insolvent. (Rothmiller v. Stein, 143 N. Y., 581.) A corporation may acquire by purchase all the stock of another corpora- tion, and yet the latter may continue a distinct and existing organization, with its own officers and board of directors. (Einstein v. Rochester Gas and Electric Co., 146 N. Y., 46.) ISSBE AND TeANSFEKS OF StOCK. Ill The Stock Corporatiou Law, § 40. A provision on the face of a certificate of stock that the shares therein referred to are held " subject to the conditions and stipulations contained In the articles of association above mentioned," Is sufficient notice to put a purchaser of the shares upon Inquiry to ascertain what thQ^ conditions and stipulations are; and in an action by the purchaser of such stock against the corporation to compel the transfer thereof to him upon the books of the corporation, he must either be presumed to have made such Inquiry and ascertained the rights of the corporation, or else he was guilty of such negligence as Is fatal to his clrflm to be treated as a bona fide purchaser of the stock. (Gibbs v. Long Island Bank, 83 Hun, 92.) The finding of a jury, upon conflicting evidence as to whether or not cer- tain representations as to the validity of certain stock certificates were made by the corporation, is conclusive. (Jarvis v. Manhattan Beach Co., 75 Hun, 100.) A bona fide holder of a certificate of stock which shows apparently all the requisites of genuineness is entitled to recognition as a stockholder if a new certificate can be Issued to him, or to Indemnity. (Id.) No presumption that a party is still a stockholder In a corporation arises by the production from the papers of the corporation of a conceled stock certificate, showing that the shdres represented thereby had been Issued to him, that he had signed a blank transfer on the back of the certificate, and that the certificate had come into the hands of the company and had been , canceled, without any proof that such transfer was obtained from him without consideration or by false representations. (Thompson v. Stanley, 73 Hun, 248.) The relation of stockholder Is not established by the mere production of a certificate of stock with a transfer purporting to be signed by the administrator of the person named on the face of such certifi- cate. (Id.) In an action against a corporation upon a guaranty of another corpora- tion's bonds an allegation In the complaint that the guaranty was made by defendant " having authority so to do," is one of fact and not a conclusion of law. (Bryce v. Louisville, N. A. and C. Ry. Co., 73 Hun, 288.) Where stock was purchased upon condition that a guaranty was to be given in respect thereto, but such guaranty was not delivered until several days after the purchase, It was held that the purchase of the stock and the • guaranty were parts of the same transaction, and t;hat the purchase of the stock was a sufficient consideration to sustain the guaranty. (Oppenheim v. Waterbury, 86 Hun, 122.) It has been repeatedly decided by the courts of this State, and by many others, that, unless expressly authorized by law, it is ultra' vires and contrary to public policy for any corporation to purchase the sto^ of another corporation. The Legislature of this State, however, has seen fit to make a radical change In the law, and, so long as the present statute remains in force, the courts must enforce It. ' (Oelbermann v. N. T. & Northern Ry. Co., 77 Hiin, 332.) • If the acts of a railroad company' in purchasing stock of another rail- road are ultra vires, the only persons who can object are stockholders of the former or the People of the State. Stockholders of the company whose stock is purchased are not entitled to. object. (Oelbermann v. N. Y. & Northern R. R. Co., 7 Misc. Rep., 852.) A corporation, being a stock- 112 Issue and Transfees of Stock. The stock Corporation Law, § 40. holder In another corporation, Is not debarred from purchasing the bonds of the latter. (Id.) When certificates of stock are transferable without restriction the cor- poration cannot discriminate and refuse to transfer certificates to a person who is hostile to it. (Rice v. Rockefeller, 134 N. J., 174.) When certificates of stock, regularly signed by the president and treas- urer of a corporation, bear the corporate seal and are regularly issued to the individuals named therein, who have indorsed thereon a blank assign- ment with power of attorney to execute a transfer, and such indorsements are witnessed, such certificates may be taken by lenders or purchasers without inquiry or other formality than that of delivery. (Knox v. Eden Musee Am. Co., Ltd., 74 Hun, 483.) The purchaser of certificates which contain a promise that new stock will not be issued without a surrender of such certificates is in the same position as a piu'chaser of a promissory note, payable to bearer, before the maturity thereof. (Id.) Choses in action generally pass by assignment, subject to equities. (Id.) The law of estoppel protects a purchaser of stock not only against the rights of previous holders thereof but against the claim of the corporation itself. (Id.. The owner of a certificate of stock indorsed by him in blank, which is subsequently wrongfully converted to the use of another, is estopped from asserting his title as against a bona fide purchaser. (Knox v. Eden Musee Am. Co., Ltd., 74 Hun, 483.) When officers of a corporation fail to obey a by-law which requires can- cellation of all certificates of stock sm-rendered before the issuing of new certificates, a person injm-ed thereby has the right to be indemnified by the corporation. (Knox v. Eden Musee Am. Co., Ltd., 74 Hun, 483.) When an agreement has been made with a person, as a stockholder, for his protection as such, and another succeeds to his stock, his successors or assigns become entitled to the protection which the contract gave to him. (Einstein v. Rochester Gas & Elec. Co., 77 Hun, 149.) When certificates of stock contain apparently all the essentials of gen- uineness a bona fide holder thereof has a claim to recognition as a stock holder. (Mut. Life Ins. Co. v. 42d. St. U. R. Co., 74 Hun, 505.) A corporation cannot purchase the stock of another corporation unless expressly authorized by law to make such purchase; but a corporation authoi'lzed to buy the stock of another corporation has the right to vote upon such stock. (Oelbermann v. N. Y. & Northern Ry. Co., 77 Hun, 332.) Section 40, supra, applies to railroad corporations, notwithstanding the provisions of sections 78 and 79 of the Railroad Law. (Id.) The vendor of stocks is the nominal owner thereof until a transfer of such stocks is made on the books of the corporation. Both vendor and vendee are liable to creditors. (Johnson v. Underbill, 52 N. Y., 203.) • A subscription to the certificate of incorporation with a statement of the number of shares opposite the name. Is a sufficient and binding subscrip- tion for the stock, and takes effect upon the filing of the certificate. (Phoenix W. Co. v. Badger, 67 N. Y., 294.) The relation of stockholder is established by the subscription and pay- ment, and does not depend upon the issue of a certificate or other evidence of such right by the corporation. (Rutter v. Kilpatrlck, 63 N. Y., 604.) Isstric AND Tkansfeks of Stock. 113 The Stock Corporation Law, § 40. The right , to sell shares is a personal one, and so Is the right to grant or withhold assent to change their relative value. (Campbell v. Am. Zylonite Co., 122 N. Y., 455; 34 St. Rep., 38.) A transfer of stock, valid' as between the parties, but not entered upon the books of the corporation, does not exempt the transferrer from lia- bility as a stockholder to the creditors of the corporation. (Shellington v. Howland, 53 N. Y., 371.) The certificate of stock is the muniment of the shareholder's title, and evidence of his right. (Kent v. Quicksilver M. Co., 78 N. Y., 180.) A stockholder may proceed against a corporation if it negligently can- cels his stock and issues certificates therefor to another. (St. Romes v. Levee Cotton Co., 127 U. S., 614.) This section is not violated by a transfer to a corporation of the stock of another corporation as a gift. (Frothingham v. Broadway & 7th Av. R. R. Co., 9 N. Y. Civ. Pro. Rep., 304; King v. Barnes, 113 N. Y.. 476.) The capital stock is the money contributed to the capital and is usually represented by shares issued to the subscribers to the stock on the initia- tion of the corporate enterprise. (Christensen v. Eno, 106 N. Y., 97; Burrall v. Bushwick R. R. Co., 75 N. Y., 211.) An agreement between stockholders not to sell, assign, pledge, or give power of attorney to vote, or agree to sell the stock respectively owned by the parties without the concurrent consent of all is void on its face. (In re Argus Co. v. Manning, 138 N. Y., 557; Fisher v. Bush, 35 Hun, 641; see also, Titus v. Prest, etc., G. W. Turnpike Road, 61 N. Y., 237.) Unless expressly authorized by law so to do, a corporation cannot pur- chase or deal in stocks of other corporations, but may take such stock in payment of a debt. (Holmes & G. Mfg. Co. v. Holmes & W. M. Co., 127 N. Y., 252; Milbank v. N. Y., L. B. & W. R. Co., 64 How., 20; Talmage V. Pell, 7 N. Y., 328; Kent v. Quicksilver M. Co., 78 N. Y., 159; Palmer v. Cypress H. Cem., 122 N. Y'., 429.) When a corporation sells the stock of another corporation it is entitled to recover the purchase price, although the original acquisition of such stock may have been illegal. (Sistare v. Best, 88 N. Y., 527; Holmes & G. Co. V. Holmes & Wessell Co., 53 Hun, 52; afC'd 127 N. Y., 252.) Remedies of a stockholder who is denied recognition as such. (King v. Barnes, 113 N. Y., 476; Robinson v. Nat. Bk., etc., 95 N. Y., 637; Cushman v. Thayer Mfg. Co., 76 N. Y., 365; Burrall v. Bushwick R. R. Co., 75 N. Y., 211; Hughes v. Vermont C. M. Co., 72 N. Y., 207; Ormsby v. Same, 56 N. Y., 623; Peckham v. Van Wagenen, 83 N. Y., 40.) A corporation may, with the consent of all its stockholders, sell its plant to another corporation and retire from business, taking payment in the stock of the other corporation. (Holmes & G. Mfg. Co. v. Holmes & W. Metal Co., 127 N. Y., 252.) But a transfer of its entire property is illegal as against creditors of the corporation. (Cola v. Millerton Iron Co., 133 N. Y., 164.) Where a board of directors appointed an executive committee, givlng- It no power to issue stock, and thereafter stock was issued by the president of the coi'poration under the authority of such committee and the board of directors neither authorized nor ratified such issue, no title was con- 114: Subscriptions to Stock. The Stock Corporation Law, § 41. ferred upon one who was not a purchaser in good faith for full value. (Eyder v. Bushwick R. R. Co., 134 N. Y., 83.) The capital stock of a corporation is personal property; it has not, nor has the certificate or other evidence of title or ownership, any of the quali- ties of commercial or negotiable paper. (Weaver v. Barden, 49 N. Y., 28G.) While certificates of stock do not possess, in full, the qualities of commercial paper, yet when the transfer indorsed thereon is signed in blank by the shareholder named therein, they become, in effect, so far as the public is concerned, as if they had been issued to bearer. (Fifth Ave. Bank v. Forty-second St. & Grand St. Ferry R. R. Co., 137 N. Y., 231.) A corporation will not be bound by representations made by its presi- dent and chief administrative officer as to the genuineness of a certificate of stock, when such officer was not engaged in the transaction of the busi- ness of, or in the discharge of any duty imposed upon him by the corpora- tion. (Manhattan Life Ins. Co. v. Forty-second St. & Grand St. Ferry R. R. Co., 139 N. Y., 146, dist'g Fifth Ave. Bank v. Same, 137 N. Y., 231.) But the rule which imposes a liability upon the principal for the unauthor- ized acts of his agent applies to a spurious, but apparently genuine, certificate of stock, wrongfully issued by a person who was at the time eeeretary, treasurer and transfer agent, and invested with authority to sign, countersign and seal valid certificates of stock, and who, when he Issued the certificate in question, was acting within the scope of his appar- ent authority. (Hellman v. Same, 74 Hun, 529.) A bona fide holder of such certificates has a claim to recognition as a stockholder, or to indem- nity. (Mutual Life Ins. Co. v. Same, 74 Hun, 505.) An agreement between stockholders not to sell, assign, pledge or give power of attorney to vote, or agree to sell the stock respectively owned by them, without the concurrent consent of all, is void on its face. (Fisher v. Bush, 35 Hun, 641; see, also, Titus v. Prest, etc., G. W. T. R., 61 N. Y., 237.) An agreement between the stockholders of a corporation that no one of them will sell, assign or dispose of his stock, without having first given the other parties an opportunity to purchase, does not preclude a party from transferring a legal title to his stock without the consent of the others, and in violation of the agreement, and this although the trans- feree was cognizant of the agreement, at the time of the transfer. (In re Argus Co. V. Manning, 138 N.Y., 557.) Enforcement of specific performance of such an agreement by a court of equity is in the discretion of the court; it may not be demanded as a right. (Id.) The fact that the transferee holds the stock, subject to enforcement of the equitable remedy, will not ■interfere with his legal title, nor does it preclude the corporation from According to him all the rights of a stockholder. (Id.) §41. Subscriptions to stock. — If the whole capital stock shall not have been subscribed at the time of filing the certifi- cate of incorporation, the directors named in the certificate may open books of subscription to fill up the capital stock in such places, and after giving such notices as they may StJBSOKIPTIONS TO StOCK. 115 The Stock Corporation Law, §41. .deem expedient, and may continue to receive subscriptions until the whole capital stock is subscribed. At the time of subscribing, every subscriber, whose subscription is payable in money, shall pay to the directors ten per centum upon the amount subscribed by him in cash, and no such subscription shall be received or taken without such payment. (Former section 41, L. 1890, ch. 564, as amended by L. 1892, eh. 688.) The amendment of 1892 consisted of the insertion of the words " whose subscription is payable in money " in the second sentence. In litigation between a corporation and one who has sold goods to it, where a counter-claim based upon a subscription to the stock of the corpo- ration is interposed, the contract to subscribe can only be enforced accord- ing to the terms thereof. (Elliott v. N. Y. Endowment Co., 73 Hun, 519.) The contract of subscription is to be deemed in writing where the subscrip- tion was accompanied by a letter stating that a certain amount would be paid in cash, and the balance by deducting a percentage from the sub- scriber's monthly accounts with the corporation; and in sucb case the counter-claim can only be maintained by proof of what the percentage on the monthly accounts amounted to. (Id.) This section does not prescribe how or where books of subscription shall be opened, or what kind of books shall be used. There may be one book or many. (B. & J. R. R. Co. v. GifCord, 87 N. Y., 294.) Subscriptions for stock may be made before the organization of the corporation, provided the ten per cent thereon is paid on a proper call thereafter. (Id.) An action cannot be maintained to recover the amount of stock sub- scribed unless ten per cent thereof is paid in cash at the time of the subscription. (Excelsior Grain Binder Co. v. Staj'ner, 25 Hun, 91; Perry V. Hoadley, 19 Abb. N. C, 76.) A check given in payment of the subscription, which check was counter- manded, is not sufficient. The payment must be in cash, or its actual equivalent. (Excelsior G. B. Co. v. Stayner, above; see, also, Durant v. Abendroth, 69 N. Y., 148.) A subscription after incorporation is not binding until at least ten per cent has been paid. (N, Y. & O. M. R. R. Co. v. Van Horn, 57 N. Y., 473; South Buffalo Natural Gas. Co. v. Bain, 9 Misc. R., 425, and cases therein cited. Actual payment of such percentage after subscription, with intent to complete the same, satisfies the statute. (Beach v. Smith, 80 N. Y., 116; B. R. & U. R. R. Co. v. Clarke, 25 N. Y., 208.) Such paymeut may be made In services rendered the corporation. (Id.; Veeder v. Mudgett, 95 N. y., 295.) Payment In patent-rights of unascertained value is not a compliance. (Tasker v. Wallace, 6 Daly, 364.) Notes given for the ten per cent upon which payment was afterwards enforced, satisfies the statute. (O. C. & R. R. R. Co. v. Wooley, I Keyes, 118.) Each subscription constitutes a separate and independent agreement. There can be no presumption that a person was induced to subscribe because another had done so. (Whittlesey v. Frantz, 74 N. Y., 456.) 116 CoNSinERATION FOR I&SDB OF StoCK AND BoNDS. The Stock Corporation Law, § 43. An agreement between parties about to form a corporation that the , capital stock is to be represented by property which they severally con- tribute, at a valuation fixed upon between themselves, is not Invalid. (Lorillard v. Clyde, S6 N. Y., S84.) Signing the certificate of incorporation and setting opposite thereto the number of shares to be taken Is a sufficient subscription for stock. (Phoenix Warehousing Co. v. Badger, G7 N. Y., 294; Buffalo, etc., v. Badger, 67 N. Y., 294; Dayton v. Borst, 31 N. Y., 435.) The corporation must be named as a party to the agreement of sub- scription foi-" shares. (Lake Ontario S. R. R. Co. v. Curtiss, 80 N. Y., 219.) No one can be made • a stockholder without his consent, express or Implied. (Glenn v. Garth, 133 N. Y., 18.) Bonds taken as a bonus on a stock subscription by the directors are not valid. (Duncomb v. N. Y., H. & N. R. R. Co., 84 N. Y., 190.) An agreement to take stock in a corporation to be thereafter formed, becomes binding upon the organization of the corporation and its accept- ance of the agreement. (Buffalo & J. R. R. Co. v. Clarke, 87 N. Y., 294; Buffalo & P. R. K. Co. v. Hatch, 20 N. Y., 157; Buffalo & N. Y. C. R. R. Co. V. Dudley,14 N. Y., 33G.) §42. Consideration for issue of stock and bonds. — No corporation shall issue either stock or bonds except for money, labor done or property actually received for the use and lawful purposes of such corporation. No such stock shall be issued for less than its par value. No such bonds shall be issued for less than the fair market- value thereof. (Former section 42, L. 1890, ch. 564, as amended by L. 1802, eh. 688.) As enacted In 1890 this section permitted the Issuance of stock at its " fair value." The amendment of 1892 changed the wording to " par value." The last paragraph relative to bonds is new. Corporations are not permitted to interpose the defense of usury; see ante, page 78. Where a part or the whole of the stock of a corporation has been paid for by the purchase of property at its fair value, the holder of stock thus paid for is not afterwards liable either for calls by the corporation or for claims against it. (Powers v. Knapp, 85 Hun, 38.) In the case of a ■corporation organized under chapter 40, Laws of l&iS, now repealed, the stock of which was issued for property, it was held that a creditor who tries to place individual liability upon stockholders must prove that the stock issued exceeded in amount the value of the property, and that the trustees deliberately overvalued the property, paying in stock for it an amount which they knew was in excess of its actual value. (White, Corbin & Co. v. Jones, 86 Hun, 57.) A corporation may issue its bonds at less than par. (Gamble v. Queens Co. Water Co., 123 N. Y., 01.) 'I'iME OF Payment of Sdbscriptions to Stock. 117 Tlie Stock Coi-poration Law, g 48. The repeal of the statute of usury, so far as regards corporations, operates to give validity to bonds negotiated at less than par (Id.; Ells- worth V. St. Louis, A. & T. R. R. Co., 98 N. Y., 553.) Gross and obvious over-valuation of property transferred to a corpora- tion for its stock at such valuation, is strong evidence of fraud in a suit to enforce personal liability against a stockholder by a creditor. (Coit v. Gold Amal. Co., 119 U. S., 343.) A corporation organized under Laws 1848, chapter 40, now repealed, may not issue its stoclc as full paid, in payment for property purchased at any- thing less than its par value. (Gamble v. Q. C. Water Co., 123 N. Y., 91.) The distinction in this respect between manufacturing and railroad cor- porations pointed out. (Id.; disting-uishing Van Cott v. Van Brunt, 82 N. Y., 535.) The fair value contemplated by this provision, is that of the property at the time of the transaction. (Huntington v. Attrill, 118 N. Y., 365; Hatch V. Same, Id., 383.) The application of an account for services rendered the corporation by a subscriber for original stock, is a payment in money within the meaning of this section. (Veeder v. Mudgett, 95 N. Y., 295.) The statute is not violated in respect to the issuance of stock in payment for property, unless persons acting in bad faith put a fictitious value upon the property for the purpose of evading the statute and defrauding others. (Van Vleet v. .Tones, 75 Hun, 340.) It would seem that the stock may be issued at less thdn the par value thereof, by directors of a company incorporated by a special act of the Legislature, where such act authorized them to issue the stock at sucii • time, and in such manner, and upon such terms as they shall deem proper, the only limitation being that at least ten per cent of the par value of the stock, at the time of the first subscription thereto, shall be paid into the treasury of the corporation in cash. (In re East River Bridge Co., 75 ilun, liy.) - §48. Time of payment of subscriptions to stock. — Sub- scriptions to the capital stock of a corporation shall be paid at such times and. in such installments as the board of directors may by resolution require. If default shall be made in the payment of any installment as required by such resolution, the board may declare the stock and all previous payments thereon forfeited for the use of the corporation, after the expiration of sixty days from the service on the defaulting stockholder, personally or by mail directed to him at his last-known post-ofl&ce address, of a written notice requiring him to make payment within sixty days from the service of the notice at a place specified therein, and Btating that, in case of failure to do so, his stock and all previous payments thereon will be forfeited for the use of the corporation. , 118 Time of Payment of Subsceiptions to Stock. The Stock Corporation Law, § 43. Such stock, if forfeited, may be reissued or subscriptions therefor may be received as iu the case of stock not issued or subscribed for. If not sold for its par value or subscribed for i\'ithin six months after such forfeiture, it shall be can- celed and deducted from the amount of the capital stock. If by such cancellation, the amount of the capital stock is reduced below the minimum required by law, the capital stock shall be increased to the required amount within three months thereafter or an action may be brought or proceed- ings instituted to close up the business of the corporation as, in the case of an insolvent corporation. If a receiver of the assets of the corporation has been appointed, all unpaid subscriptions to the stock shall be paid at such times and in such installments as the receiver or the court may direct. (Former section 43, L. 1890, ch. 564, as amended by L. 1802, ch. 688.) For form of subscription list, see post, form Ho. 47. The first paragraph Is a re-enactment of the whole of former section 43. The second paragraph, providing for reissue, sale or cancellation of forfeited stock, for proceedings to close up affairs of corporation, and for payment of subscriptions in case of receirership, was added by L. 1892, ch. 688. An order of the court directing the receiver of a corporation to collect it& outstanding assets authorizes an action by him, without a previous demand, to enforce payment of a subscription for stock. (Armstrong v. Danahy, 75 Hun, 405.) A person who has, by fraud, been induced to subscribe for the stock of a corporation, may bring an equitable action for a rescission of the con- tract, a cancellation of his subscription, and the removal of his name from the books of the corporation. (Bosley v. Nat'l. Mach. Co., 123 N. Y., 550.) The statute of limitations does not commence to run against the 'action until after discovery of the fraud. (Id.) A secret agreement of a corporation, with certain of its subscribers, whereby they are to have some advantage not common to all the stock- holders, or be released from payment of the stock, is no defense to an action brought to collect the subscription of one who was not promised the same advantages. (Ai'mstrong, etc., v. Danahy, 75 Hun, 405.) Such secret agi-eements are void. (Id.) A corporation, when formed, may enforce payment of the subscriptions to its capital stock against persons who subscribed its articles of asso- ciation before the corporate body had a legal existence. (Dorris v. French, 4 Hun, 292; Buffalo & N. Y. G. R. R. Co. v. Dudley, 14 N. Y., 336; Troy & Boston R. R. Co. v. Tibbitts, 18 Barb., 297.) When stock is declared forfeited, the liability of the holder thereof to the corporation for further payment thereon ceases. (Mills v. Stewart, 41 N. Y., 389; Small v. Herkimer Mfg. Co., 2 N. Y., 330.) Inckkask or Reduction by Capital Stock. 119 The Stock Corporation Law, § 44. The remedy by forfeiture is merely cumulative, and does not prevent an action for the installments until the forfeitm-e is resorted to. (Troy & Boston R. R. Co. v. Tibbitts, 18 Barb., 297; Northern R. R. Co. v. Miller, 10 Barb., 260; O., R. & C. R. R. Co. v. Frost, 21 Barb., 541; B. & N. Y. C. R. R. Co. V. Dudley, 14 N. Y., 336; Mann v. Currle, 2 Barb., 294.) Alter a forfeiture, the holder Is divested of his title in the shares, which is then vested in the corporation and remaining stockholders. (Weeks v. Silver Islet O. M. & L. Co., 54 J. & S., 1; afC'd, 120 N. Y., 620.) When actions cannot be maintained for amounts unpaid on stock. (Christensea v. Eno, 106 N. Y., 97; Zel. M. Co. v. Meyer, 28 St. Rep., 759; Williams v. Taylor, 120 N. Y., 244.) One who has made an absolute transfer of stock, in good faith, to another, is thereby released from fmrther liability upon calls for payment of the stock. (Billings v. Robinson, 94 N. Y., 415; Cutting v." Damerel, 88 N. Y., 410.> When stock has been transferred as full paid, in good faith, to pay a contractor, the certificate does not render the holder liable to pay for the stock. (Van Cott v. Van Brunt, 82 N. Y., 535.) When the stockholders and contractors are the same persons, and the directors were interested in the contractor's work, it will not avail a third person to complain, where all the stockholders participated. (Barr v. N. Y., L. B. & W. R. R. Co., 125 N. Y., 263; see, also. Gamble v. Queens Co. W. Co., 123 N. Y., 263.) After consolidation, a person who had previously subscribed for stock of one of the constituent corporations, and paid only ten per cent upon the game, is not entitled to full paid stock. (Babcock v. S. & L. V. B. R. Co., 133 N. Y., 420; id., 39 St. Rep., 506.) Each subscription constitutes a separate and independent agreement. Effect of release of one of the subscribers from his obligation to pay for stock considered in Whittlesey v. Frantz, 74 N. Y., 456. A transfer upon the books renders the transferee liable, although ho holds the stock as collateral security for a debt. (Roosevelt v. Brown, 11 N. Y., 148; Cutting v. Damerel, 88 N. Y., 410.) No contract to pay any further sum for stock than that required upon the original subscription is to be impUed from such subscription. (Sey- mour V. Sturges, 26 N. Y., 134.) A subscriber failing to pay as required by the terms of his subscription, is properly chargeable with interest from the time of the default, and cannot compel the corporation to issue the stock until both the principal and interest are paid. (Gould v. Town of Oneonta, 71 N. Y., 298.) § 44. Increase or reduction of capital stock.— Any domes- tic corporation may increase or reduce its capital stock in the manner herein provided, but not above the maximum or below the minimum, if any, prescribed by law. If increased, the holders of the additional stock issued shall be subject to the same liabilities with respect thereto ds are provided by law in relation to the original capital; if reduced, the 120 Inceeask or Reduction^ of Capital Stock. The Stock Corporation Law, § 44. amount of its debts and liabilities shall not exceed the amount of its reduced capital, unless an insurance corpora- tion, in which case the amount of its debts and liabilities shall not exceed the amount of its reduced capital and other assets. The owner of any stock shall not be relieved from any liability existing prior to the reduction of the capital stock of any stock corporation. If a banking corporation, whether the capital be increased or reduced, its assets shall at least be equal to its debts and liabilities and the capital stock, as increased or reduced. (Former section 44, L. 1890, eh. 564, as amenaed by L. 1892, ch. 688, and L. 1894, cli. 346.> For form of certijicale of increase or reduction of capital stocJi, see post, form No. 48. The capital stock of a corporation cannot be increased except in the manner prescribed by statute. There is no such thing as an implied author- ity to increase or diminish the capital stock of a company. (Einstein v. Rochester Gas and Electric Co., 146 N. Y., 46.) When three corporations consolidate and purchase a majority of the stock of a fourth coi-poration, exchanging five shares for each one of the latter and the latter continues its separate organization, the transaction does not amount to an increase of the capital stock of such fourth corpora- tion. (Einstein v. Rochester Gas and Electric Co., 77 Hun, 149.) An agreement for the transfer of property to a corporation for forty-eight per cent of its stock contained a provision that, in case of an increase of its capital stock otherwise than for cash, the transferror, his successors and assigns should receive forty-eight per cent of the issue, and in case ■of an increase for cash he or his assigns should have the right to sub- scribe to such increase In the first instance on the same terms as the other stockholders. Held, that this was only to preserve his rights as a stock- holder and enables him and the assignees of his stock to have a pro rata flhare of the stock, and is not available to an assignee of the contract who Is not a stockholder. (Einstein v. Rochester Gas and Electric Co., 77 Hun, 149.) A consent given by such transferror to an increase of the capital stock without the receipt of his proportionate share would operate to change the rate in case of a subsequent increase. (Id.) The amount of capital stock may be reduced before it has been actually paid in. The reduced amount may still exceed the sum actually paid in. In such case the stockholders must pay It in after the reduction. (Strong V. Brooklyn C. T. R. R. Co., 93 N. Y., 426.) There can be no surplus for distribution in such case. (Id.) Upon an Increase of capital stock, the provisions of section 54 of this law, apply only to such increased capital. (Veeder v. Mudgett, 95 N. Y., 295; see, also, Cuykendall v. Douglas, 19 Hun, 577.) . It seems that a reduction of capital stock does not authorize the dis- tribution among stockholders of a sum equal to the difference between the Notice of Meeting to Inoekase or Reduce Stock. 121 The Stock Corporation Law, i~§ 45, 46. original and reduced amount, unless the corporation lias on band actual ■capital for payment of debts, exceeding the amount to which it has reduced its stock. (Strong v. Brooklyn Cross-Town R. R. Co., 93 N. Y., 426.) A corporation has no implied authority to increase or reduce its capital stock. (Sutherland v. Olcott, 95 N! Y., 100.) In disposing of the increased capital stock, the managing board are to be considered as trustees for holders of the original stock, and must so dis- pose of the increase that as much yalue as possible shall be retMned to the corporation for its business purposes. (Williams v. W. U. Tel. Co., 9 Abb. N. C, 419; 93 N. Y., 162.) The term " capital stock " means the property of the corporation contributed by the stockholders or otherwise •obtained, to the extent required by its charter (or certificate of incorpora- tion). Property in excess otf that limit is surplus, which may be divided either in money or property, or in a " scrip dividend," provided an increase of the share capital has been lawfully authorized. (Id.) § 4.'). Notice of meeting to increase or reduce capital .stock. — Every such increase or reduction must be authorized by a vote of the stockholders owning at least a majority of the stock of the corporation, taken at a meeting of the stock- holders specially called for that purpose. Notice of the meeting, stating the time, place and object, and the amount of the increase or reduction purposed, signed by a majority ■of the directors, shall be published once a week, for at least two successive weeks, in a newspaper in the county where its principal business office is located, if any is published therein, and a copy of such notice shall be personally served upon or duly mailed to each stockholder or member at his last-known post-office address at least three weeks before the meeting. (Former section 45, L. 1890, ch. 564, as amended by L. 1892, ch. 688, -and L. 1893, ch. 700.) For form of notice, see post, form No. 49. Prior to the amendment of 1893, the affirmative vote of stockholders owning at least two-thirds of the stock, was required in order to authorize &n increase or reduction. The book of minutes of the corporation and the certificate showing that the requisite number appeared in person or by proxy and voted for, an Increase of stock, established, in the absence of evidence that due notice of the meeting was not given to the stockholders, that the stock was increased at a regularly assembled meeting of stockholders. (Cuykendall V. Douglas, 19 Hun, 577.) § 46. Conduct of such meeting ; certificate of increase or reduction. — Ir', at the time and place specified in the notice, the stockholders shall appear in person or by proxy, in num- 1"2^ Conduct of Such Meeting. The Stock Corporation Law, § 46. bers representing at least a majority of all the shares of stock, they shall organize by choosing from their number a chairman and secretary, and take a vote of those present in person or by proxy, and if a sufficient number of votes shall be given in favor of such increase or reduction, a cer- tificate of the proceedings showing a compliance with the provisions of this chapter, the amount of capital actually paid in, the whole amount of debts and liabilities of the corporation, and the amount of the increased or reduced capital stock, shall be made, signed, verified and acknowl- edged by the chairman and secretary of the meeting and filed in the office of the clerk of the -county where its prin- cipal place of business shall be located, and a duplicate thereof in the office of the secretary of state. In case of a reduction of the capital stock except of a railroad corpora- tion, or a monied corporation, such certificate shall have indorsed thereon the approval of the comptroller, to the effect that the reduced capital is sufficient for the proper purposes of the corporation, and is in excess of its debts and liabilities, and in case of the increase, or reduction of the capital stock of a railroad corporation, or a monied corpora- tion, the certificate shall have indorsed thereon the approval of the board of railroad commissioners, if a railroad corpo- ration; of the superintendent of banks, if a corporation formed under or subject to the banking law; and of the superintendent of insurance, if an insurance corporation. When the certificate herein provided for has been filed, the capital stock of such corporation shall be increased or reduced, as the case may be, to the amount specified in such certificate. The proceedings of the meeting at which such increase or reduction is voted, shall be entered upon the minutes of the corporation. If the capital stock is reduced, the amount of capital over and above the amount of the reduced capital shall be returned to the stockholders pro rata at such times and in such manner as the directors shall determine. (Former section 46, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and L. 1893, ch. 700.) For forms under thin section, see post, forms Nos. 48, 49, 50. It seems tliat the approval of the Comptroller is not necessary in the case of a corporation organized prior to 1878. (People ex rel. Eden Musee V. Carr, 30 Hun, 488; affd. 100 N. T., 641.) Pekfeeekd and Common Stock. 123 The Stock Corporation Law, § 47. § 47. Preferred and common stock, — Every domestic stock corporation may have preferred and common stock, and dif- ferent classes of preferred stock, if the certificate of incor- poration so provides or by tke unanimous consent of the stockholders, and may, upon the written request of the holder of any preferred stock, by a two-thirds vote of its directors, exchange the same for common stock, and issue certificates for common stock therefor, share for share, or upon such other valuation as may have been agreed upon in the scheme for the organization of such corporation, or the issue of such preferred stock, but the total amount of such capital stock shall, not be increased thereby. (Former section 47, L. 1890, ch. 564, as amended by L. 1892, ch. 688.) Vor form of certificate of preferred stock, see •post, form No. 51. For form of consent authorizing issue of 'preferred stock, see post, form No. 52. This section appears to be defective. It should provide for the filing of a certificate when the stock is classified imder the foregoing provisions; for example, if a certificate of incorporation has been filed describing' the stock as common, and thereafter, pursuant to this section, the stock is divided into common and preferred, the same reason which makes it desirable to describe the stock in the certificate of incorporation would also require the filing of a certificate giving notice of a change in the description of the stock. It is, therefore suggested, that whenever unani- mous consent is given for the issue of preferred stock a certificate be prepared and presented for filing in the office of the Secretary of State and county clerk. The foregoing section as enacted in 1890 provided merely for an exchange of prefen-ed for common stock, being a substantial re-enactment of the provisions of L. 1890, ch. 225, now repealed. As above amended, however, the section not only authorizes classification of stock into common and preferrred, but also different classes of preferred stock. The right of evei? shareholder to his proportion of the profits is a vested individual right, and in the absence of some power conferred by statute or by the articles of association to change the relative value of shares by giving some preference over others, as to dividends, the power cannot be implied, and no such change can be made without unanimoue consent. (Campbell v. American Zylonite Co., 122 N. Y., 455, reversing 23 J. & S., 562.) Neither a corporate body, nor a majority of its stockholders, has power to provide in by-laws for the creation of preferred stock, so as to bind a minority of the stockholders not assenting thereto. (Kent v. Quicksilver M. Co., 78 N. Y., 159.) The holding and owning of a share of common stock gives a right which cannot be divested without the assent of the owner, and holder, or unless , the power so to do has been reserved in some way. (Mech. Bank v. N. Y. & N. H. K. R. Co., 13 N. Y., 599.) 124 Feohibited Transfers to Officers ok Siockholduks. The Stock Corporal ion Law, § 18 The vested right of a holder of common stock cannot be talsen from him without his consent. (Hayes v. Commonwealth, 82 Penn. St. Rep., 518.) By acquiring an interest in the corporation a stockholder enters into an obligation with it in the nature of a special contract, the terms of which are limited by the specific provisions, rights and liabilities detailed in the act of incorporation. To make a valid change in this private conti-act, as in any other, the assent of both parties is indispensable. (Everhart v. Phila. & W. Chester R. R. Co., 28 Penn. St. Rep., 352.) Whilst these principles are unquestionable, yet modifications and improvements in the charter, useful to the public and beneficial to the coi-poration, and in accordance with what was the understanding of the subscribers as to the real object to be effected, do not impair the contract of subscrip- tion. (Id.) § 48. ProMbited transfers to oflSLcers or stockholders. — No corporation which shall have refused to pay any of its notes or other obligations when due, in lawful money of the United States, nor any of its ofiicers or directors, shall transfer any of its property to any of its officers, directors or stock- holders, directly or indirectlj'', for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the cor- poration is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation shall be valid. Every person receiving by means of any such prohibited act or deed any property of the corporation shall be bound to account therefor to its creditors or stockholders or other trustees. No stockholder of any such corporation shall make any transfer or assignment of his stock therein to any person in contemplation of its insolvency. Every transfer or assign- ment or other act done in violation of the foregoing provis- ions of this section shall be void. No conveyance, assignment or transfer of any property of a corporation formed under or subject to the banking law, exceeding in value one thousand dollars shall be made by such corporation, or by any officer or director thereof, unless authorized by a previous resolution of its board of directors, except promissory notes or other evidences of debt Prohibited Teanspkrs ib Officers or Stookholdkrs. 125 The Stock Corporation Law, § 48. issued or received by the officers of the corporation in the transaction of its ordinary business and except payments in specie or other current money or in banlc bills made by such officers. No such conveyance, assignment or transfer shall be void in the hands of a purchaser for a valuable con- sideration without notice. Every director or officer of a corporation who shall violate or be concerned in violating any provision of this section, shall be personally liable to the creditors and stockholders of the corporation of which he shall be director or an officer to the full extent of any loss they may respectively sustain by such violation. (Former section 48, L. 1890, ch. 564, as amended by L. 1892, ch. 688.) The last four paragraphs of this section were added in 1892, and the first paragraph was changed in phraseology. The first part of section 48 absolutely prohibits the transfer pf any cor- porate property to an officer, director or stockholder of a corporation, which shall have refused to pay any of its obligations when due, upon any other consideration than the full value of the property paid in cash. That por- tion of the section contemplates the prevention of preferences to a particu- lar creditor or creditors of a corporation which is insolvent or the insolvency of which is Imminent. It does not declare invalid all transfers of property on payments made to creditors of ^n insolvent corporation, but only such as are made with the intent of giving a preference to one creditor over another. (Milbank v. De Riesthal, 82 Hun, 537.) While the statute seeks to restrain the action of the corporation, its officers, directors and stock- holders, yet the consequences of action on their part in contravention of the statute, is visited upon the creditor whose preference is attempted by them. However, it does not attempt to restrain creditors from pursuing the remedies which the law affords to satisfy their claims. (Id.) A judgment against a corporation is invalidated if the corporation suffers it to be taken with the intent of giving a preference to such creditor. (Id.) Where, in the regular course of legal proceedings, the officers of a cor- poration permit a creditor to obtain judgment against It, this is not a trans- fer or assignment of Its property within the meaning of the above provis- ion. (French, as Receiver, etc., v. Andrews, 145 N. Y., 441.) Where judgments were suffered to be recovered, and the purpose of recovering them was to give the judgment creditors of the corporation preference over other creditors, it is doubtful whether the levying upon the property of the corporation by virtue of executions upon such judgments was receiving the property of the corporation by means of any act pro- hibited by this section. (Matter of Gardner, a stockholder of the Walker Tailoring Co., 86 Hun, 30.) The foregoing section refers solely to domestic corporations. (Vander- poel V. Gorman, 140 N. Y., 563; Worthlngton v. Pfister Bookbinding Co., 3 Misc. E., 418.) Assignment for the benefit of creditors, made in this 126 Feohibited Transfees to Offioees ok Stockholders. The St ance corporations, railroad corporations (see the Railroad Law), and ferry, navigation, stage coach, tramway, pipe-line, gas and electric light, water- works, telegraph and telephone, turnpike, plank-road and bridge corpora- tions. (See the Transportation Corporations Law.) Incorporators.— By the amendment of 1892 the minimum number of Incorporators was changed so that three persons are now permitted to form the corporation. This is in accord with the former practice under the Manufacturing Act of 1848 (now repealed). All the incorporators must be* of full age, and at least two-thirds of them must be citizens of the United States and at least one of them a resident of this State. Only natural persons can become incorporators. (General Corporation Law, section 4.) Corporations, co-partnerships and persons acting in a representative capa- city, are, therefore, excluded from acting as incorporators. Corporate Name. — The name to be adopted for a corporation must not be the same nor similar to that of any other domestic corporation, and it must not contain the word bank, insurance, indemnity, guarantee or benefit. (General Corporation Law, Section 6.) In selecting a corporate title, if desired, an individual name, or the name of a co-partnership, to whose business the new corporation succeeds, may be used. At any time after Incorporation the name may be changed by proper proceedings. (See Code Civil Procedure, sections 2410-17, ante, pages 11-15.) In the formation of a corporation with the liability of the stockholders limited it is unnecessary to use the word " limited " as a part of the corporate title. (See " Liabili- ties of Stockholders," Stock Corporation Law, section 54.) Objects. — The purpose or purposes for which the corporation is to be formed should be clearly and fully stated and must be within the scope of the law. If found necessary, after incorporation, the business or powers may be extended or altered. (See the Stock Corporation Law, section 32.) Capital Stock.— Subdivision 3 of the foregoing section is complied with by stating the amount of the capital stock, if all the stock is to be of one class ; but if any portion is to be preferred stock the amount thereof and the nature of the preferences must be set forth. Corporations formed under this law are permitted to have both preferred and common stock, and dif- ferent classes of preferred stock, if the certificate of incorporation so pro- vides, or to make preferred issues after incorporation by the unanimous consent of the stockholders. (Stock Corporation Law, section 47.) No maximum or minimum limits as to the amount of the capital stock are prescribed, except that it shall not be less than five hundred dollars; for, it is to be noted, that the certificate of incorporation must state the amount of capital, not less than five hundred dollars, with which the corporation will begin business, and the amount so stated must be paid in in money or property before the corporation is permitted to incur any debts. (See section 3.) This requirement was added by the amendment of 1895, which at the same time eliminated the then existing provision requiring half the capital stock to be subscribed before the corporation could begin busi- ness. As now amended the statute permits the new coiporatlon to begin business and incur debts when the amount of capital, with which the cer- Incoepoeation. 139 The Business Corporations Law, § 3. tificate states it will begin business, sball have been paid in in money or property. Shares of Stock.— The par value of thei shares of stock must not be less than five dollars nor more than one hundred dollars each. The par value of the shares may be increased or reduced after incorporation, if deemed desirable, without changing the amount of the capital stock. (See the Stock Corporation Law, section 56.) After stating the number of shares of which the capital stock shall consist, the certificate should state a defi- nite sum as the amount of capital with which the corporation will begin business. Principal Business Ofiice.— The name of the city, village or town in which the principal office of the corporation is to be located must be stated in the certificate. There is at present no provision authorizing a change of the location of the pi-incipal business office in case it should be found desirable to make such change after incorporation. Duration.— Formerly the maximum term of existence for which a cor- poration might, be formed under this law was fifty years, but by the amendment of 1895 the maximum limitation was stricken out, so that now the duration, although required to, be definitely stated for some particular term, may be fixed for a greater or a less period than fifty years. The term of existence of a corporation may be extended at any time within three years before the expiration thereof. (Sea the General Corporation Law, section 32.) Directors. — The maximum number of directors is thirteen, and the mini- mum number three, the latter having been changed from five by the amendment of 1892. At least two of the directors must be residents of the State of New York. (General Corporation Law, section 29.) Prior to the amendment of 1895 directors were required to be stockholders to the extent of at least five shares each, but that requirement was eliminated , by said amendment of 1895. The Stock Corporation Law, section 20, provides that " if a director shall cease to be a stockholder his office shall become vacant." It would, therefore, appear that each director should, after the formation of the corporation, become a holder of one or more shares. (Chemical Nat. Bk. v. Colwell, 132 N. Y., 250.) It has, however, been held under laws now repealed, that the directors named for the first year may act as such without being stockholders. (McDowell v. Sheehan, 129 N. Y., 200; Welch v. I. and T. Nat. Bk., 122 N. Y., 177; Davidson v. Westchester Gas Lt. Co., 99 N. Y., 558; Craw v. Easterly, 4 Lans., 513.) In the latter cases the corporations were attacked collaterally, and it has been held that while collateral attacks against a corporation for non-compliance with a statute might be unsuccessful, yet in a direct proceeding against it on the part of the State by the Attorney-General it could be dis- solved. (Buffalo and Allegany R. R. Co. v. Gary, 26 N. Y., 75 ; Buck v. Barker, 5 St. Rep., 826.) Vacancies in the board of directors are to be filled in the manner prescribed in the by-laws. (Stock Corporation Law, section 20.) Whenever desirable after incorporation the number of directors may be changed. (Stock Corporation Law, section 21.) Subscribers.— The post-office addresses of the subscribers to the certifi- cate of incorporation are required to be set forth and a statement of the 140 Inoorpoeation. The Business Corporations Law, § 2. number of shares of stock each agrees to take in the corporation. There Is no provision requiring any fixed proportion of the stock to be subscribed for at the time of forming the corporation. Additional Powers.— The last sentence of subdivision 9 in section 2 was added in 1892. It permits a corporation organizing under this law to insert in its certificate of incorporation any limitation upon its powers, and upon the powers of its directors and stockholders which does not exempt them from obligations and duties imposed by law. If desired the certificate may provide for cumulative voting at elections of direc- tors (See General Corporation Law, section 20) j and reserve the right to acquire, hold and dispose of the stocks and bonds of any other corporation (Stock Corporation Law, section 40); and authorize the issue of different classes of preferred stock (Stock Corporation Law, section 47). Liability of Stockholders.— The liability of stockholders of corporations formed under this law is regulated by the Stock Corporation Law, sees. 54 and 55. It will thus be seen that such corporations are what were formerly termed " limited liability companies," without making any statement to that effect in the certificate, and without using the word " limited " as a part of the corporate title. A full liability corpora- tion can be formed under this law only by stating affirmatively that It is to be a full liability corporation. (See sec. 6 of this law.) Filing and Recording. — The certificate of incorporation must be filed and recorded in the office of the secretary of state, and a copy of such certificate duly certified by the Secretary of State, or a duplicate original certificate, must be filed and recorded in the office of the clerk of the county in which the office of the corporation is to be located. (General Corporation Law, section 5, page 7.) If a certifi- cate is to be recorded in a coimty other than the one where it is executed, the county clerk's certificate should be attached,, authenti- cating the act of the notary, justice of the peace, or commissioner of deeds taking the acknowledgment. The Secretary of State does not require such county clerk's certificate as to an acknowledgment taken within the State before a person duly authorized to take the same, but an acknowledgment or affidavit taken by a notary public in another State must be authenticated by the county clerk. Fees.— The fees in the office of Secretary of State are: Filing, $10; recording, 15 cents a folio; fees in the county clerk's office : Filing, six cents; recording, ten cents per folio. In addition to such payments an organization tax of one-eighth of one per cent upon the capital stock must be paid to the State Treasurer before the certificates can be filed. For text of the statutes regulating these payments, and information rela- tive to remittances, see pages 70-72. Where there was a colorable compliance with the requirements of a statute under which a company might lawfully have been incorporated, and a defect existed in the omission to comply with some one particular requirement, and there had been for many years user by the company of the corporate rights and franchises which were claimed to have been conferred upon it, and which it assumed to exercise, the company became, by reason of such organization with color of law and such exercise of corporate fran- chises, a. corporation de facto. (Lamming v. Galusha, 81 Hun, 247.) Hesteiotions ; Ke-oeganization of Existing Coepokations. 141 The Business Corporations Law, § 3, 4. § 3. Restrictions upon commencement of business. — No such corporation shall incur any debts until the amount of capital specified in its certificate of incorporation, as the amount of capital with which it will begin business, shall have been paid in in money or property. (Former section 3, L. 1890, eh. 567, as amended by L. 1892, ch. 691, and L. 1895, ch. 671.) The last amendment tools effect May 14, 1895. Prior thereto this section prohibited a corporation from transacting business until it had filed a cer- tificate to the effect that half the , capital stock had been subscribed. As now amended the section does not provide for the filing of any certificate, but permits the corporation to commence business when the amount of capital with which it intends to begin business, as stated in its certificate of incor- poration, shall have been paid in in money or property. By-laws of corporations now formed under this law are not required to . be filed in any public office. One-half of the capital stock of a corporation organized under this law must be paid in within one year from its incorporation. (See section 5, and notes thereunder.) § 4. Reorganization of existing corporations. — Any stock corporation heretofore organized, except a moneyed or trans- portation corporation, or a corporation the business of which partakes of the nature of banking or insurance, ^may rein- corporate under this chapter in the following manner : The' directors of the corporation shall call a meeting of the stock- holders thereof by publishing a notice, stating the time, place and object of the meeting, signed by at least a major- ity of them, in a newspaper of the county in which its prin- cipal business office is situated, once a week, for, at least, three successive weeks, and by serving upon each stock- holder, at least three weeks before the meeting, a copy of such notice either personally or by depositing it in the post- office, postage prepaid, addressed to him at his last-known post-office address. The stockholders shall meet at the time and place specified in the notice and organize by choosing one of the directors chairman, and a suitable secretary, and shall then take a vote of those present in person or by proxy upon the proposition to reincorporate under this chapter, and if votes representing a majority of all the stock of the corporation shall be cast in favor of the proposition, the officers of the meeting shall execute and acknowledge a cer- tificate of the proceedings, which certificate shall also con- 142 Payment of Capital Stock. The Business Covpoi'ations Law, § 5, tain the statements required by section two of this chapter, and shall be filed in the offices where certificates of incor- poration under this chapter are required to be filed. From the time of such filing such corporation shall be deemed to be a corporation organized under this chapter, and if origi- nally organized or incorporated under a general law of this State it shall have and exercise all such rights and fran- chises as it has heretofore had and exercised under the laws pursuant to which it was orginally incorporated, and such reorganization shall not in any way affect, change or dimin- ish the existing liabilities of the corporation, (Former section 5, L. 1890, ch. 567, as amended by L. 1892, ch. 691, and L. 1895, ch. 671.) For form of certificate, see post, form No. 57. Slight verbal changes were made In this section by the amendment of 1895, and a provision requiring the filing of by-laws was striclien out. The business corporation act of 1875, ch. 611, now repealed, contained provisions substantially the same as the foregoing. It is difllcult to conceive of a case where any advantage would accrue to any existing corporation by reorganization under this section. Corpo- rations formed under laws now repealed are not compelled to reorganize, such corporations being governed by the new laws, into which the corpo- ration laws repealed are merged. (Close v. Potter, 2 Misc., R., 1.) The language of this section is merely permissive; it is, therefore, optional with the stockholders whether they will reorganize or not. (Id.) Upon reorganization the tax of one-eighth per cent is payable. (Matter of N. Y. & Suburban Inv. Co., 16 N. Y. Supp., 213; Id., 40 St. Rep., 139.) For the mode of procedure In reorganizing when the property and fran- chises of a domestic stock corporation have been sold by virtue of a mort- gage or judgment, see the Stock Corporation Law, Sections 3, 4, 5, 6. It became necessary by the amendatory legislation of 1892, ch. 691, to re-number all the sections of this law, except the first three, either by reason of the elimination of the provisions of the then existing sections or their transfer to other laws. For example, the former section 4 of this law as enacted in 1890, ch. 567, regulated the manner of adopting by-laws and to a certain extent the terms of the same. These regula- tions were eliminated by the amendments of 1892, so that now the only provisions as to by-laws are embodied in the General Corporation Law, sections 11 and 29. §5. Payment of capital stock, — One-half of the capital stock of every such corporation shall be paid in within one year from its incorporation, or the corporation shall be dis- solved, and the directors, within thirty days after such payment shall make a certificate of the fact of such pay- Payment of Capital Stock. 143 The Business Corporations Law, § 5. ment, which shall be signed and acknowledged by a majority of the directors, and verified by the president or vice-president and secretary or treasurer, and filed in the offices where the certificates of incorporation are filed. The dissolution of any such corporation for any cause shall not take away or impair any remedy against it, its stockholders or officers, for any liabilities incurred previous to its dis- solution. (Former section 6, L. 1890, ch. 567, as amended by L. 1892, ch. 691.) Fm' form of certificate, see ^lost, form No. 58. This section provides that a certificate be filed when one-half the capital stock has been paid in. The certificate of full payment of capital stock heretofore required is no longer necessary, and no time is now prescribed by statute within which the entire capital stock shall be paid in. (See Stock Corporation Law, section 54, and notes thereunder.) The board of directors may fix the time for the payment of subscriptions to the capital stock. (Stock Corporation Law, section 43.) The certificate of incorporation under section 2 of this law, and the certificate required by the foregoing section are frequently presented simultaneoiisly at the office of the Secretary of State for filing and record- ing. In such cases the last mentioned certificate has been rejected upon the ground that there could be no corporation, and consequently no presi- dent, vice-president, treasurer or seci'etary of a cA'poration, to properly execute said certificate until after the filing of the certificates of incor- poration pursuant to said section 2. Although the last sentence of the foregoing section was inserted in con- nection with a provision made for the event of a failure to pay in capital stock, yet it cannot be qualified by what precedes it and reaches beyond the contingency of the particular dissolution previously referred to, and applies to every case of corporate dissolution ; therefore, a cause of action against a business corporation for injuries caused by its negligence sur- vives , its dissolution, and an action thereon is maintainable against the trustees holding the property for distribution. (Marstaller v. Mills, 143 N. Y., 398.) Failure to pay in half the capital stock within the statutory time merely creates a liability for a forfeiture of corporate rights. Proceedings must be taken to accomplish an actual dissolution. (People v. Buffalo Stone &■ Cement Co., 131 N. Y., 140; Id., 42 St. Rep., 753; People v. U. & D. R. R. Co., 128 N. Y., 240; Denike v. N. Y., etc.. Lime Co., 80 N. Y., 5£(9; Matter Brooklyn El. R. R. Co., 125 N. Y., 434.) The provision declaring that the dissolution of a corporation shall not take away or impair any remedy given against it, its stockholders or officers, for any liability incurred previous to its dissolution, merely saves or continues a liability established before and existing at the time of the termination of the corporate existence of the company. (Gold v. Clyne, 134 N. Y., 262.) The certificate must be sworn to as well as acknowledged. An acknowl- edgment without verification is not sufficient. Hardman v. Sage, 144 Full LiABiLrrT Coepokations. The Business Corporations Law, § 6. 124 N. Y., 25; Vedder v. Mudgett, 95 N. Y., 295; Brown v. Smith, 13 Hun, 408; afC'd 80 N. Y., 650.) § 6. Full liability corporations. — Every corporation formed under this chapter may be or become a full liability corpora- tion by inserting a statement in the certificate of incorpora- tion, that the corporation thereby formed is intended to be a full liability corporation; and in case of an existing cor- poration, which is not a full liability corporation, it may become such by filing in the offices where certificates of incorporation are required to be filed, a supplemental cer- tificate stating that thereafter the corporation intends to be a full liability corporation, which certificate shall be executed and acknowledged by the president and treasurer of the corporation or by the board of directors, and shall have annexed thereto a copy of a resolution, adopted by a two-thirds vote of the board of directors, and the written consent of all the stockholders of the corporation, author- izing and consenting to the change of the corporation to a full liability corporation. If the corporation is formed as or becomes a full liability corporation all the stockholders of the corporation shall be severally individually liable to its creditors for all its debts and liabilities, and may be joined as defendants in any action against it. No execu- tion shall issue against any stockholder individually until execution has been issued against the corporation and returned unsatisfied, and all the stockholders shall con- tribute a proportionate share, according to the number of shares of stock owned by each, of the amount paid by any stockholder on a judgment recovered against him individu- ally for a debt of the corporation, and he may recover from the other stockholders in the corporation in a joint or several action the proper portion due by them and each of them, of the amount paid by him on any such judgment. (Former section 7, L. 1890, ch. 567, as amended by L. 1892, cli. 691.) For form of certificate of incorporation of full liability corporation, see post, form No. 55. For form of supplemental certificate hy an existing business corporation to become a full liability corporation, see post, form No. 59. It rarely happens that persons desire to enter into a corporate enter- prise In which each stocltholder becomes personally liable for the indebted- ness of the corporation, therefore, very few full liability companies have been incorporated in this State. Consolidation of Coepoeations. 145 The Business Corporations Law, § 8. A judgment against a corporation is not conclusive against stockliolders. (Lawyer v. Rosebrook, 48 Hun, 453.) An action may be commenced against a stocktiolder before the return of an execution against the corporation imsatisfied. But execution can- not issue until the return of an execution against the corporation unsatis- fied. (Walton V. Coe, 110 N. Y., 109.) The provision in this section that all the stockholders may be joined as defendants in any action against it, is permissive and not imperative. (Walton V. Coe, 110 N. Y., 109.) The liability imposed by this section is not penal but is in the nature of a contract obligation. It survives the death of the stockholder and may be continued against his personal representatives. (Cochran v. Wiechers, 119 N. Y., 399; Bailey v. Hollister, 26 N. Y., 112; Lowry v. Inman, 46 N. Y., 119; Wiles v. Suydam, 64 N. Y., 1T3.) Section 7. (Section 7 of this law, which contained provisions authorizing an exten- sion of business, was repealed by chapter 671, Laws of 1895, taking effect May 14, 1895. The repeal of the section was deemed desirable, because provisions of lilje character are contained in section 32 of the Stock Corporation Law, and it was unnecessary to duplicate them in this law.) § 8. Consolidation of corporations. — Any two or more corporations organized under the laws of this State for the purpose of carrying on any kind of business of the same or of a similar nature, which a corporation organized under this chapter might carry on, may consolidate such corpora- tions into a single corporation, as follows : The respective corporations may enter into and make an agreement signed by a majority of their respective boards of directors and under their respective corporate seals, for the consolidation of such corporations, prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new corporation, the number of directors who shall manage its affairs, not less than three nor more than thir- teen, the names and post-office addresses of the directors for the first year, the term of its existence, not exceeding fifty years, the name of the town or towns, county or counties, in which its operations are to be carried on, the name of the town or city and county in this State in which its principal place of business is to be situated, the amount of its capital stock, which shall not be larger in amount than the fair aggregate value of the property, franchises and rights of such corporations, and the number of shares into which the 10 14:6 Submission of Consolidation Agreement to Stockholdeks. The Business Corporations Law, § 9. same is to be divided, the manner of distributing sucb capital stock among the holders thereof, and if such corporations, or either of them, shall have been organized for the purpose of carrying on any part of its business in any place out of this State, the agreement shall so state, with such other particulars as they may deem necessary. (Former section 13, L. 1890, ch. 567, as amended by L. 1892, ch. 691, and L. 1895, ch. 671.) For form of papeis, see post, form No. 61. By the amendment of 1895 this section was slightly changed in phrase- ology only. As to organization tax and amount of fees payable upon filing and recording the consolidation papers, see the notes to form No. 61, above referred to. Consolidations under these provisions can only be effected by corpora- tions organized under the laws of this State for the purpose of carrying on business of the same or a similar nature, and such business must be of a kind that corporations are authorized to carry on under the Business Corporations Law. (See Cameron v. N. Y. & Sit. Vernon Water Ca., 133 N. Y., 336, 62 Hun, 269; Young v. Rondout & Kingston Gas Lt. Co., 129 N. Y., 57; Id., 39 St. Rep., 602; see, also, People v. North River Sugar Refg Co., 121. N. Y., 582; Cole v. Millerton I. Co., 133 N. Y., 164.) An injunction pendente lite will be granted to restrain a corporation from consolidation where such consolidation may be imlawful, and render final judgment ineffectual. (Young v. Rondout, etc., above.) Proceedings for consolidation, begun under a law which was repealed during the pendency of such proceedings, are not affected by such repeal and may be perfected under the law repealed. (Cameron v. N. Y. & Mt. V. W. Co., above.) § 9. Submission of consolidation agreement to stock- holders.— Such agreement shall be submitted to the stock- holders of each of such corporations, at a meeting thereof to be called upon notice of at least two weeks, specifying the time, place and object thereof, and addressed to each at his last known post-office address, and deposited in the post-office, postage prepaid, and published for at least two successive weeks in one of the newspapers in each of the counties of this State in which either of such corporations shall have its place of business, and if such agreement shall be approved at each of such meetings of the respective stockholders separately, by the vote by ballot of the stock- holders owning at least two- thirds of the stock, the same shall be the agreement of such corporations, and a sworn copy of the proceedings of such meetings, made by the Submission of Consolidation Ageeement to Stockholders 147 The Business Corporations Law. § 9. secretaries thereof, Respectively, and attached thereto, shall be presumptive evidence of the holding and action of such meetings. Such agreement and verified copy of proceedings of such meetings shall be made in duplicate, one of which shall be filed in the office of the secretary of state, and the other in the office of the clerk of the county where the prin- cipal business office of the new corporation is to be situated in this state, and thereupon such corporations shall be merged into the new corporation specified in such agree- ments, to be known by the corporate name therein men- tioned, and the provisions of such agreement shall be car- ried into effect as therein provided. If any stockholder, not voting in favor of such agreement to consolidate, shall at such meeting, or within twenty days thereafter, object to such consolidation and demand payment for his stock, such stockholder or such new corporation, if the consolida- tion takes effect at any time thereafter, may at any time within sixty days after such meeting apply to the supreme court at any special term thereof held in the district in which any county is situated in which such new corpora- tion may have its place of business, upon at least eight days notice to the new corporation, for the appointment of three persons to appraise the value of such stock and the court shall appoint three such appraisers and designate the time and place of their first meeting, with such directions in regard to their proceedings as shall be deemed proper, and also direct the manner in which payment for such stock shall be made to such stockholder. The court may fill any vacancy in the board of appraisers occurring by refusal or neglect to serve or otherwise." The appraisers shall meet at the time and place designated, and they or any two of them, after being duly sworn honestly and faithfully to discharge their duties, shall estimate and certify the value of such stock at the time of such dissent, and deliver one copy to such new corporation, and another to such stock- holder if demanded; the charges and expenses of the appraisers shall be paid by the new corporation. When the new corporation shall have paid the amount of such appraisal, as directed by the court, such 'stockholder shall cease to have any interest in such stock and in the corporate property of such corporation, and such stock may be held or disposed of by such uew corporation. (Former section 14, L. 1890, ch. 567, as amended by L. 1892, ch. 691.) 148 Powers of Consolidated Corporations, Etc. The Business Corporations Law, §§ 10, 11. Former section 9, L. 1890, ch. 56T, related to changing place of business, the provisions for which were striclien from the statutes by the amend- ment of 1892. Where an application Is made by a stockholder who objects to the con- solidation and appraisers are appointed to estimate the value of his stock at the time of his dissent, the value of the stock being unknown, and it not appearing to .have any market value, held, that as his claim partook of the nature of an unliquidated account, he was not entitled to interest upon it until the report of the appraisers, which established Its value. (Trask v. Peekskill Plow Works, 6 Hun, 23G.) An action can be maintained against the old corporation for debts existing at the time of the consolidation. (Gale v. Troy & Boston R. E. Co., 51 Hun, 470.) § 10. To-wers of consolidated corporacions. — Such new corporation in addition to the general powers of corpora- tions shall enjoy the rights, franchises and privileges pos- sessed by each, of the corporations so consolidjated, subject to the restrictions, liabilities, duties and provisions con- tained in this chapter, so far as the same may be applicable to the purposes for which it shall have been organized and expressed in the agreement for consolidation, and may prosecute and carry on any kind of business which each of the consolidating corporations was authorized by law to conduct, (Former section 15, h. 1890, ch. 567, as amended by L. 1892, ch. 691.) Consult People ex rel. N. Y. Phonograph Co. v. Rice, 128 N. Y., 591; 57 Hun, 486. The former section 10 of this law as enacted by L. 1890, ch. 567, related to the place of taxation of personal property, the provisions for which were stricken out by the amendment of 1892, because contained in the taxation laws. §11. Transfer of property of old corporations to consoli- dated corporations. — Upon such consolidation and organ- ization of such new corporation, all and singular the rights, privileges, franchises and interests of every kind belonging to or enjoyed by the corporations so consolidated, and every species of property, real, personal and mixed, and things in action therennto belonging, mentioned in such agreement of consolidation, shall be deemed t,o be transferred and vested in, and may be enjoyed by, such new corporation, Without any other deed or transfer; and such new corpora- tion shall hold and enjoy the same, and all rights of prop- Eights of Ceeditoks of OtD Coepoeations. 149 The Business Corporations Law, § 13. erty, privileges, franchises and interests in the same manner and to the same extent as if the several corporations so con- solidated had continued to retain the title and transact the business of such corporations, and the title to real and per- sonal property and rights and privileges acquired and enjoyed by either of the corporations shall not revert or be impaired by such consolidation, or any thing relating thereto. (Former section IC, L. 1890, ch. 567, as amended by L. 1892, ch. 691.) The former section 11 of this law as enacted by L. 1890, ch. 567, defining the principal place of business for purposes of assessing personal prop- erty was omitted, having been embodied in the definition in the General Corporation Law, section 3. § 12. Rights of creditors of old corporations. — The rights of creditors of any corporation that shall so be consolidated shall not in any manner be impaired, nor any liability or obligation for the payment of any money due or to become due to any person or persons, or any claim or demand for any cause existing against any such corporation or against any stockholder thereof, be released or impaired by any such consolidation; but such new corporation shall succeed to and be held liable to pay and discharge all such debts and liabilities of each of the corporations consolidated in the same manner as if such new corporation had itself incurred the obligation or liability to pay such debt or damages, and the stockholders of the respective corporations consolidated shall continue, subject to all the liabilities, claims and demands existing against them as such, at or before the con- solidation; and no action or proceeding then pending before any court or tribunal in which any corporation that may be BO consolidated is a party, or in which any such stockholder is a party, shall abate or be discontinued by reason of such consolidation, but may be prosecuted to final judgment, as though no consolidation had been entered into; or such new corporation may be substituted as a party in place of any corporation so consolidated, by order of the court in which such action or proceeding may be pending. (Former section 17, L. 1890, ch. 567, as amended by L. 1892, ch. 691.) The former provisions of section 12 of this law as enacted by L. 1890, ch. 567, giving corporations authority to hold stocli in other corporations under certain conditions, were transferred, by the amendments of 1892, to the Stock Corporation Law, section 40. 150 DisTEioT Steam Coepoea.tions. The Business Corporations Law, § 13. § 13. District steam corporations. — Any corporation now or hereafter incorporated for the purpose of supplying steam to consumers from a central station or stations through pipes laid in the public streets, shall be known as a district steam corporation, and upon the application, in writing, of the owner or occupant of any building or prem- ises, within one hundred feet of any street main laid down by any such corporation, and payment by him of all money due from him to it, such corporation shall supply steam as may be required for heating such building or premises, notwithstanding there may be rent or compensation in arrears for steam supplied, or for meter, pipe or fittings fur- nished to a former occupant thereof, unless such owner or occupant shall have undertaken or agreed with the former occupant to pay or to exonerate him from the payment of siich arrears, and shall refuse or neglect to pay the same; and if, for the space of twenty days after such application, and the deposit, if required, of a reasonable sum to cover the cost of connection and two months' steam supply, the cor- poration shall refuse or neglect to supply steam as required, it shall forfeit to such applicant the sum of ten dollars and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue; but no such corporation shall be required to lay a service pipe for the purpose of supplying steam to any applicant where the ground in which such pipe is required to be laid shall be frozen, or otherwise present serious obstacles to laying the same, nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money sufficient to pay for two months' steam supply and the cost of the neces- sary connections and of the erection of a meter and such^ other special apparatus as are required for use in connection with such steam supply, nor unless the applicant shall pro- vide the space and right of way necessary for the erection, maintenance and use of such connections and apparatus, and signify his assent in writing to the reasonable regula- tions of the corporation with reference to the supply of steam to consumers. (Former section 18, L. 1890, ch. 567, as amended by L. 1892, ch. 691.) The former section 13 of this law, as enacted by L. 1890, ch. 567, pro- viding for consolidations, is now section 8; former section 14 re-numbered as section 9; former section 15 re-numbered as section 10; former section DisTEioT Steam Coeporations ; Examination of Meters. 151 The Business Corporations Law, §§ 14, 15. 16 re-numbered as section 11, and former section 17 re-numi)ered as section 12, such section numbers having been changed by L. 1892, ch. 691. § 14. Examination of meters by agent of district steam corporations. — Any such corporation may make an agree- ment with any of its customers, by which any of its officers or agents shall be authorized, at all reasonable times to enter any dwelling, store, building, room or place, supplied with steam by such corporation and occupied by such cus- tomer, for the purpose of inspecting and examining the meters, devices, pipes, fittings and appliances for supplying or regulating the supply of steam, and for ascertaining the quantity of steam consumed, or the quantity of water resulting from the condensation of steam consumed. Every such agreement shall further provide that such officer or agent shall exhibit his written authority if requested by the occupant of such dwelling, store, building, room or place. Any person who shall directly or indirectly prevent or hinder such officer or agent from entering such dwelling, store, building, room or place, or from making such inspec- tion or examination, in violation of such agreement, shall forfeit to the corporation the sum of twenty-five dollars for each offense. (Former section 19, L. 1890, ch. 567, as amended by L. 1892, ch. 691.) See note to preceding section. The logical place for the provisions of sections 13, 14 and 15 would seem to be in the Transportation Corporations Law where corporations similar in character are grouped. § 1 5. Entry by agent of district steam corporation to cut oflF steam. — If any person or persons, corporation or associ- ation supplied with steam by any such corporation, shall neglect or refuse to pay the rent or remuneration for such steam, or for the meter, device, pipes, fittings or appliances, let by such corporation for supplying steam, or for ascer- taining the quantity of steam consumed, or the quantity of^ water resulting from the condensation of the steam con- sumed, agreed upon or due for the same, as required by his, their or its contract with such corporation, the latter may thereupon stop an,d prevent the steam from entering the premises of such person, persons, corporation or association, so neglecting or refusing to pay such rent or remuneration, and may also in any case, in which a person is liable to pay a forfeiture, or to a fine or imprisonment, by reason of any 152 Water Companies. The Business Corporations Law, § 16. act to or towards such corporation or its property for which such forfeiture, fine or penalty is imposed by lavv, stop and prevent the steam from entering the premises of the person so liable, or if such person be an officer or agent of any corporation or association, stop and prevent the steam from entering the premises of such corporation or association. In all cases in which such corporation is authorized to stop and prevent the steam from entering any premises, it may, by its officers, agents, or workmen, enter into or on such premises between the hours of eight o'clock in the forenoon and six o'clock in the afternoon and cut off, disconnect, separate and carry away any meter, device, pipe, fitting or other property of the corporation ; and may cut off, discon- nect and separate any meter, device, pipe or fitting, whether the property of the corporation or not, from the mains or pipes of such corporation. (Former section 20, h. 1890, ch. 567, as amended by L. 1892, ch. 691.) See notes to sections 13 and 14. §16. Water companies.— No corporation shall be formed under this chapter for the purpose of accumulating, storing, conducting, furnishing or supplying water for domestic, manufacturing or municipal purposes in the city of New York. Any corporation formed for the purpose of supplying any other city of the State with water, if unable to agree with the owners of any real property required for the purpose of the corporation for the purchase thereof, may acquire title thereto by condemnation. (New, added by L. 1892, ch. 691.) For provisions of the condemnation law, see post. In the foregoing section implied authority appears to be given (or forming corporations under this law " for the purpose of accumulating, storing, conducting, furnishing or supplying water for domestic, manufac- turing or municipal purposes," except in the city of New York. It should be observed, however, that the first section of this law, page — , prohibits the formation under the Business Corporations Law of any kind of cor- poration that may be formed under any other general law of the State, and that this prohibition would apply to a certain class of water corpo- rations specially provided for in the Transportation Corporations Law, section 80, to wit : Corporations " for the purpose of supplying water to any of the cities, towns or villages, and the inhabitants thereof in this State." It would seem, therefore, that water companies for other pur- poses may incorporate under the Business Corporations Law, provided Watee Companies. 153 The Business Corporations Law, § 16. their operations are not to be conducted in New Yorli city. In the mat- ter of the New York and White Plains Suburban Water Company, a cer- tificate of incorporation drawn under the Business Corporations Law, stated the objects of the proposed corporation to be " to acquire water by purchase, development or otherwise; to construct reservoirs or water towers, erect pumping machinery, laying ot water mains, pipes, gates, valves and hydrants; to furnish and sell water to manufactories, private corporations and individuals for fire protection, manufacturing and domes- tic use, and collect payment or rentals for the same." The certificate was referred to the Attorney General. In his opinion given April 17, 1893, that official held as follows : " * • * It (the Transportation Corpo- rations Law) makes no provision for furnishing water for manufacturing or hydraulic purposes- I am of the opinion that imder said Business Corporations Law, corporations may be formed for such purpose and the purposes set forth in this certificate. This opinion is strengthened by the Implied authority given in section 16 of the Business Corporations Law." TRANSPORTATION CORPORATIONS LAW. Laws of IS80, CaAPTaR 566, as Amknded. Being " An act in relation to transportation corporations, excepting railroads, constituting chapter forty of the gen- eral laws,'' as amended to July 1, 1895. The Transportation Coeporations Law. Article 1. Ferry corporations (§§ 1-6). 2. Navigation corporations (^§ 10-13). 3. Stage-coach corporations (§§ 30-23). 4. Tramway corporations (§§ 80-33). 5. Pipe-line corporations (§§ 40-.')4). 6. Gas and electric light corporations (§§ 60-71). 7. Water-works corporations (§§ 80-85). •8. Telegraph and telephone corporations (§§ 100-109). 9. T0RNPIKE, plank-road AND BRIDGE CORPORATIONS (§§ l'.'0-151.) 10. MlSCELL.^NEOUS PROVISIONS (§§ 160-103). ARTICLE I. Perry Corporations. Section 1. Short title of chapter. 2. Incorporation of ferry corporations. 3. Payment of capital stock. 4. Powers. 5. Effect of failure to pay in capital stock. 6. Posting schedule of rates. Section 1 . Short title of chapter. — This chapter shall be known as the transportation corporations law. In addition to the provisions of the Transportation Corporations Law, which particularly relate to corporations formed thereunder, other pro- visions applicable to such corporations are contained in the General Corporation Law and the Stock Corporation Law. respectively, pages 1 to 135. Feeet Ooepoeations. 155 The Transportation Corporations Law, § 3. §2. Incorporation of ferry corporations. — Three or more persons may become a corporation for conducting and man- aging a ferry, by executing, acknowledging and filing a cesrtiflcate, stating the name of the corporation, the places from and to which the ferry established or to be established shall run; the term not exceeding fifty years for which the corporation is to exist, the amount and number of shares of its capital stock; the number of directors thereof, not less than three nor more than fifteen, and the names of the directors for the first year. For form of certificate of incorporation, see post, form No. 63, Incorporators.— All the incorporators must be of full age, and at least two-thirds of them must be citizens of tfhe United States, and at least one of them must be a resident of the State of New York. (General Corpo- ration Law, section 4, page 6.) Only natural persons can become incorpo- rators. (Id.) Corporations, co-partnerships and persons acting in a repre- sentative capacity, are, therefore, excluded from acting as incorporators. However, after the formation of the corporation, co-partnerships may become stockholders, so also may persons acting as- executors, adminis- trators, g-uardians or tmstees. (Stock Corporation Law, section 54, page 132.) Any 'stock corporation may likewise acquire, hold and dispose of the stock of any corporation in conformity with the provisions of the Stock Corporation Law, section 40, page 109. Corporate Name.— The name of the corporation must not bo the same nor similar to that of any other domestic corporation. (General Corpo- ration Law, section 6, page 9.) At any time ifter incorporation the name may be changed by proper proceedings. (See Code of Civil Procfedure, sections 2410-17, pages 11-15.) In the formation of corporations under this law the word "limited" should not be used as a part of the corporate title, as it can serve no good purpose and, if used, would create a mis- leading impression that the corporation had been organized under chap- ter Gil, Laws of 1875. which was repealed in 1890. See, also, comments under " Liability of Stockholders," page 156. Objects.— The objects stated in the certificate must be within the scope of this article of the law. Term of Existence.— The duration of the corporation cannot be fixed for a longer term than fifty years. The corporate existence may, however, be extended prior to the expiration thereof. (General Corporation Law, section 32, page 48.) Capital Stock.— The amount of capital stock must be definitely stated. The statutes contain express provisions permitting stock corporations to have preferred as well as common stock, 'and different classes of preferred stock, if the certificate of incorporation so provides, or to make preferred issues after organization by the unanimous consent of the stockholders. (Stock Corporation Law, section 47, page 123.) The amount of capital stock may be increased or reduced after incorporation, whenever neces- sary. (Stock C!orporation Law, sections 44, 45 and 46, pages 119-122.) 156 Feeet Coepoeations. The Transportation Corporations Law, § 2. Shares of Stock.— Under the foregoing provisions of section 2 there is no maximum or minimum limit as to the par value of shares, therefore the capital stock may be divided into such number of shares as the incorporators may elect, but the number of shares must be stated in the certificate of incorporation. The par value of the shares may be increased or reduced after incorporation, if deemed desirable, without changing the amount of the capital stock. (Stock Corporation Law, section 56, page 135.) Directors.— The number of directors is required to be definitely stated in the certificate of incorporation, and the number so stated must be within the maximum and minimum limits fixed by law. Whenever desir- able after incorporation the number of directors may be changed. (Stock Corporation Law, section 21, page 90.) Vacancies in the board of direc- tors are to be filled in the manner prescribed in the by-laws. (Stock Cor- poration Law, section 20, page 87.) At least two of the directors must be residents of the State of New York. (General Corporation Law, section 29, page 44.) If a director shall cease to be a stockholder his oflSce becomes vacant. (Stock Corporation Law, section 20, page 87.) Additional powers. — If desired the certificate of incorporation may pro- vide for cumulative voting at elections of directors (General Corporation Law section 20, page 35); and may reserve the right to acquire, hold and dispose of the stocks and bonds of any other corporation. (Stock Corpo- ration Law, section 40, pages 109, 110.) Liability of stockholders.— The liability of stockholders of corporations formed imder this article is regulated by the Stock Corporation Law, sec- tions 54 and 55, pages 131-134. It will thus be seen that such corporations are what have been popularly termed " limited liability companies," with- out making any statement to that effect In the certificate, and without using the word " limited " as a part of the corporate title. Filing and Recording.— The certificate of incorporation must be filed and recorded in the office of the Secretary of State, and a copy thereof duly certified by the Secretary of State, or a duplicate original certificate, must be filed and recorded in the office of the clerk of the county in which the office of the corporation is to be located. (General Corporation Law, section 5, page 7.) If a certificate is to be recorded in a county other than the one where it is executed, the county clerk's certificate should be attached, authenticating the act of the notary, justice of the peace, or com- missioner of deeds taking the acknowledgment. The Secretary of State does not require such county clerk's certificate as to an acknowledgment taken within the State before a person duly authorized to take the same, but an acknowledgment or affidavit taken by a notary public in another State must be authenticated by the county clerk. Pees.— In the office of the Secretary of State: Filing, ten dollars; recording, fifteen cents a folio. In the bounty clerk's office : Filing, six cents; recording, ten cents a folio. In addition to such payments an organization tax of one-eighth of one per cent upon the capital stock must be paid to the State Treasurer before the certificate can be filed. For text of statutes regulating these payments, and information relative to remittances, see pages 67-72. Feert Coepoeations. 157 The Transportation Corporations Law, §§ 3, 4, 5, 6. ^ In the absence of proof of bad faith, a sale of ferry franchises by muni- cipal officers is not necessarily illegal by reason of the fact that a mini- mum rate of ferriage is not fixed by the terms of sale, and that thereby a connecting railroad may, because of its powers to prorate a joint charge of ferriage and railroad fare, obtain an advantage over otber bidders. (Robinson v. Gilroy, 10 Misc. R. 205.) § 3. Half of capital to be paid in before commencing business.— No ferry corporation shall be authorized to com- mence business until at least one-half its capital shall have been actually paid in, nor until afldavits of such payment, sworn to by a majority of the directors, shall have been filed, in each of the offtces in vsrhich the certificate of incor- poration is required to be filed. For form of affldamt, see post, form No. 63. § 4. Powers. — In addition to the powers conferred by the general and stock corporation laws, any such corporation shall have power to take by grant from any authority enti- tled by the laws of this state to make such grant, or by assignment, the franchise or right to establish and maintain ferries, at the place specified in the certificate of incorpora- tion, and to hold and exercise such franchise or right and carry on the business appertaining thereto, subject to the rights of the mayor, aldermen and commonalty of the city of New York, or any other municipal corporation, or of the owner or owners of any legally existing ferry, or the vested rights of any other corporation whatever. For the provisions of the Highway Law relative to obtaining licenses for keeping ferries, see page 158. If ai ferry company conducts its business with such care and skill as will make entrance upon its boats safe for persons of ordinary prudence, it meets the requirements of the law. (f^ace v. Union Ferry Co., 138 page 143. § 5. Effect of failure to pay in capital stock.— The capital stock of every such corporation shall all be paid in, one-half thereof within one year' and the other half thereof within two years from its incorporation, or such corporation shall be dissolved. This provision merely creates a cause for forfeiture of corporate rights. See note and cases cited under Business Corporations Law, section 5, page 143. § 6. Must post schedule of rates. — Every corporation operating any ferry in this state, or between this state and 158 Feert Coepoeafions. The Transportation Corporations Law. any other state, and from or to a city of five hundred thou- sand inhabitants or over, shall post in a conspicuous and accessible place in each of its ferry-houses, in plain view of the passengers, a schedule plainly printed in the English language, of the rates of ferriage charged thereon and authorized by law to be charged for ferriage over such ferry. See, also, in reference to posting schedule of rates, section 174 of the Highway Law, page 159. Additional Provisions.— In addition to the foregoing article of the Transportation Corporations Law, other provisions in relation to ferries are as follows, to wit : Licenses. — The Countj' Court in each of the counties of this State, or the City Court of a city, may grant licenses for keeping ferries in their respective counties and cities, to such persons as the court may deem proper, for a term not exceed- ing five years. No license shall be granted to a person, other than the owner of the land through which that part of the highway adjoining to the ferry shall run, unless the owner is not a suitable person or shall neglect to apply after being served with eight days written notice from such other person of the time and place at which he shall apply for such license, or having obtained such license, shall neglect to comply with the conditions of the license, or maintain the ferry. Every license shall be entered in the book of minutes of the court by the clerk ; and a certified copy thereof shall be delivered to the person licensed. When the waters over which any ferry may be used, shall divide two counties or cities, or a county and city, a license obtained in either of the counties or cities shall be sufficient to authorize transpor- tation of persons, goods, wares and merchandise, to and from either side of such waters. (The Highway Law, L. 1890, ch. 568, section 170.) For forms of application, notice, proof of sermce of notice, license and clerk's certificate, see post, forms Nos. 64, 65, 66, 67, 68 and 69. , Undertaking. — Every person applying for sncli license shall, before the same is granted, execute and file with the clerk of the court his undertaking, with one or more sureties, approved by the court, to the effect that he will attend such ferry with sufficient and safe boats and other implements, and so many men to work the same as shall be necessary Feket Coepoeatioks. 159 The Transportation Corporations Law. during the several hours in each day, and at such rates as the court shall direct. (The Highway Law, L. 1890, ch. 568, section 171.) For form of undertaking, see post, forma No. 70, 71 arid 73. Appendages for rope ferries.— Any person licensed to keep a ferry may, with the written consent of the commissioners of highways of the town where such ferry may be, erect and maintain within the limits of the highway, at such point as shall be designated in such consent, a post or posts, with all necessary braces and appendages, for a rope ferry. (The Highway Law, L. 1890, ch. 568, section 172.) Superintendent of public works may lease right of passage. The superintendent of public works may, where ferries are now maintained at tide-water, lease the right of passage for foot passengers across State lands adjoining tide-water for a period not exceeding ten years, on such conditions as he may deem advantageous to the State. (The Highway Law, L. 1890, ch. 568, section 173.) When Schedules to be posted. — Every person licensed to operate or control any ferry in this State, or between this State and any other State, operating from or to a city of fifty thousand inhabitants or over, shall post in a conspic- uous and accessible position outside and adjacent to each entrance to such ferry, and in at least four accessible places, in plain view of the passengers upon each of the boats used on such ferry, a schedule plainly printed in the Englisli lan- guage, of the rates of ferriage charged thereon, and author- ized by law to be charged for ferriage over such ferry. If any such person shall fail to comply with the provisions of this section, or shall post a false schedule, he shall forfeit the sum of fifty dollars for each day's neglect or refusal to post such schedule, or any of them, to be recovered by any person who shall sue therefor, in any court of competent jurisdiction. (The Highway Law, L. 1890, ch. 568, sec- tion 174.) See, also, the provision as to posting schedule of rates contained in the Transportation Corporations Law, section 6. For explanation of interval in numbering between section 6, supra, and section 10, infra, see page 86. 160 Navigation Coeporations. The Transportation Corporations Law, § 10. ARTICLE II. Navigatioh" Corporation.* Section 10. Formation of corporation. 11. Navigation between additional ports. 12. Payment of capital stock 13. Ferries rmauthorized. § 10. Formation of corporation. — Seven or more persons may become a corporation, for the purpose of ouilding for their own use, equipping, furnishing, fitting, purchasing, chartering, navigating or owning steam, sail or other boats, ships, vessels or other property, to be used in any lawful business, trade, commerce or navigation upon the ocean, or any seas, sounds, laJies or rivers and for the carriage, trans- portation or storing of lading, freight, mails, property or passengers thereon by making, signing, acknowledging and filing a certificate, stating the name of the corporation, the specific objects for which it is formed, the waters to be nav- igated, and in case of ocean steamers, the ports between which such vessels are intended to be navigated, the amount of its capital stock, which shall not be less than twenty thousand nor more than four million dollars, the term of its existence, not to exceed fifty years, the number of shares ' of which the capital stock shall consist, the number of directors thereof, not less than five nor more than thirteen, the names of the directors for the first year, and the name of the city or town and county in which its principal office is to be situated, the number of shares of stock which each subscriber of the certificate agrees to take, which must in the aggregate equal ten per cent of the capital and at least ten per cent of which must be paid in cash. Such certifi- cate shall have attached thereto as a part thereof, the affi- davit of at least three of such directors, to the effect that ten per cent of such capital stock has been in good faith subscribed and at least ten per cent of such subscription has been paid in cash. No railroad corporation shall have, own or hold any stock in any such corporation, Vor fwm of certificate of incorporation, see post, form No. 73. The minimum of capital stock permitted under this section should, It seems, be reduced, as navigations corporations capitalized at less than *So in the original. Navigation Coepoeations. 161 The Transportation Corporations Law, §§ 11, 13. $20,000, might be organized to operate in many places with convenience to the public. For provisions of act exempting certain navigation companies from taxation for State and local purposes, see post, page 213. See comments under " Incorporators," " Corporate Name," " Objects," " Capital Stock," " Shares of Stock," " Directors," " Additional Powers," " Liability of Stockholders," " Filing and Recording," and " Fees," on pages 155, 156, all of whidh are applicable to corporations organized under this article. Where a carrier sells tickets o"ver a connecting line and assumes to secure accommodations over that line, it is liable for the failure of such other line to furnish proper accommodations, even when the ticket states that the company acts as agent and is not responsible beyond its own line. (Bussman v. Western Transit Co., 9 Misc. R., 410, and cases therein cited.) The liability of a steamboat company is analogous to that of an inn- keeper at common law. (Adams v. N. J. Steamboat CO., 9 Misc. R., 25.) §11. Navigation between additional ports. — Any such corporation desiring or intending to navigate boats, ships or vessels, upon any other waters, or in case of ocean steamers between any other or additional ports than those named in" its original certificate, may from time to time, file a further certificate, in the same manner as is pre- scribed by law for the filing of the original certificate, in which shall be stated such additional waters or ports upon or between which such corporation desires to navigate vessels, and thereafter such corporation may navigate its vessels upon such waters and between such ports, with the like effect as if they had been named in the original certificate. § 12. Payment of capital stock. — The capital stock of such corporation shall be paid in, at least one-half thereof, within one year, and the remainder within two years from its incorporation, or the corporation shall be dissolved. Within thirty days after the payment of the last install- ment, a certificate stating that the whole amount of such capital stock has been paid in shall be made, signed and sworn to by the president and a majority of the directors of the corporation, and filed and recorded in the offices where the original certificates of incorporation were filed. Forfwm of certificate, see post, form No. 74. The provision imposing the penalty of dissolution in case 'of failure to pay In the capital stock w'ithin the statutory time merely creates a Ha- ll 162 Stage Coaoh Coepoeations. The Transportation Corporations Law, g§ 13, 20, 21 blllty for a forfeiture of corporate rights. Proceedings must be taken to accomplish an actual dissolution. (People v. U. & D. R. R. Co., 128 N. Y., 210; In re Brooklyn Elevated K. R. Co., 125 N. Y.. 434; Penike V. N. Y., etc.. Lime Co., 80 N. Y., 599.) § 13. Ferries unauthorized. — This article shall not author- ize the formation of any ferry corporation to ply between the city of New York and any other point. For explanation of interval in numbering between section 13, supra, and sec- tion 20, infra, see page 86. ARTICLE III. Stage Coach Corporations. Section 20. Incorporation. 21. Alteration or extension of route. 22. Powers. §20. Incorporation. — Five, or more persons, may become a corporation for the purpose of establishing, maintaining and operating any stage or omnibus route or routes for public use in the conveyance of persons and property else- where than in the city of New York, or any stage route or routes already established for a like public use, by making, signing, acknowledging and filing a certificate which shall state the name of the corporation, the number of years it is to continue, the route or routes upon which it is intended to run as near as practicable, the number of the directors thereof, not less than three nor more than five, the names of the directors for the first year, the amount of its capital stock, the place of residence of each subscriber thereto, and the number of shares of stock he agrees to take in such corporation. For form of certijieate of incorporation, see post, form No. 75. See comments under "Incorporators," " Corporate Name," " Objects," " Capital Stock," " Shares of Stock," " Directors," " Additional Po-wers," " Liability of Stockholders," " Filing and Recording," and " Fees," on pages 155, 156, all of which are applicable to pipe line corporations, but article. No maximum limit is prescribed within which the term of exis- tence of stage coach corporations is to be fixed. § 21. Alteration or extension of route. — The directors may, by a vote of two-thirds of their number, at any time alter or "Teamway O0EPOEA.TIONS. 163 The Transportation Corporations Law, §§ 23, 30. extend the route or routes designated in the certificate of incorporation, upon 'making, acknowledging, and filing a certificate to that effect, in the offices where the original certificates of incorporation were filed. For form of certificate, see post, form No. 76. § 22. Powers — In addition to the powers conferred by the general and^ stock corporation laws, eyery such corporation shall have power : 1. To take and convey persons and property in stages and omnibuses, and to provide and run the necessary stages and omnibuses upon their route or routes for the public use and to receive compensation therefor. 2. To erect and maintain all necessary and convenient buildings, fixtures and machinery for the use and accommo- dation of their passengers and business. For explanation of interval in numbering between section 33, supra, and sec- tion.30, infra, see page 86. ART [CLE IV. Tramway Corporations. Section 30. Incorporation. , 31. Powers. , 32. Condemnation of real property. 33. Crossings. § 30. Incorporation.— Thirteen or more persons may become a corporation for constructing, maintaining and operating an elevated tramway, constructed of poles, piers, wires, rods, ropes, bars or chains, for the transportation of freight in suspended buckets, cars or other receptacles, for hire, by making, signing, acknowledging and filing a certificate stating the name of the corporation, the number of years it is to continue, the places from and to which such tramway is to be constructed, maintained and operated, its length as near as niay be, the name of each county through or in which it is made or intended to be made, the amount of its capital stock and the number of shares into which it is to be divided, the- number of the directors thereof, not less than three, the names and places of residence of the 164 Teamwat Coepoeations. The Transportation Corporations Xaw, §§ 31, 32, 33. directors for the fiLrst year, the place of residence of each subscriber thereto and the number of shares he agrees to take in such corporation. For form of eertifieaie of incorporation, see post, form No. 77. See comments under " Incorporators," " Corporate Name," " Objects," " Capital Stocli," " Shares of Stock," " Directors," " Additional Powers," " Liability of Stockholders," " Filing and Recording" and " Fees," on pages 155, 156, all of which are applicable to corporations under this maximum limit Is prescribed within which the duration of tramway corpo- rations is to be fixed. § 31. Powers. — Every such corporation, in addition to the powers conferred by the general and stock corporation laws, shall have power : 1. To cause such examination and surveys for its pro- posed tramway to be made as may be necessary to the selection of the most advantageous route, and for such purpose by its officers and servants, to enter upon the lands or waters of any person, but subject to responsibility for all damages done thereto. 2. To lay out its tramway and to construct the same as hereby provided. 3. -To erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommo- dation and transaction of its business. § 32. May acquire land by condemnation. — In case any such corporation is unable to agree for the purchase, use or lease of any real property required for the purposes of its incorporation, it shall have the right to acquire title to the same by condemnation. See the provisions of the condemnation law, post. § 33. Crossings. — Whenever any tramway, constructed by any such corporation, shall cross a railroad, highway, turn- pike, plank-road or canal, such tramway shall be so con- structed as not to interfere with the free use of such rail- road, highway, turnpike, plank-road or. canal for the pur- poses for which they were intended. For explanation of interval in 'numbering between section 33, supra, and sec- tion 40, infra, see page 86. Pipe Line Coepoeations. 165 The Transportation Corporations Law, § 40. ARTICLE T. Pipe Liin^e Corporations. Section 40. Incorporation. 41. Location of line. 42. Condemnation of real property. 43. Railroad, turnpike, plank-road and highway crossings. 44. Crossings of canals, rivers and a-eeks. 45. Consent of local authorities. 46. Construction through villages and cities. 47. Over Indian reservations. 48. Over State lands. 49. Additional powers. 50. Use of line to be public; storage; liable as common carriers; rates and charges. 51. Receipts for property; cancellation of vouchers. 52. Monthly statements. , 53. Fences, farm crossings and use of line not inclosed. 54. Taxation of property. § 40. Incorporation. — Twelve or more persons may become a corporation for constructing and operating for public nse, except in the city of New York, lines of pipe for conveying or transporting therein petroleum, gas, liquids or any pro- ducts or property, or for maintaining and operating any line of pipe already constructed and owned by any corporation, person or persons, except in such city, for the public use, by making, signing, acknowledging and filing a certificate stating the name of the corporation, the number of years it is to continue, the places from and to which it is to be con- structed or maintained and operated, its length as near as may be, the name of each county through or into which it is to be constructed; the amount of its capital stock, which shall not be less than fifteen hundred dollars for every mile of pipe constructed or proposed to be constructed, and the number of shares of which it shall consist; the number of directors not less than seven, and the names and places of residence of the directors for the first year, and the place of residence of each subscriber and' the number of shares he agrees to take in such corporation, which must in the aggregate equal ten hundred and fifty dollars for every mile of pipe constructed or proposed to be constructed, and twenty-five per cent of which must be paid in cash. Such certificate shall have indorsed thereon or appended thereto 166 Pipe Line Coepoeations. The Transportation Corporations Law, § 41. and as a part thereof, an affidavit made by at least three of the directors named therein that at least ten hundred and fifty dollars of stock for every mile of line proposed to be constructed or maintained and operated has been in good faith subscribed, and twenty-five, per cent paid in money thereon, and that it is intended in good faith to construct or to maintain and operate the line of pipe mentioned in such certificate, and that such corporation was not pro- jected or formed with the intent or for the purpose of injur- ing any person or corporation, nor for the purpose of selling or conveying its franchise to any person or corporation, nor for any fraudulent purpose. For form of certificate of incorporation, see post, form No. 78. See comments under " Incorporators," " Corporate Name," " Objects," " Capital Stock," " Shares of Stock," " Directors," " Additional Powers," " Liability of Stockholders," " Filing and Recording" and •' Fees," on pages 155, 156, all of which are applicable to corporations under this it should be carefully noted that the capital stock of pipe line corpo- rations " shall not be less than $1,500 for every mile of pipe constructed or proposed to be constructed." There is no maximum limit for the duration of these corporations. § 41. Location of line. — Every such corporation shall before commencing the construction of its pipe line in any codnty, or any proceeding for the condemnation of real property, plainly and distinctly mark and designate the line adopted and located by them by a line of stakes consecu- tively numbered and equally distant, and not more than twenty rods from each other, so that each line can be defi- nitely known and ascertained in all places, and make a map and survey of the route so located and staked out, and shall indicate thereon plainly the points where such route crosses each parcel of land to which they have not acquired title by agreement, and shall cause such map and survey to be certified by the president and engineer, and filed in the office of the clerk of the county into or through which the line so located and mapped passes, and shall give to the owner or occupant, if he is known or -can be ascertained, of every parcel of land through which such route passes, the title to which has not been acquired by purchase, written notice of the filing of such map and survey, stating that such route passes over or across such owner's or occupant's lands, and that the route thereof is indicated thereon by Pipe Line Coepoeations. 167 The Transportation Corporations Law, § 42. such line of stakes. Any occupant or owner of such, lands feeling aggrieved by the proposed location, may, within fif- teen days after the service of such notice, give ten days written notice to the corporation, by service upon the presi- dent, engineer, or any director thereof, and to the owner or occupant of any lands to be affected by the alteration to be proposed by him, of the time and place of an application to be made by him to a special term of the Supreme Court in the judicial district in which the lands are situated for the appointment of commissioners to relocate such line. If upon the hearing the court shall consider that sufficient cause exists therefor, it shall appoint three disinterested persons commissioners to examine the route, located and the pro- posed alteration thereof, and direct the mode of proceeding, who shall report to the court the facts relating thereto and their opinion as to' the proposed alteration, and what, if any, alteration should be made in such line, and the court shall thereupon make such order as it shall deem proper in relation to such alteration, and determine the location of such line, and fix and adjust the costs, fees and charges of the commissioners, and the costs and charges of the pro- ceedings, and direct by which party the same shall be paid, and may enforce payment thereof by proceedings as for a contempt of court, for refusal to pay costs directed to be paid by an order of the court, and such order shall be final as to the location of the line upon the lands embraced therein. Such corporation shall not Commence the work of constructing or laying its line of pipe, or institute proceed- ings for the condemnation of real property, in any county, until after the expiration of fifteen days from the service by it of the notice herein required, nor until all applications for a relocation of its line in such county if any are made, have been finally determined. For forms under this section, see post, forms Nos. 79, 80, 81, 83, 83 and 84. § 42. Condemnation of real property. — In case such cor- poration is unable to agree for the purchase of any real estate required for the purposes of its incorporation, and its line of pipe in the county in which such real estate is sit- uated has been finally located, it shall have the right to acquire title thereto by condemnation, but such corporation shall not locate or construct any line of pipe through or 168 Pipe Line Coeporations. The Transportation Corporations Law, §§ 43, 44. under any building, dooiyard, lawn, garden or orchard, except by the consent of the owner thereof in writing duly acknowledged, nor through any cemetery or burial ground, nor within one hundred feet of any building, except where such line is authorized by public officers to be laid across or upon any public highway, or where the same is laid across or upon any turnpike or plank-road. No pipes shall be laid for the purpose of carrying petroleum, gas or other pro- ducts or property through or imder any of the streets in the cities of this State, unless such corporation shall first obtain the consent of a majority of the property owners on the streets which may be selected for the laying of pipes, and such pipe-line shall be located with all reasonable care and prudence so as to avoid danger from the bursting of the pipes. For provisions of condemnation law, see post. § 43. Railroad; turnpike, plank-road and highway cross- ings. — WhenevtT any line of pipe of any sued corporation shall necessarily cross any railroad, highway, turnpike or plank-road, such line of pipe shall be made to cross under such railroad, highway, turnpike or plank-road and with the least injury thereto practicable, and unless the right to cross the same shall be acquired by agreement, compensa- tion shall be ascertained and made to the owners thereof, or to the public in case of highways, in the manner pre- scribed in the condemnation law, but no exclusive title or use shall be so acquired as against any railroad, turnpike or plank-road corporation, nor as against the rights of the people of this State in any public highway, but the rights acquired shall be a common use of the lands in such man- ner as to be of the least practical injury to such railroad, turnpike or plank-road, consistent with the use thereof by such pipe-line corporation, nor shall any such corporation take or use any lands, fixtures or erections of any railroad corporation, or have the right to acquire by condemnation the title or use, or right to run along or upon the lands of any such corporation, except for the purpose of directly crossing the same when necessary. § 44. Construction across and along canals, rivers and creeks.— No pipe line shall be constructed upon or across any of the canals of this State, except by the consent of and Pipe Line Corpoeations. 169 The Transportation Corporations Law, §§ 45, 46. in the manner and upon the terms prescribed by the super- intendent of public works, unless constructed upon a fixed bridge across such canal, and with the consent of the person for whose benefit such bridge is constructed and main- tained, or upon such a bridge over the canal, at the cross- ing of a public highway or street, with the consent of the public ofi&cers having the supervision thereof, or of the municipal authorities of any village or city within whose limits such bridge may be, nor shall the pipes of any such corporation be laid through or along the banks of any of the canals of this State, nor through or under any of its rivers or creeks, unless such pipes shall be encased so as to prevent leakage, in such manner as shall be approved by the superintendent of public works. § 45. Consent of local authorities. — No pipe line shall be constructed across, along or upon any public highway with out the consent of the commissioners of highways of the town in which such highway is located, upon such terms as may be agreed upon with such commissioners. If such con- sent or the consent of the commissioners or municipal authorities required by the preceding section can not be obtained, application may be made to the general term of the Supreme Court of the department in which such high- way or bridge is situated for an order permitting the corpo- ration to construct its line across, along or upon such high- way, or across or upon such bridge. The application shall be by duly verified petition and notice which shall be served upon the commissioners of highways of the town in which the highway is situated, or the municipal authorities of the village or city where such bridge is located, according to the practice or order of the court, or an order to show cause, and the court upon the hearing of the application may grant an order permitting the line to be so constructed in such manner and upon such terms as it may direct. For forms under this section, see post, forms Nos. 85, 86 and 87. § 46. Construction through villages and cities. — No pipe line shall be constructed into or through any incorporated village or city in this state, unless authorized' by a resolu- tion prescribing the route, manner of construction and terms upon which granted, adopted at a regular meeting of the board of trustees of the village or the common council 170 Pipe Line Cokpobations. The Transportation Corporations Law, §§ 47, 48, 49. of the city by a two-thirds vote of such board or council, but such resolution shall not affect any private right. No paTement shall be removed in any city under the provisions of this article, unless done under the direction of the com- mon council, nor until such corporation shall give a bond in such sum as the common council may require, for the replacing of any pavements which shall have been removed. In case any pavement shall have been removed and not properly relaid, the common council may bring suit in any court of record, for the cost of relaying such pavement, against any such corporation. No gas-houses shall be erected in any city under the provisions of this article, for supplying gas to the inhabitants, unless consent is first given by the corporate authorities of the city. § 47. Over Indian reservations. — Such corporation may contract with the chiefs of any nation of Indians over whose lands it may be necessary to construct their pipe line for the right to construct such pipe line upon such lands, but no such contract shall vest in the corporation the fee of such lands, nor the right to occupy the same for any pur- pose other than for the construction, operation and main- tenance of such pipe line, nor shall such contract be valid or effectual until the same has been ratified by the county court of the county in which the lands are situated. §48. Over state lands.— Tlie commissioners of the land ofSce shall have power to grant to any pipe line corporation any lands belonging to the people of this state which may be required for the purposes of its incorporation on such terms as may be agreed on by them or such corporation may acquire title thereto by condemnation, and if any lands owned by any county, city or town as required by such cor- poration for such purposes, the county, city or town officers having charge of such lands may grant them to such corpo- ration upon such terms and for such compensation as may be agreed upon. For provisions of the condemnation law, see post. § 49. Additional powers.— Every corporation formed under this article shall in addition to the powers conferred by the general and stock corporation law have power : 1. To cause such examinations and surveys of its pro- Pipe Line Coepoeations. 171 The Transportation Corporations Law, § 50. posed line of pipe to be made as may be necessary to tlie selection of the most advantageous route, and for sucli pur- pose by its officers, agents or servants may enter upon tbe lands or waters of any person, upon, through or across which such corporation can construct its line of pipe, under the provisions of this article, subject however to liability for all actual damage which shall be done thereto. 2. To take and hold such voluntary grants of real estate and other property, as shall be made to it to aid in the con- struction, maintenance, operation and accommodation of its pipe line. i 3. To lay out its pipe line route not exceeding twelve , feet in width, but at the terminations of such line and at all receiving and discharging points and at all places where machinery may properly or must necessarily be set up for the operation of such pipe line it may take such additional width, and for such length as may be necessary. 4. To take and convey through pipes any property, sub- stance or product capable of transportation therein by any force, power or mechanical agency, and to erect and main- tain all necessary and convenient buildings, stations, fix- tures and machinery for the purposes of its incorporation. 5. To regulate the time and manner in which property shall be transported over its pipe lines, and the compensa- tion to be paid therefor, but such compensation shall not exceed the suip. or be above the rate of twenty-five cents per one hundred miles for the transportation of forty-two gallons of any product transported on lines of one hundred miles in length or over, which shall be reckoned and adjusted upon the quantity or number of gallons delivered by such corporation at the point to which it shall have undertaken to deliver the same. § .'50. TJse of line to be public ; storage ; liable as common carriers; rates and charges.— The pipe lines of every such corporation shall be open for transportation to the public use, and all persons desiring to transport products through such pipe line shall have the absolute right upon equal terms to such transportation in the order of application therefor, on complying with the general requirements of such corporation, as to delivery for and payment of such transportation, but no application for such transportation 172 Pipe Line CoEPOKAnos^s. The Transportation Corporations Law, § 51. shall be valid beyond or for a greater quantity of products tban the applicant shall then own and have ready for deliv- ery for transportation "to such corporation, and every such corporation shall provide suitable and necessary receptacles for receiving all such products for transportation, and for storage at the place of delivery until the same can reason- ably be moved by the consignee, and shall be liable as com- mon carriers therefor, from the time the same is delivered for transportation until a reasonable time after the same has been transported to the place of consignment and ready for delivery to the consignee, which time shall be fixed by general regulation by the corporation, and shall not be less than two days from and after the same shall be ready for delivery and notice thereof given to such consignee, and all rates and charges of every description, for or on account of or in any manner connected with the transportation of any products, shall be fixed by such corporation by general rules and regulations, which shall be applicable to all par- ties who shall transport any products through such pipe line, or deliver or contract to deliver products for transpor- tation and shall be written or printed and exposed to public view and at all times open to public examination, §51. Beceipts for property; cancellation of vouchers; delivery of property.— No receipt, certificate or order of any kind shall be made, accepted or issued by any pipe line corporation for any commodity unless the commodity repre- sented by them is actually in possession of the corporation at the time of making, issuing or acceptance thereof. Whenever any such corporation shall have parted with the possession of any commodity and received therefor any order, voucher, receipt or certificate, such order, voucher, receipt or certificate shall not be issued or used again, but shall be' canceled with the word "canceled" stamped or printed legibly across the face thereof, and such can- celed order, voucher, receipt or certificate shall be filed and preserved by such corporation and a record of the same kept by the secretary thereof. No petroleum or other commodity received for transportation by such cor- poration shall be delivered to any person without the pre- sentation and surrender of all vouchers, receipts, orders or certificates that have been issued or accepted for the same. Pipe Line Coepoeations. 173 The Transportatioa Corporations Law, §§ 53, 53. § 52. Monthly statements. — Every pipe line corporation shall make monthly a specific statement showing the amount of all commodities received, the amount delivered during the month, and the stock on hand on the last day of each month of the year, and how much of such stock is represented by outstanding certificates, vouchers, receipts or orders, and how much in credit balances on the books of the corporation. Such statement shall be made on or before the tenth day of the succeeding month and verified by the oath of the president and secretary that it is in all respects true and correct, and shall be filed within three days there- after in the county clerk's office in the county where the principal office of the corporation is located, and a true copy of the same posted in a conspicuous place in its principal office for at least thirty days thereafter. For form of statement, see post, form No. 88. § 53. Fences ; farm crossings and use of line not inclosed. — It shall not be necessary for any such corporation to fence the lands acquired by them for the purposes of its incopora- tion. But, if not enclosed by a substantial fence, the owner of the adjoining lands from whom such lands were obtained, his heirs or assigns, may occupy and use such lands in any manner not injurious to the interests of the corporation and shall not be liable therefor, or for any trespass upon any such lands except for willful or negligent injuries to the pipes, fixtures, machinery or personal property of the corporation. If the corporation shall keep such lands inclosed it shall construct and provide all suitable' and necessary crossings with gates for the use and conven- ience of any owners of lands adjoining the portion of its lands so inclosed, and no claim shall be made by it against any owner of adjoining lands to make or contribute to the making or maintaining of any division fence between such adjoining lands and its lands, and if it shall neglect to keep and maintain substantial fences along its lands the owners of adjoining lands may construct and maintain all farm or division fences, and all line fences crossed by such pipe line in the same manner as though it had not acquired such lands for such pipe line, and it shall be liable for all injuries to such fences caused or done by any of its officers or agents, or any persons acting in their or its behalf, or by any laborer 174 Gas and Eleoteio Light Corpoeations. The Transportation Corpoi'ations Law, §§ 54, 60. in its or their employ or in the employ of any of its contractors. § .14. Taxation of property. — The real estate and personal property belonging to any pipe line corporation in this State, shall be assessed and taxed in the several towns, vil- lages and cities in the same manner as the real estate and personal property of railroad corporations are assessed and taxed, and such corporation may pay such taxes or com- mute therefor in the same manner as railroad corporations. For taxation laws, see post. For explanation of interval in numbering between section 54, supra, and section 60, infra, see page 85. ARTICLE VI. Gas and Electric Light Corporations. Section 60. Incorporation. 61. Powers. 62. Appointment of inspectors of gas meters. 63. Deputy Inspectors. 64. Inspection of gas meters. 65. Gas or electric light must be supplied on application. 66. Deposit of money may be required. 67. Entry of buildings to meters or lights. 68. Refusal or neglect to pay rent 69. No rent for meters to be charged. 70. Price of gas. Section 60. Incorporation. — Three or more persons may become a corporation for manufacturing and supplying gas for lighting the streets and public and private buildings of any city, village or town, or two or more villages or towns not over five miles distant from each other, in this state, or for manufacturing and using electricity for producing light, heat or power, and in lighting streets, avenues, public parks and places, and public and private buildings of cities, vil- lages and towns within this State, by making, signing, acknowledging and filing a certificate stating the name of the corporation, its objects, the amount of its capital stock, the term of its existence not to exceed fifty years, the num- ber of shares of which the stock shall consist, the num- Gas and Electeio Light Coepoeations. 175 The Transportation Corporations Law, § 61. ber of directors not less than three nor more than thirteen, the names and places of re^dence of the directors for the first year, and the name of the' town and county in which the operations of the corporation are to be carried on, and thereupon the persons who shall have signed the same, their associates and successors shall be a corporation by the name stated in the certificate. Fwform of certificate of incm-poration, see post, form No. 89. See comments under " Incorporators," " Corporate Name," " Objects," " Term of Existence," " Capital Stock," " Shares of Stock," " Directors," "Additional Powers," ." Liability of Stockholders," "Filing and Record- ing " and " Fees," on pages 155, 156, all of which are applicable to gas and electric light corporations. The word " or," as used in the foregoing section, is not intended to be in the disjunctive, but should be construed as meaning the same as " and," In order to give effect to the intention of the legislature. (People ex rel. Municipal Gas Co. v. Rice, 138 N. Y., 151.) Therefore a corporation is not restricted to one of the purposes stated in the section, but may be formed for carrying on both the business of manufacturing and supply- ing gas for lighting, etc., and the business of manufacturing electricity for producing light, heat, etc. (Id.) And a corporation heretofore organ- ized for gas lighting may extend its objects so as to include electric light- ing by filing an amended certificate pursuant to section 32 of the Stock Corporation Law. (Id.) It may also acquire the right to exchange its stock for that of an electric light company. (Id.) A lease by a gas company of all its property and franchises is ultra vires; but where the lessee has used the property under such a lease a re- covery for the amount due for rent may be had. (Bath Gas Light Co. v. Clafity, 26 N. Y. Supp., 287; 56 St. Rep. 426.) § 61. Powers. — Evpiry such cprporation shall have the fol- lowing additional powers: 1. If incorporated for the purpose of supplying gas for light, to manufacture, sell and furnish such quantities of gas as may be required in the city, town or village where the same shall be located, or said two or more villages or towns, not over five miles distant from each other, named in its certificate of incorporation, foj- lighting the streets, and public or private buildings or for other purposes; and to lay conductors for conducting gas through the streets, lanes, alleys, squares and highways, in such city, villages or towns, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe; and such municipal authorities shall have power 176 Gas and Electric Light Cokporations. The Transportation Corporations Law, § 61. to exempt any such, corporation from taxation on their per- sonal property for a period not exceeding three years from the organization of the corporation. 2. If incorporated for the purpose of using electricity for light, heat or power, to carry on the business of lighting by electricity or using it for heat or power in cities, towns and villages within this State, and the streets, avenues, public parks and places thereof, and public and private build- ings therein ; and for the purposes of such business to gene- rate and supply electricity; and to make, sell or lease all machines, instruments, apparatus and other equipments therefor, and to lay, erect and construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures in, on, over and under the streets, avenues, public parks and places of such cities, towns or villages, for con- ducting and distributing electricity, with the consent of the municipal authorities thereof, and in such manuer and under such reasonable regulations, as they may prescribe. 3. Any two or more corporations organized under this article, or under any general or special law of the state, for the purpose of carj^ing on any business which a cor- poration organized under this article might carry on, may consolidate such corporations into a single corporation by complying with the provisions of the business corporations law relating to the consolidation of business corporations. For provisions empowering town authorities to contract for lighting streets see, -poit, page 213. Where a corporation maintains lines of electric wires over which it furnishes power to customers for the movement of machinery, although such business is carried on without authority, it affords no excuse for the destruction of its property, and conceding that a telephone and telegraph company has the right to remove the wires from certain fixtures, yet by thereafter carrying those wires away it makes itself liable for conversion. (Electric Power Co. v. Metropolitan Telephone & Telegraph Co., 75 Hun, 68.) A gas-light corporation has no right to lay its pipes in a country high- way without first securing the consent of the adjoining owners. (Bloom- field Gas Co. V. Calkins, 62 N. Y., 386.) A gas company may be prosecuted for damages caused by nuisance. There is no immunity from liability for consequental injuries sustained by property surrounding its works, by reason of its incorporation, or the privilege conferred upon tho business by the acts of the legislature, and it is not taken out of the operation of the rules of law applicable to ordi- Gas and Electric Light Corpoeations. 1.77 The Transportation Corporations Law, §§ 62, 63. nary common-lax nuisances. (Bolian v. Port Jervis Gas-liglit Co., 122 N. T., 18, and cases ttierein cited.) §62. Inspector of gas meters.— The governor shall nomi- nate and by and with the consent of the senate appoint an inspector of gas' meters, who shall have an office in the city of New York, whose duty it shall he, when required, to inspect, examine, prove and ascertain the accuracy of any and all gas meters used or intehded to be used for measur- ing or ascertaining the quantity of illuminating gas fur- nished by any gas-light corporation in this state, except corporations engaged in supplying natural gas to consumers, to or for the use of any person or persons, and, when found to be or made correct, to seal, stamp or mark all such meters, and each of them, with some suitable device, which device shall be recorded in the office of the secretary of state. Such inspector shall hold his office for the term of five years and until the appointment of his successor, but may be removed by the governor for sufficient cause. He shall receive an annual salary of five thousand dollars, to be paid in the first instance out of the state treasury on the warrant of the comptroller, which shall be charged to and paid into the state treasury by the several gas corpora- tions in this state, in amounts proportionate to the amount of the capital stock of such corporations respec- tively, to be ascertained and assessed by the comptroller of the state. If any such corporation shall refuse or neglect to pay into the state treasury the amount or portion of such salary required of them respectively, for the space of thirty days after written notice given it by the comptroller to make such payment, then the comptroller may maintain an action, in his name of office, against any such delinquent corporation for its portion or amount of such salary, with interest thereon at the rate of ten per centum per "annum from the time when such notice was given and the costs of the action. (Thus amended by L. 1893, ch. 385, and L. 1895, eh. 972.) § 63. Deputy inspectors. — The inspector of gas meters shall appoint three deputy inspectors of gas meters to reside in the city of Brooklyn, Albany and Buffalo, respectively, to hold during his pleasure, and who shall in their respec- 12 173 Gas and Electeic Light Corporations. The Transportation Corporations Law, §| 64, 65. live places of residence discharge tlie same duties as are required of the inspector. Such deputies shall each receive an annual salary of fifteen hundred dollars to be paid in the same manner as the salary of the inspector. (Thus amended by L. 1893, ch. 385.) § 64. Inspection of gas meters. — No corporation or person shall furnish or put in use any gas meter, which shall not have been inspected, proved and sealed by the inspector, except during such time as the office of inspector may be vacant, or such inspector after request made, shall refuse or neglect to prove and seal the meters furnished for that purpose, and every gas-light corporation shall provide and keep in and upon their premises a suitable and proper appa- ratus, to be approved and sealed by the inspector of meters, for testing and proving the accuracy of the gas meters fur- nished for use by it, and by which apparatus every meter may and shall be tested, on the written request of the con- sumer, to whom the same shall be furnished, and in his presence if he desire it. If any such meter on being so tested, shall be found defective or incorrect to the prejudice or injury of the consumer, the necessary removal, inspection, correction and replacing of such meter shall be without expense to the consumer, but in all other cases he shall pay the reasonable expenses of such removal, inspec- tion and replacing; and in case any consumer shall not be satisfied with such inspection of the meter furnished' to him, and shall give to the corporation written notice to that effect, he may have such meter reinspected by the state inspector, if he require it, upon the same terms and condi- tions as herein provided for the original inspection thereof. § 65. Gas and electric light must be supplied on applica- tion. — .Upon the application, in writing, of the owner or occupant of any building or premises within one hundred feet of any main laid down by any gas- light corporation, or the wires of any electric-light corporation, and payment by him of all money due from him to the corporation, the corporation shall supply gas or electric light as may be required for lighting such building or premises, notwithstanding there be rent or compensation in arrear, for gas or electric light Gas and Elkcteio Light Coeporations. 179 The Transportation Corporations Law, §§ 66, 67. supplied, or for meter, wire, pipe or fittings, furnished to a former occupant thereof, unless such owner or occupant shall have undertaken or agreed with the former occupant to pay or to exonerate him from the payment of such arrears, and shall refuse or neglect to pay the same; and if for the space of ten days after such application, and the deposit of a reasonable sum as provided in the next section, if required, the corporation shall refuse or neglect to supply gas or electric light as required, such corporation shall for- feit and pay to the applicant the sum of ten dollars, and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue; provided that no such corporation shall be required to lay service pipes or wires for the purpose of supplying gas or electric light to any applicant where the ground in which such pipe or wire is required to be laid shall be frozen, or shall otherwise present serious obstacles to laying the same; nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money sufficient to pay the cost of his portion of the pipe or wire required to be laid, and the expense of laying such portion. § 66. Deposit of money may be required. — Every gas-light and electric-light corporation may require every person to which such corporation shall supply gas or electric-light for lighting any building, room or premises to deposit with such corporation a reasonable sum of money according to the number and size of lights used or required, or proposed to be used for two calendar months, by such person, and the quantity of gas and electric light necessary to supply the same as security for the payment of the gas and electric light rent or compensation for gas consumed, or rent of pipe or wire and fixtures, to become due to the corporation, but every corporation shall allow and pay to every such depositor legal interest on the sum deposited for the time his deposit shall remain with the corporation. § 67. Buildings may be entered for the examiuatioii of meters, lights, and-so-forth. — Any officer or other agent of any gas-light or electric-light corporation, for that purpose duly appointed and authorized by the corporation, may, at all reasonable times, upon exhibiting a written authority, 180 Gas and Electric Light Corporations. The Transportation Corporations Law, §§ 68, 69. signed by the president and secretary of tlie corporation, enter any dwelling, store, building, room or place lighted with gas or electric light supplied by such corporation, for the purpose of inspecting and examining the meters, pipes, fittings, wires and works for supplying or regulating the supply of gas or electric light and of ascertaining the quan- tity of gas or electric light consumed or supplied, and if any person shall, at any time, directly or indirectly, prevent or hinder any such officer or agent from so entering any such premises, or from making such inspection or examination at any reasonable time, he shall, for every such offense, forfeit to the corporation twenty-five dollars. §68. Refusal or neglect to pay rent. — If any person supplied with gas or electric light by any such corporation shall neglect or refuse to pay the rent or remuneration due for the same or for the wires, pipes or fittings let by th^ coi'poration, for supplying or using such gas or electric light or for ascertaining the quantity consumed or used as required by his contract with the corporation, or shall refuse or neglect, after being required so to do, to make the deposit required, such corporation may prevent the gas or electric light from entering the premises of such person; and their officers, agents or workmen may enter into or upon any such premises between the hours of eight o'clock in the forenoon and six o'clock in the afternoon, and sep- arate and carry away any meter, pipe, fittings, wires or other property of the corporation, and may disconnect any meter, pipe, fittings, wires or other works whether the property of the corporation or not, from the mains, pipes or wires of the corporation. § 69. No rent for meters to be charged. — No gas-light cor- poration in this state shall charge or collect rent on its gas meters, either in a direct or indirect manner, and any per- son, party or corporation violating this provision shall be liable to a penalty of fifty dollars for each offense, to be sued for and recovered in the corporate name of the city or vil- lage where the violation occurs, in any court having juris- diction, and when collected to be paid into the treasury of such city or village and to constitute a part of the contin- gent or general fund thereof. Watee-woeks Ooepoeations. 181 The Transportation Corporations Law, § 80. §70. Price of gas. — In any city in this state having a population of eight hundred thousand or over, no corporation or person shall charge for illuminating gas a sum to exceed one dollar and twenty-five cents per thousand feet, and such gas shall have an illuminating power of not less than twenty sperm candles, or six to the pound, and burning at the rate of one hundred and twenty grains of spermaceti per hour, tested at a distance of not less than one mile from the place of manufacture, by a burner consuming five cubic feet of gas per hour, and shall comply with the standard of purity now or hereafter established by law; but in any dis- trict or ward of any city containing over one million inhab- itants, which district or ward is separated from the main portion thereof by a streaija or other natural boundary, any gas-light corporation may charge a price not to exceed one dollar and sixty cents per thousand cubic feet, but such corporation shall not charge a greater price in the city where its main works shall be situated than in such dis- trict or ward. For explanation of interval in numbering between section 70, supra, and section 80, infra, see page 86. ARTICLE VII. Watee-woeks Coepoeations. Section 80. Incorporation. 81. Must supply water; village trustees or city officials may contract for same; tax therefor. 82. Powers. 83. Survey and map. 84. Condemnation of real property. 85. Corporation may contract with other cities, towns or vil- lages; amended certificate. § ao. Incorporation. — Seven or more persons may become a corporation for the purpose of supplying water to any of the cities, towns or villages and the inhabitants thereof in this state, by executing, acknowledging and filing a cer- tificate stating the name of the corporation, the amount of its capital stock, the number of shares into which it is to be divided, the location of its principal office, thp number of 182 Water- woEKS Coepoeations. The Transportation Corporations Law, § HI its directors, not less than seven, the names and places of residence of the directors for the first year, the name of the cities, towns and villages which it is proposed to supply with water; that the permit of the authorities of such cities, towns and villages herein required has been granted; the post-office address of each subscriber, and the number of shares he agrees to take in such corporation, the aggregate of which shall be at least one-tenth of the capital stock, and ten per centum of which shall be paid in cash to the direct- ors. At the time of filing there shall be annexed to the certificate and as a part thereof, a permit, signed and acknowledged by a majority of the board of trustees of the village, in case an incorporated village is to be supplied with water, and in case a town, or any part thereof, not within an incorporated village, is to be so supplied, by the supervisor, justice of the peace, town clerk and highway commissioners thereof or a majority of them, and in case a city is to be supplied with water by the board of water com- missioners of said city, or by such other board or set of officials as perform the duties of water commissioners and have charge of the water supply for said city, authorizing the formation of such corporation for the purpose of supply- ing such city, village or town with water, and an affidavit of at least three of the directors that the amount of capital stock herein required has been subscribed and paid in cash. (Thus amended by L. 1892, ch. 617.) For form of certificate of incorporation, see post, form No. 90. Failure to maintain water works system in proper condition does not afford a cause of action against a village. (Springfield Fire & M. Ins. Co. V. Keesville, 6 Misc. R., 233.) See comments under " Incorporators," " Corporate Name," " Objects," " Capital Stock," " Shares of Stock," " Directors," " Additional Powers!" " Liability of Stockholders," " Filing and Recording " and " Fees," on pages 155, 156, all of which are applicable to corporations under this article. §81. Must supply water; village trustees may contract for same; tax therefor.— Every such corporation shall sup- ply the authorities or any of the inhabitants of any city, town or village through which the con- duits or mains of such corporations may pass, or wherein such corporations may have organized, with pure and wholesome water at reasonable rates and Water- woEKS Cokpoeations. 183 The Transportation Corporations Law, § Si. cost, and the town board of any town, and the board of trustees of any incorporated Tillage, and the water com- missioners, or other board or officials performing the duties of water commissioners, and having charge of the water supplies of any city of this state, shall have the power to contract in the name and behalf of the municipal corpora- tion of which they are officers, for the term of one year or more, for the delivery by such company to the town, village or city, of water, through hydrants or otherwise, for the extinguishment of fires, and for sanitary and other public purposes; and the amount of such contract agreed to be paid shall be annually raised as a part of the expenses of such town, village or city, and shall be levied, assessed and collected in the same manner as other expenses of the town, village or city are raised, and when collected shall be kept separate from other funds of the town, village or city, and be paid over to such corporation by the supervisor of the town, such trustees or city officials, according to the terms and conditions of any such contract; and any such contract entered into by any town board, or by the board of trustees of any village, or by water commissioners, or other board performing the duties of water commissioners, and having charge of the water supply of any city, shall be valid and binding upon such town, village or city, but no such con- tract shall be made for a longer period than ten years, nor for a sum exceeding, in the aggregate, two and one-half mills for every dollar of the taxable property of such town, village or city, per annum, except upon a petition of a majority of the taxable inhabitants of any such town, vil- lage or city, or portion thereof, which it is proposed to sup- ply with pure and wholesome water, unless a resolution authorizing the same has been submitted to a vote of the electors of the town, village or city, in the manner provided by the town law, village law or city charter, and approved by a majority of the voters entitled to vote, and voting on such question at any annual election or special election duly called; and any town board or board of trustees, or board of water commissioners, or other city officials, when- so authorized, may make such contract for a term not exceed- ing thirty years, and the amount of such contract shall be paid in semi-annual installments; provided that in towns 184 "Water-woeks Coepoeations. The Tl-ansportation Oiporations Law, §82. where there shall be at the time of making any such con- tract an incorporated village, constituting a part only of such town, no tax shall be assessed, levied or collected upon property within the limits of such village, for such purpose, except in pursuB,nce of an agreement with the board of trus- tees of such village; and in any town where it is proposed to supply with water only a portion of such town, or the inhabitants of a portion of the town (such portion not being an incorporated village), the town board may contract, as hereinbefore prescribed, for a supply of water as aforesaid for such portion of the town, or for the inhabitants of such portion, and the whole town shall be bound by such con- tract when duly made; but the entire annual rental or expense, or such portion thereof as they may deem just, may be directed by said town board to be assessed and levied upon, and collected from the taxable property of that portion of the town which will be benefited by such supply of water; provided always that such expense shall in no case exceed per year three mills upon each dollar of the taxable property of that portion of the town. (Thus amended by L. 1892, ch. 617; L. 1893, ch. 549; L. 1894, ch. 230.) The right of a mill owner to use the waters of a stream as a propelling power is an incorporeal hereditament connected with the land and may be acquu-ed by a water-works company. (Stamford Water Co. v. Stanley, 39 Hun, 424.) A water company derives no exclusive right from the permit of the town authorities to lay and maintain water pipes and hydrants and to supply the town and its inhabitants with water. (Syracuse Water Co. v. Syracuse, IIG N. Y., 167; Matter of Brooklyn, etc., 73 Hun, 499, and cases therein cited.) § 82. Po'wrers. — Every such corporation shall have the fol- lowing additional powers: 1. To lay and maintain their pipes and hydrants for delivering and distributing water in any street, highway or public place of any city, town or village in which it has obtained the permit required by section eighty of this article. 2. To lay their water pipes in any streets or avenues or public places of an adjoining city, town or village, to the city, town or village where such permit has been oljtained. 3. To cause such examinations and surveys for its pro- posed water-works to be made as may be necessary to deter- Watee-woeks Coepoeations, 185 The Transportation Corporations Law, §§ 83, 84. mine the proper location tliereof, and for sncli purpose by its officers, agents or servants to enter upon any lands or waters in the city, town or village where organized, or in any adjoining city, town or village for the purpose of mak- ing such examinations or surveys, subject to liability for all damages done. (Thus amended by L. 1892, ch. C17.) § 83. Survey and map — Before entering upon, taking or using any land, for the purposes of its incorporation such corporation shall cause a survey and map to be made of the lands intended to be taken or entered upon, by and on which the land of each owner or occupant shall be designated, which map shall be signed by the president and secretary, and filed in office of the county clerk of the county in which such lands are situated. For provisions as to permission of highway commissioners to lay and maintain water pipes under highways in towns, see, post, page 214. § 84. Condemnation of real property. — Any corporation organized under this article, shall have the right to acquire real estate, or any interest therein necessary for the purposes of its incorporation, and the right to lay, relay, repair and maintain conduits and water pipes with connections and fix- tures, in, through or over the lands of others; the right to intercept and divert the flow of waters from the lands of riparian owners, and from persons owning or interested in any waters, and the right to prevent the flow of drainage of noxious or impure matters from the lands of others into its reservoirs or sources of supply. If any such corporation, which has made a contract with any city, town or village or with any of the inhabitants thereof for the supply of pure and wholesome water as authorized by section eighty-one of this article, shall be unable to agree upon the terms of pur- chase of any such property or rights, it may acquire the same by condemnation. But no such corporation shall have power to take or use water from any of the canals of this state, or any canal reservoirs as feeders, or any streams which have been taken by the state for the purpose of sup- plying the canals with water. (Thus amended by L. 1892, ch. 617; L. 1894, ch. 230.) For provisions as to acquisition of property by condemnation, see the con- demnation law, post. 186 Telegraph and Telephone Corpoeations. The Transportation Corporations Law, §§ 85, 100. . § 85. Corporation may contract ■with other cities, towns or villages ; amended certificate. — When any such corpora, tion has entered into a contract with the authorities of any city, town or village not mentioned in its certificate of incor- poration, but situated in the same county as the city, towns or villages mentioned therein or an adjoining county, to supply it with pure and wholesome water, it may file an amended certificate, stating the name of such other city, town or village to be so supplied with water, and it may thereupon supply any such city, town or village with water in the same manner and with the same rights and subject to the same requirements as if it had been named in the original certificate of incorporation. (Thus amended by L. 1892, ch. 617.) For explanation of interval in numbering between section 85, supra, and section 100, infra, see page 8i5. ARTICLE 7111. Telegraph and Telephone Corporations. Section 100. Incorporation. 101. Extension of lines. 102. Construction of lines. 103. Transmission of dispatches. 104. Consolidation of corporations. 105. Special policemen. Section 100. Incorporation. — Seven or more persons may become a corporation for the purpose of constructing, own- ing, using and maintaining a line or lines of electric tele- graph or telephone, wholly within or partly beyond the limits of this state, or for the purpose of owning any interest in any such line or lines, or any grants therefor by exe- cuting, acknowledging and filing a certificate, stating the name of the corporation; its general route and the points to be connected; its capital stock; the number of shares into which it is to be divided; the term of its existence; the number of its directors not less than seven; the names and residence of the directors for the first year, and the Tklegeaph and Telephone Corpoeations. 187 . The Transportation Corporations Law, § 100. post-office address of the subscribers and the number of shares which each agrees to take in such corporation. For form of cerHjkite of incorporation, see poSt, form No. 91. See comments under " Incorporators," " Corporate Name," " Objects," " Capital Stock," " Shares of Stock," " Directors," " Additional Powers," " Liability of Stockholders," " Filing and Recording " and " Fees," on pages 155, 156, all of which are applicable to corporations under this article. No maximum limit, within which the term of existence is to be fixed, has been prescribed in the foregoing section. A telephone company, invested with the power of eminent domain, and authorized by law to erect poles and string wires through the streets, removed its poles and wires from a street to the adjoining sidewalk to comply with a city ordinance. In so doing trees were necessarily trimmed by servants of the company, but under the direction of a city officer. Held, that the company was not liable in an action for trespass" brought by the owher of the trees, as the act was done under lawful authority. (Southern Bell Telephone & Telegraph Co. v. Constantine, 61 Fed. Rep., 61.) Where a telephone and telegraph company had the right to remove the wires of another company from certain fixtures, by thereafter carry- ing those wires away, it made itself liable for their conversion. (Electric Power Co. v! Met. Telephone «& Telegraph C6., 75 Hun, 68.) The United States statutes authorizing the construction and mainte- nance by telegraph companies of their lines over and along any of its military or post-roads, and making all letter carrier routes in cities post- roads (U. S. Rev. St., sections 3964-5263, 5668, act passed March 1, 1884), confer no rights upon such corporations which can divest the State of control over its public highways, or to interfere with their use as such. (Am. Rapid Tel. Co. v. Hess, 125 N. Y., 641.) The term " public roads," as used in the laws of this State, permitting telegraph companies to erect fixtures upon them, does not include the roadway of a railroad company. (N. Y. City & North. R. R. Co. v. Cen- tral Union Tel Co., 21 Hun, 261.) As to the statute of this State requiring wires in large cities; to be underground and the effect of the United States statutes authorizing tele- graph companies to use post-roads, see West. U. Tel. Co. v. New York, 38 Fed. Rep., 552. As to the liability of a telegraph company for delay in delivery of mes- sage, see Pearsall v. West U. Tel. Co., 124 N. Y., 256; Kiley v. Same, 109 N. Y., 231; Riley v. Same, 8 Misc. n., 217; see, also, Riley v. Same, 6 Misc. R., 221, and cases therein cited. In an action by a telephone company to restrain a street railroad company from operating its road by the single trolley system of electric propulsion, it was held, that as the railroad company was occupying the streets in such manner as to expedite public travel and promote the public use to which they were originally devoted, the telephone company's franchise was of a subordinate character and it could not complain that the single-trolley system interfered with the operation of its lines. (Hud- 188 Telegeaph and Telephone Coepoeations. The Transportation Corporations Law, §§ 101, 102. son River Tel. Co. y. Watervliet Tui-npike & Ry. Co., 135 N. Y., 393, revers'g 61 Hun, 140, and dist'g Story v. N. Y. & E. R. R. Co., 90 N. Y., 122; Lahr v. M. T. R. R. Co., 104 N. Y., 268, and People ex rel. v. Newton, 112 N. Y., 396; see, also, Hudson River Tel. Co. v. Watervliet T. & Ry. Co., 121 N. Y., 397.) When the statute, under which a corporation is organized, does not fix its residence or require the location of its place of business or prin- cipal office to be stated in its certificate of incorporation, a statement in such certificate of a place at which its principal office shall be located is binding neither upon the corporation nor the taxing officers for the purpose of fixing the place where the corporation shall be assessed for personal taxation, but its residence is deemed to be where its principal place of business is actually situated. (Austen v. Westchester Telephone Co., 8 Misc. R., 11; Same v. Hudson R. T. Co., 73 Htm, 96.) A telephone company may change its principal office or place of busi- ness from the place at which it was first established to any place within the State where it is actually engaged in cariTihg on its business pur- suant to authority conferred by its certificate of Incorporation. (Austen V. Hudson R. T. Co., 73 Hun, 96, and cases therein cited.) §101. Extension of lines. — Any such corporation may construct, own, use and maintain any line of electric tele- graph or telephone, not described in its original certificate of incorporation, whether wholly within or wholly or partly beyond the limits of this state, and may join with any other corporation in constructing, leasing, owning, using and maintaining such line, or hold or own any interest therein, or become lessees thereof, upon filing in the same manner as the original certificate is required to be filed an amended certificate, executed and acknowledged by at least two- thirds of the directors of such corporation, describing the general route of such line or lines, and designating the extreme points connected thereby, and upon procuring the written consent of the persons owning at least two- thirds of the capital stock of such corporation, and such amended certificate shall not be filed until there is indorsed thereon or a,nnexed thereto an affidavit made by at least three of the directors of the corporation that such consent has been obtained, which affidavit shall be filed with and be a part of such certificate. For form of certijicate of extermon, see post, form No. 93. § 1 02. Construction of lines. — Such corporation may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and Telegraph and Telephone Corporations. 189 The Transportation Corporations Law, §§ 103, 104. highways; and through, across or under any of the waters within the limits of this state, and upon, through or over any other land, subject to the right of the owners thereof to full compensation for the same. If any such corporation can not agree with such owner or owners upon the compen- sation to be paid therefor, such compensation shall be ascer- tained in the manner provided in the condemnation law. As to provisions for acquisition of property by condemnation proceed- ings, see tlie condemnation law, ^o«i. § 103. Transmission of despatches. — Every such corpora- tion shall receive despatches from and for other telegraph or telephone lines or corporations, and from and for any individual, and on payment of the usual charges by indi- viduals for transmitting despatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such despatch and entitled to have the same so trans- mitted, but arrangenients may be made with the proprietors or publishers of newspapers for the transmission for publi- cation of intelligence of general and public interest out of its regular order. §104. Consolidation of corporations. — Any corporation organized under this article may lease, sell or convey its property, rights, privileges and franchises, or any interest therein, or any part thereof to any telegraph or telephone corporation organized under or created by the laws of this or any other state, and may acquire by purchase, lease or conveyance the property rights, privileges and franchises, or any interest therein or part thereof of any such corpora- tion, and may make payments therefor in its own stock, money or property, or receive payment therefor in the stock, money or property of the corporation to which the same may be so sold, leased or conveyed, but no such lease, sale, purchase or conveyance shall be valid until it shall have been ratified and approved by a three-fifths vote of its board of directors or trustees, and by the vote or written consent of stockholders owning at least three-fifths of the capital 190 Telegraph and Telephone Corporations. The Transportation Corporations Law, § 105. stock given at a meeting of all the stockholders duly called for that purpose. § 105. Special policemen. — The police department or board of police of any city may, in addition to the police force now authorized by law, appoint a number of persons, not exceeding two hundred, who may be designated by any cor- poration operating a system of signaling by telegraph to a central office for police assistance, to act as special patrol- men in connection with such telegraphic system. And the person so appointed shall, in and about such service, have aU the powers possessed by the members of the regular force, except as may be limited by and subject to the super- vision and control of the police department or board of police of such city. No person shall be appointed such special policeman who does not possess the qualifications required by such police department or board of police for such special service; and persons so appointed shall be sub- ject, in case of emergency, to do duty as part of the regu- lar police force of the city. The police department or board of police shall have power to revoke any such appointment at any time, and every person appointed shall wear a badge and uniform, to be furnished by such corporation and approved by the police department or board of police, such uniform shall be designated at the time of the first appointment and shall be the permanent uniform to be worn by such special police, and the pay of such special patrolmen and all expenses connected with their service shall be wholly paid by such corporation, and no expense or liability shall at any time be incurred or paid by the police department or board of police of any city, for or by reason of the services of such persons so appointed. For explanation of interval in numbering between section 105, supra, and sec- tion 120, infra, see page 86. Turnpike, Plank-eoad and Beidge Coepoeations. 191 The Transportation Corporations Law, § 120. ARTICLE IX. Turnpike, Plank-road and Bridgk Corporations. Section 120. Incorporation. 121. Restriction upon location of road. 122. Agreement for use of liigliway. 123. Application to board of supervisors. 124. Commissioners to lay out road. 125. Possession of and title to real estate. 126. Use of turnpilie road by planji-road. 127. Width and construction of road. 128. Construction of bridges. 129. Certificate of completion of road or bridge. 130. Toll-gates and rates of toll, and exemptions. 131. Toll gatherers. 132 . Penalty for running a gate. 133. Location of gates and change thereof. 134. Inspectors, their powers and duties. 135. Change of route, extensions and branches. 136. Mile stones, guide-posts and hoist-gates. 137. Location of office of corporation. 138. Consolidation of corporations, sale of franchise. 139. Surrender of road. 140. Taxation and exemption. 141. Hauling logs and timber. 142. Encroachment of fences. 143. Penalty for fast driving over bridges. 144. Acts of directors prohibited. 145. Actions for penalties. 146. Proof of incorporation. 147. When stockholders to be directors. 148. Dissolution of corporation, road to be a highway. 149. Town must pay for lands not originally a highway. 150. Highway labor upon line of planli-road or turnpike. 151. Extension of corporate existence. Section 120. Incorporation. — Fire or more persons may become a corporation f6v the purpose of constructing, main- taining and owning a turnpike, plank-road or a bridge, or causeway across any stream or channel of water, or adjoin- ing bay, swamp, marsh, or water to form in connection with such bridge or causeway a continuous roadway across the same, by signing, acknowledging and filing a certificate containing the name of the corporatioi;i, its duration, not exceeding fifty years, the amount and number of shares of its capital stock, the number of its directors, and their 192 Turnpike, Plank-road and BRroGE Corporations. The Transportation Coi-porations Law, §§ 121, 132. names and post-ofilce address for the first year, the termini of the proposed road, its length, and each town, cily or vil- lage into or through which it is to pass, or of a bridge, the location and plan thereof, and the post-office address of each subscriber, and the number of shares of stock which he agrees to take, the aggregate of which subscriptions shall not be less than five hundred dollars for every mile of road, or if a bridge corporation not less than one-fourth of the amount of the capital stock, and five per cent of which must be actually paid in cash. There shall be indorsed on and annexed to the certificate and made a part thereof the affidavit of at least three of the directors named therein, that the required amount of capital stock has been sub- scribed and the prescribed percentage paid in cash. For forms of certificatM of incorporation, see post, forms Nos. 93 and 94. See the comments under " Incorporators," " Corporate Name," " Objects," " Capital Stock," " Shares of Stock," " Directors," "Additional Powers," " Liability of Stockholders," " Filing and Recording " and " Fees," on pages 155, 15G, all of which are applicable to coi-porations under this article. It should be noted, however, that there is neither a maximum nor a minimum limit as to directors in the foregoing section. For provisions regulating extension of coiporate existence, see page 207. The power is extended to certain corporations maintaining bridges to operate a railway tliereoa. See post, pa<];e 21o. As to the right of a corporation to maintain toll gates under the fran- chise of another company after expiration of its own charter, see People V. De Grauw, 133 N. Y., 254, and cases therein cited. §121. Restrictions upon location of road. — No such rnad shall be laid out through any orchard of the growth of four years or more to the injury or destruction of fruit trees, or through any garden cultivated for four years or more before the laying out of the road, or through any dwelling-house or building connected therewith, or any yards or inclosures necessary for its use or enjoyment without the consent of the owner thereof, nor shall- any such corporation bridge any stream in any manner that will prevent or endanger the passage of any raft of twenty-five feet in width, or where the same is navigable by vessels or steamboats. § V22. Agreement for use of highways. — The supervisor and commissioner of highways, or a majority if there be more than one of any town, may agree in writing with any such corporation for the use of any part of a public high- TxiENPIKE, PlANK-EOAD AND BkID&E CORPORATIONS. 193 The Transportatiou Ciirporations Law, § US. ■way therein required for the construction of any such road, and the compensation to be paid by the corporation for taking and using such highway for such purpose on first obtaining consent of at least two-thirds of all the owners of land bounded on or along such highway, which agree- ment shall be filed and recorded in the town clerk's office of the town. If such agreement can not be made the cor- poration may acquire the right to take such highway for such purpose by condemnation. The compensation there- for shall be paid to the commissioners of highways, to be expended by them in improving the highways of the town. § 12:j. Application to board of supervisors — If the lands necessary for the construction of the road or bridge of any such corporation in any county have not been procured by gift or purchase, and the right to take and use any part of any highway therein required by such corporation shall not have been procured by agreement with the supervisor and commissioners of highways of the town in which such highway is situated, the corporation may make application to the board of supervisors of each county in which such bridge or road, or any part thereof, is to be located, for authority to build, lay out and construct the same, and take the necessary real estate for such purpose. Notice of the application shall be published in at least one public news- paper in each county for six successive weeks, specifying the time and place where it will be made, the location, length and breadth of any such bridge, and the length and route of any such proposed road, its character, and each town, city and village in or through which it is to be con- structed. The application may be made at any annual or special meeting of the board, and if the corporation desires a special meeting therefor any three 'members of the board may fix a time when thfe same shall be held, and notice thereof shall be served upon each of the other supervisors by delivering the same to him personally or leaving it at his place of residence at least twenty days before the minutes,* and the expenses of the special meeting and of notifying the members of the board thereof shall be paid by the corporation. All persons interested therein or own- ing real estate in any of the towns through which it is * So in the original, 13 194 Turnpike, Plank-eoad and Bridge Corporations. The Transportation Corporations Law, §§ 124, 135. proposed to construct the road may appear and be heard upon the hearing of the application. The board may take testimony in respect thereto, or authorize it to be taken by a committee of the board and may adjourn the hearing from tiine to time. After hearing the application the board may, by an order entered in its minutes, authorize the cor- poration to construct such bridge or road and to take the real estate necessary for that purpose, and a copy of the order certified by the clerk of the board shall be recorded by the corporation in the office of the clerk of the county in which such bridge or road or any part thereof is to be located before any act shall be done under it. §124. Commissioners to lay out road. — If the applica- tion for the construction of any such road is granted, the board shall appoint three disinterested persons, not owners of real estate in any town, through which the road is to be constructed or in any adjoining town, commissioners to lay out the road. They shall take the constitutional oath of office, and without unnecessary delay lay out the route of such road in such manner as in their opinion will best pro- mote the public interests; they shall hear all persons inter- ested who shall apply to be heard and may take testimony in relation thereto, and shall cause an accurate survey and description of the road and the necessary buildings and gates, signed and acknowledged by them to be recorded in the clerk's office of the county. If the road is situated in more than one county, such survey and description shall be separate as to that portion in each county and filed in the office of the clerk of the county in * which it relates. The corporation shall pay each commissioner three dollars for every day spent by him in the performance of his duties and his necessary expenses. § IS.*?. Possession of and title to real e&tate — Thp route so laid out and surveyed by the commissioners shall be the route of the road, and the corporation may enter upon, take and hold for the purposes of its incorporation, the lands described in such survey as necessary for the con- struction of its road, and requisite buildings and gates. If for any cause the owner of any such lands shall be inca- •So in the original. Turnpike, Pjlank-eoad and Bridge Corporations. 195 The Transportation Corporations Law, § 126. pable of selling the same or his name or residence can not, with reasonable diligence be ascertained or the corporation is unable to agree with the owner for the purchase thereof, it may acquire title thereto by condemnation. For provisions as to acquisition of property by condemnation proceed- ings, see the condemnation law, post. § 126. Use of turnpike road by plank-road. — No plank- road shall be made on the roadway of any turnpike cor- poration without its consent, except for the purpose of crossing the same. Any plank-road corporation may con- tract with any connecting turnpike corporation for the pur- chase of its roadway or a part thereof, or of its stock, on such terms as may be mutually agreed upon, and such stock, if purchased, shall be held by the plank-road corporation for the benefit of its stockholders in proportion to the amount of stock held by each, and a transfer of stock in the plank-road corporation shall carry with it its propor- tional amount of the turnpike stock, and entitle the holder thereof to his share of the dividends derived therefrom. After the purchase of the whole of the stock of any such turnpike corporation by such plank-road corporation the directors of the plank-road corporation shall be the directors of the turnpike corporation, and shall manage its affairs and render an account of the same annually to the stock- holders of the plank-road corporation. If the plank-road corporation is dissolved, its stockholders at the time of dis- solution shall be the stockholders of the turnpike corpora- tion in proportion to the amount of stock held by each, and the stock of the turnpike corporation shall thereafter be deemed to be divided into shares equal in number to the shares of stock of the late plank-road corporation, and scrip therefor shall be issued accordingly to each of the last stockholders of the* plank-road corporation, and the officers of the turnpike corporation shall be the same in number as provided for in its charter or certificate of incorporation, and shall be chosen by such former stockholders of the plank*-road corporation or their assigns. A corporation owning a turnpike road on or adjoining which a plank- road shall have been constructed may abandon that por- tion of its road on or adjoining the route of which a plank- road is actually constructed and used. 196 Tdbnpike, Plank-eoad and Bridge Corporations. The Transportation Corporations Law, §§ 137, 128. § 127. "Width and construction of road. — Every sncli plank-road shall be so constructed as to make, secure and maintain a smooth and permanent road, the track of which shall be made of timber, plank or other hai'd material form- ing a hard and even surface, and every such turnpike road shall be bedded with stone, gravel or such other material as may be found on the line thereof, and faced with broken stone or gravel, forming a hard and even surface with good and sufficient ditches on each side wherever practicable, and all such roads shall be laid out at least four rods wide and the arch or bed at least eighteen feet wide, and shall be so constructed as to permit carriages and other vehicles conveniently to pass each other, and to pass on and off such road where intersected with other roads. Any corporation which shall have once laid its road with plank may relay the same, or any part thereof, with broken stone, gravel, shells or other hard materials, forming a good and substan- tial road. Any plank-road or turnpike corporation may lay iron rails on its road suitable for the use of wagons and vehicles drawn by horses or animals over its road, but no other motive power shall be used thereon. § 128. Construction of bridges ; obstruction of rafts pro- hibited. — Every bridge constructed by any such corporation shall be built with a good and substantial railing or siding at least four and one-half feet high, and over any stream na-s'igable by rafts the corporation shall keep the channed of the stream above and below the bridge free and clear from all deposits, formed or occasioned by the erection of the bridge, which shall in any wise obstruct the navigation thereof, and shall be liable to all persons unreasonably or unnecessarily delayed or hindred in passing the same for all damages sustained thereby. Nothing in this act shall be construed to authorize the bridging of Sny river or water course where the tide ebbs and flows or any water used for a harbor, or any lake, river or water which is navigable by sail vessels or steamboats, nor the construction of any bridge within the limits prescribed by any existing law for the erection or maintenance of any other bridge. (Thiisamended by L. 1895, ch. 723.) Turnpike, pLAistK-Roit) and Bridge Corporations. 197 The Transportation Cnrporations Law, §§ 139, 130. § 129. Certificate of completion of road or bridge. — When any such, corporation shall have completed its bridge or road or any five consecutive miles thereof, it may apply to the commissioners of highways of eacli town in which the completed road or bridge is situated to inspect the same, and if a majority of the commissioners are satisfied that the road or bridge is made and completed as required by law and in a manner safe and convenient for the public use, they shall make a certificate to that effect, which, shall be filed in the office of the county clerk. Each commissioner shall be paid by the corporation two dollars per day for his services and necessary expenses. For provisions in relation to unsafe toll-bridges, see post, page 314. '■ §130. Gates, rates of toll ; and exemption. — Upon filing such certificate such, corporation inay erect a toll-gate at such, bridge or one or more toll-gates upon the road so inspected, and may demand and receive the following rates of toll, a printed list of which shall be conspicuously posted at, or over each gate : If a bridge corporation, such sum as shall be from time to time prescribed by the board of supervisors of the county or counties in which the bridge is located. If a turnpike or plank-road, for every vehicle drawn by oae animal, one cent per mile, and one cent per mile for each additional animal; for every vehicle used chiefly for carrying passengers, three cents per mile, and one cent per mile for each, additional animal; for every horse rode, led or driven, three-quarters of a cent per mile; for every score of sheep or swine, one and one-half cents per mile, and for every score of neat cattle, two cents per mile. When diverging roads strike any plank-road or turnpike at or near any toll-gate, the board of supervisors of the county may direct that the toll charge shall commence from the point of such divergence, and only for the distance traveled on such turnpike or plank-road, but fractions of cents may be made units of cents in favor of the plank-road or turnpike corporation. The corporation may from time to time commute, but not for a longer period than one year at any one time, with any person whose place of abode shall adjoin or be near to the road for the toll payable at the nearest gate on each side thereof, and the commutation may be renewed from year to year. No tolls shall be 198 Turnpike, Plank- road and Brtdgk Cokpokations. The Transportation Corporations Law, §§ 131, 132, 133. charged or collected at any gate, from any person going to or from public worship, a funeral, school, town meeting or election at which he is a voter to cast his vote, a military parade which he is required by law to attend, any court which he shall be required to attend as a juror or witness, nor when going to or from his required work upon any pub- lic highway, nor when transporting troops in the actual service of the United States ; and no toll from persons living within one-half mile of the gate by the most usual traveled road when not engaged in the transportation of other per- sons or property except that persons living within one mile of the gate, by the most usually traveled road, in an incor- porated village of over six thousand inhabitants, when not engaged in the transportation of the persons or property shall be exempt from the payment of toll. (Thus amended by L. 1893, ch. 538.) § ISI. Toll gatherers. — Every sucli corporation may appoint toll gatherers to collect toll at each gate, who may detain and prevent from passing through the giate, any per- son riding, leading or driving animals or vehicles, subject to the payment of toll, until the toll is paid, but if he shall unreasonably hinder or delay any traveler or passenger liable to the payment of toll, or shall demand or receive from any person more toll than he is authorized by law to collect, he shall forfeit to such person the sum of five dol- lars for every offense, and the corporation employing him shall be liable for the payment thereof, and for any damages sustained by any person for acts done or omitted to be done by him in his capacity of toll gatherer, if, on recovery of judgment against the toll gatherer therefor, execution thereon shall be returned nulla bona. § 1 32. Penalty for running a gate — Any pprson who, with intent to avoid the payment of toll, shall pass any gate, without paying the toll required by law, or shall, with his team, carriage or horse, turn out of a turnpike or plank- road and pass any gate thereon on ground adjacent thereto, shall forfeit for each offense the sum of ten dollars to the corporation injured. § 133. liocation of gates and change thereof. — No such corporation shall erect any toll-gate, house, or other build- ing within ten rods of the front of any dwelling house, bam TUBMPIKBj PlANK-EOAD AND BlUDQE OOEPOEATlONS. 199 The Transi^-tation Curporations Law, §,133. or other out-house, without the written consent of the owner, and the county judge of the county in which the same is located shall, on application, order any building BO erected to be removed, and if a majority of the commis- sioners of highways of any town, in which a toll-gate shall be located, or in an adjoining town, shall deem the location of any gate unjust to the public interests by reason of the proximity of diverging roads or otherwise, they may, on fifteen days' written notice to the president or secretary of the corporation, apply to the county court of the county in which the gate is located, for an order to alter or change its location. On hearing such application, and viewing the premises, if deemed necessary, the court may make such order in the matter as may be just and proper. Either party may, within fifteen days thereafter, appeal to the general term of the supreme court from such order, on giving such security as the county judge, making the order, may pre- scribe. Upon such appeal the supreme court, oh motion of either party and on due notice, shall appoint three dis- interested persons, who are not residents of any town through or into which such road shall run, or to or from which it is the principal thoroughfare, or any adjoining town, as referees to hear, try and determine the appeal. Such referees shall view the premises and the location of the gate, and hear the parties in the same manner as on the trial of an issue of fact by a referee in a civil action in the supreme court, and report their decision thereon and the reasoiis therefor, and the evidence taken thereon to the supreme court, and such court shall review the report and render judgment thereon as justice and equity shall require, which shall be final and conclusive. The referees shall be entitled to the same fees as referees in civil actions in th^ supreme court, to be paid in the first instance by the party in whose favor their report or decision shall be, and the supreme court shall award judgment therefor, with such costs and expenses as it may deem reasonable, to the suc- cessful party on the appeal, which judgment shall be entered with the order affirming or reversing the order appealed from, and may be enforced by execution as a judg- ment of a court of record. If the order of the county court is not appealed from, it may be enforced, as the court may 200 TdEUPIKB, PliANK-fiOAD AND B&IDGB CoBPOEATION^S. Tlie Transportation CorporationslLaw, § lb4. direct, and the court may allow such costs as may be deemed just and equitable. § 134. Inspectors ; their powers and duties. — The com- missioners of highways of the several towns and the trus- tees or otner omcers in the incorporated cities and villages of the state, who perform the duties of commissioners of highways in such cities and villages, shall be inspectors of plank-roads and turnpikes, in their respective towns, cities and villages. They shall personally inspect the whole of such turnpike or plank-road as lies in their respective towns, villages or cities, at least once in each month, and upon written complaint to them, or any of them, that any part of such road is out of repair they shall, without delay, view and examine the part complained of, and if it shall be found to be out of repair, or in condition not to be con- veniently used by the public, they shall give written notice to the toll gatherer or person attending the gate nearest the place out of repair or in bad condition to cause the same to be put in good condition within forty-eight hours from the service of the notice, and in default thereof they shall order the toll-gates upon such road to be immediately thrown open until the road shall be fully repaired to the satisfaction of the inspector. The fees of the inspectors for such services shall be two dollars for each day actually employed, to be paid by the corporation or person whose road is so inspected, if they order the gates to be thrown open, but otherwise to be charged, audited and paid in the same manner as other fees of commissioners of high- ways. Any party aggrieved by the order of the inspectors may appeal therefrom to the county court of the county in which that part of the order* is situated within twenty days after service of the order by serving a notice of appeal upon one of the inspectors, and filing a copy thereof in the county clerk's office, and the appeal may be brought on for hearing upon a notice of not less than five days, and the county court shall always be open to hear the same, and upon hearing' the proofs and allegations of the parties the court may affirm, reserve or modify the order. If the order requires the gates to be thrown open, they shall remain open during the pendency of the appeal. Any inspector who * So in the •riginal. TtJENPIKE, PLANK-iROAD AND BkIDGE OoEPOEATIONS. 201 The Transportation Corporations Law, §§ 135, 130. sh.all neglect to perform his duties as such inspector shall forfeit the sum of twenty-five dollars for each offense. Every keeper of a gate ordered to be thrown open not immediately obeying such order, or not keeping such gate open until a certificate permitting it to be closed shall be granted, or hindering or delaying any person in passing, or taking any tolls from any person passing such gate during the time it ought to be open, shall forfeit to the party aggrieved the sum of ten dollars for each offense, and the corporation owning the road, who shall refuse or neglect to obey the requirements of any such notice or order, shall forfeit to the people of the state the sum of two hundred dollars for each offense. § 1 35. Change of route ; extension of branches. — Any such corporation may, with the written consent of the own- ers of two-thirds of its capital stock and of a majority of the commissioners of highways of the town or towns, in which any change or extension is proposed to be made, construct branches to its main line or extend the same, or change the route of its road or any part thereof, and acquire the right of way for the same in the same manner as for the original or main line, and may, by any of its officers, agents or ser- vants, enter upon lands for the purpose of making an exam- ination, survey or map, doing no necessary damage; but before entering upon, taking or using such lands, the corpo- ration shall make a survey and map thereof, designating thereon the lands of each owner or occupant intended to be taken or used, which shall be signed and acknowledged by the engineer making the same and the president of the cor- poration and filed in the office of the clerk of the county in which the land is situated. §136. Mile stones, guide posts and hoist-gates. — A mile stone or post shall be erected and maintained by every such corporation on each mile of its road, on which shall be fairly and legibly marked or inscribed the distance of such stone or post from the place of commencement of the road, and when the road shall commence at the end of any other road having mile-stones or posts on which the distance from any citv or town is marked, a continuation of that distance shall in like manner be inscribed. A guide-post shall also be erected at the intersection of every public road leading into 202 Ttjknpike, Flank-eoad and BEroGK Coepokations. The Transportation Corporations Law, §§ 137, 188. or from every turnpike or plank-road, on which shall be inscribed the name of the place to which such intersecting road leads in the direction to which the name on the guide- post shall point. No plank road or turnpike corporation shall erect or put up any hoist-gate on its road. Any per- son who shall willfully break, cut down, deface or injure any mile-stone, post or gate on such road, or dig up, or injure any part of the road, or anything belonging thereto, shall forfeit to the corporation twenty-five dollars for every offense, in addition to the damages resulting from the act. § 187. Location of oflB.ce of corporation. — Within two weeks after the formation of any such corporation its direc- tors shall designate some place within a county in which its road or bridge, or some part thereof shall be constructed as its office, and shall give public notice thereof by publish- ing the same once in each week for three successive weeks in a public newspaper in the county, and shall file a copy of the notice in the office of the county clerk of every county in which any part of the road or bridge is, or is to be con- structed, and if the location of such office shall be changed, like notice of the change shall be published and filed, in which shall be specified the time of making the change, before it shall take effect. Eveiy notice, summons or other paper required by law to be served on the corporation may be served by leaving the same at such office with any per- son having charge thereof, at any time between nine o'clock in the forenoon, and five o'clock in the afternoon of any day except Sunday or a legal holiday. § 138. Consolidation of corporations and sale of fran- chise. — Any two or more of such corporations may consoli- date into one corporation on such terms as the persons own- ing two-thirds of the stock of each corporation may agree upon, and may change the name of the road on filing in the office where the original certificates of incorporation were filed, a certificate containing the names of the roads so con- solidated, and the name by which such road shall there- after be known. Any plank-road or turnpike corporation may, with the consent of the owners of sixty per cent of its stock, sell, and convey the whole or any part of its rights, property and franchises to any other domestic plank-road or turnpike corporation, and such sale and conveyance shall TuKNPiKE, Pl,a.nk-eoad AND Beidge Cokpoeations. 203 The Transportation Corporations Law, §§ 139, 140. vest the rights, property and franchises thereby transferred in the corporation to which they are conveyed for the term of its corporate existence. § 139. Surrender of road. — The directors of any plank-road or turnpike corporation may abandon the whole or any part of its road at either or both ends thereof, upon obtain- ing the written consent of the stockholders, owning two- thirds of the stock of the corporation, which surrender shall be by a declaration in writing to that effect, attested by the seal of the corporation and acknowledged by the president and secretary. Such declaration and consent shall be filed and recorded in the clerk's ofiSce of the county in which any part of the road abandoned shall be situated, and the road so abandoned shall cease to be the road or property of the corporation, and shall revert and belong to the several towns, cities and villages through which it was constructed, and the corporation shall no longer be liable to maintain it or to be assessed thereon, or permitted to collect tolls for traveling over the same, but without impairing its right to take toll on the remaining part of its road at the rate pre- scribed by law. § 140. Taxation and exemption. — So much of any bridge or toll-house of any bridge corporation as may be within any town, ci,ty or village, shall be liable to taxation therein as real estate. Toll-houses and other fixtures and all prop- erty belonging to any plank-road or turnpike corporation shall be exempt from assessment and taxation for any pur- pose until the surplus annual receipts of tolls on its road over necessary repairs and a suitable reserve fund for repairs or relaying of plank, shall exceed seven per cent per annum on the first cost of the road. If the assessors of any town, village or city and the corporation disagree con- cerning any exemption claim, the corporation may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to both parties, examine the books and vouchers of the corporation, and take such further proof as he shall deem proper, and decide whether such corporation is liable to taxation under this section, and his decision shall be final. 204: TiTENPIKE, PlANK-SOAD and BeIDWE COEPOEATIONS. The Transportation Corporations Law, §§ 141, 142, 143. § 141. Hauling logs and timber. — Any person who shall draw or haul or cause to be drawn or hauled, any logs, tim- ber or other material upon the bed of any plank or turnpike road, unless tke same shall be entirely elevated above the surface of the road on wheels or runners, and the road-bed shall be injured thereby, or who shall do or cause to be done any act by which the road-bed, or any ditch, sluice, culvert or drain appertaining to any turnpike or plank-road shall be injured or obstructed, or shall divert or cause to be diverted, any stream of water so as to injure or endanger any part of such, road, shall forfeit to the corporation the sum of five dollars for every offense in addition to the dam- ages resulting from the wrongful act. § 142. Encroachment of fences. — Whenever the president or secretary of any turnpike or plank-road corporation shall notify any inspector of such roads in the county where sit- uated that any person is erecting or has erected any fence or other structure upon any part of the premises lawfully set apart for any such turnpike or plank-road, the inspector shall examine into the facts and order the fence or other structure to be removed if it shall appear to be upon any part of any such road, and any person neglecting or refusing to remove the same within twenty days or such further time not exceeding three months, as may be fixed by the inspec- tor, shall forfeit to the corporation the sum of five dollars for every day, during which the fence or other structure shall remain upon such road, but no such order shall require the removal of any fence, previously erected, between the first day of December and the first day of April. § 143. Penalty for fast driving over bridges. — Any plank- road, turnpike or bridge corporation may put up and main- tain at conspicuous places at each end of any bridge, owned or maintained by it, the length of whose span is not less than twenty-five feet, a notice with, the following words in large characters : " One dollar fine for riding or driving over this bridge faster than a walk." Whoever shall ride or drive faster than a walk, over any bridge, upon which such notice shall have been placed, and shall then be, shall for- feit to the corporation the sum of one dollar for every such offense. Turnpike, Plank-eoad. and Bridge Coepoeations. 205 The Transportation Corporations Law, §§ 144, 145, 146, 147, 148. §144. Acts of directors prohibited. — No director of any such corporation shall be concerned, directly or indirectly, in any contract for making or working any road belonging to it during the time he shall be a director. No contractor for the making of such road, or any part thereof, shall make a new contract for the performance of his work, or any part of it, other than by hiring hands, teams, carriages or uten- sils, to be superintended and paid by himself, unless such new contract and its terms be laid before the board of direc- tors and be approved by them. §145. Actions for penalties. — No action to recover any penalty against any turnpike or plank-road corporation, shall be commenced or maintained against it, or any of its officers or agents, unless commenced within thirty days after the penalty was incurred. § 14K. Proof of incorporation. — In any action brought by or against any domestic turnpike or plank-road corporation, which shall have been in actual operation, and in posses- sion of a road upon which it has taken toll for five consecu- tive years, next preceding the commencement of the action, parol proof of such corporate existence and use shall be sufftcient to establish the incorporation of the corporation, for all the purposes of the action, unless the opposing party shall set up a claim in his complaint or answer duly verified of title in himself to the road, or some part thereof stating the nature of his title, and right to the immediate possession and use thereof. § 147. When stockholders to be directors.— When the whole number of stockholders in any turnpike or plank-road corporation shall not exceed the number of the directors specified in the certificate of incorporation, each stockholder shall be a director of such corporation, and the stockhold- ers shall constitute the board of directors, whatever may be their number, and a majority thereof shall be a quorum for the transaction of business. § 1 48. Dissolution of corporation.— Every turnpike, plank road or bridge corporation may be dissolved by the legisla- ture when, by the income arising from tolls, it shall have been compensated for all moneys expended in purchasing, making, repairing and taking care of its road, and have 206 Turnpike, Plank-eoad and Betdge Coepoeations. The Transportation Corporations Law, § 149. received in addition thereto an average annual interest at the rate of ten per cent, and on such dissolution all the rights and property of the corporation shall vest in the people of the state. Any such corporation, which shall not within two years from the filing of its certificate of incorpo- ration, have commenced the construction of its road or bridge and actually expended thereon ten per cent of its capital, or which shall not within five years from such filing have completed its road or bridge, or in case such bridge is destroyed, shall not rebuild the same within five years, or which, for a period of five consecutive years shall have neglected or omitted to exercise its corporate functions shall be deemed dissolved. Where the corporation has neglected or omitted for five years to exercise its corporate functions, and its road-bed or right of way shall have been used as a public highway for that period, or where any such corpo- ration shall have become dissolved, or where the road or any part of it of a turnpike or plank-road corporation, or the bridge of any bridge corporation, shall have been discon- tinued, such road-bed or right of way, and such discontinued road or bridge, and the road or bridge of any such dissolved corporation, shall thereafter be a public highway, with the same effect as if laid out by the commissioners of highways of the town, and be subject to the laws relating to highways and the erection, repairing and preservation of bridges thereon. § 149. To-wn must pay for lands not originally a high- way. — When the C'irporatp existence of any plank-road or turnpike corporation shall have ceased by limitation of time, or where any judgment of ouster or dissolution, or restraining the exercise of its franchises has been rendered in any action against it, such portion of the line of its road as was built over lands which were originally purchased by it and not previously a public highway shall not be used as a public highway, nor be taken possession or control of by the town in which the same may be, or by any of the author- ities thereof or be claimed or worked or used as a public highway until the town shall pay over to the treasurer, receiver or other legal representatives of the corporation, or its assigns, the principal sum of the amounts paid by it for such lands, as shown by the deeds of conveyance thereof Turnpike, Plank-road and Bridge Corporations. 207 The Transportation Corporations Law, §§ t50, 151. to it, and every sucli iudgment shall provide accordingly. Such payments shall be made within three months after the expiration of the corporate existence of the corporation, or if any siich judgment has been or shall be rendered within three months after service of written notice of the entry thereof on the supervisor of the town, and the person receiv- ing such payment shall execute a proper discharge therefor and a conveyance to the town of all the title and interest which the corporation had in such lands at the expiration of its corporate existence. § 1 50. High-way labor upon line of plank-road or turn- pike. — Every person liable for highway labor living or owning property on the line of any plank-road or turnpike may, on written application to the commissioners of high- ways of the town, on any day previous to making out the highway warrant by the commissioners, be assessed for the highway labor upon his property upon the line of such road, in the discretion of the commissioners to be worked out upon the line of such road as a separate road district, and • the commissioners shall make a separate list of the per- sons and property so assessed, as for a separate road dis- trict, and deliver the same to one of the directors of the corporation owning such road, who shall cause such high- way labor to be worked out on such road in the same man- ner that oversees* of highways are required to do, and such directors shall possess the powers and have the authority to compel the performance of such highway labor or the payment of the tax therefor as such oversees* now have by law, and shall make like returns to the commissioner of highways, and any person so assessed may commute for the highway labor assessed upon him or his property by paying the sum now fixed by law as the commutation for such high- way labor. §151. Extension of corporate existence.— No turnp"ke plank-road or bridge corporation shall extend its corporate existence, pursuant to the provisions of the general corpo- ration law, without the written consent of the persons own- ing at least two-thirds of its capital stock, nor without the consent of the boiard of supervisors of each county in which * So in the original. 208 Miscellaneous Provisions. The Transportation Corporatious Law, §§ 160, 161. any part of its road or bridge is situated, which consent shall be given by a resolution of the board adopted at any regular or special meeting, and a copy of such resolution, certified by the clerk of the board, or verified by the affidavit of some member thereof, together with such consent of the stockholders, and a statement verified by the affidavit of the president and treasurer of the corporation, showing the actual capital expended upon the construction of the road, exclusive of repairs, the name of each town or ward through or into which the road passes, and, if any part of the road shall have been abandoned, the actual cost of the remaining part, exclusive of repairs, shall be filed with the certificate of the continuance of the corporate existence. No further abandonment of any road belonging to a corporation whose corporate existence has been so extended shall be made, except with the consent of a majority of the board of super- visors of the county in which the abandoned portion of the road may lie, which consent shall be filed in the office of the clerk of the county. For form, of ci'rUjicate of extension, see post, form No. 95. For explanation of interval in numbering between section 151, supra, and sec- tion 160, infra, see page 86. ARTICLE X. Miscellaneous Provisions. Section 160. Laws repealed. 161. Saving clause. 16?. Construction. 163. When to take effect. Section 160. Laws repealed.— Of the laws enumprated in the schedule hereto annexed, that portion specified in the last column is repealed. Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed. See the note on page 66. § 161. Saving clause. — The reppal of a law or any part of it specified in the annexed schedule shall not affect or impair any act done, or right accruing, accrued or acquired, Miscellaneous Provisions. 209 The Transportation Corporations Law, §§ 163, 163. or liability, penalty, forfeiture or punisliment incurred prior to May first, eighteen hundred and ninety-one, under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent, as if such law had not been repealed; and all actions and proceedings civil or criminal, commenced under or by virtue of the laws so repealed and pending on April thirtieth, eighteen hundred and ninety-one, may be prose- cuted and defended to final effect, in the same manner aa they might under the laws then existing, unless it shall be otherwise specially provided by law. See the^ General Corporation Law, section 35, and notes thereunder, page 52.' § 162. Construction. — The provisions of this chapter, so far as they are substantially the same as those of laws exist- ing on April thirtieth, eighteen hundred and ninety-one, shall be construed as a continuation of such laws, modified or amended according to the language employed in this chapter, and not as new enactments ; and references in laws not repealed to provisions of laws incorporated into this chapter and repealed shall be construed as applying to the provisions so incorporated, and nothing in this chapter shall be construed to amend or repeal any provision of the Crimi- nal or Penal Code. See the General Corporation Law, section 36, and notes thereunder,, pages 53 and 54. §163. When to take effect. — This chapter shall take effect on May first, eighteen hundred and ninety-one. U 210 Schedule of Liws Repealed. The Transportation Corporations Law. Schedule of Laws Repealed. Revised Statutes, Part 1. Chap. 18, Title 1. All. Li-ws OB* Chapter Sections. 1836 284 All. 1838 262 All. 1S47 210 All. 1847 287 All. 1847 398 All. 1848 37 AIL 1848 45 All. 1848 265 All. 1848 259 All. 1848 360 All. 1849 250 All. 1849 362 All. 1850 71 All, except the 1851 107. All. [first section. 1851 487 ; . All. 1851 98 All. 1852 228 All. 1852 372 All. 1853 124 All. 1853 135 All. 1853 245 All, 1853 471 All. 1853 626 All. 1854 3 All. 1854 87 All. 1854 232 All. . 1855 300 All.» 1855 485 All. 1855 546 All. 1855 559 All. 1857 83 All. 1857 202 All. 1857 643 All. 1858 10 All. *ThiB law, inadvertently repealed in the foree^oing scbedalein 1890, has beeu revived^b/ L. 189S, cb. 687. See the General Corporation Law, section 37, page 54. Schedule of Laws Kbpbaled. 211 . » , The Transportation Corporations Law. Laws of Chapteb Sections. 1859 209 AU. 1859 311 All. 1860 116 All. , 1861 215 All. 1861 238 All. 1862 205 All. 1862 248 All. 1862 425 ; . . . All. 1865 691 All. 1865 780 All. 1866 780 All. 1867 419 All. 1867 974 All. 1868 253 All. 1869 234 All. 1870 443 All. 1870 568 All. 1871 95 All. 1872 128 AU. 1872 283 All. 1872 374 All. 1872 779 All. 1872 780 All. 1873 440 All. 1873 737 All. 1875 4 All. 1875 120 All. 1875 319 All. 1875 445 All. 1876 135 All. 1876 373 All. 1876 415 All. 1876 435 All. 1877 164 All. 1878 203 All. 1878 394 All. 1879 214 All. 1879 253 All. 1879. '.. 377 All. 1879 441 All. 212 Schedule of Laws Repealed. 1 The Transportation Corporationg Law. Laws of CHArxER SECTiONe. 1879 512 All. 1880 90 All. 1880 484 AU. 1881 77 AU. 1881 ■ 117 All. 1881 213 All. 1881 311 All. 1881 313 All. 1881 337 All. 1881 464 All. 1881 674 All. 1882 289 All. 1883 216 All. 1883 323 All. 1883 409 All. 1883 482 All. 1883 483 All. 1883 497 All. 1884 386 All. 1885 153 All. 1885 141 All. 1885 422 All. 1885. 423 All. 1886 248 All. 1886 321 All. 1886 322 All. 1887 570 All. 1888 462 All. 1889 369 All. Miscellaneous Acts. 213 'I'he Transportation Corporations Law. Miscellaneous Acts Applicable to Transportation Corporations. Navigation Companies — Tax Exp:mptions. L. 1881, ch. 433, as amended by I>. 1892, ch. 661. An act to exempt from all state or local taxation, vessels registered in any port in the state of New York owned by American citizens or corpo- rations, or organized under the laws of the state of New York, and engaged in ocean commerce between any port in the United States and any foreign port, and to exempt for a limited period the capital stock, franchise and earnings of such corporations from taxation for state and local purposes. §1. All vessels registered at any port in tMs state and owned by any American citizen, or association, or by any corporation, incorporated under the laws of the state of New York, engaged in ocean commerce between any port in the United States and any foreign port, are exempted -from all taxation in this state, for state and local purposes; and all such corporations, all of whose vessels are employed between foreign ports and ports in the United States, are exempted from all taxation in this state for state and local purposes upon their capital stock, franchises and earnings for the period of thirty years. Towns may contiiact fok lighting. L. 1893, ch., 253, as amended by L. 1893, ch. 79. An act to authorize the several towns in this state to establish lamp or lighting districts outside the limits of any incorporated village or villages therein, and to provide for the lighting of the public buildings, streets, avenues, highwajjs and public places in said districts. § 1. It shall be lawful for the town board of any town in this state to contract for the lighting of the streets, ave- nues, highways, public places and public buildings therein, outside of the corporate limits of any incorporated village in said town, upon such terms and for such time or period not exceeding ten years as the town board may deem proper or expedient, and for the payment of the expenses thereof may establish one or more lamp or lighting districts therein. § 2. No such contract shall be made unless a petition for such lighting signed by not less than twenty-five of the tax- 214 Miscellaneous Acts. The TraDsportation Corporations Law. able inhabitants of said town, shall be filed with the town clerk of said town. § 3. The town board, upon the filing of such petition, shall cause notice of the same to be published for one week in one or more of the newspapers published in such town, or if no newspaper be published therein, then by posting said notice in at least six public or conspicuous places in said district of the filing of said petition, and of the time and place when the same will be acted upon by said town board. § 4. The amount of any contract that may be entered into pursuant to the provisions of this act, shall be assessed, levied and collected upon the taxable property in said town or district in the same manner, at the same time, and by the same officers as the town taxes, charges or expenses of said town are now assessed, levied and collected, and shall be paid over by the supervisor to the corporation, company, person or .persons furnishing or supplying said light. Water Pipes in Highways. The Highway Law, L. 1890, ch. 686, § 14. The commissioners of highways may, upon written appli- cation of any resident of their town, grant written permis- sion to lay and maintain water pipes and hydrants under ground, within the portion therein described, of any high- way within the town, but not under the traveled part of the highway, except across the same, for the purpose of sup- plying premises with water, upon condition that such pipes and hydrants shall be so laid as not to interrupt or inter- fere with public travel upon the highway; and the appli- cant shall replace all earth removed, and leave the high- way in all respects in as good condition as before the laying of such pipes. Unsafe Toll-Bridge. The Highway Law, L. 1890, ch. 568, § 13. Whenever complaint in writing, on oath, shall be made to the commissioners of highways of any town in which shall be, in whole or in part, any toll-bridge belonging to any person or corporation, representing that such toll-bridge MiSCBLLANKODS AcTS. 215 The Transportation Corporations Law. has from any cause become, and is unsafe for the public use, such commissioners of highways shall forthwith make a careful and thorough examination of such toll-bridge, and if upon the examination thereof, they shall be of the opinion that the same has from any cause become dangerous or unsafe for public use, they shall thereupon give imniediate notice to the owners of such toll-bridge, or to any agent of such owners, acting as such agent, in respect to such bridge, that they have on complaint made, carefully and thoroughly examined the bridge, and found it to be unsafe for the pub- lic use. Such owners shall thereupon immediately com- mence repairing the same, and cause such repairs to be made within one week from the day of such notice given, or such reasonable time thereafter as may be necessary to thoroughly repair the bridge, so as to make it in all respects, safe and convenient for public use; and for neglect to take prompt and effective measures so to repair the bridge, its owners shall forfeit twenty-five dollars; and shall not demand or receive any toll for using the bridge, until the same shall be fully repaired; and the commissioners of high- ways shall cause such repairs to be made, and the owners of the bridge shall be liable for the expense thereof, and for the services of the commissioners at two dollars per day; and upon the neglect or refusal to pay the same upon pre- sentation of an account thereof, the commissioners of high- ways may recover the same by action, in the name of the town. Certain Bridge Companies mat operate a Railwat. L. 1893, ch. 225. ""^^^'^ ■ , • "-^ 1^,5^ An act to autlaorize bridge companies to lay tracks and operate a railway upon any bridge connecting any city in the Slate of New York, of more than one million inhabitants, with any other city in said State. Siiid §1. Any company incorporated for the purpose of con- structing and maintaining a bridge or bridges over any river, bay, arm of the sea or other body of water, connecting any city in the state of New York, containing more than one million inhabitants,' with any other city in said state, is hereby empowered to lay tracks and operate a railway upon said bridge or bridges. 216 Miscellaneous Acts. The Transportation (Corporations Law. Powers of Col'nty Boaeds of Supervisors Relative to Toll- Bridges, Toll-Roads and Ferries. The County Law, L. 1892, ch. 686. §62. Location and construction of bridges.— The board may authorize the location, change of location and con- struction of any bridge, applied for by any town, or towns, jointly, or by other than a municipal corporation, created under a general law, or by any corporation or individual for private purposes; and if a public bridge, erected other than by a municipal corporation, establish the rates of toll for crossing such bridge; but if such bridge is to cross a navigable stream, provision shall be made in the resolution or permission authorizing the same, for the erection and maintenance of a suitable draw, to prevent any obstruction of the navigation of such stream; and if a private bridge, provision shall be made that the draw shall be kept open as may be required to permit all vessels to pass without loss of headway. When such bridge shall be intersected by the line of counties, the action of the board of supervisors of each county shall be necessary to give the jurisdiction ' herein permitted. § 64. Construction by county of destroyed bridges. — If any bridge within a county, or intersected by any boundary line of a county, shall be destroyed by the elements, and the board of supervisors of the county shall deem that the expenses of the construction of a new bridge at or near the site of the bridge so destroyed would be too burden- some upon the town or towns within such county, which would otherwise be liable therefor, the board of supervisors of any such county may provide for the construction and completion of a bridge and all the necessary approaches thereto, at or near the site of the bridge so destroyed. If the bridge so destroyed shall have been constructed by a corporation created under a general law, and the site thereof, and of the approaches thereto, or either, shall be tlie property of such corporation, such board of supervisors may purchase the interest of such corporation, or any other person, in such site or approaches, if such purchase MiSOKLLANROnS AoTS. 217 The Transportation Corporations Law. can be accomplished upon reasonable terms; but if such site or approaches cannot be lawfully acquired by such purchase, or otherwise, upon reasonable terms, such board may acquire title to premises on either side of such site, and provide for the construction of a bridge and approaches thereto, at such place, at the expense of the county, or of the two counties jointly, as the case may be, provided such bridge shall be so located as not to increase the distance to be traveled upon the highway to reach each end of such bridge more than five rods. Any board of supervisors pro- viding for the construction of any such bridge may deter- mine by resolution whether the expenses of the mainte- nance and repair thereof sihall thereafter be a county charge, or a charge upon such town or towns. § 69. Authorize towns to borrow money.— The board may, upon the application of any town or towns liable to taxation for constructing, building or repairing any high- way or bridge therein, or upon its borders pursuant to a vote of a majority of the electors thereof at an annual town meeting, or special town meeting called for that purpose, or upon the written request of the commissioners of high- ways and the town board of such town or towns, authorize such town or towns to construct, build and repair such highway or bridge, and to borrow such sums of money for and on the credit of the town as may be necessary for that purpose, and to lay out, widen, grade or macadamize such highway, or to purchase for public use any plahk-road, turn- pike, toll-road or toll-bridge in such town or towns, and may authorize the company owning the same to sell the same, or any part thereof or the franchises thereof, or to pay any debt incurred in good faith by or in behalf of such town or towns for such purpose. If such highway or bridge shall be situated in two or more towns in the same county, the board shall apportion the expenses among such towns in such proportion as shall be just. §73. Regulation of toll rates. — Such boards shall have power by a vote of two-thirds of all the members elected to authorize an alteration, reduction or change of the rates 218 Miscellaneous Acts. The Transportation Corporations Law. of toll charged or received by any turnpike, plank or gravel road, or other toll-road vs^ithin such county, or by any bridge company or ferry within such countj', or, if within more than one county, then by joint action with the super- visors of such counties, provided such alteration shall be asked for by the directors, trustees or owners of such road, bridge or ferry; but that no increase of toll shall be so authorized imless notice of intention to apply for such increase shall have been published in each of the news- papers published in such county, once in each week for six successive weeks next before the annual election of super- visors in such county; and any alteration in rates of toll authorized by any board of supervisors may be changed or modified by any subsequent board, on their own motion, by a like vote of two-thirds of all the members elected to such board; but nothing herein contained shall affect or abridge the powers of any city. • »♦»»» §78. Further powers. — The board may make such other local and private laws and regulations concerning high- ways, alleys, bridges and ferries within the county, and the assessment and apportionment of highway labor or taxes therefor, not inconsistent with law, as it may deem neces- sary and proper, when the purposes of such laws and regu- lations cannot be accomplished under the 'foregoing pro- visions, or the general laws of the state. Teansportation of Deer, Woodoock, Grouse and Ckktain Fish ; Eegulations. Tile Game Law, L 18!)2, eh. 4^8. »*«*♦« § 46. Transportation.— Deer or venison killed in this State shall not be transported to any point within or without the State from or through any of the counties thereof or posses- sed for that purpose, except as follows : One carcass or a part thereof may be transported from the county where killed when accompanied by the owner. No individual shall trans- port or accompany more than two deer in any one year under the above provision. The possession of deer or veni- Miscellaneous Acts. 219 The Transportation Corporations Law. son "by a common carrier pr by any person in its employ then actually engaged in the business of such common carrier, unaccompanied by the owner, shall constitute a violation of this section by such common carrier. This sec- tion does not apply to the head and feet or sMn of deer severed from the body. Whoever shall violate or attempt to violate the provisions of this section shall be deemed guilty of misdemeanor, and in addition thereto shall be liable to a penalty of one hundred dollars for each wild deer or part thereof, had in possession in violation of this section. (Thus amended by L. 1895, ch. 974.) i § 76. ■Woodcock, quail and grouse ; when not to be trans- ported. — Woodcock, ruffed grouse, commonly known as par- tridge, or any member of the grouse family, or quail killed in this State, shall not be transported to any point within or without this State, from or through any of the counties thereof, or possessed for that purpose, except that such birds may be transported from the county where killed, when accompanied by the owner thereof. Possession of the birds named by a common carrier, or by any person in its employ then actually engaged in the business of such common carrier, unaccompanied by the owner, shall constitute a vio- lation of this section by such common carrier. Whoever shall violate or attempt to violate the provisions of this sec- tion shall be deemed guilty of misdemeanor and in addition thereto shall be liable to a penalty of twenty-five dollars for each bird killed, trapped, . snared or possessed contrary to the provisions of this section. (Thus amended by L. 1895, ch. 974.) § 109. Certain fish not to be transported. — Trout of any kind, salmon trout or land-locked salmon, caught in any of the inland waters of this State, shall not be transported to any ppint within or without the State from or through any of the counties thereof, or possessed for that purpose, except when accompanied by the owner. Possession thereof by a common carrier or by any person in its employ then actually engaged in the business of such common carrier unaccom- panied by the owner shall constitute a violation of this sec- tion by such common carrier. Whoever shall violate or 220 Miscellaneous Acts. The Transportation Corporations Law. attempt to violate the provisions of this section shall be deemed guilty of misdemeanor and in addition thereto shall be liable to a penalty of twenty-five dollars for each viola- tion and ten dollars for each fish so caught or possessed. (Thus amended by L. 1895, ch. 974.) Licenses to Common Caeriebs foe the Sale of Liquors. The Excise Law, L. 1892, ch. 401. § 30. Licenses by comptroller to common carriers. — The comptroller is hereby authorized to grant licenses to per- sons, associations or corporations engaged in the transpor- tation of passengers by cars, steamboats or vessels, M^ithin the limits of this state, permitting them to sell strong or spirituous liquors, wines, ale or beer, to such passengers while in transit, without license by any board of excise. Every license so granted by the comptroller shall expire at the end of one year from the date of its issuance. It shall be granted upon such terms, conditions and restric- tions as shch comptroller may deem proper, and upon the payment of such sum as he shall fix, not less than thirty dollars for each and every car, boat or vessel in which such sales are to be made. The moneys received by him for licenses shall be paid into the treasury of the* state. Any person or corporation who shall sell, or permit to be sold, or offer or expose for sale, any strong or spirituous liquors, wines, ale or beer, upon any car, steamboat or vessel, with- out having first obtained a license therefor as herein provided shall forfeit the sum of fifty dollars for each offense, to be sued for and recovered in an action in the name of the people, brought by the attorney-general; and the person so offending shall be guilty of a misdemeanor. § 39. Employment of persons addicted to intoxication by common carriers. — Any person, association or corporation engaged in the business of conveying passengers and prop- erty for hire who shall employ in the conduct of such busi- ness any person who habitually indulges in the intemperate Miscellaneous Acts. 221 The Transportation Corporations Law. use of intoxicating drinks, after notice that such, person has been intoxicated while in the active service of such person, association or corporation as an engineer, fireman, conductor, switchtender, commander, pilot, mate, foreman or in other like capacity, so that by his neglect of duty the safety and security of the life, person or property so con-^ veyed might be imperilled, shall be guilty of a misdemeanor. Mortgages by Telegraph, Telephone or Electeio Light Companies. An Act in relation to mortgages, L.. 1891, ch. 171. Section 1. It shall not be necessary to file as a chattel mortgage any mortgage which has been or shall hereafter be executed by any telegraph, electric light or telephone com- pany upon real and personal property, and which has been or shall be recorded as a mortgage on real estate in each county in or through which the mortgaged telegraph, elec- tric light or telephone line therein described runs. § 2. This act shall take effect immediately. THE RAILROAD LAW. Laws of 1890, Chapter 565. Being " An act in relation to railroads, constituting chap- ter thirty-nine of the general laws," as amended to July 1, 1895. The Railroad Law. Article 1. Organization ; general powers ; location (§§ 1-21). 2. Construction ; operation ; management (§§ 30-59). 3. Consolidation ; lease ; sale ; reorganization (§§ 70-84). 4. Street surface railroads (§g 90-110). 5. Other railroads in cities and counties (§§ 120-142). 6. Board op railroad commissioners (§§ 150-171). ARTICLE I. .Organization ; General Powers ; Location. Section 1. Short title. 2. Incorporation. 3. Supplemental certificate. 4. Additional powers conferred ; 1. Entry upon lands for purpose of survey. 2. Acquisition of real property. 3. Construction of road. 4. Intersection of streams, highVays, plank-roada, turn- pikes and canals. 5. Intersection of other railroads. • 6. Buildings and stations. 7. Transportation of persons and property. 8. Time and manner of transportation. 9. Purchase of lands and stocli in other States. 5. When corporate powers to cease. 6. Location of route. 7. Acquisition of title to real property. 8. Railroads through public lands. 9. Railroads through Indian lands. 10. Railroads through Chautauqua assembly groundii. 11. Intersection of highways, additional lands for. 12. Intersection of other railroads. 13. Change of route, grade or terminus. Shoet Title ; Inooeporation. 223 The Railroad Law, §§ 1, 2. Section 14. Construction of part of line in another State. 15. Two roads having the same location. 16. Tunnel railroads. 17. Railroads in foreign countries. 18. Additional corporate powers of such road. 19. Location of principal office of such road. 20. Individual, joint-stock association, or other corporation may lay down and maintain railroad tracks in certain cases. 21. When electric light and power corporation may become a rail- road corporation. Section. Short title. — This chapter shall be known as the railroad law. §2. Incorporation. — Fifteen or more persons may become a corporation, for the purpose of building, maintaining and operating a railroad, or of maintaining and operating a rail- road already built, not owned by a railroad corporation, or for both purposes, by executing, acknowledging and filing a certificate, in which shall be stated: 1. The name of the corporation. 2. The njimber of years it is to continue. 3. The kind of road to be built or operated. 4. Its length and termini. 5. The name of each county in which any part of it is to be located. 6. The amount of capital stock, which shall not be less than ten thousand dollars for every mile of road buUt, or proposed to be built, except a narrow-gauge road, when it shall not be less than three thousand dollars for every such mile. 7. The number of shares into which the capital stock is to be divided. 8. If the capital stock is to consist of common and pre- ferred .stock, the amount of each class and the rights and privileges of the latter over the former. 9. The names and post-offtce addresses of the directors of the corporation, not less than nine, who shall manage its affairs for the first year. 10. The place where its principal office is to be located. 11. If a street surface railroad, the names and description of the streets, avenues and highways in which the road is to be constructed. 224 Incorporation. The Railroad Law, § 2. 12. If it is to be a railway corporation, specified in article five of this chapter, the statements required by that article to be inserted in the certificate of incorporation. 13. The name and post-office address of each subscriber to the certificate and the number of shares of stock he agrees to take. Such certificate shall have indorsed thereon, or annexed thereto, to be taken as a part thereof, an affidavit of at least three of such directors, that at least ten per cent of the mini- mum amount of capital stock authorized by law has been subscribed thereto, and paid in good faith and in cash to the directors named in the certificate, and that it is intended in good faith to build, maintain and operate the road men- tioned therein. In case of a railway corporation specified in article five of this chapter, the affidavit of the directors shall show that the full amount of such capital stock has been in good faith subscribed, and there shall be annexed to the certificate of incorporation and as a part thereof the certificate of the railroad commissioners showing the organization of the corporation for the purposes mentioned in the certificate. The filing of every certificate, where the amount of stock required by this section has not been in good faith subscribed and paid in cash, shall be A^oid. (Thus amended by L. 1892, ch. 676.) Wor forms of certificates of incorporation, see post, forms Nos. 96 and 97. A corporation formed under this law cannot exercise the powers con- ferred by law upon such corporations nor begin the construction of its road until the requisites of section 59 of this law have been complied with. Incorporators.— Prior to the enactment of the revision (^j. 1890, ch. 565), twenty-five was the minimum number of persons for the formation of a steam railroad corporation (L. 1850, ch. 140, now repealed), and thirteen for a street surface railroad (L. 1884, ch. 252, now repealed). The present statute fixes the minimum number of persons for the forma- tion of any kind of railroad corporation uniformly at fifteen. All the incorporators must be persons of full age, of whom at least two-thirds must be citizens of the United States, and at least one of them must be a resident of the State of New York. (General Corporation Law, sec. 4.) Only natural persons can become incorporators. Corporations, co-partnerships, and persons acting In a representative capacity, are, therefore, excluded from acting as incorporators. (Id.) In the matter of N. Y., L. & W. R. R. Co., 99 N. Y., 12, a case arising under the Gene- ral Railroad Act of 1850, ch. 140, now repealed, it was held that the Bigning of articles of association by duly authorized agents of the incor- Inooepoeation. 225 The Railroad Law, § 3. porators is sufficient; and, also, in Ogdensburg, Rome, etc., R. R. Co. v. Frost, 21 Barb, 541, under the same act, that the subscription to Incor- poration papers by a partner in a partnership name, if authorized, was a compliance with said act of 1850, but the rule laid down in these two cases can no longer be followed in view of the repeal of said act of 1850 and the enactment of the new provisions above referred to^ which require a certificate of incorporation to be executed by natural persons. (Gene- ral Corporation Law, sec. 4.) However, after the formation of the cor- poration, other corporations, as well as persons acting in a representative capacity, may become stockholders. (Stock Corporation, Law, sees. 40 and 54.) i Corporate Name. — The name of the corporation must neither be the same nor similar to that of any other domestic corporation. (General Corporation Law, sec. 6.) At any time after incorporation the corporate title may be changed by proper proceedings. (See sees. 2410-17 of the Code of Civil Procedure.) Duration.— The term of existence must be definitely stated in the cer- tificate, but no maximum period, within which such term shall be limited, seems to be fixed by statute. Prior to the expiration of the period of existence so fixed, it may be extended. (General Corporation Law, sec. 32.) The corporation ceases to exist, however, if the construction of Its road shall not be commenced within five, and finished within ten, years from the time of filing its certificate of incorporation. (See sec. 5 of this law.) Description of Road.— Thei kind of road to be built or operated must be set forth as either a street surface railroad operated by horse power, cable or electricity; or a steam railroad of standard gauge; or a steam railway in the streets, avenues and public places of the city of or county of , for the transportation of passengers, mails or freight, pursuant to article V of the Railroad Law; or, a steam railroad of the gauge of feet and inches; or, as the case may be. Length and Termini. — A statement in the certificate of a steam railroad as to the termini, and that the length was about 300 miles was held sufficient. (In re N. Y., L. & W. R. R. Co., 35 Hun, 220; afCd. 99 N. Y., 12.) An approximate estimate, in good faith, of the length of the pro- posed road, without an actual survey and location, satisfies the statute, (Buf. & Pitts. R. R. Co., V. Hatch, 20 N. Y., 157.) In an action .upon the subscription of an incorporator, it is no defense that the certificate failed to state definitely the termini, or the^coimties through which the road passed, after It has been in operation and recognized by the Legislature. (Cayuga L. R. R. Co. v. Kyle, C4 N. Y., 185.) When a particular location has been adhered to for some years the corporation Is concluded by its acts. (Bklyn. Cent. R. R. v. Bklyn. City R. R. Co., 32 Barb, 358; see, also, H. & D. Canal Co. v. N. Y. & E. R. R. Co., 9 Paige, 323.) Capital Stock.— There is no limitation as to the amount of capital stock, except that it shall not be less than $10,000 for every mile of a standard gauge railroad, and not less than $3,000 for each mile of a nar- row gauge road. The corporation may have preferred and common stock, and different classes of preferred stock, if the certificate of incorporation 15 226 Incorporation. The Railroad Law, § 2. so provides, or it may so classify its stock after organization by the unanimous consent of the stockholders. (Stock Corporation Law, sec. 47.) If so classified, the amount of each class and the rights and privileges of the preferred over the common must be stated. (Railroad Law, sec. 2, subd. 8.) The amount of capital stock may be increased or reduced. (Stock Corporation Law, sees. 44-46.) Shares of Stock.— The amount of capital stock stated in the certificate of incorporation may be divided into such number of shares as the incor- porators may elect The par value of the shares may be changed after organization, if deemed desirable, without changing the amount of capital stock. (Stock Corporation Law, sec. 56.) Directors.— The board of directors of a railroad corporation must con- sist of at least nine persons. The names and post-office addresses of the directors who shall manage its affairs for the first year are to be stated in the certificate of incorporation. (Railroad Law, sec. 2, subd. 9.) The street and number should be given, if in a city. At least two of the directors must be residents of the state of New York. (General Corporation Law, sec. 29.) Directors must be stockholders. (Stock Cor- poration Law, sec. 20.) The number of directors may be increased or reduced. (Stock Corporation Law, sec. 21.) No maximum number is fixed by the act, but in reducing the number of directors, the minimum is nine. (See subd. 9 of this law.) Principal Office.— The name of the city, village or town, and of the county, in which the principal office of the corporation is to be located, must be stated in the certificate. There is no provision authorizing a change of the location of the principal office named in the certificate of Incorporation. Description of Route.— It should be noted that in case of the incorpora- tion of a street surface railroad company, the names and description of the streets, avenues and highways in which the road is to be constructed, must be set forth in the certificate. Subscribers.— The post-office addresses of the subscribers to the certifi- cate of incorporation, including the street and number if in a city, must be given, and a statement of the number of shares of stock each agrees to take. The aggregate of such subscriptions must at least equal $1,000 for every mile of road to be built, except in case of a narrow gauge road, and at least $1,000 for every mile of road to be built must be paid In .good faith and in cash to the directors named in the certificate. Affidavit- The affidavit to be attached to the certificate is required to be sworn to by three directors, and care should be taken that the three persons who make such affidavit are named in the certificate of incor- poration as directors. Additional Powers.— If desired, the certificate of incorporation may provide for cumulative voting at elections of directors. (General Corpora- tion Law, sec. 20.) The corporation may reserve the right to acquire, hold and dispose of the stocks and bonds of any other corporation. (Stock Cor- poration Law, sec. 40.) Inooepoeation. 227 The Railroad Law, § 3. Liability of Stockholders.— The liability of stockholders of corporations formed under this law is regulated by the Stock Corporation Law, sec- tions 54, 55. Corporations may be formed under this act for carrying freight or passengers by horse power in the streets ofi cities in this State, except New York city. (In re Washn. St. A. & P. R. R. Co. v. S. B. & N. Y. R. R. Co., 115 N. Y., 442.) The act of 1850, chapter 140, did not authorize an elevated railroad in the streets of a city. (People's Rapid Transit Co. v. Dash, 125 N. Y., 93; Schaper v. Bklyn. & L. I. C. Ry. Co., 124 N. Y., 630.) A signature to an incomplete paper, with no delegation of authority to supply the omission, will not bind the signer. (D. & C. R. R. Co. v. M^bbett, 58 N. Y., 397.): When the incorporation papers lUed consist of separate instruments, exact counterparts of each other, and each signed by different incorpora- tors, they are to be regarded as one instrument. (Lake Ontario A. & N. Y. R. R. Co. V. Mason. 16 N. Y., 451; Sodus Bay & Corning R. R. Co. v. Hamlin, 24 Hun, 390.) The corporation is not formed until all statutory requirements have been complied with, and the incorporation papers filed. (Burt, receiver, etc., V. Farrar, 24 Barb., 518.) Filing of the certificate of incorporation is necessary in order to bind a subscriber. (Erie & N. Y; City R. R. Co. v. Owen, 32 Barb., 616.) Irregularities in organization may be cured by special legislation recog- nizing existence of the corporation. (Black River & Utica R. R. Co. ▼, Barnard, 31 Barb., 258.) But informalities may now be corrected by filing an amended certificate. (General Corporation Law, sec. 7.) It is not necessary that the required percentage be paid om each sub- scription. Cash payments amounting in the aggregate to ten per cent, comply with the statute. (Lake Ontario, A. & N. Y. R. R. Co. v. Mason, 16 N. Y., 451; Beattys v. Town of Solon, 64 Hun, 120; O., R. & C. R. R. Co., V. Frost, 21 Barb., 542. Payment by a duly certified check is a payment in cash. (Matter of Staten I. R. T. R. R. Co. v. Starin, 37 Hun, 422; 38 Hun, 381; afC'd 101 N. Y., 636.) An unauthorized agreement made by a person soliciting stock subscrip- tions, that the cash payment need not be made, is void and does not affect the validity of the incorporation. (Beattys v. Town of Solon, & Unn, 120.) A check tor the required cash paj'ment given, on an assurance not authorized by the directors, that it need not be paid, is a valid payment and may be enforced after incoraoration. (Syracuse, P. & O. R. R. Co. V. Gere, 4 Hun, 3»2.) ■The mere filing of the certificate does not create a corporation de Jura Performance of the conditions precedent is necessary. (Farnhaio r. Benedict, 107 N. Y., 159.) A street railway company formed under this law may condemn private property for the purpose of its organization. (In re Rocb. El. Ry. Co,, 123 N. Y., 351.) 228 Supplemental Certificatk ; Additional Powehp. The Railroad Law, §§ 3, 4. This law does not repeal any law prohibiting street railroads upon par- ticular streets. (Harlem B. M. & F. R. R. Co. v. Southern B. R. R. Co., 41 Hun; 553. See, also, 43 St. Rep., 611; 17 N. Y., Supp., 828; 128 N. Y., 93; 58 Hun, 479.) The fact that a railroad company has shortened its line and reduced its capital stock will not release a subscriber to stock from payment of his subscription. (T. & R. R. R. Co. v. Kerr, 17 Barb., 581.) § 3. Supplemental certificate*. — If thf^ namps and places of residence of the directors of the corporation have been omitted from the certificate, when executed and acknowl- edged, and thereafter the requisite number of directors has been chosen at a meeting of the subscribers to the certifi- cate, a supplemental certificate, containing their names and places of residence, may be filed with such certificate with the same force and effect as if the names and places of resi- dence of the directors had been originally inserted therein. For foi'm of supplemental certificate, see post, form iVo. 98. § 4. Additional powers conferred. — Subjpct to the limita- tions and requirements of this chapter, every railroad cor- poration, in addition to the powers given by the general and stock corporation laws, shall have power: 1. Entry upon lands for purpose of survey. — To cause the necessary examination and survey for its proposed rail- road to be made for the selection of the most advantageous route; and for such purpose, by its officers, agents or ser- •A separate act has been passed, Laws of 1893, chapter 238, relative to amended affidavits, being entitled "An act in relation to filing amended affidavits to certificates of incorporation of railroad companies," the text of which is as follows, to wit: Section 1. Where it does not appear by the affidavit indorsed on or annexed to any certificate of incorporation filed under the railroad law, that the amount of capital stock required by the provisions of said law to be paid in good faith and in cash to the directors named in such cer- tificate has been so paid, and where such payment has been made prior to the passage of this act, an affidavit of at least three of the directors named in said certificate, stating that the amount of capital stock required by said railroad law to be paid in good faith and in cash to the directors named in the certificate has been so paid, may be filed in the office of the Secretary of State, which affidavit shall be annexed to said certificate, and upon such filing, said certificate shall for all purposes, have the same force and effect as If said affidavit had been annexed thereto when said certifi:cate was filed. Grant of Additional Powkes. 229 The Railroad Law, § 4. vants, to enter upon any lands or waters subject to liability to the owner for all damages done. See section 59 of this law. The foregoing provision is constitutional. (Polly v. Saratoga & Wash- ington R. R. Co., 9 Barb., 449; Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend., 16.) / 2. Acquisition of real property.— To take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroad; and to acquire, by condem- nation such real estate and property as may be necessary for such construction, maintenance and accommodation in the manner provided by law, but the real property acquired by condemnation shall be held and used only for the pur- poses of the corporation during the continuance of the cor- porate existence. (Thus amended by L. 1892, ch. 676.) For provisions as to acquisition of property by condemnation, see the Condemnation Law, post. Under this section a foreign railroad corporation, lawfully operating its road in this State, is authorized to acquire by condemnation additional real estate when needed for the proper operation of its road and to meet the public demands of travel and traffic. (N. Y., N. H. and Hartford R. R. Co.. v. Welsh, 143 N. Y., 411.) Where an abutting owner of property on a street on which a railroad is operated releases to such railroad all the easements appurtenant to such premises taken by it for the use of such road, and releases the railroad from all causes of action because of such operation, and consents to the perpetual maintenance of the railroad in front of such premises, the rail- road acquires thereby title to the easements. (Ward v. Met. El. Ry. Co., 82 Hun, 545.) A conveyance absolute in form, first granting all the estate therein described, together with the appurtenances, and then containing a reser- vation to the grantor of the easements taken by reason of the operation and maintenance of an elevated railroad, does not reserve to the grantor any right of action, nor can he enforce an action as to future damages against such railroad. (Shepard v. Met. El. Ry. Co., 82 Hun, 527.) The Interest acquired by a railroad corporation in land by condemnation proceedings is a permanent easement. (Roby v. N. Y. C. & H. R. R. R. Co., 142 N. Y., 176.) Real property, once acquired by condemnation, cannot be appropriated for another public use without special authority. (In re B'd of Street Opening v. St. John Oem. Assn., 133 N. Y., 329; see, also, In re Mayor, etc., of N. Y., V. N. Y. C. & H, K. R. R. Co., 135 N. Y., 253, and matter of B. & A. R. R. Co., 53 N. Y., 574.) 230 Geant of Additional Powers. The Railroad Law, § 4. Lands under waters of a navigable river, thougli owned by private individuals, may be condemned. (Kerr v. W. S. R. R. Co., 127 N. Y., 269.) Leasing of a railroad pending condemnation proceedings will not affect sudk proceedings. (Kip v. N. Y. & H. R. R. Co., 67 N. Y., 227.) The proceedings are not afCected even when the company has leased its road for the entire term of its existence to a foreign corporation. (In re N. Y., L. & W. Ry. Co., 99 N. Y., 12.) To exercise the right of eminent domain it must be a corporation de Jure. (N. Y. Cable Co. v. Mayor, etc., 104 N. Y., 143.) Land may be acquired for irrespective use if the necessity for such use in the immediate future be properly established. (In re Staten Isl. R. T. Co., 103 N. Y. 251.) The fact that the land to be taken will largely benefit a foreign corporation makes no difference. (Id.) The corporation cannot be divested of the right to appropriate land except by some unequivocal expression of legislative intent. (Suburban Rapid Transit Co. v. Mayor, etc., of N. Y., 128 N. Y., 510.) Lands may not be condemned for a place to store boats of passengers visiting a pleasure resort on the line of the railroad, nor for more con- venient drainage of lands, or for opening a highway from the railroad to a neighboring hotel. (In re Roch. & G. H. R. R. Co., 12 N. Y. Supp., 566; appeal dismissed 128 N. Y., 611.) Lands of private corporations may be acquired. (In re N. Y. C. & H. R. R. R. Co. V. Met. Gas Lt. Co., 63 N. Y., 326.) A railroad corporation cannot condemn lands in New York city for an elevated structure passing through blocks of buildings upon which passenger trains may be run at high speed. (In re Peo. Rap. Tr. Co. v. Dash, 125 N. Y., 93; see, also, Schaper v. B. & L. I. C. Ry. Co., 124 N. Y., 630.) Lands necessary to restore a street or highway may be taken. (Peo. ex rel. Green v. Dutchess & Col. R. R. Co., 58 N. Y., 152; Post v. W. S. R. R. Co., 123 N. Y., 580.) It is not what the corporation does or may choose to do, but what, under the law, it must do, that constitutes the test whether a public trust is impressed upon it. (In re N. Y., L. & W. Ry. Co., 99 N. Y., 12.) Lands may be condemned for the purpose of laying a branch track for the benefit of a private individual. (In re Roch., Horn. & Lack. R. R. Co. V. Babcock, 110 N. Y., 119.) Title acquired in fee by deed may be conveyed. (Yates v. Van De Bogert, 56 N. Y., 526; see, also, Kenney v. Wallace, 24 Hun, 478; Nicoll V. N. Y. & E. R. R. Co., 12 N. Y., 121.) 3. Construction of road. — To lay out its road not exceed- ing six rods in widtli, and to construct the same; and, for the purpose of cuttings and embankments, to take such additional lands as may be necessarj^ for the proper con- struction and security of the road; and to cut down any standing trees that may be in danger of falling on the road, upon making compensation therefor. See section 59 of this law. Grant of Additional Powees. 231 The Railroad Law, § 4. When a corporation excavating upon its land for lawful piirposes is compelled to resort to blasting, the fact that the blasting caused injury to a building on adjoining land does not render it liable, unless the cor- poration failed to exercise due care. The degree of care must be com- mensurate with the danger. (Booth v. Rome, W. & O. T. R. R. Co., 140 N. y., 267, revers'g 17 N. Y. Supp., 336; 44 St. Rep., 9.) 4. Intersection of streams, highways, plank-roads, turn- pikes and canals. — To constmct its road across, along or upon any stream, water-course, highway,* plank-road, turn- pike, or across any of the canals* of the state, which the route of its road shall intersect or touch. A street railroad company operating .its cars over the canal by means of a bridge owned by the State, does not make such bridge an appliance of its own, and its liability, while on the bridge, is no different than when traversing the street. (Birmingham v. R. O. & B. R. R. Co., 137 N. Y., 13.) This provision removes the prohibition in the similar provision of the act of 1850; chap. 140, of the right to obstruct any navigable stream or lake, but does not divest a patentee of any rights previously acquired * The Highway Law, L. 1890, ch. 568, provides as follows, to wit. Sec. 15. Actions for injuries to highways.— The commissioners of high- ways may bring an action, in the name of the town, against any person or corporation, to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto, and to recover any damages sustained or suffered or expenses incuiTed by such town, in consequence of any act or omission of any such person or corporation, in violation of any law or contract in relation to such highway. * The Canal Law, L. 1894, ch. 338, section 25, provides as follows, to wit: Sec. 25. Powers with reference to railroad near the canals. — The superintendent of public worlis shall have a general supervisory power over so much of any railroad as passes over any canal or feeder belonging to the state or approaches within ten rods thereof, so far as may be necessary to preserve the free and perfect use of such canals or feeders, or for making any repairs. Improvements or alterations thereupon. No railroad corporation shall construct its railroad over or at any place within ten rods of any canal or feeder belonging to the state, unless it submits to the superintendent of public works a map, plan and profile of such canal or feeder and of the route designated for its railroad, exhibiting distinctly and accurately the relation of each to the other at all the places within the limits of ten rods thereof, and obtain the written permission of the superintendent of public works and of the canal board for the construction of such railroad, with such conditions, directions and instructions as, in his judgment, the free and perfect use of any such canal or feeder may require. 232 Geant of Additional Powers. ' The Railroad Law, § 4. from the State. (Rtunsey et al. v. N. Y. & N. E. R. R. Co., 130 N. Y., 88; see, also, 133 N. Y., 79; 125 N. Y., 681; 114 N. Y., 423.) Where a railroad company has, ■without acquiring the rights of the owner of land bounded on a navigable river, constructed its road so as to cut off the owner's access to the navigable part of the river, he is entitled to recover the diminished rental value of his land. (Rumsey v. N. Y. & N. B. R. R. Co., 136 N. Y., 543, dist'g 133 N. Y., 79, above.) This statute does not attempt to grant any right to violate private property without consent of the owner. (E. Plank Rd. Co. v. Buf. & P. R. R. Co., 20 Barb., 644; Williams v. N. Y. C. R. R. Co., 16 N. Y., 97.) Construction of the words "upon and along" considered in Baxter v. Spuyten Duyvil & P. M. R. R. Co., 6]^ Barb., 428; Osborne v. J. C. & Alb. Ry. Co., 27 Hun, 589.) The company must obtain an order of rhe Supreme Court before it may construct its road upon the surface of a highway. (Osborne v. J. C. & Alb. Ry. Co., 27 Hun, 589; see, also, section 11, of this law.) This subdivision does not mean that the highway should be rendered useless. The duty of restoring carries with it the power so to do. (Peo. ex rel. Green v. D. & C. R. R. Co., 58 N. Y., 152; Bell v. N. Y. C. & H. R. R. R. Co., 29 Hun, 560; Richardson v. N. Y. C. R. R. Co., 45 N. Y., 848.) 5. Intersection of other railroads. — To cross, intersect, join, or unite its railroad with any other railroad before con- structed, at any point on its route and upon the ground of such other railroad corporation, with the necessary turn- outs, sidings, switches, and other conveniences in further- ance of the objects of its connections. (Thus amended by L. 1892, ch. 676.) In connection with the foregoing provisions, see, also, section 12 of this law. The right provided for is an interest in lands, and therefore can only be granted by one corporation to another by a written instrument (P. J., M. & N. Y. R. R. Co. V. N. Y., L. E. & W. R. R. Co., 132 N. Y., 439.) A proceeding by one railroad corporation to secure a crossing over the ti-ack of another is a special proceeding (Code Civ. Pro., sees. 3333, 3334), and the costs are in the discretion of the court. (Matter of Cort- land, etc., R. R. Co., 98 N. Y., 336.) When no evidence is given upon the question of damages, an allowance of a nominal sum may not, as matter of law, be deemed inadequate. (Id.; see, also, Matter of Lockport & Buffalo R. R. Co, 77 N. Y., 557.) Lands or buildings already appropriated for railroad uses, which In their nature require an exclusive occupation, can not be invaded. (In re B. H. T. & W. Ry. Co. v. T. & B. R. R. Co., 79 N. Y., 04.) Railroads may acquire real estate to make the connection between them. (In re Union El. R. R. Co., 113 N. Y., 27r,; in re B'klyn El. R. R. Co., 32 St. Rep., 1065; afC'd 125 N. Y., 434.) Grant of Additional Powers. 233 The Rjiilroad Law, § 4. 6. Buildings and stations.— To erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommodation and use of its passengers, freight and business. (Thus amended by L. 1892, ch. C76.) At common law a carrier of passengers and freight is not obliged to provide warehouses for freight offered or depots for passengers awaiting transportation. The legislature has power, however, to impose such an obligation. (Peo. v. N. Y., L. E. & W. B. E. Co., 104 N. Y., 58.) Specific performance of a contract to provide a station at a particular place considered in Conger v. N. Y., W. S. & B. R. R. Co., 120 N. Y., 29, afC'g 45 Hun, 296. 7. Transportation of persons and property. — To take convey persons and property on its railroad by the power or force of steam or of animals, or by any mechanical power, except where such power is specially prescribed in this chapter and to receive compensation' therefor. As to motive power of street surface railroads, see section 100 of this law. 8. Time and manner of transportation. — To regulate the time and manner in which passengers nnd property shall be transported, and the compensation to be paid therefor. Relative to rate of fare for immigrants, see Penal Code, sec. 626, jsubd. 1. A regulation that no person should enter a particular place unless he had a ticket and his train was about to leave is reasonable; also one that articles committed to the care of the company shall be checked is reasonable. (Avery v. N. Y. C. & H. R. R. R. Co., 121 N. Y., 31.) As is also a regulation requiring passengers to show their tickets when requested and directing their ejection from the cars in case of refusal. (Hibbard v. N. Y. & E. R. R. Co., 15 N. Y., 455; Vedder v. Fellows, 20 N. Y., 126.) The courts have power to compel a railroad corporation to furnish rea- sonable traveling facilities for residents of places along its route. (People ex rel. Wheeler v. Long Isl. R. R. Co., 31 Hun, 125; Peo. v. N. Y, C. & H. R. R. R. Co., 28 Hun, 543.) When freight has been carried for several years at the schedule price, without objection thereto, the shipper must be deemed to have assented to the price as reasonable. (Killmer v. N. Y. C. & H. R. R. R. Co., 100 N. Y., 395.) As to unjust discrimination In charges. (Root v. L. I. R. R. Co., 114 N. Y., 300; Langdon v. N. Y., L. E. & W. R. R. Co., 58 Hun, 122.) Relief by mandamus under the Inter-Sta:te Commerce Act considered. (U. S. v. D. L. & W. .R. R. Co., 40 Eed. R.. 101.) 234: ' When Coepoeate Powees to Cease. The Railroad Law, § 5. 9. Purchase of lands and stock in other states. — To acquire and dispose of any real property in any other state through which any part of its railroad is operated, and stock in any foreign corporation owning lands in another state for the purpose of securing for such railroad corporation in this state a permanent supply of fuel for its use, and stock of corporations in this state, formed for the purpose of erecting union railway depots. 10. Power to borrow money, issue bonds and mortgage property. — From time to time to borrow such sums of money as may be necessary for completing and finishing or operat- ing its railroad and to issue and dispose of its bonds for any amount so borrowed, and to mortgage its property and franchises to secure the payment of any debts contracted by the company for the purposes aforesaid. (Added by L. 1890, ch. 676.) See the Stock Corporation Law, section 2. §5. When corporate powers to cease. — If any domestic railroad corporation shall not, within five years after its cer- tificate of incorporation is filed, begin the construction of its road and expend thereon ten per centum of the amount of its capital, or shall not finish its road and put it in opera- tion in ten years from the time of filing such certificate, its corporate existence and powers shall cease. But if any such steam railroad corporation whose certificate of incor- poration was filed since the year eighteen hundred and eighty, and whose road as designated in such cer- tificate is wholly within one county and not more than ten miles in length, has acquired the real property necessary for its road-bed by purchase, its cor- porate existence and poAvers shall not be deemed to have ceased because of its failure to comply with the provisions of this article; and the time for beginning the construction of its road and expending thereon ten per centum of its capital, is extended until thirteen years from the date of the filing of such certificate and the time for finishing its road and putting it in operation, is extended until eighteen years from the date of such filing. (Thus amended by L. 1893, ch. 433.) No action or judicial proceeding is needed to declare and complete a forfeitiure of corporate existence and powers under this section. (In re When Coepoeate Powees to Cease., 235 The Railroad Law, § 5. Brooklyn, Winfleld & Newtown R. R. Co., 72 N. Y., 245.) The legislature can not waive this forfeiture by a special act without violating the con- stitution, article 3. section 18. (Id.; 75 N. Y., 335; see, also, Farnham v. Benedict, 107 N. Y., 159; Day v. Ogd. & L. C. R. R. Co., 107 N. Y., 129; In re Kings Co. El. R. R. Co., 105 N. Y., 97; Troy & Boston R. R. Co. v. B. H. T. & W. R. Co., 86 N. Y., 107; In re B'klyn, Winfield & N. R. R. Co., 81 N. Y., 09; B'klyn Steam T. Co. v. Brooklyn, 78 N. Y., 524; In re N. Y. El. R. R. Co., 70 N. Y., 327.) In the case of a corporation created by a special act which provided that the road should be commenced and completed within times specified, and in default thereof that it should " forfeit the rights acquired by " It under the act, the corporation is not by non-performance, ipso facto, dissolved or deprived of its corporate existence or corporate rights. It Is simply exposed to proceedings, on behalf of the state, to establish and enforpe the forfeiture. (In re Brooklyn El. R. B. Co., 125 N. Y., 434, dis- tinguishing B., W. & N. R. R. Co., 72 N.^ Y., 245, and B. S. T. Co. v. B'klyn, 78 N. Y., 524, above.) A foreclosure and sale of the road works a forfeiture of its right to construct and operate a road thereafter, except as such right vests in a purchaser. (Sodus B. & C. B. R. Co. v. Lapham, 43 Hun, 314.) A corporation can not avoid the expenditure required by leasing a por- tion of its route to another company and granting the latter the privilege of laying tracks, thereon. (In re Brooklyn, W. & N. R. R. Co. v. Grand St. & N. R. R. Co. of B'klyn, 81 N. Y., 69.) This statute is not applicable to a corporation willfully and intentionally neglecting construction of its road. (Peo. v. Broadway R. B. Co. of B'klyn, 126 N. Y., 429.) Or to pne whose rights had become extinct by omitting to begin construction within the period limited by the statute. (Farnham v. Benedict, 107 N. Y., 159.) Nor to any road which was not in default at the time the statute took effect. (In re Brooklyn, W. N. R. R. Co. V. Broadway R. R. Co. of B'klyn, 72 N. Y., 245; B'klyn S. T. Co. v. B'klyn, '78 N. Y., 524.) Charters of railroad corporations are not forfeited or annulled as dam- ages for the violation of private contracts. (Matter of Long Island R. R. Co., 143 N. Y., 67.) The time for the construction of certain railroads was extended by chapter 700, Laws of 1895, entitled, "An act to extend the time for the commencement of construction or completion of railroads other than street surface railroads," which reads as follows, to "^ wit: Section 1. The time or times prescribed for the commencement of the construction, or the completion of its railroads or any portions thereof, by any railroad company which has already acquired at least one-third of its right of way, or begun the construction of any portion of its railroad, is hereby extended five years from the first day of January, eighteen hundred and ninety-five. 236 Location of Route. The Railroad Law, § 6. § 6. Location of route. — Every railroad corporation, except a street surface railroad corporation and an elevated rail- way corporation, before constructing any part of its road in any county named in its certificate of incorporation, or instituting any proceedings for the condemnation of real property therein, shall make a map and profile of the route adopted by it in such county, certified by the president and engineer of the corporation, or* a majority of the directors, and file it in the office of the clerk of the county in which the road is to be made. The corporation shall give written notice to all actual occupants of the lands over which the route of the road is so designated, and which has not been purchased by or given to it, of the time and place such map or profile were filed, and that such route passes over the lands of such occupants. Any such occupant or the owner of the land aggrieved by the proposed location, may, within fifteen days after receiving such notice, give ten days' writ- ten notice to such corporation and to the owners or occu- pants of lands to be affected by any proposed alteration, of the time and place of an application to a justice of the supreme court, in the judicial district where the lands are situated, by petition duly verified, for the appointment of commissioners to examine the route. The petition shall state the objections to the route desig- nated, shall designate the route to which it is proposed to alter the same, and shall be accompanied with a survey, map and profile of the route designated by the corporation, and of the proposed alteration thereof, and copies thereof shall be served upon the corporation and such owners or occupants with the notice of the application. The justice may, upon the hearing of the application, appoint three dis- interested persons, one of whom must be a practical chil engineer, commissioners to examine the route proposed by the corporation, and the route to which it is proposed to alter the same, and after hearing the parties, to affirm the route originally designated, or adopt the proposed altera- tion thereof, as may be consistent with the just rights of all parties and the public, including the owners or occupants of lands upon the proposed alterations; but no alteration of the route shall be made except by the concurrence of the commissioner who is a practical civil engineer, nor which will cause greater damage or injury to lands or materially Location of Eoutb. 237 The Railroad Law, § 6. greater length, of road than the route designated hy the cor- poration, nor which shall substantially change the general line adopted by the corporation. The commissioners shall, within thirty days after their appointment, make and certify their written determination, which with the petition, map, survey and profile, and any testimony taken before tliem shall be immediately filed in the 0|ffice of the county clerk of the county. Within twenty days after such filing, any party may, by written notice to the other, appeal to the general term of the supreme court from the decision of the commissioners, which appeal shall be heard and decided at the next term held in the depart- ment in which the lands of the petitioners or any of them are situated, for which the same can be noticed, according to the rules and practice of the court. On the hearing of such appeal, the court may affirm the route proposed by the corporation or may adopt that proposed by the petitioner. The commissioners shall each be entitled to six dollars per day for their services, and to their reasonable and neces- sary expenses, to be paid by the persons who applied for their appointment. If the route of the road, as designated by the corporation, is altered by the commissioners, or by the order of the court, the corporation shall refund to the petitioner the amount so paid, unless the decision- of the commissioners is reversed upon appeal taken by the cor- poration. No such corporation shall institute any proceed- ings for the condemnation of real property in any county until after the expiration of fifteen days from the service by it of the notice required by this section. Every such cor- poration shall transmit to the board of railroad commis- sioners the following maps, profiles and drawings exhibit- ing the characteristics of their road, to wit: A map or maps showing the length and direction of each straight line; the length and radius of each curve; the point of crossing of each town and county line, and the length of line of each town and county accurately determined by measurements to be taken after the completion of the road. Whenever any part of the road is completed and used, such maps and profiles of such completed part shall be filed with such board within three months after the completion of any such portion and the commencement of its operation; and when any additional portion of the road shall be completed 238 Location of Route. The Railroad Law, § 6 and. used, other maps shall be filed within the same period of time, showing the additional parts so completed. If the route, as located upon the map and profile filed in the office of any county clerk, shall have been changed, it shall also cause a copy of the map and profile filed in the office' of the railroad commissioners, so far as it may relate to the loca- tion in such county, to be filed in the office of the county clerk. (Thus amended by L. 1892, ch. 676.) For forms in proceedings under this section, see post, forms Nos. 99 to 107. The amendment of 1892 exempts street surface railroads and elevated railways from the requirements that maps and profiles be filed, and omita the prohibition against beginning condemnation proceedings " until after the final determination of all applications that may be made for a change of route in such county." The directors of a railroad corporation are not as such liable, individu- ally, if in the operation of the road the rights of a property owner are violated ; the responsibility is that of the company, whether it be a cor- poration de facto or de jure. (Lamming v. Galusha, 81 Hun, 247.) The preliminary survey (sec. 4, subd. 1) must be made, and notice (under sec. 6) must be given prior to the application for commissioners of appraisal. (In re N. Y. & B. R. R. Co. v. Godwin, 62 Barb., 85; 12 Abb. N. S., 21.) Commissioners of appraisal can not be appointed until the expiration of fifteen days after the service of notice. (Id.) Such notice must be served on all occupants affected. (In re N. F. & W. Ry. Co. v. De V. College, 46 Hun, 94; afC'd 108 N. Y., 375.) It need not, however, be served upon occupants of land, no part of which is covered by the route designated, but which may be required for the corporate purposes of the company. (In re N. Y., L. & W. Ry. Co. v. Scheu, 33 Hun, 148; aff'd 98 N. Y., 664.) Due service of the notice is a prerequisite to the appointment of commissioners. (People ex rel. E. & G. V. R. R. Co. v. Tubbs, 49 N. Y., 356; In re L. I. R. R. Co., 45 N. Y., 364; In re Norton v. W. V. R. R. Co., 63 Barb., 77.) The statute contemplates but one com- mission ' in a county, which should complete its work by affirming the route proposed by the company or making all necessary alterations, and when this is done the route through the county is established. (Id.) The justice of the supreme court merely determines whether or not there is sufficient cause for appointment of commissioners. He can not try the matter on its merits. (Norton v. W. V. R. R. Co., 61 Barb. 476.) A notice subscribed " James M. Milne, secretary of the Cortland and Homer Horse Railroad Company," is properly signed by the company. (In re C. & H. R. R. Co. v. S., B. & N. Y. R. R. Co., 31 Hun, 72; affi'd 95 N. Y., 663.) The notice by an aggrieved occupant or owner must be served personally. (Peo. ex rel. N. B. & C. R. R. Co. v. L. & B. R. R. Co., 13 Hun, 211.) Where error has been committed by commissioners the courts will send the report back, an re L. S. & M. S. Ry. Co. v. N. Y., L. & W. Ry. Co., Acquisition of -Title to Rkal PitopEBTr. 239 The Railroad Law, § 7. 89 N. Y., 442) Whether the order by the general term upon an appeal from the decision of the commissioners is appealable, qiiaere. (In re N. Y., L. E. & W. R. R. Co. v. N. Y., L. & W. Ry. Co., 99 N. Y., 338.) The com-t of appeals will not review questions of fact passed upon by the commissioners. (Id.) A map which shows the alignment and profile is sufficient, without showing all the connections, turnouts and switches. (People v. Brooklyn F. & C. I. R. R. Co., 89 N. Y, 75.) It seems that filing a map is not neces- sary by a company purchasing, after foreclosure, a railroad already con- structed. (Id.) A law designating the streets through which a company may construct and operate its road is a practical location. (In re Coney Isl. & B. R. R. Co. V. Ridley, 12 Hun, 451.) A map showing the general course of the road, not indicating whether it is an exterior, a center, or any other certain line, is insufficient. (N. Y. & B. R. R. Co. V. Godwin, 12 Abb. N. S„ 21; 62 Barb., 85; N. Y. & A. R. R. Co. V. N. Y., W. S. & B. Ry. Co., 11 Abb. N. C, 386; In re B., H. T. & W. Ry. Co., 10 Abb. N. C, 104.) Additional land required for cuttings and embankments need not be shown. (In re S. B. R. R. & T. Co. t. Gates, 50 Hun, 405.) A map of part of the road only could not work an abandonment of another portion. (Mason v. B'klyn City & N. R. R. Co., 35 Barb., 373.) This section is not applicable to the matter of crossing existing railroad tracks. (See R. R. L., see. 12, post, p. 228; In re N. Y., I.. E. & W. R. R. Co. V. P., L. & N. E. R. R. Co., 110 N. Y., 374; In re L. S. & M. S. Ry. Co. V. N. Y., L. & W. R. Co., 89 N. Y., 442; In re B., H. T. & W. R. Co. V. T. & B. R. R. Co., 79 N. Y., 64; see, also, N. Y., L. E. & W. II. R Co. V. N. Y., L. & W. Ry. Co., 99 N. Y., 338; L. & B. R. R. Co. v. N. Y. G. & H. R. R. R. Co., 77 N. Y., 557.) When a map and survey has been made and filed and the required notice given the corporation has acquired the right to construct and operate a railroad upon such line. (B., H. & L. R. R. Co. v. N. Y., L. E. & W. R. R. Co., 110 N. Y., 128; S. R. T. R. R, Co. v. New York, 128 N. Y., 510.) § 7. Acquisition of title to real property.— All real prop- erty, required by any railroad corporation for the purpose of its incorporation, shall be deemed to be required for a pub- lie use. If the corporation is unable to agree for the pur- chase of any real property, or of any right, interest or easement therein, required for such purpose, or if the owner thereof shall be incapable of selling the same, or if after diligent search and inquiry the name and residence of such owner can not be ascertained, it shall have the right to acquire title thereto by condemnation. It shall also have such right in the following cases: 240 Acquisition of Title to Real Property. The Railroad Law, § 7. 1. Where title to real property has been acquired, or attempted to be acquired, and has been found to be invalid or defective. 2. Where its railroad shall be lawfully in possession of a lessee, mortgagee, trustee or receiver, and additional real property shall be required for the purpose of running or operating such railroad. 3. Where it shall require any further rights to lands or the use of lands for switches, turnouts, or for filling any structures of its road, or for constructing, widening or com- pleting any of its embankments or roadbeds, by means of which greater safety or permanency may be secured, and such lands shall be contiguous to such railroad and reason- ably accessible to the place where the same are to be used for such purpose or purposes. 4. Where it shall require any further rights to lands or to the use of lands for the flow of water occasioned by rail- road embankments or structures now in use, or hereafter rendered necessary, or for any other purpose necessary for the operation of such railroad, or for any right to take and convey water from any spring, pond, creek or river to such railroad, for the uses and purposes thereof, together with the right to build or lay aqueducts or pipes for the purpose of conveying such water, and to take up, relay and repair the same, or for any right of way required for carrying away or diverting any water, stream or floods from such railroad for the purpose of protecting its road or for the purpose of preventing any embankment, excavation or structure of such railroad from injuring the property of any person who may be rendered liable to injury thereby. Waters commonly used for domestic, agricultural or man- ufacturing purpose, shall not be taken by condemnation to such an extent as to injuriously interfere with such use in future. No railroad corporation shall have the right to acquire by condemnation any right or easement in oi; to any real property owned or occupied by any other railroad cor- poration, except the right to intersect or cross the tracks and lands owned or held for right of way by such other corporation, without appropriating or affecting any lands owned or held for depots or gravel-beds. (ThTis amended by L. 1892, ch. 676.) Railroads Theotjgh Public Lands. 241 The Railroad Law, § 8. See the condemnation law, post; see, also, section 4, subd. 2 of this law. The fourth word in the second line of the section was changed from " acquired " to " required " by amendment of 1892. Where the lease of property abutting upon a street on which Is erected an elevated railroad was made subsequent to the ;constru'ction of such road the exclusive right of action for rental demages is in the landowner. (Crimmins v. Metropolitan El. Ry. R. R. Co., 87 Hun, 187.) Under this section lands may be acquired for passenger and freight depots; for places for keeping cars and engines not in use; lands for proper tracks and curves to enable trains with safety, dispatch and con- venience to approach the station, cattle yards, elevator and water front structures of the company; also land under water for piers, etc. (In re N. T. O. & H. R. R. R. Co., 77 N. Y., 248; Same v. Met. Gas Lt. Co., 63 N. y., 326.) It is no objection that other lands in the same vicinity equally well adapted may be acquired by purchase. (Same v. Kip, 46 N. Y., 546.) Land for prospective uses may also be acquired. (In re Staten Isl. R. T. Co., 103 N. Y., 251.) Lands cannot be taken for speculation or to obstruct competing lines. (In re R. &. S. R. R. Co. v. Davis, 43 N. Y., 137.) Lands under water may be condemned by proceedings for that purpose. (In re N. Y. C. & H. R. R. R. Co., 77 N. Y., 249; 29 Hun, 269.) A foreign corporation is entitled to the benefits of this provision. (In re Marks, 25 St. Rep., 502; 6 N. Y. Supp., 105.) A railroad corporation may perfect a defective title to- its lands. (In re Prospect Pk. & C. I. R. R. Co., 67 N. Y., 371; In re N. Y. C. R. R. Co., 20 Barb., 419, 428.) The act does not imply Ihat an outstanding judg- ment affecting the interest of an owner who had been compensated is recognized as a defect in the title. (Watson v. N. Y. C. R. R. Co., 47 N. Y., 157.) This section only confers the right to proceed in invitum when an attempt to purchase of the owner has proven a failure. (N. Y. & B. R. R. Co. V. Godwin, 12 Abb. N. S., 21.) And when such failure is caused either by the owner's unwillingness to sell at all, or only at an excessive price. (In re Prospect Pk. & C. I. R. R. Co., above.) , Pending an action to restrain a railroad company from operating its road in a certain street, it entered into a stipulation not to prosecute pro- ceedings to condemn property pending a stay. Held, when the stay ceased to operate by reason of reversal, the company was free to act. (In re Met. El. Ry. Co., 136 N. Y., 500.) §8. Railroads through public lands. — The commissioners of the Jandi office may grant to any domestic railroad cor- poration any land belonging to the people of the state, except the reservation at Niagara and the Concourse lands on Coney Island, which may be required for the purposes of its road, on such terms as may be agreed on by them; or such corporation may acquire title thereto by condemna- tion; and the county or town officers having charge of any land belonging to any county or town, required for such 16 24:2 Railroads Through Indian Lands. The Railroad Law, §§ 9, 10. corporation for the purpose of its road, may grant such, land to the corporaton for such compensation as may be agreed upon. Lands iinder water may be taken by a railroad corporation under this section; no notice need be served upon the owner of the adjoining upland. (Matter of the N. Y., West Shore and Buffalo R. R. Co., 29 Hun, 269; 103 N. Y., 251.) A patent granted by the commissioners of the land office for State lauds under navigable waters, which Is not void on its face, can only be assailed in a direct proceeding to review the action of the commissioners, or by an action in equity to set aside the grant (N. Y. C. & H. R. R. R. Co. V. Aldridge, 135 N. Y., 83; disfg Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y, 423.) Where the owner of land bounded by a navigable river conveys a strip of the land along the water front to a railroad company for the use of its road he does not lose, nor does the company gain the character of riparian owner. The company can only use the land for the purposes of its road. (Id.) The authority conferred by law upon the commissioners of the land office to be deemed modified by this section. (In re N. Y., W. S. & B. Ry. Co. V. Swain, 29 Hun, 269; see, also, Gould v. Hudson R. R. R. Co., N. Y., 522, held to have oeen overruled in Rumsey v. N. Y. & N. B. R. R. Co., 133 N. Y., 79.) Notice to the owner of the upland need not be given when land under water is condemned pursuant to this section. (29 Hun, 269, above.) Land under water granted to New York city by the legislature is held in trust for the uses prescribed, but may be appropriated for railroad purposes. (In re N. Y., W. S. & B. Ry. Co. v. Walsh, 89 N. Y., 453, afC'g 27 Hun, 57; In re N. Y. C. & H. R. R. R. Co., 77 N. Y., 248.) This pro- vision confers power to grant lands under water for necessary docks. (77 N. Y., 248, above; see, also, Kerr v. W. S. R. R. Co., 127 N. Y., 269; Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y., 423; 130 N. Y., 88; 133 N. Y., 79; 136 N. Y., 543.) § 9. Bailroads through Indian lauds. — Any railroad cor- poration may contract with the chiefs of any nation of Indians, over whose lands it may be necessary to construct its railroad, for the right to make such road upon such lands, but such contract shall not vest in the corporation the fee to the land, nor the right to occupy the same^for any purposes other than may be necessary for the constaniction, occupancy and maintenance of such railroad, and such con- tract shall not be valid or effectual until it shall be ratified by the county court of the county where the land shall be situated. §^10.' Railroads' through' Chautauquaassembly grounds. No railroad corporation shall build, construct or operate any Intbeseotion of Highways. 243 The Railroad Law, § 11. railroad in, upon, over or through the grounds, lands or premises owned by the Chautauqua assembly corporation in the town and county of Chautauqua, without the written consent of a majority of the board of trustees of such assem- bly corporation. § 11. Intersection of highways, additional lands for.— Wo railroad corporation shall erect any bridge or other obstruc- tion across, in or over any stream or lake, navigated by steam or sail boats at the place where it may be proposed to be erected, nor shall it construct its road in, upon or across any street of any city without the assent of the cor- poration of such city, nor across, upon or along any high- way in any town or street in any inco:^orated village, without the order of the supreme court of the district in which such highway or street is situated, made at a special term thereof, after at least ten days written notice of the intention to make application for such order shall have been given to the commissioners of highways of such town, or board of trustees of the village in which such highway or street is situated. Every railroad corporation which shall build its road along, across or upon any stream, watercourse, street, highway, plankroad or turnpike, which the route of its road shall intersect or touch, shall restore the stream or watercourse, street, highway, plankroad and turnpike, thus intersected or touched, to its former state^ or to such state as not to have unnecessarily impaired its usefulness, and any such highway, turnpike or plankroad may be carried by it, under or over Its track, as may be found most expe- dient. Where an embankment or cutting shall make a change in the line of such highway, turnpike or plankroad desirable, with a view to a more easy ascent or descent, it may construct such highway, turnpike or plankroad, on such new line as its directors may select, and may take addi- tional lands therefor by condemnation if necessary. Such lands so taken shall become part of such intersecting high- way, turnpike or plankroad, and shall be held in the same manner and by the same tenure as the adjacent parts of the highway, turnpike or plankroad are held for highway pur- poses. Every railroad corporation shall pay all damages sustained by any turnpike or plankroad corporation in con- sequence of its crossing or occupation of any turnpike or 244 Inteesection of Highways. The Railroad Law, § 11. plank-road, and in case of inability to agree upon the amount of such damages, it may acquire the right to such, crossing or occupation by condemnation. See provisions of section 15 of tlie highway law on page 231. A railroad company in constructing a bridge over a stream of water must provide an opening sufficient for all ordinary exigencies of the climate and situation of the stream, and also such extraordinary emergen- cies as may occur. (Higgins v. N. Y., L. E. & W. R. R. Co., 78 Hun, 567.) In an action for damages the proper measxure thereof is the dlfiference in value of the premises before and after the injury. (Id.) A corporation in constructing a dam or culvert should construct it in such a manner as to resist such extraordinary floods as may be reason- ably expected to occur occasionally. (Mundy v. N. Y., L. E. & W. R. R. Co., 75 Hun, 479.) So, also, in the construction of a bridge. (Van Duzer V. Elmlra, C. & N. R. R. Co., 75 Hun, 487.) The provision for restoration of streams, water-courses, eta, was designed to protect public rights, not private interests, ajid applies only to navigable streams. (Kerr v. W. S. R. R. Co., 127 N. Y., 269; dist'g Langdon v. Mayor, etc., 93 N. Y., 129; Williams v. Mayor, etc., 105 N. Y., 420; Klngsland v. Mayor, etc., 110 N. Y., 569.) It does not entitle an owner of upland, where access to his dock is cut off, to have a draw- bridge constructed. (127 N. Y., 269, above.) A stream diverted must be restored to its former usefulness as nearly as practicable. (Cott v. Lewis- ton R. R. Co., 36 N. Y., 214.) Changing a street grade, thereby cutting off an abutting owner's access to his premises, entitles the latter to damages, although that portion of the street had been discontinued by the municipal authorities. (Egerer y. N. Y. C. & H. R. R. R. Co., 130 N. Y., 108.) Where a grade is changed and the abutting owner's fee to the center of the highway is not sub- jected to a new or different use he suffers no damage. (Conklln v. N. Y., O. & W. Ry. Co., 102 N. Y., 107; Rauensteln v. N. Y., L. & W. R. R. Co., 136 N. Y., 528; 31 St. Rep., 911; 19 N. Y. Supp., 833; 47 St. Rep., 139; 120 N. Y., 661; Ottenot v. Same, 119 N. Y., 603; Fobes v. Rome, W. & O. R. R. Co., 121 N. Y., 505; but see/ also, Reining v. N. Y., L. & W. Ry., Co., and Jeaume v. Same, 128 N. Y., 157, 623.) A railroad company, for the pmpose of crossing a turnpike road, may make a new road to connect with the undisturbed portions. (In re N. Y., W. S. & B. Ry. Co. V. N. & N. W. T. R. Co., 28 Hun, 472.) Damages must be appraised and paid before the land is entered upon. (J. & B. R. R. Co. V. N. Y. & M. B. Ry. Co., 25 Hun, 585; E. & G. V. P. R. Co. V. Buf. & P. R. R. Co., 20 Barb., 644.) As a general rule the election as to the mode of crossing is with the company, and is not reviewable, if exercised in good faith. (People v. N. Y. C. & H. R. R. R. Co., 74 N. Y., 302; see, also. People v. N. Y., N. H. & H. R. R. Co., 89 N. Y., 266.) If a highway Is removed lands for restoration may be acquired by pur- chase or condemnation. (Post v. West S. R. R. Co., 123 N. Y., 580; see, also, People ex rel. Schaghtlcoke v. T. & B. B. R. Co., 37 How., 427; aff-d, 6 Alb. L. J., 174.) Intersection of Other Railroads. 245 The Railroad Law, § 13. As to repaving streets see Gilmore v. Utica, 121 N. T., 561; 131 N. Y., 26; Masterson v. N. Y. C. & H. R. R. R. Co., 84 N. Y., 247. Whether the duty to restore has been performed may be for a jury to determine. (Payne v. T. & B. R. R. Co., 83 N. Y., 572; Wasmer v. D., L. & W. R. R. Co., 80 N. Y., 212.) The remedy of the public for a failure to restore is by indictment or mandamus, L. 1890, ch. 568, 'sec. 15. (Bryant v. Town of Randolph, 133 N. Y., 70; People t. N. Y. C. & H. R. R. R. Co., 74 N. Y., 302; see, also. People ex rel. Green t. D. & C. R. R. Co., 58 N. Y., 152; People v. N. Y., N. H. & H. R. R. Co., 89 N. Y., 266.) The duty to restore is a continuous one. If, after restoration of a high- way, increased travel require changes to be made, the company must make them. (Hatch v. S., B. & N. Y. R. R. Co., 50 Hun, 64) When the railroad company is in default in restoring a highway, a highway com- missioner may do the necessary work and maintain an action against the company for the expense. (Bryant v. Town of Randolph, 133 N. Y., 70.) § 12. Intersection of other railroads. — Every railroad cor- poration, whose road is or shall be intersected "by any new railroad, shall unite with the corporation owning such new railroad in forming the necessary intersections and connec- tions, and grant the requisite facilities therefor. If the two corporations can not agree upon the amount of compensa- tion to be made therefor or upon the line or lines, grade or grades, points or manner of such intersections and connec- tions, the same shall be ascertained and determined by com- missioners, one of whom must be a practical civil engineer and surveyor, to be appointed by the court, as is provided in the condemnation law. Such commissioners may deter- mine whether the crossing or crossings of any railroad before constructed shall be beneath, at, or above the exist- ing grade of such railroad, and upon the route designated upon the map of the corporation seeking the crossing or otherwise. All railroad corporations whose roads are or shall hereafter be so crossed, intersected or joined, shall receive from each other and forward to their destination all goods, merchandise and other property intended for points on their respective roads, with the same dispatcli, as, and at a rate of freight not exceeding the local tariff rate charged for similar goods, merchandise and other property, received at or forwarded from the same point for individuals and other corporations. (Thus amended by L. 1893, ch. 676.) See section 4, subd. 5; see, also, ch. 239, L. 1893, post. 246 Change of Route, Grade oe Tkkminus. The Railroad Law, § 13. An agreement for a crossing will bar proceedings for appointment of commissioners under this section. (In re Rome, W. & O. E. R. Co. v. Ont. S. R. R. Co., 16 Hun, 445.) A petition for appointment of commissioners must allege an attempt and failure to agree. (In re B., H. T. & W. Ry. Co. v. T. & B. R. R. Co., 79 N. Y., 64.) It must be proved if denied. (In re L. & B. R. R. Co. v. N. Y. C. & H. R. R. II. Co., 77 N. Y., 557.) Otherwise it need not be. (79 N. Y., 64, above; see, also, matter Cortland & H. H. R. R. Co. v. S., B. & N. Y. R. R. Co., 31 Hun, 72; afE'd, 95 N. Y., 663.) As to defective verification see 79 N. Y., Gi, above. The petition of a street siu-face railroad must show that it has secured the consents of the property owners and local authorities. (See sec. 91, R. R. L.; In re Saratoga Elec. R. R. Co., 58 Hun, 287; see, also, 22 Abb. N. C, 427.) In case commissioners are appointed, their determination should include all particulars relative to the manner of crossing. (In re L. & B. R. R. Co. V. N. Y. C. & H. R. R. R. Co., 19 Hun, 38; In re N. Y., L. & W. Ry. Co. V. N. Y. & E. R. R. Co., 35 Hun, 275.) Review of their determination considered. (In re L. V. Ry. Co. v. N. Y. C. & H. R. R. R. Co., 93 N. Y., 689.) Nominal damages are not inadequate when no evidence is given on that point. (In re C. & H. H. R. R. Co. v. S., B. & N. Y. R. R. Co., 98 N. Y., 336.) Costs are in discretion of the court (Id.) The report is not to be appealed from in fragments. (N. Y., L. & W. Ry. Co. V. N. Y., L. E. & W. R. R. Co., 44 Him, 275.) § 13. Change of route, grade or terminus; — Every railroad corporation, except elevated railway corporations, may, by a vote of two-thirds of all its directors, alter or change the route or any part of the route of its road or termini, or locate such route, or any part thereof, or its termini, in a county adjoining any county named in its certificate of incorporation, if it shall appear to them that the line can be improved thereby, upon making and filing in the clerk's office of the proper county a survey, map and certificate of such alteration or change. If the same is made after the corporation has commenced grading the original route, compensation shall be made to all persons for injury done by such grading to any lands donated to the corporation. But neither terminus can be changed, under this section, to any other county than one adjoining that in which it was previously located; nor can the route or terminus of any railroad be so changed in any town, county or municipal corporation, which has issued bonds and taken any stock or bonds in aid of the construction of such railroad without the written consent of a majority of the taxpayers appear- ing upon the last assessment-roll of such town, cpunty or municipal corporation, unless such terminus, after the Change of Eoute, Geade or Terminus. 247 The Railroad Law, § 13. change, will remain in the same village or city as there- tofore. No alteration of the route of any railroad after its construction shall be made, or new line or route of road laid out or established, as provided in this section, in any city or village, unless approved by a vote of two-thirds of the common council of the city or trustees of the village. Any railroad corporation whose road as located terminates at any railroad previously constructed or located, whereby communication might be had with any incorporated city of the state,, may amend its certificate of incorporation so as to terminate its road at the point of its intersection with any railroad subsequently located to intersect it, and thereby, by itself or its connections, afford communication with such city, with the consent of the stockholders owning two-thirds of the stock of the corporation. Any railroad corporation may, by a vote of its directors, change the grade of any part of its road, except in the city of Buffalo, in such manner as it may deem necessary to avoid accidents and to facilitate the use of such road; and. it may by such vote alter the grade of its road, for such distance and in such manner as it may deem necessary, on each or either side of the place where the grade of its road has been changed by direction of the superintendent of public works, at any point where its road crosses any canal or canal feeder, except in the city of Buffalo. The superintendent of public works shall have a general and supervisory power over that part of any railroad which passes over, or approaches within ten rods of any canal or feeder belonging to the state so far as may be necessary to preserve the free and perfect use of such canals or feeders, or to make any repairs, improve- ments or alterations, in the same. Any railroad corpora- tion whose tracks cross any of the canals of the state, and the grade of which may be raised by direction of the super- intendent of public works, with the assent of such superin- tendent, may lay out a new line of road to cross such canal at a more favorable grade, and may extend such new line and connect the same with any other line of road owned by such corporation, upon making and filing in the clerk's office of the proper county a *survey map and certificate of such new or altered line. No portion of the track of any railroad, *So in the original law, no comma having been inserted after the word " survey." 248 Roads Having Same Location, etc. The Railroad Law, g§ 14, 15. as described in its certificate of incorporation, shall be aban- doned under this section. (Thus amended by L. 1892, eh. C76.) Forfoi-m of certificate of change of route, see post, form No, 108. Exercise by the board of directors of the authority conferred by this section considered. (In re N. Y. C. & H. R. R. R. Co., 77 N. Y., 248; N. Y., L. & W. R. Co. V. N. Y., L,. E. & W. R. R. Co., 88 N. Y., 279; B. C. & N. Y. R. R. Co. V. Pottle, 23 Barb., 21.) A street railroad company operating its cars over the canal by means of a bridge owned by the State, does not malie such bridge an appliance of its own, and its liability while on the bridge is no different than when traversing the street. (Birmingham v. R. C. & B. R. R. Co., 137 N. Y., 13.) § 14. Construction of part of line in another state. — Any railroad corporation, whose proposed railroad is to be built between any two points in this state, may, by a vote of two- thirds of all its directors, locate and construct a part of its road in an adjoining state; and the sections of its road within this state shall be deemed a connected line, accord- ing to the certificate of incorporation, and the directors may reduce the capital stock of the corporation to such amount as may be deemed proper, but not less than ten thousand dollars per mile for the number of miles of road to be actu- ally constructed in this state. § 15. Two roads having the same location.— If tv?o rail- road corporations for a portion of their respective lines embrace the same location of line, or if their lines connect, or are tributary to each other, such corporations may by agreement provide for the construction by one of them of so much of such line as is common to both, or connects with its own line, and for the manner and terms upon which the business thereon shall be performed, and the corporation that is not to construct the part of the line which is common to both, may amend its certificate of incorporation, and ter- minate its line at the point of intersection, and may reduce its capital to a sum not less than ten thousand dollars for each mile of road proposed to be constructed in such amended certificate. When a company shortens its line and reduces its capital stock under this provision, a subscriber to stock will not thereby be released from pay- ment of his subscription. (Troy & Rut R. R. Co. v. Kerr, 17 Barb., 581.) T0NNEL Railroads. 249 The Railroad Law, § 16. §16, Tunnel railroads.— When, according to the route and plan for the building of its road, adopted lay any rail- road corporation, including corporations organized under chapter one hundred and forty of the laws of eighteen hundred and fifty, and the acts amendatory thereof, and supplementary thereto, it shall be necessary or proper to build it or any part of it under ground, or to tunnel or bridge • any river or waters, such corporation may enter upon, acquire title to and use such lands under water and uplands, except on or along any canals of the state, as shall be neces- sary for the purpose herein mentioned, and may construct, erect and secure the necessary foundations and other struc- tures which may be required for operating and maintaining such road, or connecting the same with another, and to acquire, in the manner provided by law, such lands or rights or easements in lands along its route, upon, over or beneath the surface thereof as may be necessary for the construc- tion of its road and making such connectious. Where such road runs underneath the ground, at such depth as to enable the corporation to tunnel the same, such tunnel shall be so built and at all times kept in such condition as to make the surface of the ground above the same and in the neigh- borhood thereof firm and safe for buildings and other erec- tions thereon, and if surface excavations are made the sur- face shall be restored to its former condition as soon as can be done, except so far as may be actually required for venti- lation of the tunnel beneath the same or access thereto. Such road or any part of it may be built within the limits of any city or incorporated village of this state, and run by means of a tunnel underneath any of the streets, roads or public places thereof, provided such corporation shall before constructing the same underneath any such street, road or public place, have obtained the consent of the owners of one-half in value of the property bounded on the line of such street, road or public place, and the consent of the board of trustees of the village, by a resolution adopted at a regular meeting and entered on the records of the board, or of the proper authorities of the city having con- trol of such streets, roads or public places. If the consent of such property owners can not be obtained, the general term of the supreme court in the district in which said city or village or any part thereof is situated, may upon applica- 250 Tunnel IKaileoads. The Railroad Law, § 16. tion appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be built underneath such streets, roads or public places, or any of them, and in what manner the same may be so built with the least damage to the surface and to the use of the surface by the public and the determination of the commissioners confirmed by the court may be taken in lieu of the consent of the property owners. All railroad corporations constructing their road under this section shall be subject to all the provisions of this chapter applicable thereto. Any other railroad corporation may connect its road therewith, at such points or places as it may elect, and where such connections shall be made by connecting roads, the railroad corporations owning such roads shall build, at their joint expense, and for their joint use, such passen- ger and freight depots, and other accommodations for hand- ling passengers and freight, as may be required for the con- venience of the public. All railroad corporations, construct- ing any tunnel under this section shall be liable to any person or corporation for all damages which may be sus- tained by reason of the construction of such tunnel. When- ever it shall be necessary in constructing any railroad author- ized by this section through any city or incorporated vil- lage, to alter the position or course of any sewer, or water or gas pipes, it shall be done at the expense of the railroad corporation under the direction of the department or cor- poration having charge thereof, so as not to interfere with such work. In all cases the uses of streets, docks and lands beneath which such railroad is constructed, and on the route thereof and the right of way beneath the same, for thfe pur- pose of such railroad shall be considered, and is hereby declared, a public use, consistent with and one of the uses for which streets and docks are publicly held. No public park or square in any city or village of this state shall be used or occupied by any corporation for any of the purposes of this section, and every road constructed hereunder in or through any such street or public place shall be wholly underground and constructed in a tunnel and not otherwise, but nothing in this section shall operate to revive any char- ter or franchise heretofore granted by or in the city of Brooklyn. This act does not authorize the construction of any bridge over or across the East or North rivers. (Thus amended by L. 1892, ch. 676; L. 1892, ch. 702; L. 1893, ch. 316.) Railroads in Foeeign Countries. 251 The Railroad Law, §§ 17, 18. A railroad proposed to be built and confined exclusively within the limits of a citj^ and under the sui-face of a street thereof is a street rail- way within the meaning of the State Constitution, article 3, section 18. (In re ,N. Y. Dist. R. Co., 107 N. Y., 42.) As applied to such a railroad a pro- vision that the determination of commissioners may be taken in lieu of the consent of city authorities is unconstitutional. (Id.; see, also. In re Broadway Underg'd Ry. Co., 23 Hun, 693.) §17. Railroadsj in foreign countries. — A railroad cor- poration may be formed under this chapter for the purpose of constructing, maintaining and operating in any foreign country a railroad for public use in the transportation of persons and property, or for the purpose of maintaining and operating therein any railroad already constructed, in whole or in part, for the like public use, and of constructing, main- taining and operating, in connection therewith, telegraph lines and lines of steamboats or sailing vessels; Any cor- poration formed for the construction and operation of a railroad by stationary power, may construct, operate and maintain a railroad in any other state or country, if not in conflict with the laws thereof, but the assent of the inven- tors or patentees of the method of propulsion used must be first obtained in the same manner and to the same extent as would be necessary within the United States. (Thus amended by L. 1892, ch. 676.) For form of certificate of incorporation, see poit, form So. 109. Such a corporation is not liable in this State for an injury occurring in another State. (Whitford v. Panama R. R. Co., 23 N. Y., 465; see, also, 30 Barb., 99; 126 N. Y., 10; 112 N. Y., 315; 77 N. Y, 546.) § 18. Additional corporate powers of such road. — The corporation specified in the preceding section shall have the following additional powers : 1. To expend money in making preliminary examina- tions and surveys for its proposed railroad, telegraph lines, and lines of steamboats and sailing vessels, and in acquir- ing from foreign countries, nations or governments, the grants, concessions and privileges herein authorized. 2. To take and receive from foreign countries, nations and governments, such grants, concessions or privileges, for the construction, acquisition, maintenance and operation of railroads, telegraph lines and vessels, as may be consistent with the purposes of the corporation, and as may be granted 252 Railroads in Fokeign Counteies. The Railroad Law, § 19. and conceded to it, and to hold the same, under such restric- tions and with such duties and liabilities as may be fixed by the laws of such foreign country, nation or government, or as may be annexed to such grants or concessions. 3. To construct, acquire, maintain and operate the lines of railroad, telegraph and shipping provided for by its cer- tificate of incorporation, and to take and hold by purchase or by voluntary grant such real estate and other property in foreign countries as may be necessary and convenient for the construction, maintenance and accommodation of such lines, and to sell, convey, mortgage or lea^e such real estate or other property; and to acquire by purchase or other- wise any railroad or lines of telegraph constructed or in pro- cess of construction in any foreign country, and any grants, concessions, franchises, rights, privileges and immunities relating thereto, and to mortgage or sell and convey the same, or any part of its property to any person or corpo- ration created by this or any other state or foreign govern- ment, subject to the laws of the country or countries where such property may be, and the power of sale hereby granted shall be exercised only by a majority of the entire board of directors of the corporation, with the written concurrence of the holders of two-thirds in amount of its capital stock. 4. To take and convey persons and property on its trans- portation lines by the power or force of steam or of animals, or by mechanical or other power, and receive compensation therefor subject to the laws of the place or country where the same are situated. 5. To acquire and use such real estate and other property in this state as may be necessary in the conduct of its busi- ness, but the value of such real estate held at any one time shall not exceed the sum of one million dollars. § 19. Location of principal office of such road. — Every such corporation shall maintain its principal office within this state and shall have during business hours, an officer or agent upon whom service of process may be made, and shall hold in this state at least one meeting of the stockholders in each year for the choice of directors, which shall be known as the annual meeting and be held at the time and place fixed by the by-laws of the corporation. (Thus amended by L. 1892, ch. 676.) Eaileoads of Individuals, etc. 253 The Railroad Law, §§ 20, 31. § 20. Individual, joint-stock association, or other cor- poration may lay down and maintain railroad tracks in certain cases. — Any individual, ioint-stock association or corporation, engaged in any lawful business in this state, may, except in any city of the state, lay down and maintain such railroad tracks on or across any street or highway, not exceeding three miles in length, as shall be necessary for the transaction of its business, and to connect any place of business owned by them with the track of any railroad corporation, and render such place of business more acces- sible to the public, upon obtaining the written consent of the owners of all the lands bounded on and of the local authorities having control of thai portion of the street or highway, upon which it is proposed to construct or operate such railroad. If the consent of such property owners can- not be obtained, the general term of the supreme court of the department in which such railroad is to be constructed, may upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and the amount of damages, if any, to be paid to such prop- erty owners, and their determination confirmed by the court may be taken in lieu of the consent of the property owners. But no such railroad shall be so located, graded, built or operated as to interfere with or obstruct the traveled part of any highway, or its use as a highway, or the use of any street or highway intersecting the same. § 21. When an electric light and power corporation may become a railroad corporation. — When all the stockholders of any domestic electric light and power company incorpo- rated under a general law, having not less than five stock- holders, and actually carrying on business in this state, shall execute and file in the offices in which it* original certifi- cates of incorporation are filed an amended certificate of incorporation, complying in every other respect than as to the number of signers and directors, who shall be not less than five, with the provisions of the railway law, and in which certificate the corporate name of snch corporation shall be amended by adding before the word " company," * So in the original. 254 Operation of Summer Roads. The Railroad Law, § 21. in its corporate name, the words "and railroad," or the words " railroad and land," such corporation shall have the right to build, maintain and operate by electricity, as a motive power, a railroad not exceeding twenty miles in length and within that distance from the power station and not to exceed four miles in length in any city, and such cor- poration shall otherwise be subject to all the provisions of this chapter and have all the powers, rights and privileges conferred by it upon railroad corporations, provided that no such corporation shall construct any railroad which is in whole or in part a street surface railroad, without comply- ing with the provisions of article four of this chapter. Upon filing such certificate such corporation shall also have the right to acquire by gift or voluntary purchase and sale land not exceeding two thousand acres, along the line or con- tiguous to said railroad, and to hold, improve, lease and sell the same. (Thus amended by L. 1892, ch. 676; L. 1894, ch. 648.) §21. Certain railroads need operate in summer only; rate of fair. — Any corporation, whose railroad is or shall be not longer than sixteen miles and is or shall be in large part intended for or used in summer travel or the convenience of summer sojourners need not operate its road beyond the months of June, July, August and September, inclusive. The motive power may be electricity. If the road be not longer than ten miles; such corporation may fix and collect fare for transporting each passenger, together with ordinary bag- gage, if any, not to exceed fifteen cents for each mile and fraction thereof. 'New, added by L. 1892, ch. 700.) This provision should have been enacted as section 22, thereby avoiding the duplication of section numbers. See section 55 of this law. Article 1 of this law terminates with section 21, above, and the next article begins with section 30. The gap in section numbering between articles was arranged by the commissioners of statutory revision so as to allow for internal enlargement of each \aw by adding new provisions with new section numbers, but the legislature has not paid close attention to this excellent arrangement, as is evidenced by the numerous independ- ent statutes in relation to railroads. See miscellaneous railroad laws, post. Liability of Coepoeatiok to Employes of Conteactoks. 255 The Railroad Law, § 30. ARTICLE IL Construction, Operation and Management. Section 30. Liability of corporation to employes of contractor. 31. Weight of rail, 32. Fences, farm-crossings and cattle-guards. 33. Sign-boards and flagmen at crossings. 34. Notice of starting trains; no preferences. 35. Accommodation of connecting roads. 36. Locomotives must stop at grade crossings. 37. Rates of fare. 38. Legislature may alter or reduce fare. 39. Penalty for excessive fare. 40. Passengers refusing to pay fare may be ejected. 41. Extra fare for sleeping car. 42. Persons employed as drivers, conductors, motormen or gripmen. 43. Conductors and employes must wear badges. '44. Checks for baggage. 45. Penalties for initu-y to baggage. 46. Unclaimed freight and baggage. 47. Tickets and checks for connecting steamboats. 48. Rights and liabilities as common carriers. 49. Duties imposed. 1. Switches. 2. Warning signals. 3. Guard posts. 4. Automatic couplers. 5. Automatic or other safety brake. 6. Tools in passenger cars. 7. Water, 50. Railroad Commissioners may approve other safeguards. 51. Use of stoves or furnaces prohibited. 52. Canada thistles to be cut. 53. Riding on platform; walking along track. 54. Corporations may establish ferries. 55. Certain railroads may cease operations in winter. 56. Mails, 57. Corporations must make annual report. 58. When conductors and brakemen may be policemen. 59. Requisites to exercise of powers of future railroad corporations. § 30. Liability of corporation to employes of contractors.— An action may be maintained against any railroad corpo- ration by any laborer for the amount due him from any con- tractor for the construction of any part of its road, for ninety or any less number of days' labor performed by him in con- 256 Wei&ht of Rail. The Railroad Law, § 31. structing such road, if within twenty days thereafter a wrjit- ten notice shall have been served upon the corporation, and the action shall have been commenced after the expiration of ten days and within six months after the service of such notice, which shall contain a statement of the month and particular days upon which the labor was performed and for which it was unpaid, the price per day, the amount due, the name of the contractor from whom due, and the section upon which performed, and shall be signed by the laborer or his attorney and verified by him to the effect that of his own knowledge the statements contained in it are true. The notice shall be served by delivering the same to an engineer, agent or superintendent having charge of the section of the road upon which the labor was performed, personally, or by leaving it at his office or usual place of business with some person of suitable age or discretion ; and if the corporation has no such agent, engineer or superintendent, or in case he can not be found and has no place of business open, service may in like manner be made on any officer or director of the corporation. The words " laborer and labor " are vised in their ordinary and usual sense, and imply the personal service and work of the individual designed to be protected. One who contracts for and furnishes the labor and services of others is not included, nor is one who contracts far and fur- nishes a team or teams for work, whether with or without his own services. (Balch v. N. Y. & O. M. R. R. Co., 46 N. Y., 521; Cummings v. Same, 1 Lans., 68; see, also, Moore v. Taylor, 42 Hun, 45.) The term " contractor " also includes a sub-contractor. (Kent v. N. Y. C. R. R. Co., 12 N. Y., 628.) A notice served within twenty days after the completion of the number of days for which pay is claimed is in time. (Chapman v. V. & B. R. R. R. Co., 4 Lans., 96.) § 31. Weight of rail. — The rail used in the construction or the relaying of the track of every railroad hereafter built or relaid in whole or in part shall be of iron or steel, weighing not less than twenty-five pounds to the lineal yard on nar- row-gauge roads, and on all other roads not less than fifty- six pounds to the lineal yard on grades of one hundred and ten feet to the mile or under, and not less than seventj pounds to the lineal yard on grades of over one hundred and ten feet to the mile, except for turnouts, sidings and switches. Fences, FaeM-crossings and Cattle-guards. 257 The Railroad Law, § 33. §32. Fences,* farm crossings and cattle-guards. — Every railroad corporation, and any lessee or other person in pos- session of its road, shall, before the lines of its road are opened for nse, and so soon as it has acquired the right of way for its roadway erect and thereafter maintain fences on the sides of its road of height and strength snfBcient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands w^ith farm crossings and open- ings with gates therein at such farm crossings whenever and wherever reasonably necessary for the use of the own- ers and occupants of the adjoining lands, and shall construct where not already done, and hereafter maintain, cattle- guards at all road crossings, suitable and sufficient to pre- vent cattle, horses, sheep and hogs from going upon its rail- road. So long as such fences are not made, or are not in good repair, the corporation, it& lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon. When made and in good repair, they shall not be liable for any such damages, unless negligently or willfully done. A sufficient post and wire fence of requisite height shall be deemed a lawful fence within the provisions of this section, but barbed wire shall not be used in its construction. "No railroad need be fenced, when not necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining lands. Every adjoining land owner, who, or whose grantor, has received compensation for fenc- ing the line of land taken for a railroad, and has agreed to build and maintain a lawful fence along such line, shall •An act entitled, "An act to regulate the use of barbed wire in the con- stmction of division fences," was enacted by laws of 1894, chapter 755, Mhlch roads as follows, to wit: Section 1. Barbed wire shall not be iised in the construction of any division fence constructed or built after September first, eighteen hun- dred and ninety-four, unless the person, association or corporation desiring to use such material shall first obtain the written consent of the owner of the adjoining property that it may be used. Sec. 2. Any person, association or corporation who shall construct or build a division fence contrary to the provisions of this act, or who shall maintain such fence after so constructing or building the same, shall for- feit and pay to such adjoining property owner, or other person lawfully occupying such adjoining property, treble damages for all injuries occasioned to him thereby. 17 258 Fences, Fakm-ceossings and Cattle-guaeds. The Railroad Law, § 32. build and maintain such fence. If such owner, his heir or assign shall not build such fence, or if buUt, shall neglect to maintain the same during the period of thirty days after he has been notified so to do by the railroad corporation, such corporation, shall thereafter build and maintain such fence, and may recover of the person neglecting to build and maintain it the expense thereof. And when such railroad shall cross timbered or forest lands, the company shall con- struct and maintain suitable and sufficient crossings, when- ever and wherever reasonably necessary to enable the respective owners of said lands, to transport logs, timber and lumber for manufacture or sale, or for banking on any stream, to be floated or driven down the same. In case of any neglect or dispute the supreme court may by mandamus or other appropriate proceedings, compel the same, and also fix the point or location of any such crossing. (Thus amended by L. 1891, ch. 367; L. 1892, ch. 676.) After rendition of a judgment requiring, a railroad company to construct a farm crossing it was leased and subsequently came ipto possession of a receiver. On motion to compel performance of the judgment by such receiver, held, that it was no defense to the application that the receiver had no means with which to comply with the requirements of the judg- ment. (Pecliham v. Dutchess County R. R. Co. ; J. K. O. Sherwood, as receiver, 145 N. Y., 385.) The receiver of a lessee railroad corporation, virhich has been directed by Judgment to construct a certain farm crossing, must either comply with the judgment or abandon the leased railroad. (Peckham v. Dutchess County R. R. Co., 81 Hun, 399.) A railroad company is not required to give any warning of the approach of its trains at a private crossing. (Burk v. D. and H. C. Co., 86 Hun, 619 ; dist'g Byrne v. N. Y. C. and H. R. R. R. Co., 104 N. Y., 362.) An award, in proceedings to condemn lands for railroad pm-poses, to the owner of a farm crossed by the track of the railroad, does not extin- guish the owner's right to compel the railroad company to construct proper crossings. (Beardsley v. Lehigh Valley Ry. Co., 142 N. Y., 173; affirming 62 Hun, 502.) It is to be assumed that both parties stood upon their legal rights as to crossings, and those rights are not extinguished or affected by the award. (Id.) The owner of lands crossed by a railroad is not confined to an action for damages for a failure on the part of the corporation to erect and maintain fences. He may enforce the performance of this duty by an equitable action. (Jones v. Seligman, 81 N. Y., 190; Wademan v. A. & S. R. R. Co., 51 N. Y., 568; Haynes v. B., N. Y. & P. R. R. Co., 38 Hun, 17; Leggetlt V. Rome, W. & O. R. R. Co., 41 Hun, 80; Thomas v. Utica & B. R. R. R. Co., 97 N. Y., 245; Smith v. N. Y. & O. M. R. R. Co., 63 N. Y., 58.) Such an action is one upon contract within the meaning of the Code of Fences, Faem-ceossings and Oattle-guaeds. 259 The Railroad Law, § 33. Civil Procedure, section 484, being for breach of an implied contract. (97 N. Y., 245, above.) Vacant lots fronting upon ti'acks through village streets must be fenced. (Crawford v. N. Y. O. & H. R. ■ R. R. Co., 18 Hun, 108.) The defendant is not relieved because the land on both sides of ItB track is occupied by tracks of other companies. (Kelver v. N. Y. O. & St. li. R. R. Co., 126 N. Y., 365; see, also, Buf. Stone & Cement Co. v. D., L. & W. R. Co., 130 N. Y., 152.) These provisions apply to a foreign corporation, even if it be a lessee. (130 N. Y., 152, supra; Purdy v. N. Y. & N. H. R. R. Co., 61 N. Y., 353.) A conveyance in fee of a right of way, without a reservation, is not a release of the obligation to erect and maintain fences. (63 N. Y., 58 above; 51 N. Y., 568, above; Clarke v. R. L. & N. F. R. R. Co., 18 Barb., 350.) Companies for whose use a railroad has been built by another corpora- tion are liable. (Tracy v. T. & B. R. R. Co., 3S N. Y., 433.) A defendant is not relieved where the train itself was operated by another company. (Dolan V. N. D. & C. B. R. Co., 120 N. Y., 571.) The opening gates or bars are for the use of the adjoining land owner. (Spinner v. N. Y. C. & H. R. R. R. Co., 67 N. Y., 153.) He must close the gate after using it. (Diamond Brick Co. v. N. Y. C. & H. R. R. R. Co., 58 Hun, 398; 28 St Rep., 95.) The corporation may determine the location of the crossing, which should be convenient and suitable. (130 N. Y., 152, above; 51 N. Y., 568, above.) As to cattle guards, see Bradley v. Buf., N. Y. & E. R. R. Co., 34 N. Y., 427; Hyatt v. N. Y., L,. E. & W. R. R. Co., 64 Hun, 542; 38 N. Y., supra; Brooks V. N. Y. & E. R. R. Co., 13 Barb., 594; Brace v. N. Y. C. R. R. 0.0., 27 N. Y., 269; Clarke v. R. L. & N. E. R. R. Co., 18 Barb., 350. A Virginia rail fence is a proper one. (Ferris v. Van Buskirk, 18 Barb., 397.) As to barbed wire. (Rehler v. West. N. Y. & P. R. R. Co., 28 St. Rep., 311; 8 N. Y. Supp., 286.) Height of fence. (Leyden v. N. Y. 0. & H. R. R. R. Co., 55 Hun, 114.) After fences and guards are duly made and maintained the liability for damages ceases unless negligently or willfully done. (Boyle v. N. Y., L. B. & W. R. R. Co, 39 Hun, 171; Corwinv. N. Y. & B. R. R. Co., 13 N. Y., 42; Hance v. C. & S. R. R. Co., 26 N. Y., 428; White v. U. & B. R. R. R. Co., 15 Hqu, 333; Brady v. R. & g..R. R. Co., 1 Hun, 378.) The lia- bility extends to cattle of others than adjoining owners. (13 N. Y., 42 above.) But not to injuries which the cattle cause to themselves by stay- ing on the track. (Knight v. N. Y., L. E., & W. R.. R. Co., 99 N. Y. 25; 13 Barb., 594, above.) This section not applicable to fences to protect persons traveling on a highway. (Ditchett y. Spuy. Duyv. & P. M. R. R. Co., 67 N. Y., 425; Prendegast v. N. Y. C. & H. R. R. R. Co., 58 N. Y., 652.) Liability for injuries when the fence is out of repair. (Hodge v. N. Y. C. & H. R. R. R. Co., 27 Hun, 394; Murray v. N. Y. C. R. R. Co., 4 Keyes, 274; Wheeler v. E. By. Co., 2 T. & C, 634; Morrison v. N. Y. & N. H. H. r; Co., 32 Barb., 568; Munch v. N. Y. C. B. B. Co., 29 Barb., 647; McGuire v. O. & L. 0. B. R. Co., 44 St. Rep., 348; Polly v. N. Y. C. R. E. 260 Signboards and Flagmen at Crossings. The Railroad Law, § 33. Co., 16 N. Y., 476; Potter v. N. Y. C. & H. R. R. R. Co., 60 Hun, 313; Klock V. Same, 62 Hun, 291.) The corporation is liable for Injuries to passengers and employes upon a faihu-e to comply. (Donnegan v. Erhardt, 119 N. Y., 468; see, also, Dolan V. N., D. & 0. R. R. Co., 120 N. Y., 571; Langlois v. B., R. & P. R. R. Co., 19 Barb., 364.) An adjoining land owner who has covenanted to maintain fences cannot recover from the company for his own failure. (Talmadge v. R. & S. R. R. Co., 13 Barb., 493; Duffy v. N. Y. & H. R. R. Co., 2 Hilt., 496; Tombs v. Roch. & S. R. R. Co., 18 Barb., 583; Terry V. N. Y. C. R. R. Co., 22 Barb., 574; see, also, Shepard v. N. Y. & E. R. R. Co., 35 N. Y., 64].) § 33. Signboards and flagmen at crossings. — Every rail- road corporation shall cause boards to be placed, well sup- ported and constantly maintained across each traveled pub- lic road or street, vs^here the same is crossed by its road at grade. They shall be elevated so as not to obstruct travel, and to be easily seen by travelers; and on each side shall be painted in capital letters, each at least nine inches in length and of suitable vpidth, the vs^ords : " Kailroad cross? ing; look out for the cars ; " but such boards need not be put up in cities and villages, unless required by the officers having charge of the streets. At any point where a railroad crosses a street, highway, turnpike, plank-road, or traveled way at grade, or where a steam railroad crosses a horse railroad at grade, and the corporation owning or operating such railroad, refuses, upon request of the local authorities to station a flagman or erect gates, to be opened and closed when an engine or train passes, the supreme court or the county court, may, upon the application of the local authori- ties and upon ten days notice to the corporation, order that a flagman be stationed at such point, or that gates shall be erected thereat, and that a .person be stationed to open and close them when an engine or train passes, or may make such other order respecting the same as it deems proper. Whenever the crossings by a railroad at grade of the streets, highways, turnpikes, plankroads, or traveled ways of any village or city, having a population by the last state or federal enumeration of less than flfty thousand, shall be protected by gates with persons to open and close the same, when an engine or train passes, the local authorities of the city or village shall not impose any limitation, less than forty miles an hour, on the rate of speed at which such Notice of Starting Trains; No Peefeeences. 261 The Railroad Law, § 34. engine or train shall "be run, or enforce any existing limita- tion upon such rate of speed, less than forty miles an hour. (Thus amended by L. 1892, cli. 676.) The negligence of a railroad company does not relieve a traveler on a highway from the exercise of care in looking and listening before crossing the tracks in order to escape the danger of moving trains. (Miller v. N. Y, 0. and H. R. R. R. Co., 82 Hun. 164.) Provision not unconstitutional as a delegation of legislative power to the judges. (People v. L. I. R. R. Co., 58 Hun, 412; afC'd 134 N. Y., 506.) Before negligence to erect gates can be imputed' an order must b* obtained. (Daniels v. Staten I. R. T. Co., 125 N. Y., 407.) For other cases construing section see Kane v. N. Y., N. H. & H. R. R, Co., 132 N. Y., 160; Rodrian v. Same, 125 N. Y., 526; Oldenburg v. N. Y. O. & H. R. R. R. Co., 124 N. Y., 414; Palmer v. Same, 112 N. Y., 234; Haywood v. Same, 35 St. Rep., 145; afC'd 128 N. Y., 596; Glushing v. Sharp, 96 N. Y., 076. § 34. Notice of starting trains ; no preferences. — Every railroad corporation shall start and run its cars for the transportation of passengers and property at regular times, to be fixed by public notice, and shall furnish sufficient accommodations for the transportation of all passengers and property which shall be offered for transportation at the place of starting, within a reasonable time previously thereto, and at the junctions of other railroads, and at the usual stopping places established for receiving and discharg- ing way passengers and freight for that train; and shall take, transport and discharge such passengers and property at, from and to, such places, on the due payment of the fare or freight legally authorized therefor. No station estab- lished by any railroad corporation for the reception or deliv- ery of passengers or property, or both, shall be discontinued without the consent of the board of railroad commissioners first had and obtained. No preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be granted by any railroad corporation to any one of two or more per- sons, associations or corporations competing in the same business, or in the business of transporting property for themselves or others. Any such station in an incorporated village shall have the same name as the village; if any road shall have more than one such station in any such village the station nearest the geographical centre thereof shall have such name. (Thus amended by L. 1892, ch. 676.7 262 Connecting Eoads. The Railroad Law, § 35. A railroad company receiving perishable property for transportation Is bound to forward it immediately to its destination. This is its obligation at common law, and the repeal of section 36, chapter 140, Laws of 1850, by chapter 565, Laws of 1890, does not affect this common-law obligation of railroads. (Cartwright v. Rome, W. and O. R. R. Co., 85 Hun, 517.) Assuming that the business of a common hackman comes under the gene- ral definition of a common carrier, it does not come within the protection of this section. (Brown v. N. Y. G. & H. R. R. R. Co., 75 Hun, 355.) A con- tract between a railroad company and a coach company whereby the lat- ter, for a valuable consideration, was given the exclusive right to have agents upon trains of the former to solicit patronage, and also . the exclusive right to enter the railroad yard to solicit and receive passengers, was not a contract against public policy. (Id.) Neglect to run trains at regular intervals for fiVe days not sufficient to forfeit corporate rights. Under Code of Civil Procedure, section 1785, non-user for a year is necessary. (People v. Atl. Ave. R. R. Co., 125 N. Y., 513; People v. B'dway R. R. Co. of Brooklyn, 126 N. Y., 29.) A company may be compelled by mandamus to perform its duty as a common carrier. (People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543.) But damages for a wrongful refusal to receive and transport goods are recoverable by an action at law. (People ex rel. Ohlen v. N. Y., L. B. & W. R. R. Co., 22 Hun, 533; People ex rel. Walker v. Babcock, 16 Hun, 313.) As to reasonable stops at stations see Flanagan v. N. Y., N. H. & H. R. R. Co., 8 N. Y. Supp., 744; 29 St. Rep., 543, afC'd 125 N. Y., 773; McDonald v. Long Isl. R. R. Co., 116 N. Y., 546; Hickenbottom v. D., L. & W. R. R. Co., 122 N. Y., 312; Paulitsch v. N. Y. C. & H. R. R. R. Co., 102 N Y., 280. See, also Tierney v. N. Y. C. & H. R. R. R. Co., 76 N. Y., 305; Wlbert v. N. Y. & B. R. R. Co., 12 N. Y., 245; Barney v. Oyster Bay, etc., Co., 67 N. Y., 301; Cary v. C. & T. R. R. Co., 29 Barb., 57; Bissell v. N. Y. C. R. R. Co.. 25 N. Y., 442. § 35. Accommodation of connecting roads. — Every rail- road corporation "whose road, at or near the same place, con- nects with or is intersected by two or more railroads com- peting for its business, shall fairly and impartially afford to each of such connecting or intersecting roads equal terms of accommodation, privileges and facilities in the transpor- tation of cars, passengers, baggage and freight over and upon its roads, and over and upon their roads, and equal facilities in the interchange and use of passenger, baggage, freight and other cars required to accommodate the busi- ness of each road, and in furnishing passage tickets to pas- sengers who may desire to make a continuous trip over any part of its roads and either of such connecting roads. The board of railroad commissioners may, upon application of the corporation owning or operating either of the connect- Gbade Crossings. 263 The Railroad Law; § i ing or intersecting roads, and upon fourteen days' notice to the corporation owning or operating the other road, pre- scribe such regulations as will secure, in their judgment, the enjoyment of equal privileges, accommodations and facilities to such connecting or intersecting roads as may be required to accommodate the business of each road, and the terms and conditions upon which the same shall be afforded to each road. The decision of the commissioners shall be binding on the parties for two years, and the supreme court shall have power to compel the performance thereof by attachment, mandamus or otherwise. (See 29 Barb., 36-57.) See section 12 of this law, § 36. Locomotives must stop at grade crossings. — All trains and locomotives on railroads crossing each other at grade shall come to a full stop before crossing, not less than two hundred or more than eight hundred feet from the crossing, and shall then cross only when the way is clear and upon a signal from a watchman stationed at the crossing. , If the corporations cannot agree as to the expense of the watchman, it shall be determined by the supreme court, upon motion thereto by either of them. If the cor- porations disagree as to the precedence of trains, the board of railroad i commissioners may, after hearing, upon the application of either corporation, prescribe rules in relation thereto. The full stop and crossing on signal may be dis- continued if the board of railroad commissioners shall decide it to be impracticable, or if, with the approval of the com- missioners, an interlocking switch and signal apparatus is adopted and put in operation at such a crossing. The full stop and crossing on signal shall not be required in depot yards, or the approaches thereto, if the crossing roads are under lease or subject to the same management or control in the use of tracks. An engineer violating the foregoing provisions of this section, or any such rule of the railroad commissioners shall be liable to a penalty of one hundred dollars; and any corporation or person operating the rail- road, violating any of such provisions or rules shall be liable to a penalty of five hundred dollars. No railroad corpora- tion, or any officer, agent or employe thereof, shall stop its cars, horses, or locomotives upon a grade crossing of a rail- 264 Rates of Faee. The Railroad Law, § 37. road of another corporation, for the purpose of receiving or delivering passengers or freight, or other purpose, and any person or corporation violating this provision, shall be liable to a penalty of two hundred and fifty dollars. On the trial of an action for damages for personal injuries when it is shown that the injury was caused by the failure of the railroad compaiy to comply with section 36, requiring trains to stop at grade crossings, It no negligence is shown to have existed on the part of the plaintiff, it will be assumed that he was free from contributory negligence. (Rowe v. N. Y. C. and H. R. R. R. Co., 82 Hun, 153.) §37. Rates of fare. — Every railway corporation may fix and collect the following rates of fare as compensation to be paid for transporting any passenger and his baggage, not exceeding one hundred and fifty pounds in weight, for each mile or fraction of a mile. 1. Where the motive power is rope or cable, propelled by stationary power, five cents, with right to a minimum fare of ten cents; but if the railroad is less than two miles in length, and overcomes an elevation of five hundred feet or more to the mile, five cents for each one hundred feet of elevation so overcome, and the same rates of fare if the motive power is locomotives, furnished with cogs working into cogs on the railway, and the length of road does not exceed four miles. 2. If a road, not incorporated prior to May 15, 1879, and not located in the counties of New York and Kings, or within the limits of any incorporated city, and not more than twenty-five miles in length, five cents; if over twenty-five and not more than forty miles, four cents ; and if over forty miles, three cents. Where by the laying down of a third rail upon a railroad of the ordinary gauge, a narrow-gauge track is created and used for the transportation of passen- gers, and the length of road does not exceed six miles, including any connecting road of the same gauge, such rail- road, for the purpose of fare, shall be deemed a narrow gauge road. 3. If its railroad overcomes an elevation of two hundred feet to the mile, for at least two consecutive miles, and does not exceed twenty miles in length, ten cents ; if it overcomes an elevation exceeding three hundred feet to the mile, within a distance of two miles, five cents for each one hundred feet of elevation; and where it overcomes an elevation of more Eates of Fake; Reduction of. 265 The Railroad Law, § 38. than one thousand feet, within a distance of two miles, seven cents for each one hundred feet of elevation in a mile. 4. If the line of its road does not exceed fifteen miles in length, and does not enter or traverse the limits of any incor- porated city, and the distance traveled thereon by the pas- senger does not exceed one mile, five cents. , 5. In all other cases three cents for every such mile or fraction thereof, with a right to a minimum single fare of not less than five cents. This chapter shall not be construed to allow any rate of fare for way passengers greater than two cents per mile to be charged or taken over the track or tracks of the railroad known as the New York Central Railroad Company, ahd the rate of fare for way passengers over the track or tracks of such company shall continue to be two cents per mile and no more, wherever it is restricted to that rate of fare, nor shall any consolidated railroad corporation charge a higher rate of fare for way passengers over the track or tracks of the consolidated line than was allowed by law to be charged by each existing coirporation thereon previously to such consolidation. (Thus amended by L. 1892, ch. 676.) See Johnson v. Hudson R. R. R. Co., 49 N. Y., 455. § 38. Legislature may alter Or reduce fare. — The legis- lature may, when any such railroad shall be opened for use, from time to time, alter or reduce the rate of freight, fare or The provisions of section 37 above, have been modified 'as to certain railroads by Laws of 1895, chapter 1027, entitled "An act in relation to the Issue of milease boolis by railroad corporations," which became a law June 15, 1895, and reads as follows, to wit: Section t. Every railroad corporation operating a railroad In this State, the line or lines of which are more than one hundred miles In length, and which is authorized by law to charge a maximum fare of more than two cents per mile and not more than three cents per mile, shall issue mileage books entitling the holder thereof to travel one, thousand miles on the line or lines of such railroad, for which the corporation may charge a sum not to exceed two cents per mile. Any railroad corporation which shall refuse to issue a mileage book as provided by this section, or, in violation thereof, to. accept such mileage book for transportation, shall forfeit fifty dollars, to be recovered by the party to which such refusal is made ; but no action can be maintained therefor unless commenced within one year after the cause of action accrued. 266 Fake ; Excessive ; Refusal to Pat. The Railroad Law, §§ 39, 40. other profits upon such road; but the same shall not, with- out the consent of the corporation, be so reduced as to produce with such profits less than ten per centum per annum on the capital actually expended; nor unless on an examination of the amounts received and expended, to be made by the board of railroad commissioners, they shall ascertain that the net income derived by the corporation from all sources, for the year then last past, shall have exceeded an annual income of ten per cent upon the capital of the corporation actually expended. See Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., Ill N. Y., 132. § 39. Penalty for excessive fare. — Any railroad corpora- tion, which shall ask or receive more than the lawful rate of fare unless such overcharge was made through inadver- tence or mistake, not amounting to gross negligence, shall forfeit fifty dollars, to be recovered with the excess so received by the party paying the same; but no action can be maintained therefor, unless commenced within one year after the cause of action accrued. Only one penalty of fifty dollars can be recovered for all acts com- mitted prior to the commencement of the action. (Fisher v. N. Y. O. k H. R. R. R. Co., 46 N. Y., 644; for other cases under this section, see 43 N. Y., 455; 30 N. Y., 505; 26 N. Y., 523; 49 Barb., 330.) A recovery may be had by one paying excessive fare while riding, simply for the purpose of obtaining the penalty. (Fisher v. N. Y. C. & H. R. R. R. Co., 46 N. Y., 645.) The penalty is incurred if a -conductor exacts a greater fare than is allowed by law, because the passenger had no ticket, unless its ticket office were open at the time of starting, though at mid- night. (Nellis V. N. Y. C. R. R. Co., 30 N. Y., 505; Chase v. Same, 26 N. Y., 523; Porter v. Same, 34 Barb., 353.) An extra fare is permissible on a spur built on land owned by the company and used only during races. (Palm V. N. Y., N. H. & H. R. R. Co., 42 St. Rep., 219; 17 N. Y. Supp., 471.) § 40. Passenger refusing to pay fare may be ejected. — If any passenger shall refuse to pay his fare the conductor of the train, and the servants of the corporation, may put him and his baggage out of the cars, using no unnecessary force, on stopping the train, at any usual stopping place, or near any dwelling house, as the conductor may elect. See Penal Code, sec. 223, subd. 5. Upon the ejection of a person from a car it is not essential that he should have been violently assaulted to warrant a recovery. (Miller v. King, as receiver of N. Y., L. B. and W. R. R. Co., 84 Hun, 308.) Refusal to Pay Faee. 267 The Railroad Law, § 40. The fact that a person is a trespasser upon a street oar does not law- fully expose him to the use of excessive force or means of ejecting him which are necessarily menacing to his life and limb. (Barber v. Broadway and Seventh Av. R. R. Co., 10 Misc. R., 109.) While it is the duty of a street car conductor to keep the car free of trespassers, and he has the right to put one ofC, he must do so in a proper manner. (Ansteth v. Bufeialo Ry. Co., 9 Misc. R., 419.) It is a general rule that a carrier of passengers is answerable for all the consequences which may result to a passenger from the willful mis- conduct or negligence of employes, and where a railroad company has imdertaken, for a consideration paid, to carry a person to his destination, such person has the right of passage, and as between him and such com- pany he is at liberty to refuse to repay his fare and to insist upon having his continuous passage. (Muckle v. Roch. Ry. Co., 79 Hun, 32, and numerous cases therein cited.)' If the conductor proceeds to forcibly eject a person from the car in which he is rightfully seated as a passen- ger, notwithstanding that the conductor personally may be justified by his instructions in doing so, because of the mistake of another con- ductor in taking from the passenger the evidence of , his right to ride on the car, yet the railroad company is no more justified in the attempted act of ejection than it would be if such passenger had at the time held and presented the evidence of his right to remain as a passenger in the car without further payment. (Id.) A person will not be permitted to recover exemplary damages against a master for the act or negligence of his servant, unless the master has authorized or ratified his servant's misconduct. (Id.) Where, in consequence of the refusal of a passenger to pay his fare, the train is stopped for the sole purpose of putting him off, he is not entitled to insist on continuing his trip on paying the fare, but may bo removed from the train; but where the train stops at a regular stopping place and the passenger, before being ejected, or others in his behalf, offer to pay the full fare, it is the duty of the conductor to accept it, and If he refuses and ejects the passenger the company is liable. (O'Brien v. N. Y. C. & H. R. R. R. Co., 80 N. Y., 236; see, alSo, 35 Hun, 313; 14 Barb., 590; 31 Barb., 558.) A passenger for a way station who boards an express train not stop- ping at such station, may be ejected upon refusing to pay fare to the next regular stopping place. (Fink v. A. & S. R. R. Co., 4 Lans., 147.) The passenger must produce a ticket or pay fare although another conductor has wrongfully taken up his ticket (Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y., 295.) There Is no question for the jiu'y when a passenger was ejected six rods from a dwelling-house for non-payment of fare. When the question whether or not a dwelling-house ia "near" should "be sub- mitted to the jury. (Loomis v. Jewett, 35 Hun, 313; Johnson v. N. Y., O. & W. Ry. Co., 14 W. D., 495.) Payment of fare to a ticket agent previous to entering the cars does not excuse non-production of a ticket. (Weaver v. Rome, W. & O. R. R. Co., 3 T. & p., 270.) A passenger having a ticket " good for this date only " may be ejected upon refusing to pay fare. (Elmore v. Saflds, 54 N. Y., 512; Gale v. D'. L. & W. R. R. Co., 7 Hun, 670; 268 Sleeping and Paeloe Caes. The Railroad LaW, § 41. Boice V. H. E. R. R. Co., 61 Barb., 611; Barker v. Coffin, 31 Barb., 656; see, also, Hill v. S., B. & N. Y. R. R. Co., 63 N. Y., 101; Beebe v. Ayres, 28 Barb., 275; Elliott v. N. Y. C. & H. B. R. R. Co., 53 Hun, 78.) Tickets must be produced or surrendered when required by the conductor. (Hib- bard v. N. Y. & E. R. R. Co., 15 N. Y., 455; N. R. R. Co. v. Page, 22 Barb., 130.) The company may limit the trains on which a ticket shall be used. (Nolan T. N. Y., N. H. & H. R. R. Co., 41 N. Y. Sp., J. & S.', 541; but see Martin v. N. Y. C. & H. R. R. R. Co., 1 N. Y. St. Rep., 738.) It may also prescribe the route. (Bennett v. Same, 69 N. Y., 594; Ad win v. Same, (30 Barb., 590.) A ticket "good this trip only" is not limited to any particular day or train. (Pier v. Finch, 24 Barb., 514.) A ticket without limitation as to continuity of trip does not give the holder a right to leave the train and finish his journey on another. (Hamilton v. N. Y. G. R. R. Co., 51 N. Y., 100; Kelsey v. M. C. R. R. Co., 28 Hun, 460; Denny t. N. Y. C. & H. B. R. R. Co., 5 Daly, 50; Terry v. F., N. S. & C. R. R. Co., 13 Hun, 359; Ward V. N. Y." C. & H. R. R. R. Co., 56 Hun, 268.) A passenger may stop over on the conductor's assurance. (Tarbell v. N. C. Ry. Co., 24 Hun, 51.) A ticket for a .continuous trip, within a time specified, may be used if the journey begins before the expiration of the time. (Auerbach v. N, Y. C. & H. R. R. R. Co., 89 N. Y., 281; see, also, Wentz v. Erie R. R. Co., 3 Hun, 241.) Where a train is stopped solely to eject a passenger he la not entitled to continue his trip on ofCering to pay fare. (O'Brien v. N. Y. C. & H. R. R. R. Co., 80 N. Y., 23G; Hibbard v. N. Y. & E. R. R. Co., 15 N. Y., 455; see, also, Guy v. N. Y., O. & W. Ry. Co., 30 Hun, 399; Nelson V. L. Isl. R. R. Co., 7 Hun. 140.) But if the stop is at a regular station, see same cases; also. Pease v. D., L. & W. R. R. Co., 101 N. Y., 367.) A passenger lawfully on a train may protect himself against removal. (Sanford v. Eighth Av. R. R. Co., 23 N. Y., 343; English v. D. & H. O. Co., 66 N. Y., 454.) A ti-espasser must not be removed in a reckless and illegal manner. (Hoffman v. N . Y. C. & H. R. R. R. Co., 87 N. Y., 25; see Peck V. Same, 70 N. Y., 587; Rounds v. D., L. & W. R. R. Co, 64 N. Y., 129; Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; Bartlett v. N. Y. & S. B. F. & S. T. Co., 57 Supr. Ct., 348.) AVhen all the seats in the ordl- nary cars are occupied a passenger is justified In using a drawing-room seat until another is provided. (Thorpe v. N. Y. C. & H. R. R. R. Co., 76 N. Y., 402.) See, also, Yates v. N. Y. C. & H. R. R. R. Co., 67 N. Y., 100; Townsend V. Same, 56 N. Y., 295; Hamilton v. Third Av. R. R. Co, 53 N. Y., 25; Fink V. A. & S. R. R. Co., 4 Lans., 147; Barker v. N. Y. C. R. R. Co., 24 N. Y., 599, § 41- Sleeping and parlor cars. — Any railroad corporation may contract with, any person, association or corporation for the hauling by the special or regular trains of said rail- road corporation, the parlor, drawing-room or sleeping car or cars of such person, associgrtion or corporation, in which extra accommodations shall be furnished, for which said person, association or corporation furnishing such parlor, Deivees, Conduotoes, Motoemen, etc. ii69 The Railroad Law, § 43. drawing-room or sleeping car or cars, may charge for the carriage and transportation of persons and property therein, a reasonable compensation for such extra accommodation, in addition to the fare and charges now allowed by law for the carriage and transportation of passengers and property in the ordinary cars of said railroad corporation. But said railroad corporation so contracting shall be liable in the same way and to the same extent as if the said car or cars were owned by it, and shall furnish sufficient ordinary cars for the reasonable accommodation of the traveling public. (Thus amended by L. 1892, ch. 676.) Where money is lost by a passenger in a sleeping car, the corporation Operating the car not being liable as a common carrier, can be charged with liability only on the ground of negligence, and the burden of proof Is upon the plaintiff to establish negligence. (Sessions v. N. Y., L. E. & W. R. R. Co., 78 Hun, 541; see, also. Carpenter v. N. Y., N. H. & H. R. R. Co., 121 N. Y., 53; Dunn v. New Haven Steamboat Co., 58 Hun, 461.) Ri^ht of passenger to take a drawing-room seat until a seat in the ordinary car is vacated. (Thorpe v. N. Y. C. & H. R. R. R. Co., 76 N. y., 402; De Long v. D., L. & W. R. R. Co., 37 Hun, 282.) Purchase of a drawing-room seat ticket by the holder of a free pass does make the company liable for injuries. (XJlrich v. N. Y. C. & H. R. R. R. Co., 108 N. Y., 80.) Servants in drawing-room cars to be regarded as employes of the railroad company. (76 N. Y., 402, supra; Palmleri v. Man. Ry. Co., 133 N. Y., 261; Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 N. Y., 117.) Loss of baggage, money and parcels in such cars. (Welch v. Pullman P. C. Co., 1 Sheld., 457; 16 Abb. Pr., N. S., 352; Tracy v. Same, 67 How., 154; Car- penter V. N. Y., N. H. & H. R. R. Co., 124 N. Y., 53, and cases there cited.) A person who is a passenger on a sleeping car has a right to expect to find the conveniences which are furnished by such cars and for which he has paid. (Piper v. N. Y. G. & H. R. R. R. Co., 76 Hun, 44.) § 42. Persons employed as drivers, conductors, motor- men or gripmen. — Any railroad corporation may employ any inhabitant of the State, of the age of twenty-one years, not addicted to the use of intoxicating liquors, as a car driver, conductor, motorman or gripman, or in any other capacity, if fit and competent therefor. All applicants for positions as motormen or gripmen on any street surface raili'oad in this State shall be subjected to a thorough examination by the officers of the corporation as to their habits, physical ability and intelligence. If this examination is satisfactory, the applicant shall be placed in the shop or power house where he can be made familiar with the power and machin- ery he is about to control. He shall then be placed on a 270 Badges ; Checks for Baggage. The Railroad Law, §§ 43, 44. i_ . car with an instructor, and when the latter is satisfied as to the applicant's capability for the position of motorman or gripman, he shall so certify to the officers of the company, and, if appointed, the applicant shall first serve on the lines of least travel. Any violation of the provisions of this sec- tion shall be a misdemeanor. (Thus amended by L. 1895, ch. 513.) See, also, Penal Code, sec 420, post § 43. Conductors and employes must wear badges. — Every conductor and employe of a railroad corporation employed in a passenger train, or at stations for passengers, shall wear upon his hat or cap a badge, which shall indicate his office or employment, and the initial letters of the corpo- ration employing him. No conductor or collector without such badge shall demand or receive from any passenger any fare or ticket or exercise any of the powers of his employ- ment. No officer or employe without such badge shall med- dle or interfere with any passenger, his baggage or property. (Thus amended by L. 1892, ch. 676.) § 44. Checks for baggage.— A check made of some proper metallic substance of convenient size and form, plainly stamped with numbers, and furnished with a convenient strap or other appendage for attaching to baggage, shall be affixed to every piece or parcel of baggage when taken for transportation for a passenger by the agent or employe of such corporation, if there is a handle, loop or fixture there- for upon the piece or parcel of baggage, and a duplicate thereof given to the passenger or person delivering the same to him. If such check be refused on demand the corporation shall pay to the passenger the sum of ten dollars, and no fare shall be collected or received from him; and if he shall have paid his fare it shall be refunded to him by the con- ductor in charge of the train. Such baggage shall be deliv- ered, without unnecessary delay, to the passenger or any person acting in his behalf at the place to which it was to be transported, where the cars usually stop, or at any other regular intermediate stopping place, upon notice to the bag- gage-master in charge of baggage on the train, of not less than thirty minutes, upon presentation of such duplicate check to the officer or agent of the railroad corporation, or Uncla.imed Freight and Baggage. 271 The Railroad Law, §§ 45, 46. of any corporation, oyer any portion of whose road it was transported. (Thus amended by L. 1892, ch. 676.) For cases in relation to a common carrier's liability for a passenger's baggage see Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y., 278: Matteson V. Same, 76 id., 381; Fairfax v. Same, 73 id., 167; Perley v. Same, 65 id., 374; Burnell v. Same, 45 id., 184; Curtis v. D. L. & W. R, R. Co., 74 id., 116; Dinlnny v. N. Y., N. H. & H. R. R. Co., 49 id., 546; Rawson v. Penn. R. R. Co., 48 id., 212; Merrill v. Grinnell, 30 id., 594 Dexter v. S., B. & N. Y. R. R. Co., 42 id., 326; Sloman v. Gt. W. Ry. Co., 67 id., 208; Stoneman V. Erie Ry. Co., 52 id., 429; Roth v. Buf. & S. L. R. R. Co., 34 id., 548; Millard v. M., K. & T. R. R. Co., 86 id., 441; Estes v. St. P., M. & M. R. (R. Co., 27 St. Rep., 594; Holdridge v. V. & B. R. R. R. Co., 56 Barb., 191; Jones V. Nor. & N. Y. T. Co., 50 id., 193; Curtis v. Avon, G. & Mt. M. R. R. Co., 49 id., 148; Powell v. Myers, 26 Wend., 591; Pardee v. Drew, 25 id., 459; Green v. N. Y. C. R. R. Co., 12 Abb. N. S., 473; N. Y. C. & H. R. R. R. Co., V. Fraloff, 100 U. S., 24. §45. Penalties for injuries to baggage. — Any person, whose duty it is for or on behalf of the common carrier to handle, remove or care for the baggage of passengers, who shall reclilessly or willfully injure or destroy any trunk, valise, box, bag, package or parcel, while loading, unloading, transporting, delivering or storing the same, or any railroad corporation, which shall knowingly keep in its employment any such willful or reckless person, or which shall permit any injury or destruction of such property, through failure to provide sufficient help and facilities for the handling thereof, shall pay to the party injured thereby the. sum of fifty dollars, in addition to such damages. §46. Unclaimed freight and baggage.— Every railroad or other transportation corporation, doing business in this state, which shall have unclaimed freight or baggage, not perishable, in its possession for the period of one year, may sell the same at public auction, after giving notice to that effect, once a week for not less than four weeks in a news- paper published in the county where the freight or baggage, remains unclaimed, and in a newspaper published in the county where the sale is to be had, and in a newspaper pub- lished in the city of New York, which notice shall contain, as near as practicable, a descripton of such freight or bag- gage, the place and time when left, and the name of the owner, if known. A copy of such notice shall be posted 272 Tickets and Checks for Connecting Steamboats. The Eailroad Law, § 47. in a conspicuous place at each depot or station, where any portion of such freight or baggage remains unclaimed, at least four weeks before such sale, and a copy thereof shall be served on the comptroller of the state, at least two weeks before such sale. If the name and residence of the owner of any such property is known to, or can be ascertained by, the corporation, it shall forthwith serve a copy of such notice upon such owner by mail. Perishable freight or baggage may be sold without notice, as soon as it can be, upon the best terms that can be obtained. All moneys arising from the sale of such freight or baggage, after deducting there- from charges and expenses for transportation, storage, advertising, commissions for selling the property, and any amount previously paid for its loss or non-delivery, shall be deposited, by the corporation making such sale, with a report thereof, and proofs of advertisement, if any, and if none, proofs that the property was perishable, with the comp- troller for the benefit of the general fund of the state, and shall be held by him in trust for reclamation by the per- sons entitled to receive the same. (Thus amended by L. 1892, ch. 676.) §47. Tickets and checks for connecting steamboats. — The proprietors of any line of steamboats, terminating or stopping for passengers at any place where a railroad corpo- ration has a depot or station, may furnish tickets and bag- gage checks to such corporation for the use of passengers, traveling over its road, who desire to connect with such line of boats at any such place, and the railroad corporation shall sell such tickets and deliver a duplicate of one of such checks to any such passenger applying therefor, and shall account for and pay over to the proprietor of such line of boats all moneys received by it for the sale of such tickets; and any such railroad corporation may furnish tickets and checks for baggage to the proprietors'' of any such line of steamboats for the use of passengers traveling over any part of such line of boats, who desire to connect with the railroad of any such corporation at any such place, and such proprietors shall sell such tickets and deliver a duplicate of one of such checks to any such passenger applying therefor, and shall account for and pay over to such cor]x>ration all moneys received by them for the sale of such tickets. No greater Tickets and Checks fok Connecting Steamboats. 273 The Kailroad Law, § 4r. rate of fare shall be charged by any railroad corporation to any such passenger for the distance traveled over its road than is charged to travelers for ^he same distance whose trip ends at the place where connection is made with any such line of boats, and no greater rate of fare shall be charged by the proprietors of any such steamboat line to any such pas- senger for the distance traveled over its line, than is charged to travelers for the same distance whose trip ends at the place where connection is made with any such railroad. Any additional cost of transfer of a passenger or his bag- ' gage from the railroad depot or station to steamboat land- ing, or from steamboat landing to depot or station, shall be borne by the passenger or the proprietors of the steamboat line or the railroad corporation at whose instance or for whose benefit such transfer is made. Every railroad corpo- ration and the proprietors of any line of steamboats, their agents or servants, who shall neglect or refuse to sell tickets or furnish a check to any passenger applying for the same, when the same shall have been furnished to them, shall pay to such passenger the sum of ten dollars, and no fare or toll shall be collected from him for riding over such road or upon such boats, as the case may be; and in addition thereto any railroad corporation so neglecting or refusing, shall pay the proprietors of such line of boats two hundred and fifty dol- lars for each day it shall so neglect or refuse; and the proprietors of any such line of boats so neglecting or refus- ing, shall pay to such railroad corporation a like sum for each day they shall so neglect or refuse. Every such railroad corporation shall also receive any freight which shall be delivered at any station on the line of its road, marked to go by way of boat or any particular line pf boats from any station on its road at which such boat or line of boats terminates or stops for freight, and shall transport such freight with all convenient speed to such station, and on its arrival there cause the proprietors of the steamboat line by which it is directed to be sent, or their agent, to be notified of such arrival, and shall deliver such freight to such proprietors or their agent with the bill of charges thereon due such railroad corporation, for the payment of which charges the proprietor or proprietors of Buch steamboat line shall be responsible, and shall account for and pay the same to such railroad corporation on 18 274 Rights and Liabilitiks of Common Cakrieks. The Railroad Law, § 48. demand. The railroad corporation shall not charge for the transportation of such freight over its road any greater sum pro rata than it charges for parrying the same kind of freight the same distance over its road, if it was to be transported by such corporation by rail to its final destination, or to the terminus of the road of such corporation in case it termi- nates before such final destination is reached. Any freight delivered by the proprietors of any steamboat or steamboat line, or their authorized agent, at any station, at a place where such steamboat or steamboats have a landing, to any such railroad corporation, for transportation over its road, or any part thereof, shall be transported by such corporation to its place of destination for the same price pro rata which would be charged for the same kind of freight the same dis- tance over its road, if the same had been taken on at the point of first shipment by boat, or at the terminus of the road of such corporation, in case it does not extend to the point of first shipment. Where a carrier sells tickets over a connecting line and assumes to secure accommodations over that line, it is liable for the failure of tho other line to furnish proper accommodations, even if the ticket states that the company acts as agent and is not responsible beyond its own line. (Bussman v. Western Transit Co., 9 Misc. R., 410, and cases therein cited.') §48. Rights and liabilities as common carriers. — Every railroad corporation doing business in this state shall be a common carrier. Any one of two or more corporations own- ing or operating connecting roads, within this state, or partly within and partly without the state, shall be liable as a common carrier, for the transportation of passengers or delivery of freight received by it to be transported by it to any place on the line of a connecting road; and if it shall become liable to pay any sum by reason of neglect or mis- conduct of any other corporation it may collect the same of the corporation by reason of whose neglect or misconduct it became liable. (Thus amended by L. 1892, ch. 676.) An employer does not undertake, absolutely, with an employe for the Bufflcl'ency or safety of implements and facilities furnished for their work, but only for the exercise of reasonable care, and when Injury to an employe results from defective implements, knowledge of the defect must be brought home to the employer, or proof given of omission of proper Rights and Liabilities of Common Caerieks. 275 The Railroad Law, § 48. care to discover it. (Doing v. N. Y., O. & W. K. Co., 73 Huu, 270, and cases there cited; see, also, Fannessey v. W. U. Tel. Co., 6 Misc., 322.) A railroad company is bound to use reasonable care to protect its employes by using suitable machinery and keeping it in repair. (Bailey v. R., W. & O. R. R. Co., 139 N. Y., 302.) The company is not liable to employes for negligence of co-servant. (Potter V. N. Y. C. & H. R. R..R. Co., 136 N. Y., 77.) A condition in a shipping bill that the carrier vyill not be responsible for loss, unless a memorandum, in writing, is delivered with the property, describing the articles and their value, or that^uch property will only be taken at the owner's risk, does not exempt the carrier from liability for his own negligent acts. (Rathbone v. N. Y. C. & H. R. R. R. Co., 140 N. Y., 48.) -Where the property is of extraordinary value, a condition that the carrier will not be responsible for loss if the character and value of the articles are not stated and extra freight paid, will exempt the carrier fropa liability, unless he was informed of such special and unusual value. "(Id.) Carrier liable for a willful assault by its servant on a passenger. (Stewart, V. Brooklyn, etc., R. R. Co., 90 N. Y., 588.) Vigilance in protect- ing passengers from violence must be observed. (Weeks v. N. Y., N. H. & H. R. R. Co., 72 N. Y., 80; Putnam v. Broadway & 7th Av. R. R. Co., 55N. Y.,108.) The company may limit its liability by contract. (Kenney V. N. Y. C. & H. R. R. R. Co., 125 N. Y., 422; Poucher v. N Y. C. R. R. Co., 49 N. Y., 263; see, also, Perkins v. Same, 24 N. Y., 196; Bissell v: Same, 25 N. Y., 442; McEIwain v. B.'Ry. Co., 21 W. D., 21; Brewer v. N. Y., L. E. & W. R. R. Co., 124 N. Y., 59; Porter v. Same, 59 Hun, 177, afC'd 129 N. Y., 624; Elliott v. N. Y. C. & H. R. R. R. Co., 33 St. Rep., 861.) Although a railroad company is not an insurer of the safety of its pas- sengers, yet it is bound to use a high degree of skill and vigilance to guard against accidents, and this duty is not discharged without the utmost care and diligence wlaich human prudence and foresight will sug- gest to secure the safety of its passengers. (Palmer v. D. & H. C. Co., ' 120 N. Y., 170; see, also, Merwin v. Man. Ry. Co., 48 Hun, 608, afE'd 113 N. Y., 659; Taber v. D., L. & W. R. R. Co., 71 N. Y., 489; Wynn v. Cent Pk., N. & E. R. R. R. Co., 133 N. Y., 575; Palmer v. Penn. Co., Ill N. Y., , 488; Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 297; Birmingham v. R; C. & B. R. R. Co., 137 N. Y., 13; Brown v. N. Y. C. R. R. Co., 34 N. Y., 404; Carroll v. Staten I. R. R. Co., 58 N. Y., 126; Alden v. N. Y. C. R. R. Co., 26 N. Y., 102.) No liability attaches when the accident was an extraordinary one that could not reasonably have been anticipated. (Cleveland v. N. J. S. Co., 125 N. Y., 299; McPadden v. N. Y. C. R. R. Co., 44 N. Y., 478; 133 N. Y., 575, above; see, also, Morris v. N. Y. C. & H. R. R. R. Co., 106 N. Y., 678.) An employe paying fare has the rights of a passenger. (Ross v. N. Y. C, etc., 5 Hun, 488, aff'd 74 N. Y., 617; but see Vick V. Same, 95 N. Y., 267.) For other cases as to actions by passengers and others: Goldberg v. N. y. C. & H. R. R. R. Co., 133 N. Y., 561; Akersloot v. 2d Av. R. R. Co., '131 N. Y., 599; Schneider v. Same, 133 N. Y., 583; Moylan v. Same, 128 N. Y., €83; Morrison v. 7th Av. R. B. Co., 130 N. Y., 166; Kenney v. N. 276 Switches, Warning Signals, etc. The Railroad Law, § 49. Y. C. & H. R. R. R. Co., 125 N. Y., 422; Brewer v. N. Y., L. E. & W., 124 N. Y., 59; Wiwirowskl v. L. S. & M. S. R. R. Co., 124 N. Y., 420; Medler v Atl. Av. R. R. Co., 126 N. Y., 669, aff'g 36 'st Rep., 89; Craigshead v. B. R. R. Co., 123 N. Y., 391; Hickenbottom v. D. L. & W. R. R. Co., 122 N. Y., 91; Lent v. I N. Y. 0. & H. R. R. R. Co., 120 N. Y., 467; Baker v. Man. Ry. Co., 118 N. Y., 533; Boyce V. Same, 118 N. Y., 314; Lehr v. Steinway- & H. P. R. R. Co., 118 N. Y., 556; Albert! v. N. Y., L. E. & W. R. R. Co., 118 N. Y., 77; McClain v. B'klyn 0. R. R. Co., 116 N. Y., 459; Webster v. R., W. & O. R. R. Co., 115 N. Y., 112; Coleman v. 2d. Av. R. R. Co., 114 N. Y., 609; Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y., 355; Lafflln v. B. & S. W. R. R. Co., 106 N. Y., 136; Archer v. N. Y., N. H. & H. R. R. Co., 106 N. Y., 589; Bucher v. N. Y. C. & H. R. R. R. Co., 98 N. Y., 128; Burrows v. E. Ry. Co., 63 N. Y., 556; Carpenter v. B. & A. R. R. Co., 97 N. Y., 494. Safe stations must be maintained and stops must be of sufficient dura- tion. (Onderdonk v. N. Y. & Sea Beach Ry. Co., 74 Hun, 42.) Where a passenger has been left at a wrong station, a recovery may be had for all damages naturally resulting from the corporation's fault (Childs V. N. Y., O. & W. Ry. Co., 77 Hun., 539.) § 49. Switches ; warning signals ; guard-posts ; auto- matic couplers ; automatic or other safety brake ; tools in passenger car ; water. — It shall be the duty of every rail- road corporation operating its road by steam : 1. To lay, in the construction of new and in the renewal of existing switches, upon freight or passenger main-line tracks, switches on the principal of either the so-called Tyler, Wharton, Lorenze, or split-point switch, or some other kind of safety switch, which shall prevent the derailment of a •train, when such switch is misplaced or a switch interlocked with distant signals. 2. To erect and thereafter maintain such suitable warn- ing signals at every road, bridge, or structure which crosses the railroad above the tracks, where such warning signals may be necessary, for the protection of employes on top of cars from injury. 3. To place guard-posts in the prolongation of the line of bridge trusses so that in case of derailment, the posts, and not the bridge trusses, shall receive the blow of the derailed locomotive or car. 4. To use upon every new freight car, built or purchased for use, couplers which can be coupled and uncoupled auto- matically, without the necessity of having a person guide the link, lift the pin by hand, or go between the ends of the cars. Othee Safeguaeds Appeoved. 277 The Railroad Law, §50. 5. To attach to every car used for passenger transporta- tion an automatic air-brake or other form of saffety-power brake, applied from the locomotive, excepting cars attached to freight trains, the schedule rate of speed of which does not exceed twenty mile^ an hour. 6. To provide each closed car, in use in every passenger train owned or regularly used upon a railroad, with one set of tools, consisting of an axe, sledge-hammer, crow-bar and handsaw, to be properly placed so as to be easily removed. 7. To provide, in each passenger car, where the line of road shall exceed forty continuous miles in length, a suitable receptacle for water, with a cup or drinking utensil attached upon or near such receptacle, and to keep such receptacle, while the car is in use, constantly supplied with cool water. Every corporation, person or persons, operating such rail- road, and violating any of the provisions of this section, except subdivision seven, shall be liable to a penalty of one hundred dollars for each offense, and the further penalty of ten dollars for each day that it shall omit or neglect to comply with any of such provisions. For every violation of the provisions of the seventh subdivision of this section every such corporation shall be liable to a penalty of twenty- five dollars for each offense. The duty of a railroad company to use reasonable care to protect employes from injury, embraces the obligation to use such care both In furnisEing suitable machinery and in keeping it in repair. (Bailey v. Rome, W. & O. R. R. Co., 139 N. Y., 302.) A company is not necessarily liable for injuries to a brakeman who knew ffie location of a bridge, had passed under it at other times, and had been cautioned regarding it. (Fitzgerald v. N. Y. O. & H. R. R. R. Co., 59 Hun, 225; Ryan v. L. Isl. R. R. Co., 51 Him, 607; afE'd 124 N. Y., 654; but see Wallace v. Cent. Vermont R. R. Co., 138 N. Y., 302.) § 50. Railroad commissioners may approve other safe- guards.T— The board of railroad commissioners may, on the application of any railroad corporation, authorize it to use any other safeguard or device approved by the board, in place of any safeguard or device required by this article, which shall thereafter be used in lieu thereof, and the same penalties for neglect or refusal to use the same shall be incurred and imposed as for a failure to use the safeguard or device hereinbefore required, in lieu of which the same is to be used. 278 Stoves Pkohibited; Thistles to be Cut. The Railroad Law, §§ 51, 52. The duty of a master to fumisli his servants safe and proper appliances for their worlc cannot be evaded by delegating that duty to others. (Red- Ington V. N. Y. and O. W. Ry. Co., S4 Hun, 231.) § 51. Use of Stoves or furnaces prohibited. — It shall not be lawful for any railroad corporation, operating a steam railroad in this state, of the length of fifty miles or more, excepting foreign railroad corporations, incorporated with- out the jurisdiction of the United States, running ears upon tracks in this state for a distance of less than thirty miles, to heat its passenger cars, on other than mixed trains, excepting dining-room cars, by any stove or furnace kept inside the car, or suspended therefrom, unless in case of acci- dent or other emergency, when it may temporarily use such stove or furnace with necessary fuel, and in cars which have been equipped with apparatus to heat by steam, hot water or hot air frOm the locomotive, or from a special car, the present stove may be retained to be used only when the car is standing still, and no stove or furnace shall be used in any dining-room car, except for cooking purposes, and of a pattern and kind to be approved by the railroad commis- sioners. Any person or corporation, violating any of the provisions of this section, shall be liable to a penalty of one thousand dollars, and to the further penalty of one hundred dollars for each and every day during which such violation shall continue. This provision is not in conflict with any Federal statute. (People v. N. Y., N. H. & H. R. R. Co., o.T Hun, 409, afE'd 123 N. Y., 635; see, also, Peo. V. Clark, 14 N. Y., Supp., G42; 8 N. Y. Crim. R., 169.) § 52. Canada thistles to be cut. — Every railroad corpora- tion doing business within this state, shall cause all Canada thistles, white and yellow daisies and other noxious weeds growing on any lands owned or occupied by it, to be cut down twice in each and every year, once between the fif- teenth day of June and the twenty-fifth day of June, and once between the fifteenth day of August and the twenty- fifth day of August. If any such corporation shall neglect to cause the same to be so cut down, any person may cut the same betM^een the twenty-fifth day of June and the fifth day of July inclusive, and between the twenty -fifth day of August and the fifth day of September inclusive in each year, at the expense of the corporation on whose lands the same shall be Riding on Platform ; Feeeies. 279 The Railroad Law, §§ 53, 54. SO cut, at tlie rate of three dollars per day for the time occu- pied in cutting. § 53. Riding on platform ; -walking along track. — No railroad corporation shall be liable for any injury to any passenger while on the platform of a car, or in any baggage, wood or freight car, in violation of the printed regulations of the corporation, posted up at the time in a conspicuous place inside of the passenger cars, then in the train, if there shall be at the time sufficient room for the proper accommo- dation of the passenger inside such passenger cars. No per- son other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or high- ways, in which case he shall not walk upon the track unless necessary to cross the same. Any person riding, leading or driving any horse or other animal upon any railroad, or within the fences and guards thereof, other that at a farm or street or forest crossing, without the consent of the corpo- ration, shall forfeit to the people of the state the sum of ten dollars, and pay all damages sustained thereby to the party aggi^ievj0. See section 21 of this law. It is not negligence, per se, for a passenger to stand on the platform of a moving car when a seat is provided within the car. (Nolan v. Brooklyn City & N. R. R. Co., 87 N. Y., 63; see, also, Hayes v. 42d St R. R. Co., 97 N. Y., 259; Werle v. L. I. R. R. Co., 98 N. Y., 650; Ginua v. 2d. Av. R. R. Co., 67 N. Y., 596.) The (juestion whether a street railroad company is chargeable with negligence in permitting overcrowding of a car plat- form is one of fact' for the jury. (Lehr v. Steinway & H. P. R, R. Co., 118 N. Y., 556, and cases therein cited.) A person stepping upon the track to save young children is not a trespasser. (Costikyan v. R., W. & O. R. R. Co., 58 Hun, 590, aff'd 128 N. Y., 633.) § 54. Corporations may establish ferries.— Any steam railroad corporation, incorporated under the laws of this state, with aterminus in the harbor of New York, may pur- chase or lease boats propelled by steam or otherwise, and operate the same as a ferry or otherwise, over the waters of the harbor of New York, but this section shall not be con- strued to affect the rights of the cities of New York and Brooklyn. ■ (Thus amended by L. 1892, ch. 676.) 280 Summer Roads ; Mails. The Kailroad Law, §§ 55, 56. This section does not authorize the leasing of a ferry distinct and inde- pendent from the terminus of the railroad. (Starin v. Mayor, etc., 42 Hun, 549, reversed on other grounds, 112 N. Y., 206.) § 55. Certain railroads may cease operation in winter. — The directors of any railroad corporation operating a rail- road, constructed and used principally for transporting lum- ber or ores, during the summer months, or for summer travel, may, by a resolution duly passed at a meeting thereof, apply to the board of railroad commissioners for permission to cease the operation of their road during the winter season, for a period not exceeding seven months in any one year, specifying the date of such suspension, and the date of the reopening thereof; and such board may, in their discretion, make an order granting the application wholly or in part, and thereupon such railroad corporation shall be relieved of the duty of operating its road during the period specified in the order. A copy of such order shall be posted in all the depots and at the termini of such railroad, and published in every newspaper in each town in any part of which such road shall be constructed at least four weeks prior to the date of such suspension. See section 21 of this law. § 56. Mails. — Any railroad corporation shall, when applied to by the postmaster-general, convey the mails of the United States on its road, and in case such corporation and the post- master-general shall not agree as to the rate of transporta- tion therefor, and as to the time, rate of speed, manner and condition of carrying the same, the board of railroad com- missioners shall fix the prices, terms and conditions there- for, after giving the corporation reasonable opportunity to be heard. Such price shall not be less for carrying such mails in the regular passenger trains than thfe amount which such corporation would receive as freight on a like weight of merchandise transported in their merchandise trains, and a fair compensation for the post-oflfice car. If the postmaster- general shall require the mail to be carried at other hours, or at higher speed than the passenger trains are run, the corporation shall furnish an extra train for the mail, and be allowed an extra compensation for the expenses and wear and tear thereof, and for the service to be fixed as herein provided. Corporations Must Make Annual Ekport. 281 The Railroad Law, %57. Every railroad corporation refusing or neglecting to com- ply with any provision of this section shall forfeit to the people of the state one hundred dollars for every day such neglect or refusal continues. (Thus amended by L. 1892, ch. 676.) Employes of a postal car are entitled to the same degree of care from a railroad company as passengers riding on the train. (Seybolt r. N. T., L. E. & W. R. R. Co., 95 N. Y., 562; Nolton v. Westn. Ry. Co., 15 N. Y., 444.) A mail agent is a passenger. (Id.) § 57. Corporations must make annual report. — Every person or corporation owning, leasing, operating or in pos- session of a railroad, wholly or partly, in this state, shall make an annual report to the board of railroad commission- ers of its operations for the year ending with June thirtieth, and of its condition on that day which shall be verified by the oaths of the president, or treasurer, and the general manager, or acting superintendent, and shall be filed in the office of such board on or before September first in each year. Every such person or corporation shall make quar- terly and further reports to such board in the form and within the time prescribed by it. Such board may in its discretion change the date of the annual report and of filing the same, but the length of time between the date of the annual report and the filing of the same shall not be less than herein prescribed. Any person or railroad corporation which shall neglect to make any such report, or which shall fail to correct any such report within ten days after notice by the board of railroad commissioners, shall be liable to a penalty of two hundred and fifty dollars, and an additional penalty of twenty-five dollars for each day after September first on which it shall neglect to file the same, to be sued for in the name of the people of the state of New York, for their use. The board of railroad commissioners may extend the time herein limited for cause shown, (Thus amended by L. 1892, ch. 676.) No form for the annual report of a railroad corporation is published In this volume for the reason that the statute provides that the Board of Railroad Commissioners shall prescribe the form of such report, and vest- ing them with authority to make changes therein, and requiring that blanks for such reports be furnished by said board. (See article 6, section 158, post.) 282 "When Conductoes and Brakemen may be Policemen. The Railroad Law, § 58. § 58. When conductors and brakemen may be police- men. — The governor may appoint any conductor or brake- man on any train conveying passengers on any steam railroad in this state, a policeman, with all the powers of a policeman in cities and villages, for the preservation of order and of the public peace, and the arrest of all persons committing offenses upon the land or property of the corporation owning or operating such railroad; and he may also appoint, on the application of any such corporation or of any steamboat company, such additional policemen, designated by it, as he may deem proper, at any station, who shall have the same powers, but not more than one at any one station. Every such policeman shall, within fifteen days after receiving his commission, and before entering upon the duties of his office, take and subscribe the constitutional oath of office, and file it with his commission in the office of the secretary of state, who shall thereupon transmit -to the county clerk of each county in which such policeman is authorized to act a certifi- cate, under his hand and official seal, setting forth the appointment and the filing of the commission and oath, which certificate shall be filed by the county clerk. Every such policeman shall, when on duty wear a metallic shield with the words " Railway police," or " Steamboat police," as the case may be, and the name of the corporation for which appointed inscribed thereon, which sh^ll always be worn in plain view, except when employed as a detective. The compensation of every such policeman shall be such as may be agreed upon between him and the corporation, for which he is appointed, and shall be paid by the corporation. When any corporation shall no longer require the services of any such policeman they may file notice to that effect in the several offices in which notice of his appointment was originally filed, and thereupon such appointment shall cease and be at an end. A railroad policeman appointed pursuant to section 58 of the Railroad Law is a public officer and, therefore, prohibited from receiving for his own use and benefit a pass from any corporation. (Dempsey v. N. Y. O. and H. R. U. R. Co., 146 N. Y., 290.) But where a person made a contract with a railroad corporation whereby he agreed to render police services for it and to receive for such services a fixed salary and also an annual pass for transportation over its road and that of another corporation, which could be used by him when engaged in the business of the corpora- Fdtuee Railroads, Reqoisitks for. 283 The Railroad Law, § 59. tion or in his own priyate afEairs, it was held, that the pass under the con- tract was not a " free pass " within the meaning of the Constitution ; and that action was maintainable to compel specific performance of the con- tract. (Id.) A conductor or brakeman upon a passenger train has implied authority, Incident to his position, to remove, in a lawful manner, a Ixespasser upon the plateonm of a car. (Hoffman v. N. Y. C. & H. R. R. Co., 87 N. Y., 25.) But the company is liable for an abuse of such authority. (Id.) § 59. Requisites to exercise of powers of future railroad corporations. — No railroad corporation hereafteir formed under the laws of this State shall exercise the powers con- ferred by law upon such corporation or begin the construc- tion of its road until the directors shall cause a copy of the articles of association to be published in one or more news- papers in each county in which the road is proposed to be located, at least once a week for three successive weeks, I'jid shall file satisfactory proof thereof with the Board if Rail- road Commissioners; nor until the Board of Railroad Com- missioners shall certify that the foregoing conditions have been complied with, and also that public convenience and a* necessity require the construction of said railroad as pro- posed in said articles of association. The foregoing certifi- cate shall be applied for within six months after the com- pletion of the three weeks' publication hereinbefore pro- vided for. If certificate is refused no further proceedings shall be had before the said board, but the application may be renewed after one year from the date of such refusal. Prior to granting or refusing said certificate the board shall have a right to permit errors, omissions or defects to be sup- plied and corrected. After a refusal to grant such certifi- cate the board shall certify a copy of all maps and papers on file in its office and of the findings of the board when so requested by the directors aforesaid. Such directors may thereupon present the same to a General Term of the Supreme Court of the department within which said road is proposed in whole or in part to be constructed, and said General Term shall have power, in its discretion, to order said board, for reasons stated, to issue said certificate, and it shall be issued accordingly. Such certificate shall be filed in the office of the secretary of state, and a copy thereof, certi- fied to be a copy by the secretary of state, or his deputy, shall 'So in the original. 284 FuTUEE Eailroads, Requisites for. The Railroad Law, § 59. be evidence of the fact therein stated. Nothing in this sec- tion shall prevent any such railroad corporation from caus- ing such examinations 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 water of any person, but subject to the responsibility for all damages which shall be done thereto. (New section, added by L. 1892,, ch. 676, as amended by L. 1895, ch. 545.) By the amendment of 1895 the provisions of this section were extended to street railroads. The foregoing section grants the General Term of the Supreme Court power to review the action of the Board ~of "Railroad Commissioners In refusing to grant the certificate therein provided for, but the act plainly Indicates that the court is to treat the application as in the nature of a review of the decision of a subordinate tribunal, and not as it would an original application made to it in the first Instance. (Jlatter of New Ham- burgh R. R. Co., 76 Hun, 76 ; Jlatter of Amsterdam, Johnstown and Gloversville R. R. Co., 86 Hun, 578.) The burden rests upon the petitioner to show affirmatively that the •copamissloners erred in their determination, and the commissioners should be credited with some technical knowledge which the court is not presumed to possess, and unless the court can see that the decision of the Board of Railroad Commissioners was founded upon erroneous legal principles, or that it proceeded • contrary to the clear weight of evidence in arriving at its conclusion upon any question of fact, or that it has abused the discretion vested in it, and has abitrarily refused to issue the necessary certificate, the court will not reverse the determination of the board and compel it to issue such certificate. (Mat- ter of Amsterdam, Johnstown and Gloversville R. R. Co., 86 Hun, 578.) Local sentiment, aroused by the alleged misuse or abuse of an existing franchise, affords no sufficient reason for granting another franchise for a practically parallel road, and petitions presenting no facts, nor the evi- dence thereof, but simply expressing the opinions and desires of the peti- tioners, are not evidence, and cannot take the place thereof. (Id.) The certificate does not issue as a matter of right in the event of no one appear- ing to oppose the application, and if any one does appear in opposition he Is not obliged to prove the negative and convince the board that pnblls convenience and necessity do, not require the construction of the road ; the burden of proof is upon the corporation to establish the performance by it of the requirements of the law and to establish the existence of that con- dition of affairs which will authorize the issue of a certificate. (Id.) The fact that a railroad company charged exorbitant rates for freight and passengers does not make out a case for the building of a practically paral- lel road; such charges may indicate insufficient business to support the road at lower rates, or bad management and a grasping disposition on the part of the operators of the road. The remedy in the latter case is to apply to the commissioners for a reduction of the rates, pursuant to section 101 of the Railroad Law. (Id.) CoNBOLIDATION OF COKPOEATIONS. 285 The Railroad Law, § 70. Where an application to the Raih^oad Commissioners for a certificate under the foregoing section was refused, an application to the General Term for a review of such decision must be treated as a review of the decision of a subordinate tribunal and not as an original application to the court in the first instance. (Matter of the New Hamburgh & Pough- keepsie O. R. R . Co.,' 76 Hun, 76.) The petitioner must show affirmatively that the commissioners erred in their determination. (Id.) For explanation of interval in numbering between section 59, supra, and section 70, infra, see note on page 254. ARTICLE III. Consolidation, Lease, Sale and Reorganization. Section 70. Consolidation of corporations owning continuous lines. 71. Conditions. 1. Joint agreement; amoimt of capital stock. 2. Agreement to be submitted to meeting of stockholders. 72. New corporation. 73. Creditors' rights not to be impaired. 74. Assessment of property of new corporation. 75. Stock of municipal corporation, how represented. 76. Foreclosure of mortgages made by consolidated railroads partly in the state. 77. Powers of corporations of other states. 78. Lease of road. 79. Lessees of railroad may acquire stock therein. 80. Consolidation and lease of parallel lines prohibited. 81. Mortgagee may purchase at foreclosure sale. 82. Certificates of stock may be issued after foreclosure in cer- tain cases. 83. Liabilities of reorganized railroad corporations. 84. Application of this article to certain corporations. § 70. Consolidation of corporations owning continuous lines. — Any railroad or other corporation, organized under the laws of this state, or of this state and any other state, and owning or operating a railroad, bridge or tunnel, either wholly within or partly within and partly without the state, or whose lines or routes of road have been located but not constructed, may merge and consolidate its capital stock, franchises, and property with the capital stock, fran- chises and property of any other railroad, tunnel or bridge corporation or corporations organized under the laws of this state or of this state and any other state, or under the 286 Consolidation of Cobporations. The Railroad Law, § 70. laws of any other state or states, whenever the two or more railroads of the companies or corporations so to he consoli- dated, tunnels, bridges or branches or any part thereof, or the line or routes of their road, if not constructed, shall or may form a continuous or connected line of railroad with each other or by means of any intervening railroad bridge, tunnel or ferry and any such consolidated corporation may thereupon construct or finish the construction of such con- tinuous line of railroad, if not previously constructed, and operate the same, subject to all provisions of law applicable to such railroad corporations. Where the road to be operated is in whole or in part a tunnel or sub-surface road, authorized by section 16 of this chapter, its consolidation with another road or roads under the provisions of this section shall not prevent any connecting railroad from hav- ing equal rights of transit for its passengers and freight through or over the tunnel or bridge of any such road, upon the same equitable terms, nor shall such consolidation be made where such tunnel or sub-surface road exceeds five miles in length, (Thus amended by L. 1892, ch. 676.) Vor forms in eonsoUdation proceedings, see post, forms Nos. 110, 111 and 112. The corporation, formed by consolidation, is not required to pay the tax of one-eighth of one per cent for the privilege of organization; see the organization tax law (L. 1886, ch. 143), page G7, and cases cited thereunder. Upon the consolidation of domestic and foreign railroad corporations the resulting entity is a domestic corporation. (In re Sage v. L. S. & M. S. R. E. Co., 70 N. Y., 220; Boardman v. Same, 84 N. Y., 157.) But the sanction of the legislatures of the other states is necessary. (People v. N. Y. 0. & St. L. R. R. Co., 129 N. Y., 474; People v. Fitchburg R. R. Co., 120 N. Y., 654.) Whether the result would be a new corporation de jure is a mooted question. (Id.) The language " form a continuous line of railroad with each other " means a line or route extending and continuing in substantially the same general direction connecting two principal points. (People v. B. H. T. & West Ry. Co., 12 Abb. N. C, 230.) The provision also applies to lines located but . not constructed. (Id.) Companies may consolidate only imder the permission and safeguards of the statute. (Cole v. Millerton Iron Co., 133 N. Y., 164.) Proceedings for consolidation lawfully begun represent a right accruing (see Grcneral Corporation Law, section 35, page 52), and may be lavsrfuUy completed, notwithstanding the enactment of a new statute. (Cameron V. N. T. & Mt V. W. Co., 133 N. Y., 336.) i Consolidation of Corporations ; Conpitions. 287 The Railroad Law, § 71. § 71. Conditions.— Siicli cousolidatiun shall be made la the following manner: 1. Joint agreement; amount of capital stock. — The directors of the corporations proposing to consolidate may enter into a joint agreement, under the corporate seal of each corporation, for the consolidation of such corporations, and prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new cor- poration, 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 Talue of each share, and the manner of converting the capital stock of each cor- poration into that of the new corporation, and how and when the directors and officers shall be chosen, with such other details asi they shall deem necessary to perfect such new organization and the consolidation of such corpora- tions. But in no case shall the capital stock of the cor- poration formed by such consolidation exceed the sum of the capital stock of the corporations so consolidated, at the par value thereof. Nor shall any bonds or other evidences of debt be issued as a consideration for, or in connection with, such consolidation. 2. Agreement to be submitted to meeting of stockholders. — If stockholders owning two-thirds of all the stock of each of such corporations shall by a consent in writing, acknowl- edged as are deeds entitled to be recorded and endorsed upon said lease or agreement, signify their assent thereto, it shall be deemed and taken as the adoption of such agree- ment by and on behalf of such corporation^ and the original or certified copy thereof shall be filed as' hereinafter pro- vided. If such agreement Shall not be consented to ia writing by holders of two-thirds of the stock of either of such corporations as hereinbefore provided, such agreement shall be submitted to the stockholders of each of such cor- porations at a meeting thereof called separately for the purpose of taking the same into consideration. Due notice of the time and place of holding such meeting, and the object thereof, shall be given by each corporation to its stockhold- ers by written or printed notices addressed to each of the 288 Consolidation of Cokpokations ; Conditions. The Railroad Law; § 71. persons in whose names the capital stock of such corporation stands on the books thereof, and delivered to such persons respectively, or sent to them by mail, when their post-office address is known to the corporation, at least thirty days before the time of holding such meeting, and also by a general notice published at least once a week for four weeks successively in some newspaper printed in the city, town or county where such corporation has its principal office or place of business. At such meeting of stockholders such agreement shall be considered, and a vote by ballot taken for the adoption or rejection of the same, and if the votes of the stockholders owning at least two-thirds of the stock of each corporation present and voting in person or by proxy shall be for the adoption of such agreement, then that fact shall be certified thereon by the secretaries of the respective corporations, under the seal thereof, and the agreeipent so adopted, or a certified copy thereof, shall be filed in the office of the secretary of state, and in the office of the clerk of the county where the new corporation is to have its principal place of business, and shall from thence be deemed and taken to be the agreement and act of consolidation of such corporations, and thereafter such corporations, parties thereto, shall be one corporation by the name provided in such agreement, but such act of consolidation shall not release such new corporation from any of the restrictions, liabilities or duties of the several corporations so consolidated. (Thus amended by L. 1S92, ch. 676.) ' For forms in consolidation proceedings, see post, forms Noa. 110, 11 1 and 113. The provision permitting a consent in writing properly acknowledged was added to this section by the amendment of 1892. The section aa amended also provides that the consolidation agreement may be approved at a meeting' of the stockholders by " the votes of the stockholders owning at least two-thirds of the stock of each corporation present and voting In person or by proxy." The provision limiting the capitalization of the new corporation to an amount not exceeding the aggregate capital stock of the constituent corpo- porations must be strictly construed. (People v. B., H. T. & W. Ry. Co., 12 Abb. N. C, 230.) As to illegal attempt to consolidate, see Latham v. Same. 38 Hun, 265. Eights of the New Coepoeation. 289 The Railroad Law, §7i. §72. New corporation.— Upon the consumm-dtion of such act of consolidation all the rights, privileges, exemptions and franchises of each of the corporations, parties to the same, and all the property, real, pesrsonal and mixed, and all the debts due on whatever account to either of them, as virell as all stock subscriptions and other things in action belonging to eithen of them shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed; and all claims, demands, prop- erty, rights of way, and every other interest shall be as effectually the property of the new corporation as they were of the former corporations, parties to such agreement and act; and the title to all real estate, taken by deed or other- wise, under the laws of this state, vested in either of such corporations, parties to such agreement and act, shall not be deemed to revert or be in any way impaired by reason of this act, or anything done by virtue thereof, but shall be vested in the new corporation by virtue of such act of con- solidation. And it shall be lawful for any railroad company or corporation, now or hereafter formed by the donsolida- tion of one or more railroad companies or corporations organized under the laws of this state, or under the laws of this state and other states, with one or more railroad com- panies or corporations organized under the laws of any other state, or of the laws of this state and other states, to issue its bonds for the purpose of paying or retiring any bonds theretofore issued by either of said companies or corpora- tions so consolidated, or for any purpose and to the amount authorized by the laws of the state under which either of said companies or corporations so consolidated was organ- ized, and secure the same by a mortgage upon its real or personal property, franchises, rights and privileges, whether within or without this state, and subject to the remedies for the enforcement of the same under the laws of either of said states. Nothing in this act contained shall authorize the execution of any such mortgage without the consent of the stockholders as now required by the laws of this state, nor compel any bondholder to accept payment in whole or in part of any bond or bonds held by him or to surrender the same before they shall become due. (Thus amended by L». 1891, ch. 362.) 19 290 Creditor's Eights ; Stocks, how Represented. The Railroad Law, §§ 73, 74 75. § 73. Creditor's rights not to be impaired — The rights of all creditors of, and all liens upon the property of, either of such corporations, parties to such agreement and act, shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same, and all debts and liabilities incurred by either of such corporations shall thenceforth attach to such, new corpora- tion, and be enf orceil against it and its property to the same extent as if incurred or contracted by it. No actions or proceedings in which either of such corporations is a party shall abate or be discontinued by sucb agreement and act of consolidation, but may be conducted to final judgment in the names of such corporations, or such new corporation may be, by order of the court, on motion substituted as a party. Rights of creditors and bondholders of the constituent corporations are not disturbed by the consolidation. (Polhemus v. Fitchburg R. R. Co., 123 N. Y., 502; Janes v. Same, 50 Hun, 310; Vilas v. Page, 106 N. Y., 439; Gale V. Troy & Boston R. R. Co., 51 Hun, 470.) § 74. Assessment of property of nevsr corporation. — Th« real estate of sucli new corporations, situate within this state, shall be assessed and taxed in the seVeral towns and cities where the same shall be situated in like manner as the real estate of other railroad corporations is or may be taxed and assessed, and such proportion of the capital stock and personal propety of such new corporation shall in like man- ner be assessed and taxed in this state, as the number of miles of its railroad situate in this state bears to the num- ber of miles of its railroad situate in the other state or states. § 75. Stocks of mimicipal corporations, how represented. — At any meeting of the stockholders of any railroad cor- poration to consider any agreement or proposition to con- solidate or lease, the commissioners or other officers of any municipal corporation holding or having charge of any of the capital stock of such railroad coi-poration shall represent such municipal corporation, and may act and vote in person or by proxy on all matters relating to such consolidation or lease, in the same manner as individual stockholders. (Thus amended by L. 1893, ch. 546.) FoEECLOSttRB OF MORTGAGES. 291 The Railroad Law, §§ 76, 77. § 76. Foreclosure of mortgages made by consolidated railroads partly in the state. — Whenever a railroad corpora- tion whose line of road lies partly in this state and partly in another state or states, shall have been created by the consolidation of a railroad corporation of this state with a railroad corporation or corporations of another state or states, and shall have executed a mortgage upon its entire line of railroad, and a sale of the entire line of road under such mortgage shall have been or may hereafter be ordered, adjudged and decreed by a couj-t of competent jurisdiction of the state or states in which the greater part of such line of railroad may be situated, upon the confirmation of such judgment or decree, and of the sale made thereunder, by the supreme court of this state in the judicial district in which some part of such line of road is situated; such sale shall operate to pass title to the purchaser of that part of the line of railroad lying in this state, together with its appurtenances and franchises, with the same force and effect as if the judgment or decree under which su^h sale is had, had been made by a court of competent jurisdiction of this state. Such judgment or decree and sale may be so confirmed in any action now pending, or that may hereafter be brought in the supreme court, for the foreclosure of such mortgage or in aid of an action for that purpose pending in such other state, if it shall appear that such confirmation is for the interest of the public and of the parties, due and lawful provision being made for and in respect of any liens upon that part of the line of road or other property sold situate in this state, and for such costs, expenses and charges as may appear to be just and lawful. If a receiver of the entire line of such railroad shall have been, or may hereafter be appointed by such court of competent jurisdic- tion of the state in which the greater part of the line of railroad is situated, such receiver may perform, within the state, the duties of his office not inconsistent with the laws of this state, and may sue and be sued in the courts of this state. § 77. Powers of corporations of other states. — A railroad corporation created under the laws of the State or States in which the greater part of the line of its railroad may be situated, for the purpose of taking title to and operating the 292 Leask of Road. The Railroad Law, § 78. entire line of railroad, so sold as provided in the preceding section, or sold under a judgment or decree of a court of this State or of a court of the United States sitting in this State for the foreclosure of a mortgage, with its franchises and appurtenances, the judgment, decree and sale having been duly confirmed and approved as in the preceding sec- tion provided or the sale having been confirmed by the court in this State making such decree, may hold, possess and operate that part of the line of such railroad lying in this StaCte and shall have all the rights and franchises theretofore possessed by the corporation executing the mortgage under which such sale was made, and such as now are or may here- after be conferred upon railroad corporations organized under the laws of this State, and shall be subject to the duties and liabilities to which such corporation was by the laws ol this State subject, and to such further or other duties and liabilities as are now or may hereafter be imposed by law upon railroad corporations of this State. An exempli- fied copy of the law or laws and the certificate or certificates of incorporation under and by virtue of which such corpora- tion is created and a certified copy of the judgment or decree under which said railroad was sold and a certified copy of the order or judgment of confirmation and approval required by the preceding section, or of the order, judgment or decree of the court in this State which decreed the sale confirming the same shall be filed in the office of the secretary of state for this State and in the office of the county clerk of the county where its principal business office in this State is located. (Thus amended by L. 1895, ch. 454.) § 78. Lease of road. — Any railroad corporation or any cor- poration owning or operating any railroad or railroad route within this state may contract with any other such corpora- tion for the use of their respective roads or routes, or any part thereof, and thereafter use the same in such manner and for such time as may be prescribed in such contract. Such contract may provide for the exchange or guaranty of the stock and bonds of either of such corporations by the other and shall be executed by the contracting corporations under the corporate seal of each corporation, and if such Lease of Road. 293 The Railroad Law, § 78. contract shall be a lease of any sucli road and for a longer period than one year, such contract shall not be binding or valid unless approved by the votes of stockholders owning at least two-thirds of the stock of each corporation which is represented and voted upon in person or by proxy at a meet- ing, called separately for that purpose upon a notice stating the time, place and object of the meeting, served at least thirty days previously upon each stockholder personally, or mailed to him at his post-office address and also pub- lished at least once a week for four weeks successively, in some newspaper printed in the city, town or county where such corporation has it^ principal office, and there shall be indorsed upon the contract the certificate of the secretaries of the respective corporations under the seals thereof, to the effect that the same has beeil approved by such votes of the stockholders, and the contract shall be executed in duplicate and filed in the offices where the certificates of incorporation of the contracting corporations are filed. The road of a corporation can not be used under any such con- tract in a manner inconsistent with the provisions of law applicable to its use by the corporation owning the same at the time of the execution of the contract. Such contracts shall be executed by the corporations, parties thereto, and proved and acknowledged in such manner as to entitle the same to be recorded in the office of the clerk or register of each county through or into which the road so to be used shall run. Nothing in this section shall apply to any lease in existence prior to May first, eighteen hundred and ninety- one. (Thus amended by L. 1892, ch. 076; L. 1893, ch. 433.) For forma of notice of meeting and certificate of adoption of lease, see post, forms iVo«. 118, XUandim. Where a railroad corporation is authorized to lease the roads of other similar corporations, it may, in the absence of any statutory limitation, lease a road operated in and under the laws of another state vmless the law of that other state forbids it. (Day v. O. & L. C. R. R. Co., 107 N. Y., 129; see, also, 89 N. Y., 75; 86 N. Y., 117; 35 Hun, 227; 34 Hun, 435; 93 N. Y., 616, reversing 25 Hun, 246; 77 N. Y., 234; 46 N. Y., 653; 16 Abb. Prac. N. S., 262.) A lease which Imposes no obligation upon the lessee to use the road, but which contemplates an abandonment of its use, is not a contract for "use," and is void. (Troy & Boston R. R. Co. v. Boston, H. T. & W. Ry. Co., 86 N. Y., 107.) 294 Lessees of Railroad Mat Acquire Stock Therein. The Railroad Law, § 79. The lessor company can not be held liable for injuries to a passenger caused by the negligence or ■wrongful acts of the lessee's servants. (Fisher v. Met El. R. R. Co., 34 Hun, 433; see, also, Mayor of N. Y. v. 23d St. Ry. Co., 113 N. Y., 311; Miller v. N. Y., L. & W. R. R. Co., 125 N. Y., 118.) The lessor is liable, however, if the lease is unauthorized. (Abbott V. Johnstown, G. & K. Horse R. R. Co., 80 N. Y., 2T.) A lease of a street railroad to an individual to be operated as private property will not be sustained. (Fanning v. Osborne, 102 N. Y., 441.) An individ- ual, to whom a road has been leased, is estopped from questioning the validity of the lease in an action to recover the stipulated rent. (80 N. Y., 27, above; WoodrufE v. E. Ry. Co., 93 N. Y., 609.) When a railroad company has acquired the right and has constructed and operated its raih-oad in the streets of a city, its railroad in such streets may be used under contract by another corporation without the latter obtaining the prescribed consents. The Constitution, art. 3, sec. 18, does not forbid such contract (People v. Brooklyn, F. & C. I. R. R. Co., 89 N. Y., 75.) A foreign corporation may be the lessor imless the foreign state forbids. (Day V. Ogdensb. & L. C. R. R. Co., 107 N. Y., 129.) The fact that a rail- road company has leased and transferred for the term of its corporate existence its road and business to a foreign railroad corporation, and that the latter has taken the management and possession thereof does not deprive the former of the right to acquire title to lands necessary in carry- ing on the business. (In re N. Y., Lacka. & W. Ry. Co., 99 N. Y., 12 see, also, Kip V. N. Y. & H. R. R. Co., 67 N. Y., 227.) When the lessor and lessee companies have directors in common the lease is voidable, not void. (Barr v. N. Y., L. E. & W. R. R. Co., 125 N. Y., 203.) A lease of a railroad for 999 years or during the existence of the lessee company, does not terminate by appointment of receivers of the lessee's property under the Code of Civ. Pro., section 1788, pending an action for dissolution of the lessee company upon the ground of insolvency. (N. Y. El. R. R. Co. V. Man. Ry. Co., OS How., 14.) § 79. Liessees of railroad may acquire stock therein. — Any railroad corporation created by the laws of this state, or its successors, being the lessee of the road of any other railroad corporation, may take a surrender or transfer of the capital stock of the stockholders, or any of them in the cor- poration whose road is held under lease, and issue in exchange therefor the like additional amount of its own capital stock at par, or on such other terms and conditions as may be agreed upon between the two corporations ; and whenever the greater part of the capital stock of any such corporation shall have been so surrendered or transferred, the directors of the corporation taking such surrender or transfer shall thereafter, on a resolution electing so to do, Consolidation and Lease of Paeallel Lines. 295 The Railroad Law, § 80. to be entered on their minutes, become ex-officio the directors of the corporation whose road is so held under lease, and shall manage and conduct the affairs thereof, as provided by law; and whenever the whole of such capital stock shall have been so surrendered or transferred, and a certificate thereof filed in the office of the secretary of state, under the common seal of the corporation to whom such surrender or transfer shall have been made, the estate, property, rights, privileges and franchises of the corporation whose stock shall have been so surrendered or transferred, shall thereupon vest in and be held and enjoyed by the cor- poration, to whom such surrender or transfer shall have been made, as fully and entirely, and without change or diminu- tion,, as the same were before held and enjoyed, and be managed and controlled by the board of directors of the corporation, to whom such surrender or transfer of such stock shall have been made, and in the corporate name of such corporation. Where stock shall have been so sur- rendered or transferred, the existing liabilities of the cor- poration, and the rights of the creditors and of any stock- holder not surrendering or transferring his stock, shall not be affected thereby. The transfer of stock does not abate condemnation proceedings insti- tuted before the transfer. (In re Met. El. Ry. Co., 12 N. Y. Supp., 506.) The transferring company neither loses its corporate existence, nor its right to continue or to authorize continuance of condemnation proceed- ings. (In re N. Y. El. R. R. Co., 43 St. Rep., 651, aff'd 133 N. Y., 690.) § 80. Consolidation and lease of parallel lines prohibited. — No railroad corporation or corporations owning or operat- ing railroads whose roads run on parallel or competing lines, except street surface railroad corporations, shall merge or consolidate, or enter into any contract for the use of their respective roads, or lease the same, the one to the other, unless the boai'd of railroad commissioners of the state, or a majority of such board, shall consent thereto, (Thus amended by L. 1892, ch. 676.) By this section the leasing of parallel or competing steam railroads, the one to the other, heretofore allowed by chap. 218, Laws of 1839, is forbidden. This section does ilot prohibit traffic contracts beyond^the line of par- allelism between companies whose lines are parallel for only a portion of their respective routes. (People v. O'Brien, 111 N. Y., 1.) Competing 296 Liabilities of Reorganized Railroad Corporations. The Railroad Law, §§ 81, 83, 83. lines are those which are rivals for traffic. The prohibition may include lines not mathematically parallel and roads not constructed. (People v. Boston, H. T. & W. R. R. Co., 12 Abb. N. C, 230.) § 81. Mortgagee may purchase at foreclosure sale. — Any mortgagee of the property and franchises of any railroad corporation may become the purchaser of the same at any sale thereof under the mortgage, upon foreclosure by adver- tisement, or under a judgment, or decree, or otherwise, and hold and use the same, with all the rights and privileges belonging thereto or connected therewith, for the period of six months, and convey the same to any railroad corporation. See the Stock Corporation Law, section 3. § 82. Certificates of stock, may be issued after foreclosure in certain cases. — If any person or corporation shall be entitled to certificates of stock subscribed to and paid for in any railroad corporation whose property and franchises have been sold under mortgage foreclosure, and such certifi- cates have not been issued before foreclosure, the officers of the corporation shall, at any time within six months after the foreclosure sale issue and deliver to the person or cor- poration entitled thereto, upon demand, such certificates of stock, which shall have all the force and effect and confer upon the holder all the rights which he would have had if such certificates of stock had been issued at the time of the payment of the subscription thereto. § 83. Liabilities of reorganized railroad corporations. — A railroad corporation, reorganized under the provisions of law, relating to the formation of new or reorganized cor- porations upon the sale of their property or franchise, shall not be compelled or required to extend its road beyond the portion thereof constructed, at the time the new or reor- ganized corporation acquired title to such railroad property and franchise, provided the board of railroad commis- sioners of the state shall certify that in their opinion the public interests under all the circumstances do not require such extension. If such board shall so certify and shall file in their office such certificate, which certificate shall be irreversible by such boai'd, such corporation shall not be deemed to have incurred any obligation so to extend its Consolidation, Lease and Sale of Ooepobations. 297 The Railroad Law, § 84 road and such, certificate shall be a bar to any proceedings to compel it to make such extension or to annul its existence for failure so to do, and shall be final and conclusive in all courts and proceedings whatever. This section shall not authorize the abandonment of any portion, of a railroad which has been constructed and operated, or apply to Kings county. The certificate of the railroad commissioners, duly filed, to the effect that no public interest required the extension of the road of a reorganized corporation, is a bar to an action brought by the attorney-general under the Code of Civil Procedure, section 1798, to annul the existence of the corporation. (People v. Ulster & Del. R. R. Co., 128 N. Y., 240, afC'g 58 Hun, 266, and 8 N. Y. Supp., 149.) This provision is constitutional. (Id.) § 84. All the provisions contained in the several sections of this act shall extend, apply to and cover the consolida- tion, lease, sale or reorganization of any railroad or other corporation heretofore or hereafter organized, under the laws of this State, and any other State or country, to build, lease, buy, sell, maintain or operate any of the lines or routes of railroads, tunnels, bridges, ferries or branches or any part thereof mentioned in this article, and any similar lines or routes of railroads, tunnels, bridges, ferries cr any part thereof, constructed or to be located and constructed in any foreign country. (New section, added by L. 1895, ch. 921.) For explanation of interval in numbering between section 84, supra, and section 90, infra, see note on page 254. , 298 Street Sueeace Railroads ; General Provisions. The Railroad Law, § 90. ARTICLE IV. Street Surface Railroads. Section 90. Street surface railroads; general provisions. 01 . Consent of property owners and local authorities. 02. Consent of local authorities; how procured. 93. Condition upon which consent shall be given; sale of fran- . chise at public auction. 04. I'roceedings if property owners do not consent. 95. Percentage of gross receipts to be paid in cities or villages; report of officers. 96. Extension of route over rivers; terminus in other counties; when property owners withhold consent; supreme com't may appoint commissioners. 97 . Use of tracks of other roads. 98. Repair of streets; rate of speed; removal of ice and snow. 99. Within what time road to be built. 100. Motive power. 101. Rate of fare. 102. Construction of road in streets where other road is built. 103. Abandonment of part of route. 104. Contracting corporations to carry for one fare; penalty. 105. Effect of dissolution of charter as to consents. 106. Corporate rights saved in case of failure to complete road; right to operate branches; conditions; former consent rati- fied; limitations. 107. When sand may be used on tracks. 108. Road not to be constructed upon ground occupied by public buildings or in public parks. 109. Center-bearing rails prohibited. 110. Right to cross bridge substituted for bridge crossed for five years. § 90. Street surface railroads ; general provisions. — The provisions of this article shall apply to every corporation which, under the provisions thereof, or of any other law, has constructed or shall construct or operate or has been or shall be organized to construct or operate, a street surface railroad, or any extension or extensions, branch or branches thereof, for public use in the conveyance of persons and property for compensation, upon and along any street, ave- nue, road, highway, or private property, in any city, town or village, or in any two or more civil divisions of the State, and every such corporation must comply with the provis- ions of this article. Any street surface railroad corpora- tion, at any time proposing to extend its road or to construct Steeet Sueeace Railroads ; Geneeal Peovisions. 299 The Kailroad Law, § 90. branches thereof, majj from time to time, make and file in each of the offices in which its certificate of incorporation is filed, a statement of the names and description of the streets, roads, avenues, highways and private property in or iipon which it is proposed to construct, maintain or operate such extensions or branches. Upon filing any such state- ment and upon complying with the conditions set forth in section ninety-one of the railroad law, every such corpora- tion shall have the power and privilege to construct, extend, operate and maintain such road, extensions or branches, upon and along the streets, avenues, roads, highways and private property named and described in its certificate of incorporation or in such statement. Every such corpora- tion, before constructing any part of its road upon or through any private property described in its articles of association or certificate of incorporation or statement, and before instituting any proceeding for the condemnation of any real property, shall make a map and profile of the route adopted by it upon or through any private property, which map and profile shall be certified by the president and engi- neer of the company, or a majority of its directors, and shall be filed in the office of the clerk of the county in which the road is to be constructed, and all provisions of section six of the act hereby amended so far as applicable shall apply to the route so located. If any such street surface railroad company is unable to agree for the purchase of any such real property, or of any right or easement therein required for the purpose of its railroad, or if the owner thereof shall be incapable of selling the same, or if, after diligent search and inquiry, the name and residence of such owner can not be ascertained, it shall have the right to acquire title thereto by condemnation in the manner and by the proceedings pro- vided by the condemnation law. Nothing in this section shall be deemed to authorize a street railroad corporation to acquire real property within a city by condemnation. (Thus amfinded by L. 1892, ch. 676 ; L. 1893, ch. 434 ; L,. 1895. ch. 933.) The last three sentences were added to the foregoing section by the amendment of 1895. The provision for extension of roads was added in 1892. A city ordinance requiring all railroads operating lines of cars in the streets of the city to run their cars during certam hours of the day not 300 Consent of Pbopeett Owners. The Railroad Law, § 91. less than twenty minutes apart is operative. (Mayor, etc., v. N. Y. find Harlem R. E. Co., 10 Misc. R., 417 ; see, also. Mayor v. Dry Docks, etc., R. Co., 133 N. Y., 104.) A street railway company may condemn private property for the purpose of its organization. (In re Rochester Elec. Ry. Co., 123 N. Y., 351; see, also, the earlier case on this subject, to wit: In re South Beach R. R. Co., 119 N. Y., 141.) The legislature may grant the right to build an elevated road directly over a street surface road. (Ninth Av. R. R. Co. v. N. Y. El. R. R. Co., 3 Abb. N. C, 347.) Rights of street surface railroad companies organized prior to May 6, 1884, considered in N. Y. Cable Co. v. Mayor, etc., 104 N. Y., 1. gi 9 1 . Consent of property owners and local authorities. ^A street surface railroad, or extensions or branches thereof, shall not be built, extended or operated unless the consent in writing acknowledged or proved as are deeds entitled to be recorded, of the owners, in cities and villages, of one-half in value, and in towns, not within the corporate limits of a city or village, of the owners of two-thirds in value, of the property bounded on, and also the consent of the local authorities having control of that portion of a street or high- way upon which it is proposed to build or operate such rail- road shall have been first obtained. The consents of prop- erty owners in one city, village or town, or in any other civil division of the State, shall not be of any effect in any other city, village or town, or other civil division of the State. Consents of property owners heretofore obtained to the build- ing, extending, operating or change of motive power shall be effectual for the purposes therein mentioned and may be deemed to be sufficiently proved and shall be entitled to be recorded, whenever such consents shall have been signed, executed or acknowledged before an officer authorized by law to take acknowledgments of deeds, or before or in the presence of a subscribing witness, and without regard to whether or not the subscribing witness shall have affixed his signature in the presence of the subscriber, provided that the proof of such signing, execution or acknowledgment shall have been made by such subscribing witness in the manner prescribed by chapter three, part two of the revised statutes. In cities the common council, acting subject to the power now possessed by the mayor to veto ordinances; in villages the board of trustees, and in towns the commissioner or commissioners of highways shall be the local authorities Consent of Pkopbett Owners. 301 The Railroad Law, § 91. referred to; if in any city the exclusive control of any street, avenue or other property, which is to be used or occupied t>y any such railroad, is vested in any other authority, the con- sent of such authority shall also be first obtained. The value of the property above specified shall be ascertained and determined by the assessment-roll of the city, village or town in which it is situated, completed last before the local authorities shall have given their consent, except property owned by such city, village or toAvn, or by the State of New York, or the United States of America, the value of which shall be ascertained and determined by making the value thereof to be the same as is shown by such assessment-roll to be the equivalent in size and frontage of the adjacent property on the same street or highway; and the consent of the local authorities shall operate as the consent of such city, village or town as the owners of such property. (Thus amended by L. 1892, ch. 676; L. 1893, ch. 434; L. 1894, ch. 723; L. 1895, ch. 545.) For forms of consent of property owners, see post, forms Nos. 116 and 117. As enacted in 1890 (chapter 565), the foregoing section contained the fol- lowing in relation to street surface railroads, to wit: " But where such railroad runs through a street or avenue bounded on one side by a public square or park, the consent of one-half of the property owners on the opposite side of such square or park shall also be first obtained." The section as above amended in 1894, chapter 723, omitted the provision quoted and it was thereby repealed. (McDermott v. Nassau Electric K. E. Co., 85 Hun, 422.) Where an owner of premises on a highway signed the following instru- ment : " For value received, I hereby grant to the Rochester Railway Company the right to construct, maintain and operate a double-track rail- road upon Plymouth avenue, from the bridge over the abandoned Genesee Valley canal to the southerly end of Plymouth avenue, such railroad to consist of a single track upon each side of the roadway, and to be operated by electricity as motive power," held, that such instrument gave no right to the railroad company to lay and operate a railroad beyond the limits of the street therein named. (Curvin v. Rochester Ry. Co., 78 Hun, 555.) Such instrument must have such practical operation as the case permits, and, if two tracks could not be laid in front of the premises of the owner consenting, the company must be content with one, and that one should be laid on the traveled track of the highway, if necessary. (Id.) Such instrument was the grant of an easement in addition to that involved in its use as a highway. (Id.) An action to prevent the construction of the road does not lie in favor of a resident and taxpayer not owning real property on the street where 302 Consent of Local Atjthokities. The Railroad Law, § 93. the road is to be laid, and to whom it will not be specially injurious. (Davis V. Mayor, etc., 14 N. Y., 506.) The term " local authorities " is discussed in the matter of Rochester Elec. Ry. Co., 123 N. Y., 351, but the words have since been defined by amending the section as above. The consent of the owners of one-half of the property bounded on that portion of each street upon which the proposed railroad is to be built is necessary. (Hiltoji v. 34th St. R. R. Co., 1 How. N. S., 453.) The interest in the street obtained from municipal authorities is in per- petuity to the extent required for a street railroad. (People v. O'Brien, 111 N. Y., 1.) Conditions imposed by municipal authorities which were void when imposed, may be ratified and confirmed by act of the legislature. (City of N. Y. V. Eighth Av. R. R. Co., 118 N. Y., 389.) Under the act which this section superseded no power was conferred upon a street railroad company to build the necessary structure for a cable road, nor to operate the same. (People ex rel. Third Ave. R. R. Co. V. Newton, 112 N. Y., 396; see, also, Schaper v. Brooklyn & L. Isl. Cable Ry. Co., 4 St Rep., 860; aff'd 124 N. Y., 630.) As to whether the legislature has power to authorize construction of a railroad upon a street or highway, where the fee of the street remains in the original owner, without granting compensation to the abutting lot owner, see Fanning v. Osborne, 102 N. Y., 443. § 92. Consent of local authorities ; how procured. — The application for the consent of the local authorities shall be in writing and before acting thereon such authorities shall give public notice thereof and of the time and place when it will first be considered, which notice shall be published daily in any city for at least fourteen days in two of its daily newspapers if there be two, if not, in one, to be designated by the mayor, and in any village or town for at least four- teen days in a newspaper published therein, if any there shall be, and if none, then daily in two daily newspapers if there be two, if not, one published in the city nearest such village or town. Such consent must be upon the expressed condition that the provisions of this article pertinent thereto shall be complied with, and shall be filed in the office of the clerk of the county in which such railroad is located. Whenever the consent of the common council of a city is applied for, the first consideration, of which notice is hereby required, may be by committee of such common council. Any such notice, publication or consideration heretofore or hereafter given, made or had in substantial conformity with the requirements of this section, is and shall be sufficient Condition of Consent ; Sale of Fbanchise. 303 The Railroad Law. § 93. hereof notwithstanding any conflicting provision of any local or special act or charter. (Thus amended by L. 1892, ch. 676; L. 1893, ch. 434.) For form of notice of application, petition to authorities and consent of latter, see post, forms Ms. 118, 119 and 120. The municipal authorities may impose any condition -which seems to them to be proper, as the terms for their consent (People ex rel. West Side St. Ry. Co. v. Barnard, 110 N. Y., 548.) § 93. Condition upon'vrhich consent shall be given ; sale of franchise at public' auction. — The consent of the local authorities in cities containing twelve hundred and fifty thousand inhabitants or more, according to the last federal census or state enumeration, must contain the condition that the right, franchise and privilege of using any street, road, highway, avenue, park or public place shall be sold at public auction to the bidder who will agree to give the city the largest percentage per annum of the gross receipts of such corporation, with a bond or undertaking in such form and amound* and with such conditions and sureties as may be required and approved by the comptroller or other chief fiscal office* of the city, for the fulfillment of such agreement and for the commencement and completion of its railroad within the times hereinafter designated accord- ing to the plan or plans and on the route or routes fixed for its construction. Whenever such consent shall provide for the sale at public auction of the right to construct and oper- ate a branch or extension of an existing railroad, such con- sent shall provide that but one fare shall be exacted for pas- sage over such branch or extension and over the line of road which shall have applied therefor; and further, that if such right shall be purchased by any corporation other than the applicant, that the gross receipts from joint business shall be divided in the proportion that the length of suqh exten- sion or branch so sold shall bear to the entire length of the road which shall h9,ve applied therefor and of such bi^anch or extension, and that if such right shall be purchased by the applicant, the percentage to be paid shall be calculated on such portion of its gross receipts as shall bear the same proportion to the whole value thereof as the length of such • So in the original. 304 Condition of Consent; Sale of Franchise. The Railroad Law, § 93. extension or branch shall bear to the entire length of its road. The bidder to whom such right, franchise and privi- lege may be sold must be a duly incorporated railroad corpo- ration of this state, organized to construct, maintain and operate a street railroad in the city for which such consent may be given; but no such corporation shall be entitled to bid at such sale unless at least five days prior to the day fixed for such sale, or five days prior to the day to which such sale shall have been duly adjourned, the cor- poration shall have filed with the comptroller or other chief fiscal offic^^r of the city, a bond in writing and under seal, with sufficient sureties, to be approved by such comptroller or officer, conditioned that if such right, franchise and privi- lege shall be sold to such corporation, to pay to the city where such railroad is situated the sum of fifty thousand dollars as liquidated damages and not by way of penalty in the event of the failure of such bidder to fulfill the terms of sale, comply with the provisions of this article pertinent thereto, and complete and operate its railroad according to the plan or plans and upon the route or routes fixed for its construction within the time hereinafter designated for the construction and completion of its railroad, and also con- ditioned to pay to the corporation first applying for the con- sent, if it shall not be the successful bidder, the necessary expenses incurred by such corporation prior to the sale pursuant to the requirements and direction of the local authorities, within twenty days after such sale and upon the certificate of the comptroller or other officer conducting the same as to the sum or amount to be paid. Notice of the time and place and terms of sale, and of the route or routes to be sold, and of the conditions upon which the consent of the local authorities to the construction, operation and extension of such street railroad will be given, must be pub- lished by such authorities for at least three successive weeks, and in any city having two or more daily newspapers, at least three times a week in two of such papers to be designated by the mayor, and in any city where two daily papers are not published, at least once a week in a news- paper published therein to be designated by the mayor. The comptroller or other chief fiscal officer of the city shall attend and conduct such sale and may twice adjourn the same, but not more than four weeks in all, and shall cancel Condition of Consent ; Sale of Fbanchise 305 The Railroad Law, § 93. ' _^ any bid if the bidder shall not have furnished adequate security entitling such bidder to bid, or shall otherwise fail to comply with the terms and conditions of sale, and shall resell the consent and license in the same manner as herein- before provided for the first sale. The bidder who may build and operate such railroad shall at all times keep accurate books of account of the business and earnings of such railroad, which books shall at all times be subject to the inspection of the' local authorities. In the event of the failure or refusal of the corporation operating or using such railroad to pay the rental or percentages of gross earnings agreed upon, and after notice of not less than sixty days to pay the same, the local authorities interested therein may apply to any court having jurisdiction upon at least twenty days' notice to such corporation, and after it shall have had an opportunity to be heard in its defense, for judgment declaring the consent and right to operate and use such rail- road forfeited and authorizing the sale again of the same in the manner hereinbefore prescribed, provided, however, that no such resale of any such consent and right heretofore granted shall be authorized except upon the condition that the same shall be subject to all liens and incumbrances existing on said railroads at the time such forfeiture may have been declared. All consents hereafter given by the local authorities, imless it be otherwise pi^ovided in such consent or in some renewal thereof may be forfeited at the expiration of two years thereafter, and every such consent heretofore given to a corporation incojpporated under chap- ter one hundred and forty of the laws of eighteen hundred and fifty, or chapter two hundred and fifty-two of the laws of eighteen hundred and eighty-four, for the purpose of con- structing and operating a street surface railroad only,, wholly south of the Harlem river, shall be deemed to be in full force and effect and shall continue until June thirtieth, eighteen hundred and ninety-five, when it shall cease, unless prior thereto the required consent of property owners, or the order of the general term in lieu thereof, shall have been first obtained; and the provisions of this section shall apply to all applications for such consents made under any stat- ute, either before or after the passage of this chapter, and not finally acted upon at the time of its passage. The board of sinking fund commissioners of any city shall have 20 306 Condition of Consent; Sale of Fea.nohise. The Railroad Law, § 93. power to compromise or release any existing liability or obligation to the mayor, aldermen and commonalty of such city under the provisions of chapter six hundred and forty- two of the laws of eighteen hundred and eighty-six, or of this chapter whenever, in the opinion of such board, such release or compromise shall be just or equitable, or for the public interest, the reason for any such release or com- promise to be stated in the recorded proceedings, of such board. Whenever it shall be desired to unite two street surface railroad routes at some point not over one-half mile from such respective lines or routes, and establish by the construction of such connection a new route for public travel, and the corporation or corporations owning or using such railroads shall consent to operate such connection as a part of a continuous route for one fare, and it shall appear to the local authorities that such connection can not be operated as an independent railroad without inconvenience to the public, but that it is to the public advantage that the same should be operated as a continuous line or route with existing railroads, or whenever for the purpose of connect- ing with any ferry or railroad depot, it shall be desired to construct an extension or branch not more than one-half mile in length, of any street surface railroad corporation, no sale of such franchise shall be made as provided in this section, but any consent of the local authorities for the construction and operation of such connection, extension or branch shall provide that the corporation or corporations operating such connection, extension or branch shall pay into tlie treasury of said city annually the percentage provided for extensions or branches in sec- tion ninety-five of this chapter, for the purposes, at the times, in the manner and upon the conditions set forth in such section. Nothing herein contained shall be construed as applying to or affecting or modifying the terms of a certain contract bearing date January first, eighteen hun- dred and ninety-two, entered into by and between the city of Buffalo and the various street surface railroad corpora- tions therein named in such contract The local authori- ties may, in their discretion, make their consent to depend upon any further conditions respecting other or further security, or deposit, suitable to secure the construction completion and operation of the railroad within any time Pkocrkdings if Fkopeety Owners do not Consent. 307 The Railroad Law, § 94. not exceeding the period prescribed in this article and respecting the character, quality or motive power of the road to be completed, and respecting the application of any provision herein contained as to carriage of passengers for single fare and the divii->n of gross receipts and the payment of percentages to the line leased or operated nnder contract by the applicant for an extension, and also respect- ing any other matter concerning which, in their judgment, further conditions would be for the public interest. Any and all proceedings heretofore taken in substantial com- pliance with the provisions of this section, as now amended, are hereby approved, ratified and confirmed. (Thus amended by L. 1892, ch. 306 and ch. 676; L. 1893, ch. 434.) The State has no power to interpose as a party in suits in which it is not interested to prevent multiplicity of suits between adverse claim- ants. Chapter 310, L. 1886, is not retroactive in its operation. Said chap- ter is unconstitutional. (People v. O'Brien, 111 N. Y., 1; reversing 45 Hun, 519.) § 94. Proceedings if property owners do not consent. — If the consent of property owners required by any provision of this article can not be obtained, the corporation failing to obtain such consents may apply to any general term of the supreme court held in the department in which it is pro- posed to construct its road for the appointment of three commissioners to detemine whether such railroad ought to be constructed and operated. Notice of such application must, at least ten days prior thereto, be served, personally, upon each non-consenting property owner by delivering the same to the person to whom such property is assessed upon such assessment-roll or by duly mailing the same, properly folded and directed, to such property owner at his post-ofSce address with the ppstage prepaid thereon. If the person upon whom service is to be made is unknown, or his resi- dence and post-office address are unknown and cannot by reasonable diligence be ascertained, service of such notice may be made by publishing. the same in such newspaper of the county as the court may direct, at least once a week for two successive weeks. Upon due proof of service of such notice the court to which the application is made shall appoint three disinterested persons, who shall act as com- missioners, and who shall, within ten days after their 308 Pkooeedings if Peopbety Owners- do not Consent. The Railroad Law, § 94. appointment, cause public notice to be given of their first meeting in ttie manner directed by ttie court, and may adjourn from time to time, until all their business is com- pleted. Vacancies may be filled by the court after such notice to parties interested as it may deem proper to be given; and the evidence taken before as well as after the happening of the vacancy shall be deemed to be properly before such commissioners. After a public hearing of all parties interested, the commissioners shall determine whether such railroad ought to be constructed and operated, and shall make a report thereon, together with the evidence taken, to the general term, within sixty days after appoint- ment, unless the court, or a judge thereof, for good cause shown, shall extend such time; and their determina- tion that such road ought to be constructed and operated, confirmed by such court, shall be taken in lieu of the con- sent of the property owners hereinbefore required. The commissioners shall each receive ten dollars for each day spent in the performance of their duties and their necessary expenses and disbursements, which shall be paid by the corporation applying for their appointment. (Thus amended by L. 1892, ch. 676.) The only prerequisite to the appointment of commissioners to determine whether such railroad ought to be constructed and operated Is the fact that the consent of the property owners cannot be obtained. The consent of the municipal authorities is a prerequisite to the construction, extension or operation of the railroad, but, as such consent is not necessary to the appointment of commissioners, the question whether it has been given does not necessarily arise upon a motion to confirm their report. (Matter of Auburn City Ry. Co., 88 Hun, 603.) The determination of the commissioners is not operative until their report is confirmed by an order of the general term. Such order Is dis- cretionary and not reviewable by the court of appeals. (In re Kings Co. El. R. R. Co., 82 N. Y., 95.) When commissioners report that the road should not be built, the court, in the absence of proof of fraud or mani- fest Irregularity, has no power to order a further hearing nor to appoint new commissioners. (In re Nassau Cable Co., 36 Hun, 272.) A petition showing the total valuation of the property on the portion of each street upon which the road Is to be built, is sufficient when It appears therefrom that refusals to consent represented more than one- half of the total valuation. (In re People's R. R. Co., 112 N. Y., 584.) The reasons for the refusals of property owners to consent need not be given. (In re B'dway Surface R. K. Co., 34 Hun, 414.) Peecenta&e of Geoss Receipts, etc. 309 The Railroad Law, § 95. The court is not vested with any discretion to grant or deny the motion upon a consideration of the utility or necessity of the proposed road, nor has it the power to deny the application because of failure of the applicant to procure the requisite consent of another company. Inability to obtain the consent of property holders is the only prerequisite to the application. (In re Thirty-fourth St. R. R. Co., 102 N. Y., 343.) The covtrt primarily possesses the mere naked power of appointment, and has no power to pass upon the merits of the application until the commissioners, have made their report. (Id.) The consent of local authorities may be prociu:ed either before or after that of the property owners. (In re Broadway Surface R. R. Co., 34 Hun, 414.) Only owners whose names appear on the assessment-roll are entitled to notice. (34 Hun, 414, above.) Notice enables property owners to appear and oppose the application. (102 N. Y., 343, above.) Where it is sought to take the property of an individual under powers granted to a corporation to be formed in a particular manner, the con- stitutional protection of the rights of private property requires that tho powers granted be strictly pursued, and all the prescribed conditions per- formed. (N. Y. Cable Co. v. Mayor, etc., of N. Y., 104 N. Y., 3.) It must be a corporation de jure. (Id.) When the power is conferred upon a corporation duly formed, it will not be defeated simply because the cor- poration has done or omitted some act which may cause a forfeiture of its rights and franchises, as it rests with the state to determine whether such forfeiture will be enforced (Id.) § 95. Percentage of gross receipts to be paid in cities or villages ; report of officers. — Every corporation building or operating a railroad or branch or extension thereof, under the provisions of this article, or of chap- ■ter 252 of the laws of 1884, within any city of the state having a population of 1,200,000 or more, shall, for and during the first five years after the commencement of the operation of any portion of its rail- road annually, on l!^ovember first, pay into the treasury of the city in which its road is located, to the credit of the sinking fund thereof, three per cent of its gross receipts for and during the year ending September thirtieth next preced- ing; and after the expiration of such five years, make a like annual payment into the treasury of the city to the credit of the same fund, of five per cent of its gross receipts. If a street surface railroad corporation existing and operating any such railroad in any such city on May 6, 1884, shall have thereafter extended its tracks or constructed branches therefrom, and shall operate such branches or extensions under the provisions of chapter 252 of the laws of 1884, or of 310 Extension of Route Over IIivees, etc. The Railroad Law, § 96. this article, such, corporation shall pay such percentages only upon such portion of its gross receipts as shall bear the same proportion to its whole gross receipts as the length of such extension or branches shall bear to the entire length of its line. In any other incorporated city or village the local authorities shall have the right to require, as a con- dition to their consent to the construction, operation or extension of a railroad under the provisions of this article, the payment annually of such percentage of gross receipts, not exceeding three per cent, into the treasury of the city or village as they may deem proper. In case of extension the amount to be paid shall be ascertained in the manner heretofore provided. The corporation failing to pay such percentage of its gross earnings shall, after November first, pay in addition thereto five per cent a month on such per- centage until paid. The president and treasurer of any corporation required by the provisions of this article to make a payment annually upon its gross receipts shall, on or before November first in each year make a verified report to the comptroller or chief fiscal officer of the city of the gross amount of its receipts for the year ending September thirtieth, next preceding, and the books of such corporation shall be open to inspection and examination by such comp- troller or officer, or his duly appointed agent, for the pur- pose of ascertaining the correctness of its report as to its gross receipts. The corporate rights, privileges and fran- chises acquired under this article or such chapter by any' corporation, which shall fail to comply with all the provis- ions of this section, shall be forfeited to the people" of the state, and upon judgment of forfeiture rendered in an action brought in the name of the people by the attorney-general, shall cease and determine. (Thus amended by L. 1892, ch. 676.) § 96. Extension of route over rivers ; terminus in other counties ; vrhen property owners -wdthhold consent supreme court may appoint commissioners. — Any street railroad except in the counties of New York or Kings, now in operation in this state, which shall, by a two-thirds vote of its directors, decide to extend the route of its road, so as to cross the Hudson river over and by any bridge now or hereafter constructed under the provisions of any law of Use of Tracks of Other Roads, etc. 311 The Railroad Law, § 97. this state, may so extend their route over and across such bridge upon such terms as may be mutually agreed upon between it and such bridge company, and may locate the terminus of their road in the county adjoining the one in which their road is now located and in operation. Upon first obtaining' the consent of such bridge company or its lessees, and the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of the Street or highway upon which it is proposed to construct or operate such railroad, or in case the consent of such property owners can not be obtained the general term of the supreme court in the district in which it is proposed to be constructed may, upon application, appoint three com- missioners who shall determine, after a hearing of all par- ties interested, whether such railroad ought to be con- structed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the prop- erty owners. §97. Use of tracks of other roads. — Any railroad corpora- tion in this state, whose cars are run and operated by horses or other motive power, authorized by this article, upon the surface of the street, excepting in the city and county of New York, may, for the purpose of enabling it to connect with and run and operate its cars between its 'tracks, and a depot or car-house owned by it, run upon, intersect, and use, for not exceeding five hundred feet, the tracks of any other railroad corporation, the cars of which are run and operated in like manner with the necessary connections and switches for the proper working and accommodation ofl the cars upon such tracks, and in connec- tion with such depot or car-house, upon paying therefor such compensation as it may agree upon with the corpo- ration owning the tracks to be so run upon, intersected, and used; and in case such corporations can not agree upon the amount of such compensation, the same shall be ascertained and determined in the manner prescribed in the condemna- tion law. For text of the condemnation law, see post. 312 Repairs ; Rate of Spekd ; When Road to be Built. The Railvoad Lmw, §§ !)8, 99. § 98. Repair of streets ; rate of speed; removal of ice and snow. — Eyery street surface railroad corporation so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the super- vision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe. In case of the neglect of any corporation to make pavements or repairs after the expiration of thirty days notice to do so, the local authorities may make the same at the expense of such corporation, and such authorities may make such reasonable regulations and ordinances as to the rate of speed, mode of use of tracks, and removal of ice and snow, as the interests or convenience of the public may require. A corporation whose agents or servants willfully or negli- gently violate such an ordinance or regulation, shall be liable to such city or village for a penalty not exceeding five hundred dollars to be specified in such ordinance or regulation. (Thus amended by L. 1892, ch. 676.) Cases Involving paving, repairs and assessments therefor: (Gilmore v. City of Utica, 131 N. Y., 26; id., 121 N. Y., 561; People ex rel. Davidson v. Gilon, 126 N. Y., 147; Mayor, etc., of N. Y., v. Second Av. R. R. Co., 102 N. Y., 572; Same v. N. Y. & H. U. R. Co., 46 St. Rep., 349; 19 N. Y. Supp., 67; Snell v. Roch. Ry. Co., (14 Hun, 476.) Removal of snow and ice from tracks: (Silberstein v. Houston, W. St. & P. F. R. R. Co., 117 N. Y., 293; Dixon v. Bklyn City & N. R. R. Co., 100 N. Y., 170; Slayor of Troy v. Troy & Lansgbgh. R. R. Co., 49 N. Y., 657; Somerville v. City R. Co. of Po'lieepsie, 43 St. Rep., 425.) It is error to exclude evidence showing that a city ordinance requiring cars to be run at stated intervals during the night was unreasonable. (Mayor, etc., of N. Y. v. Dry Dock, East B'dway & B. R. R. Co. 133 N. Y., 104.) §99. Within what time road to be built.— In case any- such corporation shall not commence the construction of its road, or of any extension or branch thereof, within one year after the consent of the local authorities and property owners or the determination of the general term as herein required, shall have been given or renewed, and shall not complete the same within three years after such consents, Motive Powee. 313 The Railroad Law, § 100 its rights, privileges and franchises in respect of such rail-, road extension or branch, as the case may be, may be for- feited. If the performance of any such act, vi^ithin such time, is prevented by legal proceedings in any court, such court may also extend such time for such period as the court shall deem proper. The time for compliance w^ith this requirement in this or any former act, by a street sur- face railroad corporation incorporated for lie purpose of constructing a street surface railroad only, wholly south of the Harlem river and in cities of over twelve hundred thousand inhabitants and which has heretofore obtained such consents, js hereby extended until June thirtieth, eight- een hundred and ninety-five. (Thus amended by L. 1S92, ch. 676; L. 1893, ch. 434.) See section 5 of this law, and cases cited thereunder. § 100. Motive power. — Any street surface railroad may operate any portion of its road by animal or horse power, or by cable, electricity, or any power other than locomotive steam power, which may be approved by the state board of railroad commissioners, and consented to by the owners of one-half of the property bounded on that portion of the rail- road with respect to which a change of motive power is pro- posed; and if the consent of such property owners can not be obtained, the determination of three disinterested com- missioners, appointed by the general term of the supreme court of the department in which such railroad is located, in favor of such motive power, confirmed by the court, shall be taken in lieu of the consent of the property owners. The consent of the property owners shall be obtained and the proceedings for the appointment and the determination of the commissioners and the confirmation of their report shall be conducted in the manner prescribed in sections ninety- one and ninety-four of this article, so far as the same can properly be made applicable thereto. Any railroad corporation making a change in its motive power under this section, may make any changes in the con- struction of its roads or road bed or other property ren- dered necessary by the change in its motive power. (Thus amended by L. 1802, ch. 676.) 314 Ratk of Fare The Eailioad Law, § 101. A street surface railroad company lawfully using a cable for motive power in the city of New Yorli may construct upon its road bed and use an iron pipe containing electrical wires for use in signalling its power house in cases of accident. (Empira City Subway Co., Lt'd. v. Broadway and Seventh Ave. R. R. Co., 87 Hun, 279.) In an action brought by a telephone company to restrain a street rail- road company from operating its road by the single-trolley system of electric propulsion, held, that as the plaintiff liad accepted its franchise, which authorizes it to construct and operate its lines upon streets and highways upon the express condition that they shall not be so constructed as to incommode the public use, and as the railroad company was occupy- ing the streets in such a manner as to expedite public travel and promote the public use to which they were originally devoted, the telephone com- pany's franchise was of a subordinate character, and it could not complain that the single-trolley system interfered with the operation of Its lines. (Hudson River Tel. Co. v. Watervliet Turnpilie & Ry. Co., 135 N. Y., 393, revers'g 61 Hun, 140, and distinguishing Story v. N. Y. & E. R. R. Co., 190 N. Y., 122; Lahr v. M. E. R. Co., 104 N. Y., 268, and Peo. ex rel. V. Newton, 112 N. Y., 396; see, also, Hudson R. T. Co. v. W. T. & Ry. Co., 121 N, Y., 397.) § lUl. Rate of fare. — IS'o corporation construe tiiiji; and operating a railroad under the provisions of this article, or of chapter 252 of the laws of 1884, shall charge any passen- ger more than five cents for one continuous ride from any point on its road, or on any road, line or branch operated by it, or under its control, to any other point thereof, or any connecting branch thereof, within the limits of any incorpo- rated city or village. Not more than one fare shall be charged within the limits of any such city or village, for passage over the main line of road and any branch or exten- sion thereof if the right to construct such branch or exten- sion shall have been acquired under the provisions of such chapter or of this article. This section shall not apply to any part of any road constructed prior to May 6, 1884, and then in operation, unless the corpo- ration owning the same shall have acquired the right to extend such road, or to construct branches thereof under such chapter, or shall acquire such right under the provisions of this article, in which event its rate of fare shall not exceed its authorized rate prior to such extension. The legislature expressly reserves the right to regulate and reduce the rate of fare on any railroad constructed and operated wholly or in part under such chapter or under the provisions of this article. (Thus amended by L. 1892, ch. 670.) Construction, OF Road, etc. 315 The Railroad liaw, § 103. When a passenger who has paid his fare is ejected by a conductor who acted in good faith only compensatory damages will be awarded. (Ham- ilton T. Third Av. R. R. Co., 53 N. Y., 25.) Other cases involving payment of fare : (Rown v. Christopher & 10th St. R. R. Co., 34 Hun, 471; Corbett V. 23d St. 'Ry. Co., 114 N. Y., 579; 42 Hun, 587.) § 102. Construction of road in street where other road is btiilt. — No street surface railroad corporation shall construct, extend or operate its road or tracks in that portion of any street, avenue, road or highway, in which a street surface railroad is or shall be lawfully constructed, except for necessary crossings, or, in cities, villages and towns of less than one million two hundred and fifty thousand inhabi- tants over any bridges, without first obtaining the consent of the corporation owning and maintaining the same, except that any street surface railroad company may use the tracks of another street surface railroad company for a distance not exceeding one thousand feet, and if in a city having a population of less than thirty-five thousand inhabi- tants, except Long Island City, for a distance not exceeding fifteen hundred feet, and in cities, villages and towns of less than one million two hundred and fifty thousand inhabi- tants, shall have the right to lay its tracks upon, and ruh over and use any bridges used wholly or in part as a foot- bridge, whenever the court upon an application for commis- sioners shall be satisfied that such use is actually necessary to connect main portions of a line to be constructed or operated as an independent railroad, or to connect said rail- road with a ferry, or with another existing railroad, and that the public convenience requires the same, in which event the right to use shall only be given for a compensation to an extent and in a manner to be ascertained and deter- mined by co.mmissioners to be appointed by the courts as is provided in the condemnation law, or by the board of rail- road commissioners in cases where the corporations inter- ested shall unite in a request for such board to act. Such commissioners in determining the compensation to be paid for the use by one corporation of the tracks of another shall consider and allow for the u.se of the tracks for all injury and damage to the cor- poration whose tracks may be so used. Any street surface railroad corporation may, in pursuance of a unani- mous vote of the stockholders voting at a special meeting 316 Abandonment of Part of Rodte. The Railroad Law, § 103. called for that purpose by notice in writing, signed by a majority of the directors of such corporation, stating the time, place and object "of the meeting, and serving upon each stockholder appearing as such upon the books of the corpo- ration, personally or by mail, at his last known jwst-office address, at least sixty days prior to such meeting, guarantee the bonds of any other street surface railroad corporation whose road is fully or partly in the same city or town or adjacent cities or towns. (Thus amended by L. 1892, ch. 306, and ch. 676; L. 1893, ch. 434; L. 1894, ch. 693.) Where a horse railroad company's track is crossed by the track of another company, the former cannot complain unless it is impeded In running cars. (Brooklyn Cent. & J. R. K. Co. v. Brooklyn City R. R. Co., 33 Barb., 420.) The proTision in this section imposing as a condition to the construc- tion or operation of a street railroad in a street in which another street railway has been lawfully constructed, that the consent of the company owning and maintaining such other road shall be obtained is not a dele- gation of legislative power to the company whose consent is required, and is constitutional and valid. (Matter of Thirty-fourth Street E. R. Co., 102 N. Y., 343; see, also. Forty-second & Grand St. R. R. Co. v. Same, 102 N. T., 691; N. Y. Cable Ry. Co. v. Chambers St & Grand St. F. R. R. Co.. 40 Hun, 29.> § 103. Abandonment of part of route. — Any street surface railroad corporation which is the lessee or lessor, or both, or which haa the right to use the route or portion of the route of another such corporation pursuant to a lease or agreement lawfully entered into with it, may declare any portion of its own route which it may deem no longer neces- sary for the successful operation of its road and convenience of the public in consequence of such lease or contract, to be relinquished or abandoned. Such declaration of aban- donment must be adopted by the board of directors of the corporation under its seal, which shall be submitted to the stockholders thereof at a meeting called and conducted in the same manner as required by law for meetings of stock- holders for the approval of leases by railroad corporations for the use of their respective roads. If the stockholders shall, at such meeting, ratify and adopt such declaration of abandonment, the secretary of the company shall so certify under the seal of the corporation, upon such declaration. Such declaration shall then be submitted to the board of One Faee ; Dissolution of Chaetee, etc. 317 The Railroad Law, §§ 104, 105. railroad commissioners for its approval, and if approved by such board, such approval shall be indorsed thereon or annexed thereto, and the declaration so certified and indorsed shall be filed and recorded in the office of the secretary of state, and from the time of such filing, such portion of the route designated in the declaration shall be deemed to be abandoned. (New provisions Inserted by L. 1892, ch. 676, in place of former section 103.) A railroad company is autliorized to contract with another for the use of Its road, although the efCect of such contract Is to cause the abandon- ment of a portion of the road of one company. (Prospect Pk. and Coney Isl. R. R. Co. V. Bklyn, Bath and West End R. R. Co., 84 Hun, 516.) § 104j Contracting corporations to carry for one fare ; penalty. — Every such corporation entering into such contract shall carry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to make one continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such cor- poration shall upon demand, and withO;ut extra charge, give to each passenger paying one single fare a transfer, entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract, to the end that the public convenience may be pronioted by the operation of the railroads embraced in such contract sub- stantially as a single railroad with a single rate of fare. For every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party. The provisions of this section shall only apply to railroads wholly within the limits of any one incorporated city or village. (Former section 105 as amended by L. 1892, ch. 676.) § 105. Effect of dissolution of charter as to consents.— "Whenever any street surface railroad corporation shall ■have been dissolved or annulled, or its charter repealed by an act of the legislature, the consent of owners of property- bounded on, and the consent of the local authorities having the control of that portion of a street or highway upon 318 CoKPOEATE Rights, etc. The Railroad Law, § 106. wMch the railroad of such corporation shall have been theretofore constructed and operated, and the order of the general term confirming the report of any commissioner that such railroad ought to be constructed or operated, shall not, nor shall either thereof, be deemed to be in any way impaired, revoked, terminated or otherwise affected by such act of dissolution, annulment or repeal, but the same and each thereof shall continue in full force, efl&cacy and being. The right to the former enjoyment and to the use thereof, subsequent to such act of dissolution, annulment or repeal, and of all the powers, privileges and benefits therein or thereby created, shall be sold at public auction by the local authorities within whose jurisdiction such railroads shall be, in the same manner as is provided in section ninety-three of this article. When such sale shall have been so. made, the purchaser thereat shall have the right to the further enjoyment and use of such consents and orders, and of each thereof, and of all the powers, privileges and benefits therein or thereby created, in like manner as if such purchaser had been originally named in such consents, reports and orders; if such purchaser shall be otherwise authorized by law to construct, maintain and operate a street surface railroad within the municipality within which such railroad shall be. See People v. O'Brien, 111 N. Y., 1. (Former section 106, as amended by L. 1892, cli. 076.) § 106. Corporate rights saved in case of failure to com- plete road ; right to operate branches ; conditions ; former consents ratifi.ed ; limitations. — Tlie corporate existence of and powers of every street surface railroad corporation, which has completed a railroad upon the greater portion of the route designated in its certificate of , incorporation, within ten years from the date of fiding such certificate in the office of the secretary of state, and which has operated such completed portion of its railroad continuously for a period of five years last past, and is now operating the same, shall continue with like force and effect, as though it had in all respects complied with the provisions of law with reference to the time when it should have fully completed its road. Every such corporation shall have the right to * So in the original. CoRPOKATE Rights, etc. 319 The Railroad Law, § 10(5. operate any extentions* and branches of its rail- road, now constructed and operated by it, wbicli have been so constructed and operated by it, for a period of ten years last past, with like force and effect, as though the route of such extentions* and branches were designated in its certificate of incorpo- ration. But every such street railroad corporation is authorized to operate such railroad and any extention* or branches thereof, upon condition that it has heretofore, or shall hereafter, obtain the consent of the local authorities having the control of that portion of the streets, avenues or highways included in such railroad, or any extension or branches thereof, to the construction and operation of the same, and also upon the condition that it has heretofore or shall hereafter first obtain the consent of the owners of one-half in value of the property bounded on the portion of the streets, avenues or highways included in the. route of such railroad, or any extention* or branches thereof, to the construction and operation of the same, or in case the con- sent of such property owners can not be obtained, the general term of the supreme court of the department in which such railroad or any extension or branch thereof is located, may, upon application, appoint three commissioners who shall determine, after a hearing of all the parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners. All consents heretofore given, or grants made by local authori- ties having the control of the portion of any street, avenue or highway included in the routs of such railroad, or any extensions or branches thereof, to any such street siirface railroad corporation, are hereby ratified and confirmed and declared valid. This section shall be applicable to any such corporation in any town, city or village having less than twenty thousand inhabitants which has completed any portion of its road upon the route designated in its certificate of incorporation within the time required by law for the completion of its road. This section shall not apply to or affect any railroad corporation in the city of New York; nor any special grant made to or authority conferred upon •So in the original. 320 How Road to be Constructed ; Rails, etc. The Railroad Law, §§ 107, 108, 109. any street surface railroad corporation by any law of this state; nor any pending litigation; nor shall it impair exist- ing rights, privileges or franchises of any street surface railroad corporation. (Former section 107, as amended by L. 1S92, cli. 676.) § 107. When sand may be used on tracks. — The owner or operator of any street surface railroad in cities of this state having a population of five hundred thousand or more, may place upon the space between the rails of such road, sand in sufficient quantities and no more to prevent the horses traveling thereon from slipping. (Former section IDS, as amended by L. 1892, ch. 676.) Another provision relative to sand on tracks was also enacted by L. 1892, ch. 460, which reads as follows: Section one hundred and eight of chapter five hundred and sixty-five of the laws of eighteen hundred and ninety, is hereby amended so as to read as follows: § 108. When sand may be used on tracks. — After the passage of this act it shall be lawful for the owner or operator of any horse or surface street railroad in the cities of this state having a population of five hundred thousand or more to place upon the spaces between the tracks of said road, and on the tracks and grades on said railroad at any time between the first of November and the first of April of each year, sand in sufficient limited quantities to prevent the horses traveling thereon from slipping. It will be noljiced here tliat the legislature has inadvertently duplicated the section number. § 108. Road not to be constructed upon ground occupied by public buildings or in public parks. — No street surface railroad shall be constructed or extended upon ground occupied by buildings belonging to any town, city, county, or to the state, or to the United States, or in public parks, except in tunnels to be approved by the local authorities having control of such parks, (Thus amended and number changed from 109 to 108 by L. 1892, ch. 676.) § 109. Center-bearing rails prohibited,— No street surface railroad corporation shall hereafter lay down in the streets of any incorporated city or village of this state what are known as "center-bearing" rails; but in all cases, whether Ceossing Bridges. 321 'I'ho Railroad Law, § 110. in laying new track or in replacing old rails, shall lay down " grooved " or some other kind of rail not " center-hearing " approved hy the local authorities. Such grooved or other rail shall be of such shape and so laid as to permit the paving-stones to come in close contact with the projection which serves to guide the flange to the car wheel. Where in any city, the duty of repairing and repaving streets, as distinguished from the authorization of such paving, repairing and repaving, is by law vested in any local authority other than the common council of such city, such other local authority shall be the local authority referred to in this section. (New, added by L. 1S92, ch. 676.) § 110. Right to cross bridge substituted for a bridge crossed for five years.— Should any street surface railroad company have crossed "any bridge as a part of its route for a period of more than five years and should] any other bridge be substituted therefor at any time, such company shall have the right to cross such substituted bridge and to . lay and use railway tracks thereon for the transit of its cars and to make all changes and extensions of its route subject to all the /provisions of this act, as the convenient operation of its cars and public convenience may require. (New, added by L. 1892, ch. 676.) For explanation of interval in numbering between section 110, supra, and section 120, infra, set note on page 254. 21 322 Api'hcation foe other Railroads in Cities. The Railroad Law, § ISO. ARTICLE Y. Other Railuoads in Citiks and Counties. Section 120. Application for railway; commissioners. 121. Oath and bond of commissioners. 122. First meeting of commissioners. 123. Determination of necessity of railroad and route. 124. Adoption of plans and terms upon which load shall be built. 125. Appraisal of damages and deposit of money as security. 126. Shall prepare certificate of incorporation; proviso as to forfeiture. 127. Organization. 128. Commissioners to deliver certificate; affidavit of directors. 129. Powers. 130. Crossing of horse railroad track. 131. ^^'here route coincides with another route. 132. Commissioners; to transfer plans, et cetera. 133. Commissioners to file reports; confirmation thereof. 134. Pay of commissioners. 135. Quorum; term of office; removal; vacancies in board of commissioners. 136. Abandonment or change of route; new commissioners; their power and proceedings. 137. Increased deposits; when and how required. loS. Trains to come to full stop, etc. 139. Gates. 140. Penalty for violation of this article. 341. Sections to be printed and posted. 142. Extension of time. §120. Application for rail\7ay ; commissioners. — Upon the application of at least fifty reputable householders and taxpayers of any county or city, verified upon oath before a justice of the supreme courts that there is need in said county or city of a steam railway in the streets, avenues and public places thereof for the transportation of passen- gers, mails or freight, the board of supervisors of such county may, within thirty days thereafter by resolution, approve of the application, and authorize its presentation to the supreme court, and if the railway is to be built wholly within the limits of a city, upon the application of a like number of householders and taxpayers of the city to the mayor thereof, such mayor may, within thirty days there- after, indorse upon the application his approval and direc- tion that it may be presented to the supreme court, and if the railway is to be buUt, partly within the limits of a city Commissioners ; Oath ; Meetings ; Nkoessity op Road. 323 The Railroad Law, §§ 121, 122, 123. and partly without, such application shall be approved, both by the mayor of the city and the board of supervisors of the county, and its presentation to the supreme court authorized by them, and upon the presentation of such application so approved and authorized to a special term of the supreme court, held in the district where such rail- way is to be built, or some part thereof, the court may , appoint five commissioners, resident, of the city if the rail- way is to be built wholly within the city, and of the county if it is to be built wholly or partly outside of the limits of a city, to determine the necessity of such railroad, the route thereof, the time within which and the conditions upon which it shall be constructed, the damages to the property owners along the line thereof and all the matters lawfully submitted to them, and discharge the duties imposed upon them by law. As to railroads in cities having over 1,000,000 inhabitants, see L. 1891, ch. 4, as amended, post. § 121. Oath and bond of commissioners. — Within ten days after his appointment and before entering upon the dis- charge of any of the duties of his office, each commissioner shall take and subscribe the constitutional oath of office, which shall be filed in the office of the clerk of the county and shall execute a bond to the people of the state in the penal sum of twenty-five thousand dollars, with two or more sureties, to be approved by a justice of the supreme court of the department in which the railway is to be built and conditioned for the faithful performance of the duties of the office, which bond shall be filed in the office of the clerk of the county. The oath was formerly also filed in the office of the Secretary of State. § 122. First meeting of commissioners.— Within ^fifteen days after their appointment, the commissioners shall meet in some convenient place in the county or city and organize themselves as a board with appropriate officers. § 123. Determination of necessity of railroad and route. — The commissioners shall, within thirty days after such organization, determine upon the necessity of such steam railroad, and if they find it to be necessary, they shall, within sixty days after such organization, fix and determine the 324: Necessity, of Road. The Railroad Law. §123. route therefor, and shall have the exclusive power to locate such route, over, under, through or across the streets, avenues, places or lands in such county or city, and to pro- vide fior the connection or junction with any other railway or bridge, if the consent of the owners of one-half in value of the property bounded on and the consent of the local authorities having control of that portion of a street or highway, upon which it is proposed to construct or operate such railway have been first obtained. If the consent of such property owners can not be obtained, the determina- tion of three commissioners appointed by the general term of the supreme court of the department where the railroad is to be constructed, made after due hearing of all parties interested, and confirmed by the court, that such railway ought to be constructed and operated, may be taken in lieu of the consent of such property owners. No such railway shall be located in or upon such portion of any street, avenue, place or lands in such county as are now occupied by an elevated or underground railway or in which such a railway has already been authorized by law to be so located and constructed, or which are contained in public parks, or occupied by buildings belonging to the county or the state or United States, or in or upon the following streets, avenues and public places, viz.: Broadway, Fifth avenue, Fourth avenue above Forty-second street, in the city of New York; Debevoise place, Irving place, LefEerts place, those portions of Grand, Classon and Franklin avenues and Dowling street lying between the southerly line of Lex- ington avenue and the northerly line of Atlantic avenue, that portion of Classon avenue lying between the northerly line of Lexington avenue and the southerly line of Park avenue, and that portion of Washington avenue lying between Park and Atlantic avenues in the city of Brooklyn ; and that portion of the cily of Buffalo lying between Michi- gan and Main streets, but such railway may be located and constructed across such excepted streets, avenues and places at their intersection only with other streets, avenues and places. (Thus amended by L. 1892, ch. 676.) The direction that no such railway shall be located on certain streets Is plainly, as matter of context, limited to railroads incorporated under the ' CoMMISSIONEES TO AdoPT PlANS, ETC. 325 The Railroad Law, § 124. Rapid Transit Railroad Law. (Beeliman v. Brooklyn & Brighton Beach R. R. Co., 89 Hun, 14; McCuUom v. Same, id., 14.) § 124. Adoption of plans, and. terms upon which road shall be built. — The Commissioners by such public notice, and under such conditions, and with su.ch inducements as they may prescribe, shall invite a submission of plans for the construction and operation of such railway, and shall meet at a time and place in such notice named, not more than ninety days after their organization, and decide upon the plans for the construction thereof, with the necessary supports, turnouts, switches, sidings, connections, landing- places, stations, buildings, platforms, stairways, eleyators, telegraph and signal devices, or other requisite appliances, upon the route or location determined upon by them. They shall, upon notice to the local authorities, and after hearing all parties interested, fix and determine what compensation, if any, in a gross sum, or in a certain percentage of receipts, shall annually be paid to the local authorities by the corpo- ration formed for the purpose of constructing, maintaining and operating such railway for public use in the conveyance of persons and property, for the use and occupation laj the corporation of the streets, avenues and highways in and upon which its railway is to be constructed, and the time when such railway, or a portion thereof, shall be con- structed and ready for operation, and the maximum rates to be paid for transportation and conveyance thereon, and the hours during which special cars or trains shall be run at reduced rates of fare; and the amount of the capital stock of such corporation, and the number of shares into which it shall be divided, and the percentage thereof to be paid in cash on subscribing for such shares. The commissioners may select two or more routes, upon one of which such railway may be constructed and operated; and the local authorities may consent to the construction and operation of such railway upon one or more of such routes, or parts thereof; and the commissioners shall have power to change and readopt routes and plans for the con- struction and operation of such railway, after they have been submitted to the local authorities, in cases where such authorities may recommend such changes, or may not be willing to consent to the construction or operation of the 326 Commissioners to Appraise Damages, etc. The Railroad Law, § 125. r railway, upon tlie routes and plans adopted, unless such changes are made therein. (Thus amended by L. 1892, ch. 676.) § 125. Appraisal of damages and deposit of money as security. — The commissioners shall, within one hundred and ten days after thefr organization, ascertain and determine the aggregate pecuniary damage arising from the diminu- tion in the value of the property bounded on that portion of such street or streets, highway or highways, upon which it is proposed to constmict and operate such railway to be caused by the construction and operation thereof. For that purpose they shall view the several parcels of real prop- erty so bounded, and shall appraise separately the pecun- iary damages arising from such diminution in value of each parcel thereof, and for the purposes of such appraisal they shall give notice of the time and place, when and where they will meet to hear the owners, or persons interested in such real property, which notice. shall be published for at least ten days consecutively in at least two newspapers in the county where such railway is to be constructed, and shall take such material testimony upon the probable dimi- nution in value of any or all such parcels to be so caused as may be offered by or in behalf of any person or party interested therein, and the aggregate sum of the amounts so appraised and determined by them shall be the aggregate pecuniary damage required to be ascertained and deter- mined as above provided. No corporation which shall here- after be organized under this article shall enter upon any street, highway or lane therein, until it shall first have deposited with some trust company, to be designated by tbe mayor of the city within which it is proposed to con- struct the railway or any part thereof, and by the board of supervisors, when the road does not lie wholly within a city, a sum of money equal to the amount so ascertained and determined by the commissioners to be the aggregate pecuniary damage to such property within the city, or within the county outside of any city, or shall have secured the payment of such amount by depositing with such trust company negotiable securities, equivalent at their par and actual value to such aggregate amount, and approved by the mayor of the city in which such road is wholly or in Commissioners 'to Appraise Damagics, etc. 327 The Railroad Law, § 135. part located, and by the county treasurer of the county if the road is located wholly or in part outside of the limits of such city. The court may accept in lieu of the deposit of money or securities herein required the bond of the cor- poration, with two or more sureties, to be approved by the court, to the effect that the corporation before constructing or operating its railway in front of any premises, shall pay to the owner of the real property all the damages sustained, or which will be sustained by him, as fixed and determined by such commissioners, and the costs allowed, if any. Such bond shall be in a sum double the amount of such damages, and the sureties shall justify in the aggregate to an amount equal to the amount of such bond. Such corporation shall also, at the same time, deposit with such trust company or with the county treasurer, as the commissioners may direct, the sum of five thousand dollars in cash, for the payment of the expense of apportioning and distributing such! fund. Unless such moneys or securities shall be deposited by such corporation within one year after it shall have obtained the consent of the local authorities, and of the property owners, or the confirmation by the. general term of the supreme court, of the determination of three commissioners in lieu thereof, and in the case of a corporation heretofore organized within one year after it shall have obtained the confirmation by the general term of the supreme court of the report of three commissioners in lieu of the consent of property owners, or within one year after the commission- ers appointed to ascertain and determine the aggregate pecuniary damages as provided in this article, shall have made their report, then siich corporation shall be deemed not to have accepted the franchises granted. Where the commissioners shall fix and determine different periods of time within which different sections of such railway shall be constructed and ready for operation, they shall ascertain, determine, and report separately the aggregate pecuniary damage to property bounded upon that portion of such street or streets upon which each of such sections is located. Upon the deposit by the corporation as above provided of moneys or securities equivalent to the aggregate pecuniary damage to be sustained by any one of such sections, or of any bond given in lieu thereof, it shall immediately be 328 Certificate of Incoepobation ; Oeganization. The Railroad Law, §§ 126, 127. Rested with the right and privilege to construct its railway through such section. (Thus amended by L. 1892, ch. 676.) §126. Shall prepare certificate of incorporation ; proviso as to forfeiture. — The commissionprs shall prepare an appro- priate certificate of incorporation for the corporation in the last section mentioned in which shall be set forth and embodied, as component parts thereof, the several con- ditions, requirements and particulars by such commission- ers determined pursuant to the provisions of this article, and which shall also provide for the release and forfeiture to the supervisors of the county, or if the road is to be con- structed wholly or partly within a city, to such city, of all rights and franchises acquired by such corporation in case such railway or railways shall not be completed within the time and upon the conditions therein provided; and the commissioners shall thereupon and within one hundred and twenty days after their organization, cause a suitable book of subscription to the capital stock of such corporation, to be opened pursuant to due public notice at a banking office in such county or city. A failure by any corporation here- tofore or hereafter organized under this article to complete its railway within the time limited in and by its certificate of incorporation shall only work a forfeiture of the fran- chises of such corporation with respect to that portion of its route which such corporation shall have failed to complete, and shall not affect the rights and franchises of such corpo- ration to construct and operate such part of its railway which it shall have completed within the term prescribed by its certificate of incorporation, or as to which the time for completion shall not have expired, notwithstanding anything to the contrary in its certificate of incorporation. §127. Oi^anization.— Whenever the whole capital stock of such corporation, or an amount of such capital stock proportioned to the part of such railway directed by the commissioners to be constructed, shall have been subscribed by not less than fifteen persons, and the fixed percentage of such subscriptions shall have been paid, in cash, the com- missioners shall, by written or printed notice of ten days, sexn^ed personally or by mail, call a meeting of such sub- Cketificatb and Affidavit; Powers. 329 Tlie Railroad Law, §§ 128, 129. scribers for organization, and appoint the inspectors of election to serve thereat. At such meeting, or at any sub- sequent one to which the same may be adjourned, a majority in number and amount of such subscribers may elect per- sons, of a number to be therefore determined by the com- missioners not less than nine, who shall be directors for one year of the corporation formed for the purposes of con- structing and operating such railway. § 128. Commissioners to deliver certificate ; affidavit of directors. — Within ten days after the election of such directors the commissioners shall deliver to them a certifi- cate in duplicate, verified by the oath of three commission- ers, before a justice of the supreme court, setting forth the certificate of incorporation and the organization of the cor- poration for the purposes therein mentioned, and within five days after the reception by them of such certificates, three of the directors so elected shall make affidavit in duplicate that the full amount of stock has been subscribed in good faith to construct, maintain and operate the rail- way or railways in such certificate of incorporation men- tioned, and such directors shall file such affidavits and cer- tificate in the office of the secretary of state, and a duplicate of the same in the office of the clerk of the county wherein such railway shall be located; and thereupon the persons who have so subscribed such certificate of incorporation and all persons who shall become stockholders in such corporation shall be a corporation by the name specified in such certificate, and be subject to the duties, liabilities and restrictions of such corporations. § 129. Powers. — Every such corporation shall' have power, in addition to the powers conferred by the general and stock corporation laws and by subdivisions two, five and seven of section eight of this chapter : 1, To take and convey persons and property on their rail- road by the power or force of steam or by any motor other than animal power, and to receive compensation therefor. 2. To enter upon and underneath the several streets, ave- nues and public places and lands designated by the com- missioners, and enter into and upon the soil of the same, to construct, maintain, operate and use in accordance with 330 Crossing Hokse Railroad Tkack. The Railroad Law, § 130. the plan adopted by the commissioners, a railway upon the route or routes and to the points decided upon and to secure the necessary foundations and erect the columns, piers and other structures which may be required to secure safety and stability in the construction and maintenance of the railways constructed upon such plan and for operating the same; and to make such excavations and openings along the route through which such railway shall be constructed as shall be necessary from time to time. In .all cases the surface of the streets around such foundations, piers and columns shall be restored to the condition in which they were before such excavations were made, as near as may be, and any interference with or change in the water mains, or in the sewers or lamp posts, except such changes as may be made with the concurrence of the proper department or authority shall be avoided; and the use of the streets, ave- nues, places and lands designated by the commissioners and the right of way through the same for the purpose of a railway, as herein authorized, shall be considered and is hereby declared to be a public use, consistent with the uses for which the roads, streets, avenues and public places are publicly held. No siich corporation shall have the right to acquire the use or occupancy of public parks or squares in any such city or countj^, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construc- tion, and no such railway shall be constructed across the track of any steam railway now in actual operation at the grade thereof, nor shall any piers or supports for any ele- vated railway be erected upon a railway track now actually in use in any street or avenue; and no such corporation shall construct a street surface railroad to run in whole or in part upon the surface of any street or highway under the provisions of this article. The reference to section 8 of this law, in the first paragraph of the foregoing section, should have been to section 4. §130. Crossing of horse railroad track. — Whenever thf route selected by the commissioners for the construction of such railway shall intersect, cross or coincide Avith any Coinciding Route. 331 The Railroad Law, § 131. horse railway track occupying the surface of the street or avenues, such railway corporation is hereby authorized to remove, for the purpose of constructing its road, the tracks of such horse railway; but the same shall be done in such manner as to interfere as little as possible with their prac- tical operation or working, and upon the construction of such railway, where such removals or changes have been made, the same shall be restored as near as may be to the condition in which they were previous to the construction of such railroad. All such removals and restorations shall be made at the proper cost and charges of such corporation, but no authority is herein given to any such corporation to use the tracks of any horse railway. § 131. Where route coincides -with another route. — When- ever the route or routes determined upon by the commis- sioners coincide with the route or routes covered by the charter of an existing corporation, formed for the purpose of constructing and operating such a railway, and it has not forfeited its charter or failed to comply with the pro- visions thereof, requiring the construction of a road or roads within the time therein prescribed, such corporation shall have the like power to construct and operate such railway upon the fulfillment of the like requirements and conditions imposed by the commissioners as a corporation specially formed under this article, and the commissioners may fix and determine the route or routes by which any elevated steam railway now in actual operation may connect with other steam railways or the depots thereof, or with steam ferries, upon making compensation therefor, and in case such corporations can not agree with the owners of such steam railways, depots or ferries upon the amount of such compensation, and such owners may be entitled to com- pensation therefor, the amount of such compensation shall be ascertained and paid in the manner prescribed in the condemnation law, and upon fulfillment by such elevated railway corporation, so far as it relates to such connection, of the requirements and conditions imposed by this article^ it shall possess all the powers conferred by section 129 of this article, and when any connecting route or routes shall be so designated, such elevated railway corporation may construct such connection with all the rights and with like 332 CoMMISSIONEKS TO TRANSFER PlANS ; To FiLE RePOKT. The Railroad Law, §§ 132, 188. effect as though the same had been part of the original route of such railway. (Thus amended by L. 1892, ch. 676.) § 132. Commissioners to transfer plans, etc. — Within one month after such corporation shall have been formed and organized in the manner hereinbefore provided, the com- missioners shall transfer and deliver to the corporation all plans, specifications, drawings, maps, books and papers in their possession, and they shall, within the like period of one month after the organization of such corporation, cause to be paid to the treasurer thereof all money collected under the provisions of this article, after deducting therefrom the necessary expenses incurred by the commissioners and the amounts due to them for their salaries. § 133. Commissioners to file report; confirmation thereof. — The commissioners shall within one hundred and forty days after their appointment, make a report to a special term of the supreme court of the department in which such railway may be located, of the amount of the pecuniary damage arising from the diminution of value of each parcel of property bounded on that portion of the street or streets, highway or highways, upon which it is proposed to construct such railway or railways, which will be caused by the construction, maintenance and operation thereof. The name and place of residence of the owner or owners of each parcel shall be stated if the same are known, or can be ascertained, and if not known the name of the person or persons appearing by the certificate of the clerk or register of the county, to have the title thereto from the records in his office, and a specific description of each parcel of property with reasonable certainty. The testi- mony, if any, taken by the commissioners as to the amount of such damage, shall accompany their report. Within thirty days after filing and recording its certificate of incor- poration, the corporation authorized to construct and oper- ate such railway or railways shall move to confirm such report by giving notice of such motion to the property own- ers in the manner in which notice of the time and place of hearing before the commissioners is required by section 125 to be given, and if the corporation fails to so move, any Pat of Commissioneks ; Quorum ; Tkrm of Office. 333 The Railroad Law, §§ 134, 135. property owner may take the motion; and thereafter the proceedings shall be conducted in the manner prescribed in the condemnation law. Before constructing and operating its railway in front of any real property bounded upon any street, ayenue or public place wherein the corporation is authorized by the certificate and report of the commission- ers to construct and operate its road, such corporation shall pay to the owner of the real property the damages sustained, or which will be sustained by him in consequence thereof, as finally fixed and ascertained, and the costs allowed him, if any, and the court may direct that such damages be paid out of the moneys deposited pursuant to the provisions of section, 125, or in case negotiable securi- ties shall have been deposited in lieu of money, that so much of such securities shall be sold as may be necessary to raise the amount required to be paid to such owner for damages and costs if any. If a bond shall have been exe- cuted in lieu of such deposit, the court may order the sure- ties in such bond to pay the damages So fixed and ascer- tained, and in default thereof may cause them to be proceeded against and punished as for a contempt of court. (Thus amended by L. 1892, ch. 676.) §134. Pay of commissioners. — Each of the commissioners shall be paid for his services at the rate of ten dollars per day for each day of actual service as such commissioner, and all expenses necessarily incurred by him in the dis- charge of his duties, to be paid by such corporation, but if a sufficient amount of capital stock shall not be subscribed within one year after the appointment of such commission- ers to authorize the formation of such corporation, the com- missioners shall receive no salary, and shall cause to be returned to the subscribers for such stock the amounts paid in by them, after deducting therefrom the necessary expen- ses incurred by the commissioners, but 'the time, if any, unavoidably consumed by the pendency of legal proceedings shall not be deemed a part of any period of time limited by this article. § 135. Quorum ; term of office ; removal ; vacancies in board of commissioners. — A majority of the members of any board of commissioners appointed under this article shall 334 Change of Rocte, etc. The Railroad Law, § 136. be a quorum for tlie tr^saction of any business or the per- formance of any duty or ftinction, or the exercise of any power, conferred or enjoined upon them. Any commissioner may be removed for cause at any time by the power appoint- ing him, but no commissioner shall be removed without due notice and an opportunity to be heard in defense; and no commissioner thus removed is, or shall be eligible to be again appointed to the office of commissioner. In case of the death, resignation or removal from office of any commis- sioner the vacancy shall be filled by the power appointing him, within thirty days after such removal, or within thirty days after notice in writing to such appointing power given by some member of the board, or by the corporation hereinafter mentioned, of such death or resignation, and a certificate of every such appointment shall be filed as here- inbefore required. Except as otherwise provided by law, the terms of office of the commissioners shall determine and expire with the performance of their functions as herein above prescribed. §136. Abaudoumeut or change of route; neiv commis- sioners ; their powers and proceedings. — Any corporation heretofore organized or hereafter to be organized under this article, its successors or assigns, which shall have con- structed or put in operation a railway upon a pai-t and not ' upon the whole of the route fixed, determined and located for such railway by a board of commissioners, may at any time appjy for authority to abandon any portion of the route upon which the railway shall not have been thereto- fore constructed or shall not then be in operation, with or without a change and relocation of such portion, and with or without extension of the portion not abandoned, or of any part thereof. Such application shall be made by petition in writing, addressed by such corporation to the board of supervisors of the county in which such portion of the route so desired to be changed or abandoned shall be situated, which is not within the limits of any city, or if such route, or any part thereof, shall be within the limits of a city, to the mayor of the city, for the route or portion thereof within such city. Five commissioners may be appointed pursuant to such an application as hereinafter Change of Route, etc. 335 The Railroad Law, § 136. provided, who shall be residents of the county or city and who shall have full power as herein provided. When such application is made by a corporation heretofore organized such commissioners may be appointed within thirty days after presentation of the same by such board of supervisors, or, as the case may be, by such mayor. When such appli- cation i» made by a corporation hereafter tO' be organized under this article, such board of supervisors, or, as the case may be, such mayor, may within thirty days after presen- tation of such application, indorse thereon their or his approval and direction that it may be presented to the supreme court in the manner provided in section 120 of this article, and such court may thereupon appoint such com- missioners. Within ten days after his appointment ieach commissioner so appointed shall take, subscribe and file the oath and give and file the bond prescribed by section 121 of this article; and if any one so appointed -shall not comply with this requirement, he shall be deemed to have declined to accept such appointment, and to have made a vacancy which the appointing power shall fill by another appoint- ment as herin * provided. Within fifteen days after such appointments shall have been so made, the commissioners shall meet at some convenient place in such county and complete their organization as a board with appropriate ofi&cers. Such board shall have all the authority conferred by law upon commissioners appointed, or authorized to be appointed under this article. Before proceeding to hear the application of the corporation, the board shall give such public notice as it may deem most proper and effective of the time and place of the hearing. Within tliirty days after completing their organization such board shall hear the application of the corporation, and all parties who may be interested therein, and within sixty days after their organi- zation they shall determine whether any part of such route should be authorized to be abandoned, or should be changed and relocated with or without extension or extensions. If the board shall determine that no abandonment of any part of the route should be allowed, and that no change and relocation of any part thereof should be effected, and that.no extension should be made, the board shall * So in the original. 336 Change of Route, etc. The Railroad Law, § 136. dismiss the application. If the board shall determine that an abandonment of any portion of the route should be allowed, or that any change in or extension thereof should be made, the board shall proceed to authorize and require the same upon such conditions as to the board shall seem proper, and with or without extension of the remainder of the route or any part thereof, by fixing, determining and locating the route or routes of the exten- sion or extensions, if any, and by directing the abandon- ment of the part of the route theretofore located, but by the board allowed to be abandoned, and by fixing, deter- mining and relocating the part of the route theretofore located, but by the board changed, if any; and the board shall cause to be made in duplicate a survey and map of the route as so changed and fixed, determined and located. Neither such corporation nor any assign or successor thereof shall thereafter have any authority, by reason of any thing done under this article to operate or construct any railway upon any portion of the route by the board so required to be abandoned. The board shall also fix and determine the time within which the railway by it author- ized and required upon any portion of the route so changed, shall be reconstructed and ready for operation. If the rail- way on any portion of the route not by the board changed or allowed to be abandoned, shall not have been thereto- fore constructed and made ready for operation, the board may extend, and fix and determine anew the time within which such railway shall be completed, but such extension of time shall not be for a longer period than that originally allowed by law for the completion thereof. If the board shall have determined that any portion of the route there- tofore located should be allowed to be abandoned, with or without a change or relocation thereof or any part thereof, and with or without extension, or if the board shall have extended the time within which such railway shall be com- pleted, the board shall make a report in writing in accord- ance with the determination so made, describing the portion of the route, if any there be, as so fixed, determined and located anew, and the part, if any there be, of the route allowed to be abandoned, and stating the period of time, if any, by the board fixed and determined within which such Change of Route, etc. 337 The Railroad Law, § 136. corporation shall construct and complete the railway there- tofore authorized or by it authorized to be constructed, and prescribing that a failure by the corporation, its successors or assigns, to complete it within the time, if any so limited, shall worlj; a forfeiture to the supervisors of the county if no part of the road is within a city, or in any city, to such city, of the rights and franchises of such corporation with respect to that portion of the route so fixed, determined and located anew, and with respect to the then authorized extension or extensions, if any there be of said route, upon which a railway shall not be constructed within the time so limited; but the time, if any, unaYoidably consumed by the pendency of legal proceedings, shall not be deemed a part of any period of time limited in this article, and any recital of any forfeiture of any of the rights or franchises prescribed by any commissioners heretofore appointed, to be to the mayor, aldermen and commonalty of the city of New York, shall be as effectual for any and all purposes as if such for- feiture had been in terms recited to be to the board of supervisors of the county of New York. Such report shall be signed in duplicate by at least a majority of the then members of the board, and there shall be thereto annexed, the survey and map as hereinabove directed, showing the line and location of each and all the routes, with or without the extension or extensions, as fixed, determined and located, and showing also the parts or part, if any there shall be, of the route or routes as theretofore fixed, deter- mined and located, but by the board allowed to be aban- doned. Within ten days after signing such report the board shall cause the same to be filed in the office of the secretary of state, and the duplicate thereof in the office of the clerk of the county wherein such railway shall be located; and thereupon the corporation making such appli- cation, its successors or assigns, is and shall be authorized to construct, maintain and operate a steam railway for the transportation of passengers, mail and freight, upon the route or routes so fixed, determined and located, and in said report .described, but the construction or operation of a railway upon any new location or selection of route is not and shall not be thus authorized except upon the condition that the consent of the owners of one-half in value of the 22 338 Change of Route, etc The Railroad Law, § 136. property bounded on, and the consent also of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railway be first obtained, or in case the consent of such property owners can not be obtained, that the deter- mination of three -commissioners, to be upon application appointed by the general term of the supreme court, in the district in which such railroad is proposed to be con- structed, be given after a hearing of all parties interested that such railway ought to be constructed or operated, which determination, confirmed by the court, may be taken in lieu of the consent of the property owners. Such cor- poration is and the successors and assigns thereof shall be authorized to maintain and operate all the railroads and the appurtenances thereof by it or them theretofore con- structed upon any portion of a route or routes which shall have been located by commissioners under this article, and to complete within the time in and by such report so extended, fixed and determined anew, and thereafter to maintain and operate, the railway and the appurtenances, upon so much of the route or routes theretofore fixed, determined and located as shall not have been so authorized and required to be abandoned, and with the same rights and effect, in all respects, as if such extended period of time had been originally fixed and determined, and in the origi- nal certificate of incorporation of such corporation recited, for completing such railway and putting it in operation. The other terms and conditions in and by such certificate mentioned and prescribed, except as the same are herein- before modified,or may be modified by the board as herein- above authorized, shall apply to the railway herein author- ized to be constructed and operated upon the route or routes as so changed, fixed, determined and located, with the same force and effect as if such route or routes, as finally so changed and located, had been in and by such articles or certificates themselves prescribed. If a new location or extension of routes shall be fixed and determined by com- missioners who shall have been appointed by the court pur- suant to this section, they shall also ascertain and determine the aggregate pecuniary damages arising from the diminution of value of the property bounded on that Inceeased Deposit, When and How Requieed. 339 The Railroad Law, § 137. portion of the street or highway upon the line of such new location or extension and of each parcel of real property so bounded, and their proceedings thereupon shall be con- ducted in the same manner and upon the like notice as the proceedings for that pxu-pose before the commissioners specified in section 125 and shall make to the supreme court the report required by section 133, and thereupon the same proceedings shall be had as are provided for in such last named section. Each commissioner shall be paid for his services at the rate of ten dollars per day for each day of actual services as such commissioner, and all, reasonable expenses incurred by him in or about any of the matters referred to such board, to be paid by the corporation making the application so heard and determined. No corporation shall be authorized under this section to extend, abandon or change the location of its route, or any part thereof, where the greater portion of the route or routes Is or shall be in that portion of the city of New York south or west of Harlem river, or of any route or part thereof in the city of Brooklyn or county of Kings, or to construct, extend, aban- don or change the location of any railway or route for a railway over, under, through or across any street, avenues, place or lands south of One Hundred and Twenty-eighth street or west of Third avenue in that portion of the city of New York south or west of Harlem river, or where a rail- way might not by law be constructed, or was not by law authorized to be by a board of commissioners located on the 5th day of June, 1888. •* (Thus amended by L. 1892, ch. G76.) See L. 1891, ch. 294, post. § 137. Increased deposit, when and how required. — In case any of the securities deposited in lieu of money as provided in section one hundred and twenty-five, shall in the opinion of the county treasurer or trust company with whom they may be deposited, fall below their actual value at the time of deposit, the county treasurer or trust com- pany shall call upon such railway corporation to substitute therefor other securities equivalent at their par or market value to the amount in lieu of which the securities for which they are to be substituted were deposited, and in case such 340 Full Stop of Trains ; Gates ; Penalty, etc. The Railroad Law, §§ 138, 139, 140. other securities shall not be furnished, the county treasurer or trust company shall call upon such corporation to fur- nish as a, substitute, and it shall so furnish an amount of money equal to the amount in lieu of which the securities first above referred to were deposited. § 138. Trains to come to full stop, etc. — All trains upon elevated railroads shall come to a full stop before any passenger shall be permitted to leave such trains; and no train on such railroad shall be permitted to start until every passenger desiring to depart therefrom shall have left the train, provided such passenger has manifested his or her intention to so depart by moving toward or upon the platform of any car; nor until every passenger upon the platform or station at which such train has stopped, and desiring to board or enter such cars, shall have actually boarded or entered the same, but no person shall be per- mitted to enter or board any train after due notice from an authorized employe of such corporation that such train is full and that no more passengers can be then received. § 139. Gates. — Every car used for passengers upon elevated railroads shall have gates at the outer edges of its plat- forms, so constructed that they shaU, when opened, be caught and held open by such catch or spring as will pre- vent their swinging and obstructing passengers in their egress from or ingress to such cars; and every such gate shall be kept closed while the car is in motion; and when the car has stopped and a gate has been opened, the car shall not start until such gate is again firmly closed. § 140. Penalty for violation of this article. — Any elevated railroad corporation that shall fail or neglect to comply with or enforce the provisions of this article, shall, upon the petition of any citizen to any court of record, and upon due notice to such corporation, and proof of such failure or neglect, pay to the clerk of the court wherein such peti- tion was made, a sum not less than two hundred and fifty nor more than one thousand dollars, as such court may direct by its order. The sum so ordered to be paid shall be paid by such clerk of the court to the county treasurer, and shall' be distributed by such' treasurer equally among the public hospitals of the county in which the proceeding is had, at Sections to be Pbinted and Posted ; Extension of Time. 341 The Railroad Law, §§ 141, 142. such time, as the board of supervisors or board of aldermen in any such county shall direct. Nothing in this section shall relieve elevated railroad corporations from any liability under which they may now be held by eAisting laws for damages to persons or property. (Thus amended by L. 1892, ch. 676.) § 141. Sections to be printed and posted. — The ofBcers and board of directors of such railroad corporations shall cause copies of sections one hundred and thirty-eight, one hun- dred and thirty-nine and one hundred and forty to be printed conspicuously and posted in the depots or stations and in each car belonging to them. ' § 149. Extension of time. — The time within which any act is required to be done unde this article may be extended by the supreme court for good cause shown, for one year, and but one extension will be granted. Any company that has heretofore constructed or is now operating an elevated rail- road shall be deemed to have been duly incorporated not- withstanding any failure on the part of commissioners to insert in its articles of association provisions, complying with statutory requirements relative to suchl articles. (New section, added by L. 1892, ch. 676.) For explanation of interval in numbering between section 142, supra, and section 150, infra, see note on page 254. 342 Teem of Office of Railroad Commissioners. The Railroad Law, § 150. ARTICLE VI. The Board of Railroad Commissioners. Section 150. Appointment and term of office of railroad commissioners. 151. Suspension from office. 152. Secretary and marshal of board. 153. Additional officers; their duties. 154. Oath of office; eligibility of officers of board. 155. Principal officer and meetings of board. 156. Quorum of board. 157. General powers and duties of board. 158. Reports of railroad corporations. 159. Investigation of accidents. 160. Recommendations of board where law has been violated. 161. Recommendations of board when repairs or other changes are necessary. 162. Legal effect of recommendation and action of the board. 163. Corporation must furnish necessary information. 164. Attendance of witnesses and their fees. 165. Fees to be charged and collected by the board. 166. Annual report of board. 167. Certified copies of papers filed to be evidence. 168. Acts prohibited. 169 . Salaries and expenses of members and officers of the board. 170. Total annual expense to be borne by railroads. 171. Application of this article. 172. Improvements in appliances, prizes for. § 150. Appointment and term of office of railroad com- missioners. — There shall continue to be a board of railroad commissioners, consisting of three competent persons, one of whom shall be experienced in railroad business, appointed by the governor, by and with, the advice and consent of the senate, each of whom shall hold ofQce for the term of five years, and until his successor shall have been appointed and shall have qualified. A commissioner shall in like manner be appointed upon the expiration of the term of any commissioner; and when any vacancy shall occur iu the office of any commissioner, a commissioner shall in like manner be appointed for the residue of the term. If the senate shall not be in session when the vacancy occurs, the governor shall appoint a commissioner to fill the vacancy, subject to the approval of the senate when convened. Officers of Board. ' 343 The Railroad Law, §§ 151, 153, 153- § 151. Suspension from offlce.— Any commis-may, in its own name, make application to the general term of the supreme court in the judicial dis- trict in which such railway is to be constructed for the appointment of three commissioners to determine and report ' after due hearing whether such railway ought to be con- structed and operated. Two weeks' notice of such applica- tion shall be given by daily publication thereof, Sundays and holidays excepted, in six daily newspapers published i-n the city where such proposed railway is to be con- structed, if there be so many newspapers published in said city, and if not, then in all the daily newspapers published in said city. The newspapers in which said publication shall be made shall be designated by the general term of the supreme court to which such applica- tion is to be made on the application of the commissioners without notice. The said general term, upon due proof of the publication aforesaid, shall appoint three disinterested persons who shall act as commissioners, and such commis- sioners within ten days after their appointment shall cause public notice to be given in the manner directed by the said general term of their first sitting, and may adjourn from time to time until all their business is completed. Vacan- cies in such commission may be filled by said general term after such notice to persons interested as the general term may deem proper, and the evidence taken before as well as after such vacancy occurred shall be deemed to be prop- erly before such commissioners. The said commissioners shall determine after public hearing of all parties interested whether such railroad ought to be constructed and oper- ated and shall report the evidence taken to said general term, together with a report of their determination whether such road ought to be constructed and ope:pated, which report, if in favor of the construction and operation of such road, shall, when confirmed by said court, be taken in lieu of the consent of the property owners above mentioned. Silch report shall be made within sixty days after the appointment of said commissioners, unless the said court, or a judge thereof, shall extend such time. (Thne amended by L. 1895, ch. 519.) 360 Applicable only to New York City. The Rapid Transit Act, § 6. Flans and specifications; subways; supervision of local authorities; expenses payable by tbe company. §. 6. When the consents of thej local authorities and the property owners, or, in lieu thereof, the authorization of the said general term of the supreme court upon the report of commissioners, shall have been obtained, the board of ■ rapid transit railroad commissioners shall at once proceed to prepare detailed plans and specifications for the con- struction of such rapid transit railway or railways in accord- ance with the general plan of construction, including all devices and appurtenances deemed by it necessary to secure the greatest efficiency, public convenience and safety, including the number, location and descrip- tion of stations and plans and specifications for suit- able supports, turnouts, switches, sidings, connections, landing places, buildings, platforms, stairways, elevatoas, telegraph and signal devices, and other suitable appli- ances incidental and requisite to what the said board may approve as the best and most efficient system of rapid transit in view of the public needs and requirements, and the said board may in its discretion include in said plans, provisions for subways or tunnels for sewer, gas or water pipes, electric wires and other conductors proper to be placed under ground, whenever necessary so to do, in order to permit of the proper construction of any railway herein provided for in accordance with the plans and specifi- cations of the said board. Stations and station approaches may be under or over streets of the route or cross streets. The board may from time to time, alter such detailed plans and specifications, but always so that the same shall accord with the general plan of construction; but whenever a con- tract shall have been made for the construction of any rail- way herein provided for, no such alteration shall be made by the board without the consent of the contractor and his sureties, except as liberty shall have been reserved in such contract by said board for such alteration. Whenever the construction of any railway, depressed way, subway or tun- . nel under the provisions of this act shall interfere with, dis- turb or endanger any sewer, water pipe, gas pipe, or other duly authorized sub-surface structure, the work of construc- tion at such points shall be conducted in the city of New Applicable onLy to New Yobk City. ' , 361 The Rapid Transit Act, § 7. York in accordance with the reasonable requirements of the commissioner of public works, and in other cities in accord- ance with the reasonable requirements and under the super- vision of the officer or local authority having the care of, and the jurisdiction or control over, such sub-surface structures so interfered with, disturbed or endangered. All expenses incidental to such supervision and to the work of recon- structing, readjusting and supporting any such sewer, water pipe, or gas pipes, or other duly authorized sub-surface struc- ture, shall be borne and paid by the company which shall have acquired the right, privilege and franchise to construct, maintain and operate such railway, pursuant to a sale of the same at public auction, as hereinafter provided, if any such sale shall be made by said board. (Tlius amended by L. 1892, cli. 556; L. 1894, ch. 752, and L. 1895, ch. 519.) ^ Public sale of franchise; terms and conditions; forfeiture and resale thereunder; capitalizatioja of company; rate of fare; term of franchise. § 7. If, after having secured the necessary consents and after having prepared such detailed plans and specifications as are by this act provided for, it shall not have been deter- mined by vote of the people as provided by sections twelve and thirteen of chapter seven hundred and fifty-two of the laws of eighteen hundred and ninety-four that such railway or railways shall be constructed for and at the expense of such city as hereafter provided, said board shall sell at public auction in the city where said railway or railways are to be built and for the account and benefit of said city the right, privilege and franchise to construct, maintain and operate such railway or railways. IS^otice of the time and place of such sale shall be published three times a week for at least six successive weeks in at least three daily newspapers published in said city. The board may prescribe all such terms and condi- tions of sale as it may deem to be for the interest of the public and of the city in which the railway or railways^ are to be constructed. The advertisement of sale shall con- tain only so much of the said terms, plans and specifications for the construction as the said board may think proper, 362 ■ Applioable only to New Yoek Citv. The Rapid Transit Act, § 7. but such advertisement must state at what place the full terms, plans and specifications may be examined, and they shall be subject to examination under siich reasonable rules and regulations as the board may prescribe. The terms of sale shall provide for the construction of the railway or rail- ways under the supervision of the board, and for the appro- val of an engineer or engineers to be appointed, from time to time, by the board, and the corporation or corporations to be organized for the purpose of constructing and operat- ing such railway or railways as in this act provided shall pay such engineer or engineers such salary as may, from time to time, be fixed by the said board of rapid transit railroad commissioners. Such engineer or engineers shall hold their office at the pleasure of the said board. The terms of sale shall require the successful bidder to deposit with the comptroller or chief fiscal officer of the city, in cash or approved securities, such amount as the board may deem sufficient to constitute a guarantee of full compliance with the terms of sale by the purchaser and by the corporation to be formed for the purpose of building and operating said railway as hereinafter provided. Said bids and all rights which may have been acquired thereunder shall become null and void and of no efCect, at the option of said board, should there be a failure to organize a corporation to exer- cise such rights, privileges and franchises as required by said terms of sale and this act, or for any violation of any of the requirements of said terms of sale which should be complied with before such corporation is organized, and thereupon any deposit which may have been made pursuant to such terms of sale shall be paid into the treasury of such city upon a certificate being made and filed by said board with the public officer with whom such deposit shall have been made, that said bid, and all rights which have been acquired thereunder, have become null and void and of no effect; and said rights, privileges and franchises shall be again sold by said board, subject to all the provisions of this act regulating such sales. The terms of sale shall require the construction of the road to be begun' within a time to be specified in said terms of sale, and to be finished within a certain time thereafter, to be specified therein, and may prescribe the time within which portions of the same shall Appl,ica.ble only to New York City. 363 The Rapid Transit Act, § 7. be begun and finished. The said terms of sale may reserve to the board the power to extend the times for the com- mencement and completion of the construction of said rail- way, or of portions of the same, if, in its discretion, the said board deem such extension to be for the best interests of the city. In case the corporation formed for the purpose of constructing said railway shall fail to begin or finish the construction within the times for those purposes respec- tively limited, all rights, privileges and franchises of such corporations to maintain and operate said railway shall be forfeited, and upon such forfeiture being adjudged by the court in a suit brought for that purpose in the name of the mayor, aldermen and commonalty of the city of New York, or such other appropriate corporate title of said city or by said board of rapid transit railroad commissioners, then the said board shall have power to advertise and resell said rights, privileges and franchises and so piuch of the road as shall have been constructed by such corporation; such suit shall have preference over oil other cases in all courts; and the proceeds of such resale shall be applied first to the payment of the expenses of the resale, and then to the dis- charge of any liens which may have been created upon such property, and the balance shall be paid over to the said cor- pora.tion. The terms of sale must provide for the organiza- tion by the purchaser or purchasers of such rights, privi- leges and franchises of a corporation to exercise the same, and to construct, maintain and operate such rapid transit railway or railways, with the powers and subject to the duties and liabilities granted or imposed by this act. The said terms of sale must also specify the amount of the capi- tal of any such corporation, and numbei* of shares of capital stock which such corporation shall be authorized to issue, the percentage to be paid in cash by the subscribers on sub- scribing for such shares, the maximiim amount of the bonded indebtedness which such corporation be authorized to incur, and which may be secured by mortgage upon its prop- erty and franchises, and the rates of fares and freights which such corporation may charge and collect for the carriage of persons and property. But the rate of fare for any passenger on said railway from any point on the same northward or southward within the city of New York shall 864: Applicable only to New Yoek City. The Rapid Transit Act, § 8. not exceed five cents under any provision of this act. The said board may, if it considers that the public interest requires it to do so, reject all bids and readvertise the said rights, privileges and franchises for sale, with the same or different terms of sale, as often as it may deem necessary in the interest of such city, and shall finally accept that bid which, under all circumstances, in its opinion, is most advantageous to the public and such city; and no bid shall be accepted without the concurrent vote of six members of the board. The terms of sale on any such resale must con- tain all the provisions required by this act to be inserted in the original terms of sale. Such sale may be adjourned from time to time at the discretion of the board. All sales of such rights, privileges and franchises shall be made for a definite term of years, but the expiration of the term, if sold for a term of years, shall not impair any mortgage or other lien upon the property of such corporation or the rights of any creditor or creditors of such corporation; pro- vided, however, that nothing herein contained shall be so construed as to extend the term for which such rights, privileges and franchises are sold. (Thus amended by L. 1894, ch. 752, and L. 1895, ch. 519.) Besale of franchise after expiration of term; existing corporation may purchase, or new one may be formed. § 8. Within one year, and not less than six months, prior to the expiration for any term for which such rights, privi- leges and franchises shall have been sold, said board shall proceed to resell the right to maintiiin and operate the said railway. Such sale shall be made in the manner prescribed for the original sale, and the board is empowered to make suitable provisions for securing to the corporation then operating such railway or railways suitable compensation for the railroad structure and appurtenances, and for any other property, real or personal, which the said corporation may own or of which it may be vested at the expiration of the term for which such rights, privileges and franchises were sold. Any corporation theretofore organized under the provisions of this act may be a purchaser on such resale; but if no such corporation be the purchaser, a new corpora- tion shall be formed to maintain and operate said road in Applicable oitlt to New Yoek City. 365 The Rapid Transit Act, § 9. the manner prescribed for the organization of a corpora- tion on the original sale, except that the plans and specifi- cations according to which said- railway has been con- structed need not be set out at large, but may be referred to as forming part of the articles of association of said new corporation. OfS.ces of Tioard; engineers; attorneys and other assistants. § 9. The said board may rent such offices and employ such engineers, attorneys and other persons, from time to time, as it may, in its discretion, deem necessary to the proper performance by it of its duties as in this act prescribed. It may sue in the name and behalf of the city for which it acts as a board. It may in the name of and in behalf of the said city bring action of specific per- formance or may apply by mandamus to compel the perform- ance within its city by any corporation or person of any duty or obligation with reference to or arising out of the con- struction or operation of any railroad under, or by reason of, any grant made or right acquired under this act or the acts amendatory hereof or supplementary hereto, or out of or by reason of any contract mg,de or authorized by any board of rapid transit commissioners within its city, or it may in behalf of and in the name of said city bring actions to recover damages for any violation of contract or duty, or for any wrong committed by any such corporation or person by reason of ajay non-performance or violation of duty under the provisions of this act, or under any contract or stipulation made in pursuance of any provisions of this act. Every action or proceeding brought by the said board, and every action or proceeding in which an injunction is had or sought against the board or the said city, or against any corporation or person who or which shall have entered into a contract under the provisions of this act, or any act supplementary hereto, or amendatory hereof, by reason of any act or thing done, proposed or threatened under or by virtue of any provision of this act, or any act supplementary hereto, or amendatory hereof, or is sought against any cor- poration or person claiming or claiming to act under any grant or franchise under this act, or any act supplementary hereto, or amendatory hereof, and every action or proceed- 366 Applicable only to New York City. The Rapid Transit Act, § 10. ing in which the constitutionality of any part of this act, or of any act supplementary hereto, or amendatory hereof, shall or may be brought in question, shall have a preference above all causes not criminal on the calendar of every court, and may be brought on for trial or argument upon notice of eight days for any day of any term on which the court shall be in session. (Thus amended by L. 1892, ch. 556; L. 1894, ch. 752, and L. 1895, ch. 519.) Appropriations for board; audit and payment thereof; repayment of expenses; revenue bonds; compensation of commissioners. § 10. The board of estimate and apportionment or other board or public body on which is imposed the duty, and in which is vested the power, of making appropriations of public moneys for the purposes of the city government in any city in which it is proposed to construct such railway or railways shall, from time to time, on requisition duly made by the board of rapid transit railroad commissioners, appropriate such sum or sums of money as may be requisite and necessary to properly enable it to do and) perform, or cause to be done and performed, the duties herein pre- scribed, and to provide for the compensation of such com- missioners, and such appropriation shall be made forthwith upon presentation of a requisition from the board of rapid transit railroad commissioners, which shall state the pur- poses for which such moneys are required by the said board. In case the said board of estimate and apportionment or such other board or public body fail to appropriate such amount as the board of rapid transit railroad commis- sioners deem requisite and necessary, the said board of rapid transit railroad commissioners may apply to the gen- eral term of the supreme court, in the department in which the railway is to be or has been constructed, on notice to the board of estimate and apportionment, or such other board or public body aforesaid, to determine what amount shall be appropriated for the purposes required by this section, and the decision of said general term shall be final and conclusive; and no city shall be liable for any indebted- ness incurred by the said board of rapid transit railroad Applicable only to New York City. 367 The Rapid Transit Act, § 10. commissioners in excess of such appropriation or appro- priations. It shall be the duty of the auditor and comp- troller of any such city, after such appropriations shall have been duly made, to audit and pay the proper expenditures and compensation of said commissioners upon vouchers therefor, to be furnished by the said commissioners, which payments shall be made in like manner as payments are now made by the auditor, comptroller, or other public ofiScers, of claims against and demands upon such city; and for the purpose of providing funds with which to pay the said sums, the comptroller or other chief financial officer of said city is hereby authorized and directed to issue and sell revenue bonds of such city in anticipation of receipt of taxes, and out of the proceeds of such bonds to make the payments in this section required to be made. The amount necessary to pay the principal and interest of such bonds shall be included in the estimates of moneys necessary to be raised by taxation to carry on the business of said city, and shall be made a part of the tax levy for the year next follow- ing the year in which such appropriations are made. All expenses of the said board of rapid transit railroad commis- sioners, including the compensation of said commissioners, so incurred and paid by any city as in this section provided, and for which any city shall be liable, shall be repaid, with interest, by the bidder or bidders at the public sale of the rights, privileges and franchises, as in this act provided, in case said board shall so sell the same, whose bid shall be accepted by the board of rapid transit railroad commis- sioners, and the terms of such sale shall specify the time when such payment shall be made, as well as the amount thereof. The commissioners, other than the mayor and comptroller or other chief financial officer of such city, shall be paid a reasonable compensation for the duties performed by them from time to time, under the provisions of this act. The amount of such compensation shall be determined by the general term of the supreme court in the department in which said city shall be located upon application by said board after notice to the mayor of such city. (Thus amended by L. 1804, ch. 752.) 368 Applicable only to New York City. The Rapid Transit Act, § 11. Corporations, how organized; articles of association to be approved and filed; subscription books; subscribers' meeting'. § 11. A corporation or corporations to construct and ope- rate such rapid transit railway or railways, and to enjoy and exercise the rights, privileges and franchises in this act provided for shall be created and organized in the manner following: Articles of association shall be duly signed and acknowledged by not less than tAventy-five persons, and such articles shall set forth the name of the proposed cor- poration and duration thereof. Said articles must also state that they are made and filed under and in pursuance of this act for the purpose of taking and exercising the rights, privileges and franchises so purchased as aforesaid, according to the terms of sale; and such terms of sale and all plans and specifications must be made a part of said articles, annexed thereto and filed therewith. The said articles must also contain such other provisions as the said board may deem requisite and necessary, not inconsistent with the terms of sale or with this act. The said articles must be approved by said board, by the concurrent vote of four members, and its approval must be indorsed thereon and attested by the seal of the board and the signature of its presiding officer, and must then be filed in the office of the secretary of state, and a duly certified copy, or a dupli- cate thereof, must be filed in the office of the clerk of the Cf)unty in which such railway or railways are to be con- structed. Immediately after the articles of association shall have been so made, approved and filed, the board of rapid transit railroad commissioners shall cause books of subscription to the capital stock of any such corporation to be opened, and shall give public notice of the opening of such books and of the time and place at which subscriptions will be received; and when the full amount of such capital stock shall have been subscribed by not less than fifty per- sons, and such percentage of the amount subscribed as may have been fixed by the board in the terms of sale shall have been paid in, in cash, to such bank or trust company as the board may select, the said board shall call a meeting of the subscribers for the purpose of organizing the corporation, serving upon or mailing to each subscriber a notice of such Applicable only to New York City. 369 The Rapid Transit Act, § 12. meeting at least ten days before the time appointed for holding the same; and the person or persons whose hid shall have been accepted by the said board of rapid transit rail- road commissioners shall, if they elect to become subscrib- ers to the capital stock of such corporation, be entitled to a preference for themselves and their associates in subscrib- ing for, and in the allotment of the shares of capital stock of suqh corporation. Election of first directors; Tay-laws. § 12. At such meeting of subscribers thirteen directors of the corporation shall be elected, each of whom shall be a holder in his own right of at least one hundred shares of the capital stock of the corporation, and the board of rapid transit railroad commissioners shall appoint the inspectors of the first election. Each share of stock shall entitle the holder to one vote for each director. The directors so elected shall hold office for one year and until others are elected in their places. At such meeting by-laws must be adopted not inconsistent with this act, which by-laws shall, among other things, provide for : 1. The term of office of the directors elected at any subse- quent meeting of stockholders, which term shall not exceed one year. 2. The manner of filling any vacancy which may occur in any office or in the board of directors. 3. The time and place of the annual meeting of stock- holders. 4. The manner of calling and holding special meetings of stockholders. 5. The number of stockholders who shall attend either in person or by proxy, at any stockholders' meeting in order to constitute a quorum. 6. The officers of the corporation, the manner of their election by the directors, and their duties and powers, and among which officers there shall be included a president, a secretary and a treasurer. 7. The manner of electing or appointing inspectors of election. 8. The manner of amending the by-laws. The by-laws may also provide for the forfeiture of shares 24 370 Applicable only to New Yobk City. The Rapid Transit Act, § 13, 14. for the non-payment of calls and for such other matters as may be deemed proper by the board of rapid transit railroad commissioners and they must be approved by a resolution of said board. Becord of proceedings; certificate of organization; filing thereof. § 13. Within ten days after the said subscribers' meeting a record of the proceedings thereof, containing a copy of the subscription list, a copy of the by-laws adopted, and the names of the direfctors chosen, shall be prepared and' duly certified by the person presiding over, and person acting as secretary of said meeting. There shall be attached thereto a certificate of the board of rapid transit railroad commis- sioners, attested by its seal and the signature of its presid- ing officer, that said board has approved the by-laws adopted at the subscribers' meeting, and that said corpo- ration has been organized in accordance with the provisions of this act. The said record and certificate shall be filed by said board in the office of the secretary of state, and a duly certified copy or duplicate thereof shall be filed in the office of the clerk of the county in which said railway or railways are to be built, and thereupon and upon the pay- ment to the state treasurer of a tax of one-eighth of one per centum of the par value of the capital stock of said corpo- ration, such corporation shall be deemed to be fully organ- ized. A copy of said certificate, duly certified by the secre- tary of state, or by the county clerk in whose office it is filed, shall be presumptive evidence of the due organization of such corporation in all courts and proceedings. Upon the production of the certified copy of said certificate, and upon the order of such corporation, the bank or trust company in which the percentage of subscriptions to the capital stock shall have been deposited, shall pay over to any such corpo- ration the amount of such deposit, and said corporation shall repay to the purchaser or purchasers at the sale pro- vided for in section seven of this act, the expenses paid by him or them to the city pursuant to the provisions of the terms of sale, with interest to the date of such repayment. Modification of plans; certificate thereof, filing of such certificate. § 14. The said board of rapid transit railroad commis- Applicable only to New York City. 371 The Rapid Transit Act, § 15. sioners, if, in their judgment, the public interest requires, may, at any time, after the full organization of any such corporation, by the concurrent vote of four members, authorize such corporation to alter or add to the detailed plans and specifications contained in its articles of associa- tion, provided the plans and specifications as so modified, do not change the route or routes of said railway, and be not inconsistent with the general plan of construction, adopted under the provisions of section four of this act, and provided also such modifications be first approved by a vote of two-thirds of the directors of said corporation present and voting at any special meeting duly called for the pur- pose, by written notice stating the nature of the business to be transacted at said meeting. When such authorization by the board of rapid transit railroad commissioners shall have been given, a certificate shall be prepared, and acknowledged by the president and a majority of the direc- tors of said corporation, stating the nature of the modifica- tion, and that the same has been approved by the board of directors in the manner above set forth, to which certificate there shall be attached a copy of so much of the original plans and specifications as are to be affected by the modifi- cation, and also the plans and specifications as modified. There shall also be contained in such certificate a, declara- tion of the approval of said board of rapid transit railroad commissioners, attested in the same manner as the certifi- cate of full organization. The said certificate, plans and specifications shall then be filed in the office of the secretary of state, and a certified copy or duplicate thereof shall be filed in the office of the clerk in which the articles of asso- ciation are filed. And thereupon said corporation shall be authorized to construct its railway or railways aud appurte- nances in accordance with such modified plans and specifications. Principal ofELce; taxation and exemption therefrom during construc- tion. § 15. Every corporation organized under this act shall have its principal office and be taxed on its property in the city where its railway or railways are situated. But no taxes of any kind or nature shall be levied or imposed upon 372 Applicable only to New York City. The Rapid Transit Act, §§ 16, 17, 18. that portion of any railway constructed und,er this act which is in process of construction, and not in actual operation for the transportation of passengers or freight, but this exemption from taxation during construction shall not apply to any portion or portions of said railway after the date on which said portion or portions shall have been opened to the public for the transportation of passengers or freight. (Thus amended by L. 1892, ch. 556.) Directors, election of; vacancies, qualifications; exhibition of books. § 16. The affairs of said corporation shall be managed by a board of thirteen directors, who shall be chosen annually, by a majority of the votes of the stockholders vot- ing at such election, in such manner as may be prescribed in the by-laws of the corporation, and they may and shall continue to be directors until others are elected in their places. In the election of directors, each stockholder shall be entitled to one vote for each share of stock held by him. Vacancies in the board of directors shall be filled in such manner as shall be prescribed by the by-laws of the corpora- tion. No person shall be a director unless he shall be a stockholder owning one hundred shares of stock absolutely in his own right, and qualified to vote for directors at the election at which he shall be chosen. At every election of directors the books and papers of such corporation shall be exhibited to the meeting, provided a majority of the stock- holders present shall require it. Payments for stock. § 17. The directors shall require the subscribers to the capital stock of the company to pay the amount by them respectively subscribed in money at such times and in such installments as they may deem proper, not inconsistent with the by-laws and the articles of association. Iiiability of stockholders; notice. § 18. Each stockholder of any corporation formed under this act shall be individually liable to the creditors of such corporation, to an amount equal to the amount unpaid on the stock held by him, for all the debts and liabilities of Applicable only to JSTew Yoek Citv. ■ 373 The Rapid Transit Act, §§ 19, 30. such corporation, until the whole amount of the capital stock so held by him shall have been paid to the corpora- tion; and all the stockholders of any such corporation shall be jointly and severally liable for the debts due or owing to any of its laborers and servants, other than contractors, for personal services, for thirty days' service performed for such corporation, but shall not be liable to an action there- for before an execution or executions shall be returned unsatisfied in whole or in part against the corporation, and the amount due on such execution or executions shall be fhe amount recoverable, with costs, against such stock- holders; before such laborer or servant shall charge such stockholder for such thirty days' service, he shall give him notice in writing within twenty days after the performance of such service, that he intends so to hold him liable, and he shall commence such action therefor within thirty days after the return of such execution unsatisfied, as above men- tioned; 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 stock- holders in said corporation, in ratable proportion to the amount of the stock they shall respectively hold. Transfer of stock. § 19. The stock of every corporation formed under this act shall be deemed personal estate, and shall be transfer- able in the manner prescribed by the by-laws of the com- pany, but no share shall be transferable until all previous calls thereon shall have been fully paid in. Capital stock, increase or reduction of; statement to be made and filed. § 20. Any corporation formed under this act may increase or reduce its capital stock from time to time upon obtaining the approval of the board of rapid transit railroad commis- sioners by a concurrent vote of four members thereof. Such increase or reduction must be approved by a vote in person, or by proxy, of two-thirds in amount of all the stockholders of the corporation, at a meeting of such stockholders called by the directors of the corporation for that purpose, by a notice in writing to each stockholder, to be served on him in the manner provided for service of the notice of the sub- 374 Applicable only to New Toek City. The Rapid Transit Act, §§ 21, 22. scribers' meetings provided for in section eleven of this act. Such notice shall state the time and place of the meeting, and its object, and the amount to which it is proposed to increase or reduce the capital stock. A statement of the increase or reduction shall be signed by the president and a majority of the directors, and shall be filed in the office of the secretary of state and of the clerk of the county in which the original articles of association are filed. There must be attached thereto a certificate of the approval of said board of rapid transit railroad commissioners attested in the same manner as the certificate of full organization. Xiiability of holders of stock in a representative capacity. § 21. No person holding stock in any such corporation, as executor, administrator, guardian or trustee, and no per- son holding such stock as collateral security, shall be per- sonally subject to any liability as a stockholder of such cor- poration; but the person pledging such stock shall be con- sidered as holding the same, and shall be liable as a stock- holder accordingly; and the estate and funds in the hands of such executor, administrator, guardian or trustee shall be liable in like manner, and to the same extent, as the tes- tator or intestate or the ward or person interested in such trust fund would have been if he had been living and com- petent to act, and held the same stock in his own name. Xiiability of corporation to employes of contractors; notice required to create such liability. § 22. As often as any contractor for the construction of any part of a raUway, which is in progress of construction under the provisions of this act, shall be indebted to any laborer for thirty or any less number of days' labor per- formed in constructing said road, such laborer may give notice of such indebtedness to said corporation in the man- ner herein provided; and said corporation shall thereupon become liable to pay such laborer the amount so due him for such labor, and an action may be maintained against said corporation therefor. Such notice shall be given by said laborer to said corporation within twenty days after the performance of the number of days' labor for which the claim is made. Such notice shall be in writing, and shall Appltoable only to New York City. 375 The Rapid Transit Act, §§ 33, 24. state the amount and number of clays' labor, and the time when the same was performed and the name of the con- tractor from whom due, and shall be signed by such laborer or his attorney, and shall be served on an engineer, agent or superintendent employed by such corporation having charge of the section of the road on which such labor was performed personally, or by leaving the same at the office or usual place of business of such engineer, agent or super- intendent with some person of suitable age. But no action shall be maintained against any corporation under the pro- visions of this section, unless the same be commenced within thirty days after notice is given to such company by such laborer as above provided. Beal estate necessary for such, corporation; bo'w acquired. § 23. Every such corporation shall have the right to acquire and hold such real estate or easement or other interest therein, or rights appertaining thereto, as may be necessary to enable it to construct, maintain and operate the said railway, or railways, and such as may be necessary for stations, depots, engine-house, car-houses, machine- shops, and other appurtenances specified in the articles of association; and in case any such corporation can not agree with the owner or owners of such property it shall have the right to acquire title to the same in pursuance of the terms of and in the manner prescribed in title one of chapter twenty-three of the Code of Civil Procedure, known as the condemnation law. See the Railroad Law, section 4, subd. 2, page 313, and the Condemnation Law, post. Powers; intersections with other railways; entry upon streets; con- struction and maintenance; excavations; parks and streets; may borrow money and issue bonds. § 24. Every corporation formed under this act shall have power : 1. To take and hold such voluntary grants of real estate and other property as shall be made to it, to aid in the con- struction, maintenance and accommodation of its railway or railways, but the real estate received by voluntary grant shall be held and used for the purposes of such grant only. 2. To purchase, lease, hold and use all such real estate and other property as may be necessary for the construction 376 Applicable only to New Yoke City. The Rapid Transit Act, § 24. and maintenance of its railway or railways, and the stations or other accommodations necessary to accomplish the objects of its incorporation; but nothing herein contained shall be held as repealing or in any way affecting the act, entitled "An act authorizing the construction of railroads upon Indian lands," passed May twelve, eighteen hundred and thirty-six. 3. To cross, intersect, join and unite its railway or rail- ways with any other railway at any point on its route and upon the grounds of such other railway company, with the necessary turnouts, sidings and switches and other con- viences in furtherance of the objects of its connections. And every corporation whose railway is or shall be here- after intersected by any new railway, shall unite with the owners of such new railway in forming such intersections and connections, and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of com- pensation to be made therefor, the same shall be ascertained and determined by commissioners to be appointed by the court, in the manner provided in this act in respect to acquiring title to real estate. And if the two corporations cannot agree upon the points and manner of such crossings and connections, the board of rapid transit railroad com- missioners shall determine the same on the application of either corporation. 4. To take and convey persons and property on its railway or railways by the power or force of steam, or by any motor other than animal power, and to receive compensation therefor not inconsistent with the provisions of this act, and the terms of sale under which the said corporation shall have acquired its rights, privileges and franchises. 5. To enter upon and underneath the several streets, ave- nues, public places and lands designated by the said board of rapid transit railroad commissioners, and enter into and upon the soil of the same; to construct, maintain, operate and use, in accordance with the plan adopted by said board, a railway or railways upon the route or routes and to the points decided upon, and to secure the necessary founda- tions and erect the columns, piers and other structures which may be required to secure safety and stability in the Applicable only to New Yoek City. 377 The Rapid Transit Act, § 35. construction and maintenance of the railways constructed upon the plan adopted by the said board, and which may be necessary for operating the same, except that nothing in this act shall authorize the construction of a railway cross- ing the track of any steam railway in actual operation at the grade thereof, and it shall be lawful to make such exca- vations and openings along the route through which such railway or railways shall be constructed as shall be neces- sary from time to time; in all cases the surface of said streets around such foundations, piers and columns shall be restored to the condition in which they were before such excavations werd made, as hear as may be, and under the direction -of the proper local authorities; and in all cases the use of the streets, avenues, places and lands designated by the said board, and the right of way through the same, for the purpose of a railway or railways, as herein author- ized and provided, shall be considered, and is hereby declared, to be a public use, consistent with the uses for which the roads, streets, avenues and public places are pub- licly held; but no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such cor- porations to facilitate such construction. 6. From time to time to borrow such sums of money as may be necessary for completing and finishing or operating their railroad, and to issue and) dispose of their bonds for such purposes; but the amount of such bonds outstanding at any one time shall not exceed the amount limited by the articles of association. (TliTis amended by L. 1892, cb. 556.) L. 1836, ch. 316, referred to in subd 2, of the foregoing section, was repealed by L. 1890, ch. 565, and L. 1892, ch. 687. See the similar pro- visions in the Railroad Law, sections 4, 9 and 129. Employes to wear badges. § 25. Every conductor, baggage master, engineer, brake- man or other servant of any railroad corporation employed 378 Applicable only to New Yoek City. The Rapid Transit Act, §§ 36, 27. in a passenger train, or at stations for passengers, shall wear upon his hat or cap a badge, which shall indicate hia office, and the initial letter of the style of the corporation by which he is employed. No conductor or collector, with- out such a badge, shall be entitled to demand or receive from any passenger any fare or ticket, or to exercise any of the powers of his office; and no officer or servant without such badge shall have authority to meddle or interfere with any passenger, his baggage or property. Carrying of mails; extra trains therefor. § 26. Any corporation or person operating a railroad under any provision of this act or of any act supplementary hereto or amendatory hereof shall, when applied to by the postmaster-general, convey the mails of the United States on their road or roads respectively; and in case the parties can not agree as to the rate of transportation therefor, and as to the time, rate of speed, manner and conditions of car- rying the same, it shall be lawful for the governor of this state to appoint three commissioners, who, or a majority of them, after fifteen days' notice in writing of the time and place of meeting to the corporation, shall determine and fix the prices, terms and conditions aforesaid; but such price shall not be less for carrying said mails in the regular passenger trains than the amount which such corporation would receive as freight on a like weight of merchandise transported in their merchandise trains, and a fair com- pensation for the post-office car. And in case the post- master-general shall require the mail to be carried at other hours, or at a higher speed than the passenger trains are run, the corporation shall furnish an extra train for the mail and be allowed an extra compensation for the expen- ses and wear and tear thereof, and for the service to be fixed as aforesaid. (Thus amended by L. 1895, ch. 519.) Ejection of passenger refusing to pay fare. § 27. If any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage out of the Applicable only to New Toek City. 379 The Rapid Transit Act, §§ 28, 29, 30. cars,* using no unnecessary force, at any usual stopping place, on stopping the train. Accommodations for the conveyaiice of freight and passengers. § 28. Every such corporation shall start and run its cars for the transportation of passengers and property at regular times, to be fixed by public notice; and shall furnish suffi- cient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting and the junction of other railroads, and at usual stopping places established for receiving and discharging way passengers and freight for that train; and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of the freight or fare legally authorized therefor; and shall be liable to the party aggrieved in an action for damages, for any neg- lect or refusal in the premises. Intoxication of employes. § 29. If any person shall, while in charge of a locomotive engine running upon the railway of any such corporation, or while acting as the conductor of a car or train of cars on any such railroad, be intoxicated, he shall be deemed guilty of a misdemeanor. Willful injury to property. § 30. If any person or persons shall willfully do, or cause to be done, any act or acts whatever, whereby any building, construction or work of or on any part of any rail- road either constructed or operated under any provision of this act or of any act supplementary hereto or amendatory hereof, or under any provision of any contract made under this act or any act supplementary hereto or amendatory hereof, or any engine, machine or structure, or any matter or thing appertaining to the same, shall be stopped, obstructed, impaired, weakened, injured or destroyed, the person or persons so offending shall be guilty of a misde- meanor, and shall forfeit and pay to the owner of such building, construction, works, engine, machine, structure, matter or thing treble the amount of damages sustained in consequence of such offense. (Thus amended by L. 1895, eh. 519.) 380 Applicable only to New Yoek City. The Kapid Transit Act, §§31, 32. Dissolution by legislature. § 31. The legislature may, at any time, annul or dissolve any corporation formed under this act; but such dissolu- tion shall not take away or impair any remedy given against any such corporation, its stockholders or officers, for any liability which shall have been previously incurred. Extension of route; terminal and other facilities; plans; compensa- tion; consents, h.ow obtained. § 32. The said board of rapid transit railroad commission- ers may also from time to time, upon application of any railway corporation owning or actually operating a railroad wholly or in part within the limits of the city in which the said board has power to act, if in the judgment of said board the public interests so demand, by the concurrent vote of six of the members of said board, fix and determine the route or routes by which any such railway company may connect with other steam railways, or the stations thereof, or with steam ferries, or may extend its lines within said city, and may authorize any such railway company to lay an addi- tional track or tracks on, above, under or contiguous to a portion or the whole of the route or routes of its railway or railways within said city and to acquire terminal or other facilities necessary for the accommodation of the traveling public on any street oi* place except the place now known as Battery park on which said railway shall be located; and may also authorize any such railway company to lay its tracks and operate its railway to any terminal or ter- minals within the said city, and to transport over the same passengers or freight, or both, and to run over the same either passenger trains or freight trains or mixed trains; and the said board shall fix and determine the locations and plans of construction of the railways upon such route or routes and of such tracks and facilities, the times within which they shall be respectively constructed, the compensa- tion to be made therefor to the city by said railway company, and such other terms, conditions and requirements as to the said board may appear just and proper, provided, how- ever, that every such determination,' authorization and license shall be made upon the condition that such corpora- tion shall, from the time of the commencement of the opera- Applicable only to New York City. 381 The Rapid Transit Act, § 33. tion of any such railway or track or tracks under such determination, authorization or license, annually pay to the said city a sum or rental, and that the amount of such sum or rental for a period of not more than thirty-five years, beginning with such operation of any such railway track or tracks, shall be prescribed by the said board in such determina,tion, authorization or license, and that every such determination, authorization and license shall provide for the readjustment of the amount of such sum or rental at the expiration of the period for which the same shall be so prescribed and for readjustment from time to time in the future of the amount of such annual payment at inter- vals each of not more than thirty-five years. A certificate shall be prepared by the said board, attested by its seal and the signature of its presiding officer, setting forth in detail the action taken by the said board with respect to such connecting or extended route or routes and such tracks and facilities, and the terms, conditions and requirements afore- said, including provisions as to the said annual payments and the future readjustments thereof. A like certificate shall be prepared in like manner upon every modification of the terms of the contract as hereinafter provided. Each such certificate shall prescribe the terms and conditions of the readjustments of such annual payments and may provide for the determination of such amount upon such readjust- ments by arbitration or by the supreme court. Such cer- tificate shall be delivered to said railway corporation upon the receipt by said board of a written acceptance of said terms, conditions and requirements, duly executed by said railway corporation, so as to entitle it to be recorded. The said certificates shall be filed in the office of the secretary of state, and a duly certified copy thereof shall be filed in the office of the clerk of the county in which the said city is situated, and thereupon, and upon fulfillment by such rail- way corporation, so far as it relates to such connections, additional track or tracks, or facilities, of such of the requirements and conditions as are necessary to be' fulfilled in such cases, under section eighteen of article three of the constitution of this State, and upon fulfillment by such railway corporation of such other terms, conditions and requirements enumerated in said Certificate, as the said 382 Applicable only to New Yoek City. The Rapid Transit Act, § 33. board may require to be fulfilled as a condition precedent to commencing said work, said railway company shall in such cases possess in addition to existing franchises all the powers conferred by this act upon corporations specially formed thereunder, with respect to its railways authorized to be constructed as aforesaid, and when any route or routes, additional track or tracks, or terminal or other facili- ties, shall be so fixed and determined, and a certificate as aforesaid shall have been duly filed, such railway company may construct the same with all the rights, and with like effect as though the same had been a part of the original route of its railway then in actual operation. The cer- tificate or certificates prepared by the board of rapid transit railroad commissioners as aforesaid when delivered to and accepted by such railway corporation, shall be deemed to constitute a contract between the said city and said rail- way company according to the terms of the said certificate; and such contract shall be enforceable by the said board acting in the name of and in behalf of the said city or by the said company according to the terms thereof, but sub- ject to the provisions of this act. The terms of such con- tract may from time to time, with the consent of such com- pany, be modified by the board of rapid transit railroad commissioners by the vote of six of its members. But the construction and operation of such connections, extensions, additional track or tracks, or facilities, are hereby author- ized only upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon, above or under which it is proposed to construct or operate the same, be first obtained, or in case the consent of such property-owners cannot be obtained, the general term of the supreme court in the district in which they are proposed to be constructed, may, upon application, in the same manner and on the same notice specified in section five of this act, appoint three commissioners, who shall determine after a hearing of all parties interested, whether the same ought to be con- structed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property-owner. (Thus amended by Xj. 1895, ch. 519.) Applicable only to New York City. 383 The Rapid Transit Act, §§ a3. Kemoval and restoration of tracks of other railways; compensation for damages caused thereby. § 38. Wherever or whenever the route selected by the said board of rapid transit railroad commissioners for the construction of such railway shall intersect, cross or coin- cide with any railway track or tracks occupying the sur- face of any street or avenues, or the construction or opera- tion of said railway shall interfere with any pipe's, sewers, subways, or underground conduits or ways, any corporation organized under this act, or any contractor or person con- structing any railway or part of a railway under any con- tract made with the board of rapid transit railroad com- missioners, is hereby authorized, for the purpose of con- structing the said work, to remove the track or tracks of any such surface railway or railways, or any such pipes, sewers, subways, or underground conduits or ways, but the same shall be done in such manner as to interfere as little as possible with the practical operation or workings of such surface railway or railways, or the works or business of the owners of any such pipes, sewers, subways, or under- ground conduits or ways, and upon the construction of such railway built under and in conformity with the provisions of this act, where such removals or changes have been made, said track or tracks, pipes, sewers, subways or underground conduits or ways shall be restored, as nearly as may be, to the condition in which they were previous to the con- struction of any such railway built under the provisions of this act, and any damages, which such company or com- panies or owners may sustain, shall be ascertained by a commission to be appointed the same as in the case where lands are taken for the purpose of a railway route or routes as hereinbefore provided in this act. For the purpose of the construction or operation of any railway under the pro- visions of this act, the board of rapid transit railroad com- missioners may remove or cause to be removed, any pipes, sewers, subways or underground conduits or ways under- neath any street, highway, park, or public place, provided, however, that the same shall be replaced as soon as prac- ticable, either in the same position as before or in a secure and convenient position underneath such street, highway, or public place. All such removals and restorations shall be made at the proper cost and charge of such corporation. 384 Applicable only to New Yoek City. The Bapid Transit Act, § 34. contractor, or person as may have made such removals, but subject to the provisions of its, his, or their contract, if any, with the board of rapid transit railroad commissioners. Nothing contained in this act shall authorize any corpora- tion formed thereunder to use the tracks of any horse rail- way. For the purpose of facilitating construction, and to diminish the period of occupancy of any street for the trans- portation of material, any contractor acting under a con- tract made in pursuance of this act, of of any act supple- mentary hereto or amendatory hereof, may, with the approval of the board of rapid transit railroad commission- ers lay upon or over the surface of any street, temporary tramways, to be used only for the removal of excavated materials or the transportation of material for use in the construction. — Provided, however, that any such tramway shall be forthwith removed upon the direction of the board of rapid transit railroad commissioners; and provided fur- ther, that this provision shall not be construed to authorize the construction or operation of any street railroad, or to grant to any corporation, association or individual the right to lay down railroad tracks. (Thus amended' by L. 1895, ch. 519.) Construction of railway at expense of city; determination by vote of people; contract's for construction, maintenance and operation of road; rate of fare; rental for lease of road. § 34. In case the people shall determine by vote, as provided in sections twelve and thirteen of chapter seven hundred and fifty-two of the laws of eighteen hundred and ninety-four, that any such railway or railways shall be con- structed for and at the expense of such city, then and in that event it shall be the duty of saidboard to consider the routes, plans and specifications if any, previously laid out and adopted by them or their predecessors, and for which the con- sents have been obtained referred to in section five of this act; and either to proceed with the construction of such railway or railways, and provide for the operation of the same, as hereinafter provided, or to change and modify the said routes, plans or specifications in such particulars as to said board; may seem to be desirable, or to adopt other or different routes, plans and specifications for such rail- Applicable only to New York City. 385 The Rapid Transit Act, § 34. way or railways, provided, always that in all cases in which any such change or modification shall be of such a char- acter as to require the consents thereto referred to in section five of this act, and in all cases where other or different routes or general plans may havje been so adopted the said board shall proceed to seciire the consents required to be obtained by section five of this act as therein set forth. As soon as such consents, where necessary, shall have been obtained, and the detailed plans and specifications have been pre- pared as provided in section six of this act, the said board, for and in behalf of said city, shall enter into a contract with any person, firm or corporation, which in the opinion of said board shall be best qualified" to fulfill and carry out said contract, for the construction of such road or roads, upon the routes and in accordance with the plans and speci- cations so adopted, for such sum or sums of money, to be raised and paid out of the treasury of said city, as herein- after provided, and ou such terms and conditions, not incon- sistent with the aforesaid plans and specifications, as said board shall determine to be best for the public interests. And said board may contract for the construction of the whole road, or all the roads provided for by the aforesaid plans in a single contract, or may by separate contracts, executed from time to time, provide for the construction of parts of said road or roads, or for the construction at first of two or more tracks over a part or parts of such road or roads, and afterwards of one or more additional tracks over a part or parts of such road or roads, as the necessities of said city and the increase of its population may in the judgment of said board require. The board may also in a contract for a part of such a road insert a provision that at a future time upon the requirement of the board the contractor shall construct the remainder or any part of the remainder of said road, as the growth of population or the interests of the city may in the judgment of the board require, and may in such contract insert a provision of a method for fixing and ascertaining at such future time the amount to be paid to the contractor for such additional construction, and to the end of such ascertainment may provide for arbitration or for determination by a court of 25 386 Applicable only to New Yoke City. The Rapid Transit Act, § 34. the amount of such compensation, or of any other details of construction which shall not be prescribed in the con- tract, but which shall be deemed necessary or convenient by said board. Any such contract may provide, if the pub- lic interest shall, in the opinion of the board, justify the provision, that the construction of any section or portion of the road may, with the consent of the board, be suspended during the term of operation of the railroad as hereinafter mentioned, or any part of such term, provided, that during such term or part of term the contractor shall use in lieu of such portion of the road a railroad owned or leased by the contractor or a portion or section thereof,^ which shall, with the railroad or portion of railroad constr)icted by it under its contract with the board, form a continuous and con- venient route. Such contract shall also prpvide that the per- son, firm or corporation so contracting to construct said road or roads shall, at Lis or its own cost and expense, equip, main- tain and operate said road or roads for a term of years to be specified in said contract, not less than thirty-five, nor more than fifty years, and upon such terms and conditions as to the rates of fare to be charged and the character of service to be furnished and otherwise as said board shall deem to be best suited to the public interests, and subject to such public supervision and to such conditions, regulations and requirements as may be determined upon by said board, pro- vided, that in case the contract shall provide for construc- tion at different times or at intervals of time of different parts of a road, or if the contract shall provide for the use by the contractor of an existing railroad as part of a con- tinuous route as aforesaid, then and in any such case the board of rapid transit railroad commissioners may in its discretion prescribe periods for the operation of the differ- ent parts of said road so that at one period of time in the future the board may be enabled to make a single operating contract or lease of the entire road. Such contract shall further provide by proper stipulations and covenants on the part of the said city, that the said city shall secure and assure to the contractor, so long as the contractor shall per- form the stipulations of the contract, the right to construct and to operate the road as prescribed in the contract, free of all right, claim or other interference, whether by injunc- Applicablk only to IN'ew York Gity. 387 The Rapid Transit Act, § 34. tion, suit tor damages, or otherwise, on the part of any owner, abutting owner, or other person. Such contract shallfurther provide that the person, firm or corporation so contracting to construct, maintain and operate said road shall annually pay into the treasury of said city, as rental for the use of said road, a siim which shall not, except as hereinafter provided, be less than the annual interest upon the bonds to be issued by said city for the construction of said road as hereinafter provided for, and in addition to said interest, a further sum which shall be equal to a percentage of not less than one per centum upon the whole amount of said bonds, — provided, that in estimating;, snch annual interest and additional percentage there shall be deducted from the amount of the said bonds the amount thereof issued to pay for rights, terms, easements, privileges or property other than lands acquired in fee. Such rental and the term for the operation of said road shall begin as to said road or any section thereof when the same shall be declared by the board of rapid transit railroad commissioners to be com- pleted and ready for operation. For the purpose of esti- mating such one per centum per annum upon the ascertain- ment of the amount of such rental, there shall be included such portion of the said bonds as shall have been issued to pay interest on bonds theretofore issued under the provisions of this act, except bonds issued to pay for rights, terms, easements, privileges, or property other than lands acquired in fee. The aforesaid annual rental shall be paid at such times during each year as said board shall require, and shall be applied first to the payment of the interest on said bonds, as the same shall accrue and fall due, and the remainder of said rental not required for the payment of said interest shall be paid into the sinking fund, for the payment of the city debt, if there shall be such sinking fund in said city, or, if there be none such, then said balance of said rental shall be securely invested, and with the annual accretions of interest thereon, shall constitute a sinking fund for the pay- ment and redemption at maturity of the bonds issued, as hereinafter provided. Said contract may also provide for a renewal or renewals of the lease of said road upon the expiration of the original term and of any renewals of the same upon such terms and conditions as to said board may 388 Applicable only to New Yoek City. The Rapid Transit Act, § 34. seem just and proper, and may also contain provisions for the valuation of the whole or a part of the property of said contracting person, firm or corporation, employed in and about the equipment, maintenance and operation of said road, and for the purchase of the same by the city, at such valuation, or a percentage of the same, sho«ld said lease not be so renewed at any time. Said contract may provide for the construction of said road in sections, and except as herein otherwise provided, shall specify when the construc- tion of said road, or sections of the same shall be com- menced, and, in each case, the date of completion. It shall also state the date on which the operation of the road, or of any section thereof, shall commence. The person, firm or corporation so contracting for the construction, equipment, maintenance and operation of said road, shall give a bond to said city, in such amount as said board of rapid transit railroad commissioners shall require, and with sureties to be approved by said board, who shall justify in the aggre- gate in double the amount of said bond. Said bond shall be a continuing security, and shall provide for the prompt pay- ment by said contracting person, firm or corporation, of the amount of annual rental specified in the aforesaid con- tract, and also for the faithful performance by said contract- ing person, firm or corporation, of all the conditions, cove- nants and requirements specified and provided for in said contract. The said contracting person, firm or corporation shall also simultaneously with the execution and delivery of said contract, deposit with the comptroller or other chief financial officer of such city the sum of one million dollars in cash or in securities of a value not less than one million dollars, which securities shall be of the character of those in which the savings banks of this State are authorized by law to invest moneys, and shall be approved by the board of rapid transit railroad commissioners, which cash or securities shall, under such terms and conditions as shall be provided in the said contract, be further security for the faithful performance by such contracting person, firm or corporation of all the covenants, conditions and require- ments specified and provided for in said contract relating to the construction and equipment of said road, and the city in and for which said road shall be constructed Applicable only to New York City. 3b9 ~" — ■ 1 The Rapid Transit Act, § 34. shall also have a first lien upon the rolling stock and other property of said contracting person, firm or corporation, constituting the equipment of said road and used or intended for use in the maintenance and operation of the same, as further security for the faithful performance by such con- tracting person, firm or corporation of the covenant, condi- tions and agreements of said contract on his, their, or its part to be fulfilled and performed, and in case of the breach of any such covenant, condition and agreement said lien sllall be subject to foreclosiire by action, at the suit of such city, in the same manner, as far as may be, as is then pro- vided by law in the case of foreclosure by action of mort- gages on real estate. The said board of rapid transit rail- road commissioners may, however, from time to time, by a concurrent vote of six of the members of said board, relieve from such lien, any of the property to which the same may attach, upon receiving additional security which may be deemed by said board so voting to be the equivalent of that which it is proposed to release and otherwise upon such terms as to such board so voting shall seem just. Upon the completion of the construction and equipment of said road to the satisfaction of said board, and when the operation of the same shall have commenced pursuant to said contract, it shall be the duty of the comptroller or other chief financial officer to pay to the said contracting person, firm or corporation said sum of one million dollars m cash or the said securities so to be deposited as above pro yided, and said contracting person, firm or corporation shaU also be then entitled to be credited upon the rental which he^ they or it shall have contracted to pay to said city for the use of said road a sum which shall be equal, as the case may be, either to the interest on the sum of one million dol- lars for the time of such deposit at the rate of interest pro- vided for in the bonds which shall have been issued and sold by the city to provide for the construction of said road or to the interest, dividends, or other income which said city shall have received from the said securities. The said contract shall further provide that in case of default in pay- ing the annual sum or rental therein provided for, or in case of the failure or neglect on the part of said contracting person, firm or corporation, faithfully to observe, keep and 390 Applicable only to Nkw York City. The Rapid Transit Act, § 3J. fulfill the conditions, obligations and requirements of said contract, the said city, by its board of rapid transit railroad commissioners, may take possession of said road and the equipment thereof, and as the agent of said contracting per- son, firm or corporation, either maintain and operate said road, or enter into a contract with some other person, firm or corporation for the maintenance and operation thereof, retaining out of the proceeds of such operation, after the payment of the necessary expenses of operation and main- tenance, the annual rental hereinbefore referred to, and pay- ing over the balance, if any, to the person, firm or corpora- tion with whom the first contract above mentioned was made, and if such proceeds of the operation of said road, after the payment of the necessary expensesi of maintenance and operation, including the keeping in repairs of the roll- ing stock and other equipment, shall in any year be less than the annual rental hereinbefore referred to and pro- vided in the first contract, then and in that case, the said contracting person, firm or corporation and his or its bonds- men, shall be and continue jointly and severally liable to the aforesaid city for the amount of such deficiency until the end of the full term for which the said first contract was originally made. No contract entered into under authority of this act shall be assigned without the written consent of the said board of rapid transit railroad commis- sioners concurred in by all the members of said board. It shall be deemed to be part of every such contract that, in case the board of rapid transit railroad commissioners shall cease to exist, the legislature may provide what, public officer or offlcers of the city shall exercise the powers and duties belonging to the board of rapid transit railroad com- missioners under or by virtue of any such contract, and that in default of such' provision, such powers and duties shall be deemed to be rested in the mayor of the city. Every such contract shall provide that if the contracting person, firm or corporation shall fail to construct or to operate the railway according to the terms of the contract, and shall, after due notice of its default, omit for more than a reason- able time to comply with the provisions of such contract, the board of rapid transit railroad commissioners may bring an action in the name and in behalf of the city to forfeit Applicable only to E"bw Yoek City. ' 391 The. Rapid Transit Act, §§ 35, 36. and vacate all the rights of such contracting person, firm or corporation under such contract, and for damages and otherwise as may be necessary for the sufficient and just protection of the rights of the city; or may, upon such terms as to the board of rapid transit railroad commissioners seem just and with such person or corporation as to the said board may seem proper, make another operating con- tract and lease of the said road for the residue of the term of the contractor in default; and may bring action in the name and on behalf of the city to recover from the con- tractor the amount due from the contractor, less the amount which shall have been received by the city under or by virtue of such new contract, and for all other damages sus^ tained by the city by reason of such default. Any railway corporation, organized under the laws of this State, or any existing railway corporation owning or actually operating a railway wholly or in part within the limits of the city, in and for which said board has power to act, shall be compe- tent and is hereby authorized to enter into a contract for the construction and operation of any railway pursuant to the provisions of this chapter. (New pro-vfisions, added by L. 1894, ch. 752, as amended by L. 1895, eh. 519.) Iiessee of road; exemption from taxation. § 35. The person, firm or corporation operating such road, shall be exempt from taxation in respect to his, their or its interest therein under said contract and in respect to the rolling stock and other equipment of said road, but this exemption shall not extend to any real property which may be owned and employed by said person, firm or corporation in connection with the construction, or operation of said road. (New provisions, added by L. 1894, cli. 752.) Advertising for proposals. § 36. The said board of rapid transit railroad commis- sioners before awarding any contract or contracts shall advertise for proposals for such contracts by a notice to be printed twice a week for three successive weeks in no less than four of the daily newspapers published in said city, 392 Applicable only to New Yoke City. The Hapid Transit Act, §37. and in such newspapers published elsewhere than in said city as said board shall determine. Such notice shall set forth and state the points within said city, between which said road or roads is or are to run, the general method of construction, the route or routes to be followed, the term of years for which it is proposed to make such contract, and such other details and specifications as said board shall deem to be proper. Said notice shall state the time and place at which said proposals will be opened, and the said board shall attend at the time and place so specified, and shall publicly open all proposals that shall have been received, but the said board shall not be bound to accept any proposals so received, but may reject all such proposals and readvertise for proposals in the manner hereinbefore provided, or may accept any of such proposals as will, in the judgment of such board, best promote the public inter- est, and award a contract accordingly. (New, added by L. 1894, ch. 752, and amended by L. 1895, ch. 519.) Bonds; issue of to provide for construction. § 37. For the purpose of providing the necessary means for such construction, at the public expense, of any such road or roads and the necessary means to pay for lands, property, rights, terms, privileges and easements, whether of owners, abutting owners, or others, which shall be acquired by the city for the purposes of the construction or the operation of such road or roads as hereinafter provided, and of meeting the interest on the bonds in this section hereinafter provided for accruing thereon prior to the completion and readiness for operation of the portion of such road or roads for the con- struction of which such bonds shall have been respectively issued, the board of estimate and apportionment, or other local authority in said city, in which such road or roads are to be constructed, having power to make appropriations of moneys to be raised by taxation therein, from time to time, and as the same shall be necessary, and upon the requisition of said board of rapid transit railroad commissioners, shall direct the comptroller, or other chief financial officer of said city, and it shall thereupon become his duty, to issue the bonds of said city at such a rate of interest, not exceeding AtPLIOABLB ONLY TO NeW YoEK CiTT. 393 The Rapid Transit Act, § 38. three and one-half per centum per annum, as said board of estimate and apportionment, or other local authority direct- ing the issue of such bonds, may prescribe. Said bonds shall provide for the payment of the principal and interest in gold coin of the United States of America. They shall not be sold for less than the par value thereof, and the proceeds of the same shall be paid out and expended for the purposes for which the same are issued, upon vouchers certified by said board of rapid transit railroad commissioners. Said bonds shall be free from all taxation for city and county purposes, and shall be payable at maturity out of the sinking fund for the payment of the city debt, if there be such a sinking fund of said city; but if there be no such sinking fund, then out of a sinking fund to be established and created out of the annual rentals of said road as hereinbefore provided. But this pro- vision that the said bonds shall be payable out of such sinking fund shall not diminish or affect the obligation of said city as a debtor upon said bonds, or any other right or remedy of any holder or owner of any such bonds, to collect the princi- pal or interest therof . The amount of bonds authorized to be issued and sold by this section shall not exceed fifty millions of dollars, par value, without the consent of the legislature first had and obtained, provided, however, that such amount shall be increased by a sum not exceeding five millions of dollars, if the board of rapid transit railroad commissioners shall certify that such increase is made necessary by pay- ments required for any lands, property, rights, terms, ease- ments or privileges which shall be acquired by the said city as hereinafter provided. (New, "added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.) Contract and plans; changes or modifications. § 38. The board of rapid transit railroad commissioners, for and on behalf of the said city in which such road or roads may be constructed, may, from time to time, with the concurrence of six members of said board and the con- sent, in writing, of the bondsmen or sureties of the person, firm or corporation which has contracted to construct, equip, maintain and operate said road or roads, or any of them, agree with said contracting person, firm or corpora- 394 Applicable only to New Yoek City. The Rapid Transit Act, § 38 (a). tion upon changes in and modifications of said contract, or of the plans and specifications upon which said road or roads is or are to be constructed, but no change or modifi- cations in the plans and specifications consented to and authorized pursuant to section fiye of this act shall be made without the further consent and authorization provided for in said section; but in no event shall the annual rental to be paid to said city, for the use of said road, be reduced below the minimum rate hereinbefore provided. (New, added by F.. 1894, ch. 753, and amended by L. 1895, cli. 519.) § 38(a). The board of directors of any company incorporated for the purpose of constructing, maintaining or operating a bridge or bridges connecting a city of more than one million inhabitants with any other city in this state, and by the act of incorporation of which authority shall have been con- ferred or intended to be conferred, to construct, maintain or operate, as a part of or in connection with its bridge, an approach or approaches thereto extending generally in an easterly and westerly direction, may determine in lieu of constructing such approach or approaches, to build, main- tain and operate an elevated railway, the route of which shall be coincident with the route of such approach or approaches as defined in said act, and shall adopt a general plan for the construction thereof, and which shall show the general mode of operation, and contain such details as to manner of construction as may be necessary to show the extent to which any street, avenue, or other public place is to be encroached upon and the property abutting thereon affected, a copy of which plan shall be transmitted to the common council of the city in which the same is to be located. Such proceedings shall thereupon be had by such common council as are provided by section five of this act, as though such plans had been transmitted by the rapid transit commissioners as contemplated in said section. Provided, that where in any such city the exclusive control of any street, route, highway or avenue, which is to be occu- pied by any railway or railways constructed under the pro- visions of this section is by law vested in any local author- ity other than the common council of such city, the approval Applicable only to New Yoek City. 395 The Rapid Transit Act, g 38 (a). of the aforesaid plans, and consent to the construction of a railway, thereunder shall be given by such local authority in place of, and if required in addition to such approval and consent by such common council, and with like effect. Upon obtaining the -approval and consent of the local authorities as in said section provided^ the said board of directors shall take the necessary steps to obtain, if pos- sible, the consent of the property owners along the line of the said route or routes, and all proceedings in respect of such consents or when such consents cannot be obtained shall be similar in all respects to the proceedings in said section provided. Any consent of the local authorities to construct or operate such railway shall be given only upon the condition that the rate of fare upon such elevated rail- way shall not exceed five cents for each passenger, and that payment of such fare shall entitle each passenger to or from said elevated railroad to free transit across the bridge or bridges with which it is intended to connect the same. When the consents of the local authorities and the pr6perty owners, or in lieu thereof, the authorization of the supreme court upon the report of the commissioners shall have been obtained, and the said company shall have accepted such condition it shall have all the powers of corporations formed under this act, it shall be authorized to build, con- struct, maintain and operate such elevated railway or rail- ways, but all provisions of this act, or of any act requiring the sale of the right, privilege and franchise of constructing, maintaining and operating such railway or railways, or requiring a corporation or corporations to be organized for the purpose of acquiring such right, privilege and franchise, and all other provisions of this act or of any act incon- sistent with this section, are hereby declared inapplicable, to such elevated railway and to such company. The entire route of any elevated railway constructed under the pro- visions of this section shall not exceed three miles in length, nor shall any part of said railway except at the termini thereof be less than sixteen feet above any street, avenue or public place, or less than fourteen feet above any existing elevated railway which may be crossed, intervened or inter- sected thereby. The said railway may be located and con- 396 Applicable only to New Yoek City. The Rapid Transit Act, § 39. stractediso as to cross any intersecting street, avenue, high- way or place otherwise exempted, except that no public park shall be occupied or crossed thereby, the structure of such elevated railway shall be liable to taxation as provided by law for similar structures. (New, added by L. 1892, ch. 102, and amended by L. 1895, ch. 519.) The section number of the foregoing wus changed in 1895. Power to acquire title to property. § 39. For the purpose of constructing or operating any road for the construction and operation of which a contract shall have been made by the board of rapid transit railroad com- missioners, including necessary stations and station approaches, or for the purpose of operating or securing the operation of the same free of interference and right of inter- ference and of action and right of action for damages or otherwise, whether by abutting owners or others, or to pro- vide, lay or maintain conduits, pipes, ways or other means for the transmission of electricity, steam, water, air or other source or means of power or of signals or messages necessary or convenient for or in the construction or operation of such road, or for the transportation of materials necessary for such construction or operation, or to provide a temporary or permanent way or course for any such conduit, pipe or other means or source of transportation, the said board for and in behalf of said city may acquire, as in this act provided, any real estate,' and any rights, terms, and interest therein, and any and all rights, privileges, franchises and easements, whether of owners or abutting owners or others, including any rights of owners, abutting owners, or others to interfere with the construction or operation of such road or to recover damages therefor, which, in the opinion of the board, it shall be necessary to acquire or extinguish for the purpose of con- structing and operating such road free of interference or right of interference. The word " property " hereinafter used shall be deemed to include any such real estate, and any rights, terms and interest therein, and any such rights, privi- leges, franchises and easements, whether of owners, abutting owners, or others. (Added by L. 1894, ch. 752, and amended by L. 1895, ch. 519.) Applicable only to New Yoek City. 397 The Rapid Transit Act, § 40. Entry upon, lands and property; maps and plans to be nia4e; filing of amended maps. - ' § 40. It shall and may be lawful for said board, and for all persons acting under its authority, to enter in the daytime into and upon any and all lands and property which it shall d^m necessary to be acquired, or to which there may be appurtenant rights, terms, franchises^., easements or privileges which it shall deem neces- sary to be acquired or extinguished by said city, for the purpose of makipg the maps or surreys herein- after mentioned, and also to enter in like manner and for the same purpose upon any property adjacent to and within five hundred feet of the property to be so surveyed; and the said board shall cause three similar maps or plans to be made of each parcel of property which it may deem necessary so to be acquired, or to which there may be appurtenant rights, terms, franchises, easements or privi- leges necessary so to be acquired or extinguished, designating each of said parcels by a number, and upon each map or plan so made or in a memorandum accompany- ing the same and to be deemed part thereof the said board shall cause to be clearly indicated the particular estate or estates, rights, terms, privileges, franchises or easements to be acquired or extinguished for the purposes- of this act, in relation to each and every piece or parcel of property described upon said map or plan. The said board shall have power to cause a triplicate set of maps or plans and memoranda as herein provided for to be made as often and at such times as said board shall determine, and each set of maps or plans and memoranda so made shall contain the par- ticulars above enumerated within such district as said board shall in each case provide. The maps or plans and memo- randa herein provided for, when approved and adopted by said board, shall have written thereon a certificate o^ such approval, signed by the members of said board adopting and approving the same, and one copy thereof shall be filed in the department of public works, or other chief executive department having principal charge of the streets, there to remain as a public record, and the other two o'f said maps or plans and memoranda shall be trans- 398 Applicable onlt to New Yoek City. The Rapid Transit Act, §§ 41, 42. mitted to the counsel to the corporation or other principal legal adviser of said city. The said board may from time to time make and file further maps or plans and memoranda amending those already filed, hut not so as to defeat or impair any property or interest which shall have been already acquired, or to revive any interest or right which may have been already extinguished by the said city. (New, added by L. 1894, ch. 7.J2, and ami;iuled by L. 1895, ch. .J19.) Proceedings to acquire title to property. § 41. Whenever and as often as the said board shall deem it to be necessary and proper that the -said city should acquire any such property and shall have caused to be made, as provided in the last preceding sections, the maps or plans and memoranda specifying and defining the said property to be acquired, or to which are appurtenant the rights, terms, franchises, easements or privileges to be acquired or extinguished, and shall have certitipd, filed and transmitted the several copies of such maps or plans as in the last section prescribed, the said board may direct the counsel to the corporation or other principal legal adviser of said city, to take legal proceedings to acquire the same for the said city, and the said counsel to the corporation, or other principal legal adviser, shall thereupon take proceedings as in this act provided. (New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.) Filing of maps or plans. § 42. The said counsel to the corporation, or other prin- cipal legal adviser of said city, shall cause one of the maps or plans, so as aforesaid transmitted to him, to be filed in the office of the register of the county, or if there be no such register, then in the office of the county clerk of the county in which said city is situated. The map, hereinafter denominated the third map, being the other one of the two so as aforesaid transmitted to said counsel to the corpo- ration, or other legal adviser, shall be disposed of as hereinafter provided. (New, added by L. 1894, ch. 752.) Applicaelk only to Nbw York City. 399 The Rapid Transit Act, g§ 48, 44. Commissioners of appraisal. §^ 43. After the said set* shall have been filed as herein before provided in the office of the register or county clerls of said county, the said counsel to the corporation, or othei principal legal adviser, for and on behalf of the said city, shall, and he may from time to time, upon first giving the notice required) by the next section of this act, apply to the supreme court at any special or general term thereof, to be held in the judicial district in which said city is situated, for the appointment of commissioners of appraisal. Upon each such application he shall present to the court a petition, signed by a majority of the members of said board and veri- fied in the manner prescribed by law for the verification of pleadings, according to the practice of said court, setting forth the action or determination theretofore taken or had by said board, with respect to the property to be acquired, and the filing of said maps or plans and memoranda and praying for the appointment of such commissioners of appraisal. Such petition shall contain a general description of all the property to, or in or over or appurtenant to which any title, interest, right, franchise, easement, term or privi- lege is sought to be acquired or extinguished, and of every right, franchise, easement, or privilege sought to be acquired, by the said city for public purposes, each lot or parcel being more particularly described by a reference to the number of said lot or parcel as given on said maps, and the title, inter- est, right, easement, term or privilege sought to be acquired, or extinguished, to or in or over or appurtenant to each of said lots or parcels shall be stated in said petitipn. (New, added by L. 1884, oh. 752, and amended by L. 1895, ch. 519.) Notice of application for appointment of commissioners of appraisal; publication thereof. § 44. The said counsel to the corporation, or other principal legal adviser shall give, or cause to be given, notice by publication in two public newspapers published in the said city, of his intention to make application to the said court for the appointment of such commissioners of appraisal, which notice shall state the time and place of such application, shall briefly state the object of the application and shall *So In the original law. i 400 Applicable only to New York City. The Rapid Transit Act, §§ 45, 46, 47. describe the property sought to be acquired or affected. A statement of the location and boundaries of the several lots or parcels of property and rights, franchises, easements, or privileges sought to be taken or affected, and a brief state- ment as to each of said lots or parcels of the title, interest, rights, easements, terms or privileges therein or appurte- nant thereto, ssought to be acquired or extinguished with a ref- erence to the dates and places of filing the said maps or plans and memoranda shall be a sufficient description of the property sought to be so taken or affected. Such notice shall be so published daily, Sundays and holidays excepted, in said newspapers for six weeks immediately previous to the time fixed in said notice for the presentation of each petition. (New, added by L. 1894, ch. 752, and amended by L. 1895, eli. 519.) Order of appointment of commissioners of appraisal. § 45. At the time and place mentioned in said notice, unless the said courts shall adjourn said application to a subsequent date, and in that event at the time to which the same may be adjourned, the court, upon due proof to its satisfaction of the publication aforesaid, and upon filing the said petition, shall make an order for the appointment of three disinterested freeholders, residents in said city, as commissioners of appraisal, to ascertain and appraise the compensation to be made to the owners of property so to be taken or extinguished for the purposes indicated in this act. Such order shall fix the time and place for the first meeting of the commissioners. (New, added by L. 1894, ch. 752.) Oath of commissioners of appraisal. § 46. The said commissioners shall take and subscribe the oath required by the twelfth article of the constitution of the state of New York, and shall forthwith file the same in the office of the clerk of the county in which said city is situated. (New, added by L. 1894, ch. 752.) City to become seized in fee' of property indicated on maps; possession and entry thereon. § 47. On filing said oath in the manner provided in the last section, the said city shall be and become seized and Applicable only to New Yoek City. 401 The Rapid Transit Act, § 47. possessed in fee or absolute ownership of all thoise parcels of property, rights, terms, franchises, easements and privileges which are in the maps or plans and memoranda referred to in section forty of this act, described as parcels of property, rights, franchises, easements, or privileges which are to be acquired, and also shall become seized and possessed of all the rights, termSj franchises, easements or privileges appur- tenant to any lots or parcels of property indicated on said maps or plans as parcels in regard to which it is deemed necessary to acquire such rights, terms, franchises, ease- ments or privileges, or the said rights, terms, franchises, easements or privileges shall be extinguished as the case may be; and the said board for the said city, may imme- diately or at any time or times thereafter take possession or enter into the enjoyment of the said property, rights, terms, franchises, easements and privileges or of any part or parts thereof without any suit or proceeding at law for that purpose and the said board for the said city, or any per- son or persons acting under their or its authority, may enter upon and use, occupy, and enjoy in perpetuity all the parcels of property and all the rights, terms, franchises, easements or privileges appurtenant to any of the parcels of property and all rights, franchises, easements, and privileges, described on said maps or plans in said memoranda, for any of the purposes authorized and provided for by this act. But on such filing of the said oath the said city shall be and become forthwith liable to the respective owners of the sev- eral parcels of property and the several rights, terms, fran- chises, easements and privileges appertaining thereto, and of the said rights, franchises, easements, and privileges acquired as aforesaid, for the true and respective values thereof, together with interest thereon from the time of filing the said oath, provided, hpwever, that no such interest shall be payable to any owner of any such property, right, terffl, fran- chise, easement or privilege during any period during which the said city or the said board of rapid transit railroad com- missioners may by any resistance, whether by legal proceed- ings or otherwise of such owner or with his authority, be prevented from taking possession thereof or enjoying the same; and provided further, that no action shall be brought 26 402 Applicable only to New York City. The Rapid Transit Act, § 48. to recover the amount of such value or interest unless within eighteen months after the filing of such oath, a report shall not have been duly made by commissioners of appraisal as herein provided, or such report shall not have been confirmed by the supreme court as herein provided, so that the ?-'aid city shall be liable to forthwith pay the amount by sucth report ascertained to be due for siuch value or interest. (New, added by L. 1894, ch. 752, and amended by L. 1895, ch. 519.) Commissioners of appraisal; power to issue subpoenas and administer oath.s; to liear and determine claims; vacancies; determination of compensation to property owners. § 48. Any one of said commissioners of appraisal may issue subpoenas and administer oaths to witnesses, and they or any one of them, in the absence of the others, may adjourn the proceedings, from time to time in their dis- cretion, but they shall continue to meet from time to time as may be necessary to hear, consider and determine upon all claims which may be presented to them under any of the provisions of this act. In case of the death, resignation, refusal or neglect to serve of any commissioner of appraisal, the remaining commissioner or commissioners shall, upon ten days' notice, to be given by advertisement in the newspapers mentioned in section forty-four of this act, apply to the supreme court, at a special or general term thereof, to be held in the judicial district in which said city is situated, for the appointment of a commissioner or com- missioners to fill the vacancy or vacancies so occasioned. In case of the death, resignation or refusal to serve of all the commissioners of appraisal, the said counsel to the corporation or other principal legal adviser to said city shall, on giving the notice required in this section, apply to the said court for the appointment of other commissioners of appfaisal. It shall be the duty of the commissioners of appraisal to procure from the counsfil to the corporation or other principal legal adviser the third set of maps or plans and memoranda provided for in sections forty and forty-two of this act. They shall view the prop- erty laid down on said map, and shall hear the proofs and allegations of any owner, lessee or other person in any way entitled to or interested in the AlTLICABLE ONLY TO NeW YoEK CiTT. 403 The Rapid Transit Act, § 49. property to be acquired or extinguished, or any part or parcel thereof, and also such proofs and allegations as may be offered on behalf of the said city. They shall reduce the testimony, if any, taken before them to writing, and after the testimony is closed, they, or a majority of them, all having considered the same, ahd havirig an opportunity to be present, shall, without unnecessary delay, ascertain and determine the compensation which ought justly to be made by the said city to the owners or persons interested in the property acquired or extinguished by said proceedings. The said commissioners of appraisal shall make reports of their proceedings to the supreme court, as in the next section provided with the minutes of the testimony taken before them, if any, and they shall be entitled to the payment hereinafter provided for their services and expenses, to be paid from the fund hereinafter specified. The said commis- sioners may make a single report or may make reports from time to time as they shall reach their several decisions as to different parcels of property. (New, added by L. 1894, > Tunnels ; Lighting and Yentilation. Miscellaneous Railroad Laws. Wa and obey the provisions and requirements of said notice or order, and said court shall have full power and authority to hear and determine said matter, and, after giving the corpo- ration or corporations proceeded against an opportunity to be heard in its or their defense, to compel said corporation or corporations so proceeded against to obey said order or notice, and forthwith comply with and carry out the pro- visions and requirements therein contained. Violation; penalty. § 5. Every corporation violating any of the provisions of this act shall be guilty of a misdemeanor, and may be indicted therefor, and may be compelled to appear and plead to an indictment therefor ih the person of its presi- dent, secretary, treasurer or any director thereof, and a bench warrant may issue out of any competent court to compel such attendance and pleading, and, upon conviction thereof, punished by a fine of one thousand dollars, and an additional fine of five hundred dollars a day for each and every day or part of a day after thirty days, from the due service of said notice or order that said corporation shall refuse or neglect to obey and carry out the requirements and provisions of the same, and duly sentenced to pay the same. Enforcement of penalty. § 6. It shall be the duty of the district attorney prose- cuting any corporation for a violation of any of the pro- visions of this act, that shall be convicted thereof and sentenced to pay a fine therefor, to cause a judgment-roll to be made up, consisting of the indictment orders and sen- tence of the court and a formal judgment, to be prepared by him, which judgment shall be duly signed by the clerk of the county in which said trial took place; said judgment- roll shall be filed by said county clerk and said judgment shall be duly recorded in the book of judgments in said county, and duly entered and docketed by said county clerk in said county the same as if said judgment had been obtained in a civU action, and said judgment so duly entered and docketed shall become and be a lien upon all of the real estate of said corporation against which the same is obtained, and the collection thereof may be enforced by Liquor Licenses. 439 Miscellaneous Railroad Laws. execution to be issued and signed by the district attorney of tbe county wliere the trial of said indictment took place, in the same manner and to the same extent as execu- tions are collected in civil action. Mechanical devices; approval of. § 7. In cities in this state having a population of one million inhabitants or over, where tunnels are or may here- after be operated or controlled by any railroad corporation such portions of any mechanical or other devices op appli- ances as may be required under the provisions of this act to be constructed on or above the surface of any streets, avenues or other places under which such tunnels may be built, shall be subject as to form, material and construction, to the approval of the local authorities of such cities, except that in the city of New York such approval shall be by a majority vote of the mayor, the comptroller, the commis- sioner of public works and the president of the department of public parks of said city. L. 1892, Ch. 367. An Act in relation to Madison aA'^enue in the city of ' New York. Bailroads on said avenue; consent of property owners required. Section 1. None of the provisions of existing law nor any proceedings thereunder shall authorize the construc- tion, maintenance or operation of any elevated or under- ground railway upon or under Madison avenue in the city of New York, or any portion of the same, except that the con- sent of a majority of the owners of property, in number and value thereof, bounded on said Madison avenue, be first obtained in writing duly acknowledged as are deeds enti- tled to be recorded. L. 1892, Ch. 4U1. An Act to revise and consolidate the laws regulating the sale of intoxicating liquors. (For the provisions of said act, in relation to licenses to common carriers fro Ue sale of liquors, etc, see page 330.) 440 Eailwats in and Near Pahks. Miscellaneous Railroad Laws. L. 1892, Ch. 425. An Act to authorize the state engineer and surveyor to file certain reports with the board of railroad commissioners. state engineer; reports to be filed by. Section 1. The state engineer and surveyor is hereby authorized and directed, within ten days after the passage of this act, to file with the board of railroad commissioners all original reports from railroad corporations now in his custody and filed in his office in pursuance of section thirty- one of chapter one hundred and forty of the laws of eighteen hundred and fifty. L. 1892, Ch. 4S8. An Act for the protection, preservation, and propagation of birds, fish and wild animals in the st^te of New York and the different counties thereof. (For provisions of said act, regulating the transportation of certain game, see pages 218, 220.) L. 1892, Ch. 532. An Act relative to railways in and near public parks in the cities of the State of New York, Parks; construction of railroads in. Section 1. For the purpose of providing for the more speedy transportation of persons across public parks in the cities within the state of New York having a population of one million five hundred thousand or upwards it shall be lawful for the municipal authorities, officers, departments, or boards having control of such parks to construct rail- ways in and upon tunnels or roads or ways depressed below the surface of said parks in such cities in this state, and to extend the same east or west to connect with any surface railways in such cities, now in existence, and with railways which hereafter may be built by companies now chartered and existing, and to contract in the name of such cities with any person or corporations for the construction thereof, and Railways in and Neae Parks. 441 Miscellaneous Railroad Laws. for the equipment and running, of the same either with or without public advertisement upon such terms and condi- tions, including the rates of fare to be charged to persons using such railways, for such compensation to be paid to such cities, and subject to such rules, regulations and requirements as may be determined upon in said contract, and as the department or board, or officer having charge of said parks may, from time to time, thereafter establish or impose. Owners of property adjoining parks; consents of. § 2. No railroads shall be constructed, equipped or oper- ated by virtue of this act except upon the condition that the consent of the owners of one-half in value of the prop- erty outside of said public parks bounded on and the con- sent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct, operate or extend the said railroads to connect with any surface railroads in such cities be first obtained, or in case the consent of such property owners can not be obtained, the general term of the supreme court in the dis- trict in which it is proposed to be constructed may, upon application, appoint three commissioners, who shall deter- mine, after hearing of all parties interested, whether the portion of such railroad outside of said public parks ought to be constructed or operated, and their determination con- firmed by the court may be taken in lieu of the consent of the property owners. Construction; expense of. § 3. Whenever any railroad shall be constructed, equipped or operated under this act, the expense of such construction, equipment and operation shall be paid by the municipal cor- poration within which such railroads are situate, in the same manner as the other expenses of such municipal cor- poration are paid and provided for. Construction and operation; agreement for. § 4. The department, board or officer having control of such public parks may agree with the person or corporation with whom any contract may be made for the construction, equipment and operation of said railroad that the cost of 442 Railways in and Nkab Parks. Miscellaneous Bailroad Ijaws. such construction shall be paid by such cities in install- ments out of the compensation which such person or cor- poration shall agree to pay to such cities under any such contract from time to time and such compensation shall be received. Income from, railroad. § 5. The compensation or income which shall be received by such cities from such railroad, except as the same may be otherwise applied pursuant to the provisions of this act, shall be paid into the treasury thereof. ICotive power. § 6. Any railroad constructed, equipped and operated ujider this act may operate any portion of its road by animal or horse power, or by cable. Hew York city; supervision of construction in. § 7. Whenever any railroads shall be constructed in the city of New Yofk under the provisions of this act such rail- roads shall be constructed by the department of public parks of said city with the concurrence of the sinking fund commissioners of said city. Bonds, wh.en to be issued. ; § 8. Whenever any such railroad shall be constructed, equipped and opera^ted under the provisions of this act in the city of New York, should no such agreement be made as is provided in the fourth section of this act, it shall be the duty of the comptroller of said city from time to time upon the request of the sinking fund commissioners to issue bonds or stock of the city in the aggregate sufficient to pay the expense of such construction, equipment or operation which said bonds or stock shall be paid out of taxation in not more than ten years from the date of their issue and shall bear interest not exceeding four per centum per annum and shall be sold at not less than par, and the cost of con- structing, equipping and operating such railroads shall be paid out of the proceeds of such bonds or stocks. ' Reuef of Certain Street Eailwatb. 443 Miscellaneous Railroad Laws. L. 1892, Oh. 604: An Act for the relief of street surface railroad companies organized under chapter two hundred and fifty-two of the laws of eighteen hundred and eighty-four. Eztensions and brandies. Section 1. Any street railroad company now organized under chapter two hundred and fifty-two of the laws of eighteen hundred and eighty-four, which shall have hereto- fore constructed and is now operating any extension or branch of its railroad along any streets or highways or portion thereof within any county named in its articles of association, in a city not exceeding in population fifty thou- sand inhabitants, and shall heretofore have obtained the consent of the owners of one-half in value of the property bounded on and the consent also of the local authorities having control of that portion of a street or highway upon which it has constructed or operated such railroad, is hereby authorized to operate and maintain the same respectively in like manner and as fully as if the said streets and high- ways, or portions thereof, were fully named and described in its articles of association, and upon filing in the office of the secretary of state a certificate signed by its board of directors, which certificate shall contain a statement of the names of cities, towns, villages and counties, and the names or descriptions 'of the streets, avenues and highways in which such extension or branch has been constructed the places from and to which the same has been constructed and is to be maintained and operated, and the length thereof, as near as may be; thereupon the said extensions and branches shall be deemed and considered a part of the lines of railway of such corporation from the date of the filing thereof, with the same force and effect as if the same were fully named and described in its original articles of association, and all corporate action relating to the con- struction, maintenance and operation of such extensions or creating liens upon the same by the said corporation, are hereby validated and confirmed. § 2. Nothing in this act contained shall affect or impair any vested right or any pending litigation. See section 90, R. R. L., page 298. 444 Municipal Aid Bonds. Miscellaneous Railroad Laws. L. 1892, Ch. 685 (The General Municipal Law). An Act in relation to municipal corporations, constituting chapter seventeen of the general laws. Kuulcipal taxes of railroads payable to the county treasurer. Section 12. If a town, village or city has outstanding unpaid bonds, issued, or substituted for bonds issued, to aid in the construction of a railroad therein, so much of all taxes as shall be necessary to take up such bonds, except school district and highway taxes, collected on the assessed valuation of such railroad in such municipal corporation, shall be paid over to the treasurer of the county in which the municipal corporation is located. Such treasurer shall purchase with such moneys of any town, village or city, such bonds, when they can be purchased at or below par, and shall immediately cancel them in the presence of the county judge. If such bonds can not be purchased at or below par, such treasurer shall invest such money in the bonds of the United States, of the state of New York, or of any town or village or city of such state, issued pursuant to law; and shall hold such bonds as a sinking fund for the redemption and payment of such outstanding railroad aid bonds. If a county treasurer shall unreasonably neglect to comply with this section, any .taxpayer of the town, village or city having so issued its lionds may apply to the county judge of the county in which such municipal corporation is situated, for an order compelling such treasurer to execute the provisions of this section. The county treasurer of any county in which one or more towns therein shall have issued bonds for railroad purposes, shall when directed by the board of supervisors or county judge of the county, execute and file in the ofBce of the county clerk an undertaking, with not less than two sureties, approved by such board or judge, to the effect that he will faithfully perform his duties pur- suant to this section. The annual report of a county treas- urer shall fully state, under the head of " railroad sinking fund," the name and character of all such investments made by him or his predecessors, and the condition of such fund. (Thus amended by L. 1893, ch. 466.) Municipal Aid Bonds. 445 Miscellaneous Railroad Laws. Abolition of office of railroad commissioners. § 13. The board of supervisors of any county may, upon the application of the auditing board of any municipal cor- poration therein, by resolution, abolish the office of railroad commissioners of such municipal corporation, and direct the manner of the transfer of their duties to the supervisor of the town, or the treasurer of the municipal corporation other than a town^ and upon his compliance with such directions, such transferee shall be vested with all the powers conferred upon such railroad commissioners and subject to all the duties imposed upon them. Appointment of railroad commissioners. § 14. The county judge of any county within which is a municipal corporation having or being entitled to have rail- road commissioners, when this chapter shall take effect, and in which the duties imposed upon such commissioners are not fully performed, shall continue to appoint and com- mission, upon the application of twenty freeholders within such corporation, three persons, who shall be freeholders slnd resident taxpayers therein, commissioners for the purpose of performing the duties and completing the business required of them pursuant to this chapter or any law. Such commissioners shall hold their office for five years, and until others are appointed by the county judge, unless their duties shall be sooner performed, or the office shall be abolished, who shall also, in like manner, fill any vacancies that may exist therein. Such commissioners shall each receive the sum of three dollars per day for each day actually engaged in the discharge of their duties, and the necessary disburse- ments to be audited and paid by the usual auditing and dis- bursing officers of such municipal corporation. A majority of such commissioners, at a meeting of which all have notice, shall constitute a quorum. Oath and undertaking of commissioners. § 15. Before entering upon their duties such commission- ers shall take the constitutional oath of office, and make and file with the county clerk of their county, their joint and several undertaking, with two or more sureties to be approved by the county judge of their county, to the effect that they will faithfully discharge their duties as such com- 446 Municipal Am Bonds. Miscellaneous Railroad Laws. missioners, and tnily keep, pay over and account for all moneys belonging to such corporation coming into their hands. Exchange or sale of railroad stock and bonds. § 16. The commissioners or officers of a municipal corpo- ration, having the lawful charge and control of any rail- road stock or bonds, for or in payment of which the bonds of such municipal corporation have been lawfully issued in aid of such railroad corporation, may exchange the stock or bonds of such railroad corporation for and in payment of such bonds, or the new substituted bonds of such munici- pal corporation, when such exchange can be made for not less than the par value of the stocks or bonds so held by them. If they can not make such exchange they may sell such stocks or bonds at not less than par; but they may, on the application and with the approval, of the governing board of the municipal corporation, owning such stock and bonds, exchange, sell or dispose of such stock or bonds, at the best price and upon the best terms obtainable, for the municipal corporation they represent, and shall execute to the purchaser the necessary transfers therefor. All moneys received for any stock or bonds shall only be applied to the payment and extinguishment of the bonds of the municipal corporation, lawfuEy issued in aid of any such railroad, or substituted therefor; except that if the bonds so issued or substituted have all been paid, or the moneys so realized shall be more than sufficient to pay them in full, and all the costs and expenses of the sale, such proceeds or balance thereof shall be paid by the officers making the sale, to the supervisor of the town, or the treasurer of the municipal corporation, and applied to such lawful uses as the govern- ing board of the municipal corporation, entitled to the same, may direct. The provisions of this section shall apply to all such commissioners or officers of a municipal corpo- ration elected or appointed or acting under the provisions of any special act, and the authority hereby conferred shall not be limited by the provisions of any such special act. fThus amended by L. 1893, ch. 490.) Stkeets on Eaileoad Lands. 447 Miscellaneous Railroad Laws. Annual report of commissioners and payment of bonds. § 17. The commissioners of a municipal corporation, hav- ing in charge the monej^s received and collected, and who are responsible for the payment of the interest of the bonds lawfully issued by such municipal corporation, in aid of railroads, shall annually report to the govening board of the municipal corporation, the total amount of the municipal indebtedness of the municipal corporation they represent, upon such bonds or such new bonds substituted therefor, the date of the bonds and when payable, the rate of interest thereon, the acts under which they were issued, the amount of principal and interest that will become due thereon before the next annual tax levy and collection of taxes for the next succeeding year, and the amount in their hands applicable to the payment of the principal or interest thereon. Each year such govern- ing board shall levy and collect of the municipal corpora- tion sufficient money to pay such principal and interest, as the same shall become due and payable. When collected, such moneys, with the unpaid sums on hand, shall be forth- with paid over to such commissioners, and applied by them to the purposes for which collected or held. When paid, such bonds shall be presented by such commissioners to the governing board of the municipal corporation, at least five days before the annual town meeting, village or city elec- tion, or meeting of the board of supervisors, tiext thereafter held, who shall cancel the same, and make and file a record thereof in the clerk's office of the municipal corporation, whose bonds were so paid or canceled. (Thus amended by L. 1893, ch. 466.) Chapter 330, Laws of 1892, containing provisions similar to the fore- going, was repealed by L. 1893, ch. 466. L. 1892, Oh. 686 (The County Law.) An Act in relation to counties, constituting chapter eighteen of the general laws. No street to be laid out across lands held in fee for depot purposes; streets outside of city limits. Section 71. When any territory in a county containing an incorporated city of one hundred thousand inhabitants, 448 Streets on Railroad Lands. Miscellaneous Railroad Laws. excepting the towns of Flatbush and New Lots in the county of Kings, has been mapped into streets and avenues pursuant to law, the board of supervisors may authorize the establishment of a plan for the grade of such streets and avenues, laying out, opening, grading, constmicting, closing and change of line of any one or more of them, and provide for the assessment on property intended to be bene- fited thereby, and fixing assessment districts therefor, and for the levy, collection and payment of the amount of dam- ages sustained and the charges and expenses incurred, or which may be necessary to incur in carrying out such pro- visions, but such last named power in regard to laying out, opening, grading, constructing and change of line, of such streets or avenues or defraying the expenses thereof, shall only be exercised on the petition of the property owners, who own more than one-half of the frontage on any such street or avenue, or on a certificate of the town board and commissioners of highways of the town, that the same is, in their judgment, proper and necessary for the public interest. If the streets and avenues, in respect to which such action is proposed to be taken, shall lie in two or more towns, a like certificate shall be required of the town board arjd commissioners of highways of each town. Before mak- ing such certificate, such town board, or boards and com- missioners of highways, shall give ten days' notice by publi- cation in one of the daily papers of the county, and by con- spicuously posting in six public places in each of such towns, of the time and place at which they will meet to consider the same, at which meeting the public, and all persons inter- ested, may appear and be heard in relation thereto. No such street or avenue shall be laid out, opened or con- structed, upon or across any lands acquired by the right of eminent domain, and held in fee for depot purposes by any railroad corporation, or upon or across any lands now held by a corporation formed for the purpose of improving the breed of horses, without the consent of such corporations. No town officer shall charge any thing for his services under this section, nor shall any charge be made against any such town or the property therein, for the expense of the publica- tion of the notice herein required. ITouKS OF Labor. 449 Miscellaneous Railroad Laws. L. 1892, Cir. 711. An Act to provide for and limit the hours of service on railroads. Section 1. No person, persons or corporation operating a line of railroad of thirty miles in length or over, in whole or in part, within this state, shall permit or require any con- ductor, engineer, fireman or any trainman who has worked in any capacity for twenty-four hours, to again go on duty or perform any kind of work until he has had at least eight hours' rest. § 2. Ten hours' labor performed within twelve consecu- tive hours shall constitute a day's labor in the operation of all steam surface and elevated railroads owned and operated within this state, provided that this provision shall not affect the mileage system npw in operation, or that may hereafter be placed in operation, or trips of regular sched- uled trains when completed within a less number of hours, and it is further provided that the provisions of this act shall not apply to extra hours of labor performed by any conductor, engineer, fireman or trainman in cases of unavoidable accident or delay caused by such accident. § 3. For every hour in excess of said ten hours' labor that any conductor, engineer, fireman or any trainman of any railroad company or corporation, owned or operated within this state, who works under the direction of a superior, or at the request of such company or corporation, shall be required or permitted to work, he shall receive comparative compensation for said extra service in addition to his daily compens,ation. § 4. Any railroad company or corporation, or any officer, agent or employe of any such company or corporation, vio- lating or permitting the violation of any of the provisions of this act, shall be guilty of a misdemeanor, and on convic- tion shall be punished by a fine of five hundred dollars for each offense. The second and tbird sections of this act are not penal In their scope. They regulate the contractual relations of the parties, when the contract for hire of the employe omits to prescribe the duration of a day's service. (People V. Phyfe, 136 N. Y., 554.) Section four, declaring a violation of the provisions of the act to be a misdemeanor applies only to the pro- hibition of section one. (Id.) 29 450 Inteesecting Railroads. Miscellaneous Kailroad Laws. L. 1893, Ch. 239. An Act in relation to the intersections and crossings of the tracks and roadbeds of certain railroads laid in, across or upon the highways, streets, avenues or roads of the cities, towns and villages of the state. Section 1. Whenever the railroad or route of any street surface railroad corporation shall intersect and cross, or shall cross the tracks and roadbed of any railroad, operated by locomotive, steam or other power, which are laid in, across or upon the surface of any street, avenue, road or higliway in any city, town or village of the state, having less than five hundred thousand inhabitants, and such street surface railroad corporation having been unable to agree with the corporation owning the tracks and roadbed so intersected or to be intersected and crossed, as to the line or lines, grade or grades, points or manner of such intersec- tion and crossing, or upon the compensation to be made therefor, shall have applied to the court by petition to appoint commissioners to determine the same, the court shall upon application made by such street surface railroad 'corporation, at, or after, the time of the appointment of juch commissioners, or if an answer to the petition of such street surface railroad corporation has been interposed, at any time thereafter, direct that such street surface railroad corporation, be permitted to lay its tracks across and to intersect, upon the surface of the street, avenue, road or highway, the tracks and roadbed of such railroad operated by locomotive, steam, or other power, provided, such street surface railroad corporation shall at the time of obtaining «uch order make and file with the clerk of said court, its Tjond or undertaking in writing, in an amount and with surety or sureties to be approved by the court, conditioned for the full and faithful performance by such street surface railroad corporation of any and all conditions and require- ments which may be imposed by said commissioners and be affirmed by the court, in determining the line or lines, grade or grades, points or manner of such intersection and cross- ing and as to the amount of compensation to be paid there- for, and also conditioned to conform such crossing and inter- section made by virtue of such order of the court to the Forest Fires; Pbevention of. 451 • ' ■ 1 ^ Miscellaneous Railroad Laws. ^ 1 ■ requirements made by said, commissioners as affirmed by the court. § 2. No street surface railroad sball be allowed to lay its tracks at grade across the tracks or roadbed of any rail- road operated by locomotive steam power at any point where there are three or more tracks of the steam road pro- posed to be crossed, which tracks have been constructed and in operation at least two years, unless the written con- sent of the state railroad commissioners be first obtained for such crossing at grade. But this section shall not affect the operation of section one of this act in any suit or pro- ceeding now pending nor any renewak ^i said pending suit or proceeding brought for any cause. L. 1)395, Ch. 395. An Act to amend the game law and to repeal chapter three hundred and thirty-two of the Laws of eighteen hundred and ninety- three, entitled "An Act in relation to the forest preserve and Adirondack park," constituting articles six and seven of chapter forty-three of the general laws." Suties of railroad companies. , § 275. Every railroad company whose road passes through waste or forest lands or lands liable to be overrun by fires within the State, shall twice in each year cut and remove from its right of way all grass, brush or other infiam- mable materials, but under proper care and at proper times when fire, if set, can be kept ander control. All locomotives which run through forest lands shall be provided with approved and sufficient arrangements for preventing the escape of fires from their furnaces or ashpans, and with net- ting of steel or iron wire upon their smoke stacks to prevent the escape of sparks of fire, and every engineer and fireman employed upon a locomotive shall see that the appliances to prevent the escape of fire are in use and applied as far as it can be reasonably and practically done. No railroad com- pany shall permit its employes to deposit fire coals or ashes upon their track in the immediate vicinity of woodlands, or lands liable to be overrun by fires, and where any engineers, conductors or trainmen discover that fences or other mater- 452 Air Brakes. Miscellaneous Railroad Laws. ial or substances along the right of way upon woodlands adjacent to the railroad are burning, or in danger from fire, they shall report the same at their next stopping place, and the person in charge of such station shall take prompt measures to extinguish such fires, and shall immediately notify the nearest fire warden or fish and game protector and forester. In seasons of drought and especially during the first dry time in the spring after the snows have gone, and before vegetation has revived, railroad companies shall employ a sufficient number of trackmen for the prompt extinguishment of fires; and where a forest fire is raging near the line of their road they shall concentrate such help and adopt such measures as shall most effectually arrest its progress. If any railroad company or any of its employes violate any provision of this section the company shall for- feit to the people of the State the sum of one hundred dol- lars for every such violation. The foregoing provisions were formerly contained in L. 1885, ch. 283, sections 25, 26, 27, 28, 29, and subsequently in L. 1893, cb. 333. L. 1893, Ch. 543. An Act to promote the safety of railway employes by com- pelling the equipment of freight cars with continuous power or air brakes, and locomotives with driving-wheel brakes. Section 1. That from and after the first day of January, eighteen hundred and ninety-five, it shall be unlawful for any railroad company to use within the state on its line or lines any locomotive engine not equipped with a power driving-wheel brake and appliances for operating the train brake system. § 2. That from and after the passage of this act, in addi- tion to all freight cars now so equipped there shall be equipped each year with continuous power or air brakes by every company operating a line or lines of railroad within the state, at least ten per centum of all freight cars owned or operated by such companies and used within the state except certain cars known and designated as "coal jimmies," and that on and after the first day of January, eighteen hundred and ninety-eight, the use of said "coal Air Brakes. 45J Miscellaneous Railroad Laws. jimmies " in any form shall be unlawful within the state under a penalty of one hundred dollars for each offense, said penalty to be recoyered in an action to be brought by the attorney-general in the name of the people and in the judi- cial district where the principal oflSce of the company within the state is located, § 3. That on and after the first day of January, nineteen hundred and three, it shall be unlawful for any railroad or other company to haul or permit to be hauled or used on its line or lines within the state, any freight car not equipped with continuous power or air brakes operated from the engiije. § 4. That within sixty days from the passage of this act every railroad or other company operating a line of railroad within the state shall file with the board of railroad com- missioners at its office in Albany a verified statement of the total number of freight cars owned or operated by it, the number of such cars equipped with such continuous power or air brakes and the number unequipped, and shall thereafter annually and in the month of January, for the ensuing ten years, file with said board a verified report of the number of cars so equipped in each year and the number of cars, if any, remaining unequipped. § '5. That on and after January first, nineteen hundred and three, any railroad or other company using or permit- ting to be used on its line or lines any freight car not equipped with such continuous power or air brake, opera- ting from the locomotive, shall be liable to a penalty of one hundred dollars for each and every violation, to be recovered in any action to be brought by the attorney-general in the name of the people in the judicial district wherein the prin- cipal office of the company within the state is located, and it shall be the duty of the board of railroad commissioners of the state to notify the attorney-general of all such viola- tions coming to its notice. § 6. That the board of railroad commissioners may, from time to time, after full hearing given and for good cause shown, exempt any company from the provisions of this act, as to the equipment of ten per centum of its cars in any par- ticular year or years, and may extend the time within which 454 Automatic Couplers. Hiscellaneous Railroad Laws. any company shall comply with the requirements of this act, not exceeding, however, five years from the first day of January, eighteen hundred and niniety-eight. L. 1893, Ch. 544. An Act to promote the safety of railway employes by com- pelling the equipment of freight cars with automatic couplers. Section 1. That from and after the passage of this act, every new freight car which is to be used in this state shall be equipped with coupjers of the master car builders' type, which can be coupled automatically by impact, and which may, except in cases of accident, be uncoupled without the necessity of a person going between the cars. § 2. That from and after the passage of this act, in addi- tion to such new freight cars, there shall be equipped each year with such couplers, by every company operating a line or lines of raUroad within the state, at least twenty per centum of all feight cars owned or operated by such com- panies, and used within the state, which are not now so equipped, except certain cars known and designated as " coal jimmies," and that on and after the first day of Jan- uary, eighteen hundred and ninety-eight, the use of said "coal jimmies," in any form shall be unlawful within the state, under penalty of one hundred dollars for each offense, said penalty to be recovered in an action to be brought by the attorney-general, in the name of the people, and in the judicial district where the principal ofQce of the company within the state is located. § 3. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any rail- road or other company to haul, or permit to be hauled or used, on its line or lines within the state, any freight car not equipped with couplers of the master car builders' type, and coupling automatically by impact, and which can be uncoupled, except in cases of accident, without the necessity of men going between the ends of the cars. § 4. That within sixty days from the passage of this act, every railroad or other company operating a line of railroad Burial Peemits. 455 Miscellaneous Railroad Laws. within the state, shall file with the board of railroad com- missioners, at its office in Albany, a verified statement of the total number of freight cars owned or operated by it, the number of such cars equipped with the automatic coup- lers, and the number unequipped; and shall thereafter annually, and in the month of January, for the ensuing five years, file with said board a verified report of the number of cars so eqtiipped in each year, and the number of cars, if any, remaining unequipped. § 5. That on and after January first, eighteen hundred and ninety-eight, any railroad or other company using, or permitting to be used, on its line or lines, any freight car not equipped with couplers as provided for in this act, shall be liable to a penalty of one hundred dollars for each and every violation, to be recovered in an action to be brought by the attorney-general, in the name of the people, and in the judicial district wherein the principal office of the com- pany within the state is located; and it shall be the duty of the board of railroad commissioners of the state to notify tlie attorney-general of all such violations coming to its notice. § 6.' That the board of railroad commissioners may, from time to time, after full hearing given and for good cause shown, exempt any company from the provisions of this act, as to the equipment of twenty per cent of its cars in any particular year or years, and may extend the time within which any company shall comply with the requirements of this act, not exceeding, however, five years from the first day of January, eighteen hundred and ninety-eight. L. 1893. Ch. 661. An Act in relation to the public health, constituting chap- ter twenty-five of the general laws. (This act repeals L. 1880 "ch, 339, entitled "An act to prevent the spread of con- tageous and Infectious diseases.") »»•♦•** Burial and burial permits. Section 23. Every such local board shall prescribe sani- tary regulations for the burial and removal of corpses, and 456 FoEMEB Extensions. Miscellaneous Railroad Laws. shall designate the persons who shall grant permits for such burial, and permits for the transportation of any corpse which is to be carried for burial beyond the county where the death occurred. Every undertaker, sexton or other per- son having charge of any corpse, shall procure a certificate of the death and the probable cause duly certified by the physician in attendance upon the deceased during his last illness, or by the coroner where an inquisition is required by law, and if no physician was in attendance, and no inquest has been held or required by law, an affidavit stating the circumstances, time and cause of death, and sworn to by some credible person known to the oflScer granting the per- mit, and there shall be no burial or removal of a corpse until such certificate or affidavit has been presented to the local board or to the person designated by it, and thereupon a permit for such burial or removal has been obtained. When application is made for a permit to transport a corpse over any railroad or upon any passenger steamboat within the state, the board of health, or the officers to whom such appli- cation is made, shall require such corpse to be inclosed in a hermetically sealed casket of metal or other indestructible material, if the cause of death shall have been from a con- tagious or infectious disease. L. 1893, Ch. 67!t. An Act for the relief of street surface railroad companies. Extensions or branches heretofore constructed; operation of author- ized. Section 1. Any street surface railroad corporation which shall have heretofore constructed and is now operating any extension or branch of its railroad along any streets or high- ways or portion thereof in a city having less than fifty thousand inhabitants, or in any town adjoining such city, and which shall heretofore have obtained consent of the owners of one-half in value of the property bounded on, and the consents also of the local authorities having control of that portion of the streets, roads or highways upon which such extension or branch is constructed and is being operated to the construction and operation of the same, is hereby Use. OF Certain Parks and Streets. 457 Miscellaneous Railroad Laws. authorized to operate and maintain any such branch or extension, upon filing in the office of the secretary of state a certificate, signed by its board of directors, which certificate shall contain a statement of the names of the cities, towns, villages and counties, and the names or description of the streets, avenues and highways in which such extensions or branches have been constructed, the places from and to which the same have been constructed and are to be main- tained and operated and the length thereof as near as may be; thereupon said extensions and branches shall be deemed and considered a part of the lines of said railway from the date of the filing thereof, and all corporate action relating to the construction, maintenance and operation of such extensions or branches, or creating liens upon the same by said corporation are hereby validated and confirmed. § 2. Nothing in this act contained shall affect or impair any vested right or any pending litigation, nor shall any corporation which shall avail itself of the provisions of this act be deemed thereby to have waived any rights which it theretofore had to maintain and operate any branch or extension named in any certificate filed by it hereunder. L. 1S94, Ch. 518. An Act to prevent the use of certain parks and streets in thie city of New York for railroads. Section 1. Except for necessary crossings, at the inter- section thereof with other streets or avenues, no surface street or other railroad, after the date of the passage of this act, shall be constructed or operated upon, over or under "West End avenue above Seventy-first Street, Cathedral parkway and Morningside park, or any avenue or street bounding on Morningside park in the city of New York, except Tenth avenue and Manhattan avenue. 458 Fare on Elevated Roads. Miscellaneous Railroad Laws. L, 1894, Ch. 743. An Act to facilitate travel upon elevated railroads in the city of New York. Section 1. Any passenger upon the Manhattan elevated railway who has paid the fare required for passage from any point on said railway east of Broadway, between the Bat- tery and One Hundred and Twenty-ninth street, not exceed- ing five cents, shall be entitled to a continuous passage, without change of cars, on the suburban rapid transit rail- way or on any railway owned or operated by the Manhattan railway company, within the city of New York, in connec- tion with said Manhattan elevated railway from One Hun- dred and Twenty-ninth street, or other termini of the lines of said Manhattan elevated railway south of the Harlem river, to any station on the route of said suburban rapid transit railroad, or such other elevated railroad as may be operated by the Manhattan railway company north of the Harlem river, without the payment of additional fare; and any passenger on the suburban rapid transit railroad, or any elevated railway owned or operated by the Manhattan railway company in connection with the Manhattan ele- vated railroad, within the city of New York, running south- ward to One Hundred and Twenty-ninth street, or other termini of the Manhattan railroad, who has paid the fare required on said suburban rapid transit railroad to One Hundred and Twenty-ninth street in the city of New York, not exceeding five cents, shall be entitled to a continuous passage, without change of cars, over the Manhattan ele- vated railway to any station on its route east of Broadway, between One Hundred and Twenty-ninth street and the Battery, without the payment of additional fare. INTERSTATE COMMEKCE ACT Approved Febkuaey 4, 1887, as Amended. Carriers and transportation subject to th.e act. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this act shall apply to any common carrier or carriers engaged in the transportation of passen- gers or property wholly by railroad, or partly by railroad and partly by water when both are used, under a common control, management, or arrangement, for a continuous car- riage or shipment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent for- eign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transship- ment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign 90untry : Provided, however. That the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a for- eign country from or to any State or Territory as aforesaid. What the terms " railroad " and " transportation " include. The term " railroad " as used in this act shall intlude all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a 460 E.EGOLATIXG COMMKBCE BKTWEKN THE StATES. Interstate (.'ommerce Act. * contract, agreement, or lease; and the term "transporta- tion " shall include all instrumentalities of shipment or carriage. Charges to be reasonable. All charges made for any service rendered or to be ren- dered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful. T7njust discrimination forbidden. § 2. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or prop- erty, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or per- sons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimi- nation, which is hereby prohibited and declared to be unlawful. TTndue or unreasonable preference or advantage forbidden. § 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any par- ticular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect what- soever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disad- vantage in any respect whatsoever. facilities for intercbange of traffic. Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all Regulating Commerce between the States. 461 Intel-state Commerce Act. reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiv- ing, forwarding, and delivering of passengers and property to and from their several lines and those connecting there- with, and shall not discriminate in their rates and chargea between such connecting lines; but this shall not be con- strued as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like biisiness. Xioug and short haul provision. § 4. That it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater compensation in the aggregate for the trans- portation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this act to charge" and receive as great compensation for a shorter as for a longer distance : Provided, however, that upon application to the commission appointed under the provisions of this act, such common carriers may, in special cases, after investigation by the commission, be authorized to charge less for longer than for shorter distances for the transportation of passen- gers or property; and the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act. Fooling of freights and division of earnings forbidden. § 5. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any con- tract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any case of an agreement for the pooling of freights as aforesaid, each day of its con- tinuance shall be deemed a separate offense. 462 REGtrLATING COMMEBOE BETWEEN' THE StA.TES. Interstate Commerce Act. Printing' and posting of schedules of rates, fares and charges. § 6. That every compion carrier subject to the provisions of this act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. The schedules printed as afore- said by any such common carrier shall plainly state the places upon its railroad between which property and pas- sengers will be carried, and shall contain the clasisification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect,, or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places, in every depot, station, or office of such carrier where passengers or freight, respectively, are received for trans- portation, in such form that they shall be accessible to the public and can be conveniently inspected. (Thus amended March 2, 1892.) Printing and posting of schedules of rates on freight carried through a foreign country. Any common carrier subject to the provisions of this act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspec- tion, at every depot or office where such freight is received for shipment, schedules showing the through rates estab- lished and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment; and any freight shipped from the United States through a iforeign country into the United States, the through rate on which shall not have been made public as required by this act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign produc- tion; and any law in conflict with this section is hereby repealed. Regulating Commeeoe betweek the States. 463 Interstate Commerce Act. Tea days' public notice of advance ia rates to be given; three days' public notice of reduction in rates to be given. No advance shall be made in the rates, fares, and charges which have been established and published as aforesaid by any common carrier in compliance with the requirements of this section, except after ten days' public notice, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. Reductions in such published rates, fares, or charges shall only be made after three days' previous public notice, to be given in the same manner that notice of an advance in rates must be given. Published rates not to be deviated from. i And when any such common carrier shall have estab- lished and published its rates, fares, and charges in com- pliance with the provisions of this section, it shall be unlaw- ful for such comnion carrier to charge, demand, collect, or receive from any person or persons a greater or less com- pensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such- published schedule of rates, fares, and charges as may at the time be in force. Copies of schedules of rates, fares and charges to be filed with com- mission; copies of contracts and agreements to be filed with commission; joint tariffs to be filed with commission; power of commission to prescribe publicity. 1 Every common carrier subject to the provisions of this act shall file with the commission hereinafter provided for copies of. its schedules of rates, fares, and charges which have been established and published in compliance with the requirements of this section, and shall promptly notify said commission of all changes made in the same. Every such common carrier shall also file with said commission copies , of all contracts, agree- ments, or arrrangements with other common carriers in relation to any traffic affected by the provisions of this act to which it may be a party. And in cases where 464 Regulating Oommeece between thr States. Interstate Commerce Act. passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs or rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said commission. Such joint rates, fares, and charges on such continuous lines so filed as afore- said shall be made public by such common carriers when directed by said commission, in so far as may, in the judg- ment of the commission, Tie deemed practicable; and said commission shall from time to time prescribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem it prac- ticable for such common carriers to publish, and the places in which they shall be published. Ten days' notice to commission of advance in joint rates, fares and charges; three days' notice to commission of reduction in joint rates, fares and charges; power of commission to make advances or reductions public. No advance shall be made in joint rates, fares, and charges, shown upon joint tariffs, except after ten days' notice to the commission, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect. No reduction shall be made in joint rates, fares, and charges, except after three days' notice, to be given to the commis- sion as is above provided in the case of an advance of joint rates. The commission may make public such proposed advances, or such reductions, in such manner as may, in it» judgment, be deemed practicable, and may prescribe from time to time the measure of publicity which common car- riers shall give to advances or reductions in joint tariffs. Joint rates, fares and charges not to be deviated from. It shall be unlawful for any common carrier, party to any joint tariff, to charge, demand, collect, or receive from any person or persons a greater or less cpmpensation for the transportation of persons or property, or for any services in connection therewith, between any points as to which a joint rate, fare, or charge is named thereon than is specified in the schedule filed with the commission in force at the time. Eegulating Commeeoe between the States. 465 Interstate Commerce Act. Commission may prescribe forms of schedules of rates, fares and charges. The commission may determine and prescribe the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged, and may change the form from time to time as shall be found expedient. Penalties for neglecting or refusing to file or publish, rates, fares and charges. If any such common carrier shall neglect or refuse to file or publish its schedules or tariffs of rates, fares, and charges as provided in this section, or any part of the same, such common carrier shall, in addition to other penalties herein prescribed, be subject to a writ of mandamus, to be issued by any circuit court of the United States in the judicial dis- trict wherein the principal office of said common carrier is situated, or wherein such offense may be committed, and if such common carrier be a foreign corporation in the judi- cial circuit wherein such common carrier accepts traffic and has an agent to perform such service, to compel compliance with the aforesaid provisions of this section; and such writ shall issue in the name of the people of the United States, at the relation of the commissioners appointed under the provisions of this act; and the failure to comply with its requirements shall be punishable as and for a contempt; and the said commissioners, as complainants, may also apply, in any such circuit court of the United States, for a writ of injunction against such common carrier, to restrain such common carrier from receiving or transporting prop- erty among the several states and territories of the United States, or between the United States and adjacent foreign countries, or between ports of transshipment and of entry and the several states and territories of the United States, as mentioned in the first section of this act, until such com- mon carrier shall have complied with the aforesaid provis- ions of this section of this act. Continuous carriage of freights not to be unnecessarily interrupted. § 7. That it shall be unlawful for any common carrier sub- ject to the provisions of this act to enter into any combina- tion, contract, or agreement, expressed or implied, to pre- 30 466 Regulating Commerce between the States. Interstate Commerce Act. vent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or inter- ruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this act. Iiiabllity of common carriers for damages. '\ § 8. That in case any common carrier subject to the pro- visions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common car- rier shall be liable to the person or persons injured thereby to the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case. Persons claiming to be damaged may complain to commission or bring suit in United States courts; officers, etc., of defendant may be compelled to testify. ' § 9. That any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the commission as herein- after provided for, or may bring suit in his ot their own behalf for the recovery of the damages for which such com- mon carrier may be liable under the provisions of this act, in any district or circuit court of the United States of com- petent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of proced- ure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of the corporation or com- Regulating Commeece between the States. 467 Interstate Commerce Act. pany defendant in such suit to attend, appear, and testify in such case, and may compel the production of the books and papers of such corporation or company party to any such suit; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evi- dence or testimony shall not be used against such person on the trial of any criminal proceeding. Penalties for violations of act by carriers, their officers or agents; fine and imprisonment. § 10. That any common carrier subject to the provisions of this act, or, whenever such common carrier is a corpora- tion, any director or officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such cor- poration, who, alone or with any other corporajtion, com- pany, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, mat- ter, or thing in this act prohibited or declared to be unlaw- ful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein, shall be deemed guilty of a misde- meanor, and shall, upon conviction- thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense : Provided, that if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fares, or charges, for the transportation of passengers or property, such person shall, in addition to the fine herein- before provided for, be liable to imprisonment in the peni- tentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Penalties for false billing, etc., by carriers, their ofQcers or agents; fine and imprisonment. Any common carrier subject to the provisions of this act, or, whenever such common carrier is a corporation, any 468 Regulating Commerce between the States. Interstate Commerce Act. officer or agent thereof, or any person acting for or employed by such corporation, who, by means of false billing, false classification, false weighing, or false report of weight, or by any other devise or means, shall knowingly and willfully assist, or shall willingly suffer or permit, any person or per- sons to obtain transportation for property at less than the regular rates than established and in force on the line of transportation of such common carrier, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceed- ing two years, or both, in the discretion of the court, for each offense. Penalties for false billing, etc., by shippers and other persons; fin« and imprisonment. Any person and any officer or agent of any corporation or company who shall deliver property for transportation to any common carrier, subject to the provisions of this act, or for whom as consignor or consignee any such carrier shall transport property, who shall knowingly and willfully, by false billing, false classification, false weighing, false representation of the contents of the package, or false report of weight, or by any other devise or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject for each offense to a fine of not exceeding five thousand dollars or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court. Penalties for inducing common carriers to discriminate unjustly; fine and imprisonment; joint liability with carrier for damages. If any such person, or any officer or agent of any such corporation or company, shall, by payment of money or other thing of value, solicitation, or otherwise, induce any Regulating Commekce between the States. 469 Interstate Commerce Act. common carrier subject to the provisions of this act, or any of its of&cgrs or agents, to discriminate unjustly in his, its, or their favor as against any other consignor or consignee in the transportation of property, or shall aid or abet any common carrier in any such unjust discrimination, such person or such officer or agent of such corporation or com- pany shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceeding two years, (jr both, in the dis- cretion of the court, for each offense; and such person, cor- poration, or company shall also, together with said common carrier, be liable, jointly or severally, in an action on the case to be brought by any consignor or consignee discrimi- nated against in any court of the United States of compe- tent jurisdiction for all damages caused by or resulting therefrom. (Thus amended March 2, 1889.) Interstate commerce commissioners; how appointed; terms of com- missioners. § 11. That a commission is hereby created and established to be known as the Interstate Commerce Commission, which shall be composed of five commissioners, who shall be appointed by the President, by and with the advice and con- sent of the Senate. The commissioners first appointed under this act shall continue in office for the term of two, three, four, five, and six years, respectively, from the first day of January, anno Domini eighteen hundred and eighty- seven, the term of each to be designated by the President; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall .be appointed only for the unexpired time of the commis- sioner whom he shall succeed. Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. Not more than three of the com- missioners shall be appointed from the same political party. No person in the employ of or holding any official relation to any common carrier subject to the provisions of this act, or owning stocks or bonds thereof, or who is in any manner 4Y0 Regui-ating Commeece between the States. Interstate Commerce Act. pecuniarily interested therein, shall enter upon the duties of or hold such office. Said commissioners shall not engage in any other business, vocation, or employment. No vacancy in the commission shall impair the right of the remaining commissioners to exercise all the powers of the commission. Power of com.m.ission to inquire into business df carriers; commission required to enforce the provisions of the act; power of the commis- sion to require attendance of witnesses and production of books and papers. § 12. That the commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the commission to perform the duties and carry out the objects for which i't was created; and the commission is hereby authorized and required to execute and enforce the provisions of this act; and, upon the request of the commission, it shall be the duty of any dis- trict attorney of the United States to whom the commission may apply to institute in the proper court and to prosecute under the direction of the Attorney-General of the United States all necessary proceedings for the enforcement of the provisions of this act and for the punishment of all viola- tions thereof, and the costs and expenses of such prosecu- tion shall be paid out of the appropriation for the expenses of the courts of the United States ; and for the purposes of this act the commission shall have power to require, by sub- poena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agree- ments, and documents relating to any matter under investigation. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hear- ing. And in case of disobedience to a subpoena the com- mission, or any party to a proceeding before the commission, may invoke the aid of any court of the United States in Rkgulatieg Commerce between the States. 471 Interstate Commerce Act. requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the proTisions of this section. Punishment for refusal to testify or piwduce books and papers. And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common car- rier or other person to appear before said commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evi- dence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. (Thus amended February 10', 1891.) Commission may order testimony to be taken by deposition^ The testimony of any witness may be taken, at the instance of a party in any proceeding or investigation depending before the commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer. The commission may also order testimony to be taken by deposition in any proceeding or investigation pend- ing before it, at any stage of such proceeding or investiga- tion. Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, Judge of a county court, or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the proceeding or investigation. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place 6f the tak- 472 Eegulating Commerce between the States. Interstate Commerce Act. ing of his deposition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the commission as hereinbefore provided. Every person deposing as herein provided shall be cau- tioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testi- mony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writing, be subscribed by the deponent. If a witness whose testimony may be desired to be taken by deposition be in a foreign country, the deposition may be taken before an officer or person designated by the com- mission, or agreed upon by the parties by stipulation in writing to be filed with the commission. All depositions must be promptly filed with the commission. Witnesses whose depositions are taken pursuant to this act, and the magistrate or other officer taking the same, shall severally be entitled to the same fees as are paid for like services in the courts of the United States, (This section was added by amendment February 10, 1891.) Complaints to commission; how and by whom made; reparation by carriers before investigation; investigations by the commission. § 13. That any person, firm, corporation or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization complaining of anything done or omitted to be done by any common car- rier subject to the provisions of this act in contravention of the provisions thereof, may apply to said commission by petition, which shall briefly state the facts; whereupon a statement of the charges thus made shall be forwarded by the commission to such, common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time, to be specified by the commission. If such common carrier, within the time speci- fied, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the com- plaint within the time specified, or there shall appear to be Regulating Commeeoe between the Statjis. 473 Interstate Commerce Act. any reasonable ground for inyestigating said complaint, it shall be the duty of the commission to investigate the mat- ters complained of in such manner and by such means as it shall deem proper. Said commission shall in like manner investigate any complaint forwarded by the railroad commissioner or rail- road commission of any state or territory, at the request of such commissioner or commission, and may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. X'inding^s of comiaission prima facie evidence in judicial proceedings. § 14. That whenever an investigation shall be made by said commission, it shall be its duty to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the commission are based, together with its recommendation as to what repara- tion, if any, should be made by the common carrier to any party or parties who may be found to have been injured; and such findings so made shall thereafter, in all judicial proceedings, be deemed prima facie evidence as to each and every fact found. < All reports of investigations njade by the commission shall be entered of record, and a copy thereof shall be fur- nished to the party who may have complained, and to any common carrier that may have been complained of. (Thus amended March 2, 1889.) Keports and decisions; authorized publication to be competent evi- dence; publication and distribution of annual reports of com- mission. The commission may provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such authorized publications shall be competent evidence of the reports and decisions of the commission therein contained, in all courts of the United States, and of the several States, without any further proof or authentication thereof. The commission may also cause to be printed for early distribu- tion its annual reports. 474: Hegulating Commerce between the States. Interstate Commerce Act. Notice to common carriers to cease from Tiolation of act; coiapliance with notice to cease from violation of act; reparation. § 15. That if in any case in which an investigation shall be made by said commission it shall be made to appear to the satisfaction of the commission, either by the testimony of witnesses or other evidence, that anything has been done or omitted to be done in violation of the provisions of this act, or of any law cognizable by said commission, by any common carrier, or that any injury or damage has been sustained by the party or parties complaining, or by other parties aggrieved in consequence of any such violation, it shall be the duty of the commission to forthwith cause a copy of its report in respect thereto to be delivered to such common carrier, together with a notice to said common carrier to cease and desist from such violation, or to make reparation for the injury so found to have been done, or both, within a reasonable time, to be specified by the com- mission; and if, within the time specified, it shall be made to appear to the commission that such common carrier has ceased from such violation of law, and has made reparation for the injury found to have been done, in compliance with the report and notice of the commission, or to the satisfac- tion of the party complaining, a" statement to that effect shall be entered of record by the commission, and the said common carrier shall thereupon be relieved from further liability or penalty for such particular violation of law. Petition to TTnited States courts in case of disobedience to order of commission; power of United States courts to hear and determine cases of disobedience; writs of injunction or other process against carriers in cases of disobedience; punishment for refusal to obey writs of injunction or other proper process; fine; appeals to supreme court of TTnited States. § 16. That whenever any common carrier, as defined in and subject to the provisions of this act, shall violate, or refuse or neglect to obey or perform any lawful order or requirement of the commission created by this act, not founded upon a controversy requiring a trial by jury, as provided by the seventh amendment to the constitution of the United States, it shall be lawful for the commission or for any company or person interested in such order or requirement, to apply in a summary Tvay, by petition, to the Circuit Court of the United States sitting in equity in Regulating Commeece between the States. 4:75 Interstate Commerce Act. the judicial district in which the common carrier com- plained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen; alleging such violation or disobedience, as the case may be, and the said court shall have power to hear and determine the matter, on such short notice to the common carrier com- plained of as the court shall deem reasonable; and such notice may be served on such common carrier, his or its officers, agents, or servants in such manner as the court shall direct; and said court shall proceed, to hear and deter- mine the matter as speedily as a court of equity, and with- out the formal pleadings and proceedings applicable tp ordi- nary suits in equity, but in such manner as to do justice in the premises; and to this end such court shall have power, if it think fit, to direct and prosecute in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judg- ment in the matter of such petition; and on such hearing the findings of fact in the report of said commission shall be prima facie evidence of the matters therein stated; and if it be made to appear to such court, on such hearing or on report of any such person or persons, that the lawful order or requirement of said commission drawn in question has been violated or disobeyed, it shall be lawful for such court to issue a writ of injunction or other proper process, man- datory or otherwise, to restrain such common carrier from further continuing such violation or disobedience of such order or requirement of said commission, and enjoining obedience to the same; and in case of any disobedience of any such writ of injunction or other proper process, manda- tory or otherwise, it shall be lawful for such court to issue writs of attachment, or any other process of said court inci- dent or applicable to writs of injunction or other proper process, mandatory or otherwise, against such common car- rier, and if a corporation, against one or more of the direct- ors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ of injunction, or other proper process, mandatory or otherwise; and said court may, if it shall think fit, make an order directing such common carrier or other person so dis- obeying such writ of injunction or other proper process, mandatory or otherwise, to pay such sum of money, not 476 Regulating Commerce between the States. Interstate Commerce Act. exceeding for each carrier or person in default the sum of five hundred dollars for every day, after a day to be named in the order, that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise; and such moneys shall be payable as the court shall direct, either to the party complaining or into court, to abide the ultimate decision of the court, or into the treas- ury; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attach- ment or order in the nature of a writ of execution, in like manner as if the same had been recovered by a final decree in personam in such court. When the subject in dispute shall be of the value of two thousand dollars or more, either party to such proceeding before said court may appeal to the Supreme Court of the United States, under the same regulations now provided by law in respect of security for such appeal; but such appeal shall not operate to stay or supersede the order of the court or the execution of any writ or process thereon ; and such court may, in every such mat- ter, order the payment of such costs and counsel fees as shall be deemed reasonable. Whenever any such petition shall be filed or presentd by the commission it shall be the duty of the district attorney, under the direction of the attorney-general of the United States, to prosecute the same; and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States. Petition to United States courts in cases of disobedience when trial by jury is necessary; trial by jury; trial by court; appeals to supreme court of TTnited States; counsel or attorney's fees. If the matters involved in any such order or requirement of said commission are founded upon a controversy requir- ing a trial by jury, as provided by the seventh amendment to the constitution of the United States, and any such com- mon carrier shall violate or refuse or neglect to obey or per- form the same, after notice given by said commission as provided in the fifteenth section of this act, it shall be law- ful for any company or person interested in such order or requirement to apply in a summary way by petition to the circuit court of the United States sitting as a court of law in the judicial district in which the carrier complained of Regdlatino Commeecb between the States. 477 Interstate Commerce Act, has its principal office, or in wliich tlie violation or disobed- ience of such order or requirement shall happen, alleging such violation or disobedience as the case may be; and said court shall by its order then fix a time and place for the trial of said cause, which shall not be less than twenty nor more than forty days from the time said order is made, and it shall be the duty of the marshal of the district in which said proceeding is pending to forthwith serve a copy of said petition, and of said order, upon each of the defendants, and it shall be the duty of the defendants to file their answers to said petition within ten days after the service of the same upon them as aforesaid. At the trial the findings of fact of said commission as set forth in its report shall be prima facie evidence of the matters therein stated, and if either party shall demand a jury or shall omit to waive a jury the court shall, by its order, direct the marshal forth- with to summon a jury to try the cause; but if all the parties shall waive a jury in writing then the court shall try the issues in said cause and render its judgment thereon. If the subject in dispute shall be of the value of two thousand dollars or more either party may appeal to the supreme court of the United States under the same regu- lations now provided by law in respect to security for such appeal; but such appeal must be taken within twenty days form the day of the rendition of the judgment of said Circuit Court. If the judgment of the Circuit Court shall be in favor of the party complaining he or they shall be entitled to recover a reasonable counsel or attorney's fee, to be fixed by the court, which shall be collected as part of the costs in the case. For the purposes of this act, excepting its penal pi|)visions, the Circuit Courts of the United States shall be deemed to be always in session. (Thus amended March 2, 1889.1 Interstate commerce commission; form of procedure; official seal. § 17. That the commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. A majority of the commission shall constitute a quorum for the transaction of business, but no commissioner shall participate in any hear- ing or proceeding in which he has any pecuniary interest. 478 Regulating Commerce between the States. Interstate Commerce Act. Said commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, including forms of notices and the service thereof, which shall con- form, as nearly as may be, to those in use in the courts of the United States. Any party may appear before said com- mission and be heard, in person or by attorney. Every vote and official act of the commission shall be entered of record, and its proceedings shall be public upon the request of either party interested. Said commission shall have an offi- cial seal, which shall be judicia:lly noticed. Either of the members of the commission may administer oaths and affir- mations and sign subpoenas. (Thus amended March 2, 1889.) Salaries of com.m.issioners; secretary, how appointed; salary; offices and supplies; witness fees. ' § 18. That each commissioner shall receive an annual sal- ary of seven thousand five hundred dollars, payable in the same manner as the judges of the courts of the United States. The commission shall appoint a secretary, who shall receive an annual salary of three thousand five hun- dred dollars, payable in like manner. The commission shall have authority to employ and fix the compensation of such other employes as it may find necessary to the proper per- formance of its duties. Until otherwise provided by law, the commission may hire suitable offices for its use, and shall have authority to procure all necessary office supplies. Witnesses summoned before the commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. Expenses of the commission; how paid. All of the expenses of the commission, including all neces- sary expenses for transportation incurred by the commis- sioners, or by their employes under their orders, in making any investigation, or upon official business in any other places than in the city of Washington, .shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chairman of the commission. (Thus amended March 2, 1889.) Regulating Oommkece between the States. 479 Interstate Commerce Act. Principal office of the commission; sessions of the commission. § 19. That the principal office of the commission shall ^ be in the city of Washington, where its general sessions shall be held; but whenever the convenience of the public or the parties may be promoted or delay or expSise prevented thereby, the commission may hold special sessions in any part of the United States. It may, by one or more of the commission- ers, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier sub- ject to the provisions of this act. Carriers subject to the act must render full annual reports to commis- sion; commission may prescribe methods of keeping accounts. § 20. That the commission is hereby authorized to require anniial reports from all common carriers subject to the pro- visioiis of this act, to fix the time and prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all questions upon which the commission may need information. Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same; the dividends paid, the surplus fund, if any, and the number of stockholders; the funded and fioating debts and the interest paid thereon; the cost and value of the carrier's property, franchises, and equipments; the number of employes and the salaries paid each class; the^amounts expended for improvements each year, how expended, and the chara;cter of such improvements; the earnings and receipts from each branch of business and from all sources; the operating a,nd other expenses; the balances of pro^t and loss; and a complete exhibit of the financial ope- rations of the carrier each year, including an annual bal- ance sheet. Such report shall also contain such information in relation to rates or regulations concerning fares or freights, or agreements, arrangements, or contracts with other common carriers, as the commission may require; and the said commission may, within its discretion, for the pur- pose of enabling it the better to carry out the purposes of this act, prescribe (if in the opinion of the commission it is practicable to prescribe such uniformity and methods of 480 Regulating Commerce between the States. Interstate Commerce Act. keeping accounts) a period of time within which all common carriers subject to the provisions of this act shall have, as near as may be, a uniform system of accounts, and the man- ner in which such accounts shall be kept. Annual reports of tlie commission to congress. § 21. That the commission shall, on or before the first day of December in each year, make a report, which shall be transmitted to congress, and copies of which shall be dis- tributed as are the other reports transmitted to congress. This report shall contain such information and data col- lected by the commission as may be considered of value in the determination of questions connected with the regula- tion of commerce, together with such recommendations as to additional legislation relating thereto as the commission may deem necessary; and the names and compensation of the persons employed by said commission. (Thus amended March 2, 1889.) Persons and property that may be carried free or at reduced rates; mileage, excursion, or commutation passenger tickets; passes and free transportation to o£B.cers and employes of railroad companies; pending litigation not affected by act. ! § 22. That nothing in this act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, state or municipal govenments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons transported by charitable societies, and the necessary agents employed in such transportation, or the issuance of mileage, excursion, or commutation passen- ger tickets; nothing in this act shall be construed to pro- hibit any common carrier from giving reduced rates to min- isters of religion, or to municipal governments for the trans- portation of indigent persons, or to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers, and of Soldiers and Sailors' Orphan Homes, including those about to enter and those returning home after discharge, under arrangement with the boards of managers of said homes; nothing in this act shall be construed to prevent railroads from giving free carriage to their own officers and employes, or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets Eegulating Commerce between the States. 481 Interstate Commerce Act. with other railroad companies for their officers and employes; and nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addi- tion to such remedies: Provided, That no pending litiga- tion shall in any way be affected by this act. (Thus amended March 2, 1889.) Jurisdiction of TTnited States courts to issue writs of perem.ptory man- damus commanding the movement of interstate traffic or the fur- nishing of cars or other transportation facilities. That the circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said conamon carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandanius against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ: Provided, that if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms a& to security, payment of money into the court, or otherwise,, as the court may think proper, pending the determination of the question of fact: Provided, that the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies pro- vided by this act or the act to which it is a supplement. (New section, added March 2, 1889.) 31 482 Regulatino Commerce between the States. Interstate Commerce Act. Supplemental tb the Interstate Commerce Act. An Act in relation to testimony before the Interstate Com- merce Commission- and in cases or proceedings under or connected with an act entitled " An act to regulate Com- merce," approved February fourth, eighteen hundred and eighty-seven, and amendments thereto. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agree- ments and documents before the Interstate Commerce Com- mission, or in obedience to the subpoena of the Commis- sion, whether such subpoena be signed or issued by one or more Commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled "An act to regu- late commerce," approved February fourth, eighteen hun- dred and eighty-seven, or of any amendment thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any pen- alty or forfeiture for or on account of any transaction, mat- ter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commis- sion, or in obedience to its subpoena, or the subpbena of either of them, or in any, such case or proceeding : Provided,. That no person so testifying shall be exempt from prosecu- tion and punishment for perjury committed in so testifying. Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements and documents, if in his power to do so, in obedience to the subpoena or lawful requirement of the Commission shall be guilty of an offense and upon conviction thereof by a court of compe- tent jurisdiction shall be punished by fine not less than one hundred dollars nor more than five thousand dollars, or by imprisonment for not more than one year or by both such fine and imprisonment. Regulating Commeeoe between the States. 483 Interstate Commerce Act. An Act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in inter- state commerce to equip their cars with automatic coup- lers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. Approved March 2, 1893. Be it enacted by the Senate and House of Eepresentatives of the United States of America in Congress assembled, That from and after the first day of January, eighteen hun- dred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traflQc not equipped with a power driving-wheel brake and appliances for operating the train-brakfe system, or to run any train in such traffic after said date that has not a suffi- cient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose. § 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars, § 3. That when any person, firm, company, or corporation engaged in interstate commerce by railroad shall have equipped a sufficient number of its cars so as to comply with the provisions of section one of this act, it may lawfully refuse to receive from connecting lines of road or shippers any cars not equipped sufficiently, in accordance with the first section of this act, with such power or train brakes as will work and readily interchange with the brakes in use on its own cars, as required by this act. § 4. That from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or hand-holds 484 Kegulating Commeece between the States. Interstate Commerce Act. in the ends and sides of each car for greater security to men in coupling and uncoupling cars. § '5. That within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the Interstate Commerce Commission the standard height of drawbars for freight cars, measured per- pendicular from the level of the tops of the rails to the cen- ters of the drawbars, for each of the several gauges of rail- road in use in the United States, and shall fix a maximum variation from such standard height to be allowed between the drawbars of empty and loaded cars. Upon their deter- mination being certified to the Interstate Commerce Com- mission, said commission shall at once give notice of the standard fixed upon to all common carriers, owners, or les- sees engaged in interstate commerce in the United States by such means as the commission may deem proper. But shoiild said association fail to determine a standard as above provided, it shall be the duty of the Interstate Commerce Commission to do so, before July first, eighteen hundred and ninety-four, and immediately to give notice thereof as aforesaid. And after July first, eighteen hundred and ninety-five, no cars either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard above provided for. Penalty for violation of the provisions of this act. § fi That any such ooramon carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hun- dred dollars for each and every such violation, to be recov- ered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed, and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred. And it shall also be duty of the Interstate Com- merce Commission to lodge with the proper district attor- neys information of any such violations as may come to its knowledge : Provided, That nothing in this act contained Regulating Commerce between the States. 485 Interstate Commerce Act. shall apply to trains composed of four-wheel cars or to locomotives used in hauling such trains. Power of interstate commerce comm.issioii to extend time of carriers to comply with, this act. § 7. That the Interstate Commerce Commission may from time to time upon full hearing and for good cause extend the period within which any common carrier shall comply with the provisions of this act. Employes not deemed to assume rist of employment. § 8. That any employe of any such common carrier who may be injured by any locomotive, car, or train in use con- trary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although con- tinuing in the employment of such carrier after the unlaw- ful use of such locomotive, car or train had been brought to his knowledge. MISCELLANEOUS STATUTES AFFECTING CORPOEATIONS GENEEALLY. L. 1890, Cir. 388. An Act to provide for the weekly payment of wages by corporations. Employes to be paid weekly. Section 1. Every manufacturing, mining, quarrying, lum- bering, mercantile, railroad other than a steam surface rail- road, steamboat, telegraph, telephone and municipal corpora- tion or joint-stock company, and every incorporated or joint stock express or water company, shall pay once a week to each of its employes the wages earned by such employe to within six days of the date of such payment unless any such employe shall be absent from his regular place of labor at the usual time of payment, in which case payment shall be made at any reasonable time thereafter upon demand. Every person or corporation operating a steam surface rail- road shall on or before the twentieth of each month pay the employes thereof the wages earned by them during the pre- ceding calendar month, unless any such employe shall be absent from his regular place of labor at the usual time of payment, in which case payment shall be made at any rea- sonable time thereafter upon demand. Whenever any such joint-stock company or corporation shall contract or lease its plant, works or business, to an agent or other person to conduct the same, and to turn over the product or receipts thereof to such joint-stock company or corporation, it shall be and it is hereby made a condition of such contract or lease that the agent or person so contracting or leasing the plant, works or business of such corporation or joint-stock company shall pay in cash weekly or monthly, or if a steam surface railway company, the wages earned by persons engaged by him to work in and about such plant, works or Wages ; Payable "Weekly. 487 Miscellaneous Statutes. business, the same as if sucli persons were employed directly by such corporations or joint-stock company. (Thus amended by L. 1893, ch. 717 ; L. 1895, ch. 791.) Penalty; factory inspectors may maintain action; charges for goods not to be an offset. § 2. Any joint-stock company or corporation violating any of the provisions of this act shall be liable to a penalty not exceeding fifty dollars and not less than ten dollars for each violation, to be paid to the people of the State, and which may be recovered in a civil action; provided notice in writing shall have been given such company or corpora- tion that such an action will be brought if such company or corporation, after service of such notice, shall at any time fail to comply with the provisions of this act. The factory inspector of this State, his assistant or deputies, may bring an action in the name of the people of the State as plaintiffs against any joint-stock company or corporation which neglects to comply with the provisions of this act within two weeks, after having been notified in writing by such inspector, assistant or deputies, that such action will be brought. On the trial of such action such joint-stock com- pany or corporation shall not be allowed to set up any defense for a failure to pay weekly, or monthly, if a steam surface railway company, any employe engaged in its busi- ness, the wages earned by such employe to within six days of the date of such payment, or for the preceding calendar month, if a steam surface railway company, other than a valid assignment of such wages or a valid set-off against the same, or in the absence of such employe from his regular place of labor at the time of payment, or an actual tender to such employe at the time of payment of the wages so earned by him, or a breach of contract by such employe, or a denial of the employment. No assignment of future wages, payable weekly or monthly, if a steam surface rail- way company, under the provisions of this act shall be valid if made to the corporation or joint-stock company from which such wages are to become due, or to any person on behalf of such joint-stock company or corporation, or if made or procured to be made to any person for the purpose of relieving snch joint-stock company or corporation from 488 Wages Payable in Cash. Miscellaneous Statutes. the obligation to pay weekly or monthly, if a steam surface railway company, under the provisions of this act. Charges for groceries, proTisions, or clothing shall not be made a valid offset for wages, nor shall any such corporation or joint-stock company require as a condition of employment any agreement from any employe to accept wages at other periods than as provided in section one of this act. Any person, acting as the agent or lessee of the corporation or joint-stock company, and operating its plant, works or busi- ness, and disposing of the products thereof chiefly or solely to such corporation or joint-stock company, who shall vio- late the provisions of this act, shall be guilty of a misde- meanor, and on conviction thereof shall be fined not less than ten dollars or more than fifty dollars. (Thus amended by L. 1893, ch. 717 ; L. 1895, ch. 791.) Proceedings regulated by Code; attorney-general to appear. § 3. The provisions of sections two hundred and sixty- three and three hundred and eighty-four of the code of civil procedure shall apply to and govern any proceedings brought to enforce the provisions of this act, as against joint-stock companies or corporations, and it is hereby made the duty of the attorney-general of this state to appear in behalf of such proceedings brought hereunder by the factory inspectors of this state, their assistants or deputies. (Thus amended by L. 1893, ch. 717.) L. 1889, Ch. 381. An act to provide for the cash payment of wages by corporations. Employes to be paid in cash. i Section 1. Every manufacturing, mining or quarrying, mercantile, railroad, street railway, canal, steamboat, tele- graph and telephone corporation, and every incorporated express company, and water company not municipal, shall pay to each and every employe engaged in its business the wages earned by such employe in cash; and it shall not be lawful for any of the above-named companies or corpora- tions to pay their employes in their own script or that of others commonly known as store money orders. Non-negotiable Bonds. ' 4:89 Miscellaneous Statutes. Penalty. § 2. Any corporation violating any of the provisions of this act shall be punished by a fine not exceeding fifty, and not less than ten dollars, on each complaint on which it is convicted, provided complaint for such violation is made within thirty days from the date thereof. L. 1873, Ch. 595. An Act relative to certain negotiable corporate bonds and obligations. Ho'w owner may make bonds non-negotiable. Section 1. The owner or holder of any corporate or muni- cipal bond or obligation (except such as are designed to circulate as currency) payable to bearer, heretofore issued, or which may hereafter be issued and payable in this State, but not registered in pursuance of any law thereof, may make the same non-negotiable (except as provided in the second section of this act) by subscribing his name to a state- ment indorsed thereon that such bond or obligation is his property; and thereupon the principal sum therein men- tioned shall be payable only to such owner or holder, or his legal representatives or assigns. How transferred after sucIl indorsement. § 2. The bonds and obligations mentioned in the last section, after having been indorsed as therein provided, may be transferred by an indorsement, in blank, or payable to bearer, or to order, with the addition of the assignor's place of residence. This act to apply to interest coupons. § 3. The provisions of this act shall apply to all interest coupons accompanying any corporate or municipal bond or obligation payable in this state. Sepeal. § 4. So much of chapter 84 of the Laws of 1871, entitled ^'An act to authorize the owners and holders of certain railroad mortgage bonds, made payable to bearer, to render the same payable to order only," as is inconsistent with this act is hereby repealed. See also provisions of L. 1871, ch. 81, p. 434. 490 Conditional Sales. Miscellaneous Statutes. L. 1884, Ch. 315. An Act requiring contracts for the conditional sale of per- sonal property on credit to be filed in the town clerk's and other offices. Instruments, where to be. filed. § 2, The instruments mentioned in the preceding section shall be filed in the several towns and cities of this State, where the person to whom such property is so contracted to be sold, if a resident of this State, shall reside at the time of the execution thereof; and if not a resident, then in the city or town where the property so contracted to be sold shall be at the time of the execution of such instrument. In the city of New York such instrument shall be filed in the office of the register of the city, and in the county of Kings in the office of the register of said county. In the several cities of this State other than the cities of New York and Brooklyn, and in the several towns of this State in which a county clerk's office is kept, in such office; and in each of the other towns in this State, in the office of the town clerk thereof. If the conditional vendee be a railroad corporation, the instrument mentioned in the preceding section shall be filed in the office of the clerk of each county through which its railroad is located, or, in counties where there is a regis- ter, in the office of the register, and such filing shall be deemed sufficient for all the purposes of this act. Such registers and clerks are hereby required to file all such instruments aforesaid, presented to them respectively for that purpose, and to indorse thereon the time of receiving the same, and shall deposit the same in their respective offices, to be kept there for the inspection of all persons interested. (Thus amended by L. 1885, ch, 488.) Application of act. § 7. This act shall not apply to household goods, pianos, organs, scales, butchers' and meat market tools and fixtures, wood-cutting machines and wood-cutting machinery, engines, boilers and portable furnaces, and boilers for heat- ing purposes, portable saw-mills and saw machines, thresh- ing machines and horse-powers, mowing machines, reapers and harvesters, and grain-drills, with their attachments. Conditional Sales. 491 Miscellaneous Statutes. vehicles, coaches, hearses, carriages, buggies and phaetons, bicycles and tricycles of all kinds and any other device for locomotion by human power; provided, that the contracts for the sale of the same be executed in duplicate, and one duplicate shall be delivered to the pijrchaser. In case household goods, pianos, organs, scales, butchers' and meat market tools and fixtures, wood-cutting machines and wood- cutting machinery, engines, boilers and portable furnaces and boilers for heating purposes, portable saw-mills and saw machines, threshing machines and horse-powers, mow- ing machines, reapers and harvesters and grain drills, with their attachments, vehicles, coaches, hearses, carriages, bug- gies and phaetons, bicycles and tricycles of all kinds and any other device for locomotion by human power, are sold upon the condition that the titles shall remain in the vendor, or some other person than the purchaser, until the payment of the purchase-price, or until the occurring of any future event or contingency, and the same are retaken by the ven- dor, or by his successor in interest, such property so retaken shall be retained for thirty days by the person by whom or on whose behalf the same has been so taken, during which time the purchaser or his successor in interest may fulfill such contract or .purchase, and shall be entitled thereupon to receive such property. After the expiration of such time, the person by whom or on whose behalf the said property has been taken may proceed to sell the same at public auction, and out of the proceeds may retain the balance remaining unpaid on the purchase-price and the expenses of storing, advertising and sale thereof ; and any surplus remaining shall be paid to the person or persons from whom the property was taken. But no such sale shall be made until after the giving of a printed or written notice of such sale to the person or persons from whom the said property has been taken, requiring such person or persons to pay such unpaid balance and oxpenses, and that in case of default in so doing that such property will be sold to pay the same, at a time and place to be specified in the notice. Such notice sTiall be served personally at least fifteen days before the time of such sale upon the person or persons from whom the prop- erty was taken, providing such service can be made with 4:92 UsB OP CoEPOEATE Name by Paetijership. Miscellaneous Statutes. •reasonable diligence within tlie State of New York. If the person or persons from whom the property was taken can not with reasonable diligence be found, within the State of New York, then such notice shall be given by publication once in each week for four successive weeks, before the time of such sale in a newspaper published at or nearest the place where such sale is to take place. This act shall not apply to railroad equipment or rolling stock sold, leased or loaned, under a contract which has been or must be recorded pursuant to the provisions of chapter three hundred and eighty-three of the laws of eighteen hundred and eighty- three, entitled "An Act relating to certain contracts for the lease or conditional sale of railroad equipment and rolling stock, and providing for the record thereof." (Thus amended by L. 1885, ch. 488 ; L. 1886, eh. 495 ; L. 1888, ch. 225 ; L. 1892, ch. 632 ; L. 1895, ch. 925.) L. 1893, Oh. 263. An Act to amend chapter two hundred and flfty-six of the laws of eighteen hundred and sixty-eight, entitled "An act in relation to partnerships and the use by new part- nerships of the names of former partnerships," as amended by chapter four hundred and twenty-five of the laws of eighteen hundred and eighty-one. Corporate names, use of, by partnerships. Section 1. Any limited partnership which may hereafter be formed under the laws of this state may use the firm or corporate name of any general or limited partnership or of any corporation, domestic or foreign, which may thereto- fore have carried on its business within this state, where said general or limited partnership or corporation has dis- continued or shall be about to discontinue its business within the state, and where a majority of the partners, general or special, in either of such last mentioned copart- nerships or of the survivors thereof shall be members of the new limited copartnership, or where a majority of the mem- bers of such copartnership theretofore existing or of the surviving members thereof, or of the stockholders of such corporation shall consent in writing to the use of such firm or corporate name by such new copartnership, upon com- UsB OF Railroads, etc., by Certain Offioers. 493 Miscellaneous Statutes. plying with, the provisions of the act entitled "An act allowing the continued use of copartnership names in cer- tain cases," passed April seventeenth, eighteen hundred and fifty-four, and the act amendatory thereof, so far as the same may be applicable. L. 1851, Ch. 321. An Act authorizing married women who may be members or stockholders of any incorporated company, to vote at elections of directors and trustees. Section 1. It shall be lawful for any married woman, being a stockholder or member of any bank, insurance com- pany (other than mutual fire insurance companies), manu- facturing company 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. L. 1895, Oh. 417. An Act to regulate the exercise of their franchises by cer- tain public corporations, by requiring them to afford facili- ties for the transaction of the public business, to certain public officers and employes. Section 1. The mayor of each city of this State and the president of each incorporated village may issue, under the seal of his office, to each policeman and fireman appointed by the duly-constituted authorities of such city or village, a certificate of the appointment and qualification of such policeman or fireman as such, and specifying the duration of his term of office; and it shall thereupon be the duty of every street surface and elevated railroad company carrying on business within such city or village, to transport every such policeman or fireman free of charge while he is travel- ing in the course of the performance of the duties of his office. Every telegraph or telephone company engaged in business wititiin such city or village, shall afford to such policeman or fireman the use of its telegraph lines or tele- 494 Use of Railroads, etc., bt Certain Officers. Miscellaneous Statutes. phones for tlie purpose of making and receiving reports and communications in the course of the performance of his offi- cial duties. § 2. Every policeman or fireman who shall permit any other person to use the certificate issued to him as provided by this act, or to present or make use of the same, except while acting in the course of the performance of his official duties, or who shall use such certificate after the expiration of his term of office or his resignation or removal therefrom, shall be deemed guilty of a misdemeanor. THE PENAL CODE. NUMEEICAL AERAJSTGEMENT OF SECTIONS SPEC- IALLY APPLICABLE TO CORPORATIONS. Corporations convicted of offenses; punishment. § 13. Whenever in this code the punishment for crime is left undetermined between certain limits, the punish- ment to be inflicted in a particular case must be deter- mined by the court authorized to pass sentence within such limits as may be prescribed by this code. In all cases where a corporation is convicted of an offense for the com- mission of which a natural person would be punishable with imprisonment, as for a felony, such corporation is pun- ishable by a fine of not more than five thousand dollars. (Thus amended by cJi. 218, L. 1892.) Befusal to permit employes to attend election. § 41f. A person or corporation who refuses to an employe entitled to vote at an election or town meeting, the privi- lege of attending thereat, as provided by the election law, or subjects such employe to a penalty or reduction of wages because of the exercise of such privilege, is guilty of a mis- demeanor. (Thus amended by eh. G93, L. 1892.) Compelling employes to agree not to join any labor organization a misdemeanor. § 171a. Any person or persons, employer or employers of labor, and any person or persons of any corporation or corporations on behalf of such corporation or corporations, who shall hereafter coerce or compel any person or persons, employe or employes, laborer or mechanic, to enter into an agreement, either written or verbal from such person, per- sons, employe, laborer or mechanic, not to join or become a member of any labor organization, as a condition of such 496 Sections Specially Applicable to Corporations The Penal Code. person or persons securing employment, or continuing in the employment of any such person or persons, employer or employers, corporation or corporations, shall be deemed guilty of a misdemeanor. The penalty for such misde- meanor shall be imprisonment in a penal institution for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment. (Thus amended by L. 1887, ch. 688.) Iiiabillty of persons in charge of steam engines. § 199. An engineer or other person having charge of a steam boUer, steam engine, or other apparatus for generat- ing or applying steam, employed in a boat or railway, or in a manufactory, or in any mechanical works, who will- fully, or from ignorance or gross neglect, creates, or allows to be created, such an undue quantity of steam as to burst the boiler, engine or apparatus, or to cause any other acci- dent whereby the death of a human being is produced, is guilty of manslaughter in the second degree. TJse of force or violence, declared not unlawful, etc. § 223. To use or attempt, or offer to use, force or violence upon or towards the person of another is not unlawful in the following cases ; * ♦ ♦ \ 5. When committed by a carrier of passengers, or the authorized agents or servants of such carrier, or by any person assisting them, at their request, in expelling from a carriage, railway car, vessel or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force or violence used is not more than sufficient to expel the offending passenger, with a reasonable regard to his personal safety; ♦ » • See Ansteth v. Buffalo Ry. Co., 9 Misc. R., 419. Keeping gaming and betting establishments. § 343. Any corporation or association or the officers thereof or any co-partnership or individual, who keeps a room, shed, tent, tenement, booth, building, float or vessel, or any part thereof to be .used for gambling or for any pur- pose or in any manner forbidden by this chapter, or for mak- ing any wagers or bets made to depend upon any lot, chance, casualty, unknown or contingent event, or on the future Sections Specially Applicable to Corporations. 497 The Peaal Code. price of stocks, bonds, securities, commodities or property of any description whatever or for making any contract or eon- tracts for or on account of any money, property or thing in action, so bet or wagered, or being the owner or agent,, linowingly lets or permits the same to be so used, is guilty of a misdeameanor. This section shall not be extended sO' as to prohibit or in any manner affect any insurance made in good faith for the security or indemnity of the party insured and which is not otherwise prohibited by law, nor to an;^ contract on bottomry or respondentia. (Thus amended by L. 1895, ch. 571.) Pool-selling, book-making, bets and wagers, et cetera. § 351. Any person who engages in pool-selling, or book- making at any time or place; or any person who keeps or occupies any room, shed, tenement, tent, booth, or building, float or vessel, or any part thereof, or who occupies any place, or stand of any kind, upon any public or privaite grounds, within this State, with books, papers, apparatus or paraphernalia, for the purpose of recording or registering- bets or wagers, or of selling pools, and any person who records or registers bets or wagers, or sells pools upon the result of any trial or contest of skill, speed or power of endurance, of man or beast, or upon the result of any politi- cal nomination, appointment or election ; or upon the result of any lot, chance, casualty, unknown or contingent event whatsoever; or any person who receives, registers, records or forwards, or purports or pretends to receive, register, record or forward, in any manner whatsoever, any money, thing or consideration of value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person, or sells pools, upon any such result; or any person who, being the owner, lessee, or occupant of any room, shed, tenement, tent, booth or building, float or vessel, or part thereof, or of any grounds within this State, knowingly per- mits the same to be used or occupied for any of these pur- poses, or therein keeps, exhibits or employs any device or apparatus for the purpose of recording or registering such bets or wagers, or the selling of such pools, or becomes the custodian or depositary for gain, hire or reward, of any money, property or thing of value, staked, wagered or 32 498 Sections Specially Applicable to Coepoeations. The Penal Code. pledged, or to be wagered or pledged upon any such result; or any person who aids, assists or abets in any manner in any of the said acts, which are hereby forbidden, is guilty of a felony, except when another penalty is provided by law, and upon conviction is punishable by imprisonment in the State prison for a period not less than one year, nor more than two years, or by such imprisonment, together with a fine not exceeding two thousand dollars. When an exclu- sive penalty is provided by law for an act hereby prohibited, the permitting of the use of premises for the doing of the act in such case shall not be deemed a violation hereof, or of section three hundred and forty-three of this code. (Thus amended by L. 1895, ch. 572.) KCismanagemeiit of steam boilers. § 362. An engineer or other person having charge of a steam boiler, steam engine or other apparatus for generat- ing or employing steam employed in a railway, manufac- tory, or other mechanical works, who, willfully or from ignorance or gross neglect, creates or allows to be created such an undue quantity of steam as to burst the boiler, engine or apparatus, or cause any other accident whereby human life is endangered is guilty of a misdemeanor. Innkeepers and carriers refusing to receive guests and passengers. § 381. A person, who, either on his own account or as agent or ofiBlcer of a corporation, carries on business as inn- keeper, or as common carrier of passengers, and refuses, without just cause or excuse, to receive and entertain any guest, or to receive and carry any passenger, is guilty of a misdemeanor. protecting civil and public rights. § 383. No citizen of this state can by reason of race, color, ^r previous condition of servitude, be excluded from the equal enjoyment of any accommodation, facility or privi- lege furnished by innkeepers, or common carriers, or by owners, managers or lessees of theatres or other places of amusement, by teachers and officers of common schools and public institutions of learning, or by cemetery associations. The violation of this section is a misdemeanor, punishable by a fine of not less than fifty dollars, nor more than five hundred dollars. Sections Specially Applicable to Coepoeations. 499 The Penal Code. Penalty for neglect to post schedule of ferry rates. § 415a. A person, corporation or association operating any ferry in this state, or between this state and any other state, operating from or to a city of five hundred thousand inhabitants or over, posting a false schedule of ferry rates, or neglecting to post in a conspicuous and accessible place in each of its ferry-houses, in plain view of the passengers, a schedule, plainly printed in the English language, of the rates of ferriage charged thereon and authorized by law to be charged for ferriage over such ferry, is guilty of a misdemeanor: (Added by L. 1893, ch. 692.) For other regulations as to posting schedule of raites, see pages 157 and 159, respectiTely. Eerries. § 415. A person who : 1. Maintains a ferry for profit or hire upon any of the waters of this state without authority of law; or 2. Having entered into a recognizance to keep or main- tain a ferry, violates the condition of such recognizance; Is guilty of a misdemeanor. Where such ferry is upon waters dividing two counties, the offender may be prosecuted in either county. (Thus amended by L. 1892, ch. 692, and combines former sections 416 and 417.) TTnlawful offers to railroad commissioners or their ' employes. § 416. Any officer, agent or attorney of a railroad cor- poration, who ofEers a place, appointment, position or any other consideration to a railroad commissioner, or to a secretary, clerk, agent, employe, or expert employed by the board of railroad commissioners is guilty of a misdemeanor. (Thus amended by L. 1892, ch. 692.) Misconduct of railroad commissioners and of their employes. § 417. Any railroad commissioner, or any secretary, clerk, agent, expert or other person employed by the board of railroad commissioners, who : 1. Directly or indirectly solicits or requests from or recommends to any railroad corporation, or to any officer, C0UN6ELOR-AT-LAW, ;--^.0WALL6T., NEW YOnk<. 500 Sections Specially Applicable to Corpobations. The Penal Code. attorney or agent thereof, the appointment of any person to any place or position; or 2. Accepts, receives or requests, either for himself or for any other person, any pass, gift or gratuity from auy rail- road corporation; or, 3. Secretly reveals to any railroad corporation, or to any ofllcer, member, or employe thereof, any information gained by him from any other railroad corporation ; Is guilty of a misdemeanor. (Thus amended by ch. G92, L. 1892.) R. S., 1844, L. 1883, ch. 353, § 14. Person unable to read not to act or be employed as engineer. § 418. Any person unable- to read the time tables of a railroad and ordinary handwriting, who acts as an engineer or runs a locomotive or train on any railroad in this State; or any person who, in his own behalf, or in the behalf of any other person or corporation, knowingly employs a per- son so unable to i*ead to act as such engineer or to run any such locomotive, is guilty of a misdemeanor; or who employs a person as a telegraph operator who is under the age of eighteen years, or who has less than one year's experience in telegraphing, to receive or transmit a telegraphic mes- sage or train order for the movement of trains, is guilty of a misdemeanor. (Thus amended by L. 1892, ch. 692 ; L. 1895, ch. 892.) , lyiisconduct of officials or employes on elevated railroads. § 419. Any conductor, brakeman, or other agent or employe of an elevated railroad, who : 1. Starts any train or car of such railroad, or gives any signal or order to any engineer or other person to start any such train or car, before every passenger therein who mani- fests an intention to depart therefrom by arising or moving toward the exit thereof, has departed therefrom ; or before every passenger on the platform or station at which the train has stopped, who manifests a desire to enter the train, has actually boarded or entered the same, unless due notice is given by an authorized employe of such railroad that the train is full, and that no more passengers can then be received; or. Sections Specially Applicable to Coepobations. 501 The Penal Code. 2. Obstructs the lawful ingress or egress of a passenger to or from any such car; or, 3. Opens a platform gate of any such car while the train is in motion, or starts such train before such gate is firmly closed; is guilty of a misdemeanor. (Thus amended by L. 1892, ch. 692.) Intoxication or other misconduct of railroad or steamboat employes. § 420. 1. Any person who, being employed upon any railway as engineer, conductor, baggagemaster, brakeman, switchtender, fireman, bridge-tender, flagman, signal man, or having charge of stations, starting, regulating or run- ning trains upon a railroad, or, being employed as captain, engineer or other oflScer of a vessel propelled by steam is intoxicated while engaged in the discharge of any such duties ; or, 2. An engineer, conductor, brakeman, switch-tender, or other officer, agent or employe of any railroad corporation, who willfully violates or omits his duty as such officer, agent or employe, by which human life or safety is endan- gered, the punishment of which is not otherwise prescribed; is guilty of a misdemeanor. (Thus amended by L. 1892, ch. G92.) ~ Failure to ring bell, etc. § 421. A person acting as engineer, driving a locomotive on any railway in this state, who fails to ring the bell, or sound the whistle, upon such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing such bell or sounding such whistle at intervals, until such loco- motive and the train to which the locomotive is attached shall have completely crossed such road or street, or any officer or employe of a corporation who shall willfully obstruct, or cause to be obstructed, any farm or highway crossing with any locomotive or car for a longer period than five consecutive minutes, is guilty of a misdemeanor. (Thus amended by L. 1891, ch. 358.) Placing passenger oar in front of merchandise or freight car. § 422. A person, being an officer or employe of a railway company, who knowingly places, directs, or suffers a freight, 502 'Sections Specially Applicable to Coepokations. The Penal Code. lumber, merchandise, or qU car to be placed in rear of a car used for the conveyance of passengers in a railway train, is guilty of a misdemeanor. (Thus amended by L. 1889, ch. 267.) Platforms and heating apparatus of passenger cars. § 423. A railroad corporation, or any officer or director thereof having charge of its railroad, or any person manag- ing a railroad in this state, or any person or corporation running passenger cars upon a railroad into or through this state, who : 1. Fails to have the platforms or ends of the passenger cars run upon such railroad constructed in such manner as will prevent passengers falling between the cars while in motion; or, x 2. Except temporarily, in case of accident or emergency, heats any passenger car, while in motion, on any such rail- road more than fifty miles in length, except a narrow gauge railroad which runs only mixed trains, between October fif- teenth and May first, by any stove or furnace inside of or suspended from such car, except stoves of a patters and kind approved by the board of railroad commissioners for cooking purposes in dining-room cars, and except within the extended time allowed by the railroad commissioners in pursuance of law for introducing other heating appar- atus; is guilty of a misdemeanor. (Thus amended by L. 1802, ch. C92.) Guard posts; automatic couplers. ' § 424. All corporations and persons other than employes, operating any steam railroad in this state, 1. Failing to cause guard posts to be placed in the pro- longation of the line of bridge trusses upon such railroad, so that in case of derailment, the posts and not the trusses shall receive the blow of the derailed locomotive or car; or, 2. Failing after November 1st, 1892, to equip all of their own engines and freight cars, run and used in freight or other trains on such railroad, with automatic self- couplers, or running or operating on such railroad any freight car belonging to any such person or corporation, without hav- ing the same equipped, except in case of accident or other emergency, with automatic self-couplers, and except within Sections Specially Applicable to Cokpokations. 503 The Penal Code. the extended time allowed by the board of railroad com- missioners, in pursuance of law for equipping such car with such couplers; Is guilty of a misdemeanor, punishable by a fine of five hundred dollars for each offense. (Thus amended by L. 1892, ch. 692.) Officers of railroad companies to be uniformed. § 425. A person who, 1. Advises or induces any one, being an officer, agent or employe of a railway company, to leave the service of such company, because it requires a uniform to be worn by such officer, agent or employe, or to refuse to wear such uni- form, or any part thereof; or 2. Uses any inducement with a person employed by a railway company to go into the. service or employment of any other railway company, because a uniform is required to be worn; or 3. Wears the uniform designated by a railway company without authority; Is* guilty of a misdemeanor. Biding on freight trains. § 426. A person who rides any engine or any freight or wood car of any railway company, without authority or permission of the proper officers of the company or of the person in charge of said car or engine; or 2., Who gets on any car or train while in motion (for the purpose of obtaining transportation thereon as a passen- ger); or ' 3. Who willfully obstructs, hinders or delays the passage of any car lawfully running upon any steam or horse, or street railway, Is guilty of a misdemeanor. (Thus amended by L. 1890.) Iiights ^pon swing bridges. § 433a. A corporation, company or individual, owning, maintaining or operating a swing bridge across the Hudson river who during the navigation season between sundown and sunrise, neglects to keep and maintain upon every 504 Sections Specially Applicable to Coepoeations. The Penal Code. such bridge the lights required by law, is guilty of a misdemeanor. (Added by L. 1893, cli. 692.) Forgery in first degree defined. § 509. A person is guilty of forgery in the first degree who with intent to defraud, forges, • * * 2. A certificate of the acknowledgment or proof of a will, codicil, deed, or other instrument, which by law may be recorded or given in evidence when duly proved or acknowl- edged, made or purporting to have been made by a court or officer duly authorized to make such a certificate ; or 3. A certificate, bond, paper, writing, or other public security, issued or purporting to have been issued by or under the authority of this state, or of the United States, or of any other state or territory of the United States, or of any foreign government, country or state, or by any officer thereof in his official capacity, by which the pay- ment of money is promised absolutely or upon any con- tingency, or the receipt of any money or property ia acknowledged, or being or purporting to be evideace of any debt or liability, either absolute or contingent,, issued or purporting to have been issued by lawful authority; or 4. An indorsement or other instrument, transferring or purporting to transfer the right or interest of any holder of such a certificate, obligation, public security, evidence of debt or liability, or of any person entitled to such right or interest; or 5. A certificate of stock, bond or other writing, bank note, bill of exchange, draft, check, certificate of deposit, or other obligation or evidence of debt, issued or purport- ing to be issued by any bank, banking association or body corporate existing under the laws of this state, or of the United States, or of any other state, government, or coun- try, declaring or purporting to declare any right, title or interest of any person in any portion of the capital stock, or property of such a body corporate, or promising or pur- porting to promise or agree to the payment of money, or the performance of any act, duty, or obligation; or 6. An indorsement or other writing, transferring or pur- porting to transfer the right or interest of any holder of Sections Specially Applicable to Coepoeations. 505 The Penal Code. such a certificate, bond, or writing obligatory, or of any person entitled to such, right or interest. Palse certificate to certain instruments. § 510. An officer authorized to take the proof or acknowl- edgment of an instrument which by law may be recorded, who willfully certifies, falsely that the execution of such an instrument was acknowledged by any party thereto, or that the execution of any such instrument was proved, is guilty of forgery in the first degree. Porgery in second degree. § 5li. A person is guilty of forgery in the second degree who, with intent to defraud, 1. Forges the great or privy seal of this state, the seal of any court of record, or of any public office or officer authorized by law, or of any body corporate created by or existing under the laws of this state, or of the United States, or of any other state or any territory of the United States, or of any other state, government, or country, or any impression of such a seal; or any gold or silver coin, whether of the United States, or of any foreign state, gov- ernment or country; or 2. Forges a record of a will, conveyance, or instrument of any kind, the record of which is by the law of this state made evidence, or of any judgment, order or decree of any court or officer, or a certified or authenticated copy thereof; or A judgment roll, judgment, order, or decree of any court or officer, or an enrollment thereof, or a certified or authen- ticated copy thereof, or any document or writing .pur- porting to be such judgment, order, decree, enrollment, or copy; * * * ' ; I'orgery in third degree. § 514. A person who either, 1. Being an officer or in the employment of a corporation, association, partnership or individual, falsifies, or unlaw- fully and corruptly alters, erases, obliterates or destroys any accounts, book of accounts, records, or other writing, belonging to or appertaining to the business of the corpo- ration, association, partnership, or individual; or 506 Sections Specially Applicable to Coepokations. The Penal Code. 2, Who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit, shall cause, aid, abet, assist or otherwise connive at, or be a party to, the makings altering, forging or counterfeiting of any letter, telegram, report or other written communication, paper or instru- ment, by which making, altering, forging or counterfeiting, any other person shall be in any manner injured in his good name, standing, position, or general reputation; * * Porgery, third degree. § '515. A person who, with intent to defraud or conceal any larceny or misapi>ropriation by any person of any money or property, either : 1. Alters, erases, obliterates, or destroys an account, book of accounts, record, or writing, belonging to, or appertain- ing to the business of, a corporation, association, public office or officer, partnership, or individual; or 2. Makes a false entry in any such account or book of accounts; or, 3. Willfully omits to make true entry of any material particular in any such account or book of accounts, made, written, or kept by him or under his direction; Is guilty of forgery in the third degree. rorging passage tickets. § 516. A person who, with intent to defraud, forges, coun- terfeits, or falsely alters any ticket, check or other paper or writing, entitling or purporting to entitle the holder or proprietor thereof to a passage upon any railway or in any vessel or other public conveyance; and a person who, with like intent, sells, exchanges or delivers, or keeps or offers for sale, exchange or delivery, or receives upon any pur- chase, exchange or delivery, any such ticket, knownig the same to have been forged, counterfeited or falsely altered, is guilty of forgery in the third degree. Officer of corporation selling, etc., shares. § 518. An officer, agent or other person employed by any company or corporation existing under the laws of this state, or of any other state or territory of the United States, or of any foreign government, who willfully and with a design to defraud, sells, pledges or issues, or causes to be sold, pledged or issued, or signs or procures to be signed Sections Specially Applicable to Cokpoeations. 507 The Penal Code. with intent to sell, pledge or issue, or to be sold, pledged or issued, a false, forged or fraudulent paper, writing or instrument, being or purporting to be a scrip, certificate or other evidence of the ownership or transfer of any share or shares of the capital stock of such company or corporation, or a bond or other evidence of debt of such company or cor- poration, or a certificate or other evidence of the ownership or of the transfer of any such bond or other evidence of debt, is guilty of forgery in the third degree, and upon con- viction, in addition to the punishment prescribed in this title for that offense, may also be sentenced to pay a fine not exceeding three thousand dollars. Falsely indicating person as corporate officer. § 519. The false making or forging of an instrument or writing, purporting to have been issued by or in behalf of a corporation or association, state or government, (and bearing the pretended signature of any person, therein falsely indicated as an agent or officer of such corporation, is forgery in the same degree, as if that person were in truth such officer or agent of the corporation or association, state or government. Frauds in th.e organization of corporations. § 590. A person who r 1. Without authority subscribes the name of another to or inserts the name of another in any prospectus, circular or other adN'ertisement or announcement of any corporation or joint-stock association existing or intended to be formed, with intent to permit the same to be published, and thereby to lead persons to believe that the person whose name is so subscribed is an officer, agent, member or promoter of such corporation or association; or, 2. Signs the name of a fictitious person to any subscrip- tion for, or agreement to take stock in any corporation, existing or proposed; or, 3. Signs to any such subscription or agreement the name of any person, knowing that such person does not intend in good faith to comply with the terms thereof, or under 508 Sections Spkciallt Applicable to Corporations. The Penal Code. any understanding or agreement, that the terras of such subscription or agreement are not to be complied with or enforced; Is guilty of a misdemeanor. (Thus amended by L. 1892, ch. 692.) Fraudulent issue of stock, etc. § 591. An officer, agent or other person in the service of any joint-stock company or corporation formed or existing under the laws of this state, or of the United States or of any state or territory thereof, or of any foreign government or country, who willfully and knowingly, with intent to defraud, either: 1. Sells, pledges or issues, or causes to be sold, pledged or issued, or signs or executes, or causes to be signed or executed with intent to sell, pledges or issues, or causes to be sold, pledged or issued, any certificate or instrument purporting to be a certificate or evidence of the ownership of any share or shares of such company or corporation, or any bond or evidence of debt, or writing purporting to be a bond or evidence of debt of such company or corporation, without being first thereto duly authorized by such company or corporation, or contrary to the charter or laws under which such corporation or company exists, or in excess of the power of such company or corporation or of the limit imposed by law or otherwise upon its power to create or issue stock or evidences of debt; or 2. Eeissues, sells, pledges or disposes of, or causes to be reissued, sold, pledged or disposed of, any surrendered or canceled certificates, or other evidence of the transfer or ownership of any such share or shares, is punishable by imprisonment for a term not exceeding seven years, or by a fine not exceeding three thousand dollars, or by both. (Thus amended by L. 1892, ch. 692.) Fraud in organizing corporation, etc. § 592. An officer, agent or clerk of a corporation, or of persons proposing to organize a corporation, or to increase the capital stock of a corporation, who knowingly exhibits a false, forged or altered book, paper, voucher, security or other instrument of evidence to any public officer or board authorized by law to examine the organization of such Sections Specially Applicable to Coepokations. 509 The Penal Code. corporation, or to investigate its affairs, or to allow an increase of its capital, with intent to deceive such officer or board in respect thereto, is punishable by imprisonment in a state prison not exceeding ten years. (Thus amended by L. 1892, ch. 662.) '' IVEiscouduct of directors of stock corporations. § 594. A director of a stock corporation, who concurs in any vote or act of the directors of such corporation, or any of them, by which it is intended, 1. To make a dividend, except from the surplus profits arising from the business of the corporation, and in the cases and manner allowed by law; or 2. To divide, withdraw, or in any manner pay to the stockholders, or any of them, any part of the capital stock of the corporation; or to reduce such capital stock without the consent of the legislature; op 3. To discount or receive any note or Other evidence of debt in payment of an installment of capital stock actually called in, and required to be paid, or with intent to provide the means of making such payment; or 4. To receive or discount any note or other evidence of debt with intent to enable any stockholder to withdraw any part of the money paid in by him on his stock; or 5. To apply any portion of the funds of such corporation, except surplus profits, directly or indirectly, to the purchase of shares of its own stock; or 6. To receive any such shares in payment or satisfaction of a debt due to such corporation; or 7. To receive in exchange for the shares, notes, bonds or other evidences of debt of such corporation, shares of the capital stock, notes, bonds or other evidences of debt issued by any other stock corporation- engaged in another line of business, unless authorized by law to make such exchange. . (Thus amended by L. 1892, ch. 692.) Fraud in keeping accounts. * § 602. A director, officer or agent of any corporation or joint-stock association, who knowingly receives or possesses himself of any property of such corporation or association, otherwise than in payment of a just demand, and with 510 Sections Specially Appplicable to Coepokations. The Penal Code. intent to defraud, omits to make, or cause or direct to be made, a full and true entry thereof, in the books or accounts of such corporation or association; and a director, officer, agent or member of any corporation or joint-stock association who, with intent to defraud, destroys, alters, mutilates, or falsifies any of the books, papers, writings or securities belonging to such corporation or association, or makes or concurs in making any false entry, or omits or concurs in omitting to make any material entry in any books of accounts, or other record or document kept by such corporation or association, is punishable by imprison- ment in a state prison not exceeding ten years, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both «uch fine and imprisonment. (Thus amended by laws 1892, ch. 662 and ch. 692.) Officer of corporation publishing false reports of its condition. § 603. A director, officer or agent of any corporation or joint-stock corporation, who knowingly concurs in making or publishing any written report, exhibit or statement of its affairs or pecuniary condition, containing any material statement which is false, other than such as are elsewhere, by this code, specially made punishable, is guilty of a misdemeanor. Directors of corporation presumed to have knowledge of its affairs. § 609. A director of a corporation or joint-stock associa- tion must be deemed to have such a knowledge of the affairs of the corporation or association as to enable him to determine whether any act, proceeding or omission of its directors, is a violation of this chapter. Uisconduct of officers and directors of stock corporations. § 610. An officer or director of a stock corporation who: 1. Issues, participates in issuing, or concurs in a vote to issue any increase of its capital stock beyond the amount of the capital stock thereof, duly authorized by or id pursuance of law; or 2. Sells, or agrees to sell, or is directly or indirectly inter- ested in the sale of any share of stock of such corporation, or in any agreement to sell the same, unless at the time of such sale or agreement he is an actual owner of such share; Sections Specially Applicable to Coepoeations. 511 The Penal Code. is guilty of a misdemeanor, punishable by imprisonment for not less than six months, or by a fine not exceeding five thousand dollars, or by both. (Thus amended by L. 1892, ch. 692.) 3y[isc6iiduct of officers and employes of corporations. § 611. A director, officer, agent or employe of any corpo- ration or joint-stock association who: 1. Knowingly receives or possesses himself of any of its property otherwise than in payment for a just demand, and with intent to defraud, omits to make or to cause or direct to be made, a full and true entry thereof in its books and accounts; or, 2. Concurs in omitting to make any material entry thereof; .or, 3. Knowingly concurs in making or publishing any written report, exhibit or statement of its affairs or pecu- niary condition, containing any material statement which is false; or, ' 4. Having the custody or control of its books, willfully refuses or neglects to make any proper entry in the stock book of such corporation as required by law, or to exhibit or allow the same to be inspected and extracts to be taken therefrom by any person entitled by law to inspect the same or to take extracts therefrom; or, 5. If a notice of an application for an injp.nction affecting the property or business of such joint-stock association or corporation is served upon him, omits to disclose the fact of such service and the time and place of such application to the other directors, officers and managers thereof; or, 6. Eefuses or neglects to make any report or statement lawfully required by a public officer; is guilty of a misde- meanor. (Thus amended by L. 1892, ch. 692; L. 1893, ch. 692.) See also, section 602. / IVIisconduct of officers and agents of pipe-line corporations. § 612. Any officer, agent or manager of a pipe-line corpo- ration, who ' 1. Neglects or refuses to transport any product delivered for transportation, or to accept and allow a delivery thereof 512 Sections Specially Applicable to Cokpoeations. The Penal Code. in the order of application, according to tlie general rules of the corporation, as provided by law; or, 2. Charges, accepts or agrees to accept for such receipt, transportation and delivery, a sum different from the amount fixed by such regulations; or, 3. Allows or pays, or agrees to allow or pay, or suffers to be allowed or paid or repaid, any draw-back, rebate or allowance, so that any person shall, by any device, have or procure any transportation of products over such pipe-line at a less rate or charge than is fixed in such regulations; Is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or by imprisonment not exceeding six months, or by both. (Thus amended by L. 1892, ch. 692.) Miscouduct at corporate elections. - ' § 613, Any person who: 1. Votes or issues a proxy to vote at any meeting of the stockholders or bondholders, or both, of a stock corpora- tion, upon any stock or bond, if the person in whose behalf such vote is given shall not then have the title to the stock represented by such certificate pr to such bond, and shall not have it in his possession and control, notwithstanding such stock or bond shall then stand on the books of such corporation in the name of the person in whose behalf such vote is given; or, 2. Being entitled to vote at such meeting, sells his vote or issues a proxy to vote to any person for any sum of money or thing of value; or, 3. Acts as an inspector of election at any such meeting, and violates an oath taken by him, in pursuance of law as such inspector, or violates the provisions of an oath required by law to be taken by him as such inspector, or is guilty oi any dishonest or corrupt conduct as such inspector; Is guilty of a misdemeanor. (Thus amended by L. 1S92. ch. 692.) Presumption of knowledge of corporate condition and business and of assent thereto by directors; definitions. § 614. It is no defense to a prosecution for a violation of the provisions of this chapter, that the corporation is a Sections Specially Applicable to Ooepoeations. 513 The Penal Code. foreign corporation, if it carries on business or keeps an office tlierefor in this state. The term "director" as used in this chapter includes any of the persons having, by law, the direction or manage- ment of the affairs of a corporation, by whatever name described. A director of a corporatioh or joint-stock association is deemed to have such a knowledge of the affairs of the corporation or association as to enable him to determine whether any act, proceeding or omission of its directors is a violation of this chapter. If present at a meeting of the directors at which any act, proceeding or omission of such directors in violation of this chapter occurs, he must be deemed to have concurred therein, unless he at the time causes or in writing requires his dissent therefrom to be entered on the minutes of the directors. If absent from such meeting, he must be deemed to have concuiTed in any such violation, if the facts constituting such violation appear on the record or minutes of the proceedings of the board of directors, and he remains a director of the corpo- ration for six months thereafter without causing or in writing requiring his dissent from such violation to be entered on such record or minutes. (Thus amended by L. 1892, ch. 692.) Sales by authorized agents, restricted. § 616. No person except as allowed in section 622 shall ask, take or receive any money or valuable thing as a consideration for any passage or conveyance upon any vessel or railway train, or for the procurement of any ticket or instrument giving or purporting to give a right, either absolutely or upon a condition or contingency, to a passage or conveyance upon a vessel or railway train, or a berth or state-room on a vessel, unless he is an authorized agent within the provisions of the last section ; nor shall any per- son, as such agent, sell or offer to sell any such ticket, instru- ment, berth or state-room, or ask, take or receive any consid- eration for any such passage, conveyance, berth or state- room, excepting at the office designated in his appointment, nor until he has been authorized to act as such agent according to the provisions of the last section, nor for a sum exceeding the price charged at the time of such sale, 33 514 Sections Specially Applicable to Corporations. ' The Penal Code. by the company, owners or consignees of the vessel or railway mentioned in the ticket. But a person who shall have purchased a ticket in good faith for his own passage, and shall have been prevented from using the same, may sell the ticket at any price not greater than the regular rate established therefor, to another purchaser in good faith, for his own use. TJnautliorized persons forbidden to sell certificates, receipts, etc. § 617. No person other than an agent appointed, as provided in section 615, shall sell, or offer to sell, or in any way attempt to dispose of any order, certificate, receipt or other instrument for the purpose, or under the pretense, of procuring any ticket, or instrument mentioned in section 615, upon any company or line, vessel or railway train therein mentioned. And every such order sold or offered for sale by any agent, must be directed to the company, owners or consignees at their office. Punishment for fraud on accounts, etc. § 618. A person guilty of a violation of any of the pro- visions of the preceding sections of this chapter is punishable by imprisonment in a state prison not exceeding two years, or imprisonment in a county jail not exceeding six months. (Thus amended by L. 1892, ch. 692.) Conspiring to sell passage tickets in violation of law. § 619. All persons who conspire together to sell or attempt to sell to any person any passage ticket, or other instrument mentioned in sections 615 and 617, in violation of those sections, and all persons, who, by means of any such conspiracy obtain, or attempt to obtain, any money or other property, under the pretense of procuring or securing any passage or right of passage in violation of this chapter, are punishable by imprisonment in a state prison not exceeding five years.' Conspirators may be indicted notwithstanding object of conspiracy has not been accomplished. § 620. Persons guilty of violating the last section may be indicted and convicted for a conspiracy, though the object of such conspiracy has not been executed. Sections Specially Applicable to Corporations. 515 The Penal Code. Offices for unlawful sales of passage ticfcets are disorderly houses. § 621. All offices kept for the purpose of selling passage tickets in violation of any of the provisions of this chapter, and all offices where any such sale is made, are deemed disorderly houses; and all persons keeping any such office, and all persons associating together for the purpose of violating any of the provisions of this chapter are punish- able by imprisonment in a county jail for a period not exceeding six months. (Thus amended by L. 1892, ch. 662.) Owners, pursers, etc., allowed to sell tickets. § 622. The provisions of this chapter do not prevent the actual owners or consignees of any vessel, from selling passage tickets thereon; nor do they prevent the purser or clerk of any vessel from selling in his office on board of such vessel, any passage tickets upon such vessel. station masters, conductors, etc., allowed to sell tickets. § 623. The provisions of this chapter do not prevent the station master or other ticket agent upon any railway, from selling in his office at any station on such railway, any passage tickets upon such railway; nor do they prevent any conductor upon a railway from selling such tickets upon the trains of such railway. What must be stated in passage tickets. § 624. A ticket or instrument issued as evidence of a right of passage upon the high seas, from any port in this state, to any port of any other state or nation, and every certifi- cate or order issued for the purpose, or under pretense of procuring any such ticket or instrument, and every receipt for money paid for such ticket or instrument must state the name of the vessel on board of which the passage is to be made, the name of the owners or consignees of such vessel, the name of the company, or line, if any, to which such vessel belongs, the place from which such passage is to commence, the place where such passage is to ter- minate, the day of the month and the year upon which the voyage is to commence, the name of the person or persons purchasing such ticket or instrument, or receiving such order, certificate or receipt, and the amount paid 516 Sections Specially Applicable to Coepoeations. The Penal Code. therefor; and such ticket or instrument, order, certificate or receipt, unless sold or issued by the owners or consignees of such vessels, must be signed by their authorized agent The declarations of a ticket agent made in the line of his duty form a part of the contract. (Miller v. King, as receiver of N. Y., L. E. and W. R. R. Co., 84 Hun, 308.) Sale of tickets not filled out as required in last section, a misdemeanor. § 625. A person who issues, sells or delivers to another, any ticket, instrument, certificate, order or receipt, which is not made or filled out as prescribed in the last section, is guilty of a misdemeanor. Certain sales and exchanges of passenger tickets. § 626. A person who : 1. Sells, or causes to be sold, a passage ticket, or order for such ticket on any railway, vehicle, or vessel, to any emigrant passenger at a higher rate than one and a quarter cents per mile; or 2. Takes payment for any such ticket or order for a ticket under a false representation as to the class of the ticket, whether emigrant or first-class; or 3. Directly or indirectly, by means of false representa- tions, purchases or receives from an emigrant passenger any such ticket; or 4. Procures or solicits any such passenger having such a ticket, to exchange the same for another passenger ticket, or to sell the same and purchase some other passenger ticket; or 5. Solicits or books any passenger arriving at the port of New York from a foreign country, before such passenger has left the vessel on which he has arrived, or enters or goes on board any vessel arriving at the port of New York from a foreign country, having emigrant passengers on board, for the purpose of soliciting or booking such passen- gers, and a person or agent of a corporation employing any person for the purpose of booking such passengers before leaving the ship; Is guilty of a misdemeanor. Sections Specially Appiioablk to Corporations. 517 The Penal Code. " Company " defined. § 627. The term "company," as used in this chapter, includes all corporations, whether created under the laws of this state, or of the United States, or of those of any other state or nation. By pipe-line corporations. § 628. A pipe-line corporation, or a person being the officer, agent, manager or representative thereof, who : 1. Accepts, makes or issues any receipt, certificate or order of any kind for any commodity, unless the commodity represented is actually at the time in the possession of the corporation ; or, 2. Delivers to any person any petroleum or other com- modity received for transportation by such corporation without the presentation and surrender of all vouchers, receipts, orders or certificates that have been issued or accepted for the same; or, 3. Having parted with the possession of any commodity and having received therefor an order, voucher, receipt or certificate shall reissue the same, or shall not cause it to be canceled by the word " canceled " stamped or printed legibly across the face thereof, and to be filed and recorde.l by such corporation, as provided by law; Is guilty of a misdemeanor. (Thus amended by L. 1892, cli. <392.) Issuing fictitious bills of lading receipts and vouchers, § 629. A person who: 1. Being the master, owner or agent of any vessel, or officer or agent of any railway, express or transportation company, or otherwise being or representing any carrier, who delivers any bill of lading, receipt or other voucher, by which it appears that merchandise of any kind has been shipped on board a vessel, or delivered to a railway, express or transportation company, or other carrier, unless the same has been so shipped or delivered and is at the time actually under the control of such carrier, or the master, owner or agent of such vessel, or of some officer or agent of such company, to be forwarded as expressed in such bill of lading, receipt or voucher; or, 518 Seoitons Specially Applicable to Corporations. The Penal Code. 2. Carrying on the business of a warehouseman, wharfinger or other depository of property, who issues any receipt, bill of lading or other voucher for merchandise of any kind which has not been actually received upon the premises of such person, and is not under his actual control at the time of issuing such instrument, whether such instrument is issued to a person as being the owner of such merchandise, or as security for any indebtedness; Is guilty of a misdemeanor, punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. (Thus amended by L. 1892, ch. 692.) Erroneous bills of lading or receipts, issued in good faith, excepted, § 630. No person can be convicted of an offense under the last two sections, for the reason that the contents of any barrel, box, case, cask or other vessel or package mentioned in the bill of lading, receipt or other voucher did not correspond with the description given in such instrument of the merchandise received, if such description corresponds substantially with the marks, labels or brands upon the outside of such vessel or package, unless it appears that the defendant knew that such marks, labels or brands were untrue. ' Duplicate receipts must be marked " duplicate." § 631. A person mentioned in sections 628 and 629, who issues any second or duplicate receipt or voucher, of a kind specified in those sections, at a time while a former receipt or voucher for the merchandise specifi.ed in such second receipt is outstanding and uncanceled, without writing across the face of the same the word " duplicate," in a plain and legible manner, is punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. Selling, hypothecating or pledging property received for transporta- tion or storage. § 632. A person mentioned in sections 628 and 629, who sells or pledges any merchandise for which a bill of lading, receipt or voucher has been issued by him, without the consent in writing thereto of the person holding such bill, Skcttons'Speotallt Applicable to Corporations. 519 The Penal Code. receipt or voucher, is punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. Bill of lading or receipt Issued by wareliouseinan, must be canceled on redelivery of the property. § 633. A person mentioned in section 629, who delivers to another any merchandise for which a bill of lading, receipt or voucher has been issued, unless such receipt or voucher bears upon its face the words, "not negotiable," plainly written or stamped, or unless such receipt is surren- dered to be canceled at the time of such delivery, or unless, in the case of a partial delivery, a memorandum thereof is indorsed upon such receipt or voucher, is punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. Property demanded by process of law. § 634. The last two sections do not apply to any case where property is demanded by virtue of legal process. Injuries to railroad tracks, et cetera. § 635. A person who: 1. Displaces, removes, injures or destroys any rail, sleeper, switch, bridge, viaduct, culvert, embankment, or structure, or any part thereof attached, appertaining to or connected with any railway, whether operated by steam, horses, or other motive power, or 2. Places any obsti-uction upon the track of any such railway; or 3. Willfully destroys or breaks any guard erected or maintained by a railroad corporation as a warning signal for the protection of its employes; or 4. Willfully discharges a loaded firearm, or projects or throws a stone or other missle at a railway train, or at a locomotive, car or vehicle standing or moving upon a mil- way; or 5. Willfully displaces, removes, cuts, injures or destroys any wire, insulator, pole, dynamo, motor, locomotive, or any part thereof, attached, appertaining to or connected with any railway operated by electricity, or willfully intereferes with or interrupts any motive power used in running such road or willfully places any obstruction upon the track of 520 Sections Specially Applicable to Corpoeations. The Penal Code. such railroad, or willfully discharges a loaded firearm, or projects or throws a stone or any other missle at such rail- way train or locomotive, car or vehicle, standing or moving upon such railway; or 6. Eemoves a journal-brass from a car while standing upon any railroad track in this State, without authority from some person who has a right to give such authority, is punishable as follows : First, if thereby the safety of any person is endangered by imprisonment for not more than ten years. Second, in every otlier case by imprisonment for not more than three years or by a fine of not more than two liundred and fifty dollars or both. (Thus amondfil by L. ISfl.'), ch. ~2i\.) Altering, etc., signal or light for vessel, etc. § 688. A person who, with intent to bring a vessel, rail- way engine, or railway train into danger, either 1. Unlawfully or wrongfully shows, masks, extinguishes, alters, or removes a light or other signal ; or 2. Exhibits any false light or signal; Is punishable by imprisonment for not more than ten years. Injuring highway boundary, pier, sea wall, dock, rock, buoy, land- mark, mile board, pipe, main, sewer, machine, telegraph, etc. § 639. A person who willfully or maliciously displaces, removes, injures or destroys, * » * 1. A public highway or bridge, or a private way laid out by authority of law, or a bridge upon such public or private way; or 7. A line of telegraph or telephone, wire or cable, pier or abutment, or the material or property belonging thereto, without lawful authority, or who shall unlawfully and will- fully cut, break, tap or make connection with any telegraph or telephone line, wire, cable or instrument, or read or copy in any unauthorized manner any message, communication or report passing over it, in this state; or who shall will- fully prevent, obstruct or delay, by any means or contriv- ance whatever, the sending, transmission, conveyance or delivery, in this state, of any authorized message, communi- Sections Specially Applicable to Cokpoeations. 521 The Penal Code. cation or report by or through any telegraph or telephone line, wire or cable, under the control of any telegraph or telephone company doing business in this state; or who shall aid, agree with, employ or conspire with any person or ])ersons to unlawfully do, or permit or cause to be done, any of the acts hereinbefore mentioned, or who shall occupy, "use a line, or shall knowingly permit another to occupy, use a line, a room, table, establishment or appar- atus or unlawfully do or cause to be done any of the acts hereinbefore mentioned. (Thus amended by L. 1892, ch. 372.) 8. A pipe or main for conducting gas or water, or any works erected for supplying buildings with gas or water, or any appurtenance or appendage connected therewith; or 9. A sewer or drain, or a pipe or main connected there- with, or forming part thereof; or who 10. Destroys or damages with intent to destroy or render useless any engine, machine, tool or implement intended for use in trade or husbandry; Is punishable by imprisonment for not more than two years. Divulging, etc., telegram a misdemeanor. § 641. A person who, either 1. Wrongfully obtains, or attempts to obtain, any knowl- edge of a telegraphic or telephonic message by connivance with a clerk, operator, messenger, or other employe of a telegraph or telephone company; or 2. Being such clerk, operator, messenger or other employe, willfully divulges to anyone but the persons for whom it was intended, the contents or the nature thereof of a telegraphic or telephonic message or dispatch intrusted to him for the transmission or delivery, or of which contents he may in any manner become possessed, or occupying such position in a telegraph office shall willfully refuse or neglect duly to transmit or deliver messages received at such office, except when such telegraphic or telephonic message or dis- patch is in aid of or used to abet or carry on any unlawful business or traffic, or to perpetrate any criminal offense, and when it shall appear that any offense at law or unlaw- 522 Sections Specially Applicable to Coepoeations. The Penal Code. ful business or traffic is being carried on or conducted in whole or in part br means of a telegraphic or telephonic mes- sage or dispatch, it shall be the duty of any corporation or employe thereof having knowledge of the same, to withhold such dispatch from deliveiy until the person to whom it is addressed shall be fully identified, and to further furnish to any public officer AAhose duty it is to prosecute any offense at law so aided and abetted, all information in their posses- sion, relating to said unlawful business or traffic; and to further assist in the identification of any person aiding or abetting in or conducting any such unlawful business or traffic. Is punishable by a fine of not more than one thousand dollars, or by imprisonment for not more than six months, or by both- such fine and imprisonment. § 2. This act shall take effect September first, eighteen hundred and ninety-five. (Thus amended by L. 3895, ch. 727.) Opening or publishing a sealed letter, etc. § 642. A person who, T\illfully, and without authority, either 1. Opens or reads, or causes to be opened or read, a sealed letter, telegram, or private paper; or, 2. Publishes the whole or any portion of such letter, or telegram, or private paper, knowing it to have been opened or read without authority; or, 3. Takes a letter, telegram or private paper, belonging to another, or a copy thereof, and publishes the whole or any portion thereof; or, 4. Publishes the whole or any portion of such letter, tele- gram or private paper, knowing it to have been taken or copied without authority, is guilty of a misdemeanor. § 2. This act shall take effect on the first day of Septem- ber, eighteen hundred and ninety-five. (Thus amendrd by L. ]80."i, ch. 287.) tTulawful interference with gas meters or steam valves. § 651. A person who willfully, with intent to injure or defraud r Sections Specially Applicable to Corporations. 523 The Penal Code. 1. Connects a tube, pipe or other instniment or contriv- ance, with a pipe used for conducting or supplying illuminat- ing gas, fuel or natural gas, in such a manner as to supply such gas to any burner or orifice, where the same is or can be burned, or used, without passing through the meter or instrument provided for registering the quantity consumed; or 2. Obstructs, alters, injures or prevents the action of a meter or other instrument used to measure or register the quantity of illuminating fuel or natural gas consumed in a house or apartment, or at an orifice or burner or by a con- sumer or other person, or a person other than a state inspec- tor or deputy inspector of gas meters or an employe of the company owning any gas meter who willfully shall detach or disconnect such meter or make or report any test of or examine for the purpose of testing any such meter so detached or disconnected; or 3. In any manner whatever, changes, extends or alters, any service or other pipe, or attachment of any Mnd^ connecting or through which, natural or artificial gas is furnished from the gas mains or pipes of any person, company or corpora- tion, without first procuring from said person, company or corporation written permission to make such change, extension or alteration; or 4. Makes any connection or reconnection, with the gas mains or service pipes of any person, company or corpora- tion furnishing to consumers natural or artificial gas or turns on or off, or in any manner interferes with any valve or stop cock or other appliances belonging to such person, company or corporation, and connected with its service or other pipes or enlarges the orifice of niixers, or uses natural gas for heating purposes except through mixers, without first procuring from such person, company or corporation, a Avritten permit, to turn on or off such stop cock or valve, or to make such connections or reconnections, or to enlarge the orifice of mixers, or to use for heating purposes without mixers, or to interfere with the valves, stop cocks, or other appliances of such person, company or corporation, as the case may be; or 5. Retains possession of, or refuses to deliver any mixer or mixers, or other appliances which may be, or may have 524 Sections Specially Applicable to Coepoeations. The Penal Code. been loaned or rented to them by any person, company or corporation, for the purpose of furnishing gas through the same, or who sells, loans or in any manner disposes of the same to any person or persons, other than the said person, company or corporation entitled to the possession of the same; or 6. Sets on fire any gas escaping from wells, broken or leaking mains, pipes, valves or other appliances used by any person, company or corporation, in conveying gas to con- sumers, or interferes in any manner with the wells, pipes, mains, gate boxes, valves, stop cocks, or any other appliances, machinery or property of any person, company or corpora- tion engaged in furnishing gas to consumers, unless employed by or acting under the authority and direction of such person, company or corporation ; or 7. Opens or causes to be opened, or reconnects, or causes to be reconnected, any valve lawfully closed or discon- nected, by a district steam corporation; or 8. Turns on steam, or causes it to be turned on, or to re-enter any premises when the same has been lawfully stopped from entering such premises; Is guilty of a misdemeanor. (Thus amended by L. 1S92, ch. G92 and ch. GOO; L. 1893, ch. 692.) Injury to property or interfering with, railroad property, how punished. § 654. A person who unlawfully and willfully destroys or injures any real or personal property of another, or who without authority or permission from a person who has the right to give such authority or permission, loosens any brake or blocking of any car standing on any railroad track in this state, or without like authority or permission, puts upon or runs any hand car, or other car, on any railroad track in this state, or without like authority or permission, inter- feres or meddles with any brake or coupling of any car while standing or moving on any railroad track in this state, or takes any part therein, in a case where the punishment is not specially prescribed by statute, is punishable as follows: Sections Specially Applicable to Corpoeations. 525 The Penal Code. 1. If the value of the property destroyed, or the dirainu- tion in the yalue of the property by the injury is more than twenty-five dollars, by imprisonment for not more than four years. 2. In any other case, by imprisonment for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment. 3. And in addition to the punishment prescribed therefor, he is liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property, or the public officer having charge thereof. (Thus amended by L. 1S92, ch. 186.) (Transporting animals for more than twenty-four consecutive hours, a misdemeanor. § 663. A railway corporation, or an owner, agent, con- signee, or person in charge of any horses, sheep, cattle, or swine, in the course of, or for transportation, who confines, or causes or suffers the same to be confined, in cars for a longer period than 24 consecutive hours, without unloading for rest, water and feeding, during ten consecutive hours, unless prevented by storm or inevitable accident, is guilty of a misdemeanor. In estimating such confinement, the time during which the animals have been confined without rest, on connecting roads from which they are received, must be computed. If the owner, agent, consignee, or other per- son in charge of any such animals refuses or neglects upon demand to pay for the care or feed of the, animals while so unloaded or rested, the railway company, or other carriers thereof, may charge the expense thereof to the owner or consignee, and shall have a lien thereon for such expense. Relating to disorderly conduct on public conveyances. § 675. Any person who shall, by any offensive or disor- derly act or language, annoy or interfere with any per- son or persons in any place or with the passengers of any public stage, railroad car, ferry boat, or other public con- veyance, or who shall disturb or offend the occupants of such stage, car, boat or conveyance, by any disorderly act, language, or display, although such act, conduct, or display, may not amount to an assault or battery, shall be deemed 526 Sections Specially Applicable to Cokfobations. The Penal Code. guilty of a misdemeanor. A person who willfully and wrongfully commits any act which seriously injures the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, for which no other punishment is expressly prescribed by this code, is guilty of a misde- meanor; but nothing in this code contained shall be so construed as to prevent any person from demanding an increase of wages, or from assembling and using all lawfill means to induce employers to pay such wages to all per- sons employed by them as shall be a just and fair compen- sation for services rendered. (Thus amended by L. ISOl, ch. 327.) CODE OF CRIMINAL PROCEDURE. Sections Specialllt Applicble to Cokpoeations. Corporation convicted of offense; punishment. § 13. Whenever in this code the punishment for crime is loft undetermined between certain limits, the punishment 1() be inflicted in a particular case must be determined by the court authorized to pass sentence within such limits as may be prescribed by this code. In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable with imprison- ment, as for a felony, such corporation is punishable by a fine of not more than five thousand dollars. (Thus amended by L. 1892, ch. 218.) Refusal to permit employes to attend election. § 41f. A person or corporation who refuses to an employe entitled to vote at an election or town meeting, the priv- ilege of attending thereat, as provided by the election law, or subjects such employe to a penalty or reduction of wages because of the exercise of such privilege, is guilty of a misdemeanor. (Thus amended by L. 1893, ch. 693.) Jurisdiction of courts of special sessions. § 56. Subject to the "power of removal provided for in this chapter, courts of special sessions, except in the city and county of New York and the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, as follows: ******* 9. Intoxication of a person engaged in running any loco- motive engine upon any railroad, or while acting as a con- 528 Sections Specially Applicable to Coepoeations. The Code of Criminal Procedure. (luctor of a car or train of cars, on any such railroad, or a misdemeanor committed by any person on a railroad car or train. (Thus amended by L. 1890, ch. 521; re-enacted without change by L. 1893, cbs. 150 and 570.) 23. Unlawfully frequenting or attending a steamboat landing, railroad depot, church, banking institution, brok- er's dflfice, place of public amusement, auction room, store, auction sale or private residence, passenger car, hotel, res- taurant, or any other gathering of people. (Thus amended by L. 1886, ch. 38; re-enacted without change bv L. 1893, chs. 150 and 570.) Jurisdiction of crime on board a vessel. § 136. When a crime is committed in this state on board of a vessel navigating a river, lake or canal, or lying therein in the course of her voyage, or in respect to any portion of the cargo or lading of such boat or vessel, the jurisdiction is in any county through which, or any part of which, such river or canal passes, or in which such lake is situated, or on which it borders, or in the county where such voyage ter- minates, or would terminate if completed. 3 R. S. 1021, § 44. : Of crime committed in the state on board of any railway train, etc. § 137. When a crime is committed in this state, in or on board of any railway engine, train or car, making a passage or trip on or over any railway in this state, or in respect to any portion of the lading or freightage of any such railway train or engine car, the jurisdiction is in any county through which, or any part of which, the railway train or car passes, or has passed in the course of the same passage or trip, or in any county where such passage or trip terminates, or would terminate, if completed.' Plea of guilty, how put in. § 335. A plea of guilty can only be put in by the defend- ant himself in open court, except upon an indictment against a corporation; in which case, it may be put in by counsel. Sections Spboiallt Applicable to Ooepokatioit'S. 529 The Code of Criminal Procedure. Summons upon an information or presentment against a corporation, by whom issued, and when returnable. , § 675. Upon an information against a corporation, the magistrate must issue a summons, signed by him, with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge; the time to be not less than ten days after the issuing of the summons. Form of the summons. '. § 676. The summons must be in substantially the fol- lowing form: " County of Albany [or as the case may be]. " In the name of the people of the state of New York: " To the [naming the corporation]. " You are hereby summoned to appear before me, at [naming the place], on [specifying the day and hour], to answer a charge made against you, upon the information of A. B., for [designating the offense, generally]. " Dated at the city [or " town " ] of , the day of , 18 — . G. H., justice of the peace " [or as the case may be]. When and how served. § 677. The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president, or other head of the corporation, or to the secretary, cashier,, or managing agent thereof. Examination of the charge. § 678. At the time appointed in the summons, the magis- trate must proceed to investigate the charge, in the same manner as in the case of a natural person brought beffore him, so far as those proceedings are applicable. Certificate of the magistrate, and return thereof with the depositions. § 679. After hearing the proofs, the magistrate must cer- tify upon the depositions, either that there is or is not suf- ficient cause to believe the corporation guilty of the offense charged, and must return the depositions and certificate, in the manner prescribed in section 221. 34 530 Sections Sphcially Applicable to Coepokaiions. The Code of Civil Procedure. Grand jury may proceed as in the case of a natural person. § 680. If the magistrate return a certificate that there is sufficient cause to believe the corporation guilty of the offense charged, the grand jury may proceed thereon, as in the case of a natural person held to answer. Bringing an indicted corporation into court. § 681. When an indictment is filed against any corpora- tion^ such corporation must be arraigned thereon, and the court acquires jurisdiction over the corporation, in tlie man- ner following: 1. The clerk of the court wherein such indictment is found, or to which it is sent or removed, or the district attor- ney of the county, must issue a summons signed by him with his name of office, requiring such corporation to appear and answer the indictment by a demurrer or written plea to be verified in like manner as a pleading in a civil action, at a time and place to be specified in such summons, such time to be not less than five days after the issue thereof. The sum- mons may be substantially in the following form: Supreme Court, county of (state the proper county or court, as the case may be). The People of the State of New York vs. The A. B. Company. You are hereby summoned to appear in this court and, by demurrer or plea in writing duly verified, answer an indict- ment filed against you by the grand jury of this county, on *^^- ., 40 Hun, 29; Troy & Rutland R. R. Co. v. Kerr, 17 Barb., 603; Northern R. R. Co. v. Miller, 10 Barb., 282.) Debts of corporations. Article VIII, § 2. Dues from corporations shall be, secured by such individual liability of the corporators and other means as may prescribed by law. It seems, that the word " dues " does not include " dues " to directors. (McDowall V. Sheehan, 129 N. Y., 201.) * As amended and in force January 1, 1896. 608 Peotisions Relative to Corpoeations. The State Constitution. " Corporations " defined. Article VIII, § 3. The term corporations as used in this article shall be construed to include all associations and joint-stock companies having any of the powers or privi- leges of corporations not possessed by individuals or part- nerships. And all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons. Summary proceedings to enforce Individual liability are valid. (Empire City Bank, 18 N. Y., 199.) A provision in a railway charter that the supreme court alone shall issue injunctions against it, is invalid. (Story v. N. Y. El. R. Co., 3 Abb. N. C, 478; see, also, Van Vranken v. City of Schenectady, 31 Hun, 516.) Private or local bills, -when prohibited; general laws to be passed; street railroads, conditions relating thereto. Article III, § 18. The Legislature shall not pass a private or local bill in any of the following cases : »♦««*♦« Granting to any corporation, association or individual the right to lay down railroad tracks. Granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever. Providing for public bridges, and chartering companies for such purposes, except on the Hudson river below Water- ford, and on the East river, or over the waters forming a part of the boundaries of the State. The Legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction or opera- tion of a street railroad except upon the condition that the consent of the owners of one-half in value the property bounded on, and the consent also of the local authorities having the control of that portion of a street or. highway upon which it is proposed to construct or operate such railroad be first obtained or in case the consent of such prop- erty owners cannot be obtained, the general term of the supreme court, in the district in which it is proposed to be constructed, may, upon application, appoint three com- Peovisions Relative to Corpokations. 609 The State Constitution. missioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners. These provisions for consent of property owners do not apply to the city of New York. (In re Gilbert Elev. R. Co., 70 N. Y., 361). As to meaning of " private or local bill," see People v. Supervisors, etc., 43 N. Y., 10; In re Church, 92 N. Y., 1; In re N. Y. El. E. R. Co., 70 N. Y., 350; In re Union Ferry Co., 98 N. Y., 139, and cases therein cited. An act authorizing the construction of an illustrative section of elevated railway on a street in New York city is invalid. (People v. Loew, 102 N. Y., 471.) An act to extend the time for the completion of a railroad, after the expiration of the time fixed by L. 1850, ch. 140, § 47 as amended by L. 1SG7, ch. 775, is unconstitutional. (In re Brooklyn, etc., R. R. Co., 75 N. Y., 335; Patten v. N. Y. El. R. R. Co., 3 Abb. N. C, 306.) But an act restricting and regulating an existing right is not within the prohibition of this section. (In re Gilbert El. R. R. Co., 70 N. Y., 361; People v. B., V. & C. I. R. R. Co., 89 N. Y., 75; In re N. Y. El. R. R. Co., 70 N. Y., 327; Moran v. L. I. City, 101 N. Y., 439.) The legislature may enact that a second railway shall not be constructed In a street until the consent of the first is obtained. (In re 34th St. R. R. Co., r02 N. Y., 343.) This section relates to every kind of street railroad — surface, elevated or uxiderground — in the existence or non-existence of which the local ■authorities and property owners might have an interest. (In re N. Y. Dist. Ry. Co., 107 N. Y., 42.) It also embraces pneumatic railways. (Astor v. Arcade Ry. Co., 113 N. Y., 93.) The determination of the commissioners is not operative until confirmed by the general term. (In re Kings Co. El. R. R. Co., 82 N. Y., 95.) Consent of a property owner need not be under seal, or convey any Interest he may have in the street or highway. (In re Cortland & Homer H. R. E. Co., 31 Hun, 72, aff'd 95 N. Y., 663; see, also, the Railroad Law, § 91. As to change of route, see Negus v. City of B'klyn, 10 Abb. N. C, 180; see, also, Weincke v. N. Y. C. & H. R. R. R. Co., 39 N. Y. St. R., 584, afC'd on opinion below, 133 N. Y., 656; Hilton v. 34th St. R. R. Co., 1 How. Pr., N. S., 453; Met. Transit Co. v. Mayor, etc., Ill N. Y., 588; Schaper v. B. & L. I. C. Ry. Co., 4 St. Rep., 860; 124 N. Y., 630.) The provision as to highways applies only to public highways. (People, etc., V. Banks, 67 N. Y., 568.) li. 1885, ch. 392, authorizing eYection of a bridge over the East river for railway, carriage and foot passengers, is In violation of this section. (In re N. Y. & L. Isl. Bridge Co., 21 St. Rep., 858; aff'd 54 Hun, 401.) When the foregoing section shall not apply. Article III, § 25. Sections seventeen and eighteen of this article shall not apply to any bill, or the amendments to 39 610 Peovisions Relative to Corporations. The State Constitution. any bill, which shall be reported to the Legislature by Com- missioners who have been appointed pursuant to law to revise the Statutes. The Legislature are the exclusive judges whether a bill was so reported. (People V. Petrea, 92 N. Y., 128.) State aid to corporations prohibited. Article VIII, § 10. Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. This section shall not, however, prevent the Legislature from making such pro- vision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper. Nor shall it apply to any fund or property now held, or vphich may hereafter be held, by the State for edu- cational purposes. Municipal aid to corporations prohibited. Article VIII, § 11. No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or cor- poration, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor, shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or vil- lage purposes. »*««•«» This provision annulled all acts relating to bonding of towns for rail- road purposes, but does not affect contracts actually made and in force when it went into effect. (In re Buffalo & Jamestown R. R. Co. v. Comrs., etc., 5 Hun, 485; see, also. Same v. Falconer, 103 U. S., 821; Falconer v. Buffalo & Jamestown R. R. Co., 69 N. Y., 491; People ex rel. Hatfield v. Trustees, 70 N. Y., 28; Town of Cherry Creek v. Becker, 123 N. Y., 161.) A municipality may pay an acknowledged debt. (Hills v. Peekskill Sav. Bk., 101 N. Y., 490.) Private property taken for public use. Article I, § 6. * ♦ ♦ No person shall * * * be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, with- out just compensation. Relative to the acquisition of private property for public use, 'see the Condemnation Law. An act of the legislature is not, of itself, " due process of law." (Stuart V. Palmer, 74 N. Y., 183.) The owner of property should have an oppor- Peo VISIONS Relative to Oobpokations. 611 The State Constitution. tunity to be heard, and to defend, enforce and protect his rights. (Id.) " Due process of law," meaning of, considered. (Westervelt v. Gregg, 12 N. y., 209; Happy v. Mosher, 48 N. Y., 313.) An easement is property. (Hussner v. Brooklyn City R. R. Co., 114 N. Y., 433; Lahr v. M. El. R. R. Co., 104 N. Y., 268; Arnold v. H. R. R. R. Co., 55 N. Y., 661; Story v. N. Y. El. R. R. Ca, 90 N. Y., 122; People ex rel. Williams v. Haines, 49 N. Y., 587.) It is the province of the legislature, not the courts, to determine whether the public benefit will justify taking private property for public uses. (In re Fowler et al., 53 N. Y., 60; In re Hendrick v. Smith, 21 N. Y., 595; In re Townsend, 39 N. Y., 171; B. & N. Y. City R. R. Co. v. Brainaxd,' 9 N. Y., 100; Bloodgood v. M. & H. R. R. R. Co., 18 Wend, 9.) Also what interest shall be taken. (Brooklyn, etc., v. Armstrong, 45 N. Y., 234.) Whether the use is public or private is a question for the courts. (In re Split R. C. R. Co., 128 N. Y., 408; Niag. F. & W. Ry. Co., 108 N. Y., 375.) Under this provision ch. 554, L. 1885, is unconstitutional. (People ex rel. Harvey et al. v. Loew, 102 N. Y., 471.) A law authorizing exercise of right of eminent domain must provide for obtaining compensation. (Bloodgood v. M. R. R. R. Co., 18 Wend-, 9.) Payment of compensation need not be made a condition precedent to an entry. (Chapman v. Gates, 54 N. Y., 132.) Taking a street or highway for railroad purposes entitles the owner of the fee to compensation. (Williams v. N. Y. C. R. R. B. Co., 16 N. Y., 97; McMahon v. Same, 24 N. Y., 658; Carpenter v. O. & S. R.' R. Co., Id., 655; Wager v. Troy U. R. R. Co., 25 N. Y., 526; Craig v. Rochester, etc., R. R. Co., 39 N. Y., 404.) The legislature may authorize railroads upon streets or highways, the fee of which is owned by a municipality, without entitling either abutting owners or the municipality to compensation. (Forbes v. R., W. & O. B. R. Co., 121 N. Y., 505; Kellinger v. 42d St. R. R. Co., 50 N. Y., 209; Mahady v. Bushwick B. B. Co., 91 N. Y., 148.) Rights of abutting owner who has no interest in the fee of the street. (Abendroth v. Man. El. B. B. Co., 122 N. Y., 1; Kane v. N. Y. El. R. R. Co., 125 N. Y., 164.) See also Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98; Niag. F. & W. R. Co., 121 N. y., 319; Griswold v. Met. El. Ry. Co., 122 N. Y., 102; People V. O'Brien, 111 N. Y., 1; N. Y. Cable Co. v. Mayor, etc., 104 N. Y., 1, 43; In re N. Y., W. S. & B. Ry. Co., 101 N. Y., 685. Compensation; , how ascertained. Article I, § 7. When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the neces- sity of the road and the amount of all damage to be sus- 612 Provisions JUelative to Coepoeations. The State Constitution. tained by the opening thereof shall be first determined by a jury of free-holders, and such amount, togettier with the expenses of the proceeding, shall be paid by the person to be benefited. See the Condemnation Law. The " jury " referred to means a body drawn in tlie ordinary way, but whose decision may be pronounced by a majority. (Cruger v. Hudson R. R. Co., 12 N. Y., 190.) Where all the commissioners are notified and a majority act, it is sufficient. (Astor v. Mayor, etc., 62 N. Y., 580.) An act (L. 1857 ch. 156, § 12) which provides that the com-t may increase or diminish the amount of compensation on an appeal from an award made by commissioners duly appointed, is unconstitutional. (In re Malone W. W. Co., 15 N. Y. Supp., 649; 38 St. Rep., 95.) See also In re Townsend, 39 N. Y., 171. Public officers not to receive passes. Article XIII. § 5. No public oflBcer, or person elected or appointed to a public ofllce, under the laws of this State, shall directly or indirectly ask, demand, accept, receive or consent to receive for his own use or benefit, or for the use or benefit of another, any free pass, free transportation, franking privilege or discrimination in passenger, tele- graph or telephone rates, from any person or corporation, or make use of the same himself or in conjunction with another. A person who violates any provision of this sec- tion, shall be deemed guilty of a misdemeanor, and shall for- feit his office at the suit of the attorney-general. Any cor- poration, or officer or agent thereof, who shall offer or prom- ise to a public officer, or person elected or appointed to a public office, any such free pass, free transportation, frank- ing privilege or discrimination, shall also be deemed guilty of a misdemeanor and liable to punishment except as herein provided. No person, or officer or agent of a corporation giving any such free pass, free transportation, franking privilege or discrimination hereby prohibited, shall be privi- leged from testifying in relation thereto, and he shall not be liable to civil or criminal prosecution therefor if he shall testify to the giving of the same. (New provisions, added in 1895.) A notary public is a public officer within the meaning of the foregoing section, and a notary pubUc who, before this provision of the Constitution went into effect, had rightfully received a free pass over a railroad. Is, by Pkotisions Eelativb to Corfoeatioks. 613 The State Constitution. said provision, proliibited from tliereafter using it wliile lie continues to hold such office. (Peoplel v. Rathbone, 145 N. Y., 434.) For a violation of this provision by a notary public, an action by the people is maintainable against him to have his office adjudged to be forfeited. (Id.) A railroad policeman appointed; pursuant to section 58 of the Railroad Ija\^ is a public officer and, therefore, prohibited from receiving for his own use and benefit a pass from any corporation. (Dempsey v. N. Y. C. and H. R. R. R. Co., 146 N. Y., 290.) But where a person made a contract with a railroad corporation whereby he agreed to render police services for it and to receive for such services; a fixed salary and also an annual pass for transportation over its road and that of another corporation, which could be used by him when engaged in the business of the corporation or in his own private affairs, it was held, that the pass under the contract was not a "free .pass" within the meaning; of liie Constitution; and that an action was maintainable to compel specific performance of the con- tract (Id.) Duty of district attorney. Article XIII, § 6. Any district attorney who shall fail faithfully to prosecute a person charged with the violation in his county of any provision of this article which may come to his knoiwledge, shall be removed from ofSce by the gover- nor, after due notice and an opportunity of being heard in his defense. The expenses which shall be incurred by any county, in investigating and prosecuting any charge of bribery or attempting to bribe any person holding office under the laws of this State, within such county, or of receiv- ing bribes by any such person in said county, shall be a charge against the State^ and .their payment by the State shall be provided for by law. THB STATUTORY CONSTRUCTION LAW. Laws of 1892, Chapter 677. Being " An Act relating to the construction of statutes, constituting chapter one of the general laws," as amended to July I, 1895. The Statutory Construction Law. Section 1. Short title; extent of application. 2. Property. 3. Real property. 4. Personal property. 5. Person. 0. Judge. 7. Lunacy; idiocy. 8. Gender; number; tense. 9. Heretofore; hereafter; now. 10. Last; preceding; next; following. 11. Folio. 12. AVriting; signature. 13. Seal. 14. Oath; affidavit; swear. 15. Acknowledge; acknowledgment. IG. Bond; undertaking. 17. Choose; elect; appoint. 18. Board composed of one person. 19. Meeting; quorum; powers of majority. 20. Service of notice upon board or body. 21. County clerk; register. 22. Village. 23. State. 24. Public holiday; half -holiday. 25. Year. " , 26. Month. 27. Day; mode of computing days; night-time. 28. Standard time. 29. Civil and criminal codes. 30. Laws of England and of the colony of New York. 31 . Limiting the effect of repealing statutes. Short Title ; Peopeett, Ekal and Personal. (515 The Statutory Construction Law. Section 32. Effect of repeal and re-enactment. 33. Effect of revision upon laws passed at same session or before revision takes effect. 34. Alterations of titles and head notes. 35. Laves repealed. 36. Time of taking effect. Short title; extent of application. Section 1. This chapter shall be known as the statutory construction law, and is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter. The Statutory Construction Law was not intended to and, therefore, did not affect acts passed by the legislature at the same session. (Ottman V. Hoffman, 7 Misc. R., 714.) Property. § 2. The term property includes real and personal property. Code Civ. Pro., § 3343, sn}). 8. Penal Code, § 718, sub. 9. Beal property. § 3. The term real property includes real estate, lands, tenements and hereditaments, corporeal and incorporeal. Code Civ. Pro., § 3343, sub. 6. Penal Code, § 718, sjib. 14. Personal property. § 4. The term personal property includes chattels, money, things in action, and all written instruments themselves, as distinguished from the rights^ or interests to which they relate, by which any right, interest, lien or incumbrance in, to or upon property, or any debt or financial obligation is created, acknowledged, evidenced, transferred, discharged or defeated, wholly or in part, and everything, except real property, which may be the subject of ownership. The term chattels includes goods and chattels. Code Civ. Pro., § 3343, sub. 7. Penal Code, § 718, sub. 15. 616 Person; Judge; Lunacy; Gender, etc. The Statutory Construction Law. Person. § 5. The term person includes a corporation and a joint stock association. When used to designate a party whose property may be the subject of any offense, the term person also includes the state, or any other state, government or country which may lawfully own property in the state. Penal Code, § 718, sub. 13. K. S., 2499, Part II, ch. 4, tit 2, § 3. Id., 1101, L. 1857, ch. 53G, § 3. Judge. § 6. The term judge includes every judicial officer author- ized, alone or with others, to hold or preside over a court of record. The Code Civ. Pro., § 3343, sub. 3, which has not been repealed, gives the following definition, to wit : The word "judge," includes a justice, surrogate, recorder, justice of the peace, or other judicial officer, authorized or required to act, or pro- liibited from acting, in or with respect to the matter or thing, referred to in the provision wherein that word is used. Lunacy; idiocy. § 7. The terms lunatic and lunacy include every kind of unsoundness of mind except idiocy. Code Civ. Pro., § 3343, sub. 15. Gender; number; tense. § 8. Words of the masculine gender include the feminine and the neuter, and may refer to a corporation, or to a board or other body or assemblage of persons; and, when the sense so indicates, words of the neuter gender may refer to any gender. The term men includes boys and the term women includes girls. Words in the singular number include the plural, and in the plural number include the singular. Words in the present tense inchide the future. R. S., 124, L. 1828, ch. 20, § 11. Id., 2542, L. 1878, ch. 446, § 27. Penal Code, § 718, subs. 10-12. Code Crim. Pro., § 955. Heketofoeb ; Last; Folio; WRI'^^fG; Seal. 61Y The Statutory Construction Law. Heretofore; hereafter; now. § 9. Each of the terms, heretofore, and hereafter, in any provision of a statute, relates to the time such provision takes effect. The term now in any provision of a statute referring to other laws in force, or to persons in office, or to any facts or circumstances as existing, relates to the laws in force, or the person in office, or to the facts or circum- stances, existing, respectively, immediately before the tak- ing effect of such provison. R. S., 124, L. 1828, cli. 20, §§ 9-11. Code Civ. Pro., § 3343, sub. 22. Last; preceding; next; following. § 10. A reference to the last or preceding section, or other provision of a statute, means the section or other division immediately preceding, and a reference to the next or fol- lowing section or other division of a statute means the sec- tion or other division immediately following. (New.) Polio. § 11. A folio is one hundred words, counting as a word each figure necessarily used. Code Civ. Pro., § 3343, sub. 24. R. S., 2747, pt. 3, ch. 10, tit. 4, § 4. ' Id., 2780, pt. 4, ch. 2, tit. 8, § 16. Writing; signature. § 12. The terms writing and written include every legible representation of letters upon a material substance, except when applied to the signature of an instrument. The term signature includes any memorandum, mark or sign, written or placed upon any instrument or writing with intent to execute or authenticate such instrument or writing. Code Civ. Pro., § 3343, sub. 23. Code Crim. Pro., § 956. Seal. ' § 13. The private seal of a person, other than a corpora- tion, to any instrument or writing shall consist of a wafer, wax or other similar adhesive substance affixed thereto, or of paper or other similar substance affixed thereto, by muci- 618 Oath ; Acknowledge ; etc. The Statutory Construction Law. lage or other adhesive substance, or of the word " seal," or the letters "L S.," opposite the signature. A seal of a court, public officer or corporation may be impressed directly upon the instrument or writing to be sealed, or upon wafer, wax or other adhesive substance affixed thereto, or upon paper or other similar substance affixed thereto by mucilage or other adhesive substance. An instrument or writing duly executed, in the corporate name of a corporation, which shall not have adopted a cor- porate seal, by the proper officers of the corporation under their private seals, shall be deemed to have been executed under the corporate seal. Code Civ. Pro., §§ 29, 9G0. K. S., 532, pt. 1, cli. 8, tit. 8, § IG. Oath; affidavit; swear. § 14. The terms oath and affidavit include every mode authorized by law of attesting the truth of that which is stated. The term swear includes every mode authorized by law of administering an oath. When an affidavit is authorized or required it may be sworn to before any officer authorized by law to take the acknowledgment of deeds in this state, unless a particular officer is specified before whom it is to be taken. Code Crim. Pro., § 957. Acknowledge; acknowledgment. § 15. When the execution of any instrument or writing is authorized or required by law to be acknowledged, or to be proven so as to entitle it to be filed or recorded in a public office, the acknowledgment may be taken or the proof made before any officer then and there authorized to take the acknowledgment or proof of the execution of a deed of real property to entitle it to be recorded in a county clerk's office, and shall be made and certified in the same manner as such acknowledgment or proof of such deed. The term acknowledge and acknowledgment, when used with reference to the execution of an instrument or writing other than a deed of real property, includes a compliance with the provisions of this section by either such proof or acknowledgment. Bond; Choose; Boaed; Meeting, etc. 619 The Statutory Construction Law, Bond; undertaking. § 16. A provision of law authorizing or requiring a bond to be given shall be deemed to have been complied with by the execution of an undertaking to the same effect. Choose; elect; appoint. § 17. The term choose includes elect and appoint. Board composed of one person. § 18. A reference to several officers of a municipal corpo- ration holding the same office, or to a board of such officers, shall be deemed to refer to the single officer holding such office, when but one person is chosen to fill such office in pursuance of law. Meeting; quorum; powers of majority. § 19. Whenever three or more public officers are given any power or authority, or three, or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of all such persons or officers at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, may perform and exercise such power, authority or duty, and if one or more of such persons or officers shall have died or have become mentally incapable of acting, or shall refuse or neglect to attend any such meeting, a majority of the whole number of such persons or officers shall be a quorum of such board or body, and a majority of a quorum, if not, less than a majority of the whole number of such persons or officers may perform and exercise any such power, author- ity or duty. Any such meeting may be adjourned by a less number than a quorum. A recital in any order, resolution or other record of any proceeding of such a meeting that such meeting had been so held or adjourned, or that it had been held upon such notice to the members, shall be pre- sumptive evidence thereof. R. S., 2726, pt. 3, ch. 8, tit. 17, § 27. Tj. 1874, ch. 321. Id., 2853, L. 1886, ch. 21, § 20. 620 Notice ; County Clerk ; Village ; State ; Holiday. The Statutory Construction Law. Service of notice upon body or board. § 20. When a notice is required to be given to a board or body service of such notice upon the clerk or chairman thereof shall be sufficient. County clerk; register. ■ § 21, Any act done in pursuance of laAV by the register of a county shall be deemed to be a compliance with any pro- vision of law authorizing or requiring such act to be done by the county clerk of such county, and any instrument or writing filed, entered or recorded in pursuance of law in the office of a register of a county, shall be deemed to be a com- pliance with any provision of law authorizing or requiring such paper to be filed, entered or recorded, as the case may be, in the office of the clerk of such county. Village. § 22. The term village means an incorporated village. state; territory. § 23. The term state, when used generally to include every state of the United States, includes also every terri- tory of the United States and the District of Columbia. The term territory when used generally to include every territory of the United States, including also the District of Columbia, Code Civ. Pro., § 3343, sub. IC. Public holiday; half -holiday. § 24, The term holiday includes the following days in each year: The first day of January, known as New Year's day; the twenty-second day of February, know^ as Washington's birthday; the thirtieth day of May, known as memorial day; the fourth day of July, known as independence day; the first Monday of September, knoAvn as labor day, and the twenty-fifth day of December, known as Christmas day, and if either of such days is Sunday, the next day thereafter; each general election day and each day appointed by the president of the United States or by the governor of this state as a day of general thanksgiving, general fasting and prayer, or other general religious observance. Ykar; Month. ' 621 The Statutoiy Construction Law. The term half-holiday includes the period from noon to midnight of each Saturday which is not a holiday. Code Civ. Pro., § 3343, sub. 21. Year. ' ' § 25. Time shall continue to be computed in this state according to the Gregorian or new style. The first day of each year after the year 1752 is the first day of January, according to such style. For the purpose of computing and reckoning the days of the year in the same regular course in the future, every year, the number of which in the Christ- ian era is a multiple of four is a bisextile or leap year con- sisting of three hundred and sixty-six days, unless such number of the year is a multiple of one hundred and the first two figures thereof treated g.s a separate number is not a multiple of four, and every year which is not a leap year is a common year consisting of three hundred and sixty-five days. The term year in a statute, contract, or any public or private instrument, means three hundred and sixty-five days, but the added day of a leap year and the day imme- diately preceding shall for the purpose of such computation be counted as one day. In a statute, contract or public or private instrument, the term year means twelve months, the term half-year, six months, and the term a quarter of a year, three months. R. S., 2026, pt. 1, ch. 19, tit. 1, §§ 1-3. Month. § 26. In a statute, contract or public or private instru- ment, unless otherwise provided in such contract or instru- ment or by law, the term month means a calendar month and not a lunar month. A number of months after or before a certain day shall be computed by counting such number of calendar months from such day, exclusive of the calendar month in which such day occurs, and shall include the day of the month in the last month so counted having the same numerical order in days of the month as the day from which the computation is made, unless there be not so many days 622 Days ; Standard Timb ; Cooks. The Statutory Construction Law. in the last month so counted, in which case the period com- puted shall expire with the last day of the month so counted. R. S., 2096, pt. 1, ch. 19, tit. 1, § 4. Id., 2514, pt. 2, ch. 4, tit. 3, § 9. Days; mode of computing days; night-time. § 27. A calendar day includes the time from midnight to midnight. Sunday or any day of the week specifically men- tioned means a calendar day. A number of days sjiecified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calen- dar day from which the reckoning is made. Sunday or a public holiday, other than a half-holiday, must be excluded from the reckoning if it is the last day of any such period, or if it is an intervening day of any such period of two days. In computing any specified number of days, weeks or months from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from ^A-hich any specified number of days, weeks or months of time is reckoned shall be excluded in making the reckoning. Night-time includes the time from sunset to sunrise. (Thus amended by L. 1894, ch. 447.) Penal Code, §§ 2G1 and 500. Code Civ. Pro., § 788. Standard time. § 28. The standard time throughout this state is that of the seventy-fifth meridian of longitude west from Green- wich, and all courts and public officers, and legal and official proceedings, shall be regulated thereby. Any act required by or in pursuance of law to be performed at or within a prescribed time, shall be performed according to such standard time. K. S., 2097, pt. 1, ch. 19, tit. 1, § 5. L. 1S84, ch. 14. Civil and criminal codes. § 29. The term civil code means the code of civil proced- ure. The term criminal code means the code of criminal procedure. Colonial Laws ; Repeal ; Effect of. 623 The Statutory Construction Law. La-»7S of England and of the colony of New York. § 30. A statute of England or Great Britain shall not be deemed to have had any force or effect in this state since May 1, 1788. Acts of the legislature of the colony of New York shall not be deemed to have had any force or effect in this state since December 29, 1828. The resolutions of the congress of such colony and of the convention of the state of New York, shall not be deemed to be the laws of this state hereafter. K. S., 12.5, L. 1S28, ch. 21, §§ 3 and 4. Limiting the efEect of repealing statutes. § 31. The repeal hereafter or by this chapter of any pro- vision of a statute, which repeals any provision of a prior statute, does not revive such prior provision. The repeal hereafter or by this chapter of any provision of a statute, which amends a provision of a prior statute, leaves such prior provision in force unless the amendatory statute be a substantial re-enactment of the statute amended. The repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or lia- *bility, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected; and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed. See the General Corporation Law, §§ 34, 35. As to the effect of this section upon repeals enacted at the same session of the legislature, see Ottman v. Hoffman, 7 Misc. K., 714, and cases there cited. Effect of repeal and re-enactment. § 32. The provisions of a law repealing a prior law, which are substantial re-enactments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law, and not as new enactments. If any provision of a law be repealed and, in substance, re-enacted, a refer- 624 Eevision; Effect of; Titles; Laws Repealed. The Statutory Construction Law. ence in any law to such repealed provision shall be deemed a reference to such re-enacted provision. (Thus amended by L. 1894, ch. 448.) Effect of revision upou laws passed at same session or before revision takes effect. § 33. No provision of any chapter of the revision of the general laws, of which this chapter is a part, shall super- sede or repeal by implication any law passed at the same session of the legislature at which any such chapter was enacted, or passed after the enactment of any such chapter and before it shall have taken effect; and an amendatory law passed at such session or at any subsequent session begun before any such chapter takes effect, shall not be deemed repealed, unless specifically designated in the repealing schedule of such chapter. Alterations of titles and head notes. § 34. If the title of any article or other division of a statute, or the head note of a section shall be amended or repealed in the body of the statute, or if a new article or other division having a title, or a new section having a new head note be added to a statute, the corresponding title or head note, if any, in an abstract of contents at the beginning of the article or other division of the statute, shall be deemed to be correspondingly amended or repealed, although there be no express reference thereto. Laws repealed. § 35. Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed. Time of taking effect. § 36. This chapter shall take effect immediately. Schedule of Laws Ebpba'led. 625 The Statutory Construction Law. Schedule of Laws Repealed. Seciions repealed. In Revision Sections. Revised Statutes, part I, chapter 8, title 8. . Revised Statutes, part I, chapter 19, title 1 . Revised Statutes, part II, chapter 4, title 3 . . Revised Statutes, part II, chapter 4, title 3 . . Revised Statutes, part III, chapters, title 17. Revised Statutes, part III, chapter 10, title 4. Revised Statutes, part IV, chapter 3, title 8. . haws 1838, second meeting, fifty-flrst session, chapter 30 16 1, 3, 3,4,5.. 9... 37.. 4... 16.. 9, 10, 11. Laws 1838, second meeting, fifty-first session, chapter 31 . . Laws 1857, chapter 586 , Laws 1874, chapter 331 Laws 1877, chapter 466 Laws 1884, chapter 14. Laws 1886, chapter 31 Code of Civil Procedure ' 3 and 4. Code of Criminal Procedure. PeialCode All. 37.. All. 30... 39, 788, 960 and subdivisions 6, 7,8,15,17,31,33, 23 and 34 of sec- tion 3343 955, 956, 957 361, 500, and sub- divisions 9, 10, 11,13,13, 14 and 15 of section 718. 13. 23, 34, 36. 5. 24. 16. 11. 13. 8, 9. 27. 5. 18. 8. 36. 16. 13, 35, 3, 4, 3, 7, 31, 32, 30, 13, 11. 18, 13, 14. 25. 3, 8, 5, 3, and 4. 40 TAXATION OF COKPORATIOMS. The Laws Eelative to the Annual Taxes op coepokations.* The State Tax Law. Laws op 1880, Chapter 542, as Amended. An Act to provide for raising taxes for the use of the State upon certain corporations, joint-stock companies and associations. Corporations to report dividends or value of stock to comptroller on or before November fifteenth, annually; comptroller, when to m.ake valuation. Section 1. Hereafter it shall be the duty of the president or treasurer of every association, corporation or joint-stock company liable to be taxed on its corporate franchise or business, as provided in section three of this act, to make report, in writing, to the comptroller annually, on or before the fifteenth day of November, stating specifically the amount of capital paid in, the date, amount and rate per centum of each and every dividend declared by their respec- tive corporations, joint-stock companies or associations dur- ing the year ending with the first day of said month. In all •cases where any such corporation, joint-stock company or association shall fail to make or declare any dividend upon ■either its common or preferred stock during the year ending as aforesaid, or in case the dividend or dividends made or declared upon either its common or preferred stock during the year ending as aforesaid shall amount to less than six • Chapter 143, Laws of 1886, which provides for the payment of a tax of one-eighth of one per cent for the privilege of organizing new corporations, appears, ante, pages 67, 68. Taxes Payable Direotlt to State. 62'7 Taxation of Corporations. per centum upon the par value of the said common or pre- ferred stock, the treasurer and secretary thereof, after being duly sworn or affirmed to do and perform the same with fidelity, according to the best of their knowledge and belief, shall, between the first and fifteenth days of November in each year, in which no dividend has been made or declared as aforesaid, or in which the dividend or dividends made or declared upon either its common or preferred stock amounted to less than six per centum upon the par value of said common or preferred stock, estimate and appraise the capital stock of such company upon which no dividend has been made or declared, or upon the par value of which the dividend or dividends made or declared amounted to less than six per centum, at its actual value in cash, not less, howevei;, than the average price which said stock sold for during said year; and when the same shall have been so truly estimated and appraised, they shall forthwith for- ward to the comptroller a certificate thereof, accompanied by a copy of their said oath or affirmation, by them signed, and attested by the magistrate or other person qualified to administer the same; provided, that if the comptroller is not satisfied with the valuation so made and returned, he is hereby authorized and empowered to make a valuation thereof, and to settle an account upon the valuation so made by him for the taxes, penalties and interest due the state thereon; and any association, corporation or joint- stock company dissatisfied with the account so settled may within ten days appeal therefrom to a board consisting of the seqretary of state, attorney-general and state treasurer, which board, on such appeal, shall affirm or correct the account so settled by the comptroller, and the decision of said board shall be final; but such appeal shall not stay proceedings unless the full amount of the taxes, penalties and interest as due on said account, as settled by the comp- troller, be deposited with the state treasurer. (Thus amended by L. 1881, ch. 361.) For forms of report required, see post, forms Noa. 134, 125, 120. By the Laws of 1889, chapter 463, sections 19 and 20, jwst, were added to this law, prescribing a method of reviewing the comptroller's action, which iseems to supersede the former method of appeal. All proceedings to review the comptroller's action under this law are now taken in accord- ance with said section 20. 628 Taxes Payable Directly to State. Taxation of Corporations. The State authorities are not obliged to deduct the amount of stock which corporations hold in Uuited States bonds, and compute the tax only upon the dividends derived from the remainder of such capital. (Peo. V. Home Ins. Co., 92 N. Y., 328; Home Ins. Co. v. People, 134 U. S., 594.) Capital invested in patent rights is not exempt. (Peo. ex rel. Edison El. I. Co. V. Wemple, 61 Hun, 53; see 129 N. Y., 664, reversal, on other grounds.) This act, as applied' to a manufacturing corporation organized in Utah and doing a small part of its business here, does not regulate Interstate commerce; nor take private property without just compensation; nor deny to the corporation the equal protection of the laws; nor impose a lax beyond the constitutional power of the State. (Horn Silver Mining Co. V. New York, 143 U. S., 305.) A railroad which is a link in a through line, by which passengers and freight are carried into a State from other States, and from that State to other States, is engaged in interstate commerce, and a tax for keeping the office of such railroad in the State is unconstitutional. (Norfolk & W. R. R. Co. V. Penn., 136 U. S., 114.) A tax by the State upon the business of a foreign corporation carried on in this State, where it is exclusively the business of Interstate com- merce, is a regulation of commerce and the power to regulate commerce between the States is vested exclusively in Congress. (Peo. ex rel. Penn. R. R. Co. V. Wemple, 138 N. Y., 1.) The transportation of goods and passengers by continuous carriage from one place to another in the same State, although part of the route is over the soil of another State, is not interstate commerce, and it is, there- fore, within the power of the State to impose a tax upon such business. (Lehigh Valley R. R. Co v. Penn., 145 U. S., 175.) Penalty in case of failure to make report.- § 2. If the said officers of any such corporation, joint-stock company or association shall neglect or refuse to furnish the comptroller, on or before the fifteenth day of November of each and every year, with the report aforesaid, or the cer- tificate of appraisement, and oath or affirmation, as the case may be, as required by the first section of this act, or to pay the tax imposed on such corporation, company or associa- tion within fifteen days after the first of January as pro- vided in the fourth section of this act, it shall be the duty of the comptroller of the state to add ten per centum to the tax of said corporation, company or association, for each and every year for which such report or certificate of appraisement and oath or affirmation were not so furnished, or for which such tax shall not have been paid, which per- centage shall be assessed and collected with the said tax in the usual manner of assessing and collecting such taxes; Taxes Payable Directly to State. 629 Taxation of Corporations. provided, that if said officers of any such corporation, joint- stock company or association shall intentionally fail to comply with the provisions of the first or fourth section of this act for one year, the comptroller shall report the fact to the governor, who, if he shall be made satisfied that such failure was intentional, shall thereupon direct the attorney- general to take proceedings, in the name of the people of this state, to declare the charter or privileges of said corpo- ration, joint-stock company or association forfeited, and at an end; and for such intentional failure duly found, the , charter and privileges of every such corporation, company or association shall cease, end, and be determined. (Thus amended by L. 1881, ch. 361.) This should be construed so as to authorize only the addition of ten per cent to every year's tax that is in default, not ten per eent for each year the default continued. (People ex rel. Kdison El. I. .Co. v. Wemple, 61 Hun, 53; People ex rel. Brush El. M. Co. v. Wemple, 15 N. Y. Supp., 718; 39 St. Rep., 614; 'see, also, 129 N. Y., 664 and 543, cases reversed on other points.) What corporations subject to, or exempt from taxation; amount of tax, how computed. § 3. Every corporation, joint-stock company, or associa- tion whatever, now or hereafter incorporated, organized or formed under, by or pursuant to law in this state or in any other state or country, and doing business in this state, except only savings banks and institutions for savings, life insurance companies, banks, foreign insurance companies, manufacturing or mining corporations or companies wholly engaged in carrying on manufacture, or mining ores within this state, and agricultural and horticultural societies, asso- ciations or corporations, which exceptions, however, shall not include gas companies, trust companies, electric or steam heating, lighting and power companies, shall be liable to and shall pay a tax, as a tax upon its franchise or business, into the state treasury annuUy, to be computed as follows : If the dividend, or dividends made or declared by such corporation, joint-stock company or association, during any year ending with the first day of November, amount to six or more than six per centum upon the par value of its capital stock, then_the tax to be at the rate of one-quarter mill upon the capital stock for each one per 630 Taxks PAyABLE Directly to State. Taxation of Corporations. centum of dividends so made or declared; or if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of one and one-half mills upon each dollar of the valuation of the said capital stock, made in accordance with the pro- visions of the first section of this act; and in case any such corporation, joint-stock company or association shall have more than one kind of capital stock, as for instance, com- mon and preferred stock, and upon one of said stocks a dividend or dividends, amounting to six or more than six per centum upon the par value thereof, has been made or declared, and upon the other no dividend has been made or declared, or the dividend or dividends made or declared thereon amount to less than six per centum upon the par value thereof, then the tax shall be at the rate of one-quar- ter mill for each one per centum of dividends made or declared upon the capital stock upon the par value of which the dividend or dividends made or declared amount to six or more than six per centum, and in addition thereto tax shall be charged at the rate of one and one-half mills upon each dollar of a valuation, made also in accordance with the provisions of this act, of the capital stock upon which no dividend was made or declared, or upon the par value of which the dividend or dividends made or declared did not amount to six per centum. (Thus ataended by L. 1881, ch. 361; L. 1885, cb. 359; L. 1889, ch. 193; L. 1889, ch. 353; L. 1890, ch. 522.) A foreign corporation conducting a manufacturing business in this State and also purchasing and selling general electric supplies not manufac- tured by it, is not wholly engaged in carrying on manufacture within the State, and, therefore, is not exempt frorn taxation on the amount of its capital employed here. (People ex rel. Western Electric Co. v. Campbell, 145 N. Y., 58T ; afC'g 80 Hun, 466 and dist'g People ex rel. Tiffany & Co. V. Campbell, 144 N. Y., 166.) A corporation engaged in the sale of spices, baking powder, coffee and tea, purchased these articles in bulk. The spices and baking powder were merely put up in packages and sold. Various kinds of tea were mixed and sold as " combination tea." The coffee was roasted and ground. Held, That this was not manufacture, and the corporation was not exempt from taxation as a manufacturing corporation; (People ex rel. Union Paclfl* Tea Co. t. Roberts, 145 N. Y., 375.) JIanufacture is the production of some new article by the application of skill and labor to the raw material. (Id.) Taxes Payable Directly to State. 631 Taxation of Corporations. The provision exempting from taxation manufacturing corporations " wholly engaged in carrying on manufadture " within this State, had in view corporations whose corporate powers were confined to the exclusive business of manufacturing, and the limiting words " wholly engaged in," were intended to distinguish between such corporations and corporations which embraced a wider scope of power, but which included the power to engage in the business of manufacture. These latter corporations were not exempted, unless their actual business was confined to the exercise of this specific power. (People ex rel. Tiffany & Co. v. Campbell, 144 N. Y., 166 ; affirming 80 Hun, 486.) The statute was not aimed at and did not contemplate the exercise by a corporation of powers ultra vires ; there- fore. If a manufacturing corporation is engaged in business outside of its corporate powers, in connection with its manufacturing business, it does not cease to be " wholly engaged " in the business of manufacture ; that Is to say, its only legal and authorized business was that of manufacture, and it subjected itself to taxation upon that portion of its capital so Illegally used, but nevertheless it remained a corporation which so far as It exercised its legal powers, was " wholly engaged " in manufacture, and entitled to exemption as to its manufacturing business. (Id.) The words "capital stock" used in the foregoing section do not mean the " share " stock, but refer to the authorized capital stock, paid in or con- tributed by the stockholders. (People ex rel. Am. Ax and Tool Co. v. Roberts, 82 Hun, 313.) The comptroller may properly hold, in the absence of any satisfactory explanation, that the value of the capital stock of a corporation is equal to the sum paid into its treasury ; and, on that assumption, he may well doubt the truth of the report of the ofBcers of the corporation in estimating that its stock had so shrunken in value as to be worth only one-quarter of Its par value. (Id.) He is justified in doubting the reliability of the appraisement made by the officers of the corporation which makes its capital stock employed within the State less than the conceded value of its real estate therein. (Id.) He is made by the statute an assessor, and he has the right to estimate the value of the stock of a corporation according to such information as he can obtain, or upon his own judgment. His decision in such case, unless clearly shown to be erro- neous, will not be disturbed. (Id.) It is for the corporation, on an appli-. cation for a rehearing, to establish the fact that the conclusion of the comptroller in fixing the value of its property within the State was erro- neous. (Id.) In proceedings to review the decision of the comptroller in assessing a tax the burden is upon the corporation to show that the comptroller erred in imposing the tax of which it complains. (People ex rel. Western Elec. Co. V. Campbell, 80 Hun, 466.) A corporation, which is neither a manufacturing corporation nor one wholly engaged in carrying on manufacture within the State, is liable to taxation. (People ex rel. Union Pacific Tea Co. v. Roberts, 82 Hun, 352.) The office of comptroller of the State is a continuous office, and while the term of office of a particular incumbent may, and does by the tenure fixed by law, expire as to such incumbent, the office, nevertheless, devolves on his successor a,nd is perpetual, and such successor succeeds to the 632 Taxes Payable Directly to State. Taxation of Corporations. records and papers of the office ; therefore, a writ of certiorari is properly directed to the comptroller of the State under section 2129 of the Code of Civil Procedure, although the determination of the comptroller sought to be reviewed was made by a comptroller in office preceding the one to whom the writ was directed, and the predecessor in office is not a necessary party to the proceeding in order to obtain a review of such determination. (Matter of Tax against Tiffany & Co., SO Hun, 486 ; reversed on other grounds by 144 N. Y., 166.) The provision of this act are not In violation of either the State or Federal Constitution. (Matter of Tiffany & Co., 80 Hun, 486 ; citing Peo- ple V. Home Ins. Co., 92 N. Y., 328 ; People v. Horn Silver Mining Co., 105 N. Y., 76, and Home Ins. Co. v. New York, 134 U. S., 594.) A domestic corporation engaged in business out of the State but having its office and bank accounts in the State made annual reports to the comptroller for three years, by which it appeared that dividends were declared and paid upon its capital dm-ing those years. The comptroller based his adjustment of taxes against such corporation upon the amount of capital employed in this State, which he determined from the average monthly balances in the New York banks, and the expenditures for the maintenance of its office there. Held, that there was sufficient evidence upon which the comptroller could act in finding a basis for assessment; and that the tax was properly imposed. (People ex rel. Am. Contracting and Dredging Co. v. Wemple, J29 N. Y., 558, aff'g 60 Hun, 225; see, also, cases therein cited.) The qualifying words, " and doing business in this State," in the pro- vision of the foregoing section, subjecting to the tax prescribed, every corporation not excepted from its operation, which is " incorporated ot organized by or under any law of this State, or * * * under the laws of any other State or country, and doing business in this State," have reference only to foreign corporations. (People ex rel. American Contract- ing & Dredsing Co., 12!) N. Y., r,5S; aff'g 60 Him, 225.) As to domestic corporations, the legislfl'ive power to tax their business and franchises Is general; but as to foreign corporations, the jurisdiction is gained from the business which they do in this State, and the tax is upon that busi- ness. (Id.) This tax is not upon the property of the corporations but upon their franchises and business; and as to domestic corporations, is in no sense restricted to such as do business in this State. (Id.) Where a corporation is subject to taxation under this act, the determination of the comptroller, unless clearly shown to be erroneous, will not be disturbed. (Id.) The comptroller is not authorized to assess a tax against the surplus moneys of a foreign corporation invested by it in real estate in the State of New York. The statute only authoilzes him to tax the capital stock of a foreign corporation employed in its business within the State, and does not authorize his assessing such a corporation upon its surplus or undivided profits within the State. (People ex rel. Singer Mfg. Co. v. Wemple, 78 Hun, 63.) The term " capital stock," as used in this act, refers to the capital stock authorized by the charter of a corporation and subscribed or raised Taxes Payable Diekctly to State. 633 Taxation of Corporations. by its stockholders, on whlcli it pays dividends, and whicli it is obliged to maintain intact, not the surplus or undivided profits, hovrever Invested, which It can at any time turn into money and divide among its stock- holders. (Id.) When a foreign corpoi'ation, whose business is manufacturing and the eelling of its manufactured products, uses a portion of its surplus in the purchase of real estate in the State of New York, and holds the same as an Investment, not using it in its business, such purchase and holding Is not an employnient of Its capital stock within the State, within the meaning of this act; the basis of the tax authorized by such statutes is the amount or portion of the capital of such corporation in use within tlie State in the transaction of its ordinary business. (Id.) The holding of real estate and the receiving of rentals therefrom is no part of the ordinary business of a manufacturing corporation. (Id.) Portions of the capital stock of a domestic corporation, organized for' guaranteeing bonds, etc., invested in real estate in another State and in United States bonds deposited under a deed of trust in a third State and with the Minister of Finance In Canada, to enable the corporation to do business In such States and Canada, are not to be deemed " capital stock employed within this State " for purposes of taxation, although the Investments are subject to claims of creditors of the corporation, and the income therefrom is received at its home office In this State, and is there used in its business. (People ex rel.' American Surety Co. v. Campbell, 74 Hun, 101.) All stock corporations and joint-stock associations organized under the laws of other States, or of the territories, or of foreign coimtrles, and doing business In this State, except banks and insurance corporations, are subject to taxation under the foregoing section. The amendment of 1890, chapter 522, to this section added the provisions for taxation of electric or steam-heating, lighting and power companies. Whether a foreign corporation is doing business In this State is a ques- tion that must be determined from the character of the business carried on, not from the existence of any unexercised powers reserved to it by its contracts. (Peo. v. Am. Bell Tele. Co., 117 N. Y., 241; Peo. v. Horn Silver Mining Co., 105 N. Y., 76; 143 U. S., 305.) A manufacturing corporation created by the laws of another State, but doing business in this State, is subject to taxation under this law. (Peo. ex rel. Southern Cotton Oil Co. v. Wemple, 131 N. Y., 64; Peo. ex rel. Seth Thomas Clock Co. v. Wemple, 133 N. Y., 323.) The basis of such tax is the amount of Its capital in use here in the transaction of its ordi- nary business. (Id.) This act Is not in conflict with the provisions of the federal constitution conferring upon congress the exclusive power to regulate commerce between the States. (Peo. ex rel. Southern Cotton Oil Co. V. Wemple, supra.) The fact that State legislation upon the subject may Indirectly affect commerce, does not render it unconstitutional. (Id.) Where a corporation of another State engaged in manufacturing business, maintained a sales agency in this State, with a depot or warehouse for its manufactures, sold a large portion thereof In the State, and kept large deposits In banks of the State for the purpose of Its business, held, that 634 Taxes Payable Directly to State. Taxation of Corporations. It was liable to taxation under said act; that because it was selling some part of its manufactures in other States or foreign countries, did not establish that it was engaged in interstate or foreign commerce within the meaning of the federal constitution. (Id.) See also cases cited ante, under section one. The tax upon foreign corporations is only upon the business done in this State. (Peo. v. Equitable Trust Co., 96 N. Y., 387.) The United States Express Company, an unincorporated joint-stocli association, doing business in this State, is subject to taxation under this act. (People ex rel. Piatt v. Wemple, 117 N. Y., 136.) The coui'ts have decided that the exemption in favor of manufacturing corporations applies only to such corporations as create some new and artificial product within the State. (Peo. ex rel. Brush El. Mfg. Co. v. Wemple, 129 N. Y., 543; People ex rel. Edison El. 111. Co. v. Wemple, 129 N. Y., 604; Peo. v. Horn Silver Mining Co., 105 N. Y., 76; Peo. v. Knick- erbocker Ice Co., 99 N. Y., 181; Peo. v. N. Y. F. Dock Co., 92 N. Y., 487.) A foreign corporation claiming exemption as a manufacturing corporp.- tlon must show that some substantial portion of its manufacturing Is carried on in this State. (People ex rel. Eoebling's Sons Co. v. Wemple, C3 Hun, 452, afC'd 138 N. Y., 582.) The amendment of 1889, ch. 353, changed the exemption making it applicable only to corporations wholly engaged in carrying on manufac- ture within the State. This exemption was restricted by chapter 353 of Laws of 1889, which requires that the corporation, in order to be entitled to claim the exemp- tion, shall be " wholly engaged in carrying on manufactures within the State." (People ex rel. Seth Thomas Clock Co. v. Wemple, 133 N. Y., 323.) A foreign manufacturing corporation whose business is conducted in another State, and which transacts none of its corporate business in this State, but has an oflice therein as a convenient meeting place for Its patrons in discussing contracts, the contracts themselves being executed at the home office, can not, for the purposes of taxation, be regarded as doing business in this State. (Peo. ex rel. Harlan & Hollingsworth Co. V. Campbell, 139 N. Y., 68.) The amount of tax payable by a foreign corporation under this act is based upon the portion of its capital employed in this State (see post), and the rate of taxation ui>on such capital is' regulated by the divi- dends made and declared, or upon a valuation of its capital stock. If the dividends of the corporation for the year ending with the first day of November amount to six per cent or more, then the tax for that year is at the rate of one-quarter mill upon its capital employed in the State for each one per cent of dividend. If, on the other hand, no dividends are made or declared, or if the dividends are less than six per cent for the year ending November first, then a valuation of the capital employed in the State is made by the Comptroller, and the tax is at the rate of one and one-half mills upon each dollar of such valuation. The basis of taxation of a foreign corporation under said act is the por- tion of Its capital employed within the State. (People ex rel. Seth Thomas Clock Co. V. Wemple, 133 N. Y., 323; People ex rel. Southei-n Cotton Oil Taxes Payable Directly to State. 635 Taxation of Corporations. Co. V. Wemple, 131 id., 65; People ex rel. Am. C. & D. Co. v. Wemple, 129 Id., 558.) .; The value of goods that the corporation kept on hand within this State In warehouses or otherwise in the transaction of its business and from which it made shipments or sales, was property that represented capital Btock, and all money on deposit here and used in business here also could be made basis for the tax, but sales made by sample, followed by a delivery from the factory, could not. (People ex rel. Seth Thomas Clock Co. V. Wemple, 133 N. Y., 323.) If it does not employ any of its capital stock here, there is no basis for taxation. (Id.) A corporation which has declared dividends amounting to five and three- fourths per cent is taxable at the rate of one and one-half mills on each dollar of the value of the stock, although such value exceeds the par value, and the result is a larger tax than if the corporation had paid six per cent dividends. (People v. D. & H. Canal Co., 54 Hun, 598; affirmed 121 N. Y., 666.) When payable. § 4. It shall be the duty of the treasurer or other officer having charge of any corporation, joint-stock company or association, upon which a tax is imposed by either of the preceding sections of this act, to transmit the amount of said tax to the treasury of the state within fifteen days after the first day of January in each and every year. (Thus amended by L. 1881, ch. 861.) Instirance Companies. § 5. Hereafter it shall be the duty of the president, secre- tary or other proper officer of every insurance company and every association organized or incorporated by or under any law of this State, and of every person or partnership doing an insurance business in this State (except life insurance companies, and purely mutual beneficial associations, whose fund for the benefit of the members, their families, or heirs, is made up entirely of contributions of their members, and the accumulated interest thereon), to make report in writing to the comptroller annually upon the first day of August in each year, after the first day of August, eighteen hundred and eighty-one, setting forth the entire amount of premiums received on business done in this State by such company or association, person or partnership during the year ending with the preceding thirtieth day of June, whether the said premiums were in money or in the form of notes, credits, or any other substitute for money, and every such company, 636 Taxes Payable Dieeotlt to State. Taxation of CorporatiODS. association, person or partnership shall pay into the State treasury, at the date aforesaid, a tax, as a tax on its corporate franchise or business, at the rate of eight-tenths of one per centum upon the gross amount of said premiums. And every company or association organized under the laws of any other State or country, and every person or partnership doing an insurance business in this State, except as afore- said, shall pay into the treasury on the first day of August in each year a tax rate of eight-tenths of one per centum on their gross premiums received by them on business trans- acted in this State during the year ending with the preced- ing thirtieth day of June, whether the said premiums were in money or in the form of notes, credits, or any other sub- stitute for money. And every such company, association, person, partnership, or the agents and officers thereof in this State, shall make report in writing to the comptroller annually upon the first day of August in each year, setting forth the entire amount of premiums received during the period aforesaid. Provided, that the reports above required shall be made under oath or affirmation, and that it shall be the duty of the comptroller of the State to add ten per centum to the account of any company, association, person or partnership, which shall neglect or refuse for a period of thirty days to make the said report, or to pay into the State treasury the tax imposed by this section. And it shall also be the duty of the president, secretary, or other proper officer of each and every insurance company, association, partner- ship, and of every person liable to be taxed under this sec- tion, to make a report in writing to the comptroller on the first day of August, eighteen hundred and eighty-one, under oath or affirmation, of the entire amount of premiums received on business done in this State during the six months ending with the preceding thirtieth day of June, and to pay a tax at the rate of eight-tenths of one per centum thereon. And it shall be the duly of the comptroller of the State to add ten per centum to the account of any company, association, person or partnership which shall neglect or refuse for a period of thirty days to make the said report, or to pay into the State treasury the tax imposed. And the comptroller shall have the same powers for the enforcement of the tax provided for in this section as are now conferred Taxes Payable Dieeotlt to State. 637 Taxation of Corporations. upon him for the enforcement of taxes under sections twelve, thirteen and eighteen of this act, (Thus amended by L. 1895, ch. 425.) Tax on gross eatniugs of railroad, steamboat and otter transportation companies; rate of tax. § 6. In addition to the taxes above provided for, every corporation formed for railroad, canal, steamboat, ferry, express, navigation or transportation purposes, and every elevated railway company, and every other corporation, joint-stock conipany or association now or hereafter incor- porated or organized by or under any law of this state, or now or hereafter incorporated or organized by or under the laws of any other state or country and doing business in this state, and owning, operating or leas- ing to or from another corporation, joint-stock company or association, any railroad, canal, steamboat, ferry, express, navigation, pipe-line or transportation route or line, or elevated railway, or other device for the transportation of freight or passengers, or in any way engaged in the business of transporting freights or pas- sengers, and every telegraph company or telephone com- pany incorporated under the laws of this or any other state, and doing business in this state, and every express com- pany or association, palace car or sleeping car company or association, incorporated or unincorporated, doing business in this state, shall pay to the state treasurer for the use of the state, as a tax upon its corporate franchise or business in this state, a tax at the rate of five-tenths of one per centum upon the gross earnings in this state of said corpo- ration or company or association, for tolls, transportation, telegraph, telephone or express business transacted in this state. (Thus amended by L. 1881, ch. 361.) (See People ex rel. Penn. E. E. Co. v. "Wemple, cited ante, page 591.) The tax imposed by this section is legally applicable to the gross earn- ings, arising from the carriage of goods or passengers within the State of New York, of a consolidated railroad corporation created under the laws of New York and of an adjoining State, whose line is from a point in the State of New York to a point in such adjoining State, and which at each terminus connects with roads running to other States, although such car- riage within the State of New York is a part of "interstate business," 638 Taxes Payable Dikectlt to State. Taxation of Corporations. tUat is, of business which originated in this State and terminated in another State, or originated in another State and terminated in this State, or both originated and terminated in another State. (People ex rel. Dunkirk, Allegheny Valley & P. R. R. Co. v. Campbell, 74 Hun, 210.) In such a case the tax is not a tax imposed by the State on interstate commerce, but is simply a tax on a domestic corporation, created by the State, for the privileges and franchise granted to it by the power which created it; and such a tax may be legally and constitutionally imposed by tho State. (Id.) The imposition of such a tax upon the gross earnings of a domestic cor- poration for the carriage of goods or passengers within the State of New York, where the beginning or termination of such business is in another State or country, is not within the prohibition upon State legislation aris- ing from the " interstate commerce " clause of the Federal constitution. (Id.) Tne power conferred by the Federal Constitution upon Congress to regulate commerce with foreign nations and among the States, does not reach so far as to prohibit a State from imposing a franchise tax upon a corporation created by and doing business in such State, as to all busi- ness done by it in the State in the transportation of property or persons coming from or going to any Other State or country. (Id.) Tax under section six, when payable. § 7. The tax imposed under section 6 of this act shall, after the first day of August, 1881, be paid annually on the first day of August of each year. It shall be the duty of the president, secretary or other proper officer of the corpora- tions, joint-stock companies or associations referred to in section six of this act to transmit to the comptroller, on the first day of August in each year, a statement under oath or affirmation of the amount of the gross earnings of the said associations, corporations or joint-stock com- panies derived from all sources during the year ending with the preceding thirtieth day of June, together with the amount of tax imposed thereon by section six. And it shall also be the duty of the president, secre- tary or other proper officer of the corporations, joint-stock companies or associations referred to in section six of this act to transmit to the comptroller on the first day of August, eighteen hundred and eighty-one, a statement under oath or affirmation of the amount of the gross earnings of the said' associations, corporations or joint-stock companies derived from all soiirces during the six months ending with the thirtieth day of June, eighteen hundred and eigh^-one, together with the tax imposed thereon by section six of this Taxes Payable Dieeotlt to State. 639 Taxation of Corporations. act. And if any such corporation, joint-stock company or association shall neglect or refuse, for a period of thirty days after any tax imposed by sections six or seven of this act becomes due, to make returns or to pay the same, the amount thereof, with the addition of ten per centum thereto, shall be collected for the use of the state as other taxes are recoverable by law from such corporation, joint- stock company or association. , (Thus amended by L. 1S81, ch. 361.) Exempt from taxation for state purposes; proviso. § 8. The corporations, joint-stock companies and associa- tions mentioned in this act as taxable shall hereafter be exempt from assessment and taxation for state purposes, except upon their real estate and as herein provided; but they shall in all other respects be liable to assessment and taxation as heretofore. (Thus amended by L. 1881, ch. 361.) This act does not prevent the local authorities from imposing taxes for municipal and county purposes. (People ex rel. Eastern Trans. Line v. Comrs. of Taxes, 26 Hun, 446; People v. Fire Assn., 92 N. Y., 311.) The " tunnels, tracks, substructures, superstructures, stations, viaducts and masonry " of a railroad are " land." (People ex rel. N. Y. & H. R. R. Co. V. Comrs. of Taxes, 101 N. Y., 322.) Tax, application of. § 9. The taxes imposed by this act, and the revenue derived therefrom, shall be applicable to the payment of the ordinary and current expenses of the state, and if any cor- poration, joint-stock company, person, partnership or asso- ciation shall neglect or refuse to pay any tax by this act required to be paid, the same may be sued for in the name of the people of the State, and recovered in any court of competent jurisdiction, in an action to be brought by the attorney-general at the instance of the comptroller. (Thus amended by L. 1881, ch. 361.) Saving clause. § 10, All obligations, liabilities and taxes heretofore incurred or imposed under said act, chapter 542 of Laws of 1880, are saved, and shall be enforced as if the said act had not been hereby amended. (Added by L. J881, ch. 361.) 640 Taxes Payable Directly to State. Taxation of Corporations. Amount of capital stock employed in this state to be basis of tax; if dissatisfied, comptroller may fix amount; former settlements for taxes by the comptroller confirmed. § 11. The amount of capital stock which shall be the basis for tax under the provisions of section three of this act, in the case of every corporation, joint-stock company and asso- ciation liable to taxation thereunder, shall be the amount of capital stock employed within this state. In making to the comptroller the report in writing or certificate of estimate and appraisal of the capital stock of such corporation, joint- stock company or association, provided for by the first sec- tion of this act, it shall be the duty of the president or treas- urer thereof, as the case may be, to state specifically, the amount of capital stock employed within this state of such corporation, joint-stock company or association. Whenever the comptroller is dissatisfied with such report or certificate of estimate and appraisal, as the case may be, of any corpo- ration, joint-stock company or association, whose capital is only partially employed within this state, he is authorized and empowered to ascertain, fix and determine the amount of capital employed within this state, and so settle an account for the taxes and penalties due the state thereon. The gross earnings in this state, which shall be the basis of taxation, under the provisions of section six of this act, shall be the gross earnings derived from business originating and terminating within this state, and shall in no event include earnings derived from business which is of an interstate character, and all settlements for such taxes heretofore based by the comptroller upon gross earnings, excluding earnings from interstate business, are hereby ratified and confirmed, except that the accounts for taxation under section six of this act for the years eighteen hundred and ninety-two and eighteen hundred and ninety-three shall be settled and adjusted by the comptroller by excluding the earnings of an interstate character as herein provided. (Added by L. 1882, eh. 151, and thus amended by L. 1885, ch. 501, and L. 1894, ch. 563.) The State authorities are not obliged to deduct the capital which cor- porations hold in United States bonds, and compute the tax from the remainder of such capital. (People v. Home Ins. Co., 92 N. Y., 328; Home Ins. Co. v. People, 134 U. S., 594.) Taxes Payable Directly to State. 641 Taxation of Corporations. Capital Invested in patents is to be deemed employed in the State where the company is located. (People ex rel. Edison El. Co., v. Wemple, 63 Hun, 444.) See, also, cases cited under section three. In case of failure to make report, comptroller m.ay examine books and records, and make report. § 12. Whenever any corporation, joint-stock company or association liable to make reports or certificates of estimate and appraisal to the comptroller, under any of the provisions of this act, shall neglect or refuse to make such report or reports within the time prescribed in this act, or shall make such report or certificate as shall be unsatisfactory to the comptroller, the comptroller is authorized to examine, or cause to be examined, the books and records of any such corporation, joint-stock company or association, and to fix and determine the amount of tax and penalty due in pur- suance of the provisions of this act, either from the said books and records, or from any other data in his possession which shall be satisfactory to him, and to settle and account for said tax and penalty, together with the expenses of such examination against said corporation, joint-stock company or association. (Added by L. 1882, ch. 151, as amended by L. 1885, ch. 501.) Com.ptroller may issue subpoenas and examine witnesses; penalty for failure ■to obey subpoena. § 13. Whenever the comptroller shall deem it necessary or important to examine any person as a witness upon any subject or matter relating to the amount of capital stock of such corporation, or to use, examine or inspect any book, account, voucher, or document in possession of any ofiflcer of such corporation, or other person, or under his control, relating to such capital stock and tax, he shall have the power to issue a subpoena in proper form, commanding such person or officer to appear before him or some person desig- nated as commissioner by him by an appointment in writ- ing, filed in the office of such comptroller, at a time and at the place where the principal office of such corporation is situated within this state in such subpoena specified, to be examined as a* witness, and such subpoena may contain a clause requiring such person or officer to produce on such 41 642 Taxes Payable Directly to State. Taxation of Corporations. examination all books, papers and docnments in his posses- sion or under his control, relating to the capital stock of such corporation and the amount thereof employed within this state. Such subpoena shall be served upon the person named by showing him the original subpoena and delivering to and leaving with him at the same time a copy thereof. The comptroller or the commissioner so designated by him as aforesaid may administer oaths to such persons as he may desire to examine, so brought before him by subpoena or otherwise, and examine them on oath in relation to any matter which may in any wise be material in determining the amount of the tax to be paid by any such corporation, joint-stock company or association as aforesaid. Whenever any person duly subpoenaed to appear and give evidence as aforesaid, or to produce any books and papers as herein- before provided, shall neglect or refuse to appear or to pro- duce such books and papers according to the exigency of such subpoena, or shall refuse to testify before said comp- troller or the commissioner so designated by him, or to answer any proper and pertinent question, he shall be deemed in contempt, and thereupon any justice of the supreme court of the judicial district within which the principal office of such corporation within this state is situated shall, upon the motion of the comptroller, based upon affidavit showing the commission of the offense, either, first, make an order requiring the accused to show cause before him, at a time and place specified therein, why the accused should not be punished for the alleged offense; or, second, issue a warrant of attachment directed to the sheriff of a particular county, or generally directed to the sheriff of any coxmty where the man may be found, commanding him to bring him before said justice either forthwith or at a time and place therein specified, to answer for the alleged offense. On the return of said attachment and the pro- duction of the body of the defendant therein the said justice shall have jurisdiction in the matter, and the person charged may purge himself of the contempt in the same way, and the same proceedings shall be had, and the same penalties may be imposed and the same punishments inflicted as in the case of a witness subpoenaed to appear and give evidence as is prescribed in title three, chapter seventeen of the Code Taxes Payable Directly to State. 643 Taxation of Corporations. of Civil Procedure, in proceedings to punish a contempt of court other than a criminal contempt. (Added by L. 1882, ch. 151, as amended by L. 1885, ch. 501.) Comptroller to settle and adjust all accounts against corporations, for taxes and penalties since May 12, 1882; proviso as to payments made before August 1, 1885. § 14. The comptroller is hereby authorized and directed, upon application to him made by any corporation, joint- stock company or association, to make, settle and adjust all accounts against such corporation, joint-stock company or association, for all taxes and penalties arising under the third section of this act since the 12th day of May, A. D, 1882, by taking as a basis for taxation the capital employed within the state by such corporation, joint-stock company or association. Provided, however, that such corporation, joint-stock company or association shall not be entitled to the benefit of a settlement upon such basis unless it shall have secured such adjustment and paid into the treasury the full amount of the taxes so settled, before the first day of August, 1885, nor shall this section apply to the case of any tax for which suit shall have been heretofore brought by the attorney-general, in which suit the trial has been commenced, or in which judgment shall have been entered heretofore for the people for the amount of said tax. Any corporation, joint-stock company or association whose capi- tal has heretofore been only partially employed within this state, and which is now liable for taxes arising under the third section of this act since the twelfth day of May, A. D. 1882, and which are still due and unpaid, may, at any time prior to the first day of August, 1885, pay^ to the state treasurer for the use of the state, in full discharge of the same, such sum of money as shall be fixed by the comptroller as the tax due for the said period by the said corporation, joint-stock company or association, upon the basis of the capital employed within the state. Provided, that this section shall not apply to the case of any tax for which suit may have heretofore been brought by the attorney-general, and for which judgment shall have been entered therein, or if in such suit trial has been commenced. (Added by L. 1885, ch. 501.) 644 Taxes Payable Dieeotly to State. Taxation of Corporations. Interest. § 15. All accounts hereafter settled by the comptroller agreeably to the prdvisions of this act shall bear interest from a date thirty days after the sending of notice of settle- ment, hereinafter provided for, until full payment thereof shall be made. (Added by L. 1885, ch. 501.) Comptroller to give notice of settlement of taxes. § 16, It shall be the duty of the comptroller after making with any partnership, corporation, joint-stock company or association, liable to taxation under any of the provisions of this act, the settlement of such taxes, to forthwith send notice hereof, in writing, to such person, partnership, cor- poration, joint-stock company or association, which notice may be sent by mail to the post-office address of such corpo- ration, joint-stock company or association. (Added by L. 1885, ch. 501.) Provisions in relation to review of comptroller; determination by writ of certiorari. § 17. No writ of certiorari to review the determination and settlement of the comptroller as to the amount of capi- tal used within the state by any corporation, joint-stock company or association, and as to the tax and penalty to be paid thereon, shall be granted, except application therefor be made within thirty days after service upon such corpo- ration, joint-stock company or association by the comp- troller of notice of such settlement. Nor shall any such writ be granted except the papers upon which motion there- for is to be made, including notice of motion, shall have been served upon the comptroller at least eight days before such motion, nor unless the corporation, joint-stock com- pany or association applying for such writ shall, before making such motion, have deposited with the state treas- urer the full amount of taxes, penalties and charges so settled and adjusted by the comptroller, and file with him an undertaking in such amount, and with such sufficient sureties as shall be approved by one of the justices of the supreme court of this state, to the effect that if said writ be vacated and the determination of the comptroller sus- tained, the applicant for the writ will make payment of all Taxes Patable Dieeotlt to State. 645 Taxation of iCorporatioDS. costs and charges which may accrue against such applicant in the prosecution of such writ, including costs on all appeals. (Added by L. 1885, ch. 501.) (See People ex rel. Am. Surety Co. v. Campbell, 64 Hun, 417.) Comptroller may issue warrants for collection after thirty days. § 18, After the expiration of thirty days from the serv- ice by the comptroller of notice of the settlement aforesaid, if no proceedings shall have been taken to review the same, as provided by this act, or if the deposit with the state treas- urer of the amount of the said settlement, together with the undertaking, as provided for by this act, shall not tiien have been made, it shall be lawful for the comptroller to issue his warrant or warrants under his hand and seal of office directed to the sheriff of any county in this state, commanding him to levy upon and sell the goods and chat- tels, lands and tenements of the said corporation, joint-stock company or association found within the said county, for the payment of the amount of said settlement, together with interest thereon and costs of executing such warrant, and to return the said warrant to the comptroller, and pay to >the state treasurer the money which shall be collected by virtue thereof, by a certain time therein to be specified, not less than sixty days from the date of such warrant. Such war- rant shall be a lien upon and shall bind the personal estate of the person, partnership, corporation, joint-stock company or association against whom it shall be issued, from the time an actual levy shall be made by virtue thereof, and the sheriff to whom such warrant shall be directed shall proceed upon the same in all respects with the like effect and in the same manner as prescribed by law in respect to executions issued against property upon judgments rendered by a court of record, and shall be entitled to the same fees and costs for his services in executing the same, to be. collected in the same manner. (Added by U 1885, ch. 501.) Beadjustment of accounts in cases of illegal payment of taxes. § 19. The comptroller may at any time revise and readjust any account theretofore settled against any person, asso- ciation, corporation or joint-stock company by himself or any 646 Taxks Payable Dirkotlt to State. Taxation I'f Corporations. preceding comptroller for taxes arising under this act or the act to which it is an amendment whenever it shall be made to appear by evidence submitted to him that the same has been illegally paid or so made as to include taxes which could not have been lawfully demanded and shall resettle the same according to law and the facts and charge or credit, as the case may require the difference, if any, resulting from such revision and resettlement upon the current accounts of such person, association, corporation or joint- stock company. (Added by L. 1889, ch. 463.) The Comptroller in estimating the amount of the capital stock employed within the State is not obliged to deduct real estate subject to local taxa- tion. (People ex rel. Postal Telegraph Cable Co. v. Campbell, 70 Hun, 507.) ' Taxes once paid into the treasury under this law can not be paid bade without an appropriation by the Legislature. All the Comptroller may do is to resettle the account and credit or charge the difference, if any, " upon the current accotmt." (People ex rel. Edison El. III. Co. v. Wemple, 133 N. Y., 617.) This section contemplates but one revision by the Comptroller. (Peo. ex rel. Am. Surety Co. v. Campbell, 64 Him, 417.) Con^>troller's action may be reviewed by certiorari; appeals from determination. § 20. The action of the comptroller upon any application made to him by any person or corporation for a revision and resettlement of accounts as provided in this act, may be reviewed, both upon the law and the facts upon certiorari by the supreme court at the instance either of the party making such application or of the attorney-general in the name and in behalf of' the people of this State, and for that purpose the comptroller shall return to such certiorari the accounts and all the evidence submitted to him on such appli cation, and, if the original or resettled accounts shall be found erroneous or illegal by that court, either in point of law or of fact the said accounts shall be there corrected and restated by the said supreme court and from any such determination of the supreme court an appeal may be taken by either party to the court of appeals as in other cases. (Added by L. 1889, ch. 463.) (The provisions of §§ 19 and 20 shall not apply to any taxes heretofore paid by any person or corporation in pur- Taxes Payable Directly to State. 64Y TaxatioQ of Corporations. suance of a judgment or order of a court or by virtue of any stipulation.) (Added by L. 1889, ch. 463.) The decision of the Comptroller as to an assessment and taxation will not be disturbed unless it is clearly shown to be erroneous, hence the party seeking a revision or readjustment of a tax settled by the Comp- troller under section 19 must produce evidence showing the error of such settlement. (People ex rel. Postal Telegraph Cable Co. v. Campbell, 70 Hun, 507; see, also. People v. Wemple, 129 N. Y., 523, sustaining this remedy. L. 1886, Ch.266. An Act to provide for the more certain recovery of state taxes from delinquent associations, corporations and joint-stock companies. Section 1. For the better enforcement of chapter five hundred and forty-two, of the Laws of eighteen hundred and eiglity and the acts amendatory thereof, it shall be law- ful for any person having knowledge of the evasion of taxa- tion under said acts by any association, corporation or joint- stock company liable to taxation thereunder, to report such fact to the comptroller, together with such information as may be in his possession as may lead to the recovery of such taxes from said association, corporation or joint-stock com- pany; and whenever in the opinion of the attorney-general or comptroller the interests of the state require it, either of them is hereby authorized to employ such person so report- ing such evasion to assist in the collection and preparation of evidence, and in the prosecution and trial of suits for such taxes; and so much of the sum collected from such delinquent association, corporation or joint-stock company, by reason of such report or such services, as shall have been agreed upon by such person and the attorney-general or comptroller as a compensation therefor shall be paid to such person, provided that the sum so paid shall not exceed ten per centum of the amount so collected; and provided fur- ther, that nothing whatever shall be paid to such person for such purpose unless there shall be a recovery of taxes from such delinquent association, corporation or joint-stock company by reason of such report or such services. 648 Tax Payable to Local Authoeitiks. Taxation of Corporations. Local Taxation of Corporations. Tlie foregoing provisions regulate tlie payment of annual taxes by corpor- ations directly to the State, but they are also subject under the following statutes, to local taxation at the pla>ce in which the principal office of the corporation is Igcated. 1 E. S. CiT. 13, Title 1. Land, and personal estate subject to taxation^v Section 1. All lauds and all personal estate within this state, whether owned by individuals or by corporations, shall be liable to taxation, subject to the exemptions herein- after specified. The tracks, ties, etc., of a railroad are regarded as " land " for the pur- pose of taxation. (People ex rel. Dunkirk & F. R. R. Co., v. Assessors, 4G N. Y., 46; see, also, 80 N. Y., 573; 93 id., 313; 43 Hun, 119.) The franchises of a corporation do not have the character of realty, and are not " land " within the meaning of this provision. (People ex rel. Panama Ry. Co. v. Comrs. of Taxes, 104 N . Y., 240.) Land defined. § 2. The term "land," as used in this chapter, shall be construed to include the land itself above and under water; all buildings and other articles and structures, substruc- tures and superstructures erected upon, under or above, or affixed to the same; all wharves and piers, includ- ing the value of the right to collect wharfage, cranage or dockage thereon; all bridges; all telegraph lines, wires, poles and appurtenances; all surface, under- ground or elevated railroads; all railroad structures, substructures and superstructures, tracks and the iron thereon; branches, switches and other fixtures per- mitted or authorized to be made, lead or placed in, upon, above or under any public or private road, street or grounds; all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place; all trees and underwood growing upon land; and all mines, minerals, quarries and fossils in and under the same, except mines belonging to the state. The term " real estate " and " real property," whenever they occur in this chapter, shall be construed as having the same meaning as the term " land " thus defined. (Thus amended by L. 1881, ch. 293.) Tax Payable to Local Authorities. 649 / Taxation of Corporations. 1 R, S., Ch. 13, Title 2. Land, where taxed. Section 1. Every person shall be assessed in the town or ward, where he resides when the assessment is made, for all lands, then owned by him within such town or ward, and occupied by him, or wholly unoccupied. Property of corporations, -where taxed. § 6. 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 individuals. All the personal estate of every incorpor- ated company liable to taxation on its capital, shall be assessed in the town or ward where the principal office, or place for transacting the financial concerns of the company, shall be; or if such company have no principal office, or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on. In the case of toll bridges, the company owning such bridge shall be assessed in the town or ward in which the tolls are collected; and where the tolls of any bridge, turnpike, or canal company, are collected in several towns or wards, the company shall be assessed in the town or ward, in which the treasurer or other officer authorized to pay the last preceding dividend, resides. Residence of a corporation for the purposes of taxation cannot be Inferred from the mere place of filing its certificate of incorporation. When the law under which it was formed does not fix its residence or require the location of its principal office to be stated in the certificate, Its residence is deemed to be where its principal place of business is actu- ally situated. (Austen v. Hudson River Telephone Co., 73 Hun, 96; Austem V. Westchester Telephone Co., 8 Misc. R., 11; Oswego Starch Factory v. Dolloway, 21 N. Y., 454; Conroe v. Natl. Protection Ins. Co., 10 How. Pr., 403; Hubbard v. Same, 11 id., 149.) Railroad companies are residents of the towns through which the road runs. (BufCalo & State L. R. R. Co. v. Supervisors, etc., 48 N. Y., 93; People ex rel. Dunkirk & P. R. R. Co. v. Assessors, 46 N. X., 46; People ex rel. BufCalo & St. L. R. R. Co. v. Barker, 48 N. Y., 70; People ex rel. D. L. & W. R. R. Co. V. Reid, 64 Hun, 553.) When a law under which a corporation is organized requires the certifi- cate of incorporation to state the location of the principal office, and such location is stated in the certificate, the statement is conclusive evidence of the residence of the corporation for the purposes of taxation imder this section. (Austen v. Hudson Riv. Telephone Co., 73 Hun, 96; Western 650 Tax Payable to Local Authoeuies. Taxation of Corporations. Transportation Co. v. Selieti, 19 N. Y., 408; Oswego Starch Factory v. Dolloway, 21 Id., 449; Chesebrougli Mfg. Co. r. Coleman, 44 Hun, 545; Union Steamboat Co. v. Buffalo, 82 N. Y., 351.) The issue as to the residence of a corporation for the purposes of taxa- tion is sufficiently raised by a denial that its principal place of business was fixed in its certificate, and an allegation that all Its property, fran- chises, rights and business were outside the county. (Austen v. West- chester Telephone Co., 8 Misc. E., 11.) A denial on information and belief of the allegations of the complaint in an action to collect personal taxes as to the proceedings for the assess- ment and levy of such tax, and that demand had been made therefor, raises no issue and is frivolous. (Id.) A receiver of taxes of New York city need not make a demand of the officer of a corporation before bringing an action to collect a tax levied against it. (Id.) But, see to the contrary U. S. Trust Co. v. Mayor, etc., of New Yoric, 77 Hun, 182; McLean v. Manhattan Medicine Co., 54 N. Y. Super Ct., 371. § 17. All real and personal estate liable to taxation, shall be estimated and assessed by the assessors at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor. (Thus amended by L. 1851, ch. 17C.) L. IS.iS, Cll. 427. An Act in relation to the collection of taxes on lands of non- residents, and to provide for the sale of such lands for unpaid taxes. Taxes on lands of residents and railroads returned as unpaid. § 5. If the taxes on any farm or lot of land assessed to a resident shall be returned as unpaid, in consequence of such premises becoming vacant by the removal of the occupant before the collection of the tax imposed thereon, or in default of goods'and chattels of the occupant to satisfy such tax, or if the taxes on any land occupied by or used in connection with any railroad, which was assessed to any person, company or corporation, owning, operating or constructing such railroad, shall be returned as unpaid, the supervisor of the town or ward in which such land was assessed shall add a description thereof to the assessment-roll of the next year in the part thereof appropriated to taxes on lands of non-residents, and shall charge the same with the uncollected tax of the preced- Tax Payable to Local Authoeities. 651 Taxation of Corporations. ing year; and the same proceedings shall be had thereon in all respects as if it was the land of a non-resident, and as if such tax had been laid in the year in which the description is so added. The land occupied by or used in connection with any railroad assessed to any person, company or corporation owning, operating, or constructing such railroad, may be described in the following form: " A strip of land owned and occupied by the railroad company, in the year , extending about feet on each side of the railroad track, and embracing the same, together with all the depots, sta- tions, turnouts, switches and other improvements thereon and connected therewith, commencing at a point where such railroad track crosses the boundary line in entering the ward of the city of , or the town of , and extend- ing to the point where such track crosses the boundary line leaving such ward of the city of , or the town of , or to the point of termination in the same, contain- ing acres more or less ; " and when thus described, with the blanks in such form properly filled, on the comptroller's book of taxes, or advertised or sold for taxes, no other descrip- tion thereof shall be deemed necessary; provided, that if l,he comptroller shall believe that the interests of the state should be best subserved by selling the lands in lots or divi- sions, he shall be empowered to direct such surveys or to cre- ate such maps as may be made from titles to the same, so as to enable him to sell such lots by description sufficient to con- vey title thereto. (Thus amended by L. 1870, ch. 101.) 1 R. S., Cfi 13, Title 3. Tax, how collected; receivers. § 2. In case any person shall refuse or neglect to pay tl^e tax imposed on him, the collector shall levy the same by distress and sale of the goods and chattels of the person who ought to pay the same, or of any goods and chattels in his possession, wheresoever the same may be found, within the district of the collector; and no claim of property to be made thereto by any other person, shall be available to prevent a sale. If title or possession of property of a person or corporation upon which the tax is imposed, shall have 652 Tax Payable to Local Authorities. Taxation of Corporations. passed to a receiver of such person or corporation appointed by a court, or if the tax be imposed upon such receiver by- reason of his ownership or possession of property as such receiver, in either such case property owned by or in the possession of the receiver as such, shall be liable to levy and sale by the collector without application to or permis- sion of such court, in the same manner as property owned by or in the possession of a private person upon whom a tax is imposed. (Thus amended by L. 1892, ch. 196.) 1 R. S., Ch. 13, Title 4. What companies liable to taxation. Section 1. All moneyed or stock corporations deriving an income or profit from their capital, or otherwise, shall be liable to taxation on their capital is the manner herein- after prescribed. statement annually to assessors. § 2. The president, cashier, secretary, treasurer, or other proper officer, of every such incorporated company, shall, on or before the first day of July in each year, make and deliver to the assessors, or one of them, of the town or ward in which such company is liable to be taxed, accord- ing to the provisions of the sixth section of the second title of this chapter, a written statement specifying : 1. The real estate, if any, owned by such company, the towns or wards in which the same is situated, and the sums actually paid therefor. 2. The capital stock actually paid in and secured to be paid in, excepting therefrom the sums paid for real estate, and the amount of such capital stock held by the state, and by any incorporated, literary or charitable institution; and, 3. The town or ward in which the principal office or place of transacting the financial business of such company, is situated; or, if there be no such principal office, the town or ward in which its operations are carried on, or in which it is liable to be taxed under the provisions of this chapter. Tax Payable to Local Authorities. 653 Taxation of Corporations. Statement to comptroller. § 3. The president or other proper officer of every such company shall also deliver to the comptroller, on or before the first day of July in each year, a written statement, con- taining the same matters required by the foregoing section, to be specified in the statement to be delivered to the assessors. The statements required by this and the pre- ceding section of this title, shall be certified under the oath of the said president or other proper officer, to be in all respects just and true. • Penalty for omitting to make statements. § 4. If the statements above required, or either of them, shall not be furnished by any company to the assessors and to the comptroller, within thirty days after the time above provided, the company neglecting to furnish such state- ments, or either of them, shall forfeit to the people of this state, for each statement omitted to be furnished, the sum of two hundred and fifty dollars; and it shall be the duty of the comptroller to furnish the attorney-general with an account of all companies that shall neglect to render such lists, that he may prosecute for the penalties hereby imposed. Suit therefor. § 5. If any company, that shall be prosecuted for any such penalty, shall pay the costs of prosecution and furnish the statement required, the comptroller, if he shall be satisfied that the omission was not willful, may, in his discretion, discontinue such suit. Corporations, how assessed. § 6. The assessors shall enter all incorporatied companies from which, such statements shall have been received by them, and the property of such companies, and the property of all other incorporated companies, liable to taxation in their respective towns, in their assessment rolls, in the following manner: 1. They shall insert in the first column of their assessment rolls, the name of each incorporated company in their respective towns or wards liable to taxation on its capital or otherwise; and under its name, they shall specify the amount of its capital stock paid in, and secured to be paid 65J: Tax Payable to Local Authorities. Taxation of Corporations. in, the amount paid, by such company for real estate then belonging to such company, wherever the same may be situ- ated, the amount of all surplus profits or reserved funds, exceeding ten per cent of their capital, after deducting there- from the said amount of said real estate, and. the amount of its stock, if any, belonging to the state and to incorporated literary and charitable institutions. 2. In the second column, they shall enter the quantity of real estate owned by such company, and situated within their town or ward; .and in the third column, the actual value thereof, estimated as in other cases. 3. In the fourth column, they shall enter the amount of the capital stock of every incorporated company, paid, in, and secured to be paid in, and of all surplus profits or reserved funds as aforesaid, after deducting the sums paid out for all the real estate of such company, wherever the same may be situated and then belonging to it, and the amount of stock, if any, belonging to the people of this state and to incorporate literary and charitable institutions. (Section 7 was repealed by L. 1853, ch. 654.) Taxes to be collected. § 15. The amount of taxes assessed on all incorporated companies liable to taxation, shall be set down by the board of supervisors, in the fifth column of the corrected assess- ment roU, and shall form a part of the moneys to be collected by the collector. (Tlius amended by L. 1857, ch. 456.) L. 1857, Ch. 456. An Act in relation to the assessment of taxes on incorporated companies. Taxation of capital stock. § 3. The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company, which are taxable upon Tax Payable to Local Adthokities. 655 Taxation of Corporationp. their capital stock under the laws of this state, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county. In assessing the capital stock of a corporation under this act the actual value of its capital stock, not the market value of its share stock, is to be considered; in other words, its actual tangible personal property and not its franchises. (Pebple ex rel. Manhattan Ry.- Co. v. Barker, 146 N. Y., 304.) It is not to be presumed that the indebtedness of a corporation represents its actual tangible property in addition to that represented by Its capital stock. (Id.) In making an assessment the earnings of a corpora- tion may be considered, and where they are such as to enable the company to pay expenses, repairs, interest charges and a dividend of six per cent and still have a surplus, it may be assumed that its capital stock remains unimpaired and that there are surplus assets sufllcient to pay its out- standing indebtedness. (Id.) When an assessment has been made with jurisdiction, and the property owner has paid, he cannot recover back the payment until the assessment has been vacated or set aside in some appropriate proceeding. But this rule does not apply to defects in the proceeding which render the assesB- ment void for want of jurisdiction. (Mutual Life Ins. Co. v. City of New York, 144 N. Y., 494.) While the petition for a writ of certiorari under chapter 269, Laws of 1880, must specify " the grounds of the alleged illegality," only the con- clusions of fact need be stated, not the evidence necessary to support them; the petition is in this respect, in the nature of a pleading. (People ex rel. Commercial Mutual Ins. Co. v. Tax Comrs. of New York, 144 N. Y., 483.) The system for the review and correction of assessments by writ of certiorari under chapter 269, Laws of 1880, furnishes an exclusive remedy to the dissatisfied taxpayer where the illegality complained of consists, not in the lack of jurisdiction, but in the commission of errors on the part of the taxing officers, vitiating the assessment and laying it open to can- cellation or reversal. (United States Trust Co. v. City of New York, 144 N. Y., 488.) In determining the value of the real estate the assessors are not bound by the assessed valuation. This does not necessarily show the full value and the assessors may legally disregard it, and estimate the real estate at its actual value, even if it exceeds the assessed valuation. (Equitable Gas Light Co. V. Barker, 143 N. Y., 94, and cases therein cited.) A corporation declared a dividend on December 7, 1893, and made it pay- able January 10, 1894. The tax authorities fixed upon January 8, 1894, as the day upon which the taxable status of the corporation should be determined. Held, that the dividend was not a part of the " surplus profits or reserved funds " of the corporation, and was not taxable as prop- erty of the corporation under the foregoing section. (People ex rel. U. S. Trust Co. V. Barker, 86> Hun, 131.) Dividends declared, but payable in the future, belong to the shareholders of the corporation. (Id.) The market value of the shares of a corporation is an erroneous basis for determining the amount of the capital of the corporation liable to taxa- 656 Tax Fatable to Local Attthorities. Taxation of Corporations. tion. It Is the corporate assets constituting the capital that is the subject of taxation. (People ex rel. Bleeclier St. and Fulton Ferry R. R. Co. v. Barker, 85 Hun, 210.) Unless a proper petition is presented the court is without jurisdiction to entertain certiorari proceedings. (People ex rel. Commercial Mut. Ins. Co. V. Tax Comrs. of N. Y., 83 Hun, 11.) Where it is sought to review an assessment of property made for the purposes of taxation in any town, ward, village, or city, because of alleged illegality of the assessment, under the provisions of chapter 269, Laws of 1880, the petition must specify the particulars of the alleged illegality, and no general statement is suffi- cient. (Id.) In certiorari proceedings to review an assessment for taxation made by a city, proof should be made that the grievances complained of are the same as those urged «pon the assessing officers, as only such grievances can be corrected upon certiprari. (Id.) In case the statute under which a corporation is organized requires that Its principal place of business, or its principal office, be designated in its certificate of incorporation, the statement is, as against the corporation, conclusive evidence of its residence, unless it has been changed pursuant to some statute. (People ex rel. Knickerbocker Press v. Barker, 87 Hun, 341.) The statement of location of its principal office or place of business Is a condition precedent to the organization of a business corporation, and, should it appear that the location was willfully misstated in the certificate, or in case the corporation should change its principal place of business, Without effecting a legal change of residence, for the purpose of evading taxation. It might present a case under section 1798 of the Code of Civil Procedure for the attention of the Attorney-General. (Id.) By chapter 269, Laws of 1880, power is given to review the valuation of property or the legality of placing it on the rolls for the purpose of taxation. The word " assessment " in that statute is used in the sense of valuation, not in the sense of final Imposition of a specific sum for taxes. (People ex rel. Spencer v. New Rochelle, 83 Hun, 185.) In estimating the amount of personalty for purposes of taxation, just debts of the corporation must] be deducted. The commissioners of taxes of New York city must value the property at its true value, and upon a review of the assessment upon the personal property of a corporation, they cannot be heard to say that their sworn valuation of the real estate was much less than its true value. Realty and personalty are to be separately assessed, and if the personalty be overvalued and the realty undervalued, the valua- tion of the personalty cannot be sustained on the theory that the under- .valuation of the realty equals or exceeds the over valuation of the per- sonalty. (People ex rel. Equitable Gas Light Co. v. Barker, 81 Hun, 22.) The remedy prescribed by Laws of 1880, ch. 269, applies to assessments made in the city of New York, notwithstanding section 821 of the Con- solidation Act. (Id.) Under the foregoing section, the assessed value of real estate owned by the corporation in this State must be deducted from the amount of taxable capital. (People ex rel. Butchers' Hide & M. Co. v. Asten, 100 N. Y., 597; People ex rel. Twenty-third St R. R. Co., v. Comrs. of Taxes, 95 N. Y., 554; see, also, People ex rel. Central Park, etc., R. R. Tax Payable to Local Atjthoeities. 657 Taxation of Corporations. Co. V. Comrs. of Taxes, 21 St. Rep., 350.) When the real estate is situ- ated in another State or country the measure of the deduction is the actual value of such real estate, and if better evidence is not obtainable the price paid may be taken as representing that value, or the assessed value, if other evidence is lacking. (People ex rel. Panama R. R. Co. v. Comrs. of Taxes, 104 N. Y., 240; People ex rel. Fairfield Chemical Co. V. Coleman, 115 N. Y., 179.) Capital Invested in United States bonds and shares of stock owned in such other corporations as are taxed in this State may be deducted from the amount of taxable capital. (People ex rel. Commonwealth Ins. Co. V. Coleman, 112 N. Y., 565; People ex rel. Pacific Mail Steamship Co. v. Comrs. of Taxes, 64 N. Y., 541; People ex rel. Bk. of Commerce v. Same, 23 Id., 192; International Life Assur. Soc. v. Same, 28 Barb., 318.) The franchise of a company, which may be deemed its business oppor- tunity and capacity, is the property of the corporation, but constitutes no part or element of its capital stock; while the same franchise does enter Into and form part, and a. very essential part, of the shareholder's capital stock. The capital stock of a company may be wholly In cash or in property, or both, which may be coimted and valued. It may have In addition a surplus, consisting of some accumulated and reserved fund, or of undivided profits, or both, but that surplus is no part of the com- pany's capital stock, and, therefore, is not Itself capital stock. Tlie capital cannot be divided and distributed; the surplus may be. But that surplus does enter into and form part of the share stock, for that represents and absorbs into Its own value surplus as well as capital, and the franchise In addition. So that the property of every stock cor- poration may consist of three separate and distinct things, which are its capital stock, its surplus. If any, and its franchise; but these three things, several in the ownership of the company, are united In the ownership of the shareholders. The share stock covers, embraces and represents all three in their totality, for it is a business photograph of all the corporate possessions and possibilities. A corporation also may have no surplus, but, on the contrary, a deficiency which works an impair- ment of its capital stock. Its actual value is then less than its nominal or par value, while yet the share stock, strengthened by hope of the future and the support of earnings, may be worth its par, or even more. (People ex rel. Union Trust Co. v. Coleman, 126 N. Y., 433.) The phrase "capital stock" In the foregoing act means not the share stock, but the capital owned by the corporation, the fund required to be paid In and kept intact as the basl^ of the business enterprise. In taxing corporations, therefore, under said act the subject of valuation and assessment is never the share stock, but always the company's capital and surplus which should be assessed at- its actual value when that Is known or ascertainable. (United States Trust Co. v. New York City, 77 Hun, 182; People ex rel. Union Trust Co. v. Coleman, 126 N. Y., 433; distinguishing Oswego Starch Co. v. Dolloway, 21 N. Y., 449; People ex rel. Comrs. of Taxes, 23 id., 192; People ex rel. Dolan, 36 id., 59; People ex rel. Ferguson, 38 id., 89; People ex rel. Bd. of Assrs., 39 id., 81; Peo- ple ex rel. Comrs. of Taxes, 95 id., 554; Same v. Same, 104 id., 240; 42 658 Tax Payablk to Local AuxHOfiiTiES. Taxation of Corporations. People ex rel. v. Asten, 100 id., 597; People ex rel. v. Coleman, 107 Id., 541.) It is error on the part of the assessors to take the market value of shares as the " actual value " of the capital stock and base their assess- ment thereon, when the corporation presented to them a sworn state- ment of its assets and liabilities, the truth of which was not questioned and which showed that there was nothing subject to assessment (Peo- ple ex rel. Union Trust Co. v. Coleman, 126 N. Y., 433.) It seems, when the amount of capital and surplus are undisclosed and unknown, the assessors may consider the market value of the share stock and general condition of the company, not as the thing to bo valued aod assessed, but as an aid in discovering the value of that which is to be assessed; it seems, also, further resort may be had to such means of information when the amotmt of capital and surplus is stated, but the assessors have sufficient reason, founded upon competent proof, to disbelieve the statement (People ex rel. Union Trust Co. v. Coleman, 126 N. Y., 433.) When the evidence as to actual value of the capital stock and surplus of the corporation are uncontradicted and is full and complete, all the necessary facts having been established beyond any fair dispute, and no reason appearing for doubting the truth of such evidence, a refusal of tax oMcers to decide in accordance with it amounts to legal error, and may be reviewed and corrected on certiorari. (Edison General Elec. Co. V. Barker, 141 N. Y., 251; People ex rel. Edison Elec. Illuminating Co. T. Barker, 139 N. Y., 55; reversing 68 Hun, 513.) Where an assessment is illegal and void, or money is paid upon an Illegal or erroneous assessment, to prevent an illegal seizure of his person or property by one claiming authority to seize the same, the amount may be recovered back in an action on the ground that the payment was com- pulsory, or by duress or extortion. (United States Trust Co. v. City of New York, 77 Hun, 182.) But where the payment is voluntary a protest with notice of an intent to reclaim is not sufficient to sustain a recovery in an action brought to recover back the amotmt thereof, as the voluntary character of the pay- ment still remains, notwithstanding the notice, and is fatal to the action. (Id.; distinguishing People ex rel. Warren v. Carter, 119 N. Y., 557.) Where assessors have jurisdiction to Impose a tax, which Is paid, It cannot be recovered back without first setting aside the assessment, and where, without first taking proceedings for such pm-pose, a voluntary payment is made, no recovery can be had, even though it be held that the assessment was excessive and ' erroneous. A tax voluntarily paid cannot, as a general rule, be recovered back, and it is immaterial that It has been illegally laid, the presumption being that all payments are volun- tary until the contrary is shown. (U. S. Trust Co. v. Mayor, etc., of New York, 77 Hun, 182; see, also. Trimmer v. Rochester, 130 N. Y., 401.) If tax officers having jurisdiction over the person and subject-matter, proceeded upon a wrong basis, and thus made an erroneous assessment, as distinguished from an illegal one, it will not render the asessment void. Assessors cannot acquire jurisdiction to make assessments by deter- mining that they have it; their authority to act always depends upon Tax Payable to Looal Authoeities. 659 Taxation of Corporations. the existence of the jiurisdictional facts described in the statute. An erroneous assessment is one where the officers making the same have power to act, but err in the exercise of their power, and an illegal assess- ment Is one where such officers have no {)0wer to act at all, and they are are not aided by their decision that they have. (U. S. Trust Co. v. Mayor, etc., of New York, 77 Hun, 182.) In the assessment of taxes upon a corporation under I^aws of 1857, chapter 456, section 3, it it entitled to have its indebtedness deducted from the value of its coijiorate assets. (People ex rel. Second Av. R. R. Co. V. Barker, 141 N. Y., 196; People ex rel. Edison Blec. Illuminating Co. V. Same, 139 N. Y., 55; People ex rel. Union Trust Co. v. Coleman, 126 N. Y., 433.) This Indebtedness must be taken Into consideration in arriving at the value of the capital of a corporation. And when it is seen that the indebt- edness of a corporation is double the amoimt of all its assets. It follows upon the system adopted by the State for the assessment of corpora- tions that the actual value of the capital of such a corporation is zero. (People ex rel. Edison Elec. Illuminating Co. v. Barker, 139 N. Y., 55; reversing 68 Hun, 513. The assessment of a domestic corporation is made after a deduction for debts, because Its capital and surplus are to be assessed at their actual value, which cannot be arrived at without considering and deducting debts. (People ex rel. Thurber, Whyland & Co., 141 N. Y., 118.) The question, whether an ass'essment upon patents issued by the United States and owned by a corporation, is legal, has been suggested, but not decided, by the Court of AppealSi (People ex rel. Edison Blec. Illuminat- ing Co. V. Barker, 139 N. Y., 55; see, also. People ex rel. Edison Gen. Elec. Co. V. Same, 74 Hun. 418.) , The provision of the New York City Consolidation Act (§ 822, chap. 410, La-vCs of 1882), giving to the commissioners of taxes and assessments power to remit or reduce taxes after delivery of the books to the receiver of taxes, provided the party aggrieved shall satisfy them that he was prevented by absence from the city or illness from making his application within the time limited by the prior provisions of the act for correction, applies to domestic corporations. (People ex rel. N. Y. Hotel & Restaurant Co. V. Barker, 140 N. Y., 437.) Proceedings for the assessment of property are of a judicial character, and assessors In making assessments act judicially. (McLean v. Wyan- dance Brick & Terra Cotta Co., 138 N. Y., 158.) Therefore, where a party who deems himself aggrieved by the proposed action of assessors, appears before them, submits proof in support of his claims, asks and obtains a reduction of his assessment, without making other objection, he is pre- cluded from thereafter claiming that the assessors had no jurisdiction to tax him at all. (Id.), When the facts, which induce the tax commissioners of New York city to determine that a claim for reduction of an assessment is not founded In truth, are found in the sworn statement made by the corporation to the commissioners, which forms a part of the petition in certiorari pro- ceedings, it is not necessary that such facts should be also set up in the 660 Tax Payable to Local Authorities. Taxation of Corporations. return. (People ex rel. Edison Gen. Elec. Co. v. Barker, 74 Hun. 418; construing and applying 139 N. Y., 55.) However, if the commis- Bioners rely on facts not otherwise appearing in the proceeding, they must state them in their return to the coui-t If this is not done, a refusal of the commissioners to decide in accordance with the evidence furnished by the sworn statement of the aggrieved corporation, if suffi- ciently full, apparently truthful, and not contradicted, constitutes legal error. (Id.) When the sworn statement of a corporation on its application for a reduction of the assessment of the actual v^alue of its capital, by exclud- ing the value of patent rights owned by it, alleges that the value of the patent rights is tmknown, although their cost is stated, such statement Is not controlling evidence on the question of their value. Under such cir- cumstances, and in the absence of proof, it will not be presumed by the court, on the hearing of certiorari proceedings, that the commissioners erred in their estimate of the value of the patent rights, assuming (but not deciding) that patents are subject to State taxation. (People ex rel. Edison Gen. Elec. Co. v. Barker, 74 Hun, 418.) When the sworn statement of a corporation for a reduction of Its assess- ment, states that it has declared a dividend for the year on ita entire capital, such statement amounts to an assertion that the value of the cor- porate assets equalled its capital, and will Justify commissioners In preferring such evidence to that furnished by other allegations In the statement, which it is claimed requires* a reduction to be made In the assessed value of the assets, when, if the capital were impaired to the extent so claimed, it would follow that the directors of the corporation acted in violation of law in declaring the dividend. (People ex rel. Edison Gen. Elec. Co. v. Barker, 74 Hun, 418.) When a corporation has obtained from the taxing officers a reduction of Its original assessment upon a verified statement seasonably ijiade, It is precluded from thereafter obtaining from the courts, in certiorari proceedings, a further reduction upon a claim, then interposed for the first time, that the statement was erroneous. (People ex rel. German Looking Glass Plate Co. v. Barker, 75 Hun, 6.) *L. 1867, Ch. 694. An Act in relation to the valuation of the property of rail- road companies in school districts, for the purpose of taxation. Duty of town assessors. Section 1. It shall be the duty of the town assessors, within fifteen days after the completion of their annual assessment- list, to apportion the valuation of the property of each and every railroad, telegraph, telephone and pipe-line company as appears on such assessment-list, among the several school *See also L. 1894, ch. 65«, title 7, article 7. Tax Payable to Local Authoeities. 661 Taxation of Corporations. districts in their town, in which any portion of said property is situated, giving to each of said districts their proper por- tion, 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. (Thus amended by L. 1884, ch. 414.) Apportionment. § 2. 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 each district and the amount of the valuation of the property of each railroad, telegraph, tele- phone and pipe-line companies 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. (Thus amended by L. 1884, ch. 414.) , When assessors neglect to make apportionment. § 3. In case the assessors shall neglect to make such appor- tionment, it shall be the duty of the supervisor of the town, on the application of the trustees or board of education of any district, or of any railroad, telegraph, telephone and pipe-line company, to make such apportionment, in the same manner and with the like effect as if made by said assessors. (Thus amended by L. 1885, ch. 340.) Town clerk to furnish certified statement when requested. § 4. The town clerk shall, whenever requested, furnish to the trustees or board of education of each district a certified statement of the amounts apportioned to each district, and the name of the company to which the same relates. When alteration is made in school district. § 5. In case any alteration shall be made in any school district, affecting the property of any railroad, telegraph, telephone or pipe-line company the officer making such alteration shall, at the same time, determine what change 662 Tax Payable to Local Authorities. Taxation of Corporations. in the valuation of the said property in such district would be just, on account of the alteration of district, and the valua- tion shall be accordingly changed. (Thus amended by L. 1885, ch. 340.) L. 1892, Ch. 68 (The County Law.) statement of railroad, telegraph, telephone and electric-light taxes. § 53. The clerk shall, within five days after the making out, or issuing of the annual tax-warrant by the board of supervisors, prepare and deliver to the county treasurer of his county, a statement showing the title of all railroad cor- porations and telegraph, telephone and electric-light lines In such county, as appear on the last assessment-roll of the towns or cities therein, the valuation of the property, real and personal, of such corporation and line in each town or city, and the amount of tax assessed or levied on such valua- tion in each town or city in his county. L. 1870, Ch. 506. An Act to facilitate the payment of taxes by railroad companies. (Section one of this act repealed and superseded by section 53, ch. 686, Laws of 1892, above set forth.) Ballroad companies may pay tax to county treasurer; fees of treasurer. § 2. 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. County treasurer to notify collector of non-payment of tax; duty of collector. § 3. In case any railroad company shall fail to pay such tax within said thirty days, it shall be the duty of the county treasurer to notify the collector of all towns or cities in their county in which said company is assessed, of such failure to Tax Payable to Local Authoeitieb. 663 Taxation of Corporations. 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 any tax levied or assessed upon the property of any railroad company in said county, by the supervisors of the county, until the receipt of such notice from the county treasurer. County treasurer to credit taxes; collector to be credited with fees; surplus to be paid to supervisor. § 4. 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 exceed the sum 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. Railroad company may pay tax collector; proviso. § 5. Nothing in this act shall be construed to prevent any railroad company from paying their tax to the collector of towns or cities as now provided by law; nor shall the pro- visions of this act be construed to repeal or in any manner interfere with the provisions of chapter 907 of the Session Laws of 1869. L. 1886, Ch. 659. An Act to provide for the assessment of telegraph, telephone and electric light lines. Section 1. The portion of any telegraph, telephone, or electric light line in any town or ward in this State shall be assessed in such town or ward to the owner or person or corporation, or association in control thereof, in the manner provided by law for the assessment of lands of resident owners and the same proceedings may be had upon such assessment, and for the collection of any tax levied thereon. 664 Tax Payable to Local Authorities. Taxation of Corporations. § 2. The word "lines" shall include the interest in the land on which the poles stand, the right or license to erect such poles on land, all poles, arms, insulators, wires and apparatus, instruments, or other thing connected with, or used as a part of such line in such town or ward, and belong- ing either to the owner of such line or the person, corpora- tion, or association in control thereof. § 3. In enforcing the collection of any tax levied upon such assessment, the instruments and batteries connected with such line may be included among the articles subject to levy and sale, and, in case there is not sufficient personal property, together with such instruments and batteries, to pay such tax and the percentage thereon of the collector, the collector shall return all sums remaining unpaid to the county treasurer, and in the city and county of New York, the receiver of taxes, as other unpaid taxes are returned; and the said county treasurer and receiver of taxes shall pro- ceed to sell such part of the line in the town or ward where the tax was levied as is necessary to satisfy the unpaid tax and percentage, in the manner now provided by law for the sale of land on execution ; and upon such sale shall execute to the purchaser a conveyance of such part of said line, and the purchaser shall thereupon become the owner thereof. § 4. It shall be the duty of the clerk of the board of supervisors of the several counties of this State, within five days after 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, and in the city and county of New York, the receiver of taxes, a statement showing the title of all telegraph, telephone, and electric light lines in such county as appear in the last assessment- roll of the town or ward in such county, the valuation of the property, real and personal, of such line in each town or ward and the amount of tax assessed or levied on such valuation in each town or ward in the county. § 5. Any telegraph, telephone, or electric light company ' assessed, may, within thirty days after the receipt of such notice by the county treasurer or receiver of taxes, pay the amount of tax so assessed or levied on their property, with one per cent fees on the tax, to the county treasurer or Tax Payable to Local" Atjthoeities. 665 Taxation of Corporations. receiver of taxes, wlio is hereby authorized and directed ta receive such amounts, to give a proper receipt therefor^ and credit the same to the collector of the town or ward in which the tax was levied. In case the tax on any telegraph, tele- phone, or electric light line remains unpaid at the expiration of the thirty days specified, it shall be the duty of the county treasurer, and receiver: of taxes to notify the collector of such town or ward of such failure to pay said tax, and said col- lector shall proceed to collect such tax in the manner herein provided. The tax may be paid directly to the collector at any time during the life of his warrant, but no collector shall proceed to enforce his warrant, and collect such lax until the receipt of such notice of non-payment from the county treasurer or receiver of taxes. § 6. Nothing herein contained shall be construed to pre- vent the collection of taxes by any proceeding now provided by law. , § 7. Chapter five hundred and ninety-seven of the laws of eighteen hundred and eighty-one, providing for the assess- ment of telegraph lines, is hereby repealed. L. 1881, Cri. 675. An Act to facilitate the payment of school taxes by railroad companies. (The above entitled act has been superseded by section 81 of ch. 556, L. Ib94.) L. 1894-, Ch. 556 (Consolidated School Law.) Extract from the Consolidated School Law in relation to the payment of school taxes by railroad companies. Notice by School Collector to Railroad Companies; CoPector's Fees, etc. § 81. The collector, on the receipt of a warrant for the collection of taxes, shall give notice to the taxpayers of the district by pub- licly posting written or printed, or partly written and partly printed notices in at least three public places in such district, one of which shall be on the outside of the front door of the school-house, stating that he has received such warrant and will receive all such taxes as may be voluntarily paid to him within two weeks from the time of posting said notice. Such collector shall also give a like notice, either personally or by mail, at least ten days previous to the 666 Tax Payable to Local Authobitibs. Taxation of Corporations. expiration of the two weeks aforesaid, to the ticket agent at the nearest station of any railroad corporation assessed for taxes upon the tax list delivered to him with the aforesaid warrant, and where the amount of the tax is one dollar or more the collector shall also give a like notice to all non-resident taxpayers on said list whose residence or post-office address may be known to such collector, or which may be ascertained by him upon inquiry of the trustees and clerk of his district, and no school collector shall be entitled to re- cover from any railroad corporation or non-resident taxpayer more than one per cent fees on the taxes assessed against such corpora- tion or non-resident, unless such notice shall have been given as aforesaid; and in case the whole amount of taxes shall not be so paid in the collector shall forthwith proceed to collect the same. He shall receive for his services, on all sums paid in as aforesaid, one per cent, and upon all sums collected by him, after the expira- tion of the time mentioned, five per cent, except as hereinbefore provided; and in case a levy and sale shall be necessarily made by such collector, he shall be entitled to traveling fees, at the rate of ten cents per mile, to be computed from the school-house in such district. L. 1890, Ch. 568 (The Highway Law). Commutation. § 62. Every person and corporation shall work the whole number of days for which he, or it, shall have been assessed; except such days as shall be commuted for, at the rate of one dollar per day, and such commutation money shall be paid to the overseers of highways of the district in which the labor shall be assessed, within at least twenty-four hours before the time when the person or corporation is required to appear and work on the highway; but any corporation may pay its commutation money to the commissioners of high- ways of the town, who shall pay the same to the overseers of the districts respectively-, in which the labor commuted for was assessed, except in the county of Onondaga where such commutation money shall be paid on or before the first day of June of each year, to the commissioner or commis- sioners of highways of the town in which the labor shall be assessed, and such commutation money shall be expended by the commissioner or commissioners of highways upon the roads and bridges of the town, as may be directed by the town board. (Thus amended by L. 1805, ch. 579.) Tax Payable to Local Authoeities. 667 Taxation of Corporations. L. 1855, Ch. 37. Foreigu corporations; taxation of lor local purposes. All persons and associations doing business in the State of New York, as merchants, bankers or otherwise, either as principals or partners, whether special or otherwise, and not residents of this State, shall be assessed and taxed on all sums invested in any manner in said business, the same as if they were residents of this State; and said taxes shall be collected from the property of the firms, persons or associa- tions to which they severally belong. Fpreign corporations are included witliin the terms of tlie act of 1855 (ch. 37, Li. of 1855) subjecting non-residents doing business in this State to assessment and taxation on all sums invested In such business. A person or corporation liable to assessment and taxation under the act is not entitled to a deduction of debts. (People ex rel. Thurber, Why- land & Co., 141 N. Y., 118.) Prior to 1855, great numbers of persons doing business in this State, and having large amoimts of moneys invested within its borders, never- theless chose to reside just outside its confines. Although these persons were non-reidents of the State, yet they came daily within its boundaries for the purpose of doing business here,, and had here large amounts of capi- tal invested in their business, and yet under our laws they could not be reached for taxation. Their names could not be put upon an assessment- roll because they did not reside in any town or ward where an assess- ment could be iftade, and they had no agents or trustees who resided In the State against whom any assessment on account of such property could be made. To reach the non-resident for the purpose of subjecting such property to taxation was the object of chapter 37, Laws of 1855. (Hoyt V. Comrs. of Taxes, 23 N. Y., 224.) Foreign corporations are Included within the terms of the act of 1855, ch. 37. (Life Ins Co. v. Commrs. of Taxes, 1 Keyes, 303, cited In People ex rel. Bay State, etc., v. McLean, 80 N. Y., 254, at 259.) Hence It was said that a foreign corporation doing business in New York was properly taxable In the city of New York, where its principal place of business or office of the agency existed. And in this last cited case in 80 N. Y., it Is said that the act of 1855 points out the mode of taxation, viz., " the same as if they were residents of the State;" and In referring to the mode of taxing a resident corporation it is found that it Is to be taxed In the town or ward where It has a principal office or place for the trans- action of its financial concerns. The foreign corporation is not to be taxed in all things the same as If It were a resident, because the statute expressly provides that it Is only to be taxed for the sum invested In business in this State, and in order to tax it upon that sum no indebted- ness should be allowed. The percentage, the form, the mode of the assess- ment and taxation upon the specific sum invested in business in this State are to be the same as if the person were a resident, but Inasmuch Tax Upon Racing Associations. Taxation of Corporations. as all the subjects of assessment against a non-resident are not withiii the jurisdiction of the State, but only the sum here inrested, it Is plain that It was never contemplated by the legislature that such non-resident should have the right to make deductions from the sum by reason of debts, while the taxing authorities would have no right to balance such deductions by an assessment of other property of the non-resident not situated within the State. (People ex rel. Thmrber, Whyland & Co., 141 N. y., 118.) The assessment of a domestic corporation is made after a deduction for debts, because its capital and surplus are to be assessed at their actual value, which cannot be arrived at without considering and deducting debts. A foreign corporation is not thus taxed, and no inetuiry is made as to the actual value of such capital or surplus, and as such value is not to be assessed or taxed, the debts should not be deducted from ^e- cific property here. (People ex rel. Thurber, Whyland & Co., 141 N. Y., 118.) A foreign corporation, having property in this State, can claim no exemption from taxation on account of the laws of its own State. (People ex rel. Savings Bk. of New London v. Coleman, 135 N. Y., 231.) Where proofs presented by a foreign corporation are full, uncontradicted and credible, and it does not appear that the , commissioners of taxes had or acted upon any other information, a refusal of the commissioners to decide in accordance with such proofs amounts to legal error. (People ex rel. Hecker Milling Co. v. Barker, 86 Hun, 148.) The proofs submitted by a foreign corporation to be used i for the; purpose of assessing the valua- tion of their personal estate within the State are conclusive upon such cor- poration, and even if shown to be false, cannot be corrected by proof on a reference to reduce or cancel the assessment; and no grievance will be considered upon a proceeding to review the action of assessors in assess- ing the value of personal property of a foreign corporation, not urged upon the assessors in thei application to them for the reduction and correction of the assessment under review. (Id.; citing People ex rel. German Looking Glass Plate Co. v. Barker, 75 Hun, 6.) The right of commissioners of taxes may tax all sums invested in the business of a foreign corporation In the State without giving credit for the indebtedness incurred in pur- chasing the assets or property going to make up the amount so invested, (Id.) Tax Upon Racing Associations. L. 1887, Ch. 479. An Act prescribing tlie period in each year during which and the terms under which racing may take place upon the grounds of associations incorporated for the purpose of improving the breed of horses, and suspending the ope- ration of certain sections of the Penal Code. (The above-entitled act was repealed by Laws of 1895, ch. 570, an act relative to racing a.ssociations.) THE INCOME TAX ACT OF THE UNITED STATES. (The above-mentioned act, relative to the taxation of incomes, the pro- visions of which were appended to the new tariff act, and became a law without the approval of the president, at midnight of August 27, 1894, to talse effect January 1, 1895, was published in the first edition of "White on Corporations," but is now ( omitted, having been declared unconstitu- tional by the United States Supreme Court in the case of Pollock v. Farmers' Loan and Trust Co., decided May 20, 1895.) JOINT-STOCK ASSOCIATIONS. Laws of 1894, Chapter 235. An Act in relation to joint stock associations, constituting chapter forty -five of the general laws. The Joint-stock Association Law. Rection 1. Short title. 2 . Definitions. 3. Contents of articles of association. 4. Certificate to be filed within sixty days and annually there- after. Penalty. Evidence. 5. Dissolution. 6. Power to take and convey real property. 7. Changing articles of association. 8. When officer or stockholder not privileged from testifying. 9. Laws repealed. 10. When to take effect » Short title. Section 1. This chapter shall be known as the joint stock association law. DeQnitioiis. § 2. As used in this chapter, the term joint stock associa- tion includes every unincorporated joint stock association, company or enterprise having written articles of association and capital stock divided into shares, but does not include a c( )rporation ; and the term stockholder includes every mem- ber of such an association. The distinction between joint-stock companies and corporations and the cssontiftl characteristics of each are very fully discussed in People ex rel. AVinchestcr. as Treasurer, etc., v. Coleman, 133 N. Y., 279. In that case it was held that the National Express Company, a joint-stock company, is not subject to local taxation under the provisions of the Revised Statutes (1 R. S.. title 4, chap. 13, part 1), which enacts that " all monied or stock corporations deriving an income or profit from their capital or otherwise, shall be liable to taxation on their capital," etc. (See text of Articles of Association ; Certificate. 671 Joint-stock Associations. sucli provisions, ante, pages 653, et seq. (People ex rel. Piatt v. .Wemple, 117 N. Y„ 138.) In view of the reasoning of the court in People ex rel. Winchester v. Cole- man, above cited, it very clearly appears that joint-stock associations are not liable to the tax for the privilege of organization under L. 1886, ch. 143. (See said act, ante, pages 67, 68. Joint-stock companies are, ho\Yever, subject to State taxation (see ante, page 026), under Laws of 1880, chapter 542. (People ex rel. Piatt v. Wemple, 117 \. Y., 136.) Under sectiun 1919 of the Code of Civil Procedure, which provides for actions against the president and treasurer of unincorporated associa- tions consisting of more than seven members, upon any cause of action for which the plaintiff could' maintain an action against all the associates, the plaintiff, must allege and prove, and it must be found that all the members of the association were liable jointly or severally to pay his claim. (McCabe v. Goodfellow, Treas., etc, 133 N, Y,, 89.) Contents of articles of association. § 3. The articles of association of a joint stock association may : 1. Provide that the death of a stockholder thereof or the transfer of his shares of stock therein, shall not work a dis- solution of the association. 2. Prescribe the number of its directors, not less than three, to have the sole management of its affairs ; 3. Contain any other provision for the management of its affairs, not inconsistent with law. This act does not seem to contemplate the filing Of the articles of asso- ciation in any public office. Certificate to be filed within sixty days and annually thereafter; penalty ; evidence. § 4. Every joint stock association transacting business within this state shall, within sixty days after its formation, and in each January thereafter, file with the secretary of state, and with the clerk of the county in which its principal business is carried on, a written certificate, signed and veri- fied by its president and treasurer, stating the name and date of organization of such association, the number of its stock- holders, the names and pla-ces of residence of its officers, and its principal place of business. Such certificates shall be recorded in such offices respectively. Any such certificate, the record thereof, or a certified copy of such certificate, or record shall be presumptive evidence of the truth of all facts 67;i DissoLU'PioN- ; Coxveyancb of Real Peopeetv. Joint-stock Associations. therein stated, against such association, its officers and stock- holders. The officers of a joint stock association who fail to comply with the provisions of this section shall be jointly and severally liable to pay to the people of this state a penalty of fifty dollars for each day such failure continues. For form of certificate under the above section, see post, form No. 128. Dissolution. § 5. A joint stock association shall not be dissolved except in pursuance of its articles of association, or by consent of all its stockholders, or by judgment of a court for fraud in its management, or for good cause shown. Power to take and convey real property. § 6. A joint stock association in the name of its president, as such president, may purchase, take, hold and convey such real property only, 1. As may be necessary for its immediate accommodation in the convenient transaction of its business. 2. As may be mortgaged to it in good faith by way of security for loans made by or moneys due to it. 3. As it may purchase at sales under judgments, decrees or mortgages held by it. Changing articles of a:sociaticn. § 7. Any change in the articles of association of a joint stock association, not inconsistent with law, may be made with the consent of all its stockholders, or otherwise as the articles of association may provide. Unless the articles of association of a joint stock association contain provisions to the contrary, its directors may be increased or reduced to not less than three; its capital stock may be increased or reduced;' or the term of its existence may be extended, with the consent of its stockholders owning at least two-thirds of its stock issued and outstanding, on the following terms and conditions-; The consent of the requisite number of stock- holders must be given by vote, or by writing presented and filed, at a regular or regularly called special meeting. Notice of the time and place of such meeting with notice of the pro- posed change must be personally served on each stockholder of the association at least thirty days before the meeting, or by mailing it to such stockholder at his last-known post- Officee oe Stockholdee Testifying ; Laws Eepealed. 673 Joint-stock Associations. office address at least sixty days before the meeting. The amount of its capital stock shall not be reduced below the amount of its paid-up capital stock, nor shall it be reduced if the liabilities of the association exceed its assets. Wlieii ofiB.cer or stockholder' not privileged from, testifying, § 8. An officer or stockholder of a joint stock association is not privileged from testifying in an action or proceeding ii gainst such association or any stockholder thereof as to its existence, the members composing it, or any fact relating to its organization. Laws repealed. § 9. The following laws are repealed: Of the laws of 1854, chapter 245. Of the laws of 1867, chapter 289. Of the laws of 1885, chapter 505. § 10. This act shall take effect immediately. 43 FORMS. No. 1. Petition by a Stock Corporation for Chang'e of Name. See §§ 2411-2414 of the Code of Civil Procedure. SuPEEME Court, State of New Yoek, Oojtntt of In the Mattkk of the Application OP THE [insert name] Company for Authority to ) Change its Name to the [inseri name} Company. To the Supreme Court of the State of New York : •The petition of the [insert name] Company respectfully shows to this court, as follows : That it is a corporation duly incorporated under a general law [or hy a special law] of this state, to wit : [State the law], and that the objects for which it was formed are : [Insert objects]. That its principal business office is situated in the city [or village] of , in the county of , and State of New. York. .That the present name of your petitioner is the [insert name] Company, and that the name it desires to assume is the [insert same] Company. That the following are the grounds of this application, namely : [Insert same]. That this petition for an order for such change of name of said corporation has been duly authorized by a resolution of its board of directors adopted at a meeting of said board held on the day of 189 . That annexed hereto is a certificate of the secretary of state, that the name which said corporation proposes to assume is not the name of any other domestic corporation or a name which he deems so nearly resembling it, as to be calculated to deceive. 676 Change of Coepoeate ISTame. Forms — No. 3. Wherefore, your petitioner prays for an order of the court authorizing it to change its corporate name from the [insert name] Company and to assume instead thereof the corporate name, the \insert proposed name] Company. Dated 189 . The [insert corporate name'] Company, [Corporate-^ By [signature] President. State of New Yoek County of , [Insert name of president], being duly sworn, says, that he is the president of the [insert corporate name] Company, the peti- tioner above named ; that he has read the foregoing petition, by him subscril)ed, and knows the contents thereof ; that the same is true to the knowledge of the deponent ; that the seal affixed to said petition is the corporate seal of said company and was affixed thereto by the authority of the board of directors of said com- pany, and that he signed said petition on behalf of said company, by the like authority. [Signature of president.] Sworn to before me this i day of 189 . j [Signature of notary.] No. 2. Notice of Application for Order to Change Name.* See §§ 2411-2414 of the Code of Civil Procedure. ISTotice is hereby given that the [insert corporate name] Com- pany, a domestic corporation, having its principal business office in the city [or village] of , county of , and State of New York, will apply to the supreme court of the State of New York, at a special term thereof, to be held at , in the city [or village] of , county of , on the day of , 189 , at o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order author- Change of Cokpoeate Name. 677 _ , J - Forms — Nos. 3, 4. izing said corporation to change its corporate name to the [insert proposed name] Conapany. Dated, Albany, IST. T., , 189 . The [insert corporate name'] Company, By [signature of] President. No. 3. Besolation of Directors Authorizing Application for Change of Name^ Resolved, by the board of directors of the [insert corporate name] Sit a meeting duly convened this day of j 18 , that it is desir&,ble that the corporate name of said company should be changed from that of the [insert name] to the name, [insert p-i'o- posed name], for the following reasons, to wit : [State them] ; Therefore, Be It Resolved, by said board of directors, that appli- cation for an order of the supreme court to authorize the said company to assume the name, [insert name] be made in the manner required by law, and that the president be and is hereby .directed to sign and verify a proper petition for that purpose, and to affix the seal of the corporation thereto. Wo. 4. Order Changing Corporate Name. See §§ 3411-3414 of the Code of Civil Procedure. At a Special Term of the Supreme Court of the State of New York, held at the m the city of , on the day of , 189 . Present : Hon. E. L. P., Justice. [Insert title, as inform No. l.J Upon reading and filing the petition of the [insert corporate name] Company, a domestic stock corporation, duly verified by , its president, wherein said petitioner prays for an order authorizing it to assume another corporate name, to wit, the name [insert new name] Company, and upon fihng the certificate of the secretary of state annexed thereto, certifying that the name which such corporation proposes to assume is not the name of any 678 Change of Cokporate Naaie. Forms — No. 4. other domestic corporation or a name which he deems so nearly • resembling it, as to be calculated to deceive, and upon filing due proof by affidavits showing that notice of the presentation of said petition has been duly published for six weeks in the [insert name of jpaper\ the paper at Albany in which notices by state officers are authorized by law to be published, and in the \insert name of paper], a newspaper of the county of , in which county such corporation has its business office [or if the corporation he located in the city and county of New Yorlc, that such notice has ieen so published in two daily newspapers in such county'], and the court being satisfied by said petition, and by the affidavits and cer- tificate presented therewith, that the petition is true, and that there is no reasonable objection to the change of name proposed, and that the petixion has been duly authorized, and that notice of the pre- sentation of the petition, as required by law, has been made ; Now, on motion of , attorney for the said petitioner, no one opposing, it is Ordered, that said petition be and the same hereby is granted, and that the petitioner herein, the [insert corporate name] Com- pany, be and it hereby is authorized to assume another corporate name, to wit, the name [insert same], on and after the day of , 189 , and it is further ordered and directed that this order be entered, and the papers on which it is granted be filed, within ten days from the date hereof, in the office of the clerk of county, the county in which the certificate of incor- poration of said corporation is filed, and that a certified copy of this order, within ten days after the entry thereof, be filed in the office of the secretary of state, and further, that a copy of this ofder be published once a week for four successive weeks in the [name of newspaper], a newspaper in the county of , beginning within ten days after the entry hereof. The foregoing order is to be filed and recorded in the office of the County Clerk, ■who is entitled to a filing fee of six cents, a recording fee of ten cents a folio and for a certified copy eight cents a folio. Such certified copy must be filed in the ofiice of the Secretary of State. No fee is payable at the latter office for such filing. If the proceedings are for the change of name of a railroad corporation the petition must be approved by the board of railroad commissioners. See page 12, Amended Ceetificatk to Coeeect Defect. 679 Forms — No. 5. ■ ante ; see also provisions as to the designation by said board of a newspaper in ■which the notice is to be publishsd, ante, page 14. It should also be noted that a certified copy of the order in such cases must be filed in the ofBceof said board, as well as in the ofl5.ce of the Secretary of State. No. 5. Amended Certificate to Correct Informality or Defect. See the General Corporation Law, § 7. Amended Ceetificate of the Company. We, the undersigned directors [w corporators\ of {insert name of corporation'] for the purpose of correcting an inf ormahty in the original certificate of incorporation of said corporation consisting of [e. g., an omission to state in said certificate the term of cor- porate existence of such corporation']. \0r for the purpose of striking out m,atter not authorized iy law to he stated in the original certificate of incorporation of said corporation, as follows, to wit : State unauthorized matter] . \0r for the purpose of correcting a defect in the proof or acTcnowledgment appended to the original certificate of incorpora- tion of said corporation], do hereby make and file this amended certificate, pursuant to the General Corporation La'w of the State of New York, section 7, and for such purpose, do certify and declare as follows : l^Here insert all the recitals contained in the original certificate, adding also the one for the swpplyvkg or correctmn of which the a/mende-d certificate is made ; or omitting the inatter unauthorized hy law to he stated ; or hy making the desired correction.] In "Witness Wheeeof, we have made and filed this amended certificate in duplicate, and have hereunto subscribed our names. ' Dated this day of 189 [Si'gnaturesJ] 680 Amended Certificate to Coerect Defect. Forms — No. 6. State of ]^ew York, i County of , j ®®- • On this day of 189 , before me personally came [insert ncMnes], known to me to be the individuals described in and who executed the foregoing amended certificate, and they severally acknowledged to me that they executed the same for the uses and purposes therein mentioned. [Signature of notary'.] The fees upon filing this certificate are: Oflace of Secretary of State, fifteen cents a folio for recording ; oflJce of County Clerk, filing, six cents, recording, ten cents a folio. on No. 6. Amended Supplemental Certificate to Correct Informality or Defect. See the General Corporation Law, § 7. Amended Supplemental Certificate of the Company, "We, the undersigned, directors of [insert corporate name] Com- pany, do hereby certify that in the certificate of reduction of capital stock of such corporation from $150,000 to $100,000, tiled in the oflace ot the Secretary of State on the day of 189 , and in the office of the clerk of the county of the day of , 189 , an informality exists, as fol lows, to wit : [Example given : That such informality consists of an erro- neous statement of the amount of debts and liabilities of the corporation.] Therefore, we, the undersigned directors of the [insert corporate name] Company aforesaid, do hereby make and file this amended certificate for Ihe purpose of correcting such informality or defect, pursuant to the provisions of the General Corporation Law, sec- tion 7, and for such purpose do certify and declare as follows : [Here set forth the certificate as amended:] In "Witness Whereof, we have made and acknowledged this amended certificate in duplicate, and have hereunto set our hands this day ,189 . [Signatures of directors^] Amended Ceetifioate to Coeeect Defect. 681 Forms— No. 7. State of New Yoek i County of , j ' On tiiis day of , 189 , before me personally came \insert names of tho directors], known to me to be the indi- viduals described in and who executed the foregoing amended certificate, and they seyerally acknowledged to me that they exe- cuted the same for the uses and purposes therein mentioned. Nota/ry Puhlic, County, N. Y. (As to fees see note to preceding form.) No. 7. Petition to Court to Amend Certificate of Incorporation which Fails to State True Objects of Corporation. See th3 General Corporation Law, § '7. Stjpeeme Couet, County. In the Matter of the Petition OE the [insert corporate name'] Company, to Amend ( ITS Cbbtipicatb op Incobpobation. To the Supreme Court of the State of New York : The petition of the [insert corporate name], the above-nained petitioner respectfully shows to this court that it is a corporation, duly incorporated, organized and existing under and by virtue of the laws of the State of New York. That annexed hereto and marked " Exhibit A " is a copy of the original certificate of incorporation of said corporation, which, as your petitioner is informed and verily believes, was duly filed and recorded in the ofiice of the Secretary of State of the State of New York, on the day of 189 , and a duplicate original [or a certified copy] thereof was also on the day of 189 , duly filed and recorded in the ofiice of the clerk of county. fi82 Amended Cektificatb to Cokeect Defect. Forms — No. T. That such certificate of incorporation, so filed as aforesaid, fails to express the true object and purpose of the corporation, so as to truly set forth such object and purpose. That it is and has been ever since the filing of said certificate of incorporation the inten- tion and purpose of the incorporators to, and the true object and purpose of said corporation is, to [state same]. That annexed hereto and marked " Exhibit B," is a proposed amended certificate of incorporation duly signed and acknowledged by the directors of said corporation for the first year as named in the original certificate of incorporation. That said proposed amended certificate expresses the true object and purpose of said corporation as hereinbefore set forth, and the petitioner prays for an order of this court amending said original certificate so as to truly set forth such object and purpose, and permit your petitioner to file for record with said Secretary of State and County Clerk of county, said certificate so amended. The {insert corporate name'] Company, [^"^"'1 By [signature] President. State of ITew York, | County of . , P^' * [B'aTne of president], being duly sworn, says that he is the president of the [insert corporate name], the petitioner named in the foregoing petition ; that the foregoing petition ia true of his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true ; that he affixed the corporate seal of said corporation to said petition and signed the same on behalf of said corporation by the authority of its board of directors. [Signature of president.] Sworn to before me this ) day of 189 , ) [Signature of notary.'] Amended Certificate to Coerbct, Defect. 683 Forms — No. 8. No. 8. Notice of Application to Court for Correction of Objects." See the General Corporation Law, § 7. State of New York, Supreme Court. In the Matter of the Petition OF the \i7isert corporate name] to A.mend its Ckrtipi-( CATE OF InOORPOHATION. Sir: — Please take notice, that upon the petition, with a copy of which you are herewith served, a motion will be made at the next Special Term of this court, appointed to be held at the in the city [or village'] of in and for the county of , on the day of 189 , at the opening of the court on that day, or as soon thereafter as counsel can be heard, for a rale or order in this proceeding, amending the original certificate of incorporation of the [insert corporate name'], filed and recorded in the office of the Secretary of State, and also in the office of the clerk of county, on or about the day of , 189 , so as to truly set forth the true object and purpose of said corporation as stated in said petition, and permitting the petitioner to file said amended certificate and to have the same recorded in the office of the Secretary of State, and also in the office of said clerk of county, in the manner required by law, or for such other or further order of relief in the premises as shall be just. Dated the day of ,189 Yours, etc.. Attorney for the Petitioner. Office address : To Hon Attorney-General. 684 By-Laws foe Stock Coepoeations. Forms — No. 9. No. 9. By-Laws for Stock Corporations. See the General Corporation Law, § 11. BY-LAWS OF THE COMPAJSTY. Aeticle I. — Meetings of Stockholdees. Section 1. The annual meeting of the stockholders of this com. pany shall be held at the office of the corporation, in the of , on the [e. g., second Monday in January] of each and every year, at 12 o'clock, noon, for the electipn of directors and such other business as may properly come before said meeting. Notice of the time, place and object of such meeting shall be given by pubKcation thereof, at least once in each week for two succes- sive weeks immediately preceding such meeting, in the manner required by the Stock Corporation Law, section 20, and by mailing, at least days previous to such meeting, postage prepaid, a copy of such notice, addressed to each stockholder at his residence or place of business, as the same shall appear on the books of the corporation. No business, other than that stated in such notice, shall be transacted at such meeting withovit the unanimous consent of all the stockholders present thereat, in person or by proxy. Section 2. Special meetings of stockholders, other than those regulated by statute, may be called at any time by a majority of the directors. It shall also be the duty of the president to call such meetings whenever requested in writing, so to do, by stockholders owning of the ca^wtal stock. A notice of every special meeting, stating the time, place and object thereof, shall be given by mailing, postage prepaid, at least days before such meeting, a copy of such notice addressed to each stockholder at his post- office address as the same appears on the books of the corporation. Section 3. At all meetings of stockholders there shall be prescHt, either in person or by proxy, stockholders owning of the capital stock of the corporation in order to constitute a quorum, except at special elections of directors pursuant to section 25 of the General Corporation Law. By-Laws foe Stock Ooepoeations. 685 Forms — Ho. 9. Section 4. At all annual meetings of stockholders the right of any stockholder to vote shall be governed and determined as pre- scribed in the General Corporation Law, sections 20, 21 and 22. Section 5. If, for any reason, the annual meeting of stockholders shall not be held as hereinbefore provided, such annual meeting shall be called and conducted as prescribed in the General Corpo- ration Law, sections 24, 25 and 26. Section 6. At all meetings of stockholders, only such persons shall be entitled to vote in person and by proxy who appear as stockholders upon the transfer books of the corporation for ten days immediately preceding such meeting. Section 1. At the annual meetings of stockholders the following shall be the order of business, viz. : L Calling the roll. 2. Proof of proper notice of meeting. 3. Report of President. 4. Keport of Treasurer. 5. Report of Secretary. 6. Report of Committees. 7. Election of Directors. 8. Miscellaneous business. Section 8. At all meetings of stockholders all questions, except the question of an amendment to the by-laws, and the election of directors and inspectors of election, and all such other questions, the manner of deciding which is specially regulated by statute, shall be determined by a majority vote of the stockholders present jn person or by proxy ; provided, however, that any qualified voter may demand a stock vote, and in that case, such stock vote shall immediately be taken, and each stockholder present, in person or by proxy, shall be entitled to one vote for each share of stock owned by him. All voting shall be viva voce, except that a stock role shall be by ballot, each of which shall state the name of the stockholder voting and the number of shares owned by him, and, in addition, if such ballot be cast by a proxy, it shall also state the name of such proxy. 686 By-Laws foe Stock Coepoeations. Forms — No. 9. Section 9. At special meetings of stockholders the provisions of sections 20, 21, 22, 25 and 26 of the General • Corporation Law- shall apply to the casting of all votes. AetICLB II. DiEEOTOES. Section 1. The directors of this corporation shall be elected by ballot, for tlie term of one year, at the annual meeting of stock- holders, except as hereinafter otherwise provided for filling vacan- cies. The directors shall be chosen by a plurality of the votes of the stockholders, voting either in person or by proxy, at such annual election as provided by section 20 of the Stock Corporation Law. Section 2. Vacancies in the board of directors, occurring during the year, shall be filled for the unexpired term, by a majority vote of the remaining directors at any special meeting called for that purpose, or at any regular meeting of the board. Section 3. In case the entire board of directors shall die or resign, any stockholder may call a special meeting in the same manner that tlie president may call such meetings, and directors for the unex- pired term may be elected at such special meeting in the manner provided for their election at annual meetings. Section 4. The board of directors may adopt such rules and regu- lations for the conduct of their meetings and management of the afiairs of the corporation as they may deem proper, not inconsistent with the laws of the State of New York, or these by-laws. Section 5. The board of directors shall meet on the [e. g., second Monday] of every month, and waenever called together by the president upon due notice given to each director. On the written request of any director the secretary shall call a special meeting of the board. Section 6. All committees shall be appointed by the board of directors. Aetiolb III. — Officees. Section 1. The board of directors, immediately after the annual meeting, shall choose one of their number by a majority vote to be president, and they shall also appoint a vice-president, secretary and treasurer. Each of such officers shall serve for the term of one year, or until the next annual election. Br-LAWS FOE Stock Coepoeations. 687 Forms — No. 9. Section 2. The president shall preside at all meetings of the board of directors, and shall act as temporary chairman at, and call to order all meetings of the stockholders. He shall sign certificates of stock, sign and execute all contracts in the name of the company, when authorized so to do by the board of directors; countersign all checks drawn by the treasurer; appoint and dis- charge agents and employes, subject to the approval of the board of directors, and he shall have the general management of the affairs of the corporation and perform all the duties incidental to ■ his office. Section 3. The vice-president shall, in the absence or incapacity of the president, perform the duties of that officer. Section 4. The treasurer shall have the care and custody of all the funds and securities of the corporation, and deposit the same in the name of the corporation in such bank or banks as the directors may elect ; he shall sign all checks, drafts, notes and orders for the payment of money, which shall be countersigned by the president, and he shall pay out and dispose of the same under the direction of the president ; he shall at all reasonable times exhibit his books and accounts to any director or stockholder of the company upon appli- cation at the office of the company during business hours ; he shall sign all certificates of stock signed by the president ; he shall give such bonds for the faithful performance of his duties as the board of directors may determine. Section 5. The secretary shall keep the minutes of the board of directors, and also the minutes of the meetings of stockholders ; he shall attend to the giving and serving of all notices of the company, and shall affix the seal of the company to all certificates of stock, when signed by the president and treasurer ; he shall have charge of the certificate book and such other books and papers as the board may direct ; he shall attend to such correspondence as may be assigned to him, and perform all the duties incidental to his office. He shall also keep a stock-book, containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their places of residence, the number of shares of stock held by them respectively, the time when they respectively became the owners thereof, and the amount paid thereon, and such book 688 By-Laws foe Stock Corporations. Forms — No. 9. shall be open for inspection as prescribed by section 2Q of the Stock Corporation Law. Article TV. — Capital Stock. Section 1. Subscriptions to the capital stock must be paid to the treasurer at such time or times, and in such installments, as the board of directors may by resolution require. Any failure to pay an installment when required to be paid by the board of directors shall work a forfeiture of such shares of stock in arrears, pursuant to section 43 of the Stock Corporation Law. Section 2. Certificates of stock shall be numbered and registered in the order they are issued, and shall be signed by the president or vice-president and by the secretary or treasurer, and the seal of the corporation shall be affixed thereto. All certificates shall be bound in a book, and shall be issued in consecutive order there- from, and in the margin thereof shall be entered the name of the person owning the shares therein represented, the number of shares, and the date thereof. All certificates exchanged or returned to the corporation shall be marked canceled, with the date of cancel- lation, by the secretary, and shall be immediately pasted in the certificate book, opposite the memorandum of its issue. Section 3. Transfers of shares shall only be made upon the books of the corporation by the holder in person or by power of attorney duly executed and acknowledged and filed with the secretary of the corporation, and on the surrender of the certificate or certifi- cates of such shares. Section 4. Whenever the capital stock of the corporation is increased, each bona fide owner of its stock shall be entitled to purchase, at the par value thereof, an amount of stock in propor- tion to the number of shares of stock he owns in the corporation at the time of such increase. Article V. — I)ividend8. Section 1 . Dividends shall be declared and paid out of the surplus profits of the corporation as often and at such times as the board of directors may determine, and in accordance with section 23 of the Stock Corporation Law. Statement, etc., by Foreign Coepoeation. 68.9 Forms ^ No. 10. Article YI. — Inspectoks. Section 1. Two inspectors of election shall be elected at each annual meeting of stockholders to serve for one year, and if any inspector shall refuse to serve or shall not be present, the meeting may appoint an inspector in his place. Aetiole YII. — Seal. Section-!. The seal of the corporation shall be in the form of a circle, and shall bear the name of the corporation and the year of its incorporation. Article VIII. — Amendments. Section 1. These by-laws may be amended at any stockholders' meeting by a vote of the stockholders owning a majority of the stock, represented , either in person or by proxy, provided the pro- posed amendment is inserted in the notice of sucb. meeting. A copy of such amended by-law shall be sent to each stockholder within ten days after the adoption of the same. By-laws are not required to be filed in any public office. After adoption they should be entered in the book of minutes of the corporation. No. 10. Statement and Designation by a Foreign Stock Corporation under the General Corporation Law, section 16, and the Code of Civil Procedure, section 432. §ee the General Corporation Law, ante. Pursuant to the provisions of section 16 of the General Corpora- tion Law of the State of JSTew York, and section 432 of the Code of Civil Procedure of said State, the {insert corporate name'] Company, a stock corporation, organized and existing under and by virtue of the laws of the State of [or Kingdom of, as the case may Se] does hereby make a statement and designa- tion under its corporate seal, to be filed with the annexed sworn copy of its charter or certificate of incorporation, as follows, to wit : First. That the business or objects of the said corporation which it is engaged in carrying on (or which it proposes to carry on), 44 690 Statement, etc., by Fokeign Coepoeation. Forms — No. 10. within the State of jS'ew York, is (or are) as follows : [State business or objects.] Second. That the place within the State of New York which is to be its principal place of business is [insert location]. Third. That said corporation hereby designates [insert name of person] as a person upon wliom a summons may be served within the State of New York, or any process or other paper, whereby a special proceeding is commenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special provisions for the service thereof is otherwise made by law. ^ Fourth. That said [insert name of person], so designated, has an office or place of business at No. street, in the city [or village] of ,* the place where said corporation is to have its principal place of business within the State of New York.f Fifth. That the written consent of said [insert name] to such designation, duly signed and acknowledged, is hereunto annexed. Sixth. That a sworn copy of the charter [or certificate of incor- poration] of said incorporation is hereunto annexed. In "Witness "Wheeeof, the [inseit corporate name] Company, the corporation hereinbefore mentioned and described, has caused this instrument to be executed by its president [or vice-president, or other acting head], and has caused its corporate seal to be hereunto affixed this day of , 189 . THE [insert corporate name] COMPANY, ['^"JS.T'""'] By [signature] President [or vice- ' president, or title of other acting State of County of head of corporation]. ss.. On this day of , 189 , before me, the sub- scriber, personally came [insert name], the president [or vicepresi- dent, or as the case may be,] of the [insert name of corporation] *If it is within the city, the street and street number, if any, or other suitable designation of the particular locality should be stated. t The person so designated must have an office or place of business at the place where such corporation is to have its principal place of t>n8iness within the State. Statement, etc., by Foeeign Cokpobations. 691 Forms— No. 10. Company, to me personally known, who being by me duly sworn, did depose and say, that he resides in the city [or village] of , State of ; that he is the president [or as the case may he] of the said [insert corporate name] Com- pany ; that he knows the corporate seal of said company ; that the seal affixed to the foregoing instrument is such corporate seal, and was affixed thereto by the authority of the board of directors of said company, and that he executed said instrument as president [or a^ vice-president, or as the case may he,] of the said company by the like authority. In Testimony Whereof, I have hereunto set my hand the day and year above written. Notary Public, County. Consent to be Attached to Foregoing: Certificate. I, [insert name], the person designated in the foregoing instru- ment as a person upon whom a summons or any process, as therein mentioned, against the [insert ' name of corporation] may be served within tlie State of New York, do hereby consent to such designation. In "Witness "Whereof, I have hereunto set my hand this day of , 189 . [Signature.] State of New York, ^ , County of [■ On this day of , 189 , before me personally came , to me Icnown to be the person described in and who signed the foregoing consent, and he acknowledged to me that he signed and executed the same for the uses and purposes therein mentioned. Notary PuUic, Coimty, N. T. 692 Statement, etc., by Foreign Coepobations. Forms — No. 11. Sworn Copy of Charter or Certificate of Incorporation to be Attached to Foregoing Certificate. \_IIere append copy of the charter or certificate of incorp>oration.'] Oath to be Annexed to Copy of Charter or Certificate of Incorporation. State of ss. : County of \^Tnsert name], being duly sworn, deposes and says, that he is the secretary {or other officer] of [insert name of corporation] Company, a corporation organized under the laws of the State of ; that the foregoing is a true copy of the charter [or certificate of incorporation] of said corporation, and of the whole thereof. [Signature. ] Sworn to before me this ) day of , 189 . ) [Signature of Notary.] The foregoing papers should be attached so as to constitute one complete instrument, and filed with the Secretary of State, who will thereupon issue the certificate of authority. The fees at the office of the Secretary of State are eleven dollars. (Executive Law, L. 1893, ch. 683, § 26, subds. 7 and 13 .) A certified copy of the certificate of incorporation will not suflSce. The act requires a sworn copy. In case an acknowledgment or affidavit is taken before a notary public or justice of the peace in another state, the act of such person should be authenticated by the certificate of the county clerk. No certificate of a county clerk is necessary when such acknowledgment or affidavit is taken in another state by a commis- sioner of deeds acting under appointment from the Governor of the State of New York. No. 11. Besolntion of Board «f Directors of a Foreign Corporation. Resolved, That the president [or vice-president, or as the case may h',] of the [insert corporate name] be and he is hereby author- ized and directed to execute in the name and on behalf of said corporation the statement required to be filed by foreign corpora- Statement, etc., by Foreign Coepobations. 693 Forms — No. 13. tions under the provisions of the General Corporation Law of the State of New York, to attach the seal of the corporation thereto, and in said statement to designate [insert name of jferson] in the manner prescribed by the Code of Civil Procedure as the person upon whom process against the corporation may be served within the State of New York, and further to do all acts and things neces- sary to comply with the provisions of law in said State. No. IS. Beyocation and New Desigrnation by a Foreigrn Corporation. Pursuant to the provisions of section 16 of General Corporation Law of the State of New York, and section 432 of the Code of Civil Procedure of said State, the [insert corporate name] Com- pany, a stock corporation organized and existing under and by virtue of the laws of the State of , does hereby certify as follows : That said corporation hereby revokes the designation by it heretofore made of [insert name of person], as the person upon whom process against the said corporation may be served within the State of New York. That in the place and stead of said designation, hereby revoked, the said [insert corporate name] Company hereby designates [insert name of person] as the person iipon whom a summons against said corporation may be served within the State of New York, or any process or other paper, whereby a special proceeding is commenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law. That the said [insert name], hereby designated, has an office or place of business at No. ■ street, in the city [or milage] of , the place where said corporation is to have its principal place of business within the State of New York. That the written consent of said [insert name] to such designar tion, duly signed and acknowledged, is hereto annexed. 694 Statement, etc., bt Foreign Coepoeations. Forms — No. 13. In "Witness "Wheeeof, the [insert corporate name'] Company, the corporatioa hereinbefore mentioned and described, has caused this instrument to be executed by its president [or vice-president, or other acting head], and has caused its corporate seal to be here- unto affixed this day of , 189 . THE [insert corporate name] COMPANY, [corpw^aui^ By [signature] President [or vice- president or title of other acting head of corporation.] [Attach proof of execution, consent of person designated and acknowledgment as in form No. 10.] This certificate, when properly executed, is to be filed in the oflice of the Secretary of State. No fee is payable. No. 13. Certificate of BemoTal of OfSce of Designee. See the General Corporation Law, § 16. This is to ceetify, That I, , the person desig- nated by the Company, a stock corporation organized and existing under the laws of the State of by a certain certificate filed in the office of the Secretary of the State of New York on , 18 , as the person upon whom process against said corporation .may be served within the State of New York, have removed my office and place of business within the State of New York from No. street in the city [or village] of , to No. street, in said city, [or village] and that from and after the day of , 18 , my office and place of business will be at said No. street in the city [or village] of In "Witness "Wheeeof, I have hereto set my hand at this day of , 18 . [Signature.] Feoxy feom a Stockholder. 695 Forms — No. 14. State of New Yoek, County of , On this day of > 18 , before me personally appeared , to me known to be the person described in and who executed the foregoing certificate and acknowledged to me that he executed the same for the uses and purposes therein set forth. [Signature of Notary PubUc.'\ The foregoing is to be filed in the office of the Secretary of State. No fee is payable. No. 14. Form of Proxy from a Stockholder. See the General Corporation Law, § 21. Know all men by these peesents, That I, , do liereby constitute and appoint C. D. to be my lawful attorney, substitute and proxy for me, and in my name to vote upon all the stock held by me in \insert name of corporation] at the annual meeting of stockholders of such corporation \or at a speoial meeting of such corporation, as the case may he,"] to be held on the day of , 189 , and at any adjourned meeting thereof, as fully and with the same effect as I might or could do were I personally present at such meeting ; and I hereby revoke any proxy or proxies heretofore given by me to any person or persons whatsoever. In "Witness Wheeeop, I have hereunto set my hand and seal this day of , 189 . [Signature.] [l. s.] In presence of All proxies must be filed in the office of the corporation. 696 Peoxies; Oath of Challenged Voteb. Forms — Nos. 15, 16, 17. No. 15. Form of Proxy from a Bondholder. See the General Corporation Law, § 21. Know all men by these presents, That I llnsert name], do hereby constitute and appoint C. D. to be mj lawful attorney, substitute and proxy for me, and in my name to vote upon ali the bonds held by me in [insert name of company], at a meeting of the bondholders of such corporation, to be held on [proceed as in form Wo. 14]. See note to preceding form. No. 16. Form of Proxy from a Member of a Non-stock Corporation. See tli3 General Corporation Law, § 21. Know all men bt these peesents. That I [insert name], do hereby constitute and appoint C. D. to be my lawful attorney, substitute and proxy for me, and in my name to vote at the annual meeting [or at a special meeting, as the case may he,] of the members of [insert name of corporatiorC], to be held on the [proceed as in form No. 14]. See note to form No. 14. No. 17. Oath of Challenged Yoter. See the General Corporation Law, § 23. State of New York, ) ' > ss. : County of . ) I do solemnly swear that ia voting at this election I have not, either directly, indirectly or impliedly, received any promise or any sura of money, or anything of value to influence the giving of my vote or votes at this meeting, or as a consideration therefor ;* that I have not sold or otherwise disposed of my interest in or title to any * If a non-stock corporation, the words succeeding the ♦ shoald be omitted. Proxies ; Oath of Challenged Yotee. 697 Forms — No. 18. shares of stock or bonds in respect to which I offer to vote at tliis election, but that all such shares or bonds are still owned by me. {^Signature of voter. ^ Subscribed and sworn to before me this day of , 189 . Inspector of Election. The oath taken as above must be filed in the office of the corporation. No. 18. Oath of Challenged Proxy. See the General Corporation Law, § 23. State of New Yoek, . ss. Coanty of I do solemnly swear that I have not, either directly, indirectly or impliedly, given any promise or any sum of money or anything of value to induce the giving of a proxy to me to vote at this election, or received any promise or any sum of money or anything of value to influence the giving of my vote at this meeting, or as a conside- ration therefor,* and that the title to the stocks and bonds upon which I now offer to vote is, to the best of my knowledge and belipf, truly and in good faith vested in the persons in whose names they now stand. {^Signature of proxy.] Subscribed and sworn to before me this day of 189 Inspector of Election. The oath taken as above must be filed In the office of the corporation. * If a non-stock corporation the words sacceedlng the * should be omitted. 698 Special Election of Dieectoes. Forms — Nos. 19, 20. No. 19. Notice of Special Election of Directors. See the General Corporation Law, §34> To tlie stockholders * of the [{nse?'t corporate name] : Notice is hereby given that the election of directors for the [insert corporate name] not having been held on the day designated in the by-laws, a meeting of the members of said corporation, for the purpose of electing directors thereof, will be held at the office of said corporation, 'No. village'] of , on the at o'clock in the noon. Dated , 189 . street, in the [city day of 189 A. B., Secretary. No. 20. Notice of Special Election by a Stockholder. See the General Corporation Law, § 24. To the stockholders * of the {insert corporate name] : Notice is hereby given that the election of directors for the \insert corporate name] not having been held on the day designated in the by-laws, and the directors not having within one month thereafter called a special election [or the meeting held on {insert date) having resulted in a failure to elect directors], a meeting of the members of said corporation for the purpose of electing directors thereof will be held at the office of said corporation, No. street, in the of , on the day of , 189 , at o'clock in the noon. Dated ,189 . A. B., Stockholder * of said Corporation. •Use the word "member '" if a non-stock corporation. Petition to Set Aside Election. 699 Forms— Nos. 21, 23. No. 21. Sworn Statement of Voter. Ses the General Corporatioa Law, § 26. State of New Yoek, _ , ss. County of A. B., being duly sworn, deposes and says, that he is a member of the [insert corporate name'] ; * that the number of shares of stock owned by him and standing in his name on the books of such corporation is [state number], and that the whole number of shares of stock of such corporation outstanding is [or is unknown to deponent]. A. B. Sworn to before me this day ) of , , 189 . i [Sigi7Mture of notary.] The inspectors must file such statement, with a certificate of the result of the election, verified by them, in the office of the clerk of the county in which the election is held. For form of inspectors' certificate, see forms Nos. 39 and 40. No. 23. Petition to Set Aside Slection of Directors. See the General Corporation Law, § 27. In the Matter of the Election of! Directors OF the [Insert corporate name] Company. To the Supreme Court of the State of ISTew York : ' The petition of [insert name], a stockholder in the [insert name of corporation], respectfully shows to this court : That the [insert corporate name] was on the day of , 189 , and still is, a corporation duly orgaiiized and existing pursuant to and by virtue of the provisions of [state the act] of the State of New * Orait all succeeding the * if a non-stock corporation. 700 PETTTioir TO Set Aside Election. Forms — No. 22. York, and the acts amendatory thereof and supplemental thereto, for the purpose of [state iusiness] and is now carrying on such business. That the principal place of business of such corporation is located at [insert location]. And the petitioner further shows that on the day of , 189 , at the office of such corporation, an election of directors for such corporation was assumed to be held by virtue of its by-laws, and the following persons were assumed to have been elected such directors thereat, to-wit : [Insert names'], and claiming to be directors by virtue of such alleged election said persons organized as a board, and assumed to act as such, and that hereto annexed and marked " Exhibit " is a copy of the record of such alleged election. That at said alleged election other persons, stockholders of such corporation, and qualified to act as directors thereof, to-wit: [Insert names], each of whom then was and now is the lawful owner and holder of at leant shares of its capital stock, were voted for by duly qualified voters. That said alleged election and the proceedings, acts and matters touching the same were illegal and invalid for the following reason: [Set forth the irregularities]. And the petitioner further shows that at the time of such alleged election and for more than ten days previous thereto, the petitioner was, ever since has been and now is a stockholder in such corpo- ration, being the lawful owner and holder of shares of the capital stock thereof, that he was present and objected to the said illegal proceedings and acts at such election. That your petitioner is aggrieved by, and complains of, such election and the proceedings, acts and matters touching the same, and alleges that his right to vote was infringed by such illegal proceedings and the value of his stock has been injuriously afEected by the acts of said persons assuming to act as directors by virtue of said illegal proceedings. That notice of days to the adverse party, or to those to be affected by this appKcation, and to said corporation, has been given as appears by the affidavit hereto annexed, marked " Exhibit ." Extension of Existence. 701 Forms — No. 23. Wherefore the petitioner prays that such election may be declared by this court to be irregular and of no effect, and be set aside and the offices of all such directors be declared to be vacated, and that all such persons assuming to be directors cease to act as such, and that a new election for the directors of such corporation be ordered by this court, and that inspectors for such election be appointed by the court, and for such further relief as right and justice may require. Attorney for Petitioner, Office and post-office address : State of New Yoek, County of [Insert n(ime], being duly sworn, says that he has read the foregoing petition, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, he believes it to be true. [Signature.] Sworn to before me this day ) ' of , 18 . ) [Signature of Notary.] No. 23. Certificate of Extension of Corporate Existence. See the General Corporation Law, § 32. We, the undersigned, being stockholders of the [insert corporate name], a domestic stock corporation, and each owning the number of shares of stock in such corporation set opposite our respective signatures hereto, and together owning at least two-thirds of the capital stock of such corporation, to wit, shares of the total of shares into which such capital stock is divided, do hereby certify, pursuant to the General Corporation Law of the State of New York, that we severally consent that the corporate existence of such corporation be, and the same hereby is, extended for the term 702 Extension op Existence. Forms — No. 23. of years beyond the time specified in its original certifi- cate of incorporation [or for a further term of years hey on d the time specified in a certificate of extension of corporate existence heretofore filed']. In Witness "Whereof, We have hereunto set our hands to this consent in dupHcate, and the number of shares of stock owned by us, respectively, in such company, this day of 189 . A. B., 40 shares. C, D., 30 shares. E. F., 30 shares. G. H., 40 shares. State of N'ew Toek, ) ' >• s8. : County of . ) On this day of , 189 , before me personally came A. B., 0. D., E. F. and G. H., to me known and known to me to be the persons described in and who made and signed the foregoing certificate and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. Notary Public, County, .N. T. State of New York, ) ' > ss. : County of . ) A. B., being duly sworn, deposes and says that he is the treasurer of the [irhsert corporate name of company\ referred to in the fore- going consent ; that he is the custodian of the stock book of such corporation ; that the persons, who have subscribed the foregoing consent and acknowledged the execution thereof, are the owners upon the books of such corporation of the number of shares of stock therein set opposite their respective signatures to the fore- going consent, being at least two-thirds in amount of the capital stock of such corporation. A. B. Sworn to before me, this day ) of , 189 , ) {Signature of Notary."] COEPOEATION MOETQAGE. 703 Forms — No. 24. The foregoing affidavit of the custodian of the stock book is not a statutory requirement. It was prepared by ttie editor and first appeared in liis " Manual of Corporation Laws" (1890), and has since been quite generally adopted. The use of this affidavit makes complete proof of compliance with the law. The fee at the office of the Secretary of State upon above certificate is fifteen cents for each folio of 100 words contained therein. At the county clerk's office the fee is six cents for filing and ten cents per folio for recording. No. 24. Consent to Mortgage. See ths Stock Corporation Law, § 2. We, the undersigned stockholders of [insert name of company], A stock corporation organized and existing under and by virtue of the laws of the State of New York, having a capital stock of [insert amount] dollars, divided into [insert number] shares of the par value of [insert amount] dollars each, and being stockholders owning at least two thirds of the stock of said corporation, Do Hereby Consent that said corporation may make, execute and deliver a mortgage or deed of trust constituting a first lien upon all its property and franchises to [insert name], as trustee, said mortgage or deed of trust to be dated on the day of 189 , and to be for the sum of [insert amount] dollars, and conditioned as security for the payment of [insert amount] in bonds to be issued by said [inserMoorporate name] as follows, to wit : [Insert number] bonds of dollars eash, numbered from to , inclusive, and bonds of dollars each, numbered from to , inclusive. Said bonds to be dated the day of , 189 , and to become due and payable in years from said date, and to bear interest from the day of , 189 , until the maturity thereof, at the rate of per cent per annum, payable semi-annually on the first day of and in each year. 704 COEPOEATION MOKTGAGE. Forms — Nos. 25, 26. In Witness Wheeeof, we have hereunto set our hands and the number of shares of stock owned by us, respectively, in said corporation. Dated this day of , 189 . l^Signatxires of Stockholders.] [No. of shares. ] [Add acTcnowledgment.'] [Add the affidavit of custodian of stocTc-hooh as appended to form No. 23.] No. 25. Short Form of Consent to Mortgage. We, the undersigned, stockholders, owning at least two-thirds of the stock of the [insert corporate name] do hereby consent to the execution and delivery by said corporation of a mortgage upon all its property and franchises to [insert name], as trustee, to secure the payment of the bonds of said corporation to the amount of dollars. In Witness Wheeeof, etc., as in form N^o. 24. [Add acknowledgment and affidavit as above stated.] No. 86. Certificate of Consent to Mortgage when given at Special Meeting of Stockliolders. Sc3 the Stock Coiporation Law § 2. We, the undersigned, chairman and secretary, respectively, of a special meeting of the stockholders of the [insert corporate name] Company, called for the purpose of determining whether or not such stockholders should consent to the execution and delivery of a mortgage upon the property and franchises of said [insert corporate name] Company, do hereby certify as follows : That the said Company is a stock corporation, duly incorporated under the laws of the State of New York. COEPOEATION MOETGAGE. , 705 Forms— No. 26. That notice of such meeting, stating the purpose thereof and the time and place of holding the same, was given on the day of , 189 , to each stockholder of record by depositing in the post-office a copy of such notice, inclosed in a post-paid envelope, addressed to each stockholder at his last known post-office address, and by publishing a copy of such notice prior to said meeting, for two successive weeks, in the , a newspaper published in , in the county of That at the time and place specified in said notice for said special meeting, to wit, at the office of said corporation at , on the day of , 189 , at o'clock in the noon, there appeared in person and by proxy stockholders owning at least two-thirds of the stock of said corporation, and organized said meeting by choosing the undersigned, , as chairman, and , as secretary thereof, respectively. That notice of the meeting and proof of due service and publica- tion thereof, which are hereto annexed, were read. That offered the following resolution, which was duly seconded, to wit : Eesolved, That consent is hereby given to the [insert corporate name'] Company to execute and deliver a mortgage upon its property and franchises to , as trustee, to secure the payment of the bonds o.f said company to the amount of dollars, such bonds to be of the denomination of dollars each [or as the case may he]. That stockholders owning [insert numher] shares of stock in said corporation voted in favor of said resolution ; and , stockholders owning [insert numher] shares of stock in said cor- poration voted against said resolution [or, and no votes were cast against its adoption, as the case may he\. That stockholders owning at least two-thirds of the stock of the corporation having voted in favor thereof, said resolution was declared duly adopted, and the meeting adjourned. In Witness Whereof, We have made and signed this certificate this day of 189 . , Chairipan. ,...., Secretary. 706 CoEPOEATioN Mortgage. Forms — No. 27. State of New Yoek, ) >■ ss. : County of . ) A. B. and C. D., being severally duly sworn, each for himself, deposes and says, that he, the said A. B., was chairman of the meeting mentioned in the foregoing certificate, and that he, the said C. D., was secretary of s^id meeting ; that he has read the foregoing certificate subscribed by him and knows the contents thereof, and that the same is true. , Chairman. , Secretary. Sworn to before me this day ) of , 189 ] [Signature of J^otary.] [Attach notice of meeting and proof of service and publication thereof] Section 2 of the Stock Corporation Law does not prescribe the manner of giving notice of the meeting of stockholders authorized under said section; therefore, the by-laws of the corporation in relation to notices for special meetings should govern, but in the absence of such a by-law a notice at least equal to that required for annual meetings (Stock Corporation Law, § 20) should be given. No. 27 Corporation Mortgage. This Indenture, made this day of , 189 , by and between the [in^sert corporate na?ne'], a stock corporation duly organized and existing under and by virtue of the laws of the State of New York, and located and having its principal ofiSce in the of , county of , State of New York, party of the first part, and , as trustee, for the purpose hereinafter set forth, party of the second part. Witnesseth : Whereas, The said party of the first part desires to raise money for the purpose of discharging and paying certain debts against said corporation, heretofore necessarily incurred in its business, and to borrow money for the transaction of its business and for the exercise of its corporate rights, privileges and franchises, COEPORATION MoUTUAGE. 707 Forms — No. 27. and for other lawful purposes of its incorporation, has, by a resolution of its board of directors [or trustees], authorized the making and issuing of its negotiable coupon bonds, each of the denomination of dollars ($ ), numbered consecu- tively from C 1 upward, and of its registered bonds,, each of the denomination of dollars ($ ), or multiples of $ , numbered consecutively from R 1 upwurd, such coupoa and registered bonds to amount in the aggregate to dollars ($ ), and to bear date the day of , ] 89 , payable years from their date in gold coin of the United States of the present standard of weight and fineness, and bearing interest at the rate of per cent per annum, payable in like gold coin semi-annually on the first days of and , respectively ; And, Whereas, All of said bonds are to be sealed with the corporate seal of said company, signed by its president or vice-president, and secretary, with the certificate of the trustee hereunder indorsed thereon, and each of said coupon bonds to have interest coupons attached, which said bonds, coupons and certificates are all to be substantially of the following tenor, that is to say : [For forms of bonds, coupons and certificates, see forms Nos. 28, 29, 30 and 31.] And, Whereas, The 'written consent of the stockholders owning at least two-thirds of the stock of said Company has been given to the execution of this mortgage or deed of trust and to the issue and execution' of said bonds, which said written consent has been filed and recorded in the office of the clerk of the county of , in which said county said company has its principal place of business \or the consent of the stoohJiolders owning at least two-ihirds of the stooTc of said Company has been given to the execution of this mortgage or deed of trust and to the issue and execution of said bonds by vote at a special meeting of the stockholders of said company called for that purpose, upon due notice to all of said stockholders, and a certificate of the vote at such meeting, signed and sworn to by the chavrrn,an and secretary of such meeting, has been filed and recorded in the .qfflee of tifie 708 COKPOJBATION MoKTGAGE. Forms — No. 27. clerk of the county of , in which said county said com- pany has its principal place of business.] And, "Whereas, At a meeting duly called for that piirpose, this mortgage or deed of trust was submitted to the board of directors [or trustees'] of the Company, and it was then and there duly resolved that this mortgage or deed of trust be executed by the president of said Company, in its name and on its behalf, and that the corporate seal of said company be hereunto affixed and attested by the secretary, and that this mortgage or deed of trust be duly delivered an behalf of said company to trustee, herein mentioned. Now, therefore, this Indenture "Witnesseth : That, in order to secure the payment of the principal and interest of the bonds afore- said at any time outstanding according to their tenor and effect, and the fulfillment of the conditions and covenants hereinafter con- tained, and irrespective of their time of issue and lor and in consideration of the purchase and acceptance of said bonds by the holders thereof, and of the sum of one dollar to it duly paid by the trustee, party of the second part, at or before the ensealing of these presents, the receipt whereof is hereby acknowledged, the Company, party of the first part, has granted, bar- gained, sold, aliened, remised, conveyed and confirmed, assigned, transferred and set over, and by these presents -does grant, bargain, sell, alien, remise, convey and confirm, assign, transfer and set over, unto the said trustee, the party of the second part, and to his suc- cessor or successors, forever, all and singular the following described properties : [Insert description.] Together with all and singular the tenements, hereditaments and appurtenances belonging to the property hereby conveyed, or in anywise thereto appertaining, and the reversions, remainders, tolls, incomes, rents, issues and profits thereof ; and also all the estate, right, title, interest, property, possession, claim and demand ■what- soever, as well in law as in equity, of the party of the first part of, in and to the same, and any and every part thereof with the appur- tenances ; and also all and every other estate, right, title and interest., property and appurtenances which the said party of tfi". first part may hereafter acquire. COEPOEATION MOET&AGK. 709 Forms — No. 27. To have and to hold the said above-described premises, property, rights, franchises and appurtenances, unto the said party of the second part, and his lawful successor or successors, forever. But in trust, nevertheless, for the benefit, security and protection of the persons and corporations, firms and partnerships who may be or become holders of the aforesaid bonds and interest coupons, or any or either of them, and for enforcing the payment thereof, when pj,yable, according to the true intent and meaning of the stipula- tions of this mortgage or deed of trust, and of said bonds and said interest coupons, and without preference, priority or distinction as to lien or otherwise of any of said bonds over any of the others, by reason of priority in the time of the issue or negotiation thereof, or otherwise ; provided, however, and these presents are upon the express condition, that if the party of the first part, its successors or assigns, shall well and truly pay, or cause to be paid, unto the holders of the bonds to be issued hereunder, the principal and interest to become due thereon to said holders at the times and in the manner stipulated in said bonds and in said interest coupons according to the true intent and meaning thereof, and shall well and truly keep, observe and perform all and singular the covenants, promises and conditions in the said bonds hereby secured and in this indenture expressed to be kept, observed ^.nd performed by or on the part of the said party of the first part, then these prfesents and the estate and right thereby granted shall cease, determine and be void, otherwise to remain in full force. And it is hereby expressly covenanted and agreed, by and between the parties hereto, and the company, for itself, its successors and assigns, doth hereby covenant and agree, and the trustee covenanting for himself, his successor or successors in the trust hereby created, with and on behalf of the respective persons, corporations, firms and partnerships who shall hold any of said bonds or coupons, that the further trusts, uses, purposes, conditions and covenants upon which the said property and franchises hereby mortgaged and conveyed are to be held by the trustee and subject to which the said bonds secured hereby are to be issued and to be held by each and every holder thereof, are as follows, that is to say : First. This mortgage or deed of trust is to be a continuing lien to secure the full and final payment of the principal and interest 710 CoEPOEATioN Mortgage. Forms — No. 27. of all bonds which may from time to time be issued and negotiated under the same, but so that the total aggregate amount of said bonds so issued and negotiated shall not exceed $ , and to be issued upon the terms and of the denominations, and to mature and become payable in the manner and at the place and time or times hereinbefore stated, with interest payable as so stated. Second. The coupon bonds and registered bonds intended to be ■ secured hereby shall, from time to time, be executed by the company and delivered to the trustee, to be certified and delivered by him, and only such of said bonds as shall be so certified by the trustee, by signing the certificate indorsed thereon, shall be secured by this mortgage or deed of trust or bo entitled to any lien or benefit thereunder ; and such certificate of the trustee shall be conclusive evidence that the bonds so certified have been duly issued hereunder and are entitled to the benefit of the trust hereby created. Third. The Company covenants and agrees that it will fully and entirely pay off and satisfy the whole of said bonds to be issued hereunder, principal and interest, according to the terms thereof, without delay and without deduction from either said principal or interest for any taxes, assessments and govern- mental or other charges now or hereafter imposed upon the said bonds or any interest thereon, either by the United States, or by any State, county or municipal authority, which the Com- pany may be required to deduct therefrom. Fourth. Until default shall bo made in the payment of the principal or interest of any of the bonds hereby secured, or any part thereof, as and when the same shall become due and payable, or in the performance or observance of any condition, covenant, agreement or requirement of said bonds or of this mortgage or deed of trust, the trustee shall permit and suffer the Com- pany, its successors and assigns to possess, operate and enjoy the real and personal property hereby mortgaged, with the appurte- nances thereunto belonging, in any manner not inconsistent with these presents, and to receive and use the tolls, incomes, rents, issues and profits thereof. F'fth. "When and as the interest coupons annexed or to be annexed to the bonds secured hereby mature and are paid by CoEPOEATION MOETGAQE. 711 Forms — No. 27. the Company or by any person or corporation for it or on its behalf, they shall be canceled. All coupons maturing before the delivery of bonds by the party of the second part shall be cut off and canceled by the party of the second part before the delivery of such bonds. Sixth. The Company covenants and agrees that it shall and will, from time to time, pay and, discharge, before the same shall fall into arrears, all taxes, water rates, assessments and governmental charges, lawfully imposed upon the franchises and lands, and other hereby mortgaged premises, or upon any part thereof, the lien of which might or could be held to be superior to the lien hereof, and will pay and discharge all claims of every kind and nature which may hereafter become a lien upon the hereby mortgaged premises, or any part thereof, prior to the lien hereof, so that the priority of this mortgage may be duly preserved, and will keep said mortgaged premises in good order and repair and sliall not, and will not, create or suffer to be created any mechanics', laborers' or qther lien or charge whatsoever upon the mortgaged premises or any part thereof, which might or could be prior to the lien of these presents, or do or suffer any matter or thing whereby the. lien of these presents might or could bo impaired, until the bonds hereby secured, with all interest accrued thereon shall be fully paid and satisfied. Seventh. The Company further covenants and agrees that it shall and will at all times, until said bonds, hereby secured, with all interest accrued thereon, shall be fully paid and satisfied, keep such parts of the said mortgaged premises or property as are liable to be destroyed or injured by fire, insured against loss by fire in some solvent fire insurance company or companies authorized to transact business in the State of New York, and approved by the , trustee, to an amount equal to the insurable value of said property, payable in case of loss to the trustee ; and all moneys collected from such insurance shall be held by tbe trustee for the further security of the bondholders hereunder until the Company shall, after the fire, have applied an equal sum of money to the' recon- struction or repair of the part of the premises destroyed or injured, or to the erection of other permanent improvements upon such 712 CoRPOEATioN Mortgage. Forms — No. 27. mortgaged premises ; wherenpon from such insurance moneys held hy the trustee there shall be paid to the said Company, from time to time, an amount equal to the amount so applied by it, after the fire, to such reconstruction, repair or erection. EightJi. The said Company shall and will, from time to lime during the continuance of this trust and mortgage, make,, execute and deliver all such further instruments and conveyances as may be necessary to vest in said trustee, arid his successor or suc- cessors, the within described and all subsequently acquired property and rights of property to facilitate the execution of said trust. Ninth. It is further covenanted and agreed that the personal property hereinbefore described and hereby conveyed, or intended 60 to be, shall be real estate for all the purposes of this instrument, and shall be held and taken to be fixtures and appurtenances of the mortgaged premises, and as a part thereof, and are to be used and sold therewith and not separate therefrom, except as herein expressly provided. Tenth. The said Company shall be permitted to alter, remove, sell or dispose of any buildings, fixtures, machinery or other appliances upon the mortgaged premises which cannot be advan- tageously used in the judicious operation and management of the business of said company, provided that no such sale shall be made if it exceeds the sum of $ , unless the written assent of the trustee shall have first been obtained, and provided always that the said Company shall, and it hereby agrees that in such case it will, replace any buildings, fixtures, machinery or other appli- ances removed, sold, or otherwise disposed of, by acquirin]g, subject to this mortgage, other real estate, or placing upon the mortgaged property, subject to this mortgage, other buildings, fixtures, machinery or other appliances equal in value to the value of the property so removed, sold, or otherwise disposed of, or by paying to the trustee the appraised value of such property, and any sum so received by the trustee shall, upon request of said Com- pany, be iuvestsd in bonds secured by this mortgage, or in bonds, mortgages or securities authorized by law for the investment of funds of savings banks in the State of New York, which bonds, mortgages or securities shall be held for the further security of the ■ CoEPOEATioN Mortgage. 713 Forms — No. 27. bonds secured by this mortgage ; but until default in the payment of the principal or interest of the bonds secured hereby, or some part thereof, the interest and income of said bonds, mortgages or securities shall be paid to the Company. Eleventh. In case default shall be made in the payment of any interest on any of said bonds secured hereby, as and when such interest shall become due and secured, such default shall continue for months, or in case default shall be made in the payment of the principal of any of said bonds when the same shall mature or otherwise become payable, then, and in every such case, the trustee may, and upon the request of the holders of in interest of tlie bonds liereby secured and then outstanding, by an instrument or concurrent instruments in writing, signed by them or by their attorneys in fact duly authorized for that purpose, shall, with or without entry, sell all the premises, estate, property, rights and franchises liereby conveyed, or so intended to be, at public auction at , or other suitable place in the city of after giving notice of such sale as required by law, and also notice by publication in at least two newspapers published in , at least once a week for consecutive weeks next preceding such sale, and from time to time to adjourn such sale or sales in his discretion, and without further notice to hold such adjourned sale or sales, and upon any sale or sales liereunder to make and deliver to the purchaser and purchasers of the premises, estate, property, rights and franchises so sold a good and sufficient deed or deeds for the same, which sale shall be a perpetual bar, both in law and in equity against the said Company and all persons and corporations lawfully claiming, or to claim by, through or under it, and, upon the making of any such sale, the principal of all the bonds hereby secured and then outstanding shall forthwith become due and pay- able, anything in said bonds to the contrary notwithstanding, and upon the making 'of any sucli sale, the said trustee shall apply the proceeds thereof as follows, to wit : ]. To the payment of the costs and expenses of such sale or sales, including a reasonable compensation to such trustee, his agents, attorneys and counsel, and all expenses, liabilities and advances made and incurred by such trustee in managing and 714 COEPOEATION MOETGAGE. Forms— No. 27. maintaiuing the property hereby conveyed, or intended to be, and all taxes and assessments superior to the lien of these presents. 2. To the payment of the whole amount of principal and interest which shall then be owing or unpaid upon the bonds secured hereby, without any preference or priority whatever, whether the said principal by the tenor of said bonds, be then due or yet to become due ; and in case of the insufficiency of such proceeds to pay in full the whole amount of such principal and interest owing and unpaid upon the said bonds, then to the payment of such principal and interest pro rata, without preference or priority, but ratably, to the aggregate amount of such principal and accrued and iinpaid interest. 3. To pay over the surplus, if any, to whomsoever may be lawfully entitled to receive the same. Twelfth. It is further declared and agreed that the receipt of the trustee, who shall make the sale, hereinbefore authorized, shall be a sufficient discharge to the purcliaser or purchasers at such sale for his or their purchase money ; and such purchaser or purchasers, his or their heirs or assigns, or personal representatives, shall not, after paying such purchase money and receiving such receipt of the trustee therefor, be obliged to see to the application of such purchase money upon or for the trusts or purposes of these presents, or be in anywise answerable for any loss, misapplication or non-application of such purchase money by the trustee. Thirteenth. In case default shall be made in the payment of the principal or interest of any of said bonds when the same shall become due and payable, or in the observance or performance of any covenant or condition in said bonds or herein contained on the part of the party of the first part, and such default shall continue for months, it shall be the duty of, and it is hereby made obHgatory upon the trustee, upon the request in writing of the holders of in interest of said bonds hereby secured and then outstanding, and upon proper indemnification, to proceed forthwith, to enforce the rights of the said trustee and of the bond- holders hereunder by sale or entry, or both, according to such requisition, or by judicial proceedings for such purpose, as he, being CoEPOKATioN Mortgage. 715 Forms — No. 37. advised by counsel learned in the law, shall deem most expedient in the interests of the holders of the bonds secured hereby. Fourteenth. The several remedies granted hereunder shall be cumulative and not exclusive one of the other, and shall be in addition to all other remedies to enforce the lien of these presents. Fifteenth. In case of any default on its part, as aforesaid, tlie party of the first part shall not, and will not, apply for or avail itself of any appraisement, valuation, stay, extension or redemption laws, now existing, or which may hereafter be passed, in order to prevent or hinder the enforcement or foreclosure of this mortgage or the absolute sale of the premises hereby granted free from any right of redeniption, or the final and absolute putting into possession thereof immediately after such sale the purchaser or purchasers thereof, but hereby waives the benefit of all such laws. Sixteenth. Upon the filing of a bill in equity or other commence- ^ment of judicial proceedings to enforce the rights of the trustee or of the bondholders under these presents, the said trustee shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the property hereby mortgaged, and of the earnings, income, rents, issues and profits thereof, pending such proceedings. Seventeenth. Upon payment, wlien due, of all the principal and interest of all the bonds which shall have been issued hereunder, the trustee shall, upon the written request of the Company, forthwith enter satisfaction of this mortgage upon the records, and shall do, make, execute and deliver such deeds, acts, instruments or assurances as may be necessary to vest all the mortgaged premises and property in the said Company, its successors and assigns, free and discharged from the lien of these presents. Eighteenth. It is covenanted and agreed that the trustee shall not be answerable for anything except gross negligence or willful misconduct in the discharge of his duties. And it is further cove- nanted and agreed that the trustee may resign and discharge himself of the trnst hereby created by notice in writing to the Company to be given at least months before such resignation shall take effect. And whenever notice of such 716 COKPOEATION MOETGAGE. Forms — No. 27. resignation is so given or a vacancy in the office of trustee hereunder shall occur, a new trustee shall be appointed as follows : The Company covenants and agrees that it will pay to the trustee hereunder his reasonable fees and expenses in the execution of the trusts hereby created. Lastly. The trustee, party of the second part, hereby accepts the trust hereby created and covenants faithfully to execute the same. In "Witness Whereof, the party of the first part has caused these presents to be signed by its president, and its corporate seal to be hereunto affixed and attested by its secretary, and the party of the second part, in token of his acceptance of the trust and obliga- tions hereby imposed upon him, has signed and sealed the same, the day and year first herein written. C'^";-^",™"] THE COMPANY. By , President. {Signature of Trustee^ [l. s.j Attest : , Secretary. State of New York, | ' ss. : County of , ' On the day of > 189 , before me, the under- signed, a notary public of the State of New York, in and for the county of , persbnally came , known to me to be the secretary of the Company, the corporation described in, and which executed the foregoing mortgage or deed of trust as party of the first part thereto, who being by me duly sworn, did depose and say that he resides in ; that he is the secretary of the Company and knows the corporate seal thereof; that the seal affixed to the foregoing mortgage or deed of trust is tlie corporate seal of the said company and was thereto affixed by order of the board of directors of the said company, and that he signed his name thereto by the like order as secretary of said company ; and further, that deponent is acquainted ■^'"t^ and knows him to be the president of said MoETGAGE Bonds, etc. 717 Forms — No. 28. company ; that the signature of the said , subscribed to the foregoing mortgage or deed of trust, is in the genuine handwriting of the said - ,»and was thereto subscribed by the like order of the said board of directors, and in the presence of said deponent. In "Witness "Whereof, I have hereunto set my hand the day and year first above written. Notary Public, County. \_Add acknowledgment of Trustee^ No. 28. Form of Coupon Bond. IlNrrED States of Ameeica, State of New York. The \ynseH corporate name] Company. First lEortgage Gold Coupon Bond. No.... Know all men bt these presents, that the Company is indebted, and for value received promises to pay to the bearer hereof, or to the registered holder of this bond, if the same be registered, the sum of dollars ($ ) in gold coin of the tTnited States of the present standard of weight and fineness, on the day of ? 18 , at the office of said company, in the city of , with interest at the rate of per c^ent per annum, payable semi-annually at said office, in. like gold coin, on the first days of and in each year, upon surrender of the annexed coupons therefor as they severally mature. * Both the principal and interest of this bond are payable with- out deduction for any United States, State, municipal or other tax or taxes which said Company may be required to pay or deduct therefrom under or by reason of any present or future law, the said company hereby agreeing to pay such tax or taxes. 718 Mortgage Bonds, etc. Forms — No. 28. This bond is one of a series of coupon and registered bonds of the Company, bearing interest at the rate of per cent per annum, issued of to be issued in pursuance of and subject to the terms of the mortgage or deed of trust hereinafter referred to, but so that the aggregate amount of said bonds, both coupon and registered, shall not exceed the total sum of $ . All of said bonds are equally secured by a mortgage or deed of trust, dated ,189 , executed by said Company to of the city of , as trustee, conveying the property and franchises of the Company men- tioned in said mortgage or deed of trast, to which reference is hereby made for a description of the property and franchises mortgaged, and the nature and extent of the security, and the riglits of the holders of said bonds under the same, and the terms and conditions upon which said bonds are issued and secured.* This bond may be registered, in the name of the owner, on the books of the company, such registration to be indorsed hereon, and tliereafter no transfer shall be valid unless made on the books of the company by the registered owner and similarly indorsed hereon, but said bond may again be made payable to bearer by like transfer, and thereafter pass by delivery until again" registered. Notwith- standing such registration the coupons hereon shall remain and be negotiable by delivery and payable to bearer on presentation. This bond shall not become obligatory for any purpose until it shall have been authenticated by the certificate, hereon indorsed, of the trustee under said mortgage or deed of trust. In Witness "Whereof, the Company has caused these presents to be signed by its president or vice-president, and its corporate seal to be hereunto affixed, and to be attested by its secre- tary, and coupons for said interest, with the engraved signature of its treasurer to be attached hereto, this day of , 189 . [""IfaT""] THE COMPANY. By , President. Attest : , Secretary. Mortgage Bonds, etc. 719 Forms — Nos. 29, 80, 31. No. 29. Form of Interest Conpons, of Whicli the First is to be Payable 1, 18 On the first day of , 189 , the Company will pay the bearer, at its office in the city of , $ in gold coin, free from all taxes, being six months' interest then due on its First Mortgage Coupon Bond, No. Treasurer. No. 30. Form of Trustee's Certificate. This bond is one of the series of bonds described in the within mentioned mortgage or deed of trust executed by the Com- pany to the undersigned and duly recorded, and the holder hereof is entitled to the benefit of the trust thereby created. Trustee. No. 31. Form of Begristered Bond. United States of Ameeica. State of New York. The [^insert corporate name] Company. First Mortgage Gold Kegistered Bond. No $ Know all men by these presents, that the Company is indebted, and for value received, promises to pay to or assigns the sum of dollars ($ • ) in gold coin of the United States of the present standard of weight and fineness, on the day of , 19 , at the office of said company in the city , with interest at the rate of per cent per annum, payable semi-annually at said office in like gold coin on the first days of and in each year. \jFollowform 720 Mortgage Bonds, etc. Forms — Nos. 33, 33. of coupon ionds ietween the * *.] This bond is transferable by the holder hereof only in person or by attorney, duly authorized, upon the books of the company at its office in the city of ( This bond shall not become obligatory for any purpose* until it shall ) have been authenticated by the certificate thereon indorsed of the i trustee under said mortgage or deed of trust. In Witness 'Wheeeof, the Company has caused these presents to be signed by its president or vice-president and its corporate seal to be herennto affixed, and to be attested by its secretary, this day of ,189 [corr^ate-] THE COMPANY, By , President. Attest : , Secretary. No. 32. Besolution Authorizing Corporation Note. Kesolved, That the president be and hereby is authorized to make a contract for the purchase of for the use of this corporation, and is hereby authorized in carrying out such purchase to give notes of this corporation to the amount of dollars. No. 33. Promissory Note of Corporation. $ Albany, K Y., ,189 . Four months after date, the {insert name of corporation'] promises to pay to the order of {name of payee], dollars, at the Bank, Albany, N. Y. Value received. THE {insert corporate name] COMPANY, By {signature]. President. Attest : {Signatwre], Secretary, Certificate of Reoeganization. 721 Forms — No. 34. No. 34. Certificate of Incorporation by Purcliasers of the Property and Franciiises of a Stock Corporation. See Stock Corporation Law, § 3. We, the undersigned, a majority of whom are citizens and resi- dents of the State of New York, desiring to become a corporation, pursuant to the provisions of the Stock Corporation Law, and to take and possess the property and franchises of a domestic stock corporation sold as hereinafter stated, do hereby make, acknowledge and file this certificate for that purpose, and certify, as required by section 3 of said law, as follows : That the property and franchises of [insert corporate name'], a domestic stock corporation, organized under chapter of the Laws of 18 , of the State of New York, entitled " An act, etc. [stating title\, -were, on t}ie day of ,189 , duly sold under and by virtue of a judgment or decree of the Supreme Court of said State of New York, rendered in an action in said court between , plaintiffs, and , defendants, dated and entered in, the clerk's ofiice of the county of on the day of , 189 , . The following is a brief description of the property thus sold [Insert description.] That at such sale the undersigned, A B, C D, and E F, became the purchasers of and acquired the property and franchises sold, and have associated with themselves the following persons : [Insert names of associates, if any.] That the name of the new corporation intended to be formed by the filing of this certificate shall be [insert name of compa/ny]. That the maximum amount of its capital stock shall be [insert amount of capital stock], and the number of shares into which the same shall be divided is [insert number of shares],* of which [insert amount^ dollars or [insert numher] shares shall be common stock, and [insert amount] dollars or [insert numier] shares shall be preferred stock. That the rights pertaining to each class shall be as herein specified, to wit : [Miample given.] The preferred stock herein provided for shall be entitled to non-cumulative annual dividends, at the rate of five per cent per 46 722 Ceetificate of Reoeganization. Forms — No. 34. annum, ont of the net earnings of a]j the properties of the new corporation, as and when declared by the board of directors thereof, in preference to any dividend or dividends upon the common stocli ; and after said preferred stock shall have received five per cent per annum, as above provided, the common stock shall be entitled to a dividend for the same year, out of the like net earnings as and when declared hy said directors, up to five per cent, and any funds applicable to dividends in the same year, in excess of the dividends as above provided, shall be divided equally, per share, among the holders of the preferred and common stock, as and when declared by said directors.* That the number of directors who shall manage the affairs of the new corporation shall be [insert number, not less nor more than the number required by law for the old corporation'], and the names and posf-ofiice addresses of the directors for the first year are as follows : Name. Post-offlce Address. AB CD EF ' GH I J KL M N N O PQ That the following plan or agreement was entered into at or previous to such sale in anticipation of the formation of a new corporation, and such purchase was made pursuant to it. [Here insert such plan or agreement, if anyj] In Witness "Whkeeof, we, the undersigned, the said purchasers and their said associates \jf any'] have made this certificate in dupli- cate and have hereunto subscribed our names this day of , 189 . [Signatures of purchasers and associates.'] •If the corporation is to have only one class of stock, omit the matter between the • • , and state that all the stock is to be common stock. CeETIFIOATB of E.EORGANIZATION. 723 Forms — No. 35. State of New York, ) ' ^ ss. : County of . ) On tlie day of , in the year one thousand eight hundred and , before me personally came [insert names of purchasers and associates'], to me known to be the individuals described in, and who executed the foregoing certificate of incor- poration, and severally acknowledged that they executed the same for the uses and purposes therein expressed. Notary Public, County, K T. The number of purchasers and associates executing the above certificate must aggregate not less than the number required by law for the incorporation of the kind of company to be formed by the filing of this certificate. The fees, upon filing this certificate, are: Office of Secretary of State — filing .(except railroads), ten dollars; railroads, twenty-five dollars; recording, fifteen cents per folio. County clerk's office — filing, six cents, recording, ten cents per folio. In addition to such payments an organization tax of one-eighth of one per cent upon the capital stock must be paid to the State Treasurer No, 35. Form of Notice of Election of Directors. See the Stock Corporation Law, § 20, Notice is hereby given that a meeting of the stockholders of [insert name of company] will be held at the office of the covsx- Tpany [state location of ofioe] oa the day of 189 , at o'clock A. M. [or f. m.] for the purpose of electing [insert number'] directors for the ensuing year, and [insert number] inspectors of election to serve at the next annual meeting, and for the transaction of such other business as may properly come before said meeting. Polls will remain open [state length of time] Transfer books will be closed from , 189 , to , 189 . Albany, N. T., , 189 . } 5 ?••••) Directors. 724 Certificate to Change Numbee of Dibectoes. Forms — No. 36. No. 36. Certificate to Increase (or Eednce) Number of Directors. See the Stock Corporation Law, § 31. Ceetificate to Inceease (oe Reduce) the Numbee of Dieectoes op [insert corporate name] Company. We, the undersigned, do hereby certify that the following is a correct transcript of the minutes of proceedings of a meeting of stockholders of the [insert name of corporation'], held pursuant to "the Stock Corporation Law," article 2, section 21, to wit: ,N. Y., , 189... A special meeting of the stockholders of f insert name of corpo- ration], a stock corporation, was held this day at o'clock A. M. [or P. J/]], to determine whether the number of directors shall be increased [or reduced]. Such meeting was held at the office of the company, the usual place of meeting of its directors, on two weeks' notice in writing to each stockholder of record ; such notice having been served per- sonally, or by mail, postage prepaid, directed to each stockholder at his last known post-office address. Pursuant to such notice the meeting was held at the time and place mentioned, stockholders owning more than a majority of the stock of the corporation being present in person or by proxy. Such meeting was duly organized by choosing C. D. as president and A. B. as secretary thereof. The notice of the meeting and proof of the due service and pub- lication thereof were read and filed in the office of the corporation at the time of such meeting. On motion of E. F., duly seconded, the following resolution was offered for adoption : "Eesolved, That the number of directors of [insert name of company] be increased [or reduced] from , the present number, to " Upon a canvass of the votes cast upon said resolution, it was found that stockholders owning shares of the stock of the corpora- Ceetificate to Change Number of Dieectoes. 725 Forms — No. 36. tion, being more than a majority of the stock thereof, voted in favor of said resolution, and stockholders owning shares of stock of the corporation, voted against its adoption. \_0r, No stockholder voted against its adoption, as the case tnay 'be.\ Such resolution was thereuoon declared duly adopted, and the meeting adjourned. In "Witness Whereof, we have made, signed and verified this certificate in duplicate, this day of ,189 C. D., President. A. B., Secretary. State of New York, ) ' > ss. : County of , ) C. D. and A. B., being severally duly sworn, depose and say, and each for himself deposes and says, that he, the said C. D., was the president, and that he, the said A. B., was the secretary, of the meeting of stockholders of {insert name of corporation], held to determine whether the number of directors thereof shall be increased [or reduced] ; and that the foregoing is a correct transcript of the proceedings, of such meeting entered in the minutes of the cor- poration. C. D., President. A. B., Sedretari/. \ Sworn to before me this day of , 189 G. H., Notary Public, County, N. Y. The fees upon filing and recording tlie above certificate are as follows: Office of Secretary of Stale — recording, fifteen cents per folio; county clerk — filing, six Cents; recording, ten cents per folio. 726 Cbetib'icate to Change Number of Dikectors. Forms — Nos. 37, 38. No. 37. Notice to Stockholders of Meeting to Cliange Number of Directors. See the Stock Corporation Law, § 21. To the stockholders of the [insert corporate namel : ISTotice is hereby given that a special meeting of the stockholders of [insert name of corporation'] will be held at the office of the company at No. street, in the city [or village'] of , on the day of , 189 , at o'clock in the noon of that day to determine whether the number of its directors shall be increased [or reduced]. Dated Albany, IST. Y., , 189 . A. B., Secretary of [insert name of corpoi'ation]. No. 38. Proof of Service of Notice. See the Stock Corporation Law, § 21. State of New Yoek, ^ (■ ss. County of A. B., who is upwards of eighteen years of age, being duly sworn, deposes and says, that on the day of 189 he served a notice in writing, of which a true copy is hereto annexed, upon the following persons, stockholders of record of [insert cor- porate tiame], namely : [Name persons served] by delivering to and leaving with each of them personally a copy of said notice. That on the day of , 189 , he served the said notice upon the following persons, stockholders of record of said corpora- tion, namely: [N'ame persons served] by mailing to each of, them a copy of said notice at the post-office in the city [or village] of , inclosed in a sealed envelope and directed to each stock- holder at his last known post-office address, and prepaying the proper postage on each of said envelopes so mailed. A. B Sworn to before me this ) day of , 189 . ) [Signature of nota/ry ] . Ceetificate of Inspectuks, ifixu. 727 Forms— No. 39. No. 39. Certificate of Inspectors of Election. See the Stock Corporation Law, 1 28. "We, the undersigned, inspectors of election of [insert name of corporation'], a stock corporation, duly chosen as such inspectors, do hereby certify as follows : * That a meeting of the stockholders of said corporation was held at , on the day of , 189 , at o'clock, . M., pursuant to due notice. That before entering upon the discharge of our duties, we were severally sworn to faithfully execute the duties of inspectors at such meeting with strict impartiality, and according to the best of our ability, and the oath so taken has been subscribed by us and is hereto annexed. That the result of the vote taken at such meeting for the election of directors of said corporation for the ensuing year was as follows: A. B Votes. CO Yotes. E. F • • • • Votes. That said A. B., C. D. and E. F. having received a plurality of the votes of the stockholders voting at such election for directors, were declared by us duly elected directors of said corporation for the ensuing year. That the result of the vote taken.at such meeting for the election of inspectors of election of said corporation was as follows : . L. M "^otes. -^Q Yotes. E.S ^otes- That said L. M., N. O. and K. S. having received a majority [or plurality, as ly-lawa provide} of all the votes cast for inspectors of election of said corporation, were declared by us duly elected as such. In "Witness "Whereof, we have made and signed this certificate this day of , 189 . [Signatures of inspectors.] 728 Cebtificatk of .JLnspeotobs, kxc. Forms — No. 40. State of New Yoek, [ . r So, • County of . ) On this day of , 189 , before me personally came [names of inspectors], to me known to be the individuals described in and who executed the foregoing certiiicate and severally acknowledged to me that they executed the same. lSi(/nature of JSotary.] No. 40. Oatli of Inspectors to be Annexed to the Foregoing Certificate. See the Stoct Corporation Lav, § 28. State of New York, . BS. County of We, the undersigned inspectors of election, duly appointed to act at the meeting of the stockholders of the [insert name of corpo- ration'], to be held at , on the day of , 189 , being severally duly sworn, do depose and say, and each for himself deposes and says, that lie will faithfully execute the duties of inspector at such meeting with strict impartiality, and according to the best of his ability. Inspectors, ae ) this day of 189 Severally sworn to before me ) Notary, etc. The foregoing certificate, with the oath annexed thereto, must be filed in the ofiSce of the clerls of the county in which the election was held. ^ Stock Book; Annual Kepoet. 729 Forms — Nos. 41, 42. No. 41. Stock-Boob of Stock Corporation. See the Stock Corporation Law, § 29. Stock-Book of the [insert corporate name], Pfesuant to thi? Stock Coepoeation Law of the State op New Yoek. Names of stockholders. Places of reHidence. Nnmber of shares of stock held. Time eacli became owner of shares. Amount paid thereon. > Section 29, aboye referred to, requires the names to be "alphabetically- arranged," hence the pages of the stock-book should bear the letters of the alphabet in successive order, and each entry should be made upon the page bearing the appropriate letter, thus: "John Anderson" on page "A;" "John Brown" on page "B," etc. No. 4S. Annual Report of Stock Corporations, otker than Monied or Railroad Corporations. See the Stock Corporation Law, § 30. Annitai, Eepoet of The [insert corporate name] Company. We, the undersigned, directors [or trustees as the case 7nay he] of [insert nam6 of corporation], a stock corporation, do hereby make a report as of the first day of January, 189 , signed by a majority of the directors [or trustees] thereof, and verified by the oath of tlie president [or vice-president] and treasurer [or secretary], as fol- lows, to wit : 1. The amount of its capital stock is [insert amount] dollars, and the proportion actually issued is [insert amount] dollars. 2. The amount of its debts does not exceed the sum of [innert amount] dollars. 730 Annual "Report. Forms — No. 42. 3. Tlie amount of its assets is at least the sum of {insert ainounf] dollars. In "Witness "W"hekeof, we have made and signed this report in duplicate. Dated, , 189 . Majority of Directors [o'/" trustees as the case may ie]. State of New Yoek, ] ' > ss. : County of , ) [Insert names of president {or vioepresident) and treasurer {or secretary)], being severally duly sworn, each for himself, deposes and says that he, the said [insert name], is the president [or vice- president] of [insert name of comjpany], and that he, the said [insert name], is the treasurer [or secretary] thereof; that the foregoing report is signed by a majority of the directors [or trus- tees] of the said company, and that the same is true to the best of his -knowledge, information and belief. President [or Vice-President]. ) Treasurer [or Secretary]. Sworn to before me this ) day of , 189 . ) [Signature of Nota/ry.] The report should be executed in duplicate, one of which must be filed in the office of the Secretary of State and the other in the office of the clerk of the county in which the principal office of the company is located. No fee is pay- able at the former office. The county clerk's fee is six cents for filing. The report is not required to be published. Heretofore, under the Business Act of 1875, ch. 611 (now repealed), annual reports were filed only in the office of the Secretary of State, while annual reports of corporations organized under the General Manufacturing Act of 1848, ch. 40 (now repealed), and several other acts, were required to be filed only with county clerks, and to be published in a newspaper. In relation to annual reports of railroad companies, see the Railroad Law, §§ 57 and 158, respectively For statutes governing reports to the Comptroller by all corporations liable to direct State taxation, see Taxation. Individital Kepoet by a Dieectok. 731 Forms — No. 43. No. 43. Certificate and Individual Report by a Director or Trustee. See the Stock Corporation Law, § 80. I [insert name\, a director [or trustee] of the {insert name of corporation], a stock corporation organized under the laws of the State of New York, do hereby certify as follows : That I have endeavored to have the annual report of said com- pany made and filed as required by law, and have applied to the officers and directors to have such report so made and filed, but that the officers [or a majority of the directors, or state the/acts as the case may le] of said company have refused and neglected to make and file the same. That I do, therefore, hereby append to this certificate a report containing the items required to be stated in such annual report, so far as they are within my knowledge or are obtainable from sources of information open to me. In Witness "Whkeeof, I have made, signed and verified this certificate. Dated, , K Y., 189 . [Signattire of director or trustee, as the case may he.] State of New Yoek, ) ' >■ ss. : County of , ) [Insert name of director], being duly sworn, says that he is a director of [insert naTne of corporation] ; that the foregoing certi- ficate by him subscribed and the annexed report are true to the best of his knowledge, information and belief. [Signatitre of director.] Sworn to before me this ) day of , 189 . ) [Signature of Notam/.] [Annex here report.] The foregoing ia to be filed in the office of the Secretary of State. No fee is payable. 732 Extension of Business. Forms — No. 44. No. 44. Certificate of Extension of Business. See the Stock Corporation Law, § 33. We, the undersigned, a majority of the directors [or trustees, as the case ma/y he,] of the [insert corporate name'], a stock corpora- tion organized under [state the law], desiring to extend [or alter] its business and powers, pursuant to the provisions of the Stock Corporation Law of the State of New York, do hereby make and file this amended certificate for such purpose, and do certify as follows : That the name of the corporation, whose business and powers are hereby extended [or altered], is [insert corporate name]. That the business for which it was incorporated, and is now car- rying on, is the business of [state same]. That the extension of business, and powers, and rights proposed and intended to be effected by the execution and filing of this cer- tificate, includes the following purposes and powers, to wit : [State extension proposed.] [Insert t/ie remaining recitals of the original certificate, making such changes as to names of directors, etc., as may he necessary to conform to existing facts.] That the aforesaid extension has been duly authorized by a vote of stockholders representing at least three-fifths of the capital stock of said corporation, at a meeting of the stockholders, called for the purpose, in the manner provided in section 45 of the Stock Corpora- tion Law, as more fully appears in a copy of the proceedings of such meeting, verified by the afiidavit of one of the directors present thereat, annexed hereto and filed with this amended certificate. In "Witness Wheeeof, we have made and executed this certi- ficate in duplicate, and have hereunto set our hands this day of , 189 , [Signatures of m,ajority of directors.] Extension of Business. 733 Forms — No. 44. State of "N^ew York, ) ' y ss. : County of . J On this day of , 189 , before me per- sonally came [insert names], to me severally known to be tbe persons described in and who mad^ and signed the foregoing certificate and severally duly acknowledged to me that >they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notary.] Copt of Pkoceedings of Meeting, to bb Attached to the Foee- GOING CeETIFCATB. Minutes of a special meeting of the stockholders of the [insert corporate name] Company, held at the oflB.ce of the company at , on , 18 , at o'clock in the noon, for the purpose of considering a proposition to extend [or alter] the business and purposes and rights of the corporation. ' The meeting having been called to order, stockholders appeared in person or by proxy, representing [insert number] shares of 'stock, being at least three-fifths of the capital stock of said corpora- tion, and organized by electing and , directors of the corporation, as chairman and secretary, respectively, of said meeting. The chairman [or secretary] read the notice of the meeting, which notice stated the time, place and object thereof and the pro- posed extension [or alteration] of business and powers and rights of the corporation, and also read the proof that such notice was published once a week, for at least two successive weeks, in [insert name of paper], a newspaper in the cotmty of , the county where the principal business oflBce of the corporation is located, and that a copy of such notice was duly mailed to each stockholder at his last known post-oflSce address at least three weeks before the meeting. IJpon motion, duly seconded, a vote was taken upon the follow- ing resolution : Eesolved, That the business and powers and rights of the [insert corporate namie] Company "be extended as follows : [State same] and that the board of directors of this corporation be author- 734 Extension of Business. Forms — No. 44. ized and instructed to execute and file proper certificates, as pro- vided by law, and to take such other steps as may be necessary to carry out and effect the object and purposes of this resolution. Thereupon, stockholders representing [insert number] shares of stock, being at least three-fifths of the capital stock of said corpora- tion, voted in favor of such resolution, and no stockholder voted against its adoption, and thereupon such resolution was declared duly adopted and the meeting adjourned. State of New ToeKj ) A. B., Chairman. C. D., Secretary. County of C. D., being duly sworn, says that he is one of the directors of the [insert corporate name'], and was present at a special meeting of the stockholders of said company, held at its office, at , on , 1893, , at o'clock in the fore- noon, and that the foregoing is a true copy of the proceedings of such special meeting and of the whole thereof. CD. Sworn to before me this | day of , 18 . ) [Signature of Notary.] Upon filing and recording the foregoing amended certificate in the oflSce of the Secretary of State the fees are fifteen cents per folio for recording. At the county clerk's office the fees are : Filing, six cents; recording, ten cents per folio. Notice of Meeting. To the stockholders of [insert corporate name] ; Notice is hereby given that a special meeting of the stockholders of said corporation will be held at , in the of on the day of , 189 , at o'clock M., to act upon a proposition to authorize an extension of the business, and power, and rights of said corporation, so as to include [insert same], in addition to those now set forth in the certificate of incorporation of said corporation. Dated, ,N. Y., ,18 A. B., CD., E. F., Majority of Directors. Ceetificate or Stock. 735 Forms — No. 45. State of New York, County of , being duly sworn, says, that on the day of , 189 J he deposited in the post-office , at the city of , a copy of the annexed notice to stockholders of the {insert corporate name'], contained in a duly post-paid wrapper directed to each stockholder of said company at his last-known post-office address. [Sigrnature.] Sworn to before me this ) day of ,189 . I [Signature oj Notary. "l [Annex here affidavit of jpuhUcation.'] No. 45. Certificate of Stock. Bee the Stock Corporation Law, § 40. No No. of shares Par value of each $. The Company. (Incorporated under the Laws of the State of New York.) This is to certify that ' is the owner of shares of the capital stock of The Company, transferable only on the books of the company by the holder thereof, in person or by attorney, on the surrender of this certificate. In Witness Wheeeof, the said company has caused its cor- porate seal to be affixed hereto and this certificate to [for^ra'«] be signed by its president or vice-president and secretary or treasurer. Albany, N. T., ,189 . , President [or Vice-Preaidenf], , Secretary [or Treasurer"]. 736 Tjransfek of and Sobsceiption to Stock. Forms — Nos. 46,47. On the reverse side of the certificate of stock should be printed a blank transfer, as follows : For value received, I hereby sell, assign and transfer unto shares of the within mentioned stock, and do hereby constitute and appoint my true and lawful attorney to transfer the same on the books of the company. "Witness my hand and seal, this day of 189 . [Seal.] Witness : Tte provisions of section 26 of the Stock Corporation Law may also be printed on the back of each certificate of stock, if desired. No. 46. Form of Demand for Transfer of Stock. See the Stock Corporation Law, § 29. To the Company, and its directors, oflScers and agents : You will take notice that I am the legal owner of certificate number for shares of stock of the said Company, and that said certificate was issued to , and has been duly transferred by him to me, said original certificate and transfer being herewith exhibited to you. I hereby offer to surrender to you said certificate on receiving a new certificate for said shares of stock, and do demand that you forthwith transfer said shares to me on the books of said Company, and issue to me a new certificate therefor in my name. [Signature.] Dated, Albany, K T., , 18 . No. 47. Form of Subscription to Stock. See the Stock Corporation Law, § 41, We, the undersigned, hereby subscribe hereto our respective names, post-office addresses and the number of shares of stock, at the par value of dollars ($ ) each, which we respec- tively agree to take in [insert corporate imme\ a proposed cor- poration to be organized under the laws of the State of New York, Inokease or Keduction of Capital Stock. 737 Forms — No. 48. with a capital stock of $ , consisting of shares, and we hereby severally agree to pay for such stock, at such times and in such installments as the board of directors of such company may by resolution require. No. of shares Name of subscriber. Post-offlce address. Bubscribed. No. 48. Certificate of Increase [or Reduction] of Capital Stock. See the Stock Corporation Law, §§ 44, 45, 46, "We, the undersigned, A. B., chairman, and C. D., secretary, respectively, of a special meeting of the stockholders of [insert corporate ncmie], a domestic stock corporation, held for the pur- pose of increasing [or reducing] its capital stock, do hereby certify : That prior to such meeting a notice, stating the time, place and object thereof, and the amount of the increase [or reduction'] pro- posed, signed by a majority of the directors, was published once a week, for at least two successive weeks, in [insert name of paper], a newspaper in the county where the principal business office of such corporation is located. That the following is a true copy of such notice : [Insert here copy of notioe as given in Form No. 49.] That a copy of such notice was also personally served upon or duly mailed, postage prepaid, to each stockholder' of such corpora- tion, at his last known post-office address, at least three weeks before the meeting. That at the time and place specified in such notice, stockholders appeared in person or by proxy, in numbers representing at least a majority of all the shares of stock of such corporation and organ- ized said meeting by choosing from their number the undersigned, A. B., as chairman, and C. D., as secretary thereof. That the notice of the meeting and proof of the proper publish- ing and mailing thereof was presented. That, upon motion, a vote was then taken of those present in person or by proxy upon the following resolution : 47 738 Increase ok Reduction of Capital Stock. Forms — No. 48. Resolved, That the capital stock of [insert name of company], be increased [or reduced] from the present amount thereof, to wit : [insert amount] dollars, consisting of [insert number] shares of the par value of [insert par value] dollars each, to [insert amount to which stock is increased or reduced] dollars, to consist of [insert numier] shares of the par value of [insert par value] dollars each. That stockholders owning [insert number] shares of stock, being at least a majority of all the stock of the corporation, voted in' favor of such resolution ; and stockholders owning [insert number] shares of stock voted against its adoption. [Or, "and no stock- holder voted against its adoption" if such be the case.] Tliat a sufficient number of votes having been cast in favor of such increase [or reduction], such resolution was declared duly adopted. That the amount of capital of said corporation actually paid m is [iTisert amount] dollars, and the whole amount of the debts and liabilities of such corporation is [insert amount] dollars ; and that the amount to which the capital stock of said corporation is increased [or reduced] is [insert amount] dollars. In "Witness "Whekeof, we have made, signed, verified and acknowledged this certificate in duplicate. Dated, this day of ,18. A. B., Chairman. C. D., Secretary. State of New York, ) ' )• ss. : County of , ) A. B., chairman, and C. D., secretary, respectively, of the afore said meeting, being severally duly sworn, do depose and say, and each for himself deposes and says, that he has read the foregoing certificate subscribed by him, and knows its contents, and that the same is true. A. B., Chairman. C. D., Secretary. Sworn to before me, this ) day of 189 . i E.F., Notary Public, County, N. T. Increase oe Reduction of Capital Stock. 739 I'orms — No. 49. State of New Yoek, ) y ss. : County of . ) On this day of 189 , before me personally came A. B. and C. D., to me personally known to be the persons described in and who made, signed and verified the foregoing certificate and severally duly acknowledged to me that they made, signed and verified the same for the uses and purposes therein set forth. E. F., Notary Puilic, County, N. Y. At the office of the Secretary of State the fee upon the foregoing certificate is fifteen cents for each folio of 100 words contained therein. At the county clerk's office the fees are: Filing, six cents; recordins, ten cents per folio. In addition to such fees, in case of an increase of capital stock, there must be forwarded to the State Treasurer (not to the Secretary of State) one-eighth of one per cent upon the amount of such increase, simultaneously with the transmission of the certi- ficate to the Secretary of State. Certificates of reduction of capital stock of other corporations than railroads must have endorsed thereon the approval of the State Comptroller, and such cer- tificates should be sent to the Comptroller's office for approval prior to their pre- sentation for filing in the ofllce of the Secretary of State, or of any county clerk. Proper information in the form of An affidavit must be furnished the Comptroller to enable him to endorse upon the certificate the statutory approval. For such purpose a form of affidavit, designed to contain the essential proof and to meet the requirements of the Comptroller's office has been prepared. See form No. 50. In the case of any inci;ease or reductipn of capital stock of a railroad corpora- tion, the certificate of such increase or reduction must have indorsed thereon the approval of the Board of Railroad Commissioners. No form of proof to be pre- sented to obtain such approval of the railroad commissioners is inserted here, as the requirements of such board in relation thereto are subject to such alterations and amendments as the exigencies of each application may require. No. 49. Notice of Meeting to Increase or Seduce Capital Stock. Bee the Stock Corporation Law, § 45. ^Notice to Stockholdbes. ,]Sr. Y., ,189.. A special meeting of the stockholders of. \in8ert name of company'] will be held on the day of , 189 , TiO IxCEEASE OE REDUCTION OF CaPITAL StOCK. Forms — No. 50. at o'clock p. M. [or a. m.J at the office of such company, at No. street, in the city [or village] of , for the purpose of voting upon a proposition to increase [or reduce] its capital stock from [insert amounc of present capital s^oci'], con- sisting of [insert number of shares] shares of the par valu» of [insert par value] dollars each, to [insert amount to which stock is proposed to ie increased or reduced] dollars, to consist of [insert number of share/t] shares of the par value of [insert par value] dollars each. A. B., C. D., E. F., I. J., K. L., A Majority of the Directors. No. 50. Proof for the State Comptroller's Information upon an Application for ApproTal of a Reduction of Capital Stock. See the Stock Corporation Law, § 46. State of New Yoek, ) ^ ' > ss. : County of . ) A. B. and C. D., treasurer and secretary, respectively, of [insert name of company], being severally duly sworn, do depose and say, and each for himself deposes and says : That the said A. B. is the treasurer of [insert name of company], and the. said C. D. is the secretary thereof ; that such company is a domestic stock corpora- tion other than a railroad corporation, or a monied corporation ; that a capital of [insert amount to which the capital stock is reduced] dollars is sufficient for the proper purposes of the corpora- tion, and is in excess of its debts and liabilities. A. B., Treasurer. ! ^■"^'°"'"^- E. F., Sworn to before me, this day of 189 Nota/ry Public, County, JV. Y. Cbetifioate of Pbefeeked Stooe. 741 Forms — No. 51. The foregoing affidavit should not be attached to the other papers, as it is to be retained by the Comptroller for filing in his office. The fee for each certificate of approval furnished by the Comptroller is one dollar, as provided in the Executive Law (L. 1892, ch. 683), § 32, subd. 3. No form of certificate of approval is appended here as a printed blank prepared by the comptroller is used by that official. No. 51. Certifleate of Preferred Stock. See the Stock Corporation Law. No Shares .... The Company. (Incorporated under the Laws of the State of New York.) This is to certify that is entitled to shares of the par value of dollars per share of the Preferred Capital Stock of the Company, transferable only on the books of the company by the holder thereof, in person oT by attorney, on the surrender of this certificate. The holder of this certificate is entitled to non-cumulative [or eumulative] dividends in each year at the rate of per cent, per annum, payable put of the net earnings of the said company for such year in preference to any dividend on its common capital stock. In "Witness "Whereof, the said company has caused its corporate seal to be affixed hereto and this certificate to be L'^£Si.'""] signed by its president or vice-president and secretary or treasurer. Albany, K Y., ,189 . , President [or Yioe- President]. , , Secretary [or Treasv/rer'[. 742 Consent to Issue of Peefeeeed Stock. Forms — No. 53. No. 52. Unanimous Consent to Issue of Preferred Stock. See the Stock Corporation Law, § 47. We, the undersigned, stockholders of the {insert corporate name] Company, a stock corporation organized and existing under the laws of the State of N"ew York, and owning the number of shares of the capital stock of such corporation set opposite our respective names, hereunto subscribed by each of us, do hereby consent and agree to a classification of the capital stock of such corporation into preferred and common stock, so that [insert amount] dollars of the capital stock, consisting of shares of the par value of dollars each, shall be and become preferred stock and shall be entitled to receive semi-annually [or as the case may ie] all net earnings of the corporation determined and declared as dividends, but not exceeding per cent per annum in each fiscal year, before any dividend shall be set apart or paid upon the common stock ; but such dividends upon the preferred stock shall not be cumulative [or as the case may be], and such preferred stock shall not be entitled to participate in any other or additional earn- ings or profits, and shall not in any other or different respect entitle the owner thereof to any preference in the property, assets or management of said corporation. In "Witness Wheeeof, we have signed this consent and set opposite our respective names the number of shares of stock owned by each of us. Dated, , 189 A. B., C. D., E. F., , . shares. , . shares. , . shares. State of New Toek, ) ^ ' ^ ss. : County of , ) On thif day of , 189 , before me personally came A. B., C. D. and E. F., to me personally known, and known to me to be the persons described in and who signed the foregoing consent, and severally duly acknowledged to me that they made and signed the same for the uses and purposes therein set forth. [Signature of Notary.] Increasing or Eeduoing Number of Shares. 743 Forms — No. 53. State of New York, I ' ( ss. : County of , ) \Insert name], being duly sworn, deposes and says tliat he is the treasurer of the [insert corjporate name] Company, the corjDoration mentioned and described in the foregoing consent, and that he is the custodian of the stock -book of said corporation ; that the persons who have subscribed to the foregoing consent, and acknowledged the execution thereof, are the owners upon the books of said corpora- tion of the entire capital stock of said corporation. \Signature.\ Sworn to before me this day of ,18 . {^Signature of Notary.] No. 53. Certificate Increasing' [or Reducing] Nnmber of Shares. See the Stock Corporation Law, § 56. "We, the undersigned,' chairman and secretary, respectiyely, of a special meeting of the stockholders of [insert corporate name], a domestic stock corporation, lield for the purpose of increasing [or reducing] the nunaber of shares into which its capital stock is divided, without increasing [or reducing] the amount of capital stock of such corporation, do hereby certify : That prior to such meeting a notice stating the time, place and object thereof, and the increase [or reduction] of the number of shares proposed, signed by a majority of the directors, was pub- lished once a week, for at least two successive weeks, in [insert name of paper \, a newspaper in the county where the principal business office of such corporation is located. That the following is a true copy of such notice : Notice to Stockholders : A special meeting of the stockholders of the [insert corporate name] Company, will be held at the office of the Company at No. street, in the city [or village] of , on the day of , 1 8 , at o'clock, m., for the purpose of considering and voting upon a proposition to increase [or reduce] the number of shares into which the capital 74:4 Increasing ok Reducing !N"umbee of Shakes. Forms — Xo. 53. stock shall be divided, without increasing [^or reducing] the amount of such capital stock, so that hereafter such capital stock shall be divided into shares of the par value of dollars each. Dated Albany, N. Y., 18 A. B., C. D., Majority of Directors. That a copy of such notice was also personally served upon or duly mailed, postage prepaid, to each stockholder of such corpora- tion at his last known post-office address, at least three weeks before the meeting. That at the time and place specified in such notice, stockholders appeared in person or by proxy, in numbers representing at least two-thirds of all the shares of stock of the corporation, and organ- ized by choosing from their number the undersigned A. B., as chairman, and C. D., as secretary thereof. That the notice of the meeting and proof of the proper publish- ing and mailing thereof was presented. That, upon motion, a vote was then taken of those present in person or by proxy upon the following resolution : Resolved, That the number of shares into the capital stock of the [insert corporate name] Company is divided be increased [or reduced] from the present number, to wit : shares of the par value of dollars each, to the following number, to wit : shares of the par value of dollars each. That stockholders owning [insert number] shares of stock, being at least two-thirds of all the stock of the corporation, voted in favor of such resolution ; and Btockholders owning [insert number] shares of stock voted against its adoption. [Or, " and no stockholder 'ioted agahist its adoption" as the case rnay be.] That a sufficient number of votes having been cast in favor of such resolution, the same was declared duly adopted, and the meet- ing adjourned. In "Witness "Whekeof, we have made, signed, verified and acknowledged this certificate in duplicate. Dated this day of 18 A. B.J Chairman. C. D., Secretary. Business Coepoeations ; Inooepoeation of. 745 Forms — No. 54. .State of New Yoek, ) ' > ss. : County of , ) A. B., chairman, and (J. D., secretary, respectively, of the afore- said meeting, being severally duly sworn, do depose and say, each for himself, that he has read the foregoing certificate subscribed by him, and knows its contents, and that the same is true. [Signatures of officers.] Sworn to before me this day of , 18 [Signature of Nota/ry.\ State of New Toek, County of , On this day of 18 , before me personally came A. B. and CD. to me personally known to be the persons described in and who made, signed and verified the foregoing certificate and severally duly acknowledged to me that they made, signed and verified the same. [Signature of Notary.'] No. 54. Certificate of Incorporation of a Business Corporation. See the Business Corporations Law, § 3. We, the undersigned, all being persons of full age, and at least two-thirds being citizens of the United States, and at least one of us a resident of the State of New York, desiring to form a corpora- tion, pursuant to the provisions of the Business Corporations Law of the State of New York, do hereby make, sign, acknowledge and file this certificate for that purpose, as follows : First. The name of the proposed corporation is [insert cor- porate name.] Second. The purposes for which it is to be formed are [insert statement of objects.] Third. The amount of the capital stock is [insert the amount] dollars. [If any portion he jyreftrred stock state the preferences.] ''^46 Business CoEPOEATroNs ; Incokpoeation of^ Form — No. 54. Fourth. The number of shares of which the capital stock shall consist is \the number fixed must he such that the par valiie shall not he less than five dollars nor more than one hundred dollars each], and the amount of capital with which said corporation will .l)3gin business is [state a definite ' a/mount, hut not less than five hundred dollars.] Fifth. Its principal business office is to be located in the \_city, village or towA] of , in the county of , State of New York. Sixth. Its duration is to be [insert number of years]. Seventh. The number of its directors is to be [insert a definite number, between the Undts of three and thirteen]. Eighth. The names and post-office addresses of the directors for the first year are as follows : Names. Post office addresses. Ninth. The post-office addresses of the subscribers and a state- ment of the number of shares of stock which each agrees to take in the. corporation are as follows : Names. Post-office addressee. Number of shares. In "Witness Wheeeof, we have made, signed, acknowledged and filed this certificate in duplicate. Dated, this day of , . , 189 . [Signatures of incorporators, not less than three i/n number.] State of New Yoek, ) ^ , ' }• ss. : County of , ) On this day of 189 , before me personally came [insert names of subscribers to certificate], to me personally known to be the persons described in and who made and signed the foregoing certificate and severally duly acknowledged to me that Business Coepoeations ; Inooepoeation of. 747 Forms — Nos. 55, 56. they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notary.'] Upon filing and recording the certificate of incorporation in the office of the Secretary of State, the fees to be paid are: Filing, ten dollars; recording, fifteen cents per folio. Upon filing and recording a certified copy or duplicate original thereof in the office of the county clerk, the fees to be paid are: Filing, six cents, recording, ten cents per folio. In addition to such payments an organization tax of one-eighth of one per cent upon the amount of the capital stock must be paid to the State Treasurer. See the statutes regulating such payments and further information relative thereto, ante. No, 55. Certificate of Incorporation of a Fall Liability Basiness Corporation. See the Business Corporations Law, § 6. "We, the undersigned, all being persons of full age, at least two- thirds of whom are citizens of the United States, and one of us a resident of the State of ]S"ew York, desiring to form a full liability corporation, pursuant to the provisions of the Business Corporations Law of the State of New York, do hereby make, sign, acknowledge and file this certificate for that purpose, as follows : First; The name of the proposed corporation is to be linseri corporate name} Company. [Here insert remammg recitals of form Wo. 54. J As to fees payable upon filing and recording the certificates of incorporation, see notes to Form No. 54. No. 56. Short Statement for Non-cumulatire Preferred Stock. The preferred stock of said company shall be entitled to a divi- dend of not exceeding five per cent in any one year, which dividend shall be non-cumulative and payable out of the net earnings before any dividend is paid upon the common stock. 748 Business Coepoeations ; Eeincoepoeation. Forms — No. 57. No. 57. Certificate for Beincorporation of an Existing Business Corporation. See the Business Corporations Law; § 4. We, the undersigned, A. B., chairman, and 0. D., secretary, respectively, of a special meeting of the stockholders of [insert corporate name\, a corporation heretofore organized, held for the purpose of voting upon a proposition to reincorporate pursuant to the Business Corporations Law, do hereby certify : That such corporation was organized for {here insert the objects as set forth in its certificate of incorporation]. That the directors of the corporation called a meeting of the stockholders thereof by publishing a notice, stating the time, place and object of the meeting, signed by at least a majority of them, in the [insert name of paper], a newspaper published in the city [or village] of , in the county of , being the county in which the principal business office of such corporation is situated, for at least three successive weeks, and by serving upon each stock- holder at least three weeks before such meeting a copy of such notice, either personally or by depositing it in the post-office, postage prepaid, addressed to such stockholder at his last known post-office address. That a copy of said notice is hereto annexed, marked " Exhibit A," and is hereby made a part of this certificate. That at the time and place specified in such notice stockholders appeared in person or by proxy representing more than a majority of all the stock of the corporation. That the meeting was then organized by such stockholders by choosing the undersigned A. B., one of the directors, as chairman, and the undersigned C. D., a stockholder, as secretary. That a vote was then taken of those present in person or by proxy upon the proposition to reincorporate under the Business Corporations Law. That the following resolution was offered : " Resolved, That [insert corporate name] be reincorporated under the provisions of the Business Corporations Law of the State of New York, and that the officers of this meeting be empowered Business Corpokations ; Reincorpokation. 749 Forms— No. 67. mid directed to execute proper certificates of such reincorporation and lile the same, iu the manner prescribed by law." That votes representing a majority of all the stock of said corpora- tion were thereupon cast in favor of such resolution, to wit : Votes representing shares of stock. That such resolution was thereupon declared duly adopted. That we further certify as follows, to wit : [Here insert the recitals as contained in Form I^o. 54.] In "Witness "Whereof, we, the undersigned, the chairman and secretary, respectively, of said meeting of stockholders, hereby execute this certificate in duplicate, and hereby certify that the foregoing is a true and correct certificate of proceedings of said meeting. Dated, this day of , 189 . , Chairman. , Secretary. State of New York, . ss. : County of , chairman, and , secretary, being severally duly sworn, do depose and say, and each for himself deposes and says, that he has read the foregoing certificate of pro- ceedings of the meeting of stockholders of the [insert name of corporation], subscribed by him, and knows the contents thereof, and that such certificate is correct and true. , Chairman. , Secretary. Severally sworn to before me, ) this day of ,189 . ) [Signature of Notamf^ 750 Business Coepoeations ; Payment One-half Capital. Forms — No. 58. State of New Toek, ] ' [■ ss. : County of , ' On this day of , 189 , before me personally came [insert names of chairman and secretary], to me severally known to be the persons described in and who executed the forego- ing certificate, and severally acknowledged to me that they executed the same. [Signataire of Notary. \ " Exhibit A," Kefeeeed to in the Foeegoing Ceetificate. Notice to Stookholdees. A meeting of the stockholders of the [insert corporate name] to vote upon a proposition to reincorporate such company under the provisions of the Business Corporations Law, will be held on the day of , 189 , at o'clock in the noon, at the oflSce of said company at No. street, in the city [or village] of , in the county of Dated, , 189 . [Insert names of directors, signing notice."] The payments to be made at the office of the Secretary of State upon the pre- ceding certificate are ten dollars for filing and fifteen cents per folio for each 100 words contained therein for recording. A filing fee of six cents and recording fees of ten cents per folio are payable at the office of the county clerk. In addition to such payments one-eighth of one per cent organization tax must be paid to the State Treasurer. See statutes relative to such payments. No. 58. Certificate of Payment of One-half Capital Stock of a Business Corpora- tion. See the Businesss Corporations Law, § 6. "We, the undersigned, being a majority of the directors of the [insert corporate name], a corporation formed under the provisions Business Coepoeations ; Payment One-half Capital. 751 Forms — No. 58. of the Business Corporations Law of the State of New York, do hereby certify : That the amount of the capital stock of said corporation is [insert amount] dollars, and that one-half thereof has been paid in. In "Witness Wheeeof, we have made, signed and acknowledged this certificate in duplicate, and have hereunto set our hands this day of , 189 . [Signatures of majority of directors.] State of New Yoek, ^ County of On this day of , 189 , before me personally came [name directors signing certificate] to me personally known and known to me to be the persons described in and who executed the foregoing certificate, and severally acknowledged to me that they executed the same. [Signature of JVbtary.] State of New Yoek, ) . County of , ) [Insert' names of president {or vice-president) and secretary {or treasurer)], being severally duly sworn, each for himself, deposes and says, that he, the said is the president [or vice- president] of the [insert corporate name], and that he, the said is the secretary [or treasurer] thereof, and that the statements contained in the foregoing certificate are true. [Signature of President, or Vice-President.] [Signature of Secretary, or Treasurer.] Sworn to before me, this ) day of ,189 . f [Signature of Jfotary,] Upon filing and recording the foregoing certificate the fees are as follows: Office of Secretary of State, a recording fee only of fifteen cents per folio. At the county clerk's office, six cents for filing and ten cents per folio for recording.' 752 Business Coepoeations ; Full Liability Coepoeation. Forms — No. 59. No. 59. Sapplemental Certificate by a Basiness Corporation to Become a Full Liability Corporation. See the Business Corporations Laws, § 6. We, the undersigned, the president and treasurer, respectively, of the [insert name of corporation], a corporation formed under the Business Corporations Law of the State of New York, do hereby certify, pursuant to the provisions of said law, in order that said corporation may become a full liability corporation, as follows : That hereafter said corporation intends to be a full liability cor. poration. That, pursuant to said law, we have annexed hereto a copy of a resolution, adopted by a two-thirds vote of the board of directors of said corporation, and the written consent of all the stockholders of said corporation, authorizing and consenting to the change of said corporation to a full liability corporation, marked, respectively, "Exhibit A" and "Exhibit B." In Witness Wheeeof, we have made, executed and acknowl- edged this certificate in duplicate, and have hereunto set our hands this day of , 189 . , President. , Treasurer. State of New Yoek, ) ' > ss. : County of , I On this day of , 189 , before me personally came [names of president and' treasurer], to me known and known to me to be the persons described in and who executed the fore- going certificate and severally acknowledged to me that they executed the same for the uses and purposes therein mentioned. [Signaimre of Notary.] Exhibit A. " Kesolved, That this board does hereby authorize and consent to the change of the \i71sert corporate name] to a full liability cor- poration." I hereby certify and declare the foregoing to be a true and cor- rect copy of a resolution duly adopted by a two-thirds vote of the Business Coepobations ; Full LiABiLiTr Coepoeation. 753 Porms — No. 59. board of directors of the [inseyt corporate name] at a meeting of said board, held at , on the day of , 1&9 . Exhibit B. Secretary. "We, the undersigned, stockholders of the \insert corporate name], do hereby, severally, give our written consent, authorizing and consenting to the change of said corporation to a full liability corporation. In Witness Wheeeof, vre have hereunto set our hands to this consent in duphcate, and the number of shares of stock owned by each of us in said corporation. Dated, the day of 189 ss.i State of New Yoek, ) County of , ) On this day of A. B., shares. CD., shares. E. F., shares. 189 , before me personally came [insert names'], to me known to be the persons described in and who executed the foregoing consent and severally acknowl- edged to me that they executed the same. [Signature of Notary ^^ State of New Yoek, ) . County of , ) A. B., being duly sworn, deposes and says, that he is the treasurer \pr secreta/ry] of the \im,sert corporate name], the corporation referred to in the foregoing consent, and that he is the custodian of the stock-book of said corporation ; that the persons who have subscribed the foregoing consent are all the stockholders of said corporation, and owners of the entire cp,pital stock thereof. A. B. Sworn to before me this ) day of , 189 . ) [Signature of Notary.] TTpon filing and recording the above certificate the fees payable are as noted un5er form No. 58. 48 '''54 Business Ooeporations ; Consolidation of. Forms — Nos. 60, 01. No. 60. Stockholder's Waiver of Notice of a Meeting'. See the General Corporation Law, § 38. I, the undersigned, a stockholder of tlie Company, herehy admit due and timely service of a notice of which the fore- ffoing is a true copy, and I hereby waive any further notice of the meeting therein mentioned and the lapse of any prescribed period of time, and I do hereby authorize and approve the proposed increase of capital stock of said company from $ to $ (or, as the case maij he). No. 61. Agreement for the Consolidation of Business Corporations. See the Business Corporations Law, §§ 8, 9, 10, 11, 13. This ageeement, made the day of , 189 between the board of directors of {insert corporate name] Company, party of the first part, and the board of directors of [insert corporate name] Company, party of the second part, under the corporate seals of said companies, WITNESSETH : That [insert corporate name] Company, said party of the first part, is a corporation organized under the laws of the State of New York, for the purpose of carrying on the business of [state objects for whicL the corporation was formed]. That [insert corporate name] Company, said party of the second part, is a corporation organized under the laws of the State of New York for the purpose of carrying on the business of [staU objects for which the corporation was formed]. That, in consideration of the mutual covenants and agreements herein contained, the said parties hereto, do hereby merge and con- solidate such corporations into a single corporation under and in pursuance of the laws of the State of New York, in such case made and provided, and by these presents, Thbt do hereby COVENANT AND AGEBE upou and prescribe the terms and conditions of such consoHdation and the mode of carrying the same into effect, which said terms and conditions and mode of carrying the same into effect they mutually covenant and agree to observe, as follows, to wit : Business Cobpoeations ; Consolidation of. 755 Forms — No. CI. First. That the name of the corporation hpreby formed by said consolidation shall be [inseH corporate name] Company. Second. That the number of directors who shall manage its affairs shall be [state de/mite number, not less than three nor more than thir'teen]. Third. That the names and post-office addresses of the directors of such new corporation for the first year are as follows, to wit : Names of directors. Post-office addressee. Fourth. That the term of existence of such new corporation shall be \insert term, not exceeding fifty years]. Fifth. That the names of the town [or towns], county \or counties], in which the operations of such new corporation are to be carried on are [insert names]. Sixth. That the name of the town [or city] and county in this state in which its principal place of business is to be situated is the town [( r city] of , in the county of Seventh. That the amount of the capital stock of such new cor- poration is to be [insert amount, which must not be larger than the fair aggregate value of the property, franchises and rights of the constituent corporations]. Eighth. That the number of shares into which such capital stock is to be divided is [insert number]. Ninth. That the manner of distributing such capital stock among the holders thereof shall be as follows : [Example given : The capital stoch of each of the corporations, parties hereto, shall be convertible into the capital stock of said new corporation hereby formed, sha/re for share, and upon presentation and surrender of any outstanding certificates of stock in either of said constituent corporations, partes hereto, certificates for like amounts of stock in said new corporation shall bi issued to the holders thereof I] Tenth. [If the constituent corporations, or either of them, shall have been organized for the purpose of ca/rryvng on amy part of its business in any place out of this State, and such new corporation shall propose to carry on any part of its business out of this State, 756 Business Coepoeations ; Consolidation of. Forms — No. 61. the agreement shall so state, with such other particulars as may he deemed necessary.} In Testimony Wheeeof, the said parties of tlie first and second parts have executed this agreement in duplicate, and have hereunto set their respective signatures, and liave caused to be hereto affixed the corporate seals of their respective corporations, of which they are respectively the directors, the day and year first aforesaid. ) ) ) ) ) Directors of the Company. ^corporate-^ Attest : , President. , Secretary. > > J ) 5 Directors of the Company. |-cor^o™«-| Attest : , President. , Secretary. State of ^N^ew Yoek, | ' [• ss. : County of , ) {Insert name of secretary of firstrnamed constituent corporation\ being duly sworn, deposes and says, that he is the secretary of said \insert corporate name'] Company mentioned in the foregoing agree- ment, dated , 189 ; that he knows the corporate seal of said company ; that the seal affixed to said agreement is such corpo- rate seal and was so affixed by order of the board of directors of said company; that deponent is acquainted witli the handwriting of [insert the name of the president], the president of said company, and that the signature of [insert name of president], subscribed to said agreement, as president of said company, is in the genuine hand- Business Cqepoeations ; Consolidation of. 757 Forms — No. 61. writing of said [insert president's name], and was thereto subscribed by order of said board of directors, and the deponent subscribed his name thereto as such secretary, as aforesaid, by the like order of ' . said boa,rd of directors. , Secretary. Sworn to before me, this day of , 189 [Signature of JSfotary.] [Prepare in the same form as above, proof of exeoution by the secretary of the other constituent corporation, and annex the same.] State of New York, County of , On this day of , 189 , before me personally came [insert names of the directors of first constituent company], directors of [insert name of company], to me severally known to be the persons who severally executed the foregoing agreement, and severally acknowledged to me that they executed the same for the uses and purposes therein expressed. [Signature of Notary.] [Prepare in the same form as above, achnowledgmeibt by directors of the other constituent corporation, and annex the same.] SwoEN Copt of Proceedings of Meeting. A special meeting of the stockholders of [insert corporate name] Company, for the purpose of submitting to said stockholders the annexed agreement, dated ,18 , for the consolidation of [insert corporate name] Company with [insert corporate name] Company, under the name of [insert name of new corporation] Company, was held at the office of said first-named corporation [or as the case may be] in the city [village or town] of , county of , on the day of , 18 , at o'clock in the noon of that day. Said meeting was called upon notice of at least two weeks, specifying the time, place and object thereof, and addressed to each stockholder at his last known post-office address, and deposited in 758 Business Coepoeations ; Consolidation of. Forms — No. 61. the post-office, postage prepaid, and published for at least two suc- cessive weeks in [inseri name of paper], one of the newspapers of .county, in which county said corporation, the [insert corporate name\ Company has its place of business, and also in {insert name of paper\ one of the newspapers of county, in which county said corporation, the \insert name of other corpor- ation'] Company has its place of business. Pursuant to such notice the stockholders of the [insert corporate name] Company met at in the city [village or town] of , county of , on the day of , 18 , at o'clock in the noon. There were present at such meeting in person or by proxy stock- holders owning shares of the stock, being at least two-thirds of the stock of said corporation. The meeting was organized by the election of as chairman, and , as secretary thereof. Proof by affidavit of the due service of the notice of the meet- ing and publication thereof was read and is hereto annexed. The annexed agreement was thereupon submitted to said stock- holders for their approval and, after being considered, a vote was taken by ballot upon the question of approving or rejecting the same, pursuant to statute. The said ballots were duly cast in person or by proxy, and upon a canvass of such ballots it was found that the votes of stockholders owning shares of stock were cast in favor of the approval of said agreement for consohdation, and votes of stockholders owning shares of stock were east against the approval of said agree- ment [or no votes were cast against the approval of said agreement as the case may he]. The whole number of shares of the capital stock of said corpora- tion is , and the votes of stockholders which were so cast in person or by proxy in favor of the approval of said agreement of consolidation constitute at least two-thirds of the stock of said corporation. Thereupon said agreement of consolidation was declared duly approved and adopted and the meeting adjourned. Feeey Coepoeations ; Incoepoeation of. 759 Forms — No. 61. In Witness Wheeeof, I ha^^e made, signed and sworn to the foregoing copy of proceedings in duplicate this day of , 18 . , Secretary. State of ISIew Yoek, I ' > ss. : County of , [^Insert name], being duly sworn, deposes and says that he was elected to act, and did act, as secretary of a special meeting of the stockholders of the [insert corporate name'], held for the purpose of, considering the annexed agreement of consolidation, dated _ , 18 ; that the foregoing is a copy of the pro- ceedings of said meeting, and is, in all respects, a correct copy of such proceedings, and of all the proceedings of said meeting, and that notice of said meeting was given, as aforesaid, pursuant to statute. [^Signature of Secretary.] Sworn to before me, this ) . day of , 18 . ) ISignatwre of Notary.] [Prepare in the same form as above, the certificate of the secre- tary of the other constituent corporation, and annex the same.] {Attach also proof of publication and service of notice.] Upon filing and recording the consolidation papers in tlie office of the Secretary of State fees are payable as follows : Filing, ten dollars; recording, fifteen cents a folio. The fees in the office of the county clerk are : Filing, six cents; recording, ten cents a folio. In addition to such fees an organization tax of one-eighth of one per cent must be paid to the State treasurer upon the amount of capital stock of the new corporation, in excess of the aggregate capitalization of the constituent corporations. See statutes and decisions relative to fees, organization tax, and transmission of same, 'ante. No. 62. Certificate of Incorporation of a Ferry ijompany. See the Transportation Corporations Law, article 1, § 3, ante. We, the undersigned, all being persons of full age, and at least two-thirds being citizens of the United States,' and a majority residents of the State of New York, desiring to become a corpora- 760 Feeey Coepoeatiohs ; Inooepoeation of. Forms — No. 63. tion for conducting and managing a ferry, pursuant to the pro- visions of article one of the Transportation Corporations Law of the State of New York, do hereby certify as follows, to wit : First. The name of the corporation is to be [insert corporate rtC.nc] Company. Second. The places from and to which the ferry established [or to he established^ shall run are : From to Third. The terra for which the corporation is to exist is [insert nwriber of years not exceeding fifty'] years. Fourth. The amount of its capital stock is to be [insert amount'] dollars, and the number of shares thereof is to be [insert number of shares] of the par value of dollars each. Fifth. The number of directors of such corporation is to be [insert nurtiher, which, however, must "be fixed 'between the limit of three and fifteen]. Sixth. The names of the directors for the first year are [insert names of the directors]. In Witness "Whereof, we, the undersigned, have executed and acknowledged this certificate in dupUcate, this day of ,189 . A. B. C. D. E. F. State of New Yoek, ] ' \ ss.: County of , ) On this day of , 189 , before me personally came A. B., C. D. and E. F., to me severally known to be the persons described in and who made and signed the foregoing certi- ficate, and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notary.] The fees in the office of the Secretary of State are: Filing, ten dollars; record- ing, fifteen cents a folio for each 100 words. The fees in the county clerk's -oflSce are. Filing, six cents; recording, ten cents a folio. In addition to such payments, an organization tax of one-eighth of one per cent upon the capital stock must be paid to the State Treasurer. For text of the statutes regulating such payments and information relative to remittances, see ante. Feeet Coepoeations ; One-half Capital Stock. 76l Forms — Mos. 63, 64 ^^^_^ No. 63. AffldaTit as to Payment of One-half the Capital Stock of a Ferry Company. See the Transportation Corporations Law, article 1, § 3, ante. State of ISTew Yoek, County of , A. B., C. D. and E. F., being severally duly sworn, depose and say, and each for himself deposes and says, that he is a director of [insert corporate name'] Company, and that said A. B., C. D. and E. F. constitute a majority of the directors thereof ; that such com- pany is a ferry corporation orgapized under the laws of the State of ISTew York ; that at least one-half the capital stock of such com- pany has been actually paid in. CD., E. F., Directors. Severally sworn to before me, ) , this day of , 189 . ) [Signat/wre of I^otary.'] Fees. —In the oiflce of the Secretary of State a recording fee of fifteen cents a folio; in the county clerk's office, six cents for filing and ten cents a folio for recording. No. 64. Application for Ferry License by a Corporation Owning the Land. See the Highway Law, § 170, ante. To the County Court of the county of [or, the City Court of the city of , in the county of ] : The petition of [insert name of corporatibri] respectfully shows, that the petitioner is a domestic corporation, duly incorporated under the provisions of the Transportation Corporations Law of the State of JSTew York, for the purpose of conducting and managing a ferry from [describe the place] to [describe the place] the county of , and is the owner of the land situated on the bank of the river through which that part of the highway adjoin- ing to the proposed ferry runs ; and that a ferry ought to be estab- 762 Feeey Coepoeations ; Application foe License. Forms — No. 65, lished for the convenience and accommodation of the public, across the said river at the place aforesaid. Wherefore your petitioner prays that this court will grant it, the said corporation, a license to establish and keep said ferry, pursuant to the provisions of the statutes in such case made and provided. Dated this day of , 189 . The [insert corporate name] Company, ['^"Sr'^l Sy [signature], President. State of New Yoek, ) ' >• ss. : County of , ) A. B., of , being duly sworn, deposes and says, that he ie the president of the [insert corporate name] Company, the peti- tioner named in the foregoing petition ; that he has read the fore- going petition, by him subscribed, and knows the contents thereof ; that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and as to those matters lie believes it to be true ; and, further, that he signed said petition as president of said company by the authority of its board of directors and affixed the corporate seal of said com- pany thereto by the like authority. [Signature of Notary.] No. 65. Application for Ferry License by a Corporation not Owning tlie Land. See the Highway Law, § 170, ante. To the County Court of the County of [or the City Court of the City of , in the county of J : The petition of [insert name of corporation] respectfully shows, that the petitioner is a domestic corporation, duly incorporated under the provisions of the Transportation Corporations Law of the State of New York, for the purpose of conducting and manag- ing a ferry from [describe the place], in the county of to [desorihe the place], in the county of , and that C. D. is the owner of the land situated on the bank of the river Feeey Coepoeations ; Application foe License. T63 Forms — No. 66. through which that part of the highway adjoining to the proposed ferry runs ; and that a ferry ought te be established for the con- venience and accommodation of the public, across the said river at the place aforesaid. That the said C. D., the owner of the land through which the said part of said highway runs, as aforesaid, is not a suitable per- son to keep said ferry, for the following reasons : [or, has neglected to apply for a license to keep such ferry, after being served with eight days written notice from the petitioner of the time and place at which the said petitioner would apply for such license (or, has heretofore obtained a license to keep said ferry, but has neglected to comply with the conditions of the said license or, to maintain said ferry)]. That due service of notice of the time and place of this appli- cation has been made upon said C. D., as more fully appears from a copy of said notice and the affidavit of service thereof, which are hereto annexed. Wherefore your petitioner prays that this court will grant it, the said corporation, a license to establish and keep said ferry, pursuant to the provisions of the statutes in such case made and provided. Dated this day of ,189 The {insert corporate name] Company, ['"sM™''] -^y [signature'], President. [Add verification hy petitioner as in the preceding Forrn No. 64, and annex notice and proof of service. Forms Nos. 66 and 67.] No. 66. Notice to Owner of Lands of Application for a Ferry License. See the Highway Law, § 170, ante. To •: Take notice, that the undersigned will make application to the County Court of the county of [or, to the City Court of the city of , in the county of ], at a te:rm thereof to be held at the court-house, in the city [or village] of , on the day of , 18 , at the 764 FEKEr CoEPOEATioNS ; Application foe License. Forms— Nos. 67,68. opening of the court [or, at o'clock m.J on that day, or as soon thereafter as a hearing can be had, for a license to keep a ferry across the river, from the termination of the highway running through your lands to [give particular description of loca- tion of iheferry\. Dated this day of , 18 . The [insert na/me\ Company. By , President. No. 67. Proof of Service of Notice. See the Highway Law, § 170, ante. State of New Yoek, ) . T SS. . County of , ) G. W., being duly sworn, says, that he is more than 18 years of age, that on the day of 18 , at the village of , in the county of , he personally served on the notice hereto annexed, by delivering to and leaving with him a true copy thereof. G. W. Sworn to before me, this ) day of , 18 . ) [Signature of Notary. 1 No. 68. License to Keep a Ferry. See the Highway Law, § 170, ante. At a term of the County Court of county, held at the city [or village'] of , in said county, on the day of , 18 . Present: Hon. , County Judge. An application having been made by the [insert corporate name'] Company, a domestic ferry corporation, for a license to keep a ferry across the [name stream] at [describe the place], and the provisions of the statutes in such case made and provided having Febet Coepoeations ; Application foe License. 765 Forms — Nos. 69, 70. been complied with, it is hereby ordered and determined that this license be granted to said [insert corporate name] Company to keep a ferry at the said place, in said town, for the term of five years from this date, and the said Compa,ny is allowed to collect and receive ferriage for the transportation of travelers, property and effects, over and across the said ferry, at and after the following rates, and for no greater sum or sums for such trans- portation, viz.: [state the rates']. No. 69. Clerk's Certificate to be Annexed to a Copy of License for Licensee. See the Highway Law, § 170, ante. State of New Yoek, ) ^^ . County of , ' I , clerk of Court, do hereby certify, that I have compared the annexed copy of a license with the original license, entered in the book of minutes of said court by me this day, and that the same is a correct copy thereof and of the whole of said original. In "Witness Wheeeof, I have hereunto affixed my name, and my official seal, this day of , 18 . [l. S.J > Clerk. No. 70. Undertaking Upon Application for License to Keep a Perry. See the Highway Law, § 171, ante. State of New Yoek, ) ^^^ . County of , ' Whereas, the [insert corporate name] Company, a domestic cor- poration, duly incorporated under the provisions of the Transporta- tion Cor'porations Law of the State of New York, for the purpose of conducting and managing a ferry has made [or, is about to maJce] application to the County Court of the county of [or, to the City Court of the dty of , in the county of ] for 766 Ferey Coepoeations ; Appjucation foe License. Forms — No. 70. a license to keep a ferry across the [name stream] from the termina- tion of the highway running through the lands of to [describe location of ferry] ; Now, therefore, we the said [insert corporate name] Company and as its surety [or sureties, as the case may he], do hereby jointly and severally undertake, in the sum of dollars, to and with the people of the State of New York, that the said [insert corporate name] Company shall attend such ferry with suffi- cient and safe boats and other implements, and so many men to work the same as shall be necessary during the several hours in each day, and at such rates as the court shall direct. Dated, this day of , 189 . The Company, [""'/eSr.'"'] By , President. [l. S.J [Also signatures of sureties.] State of New Yoek, ) ' [■ ss. : County of , ) On this day of , 189 , before me personally came , the president of the Company, to me personally known, who being by me duly sworn, said that he knows the corporate seal of said company; that the seal affixed to the above instrument is such corporate seal, and was affixed thereto by the authority of the board of directors of said company, and that he executed the said instrument as president of said com- pany by the like authority. [Signature of Notary.] State of New Yoek, \ ' > ss. : County of , ) On this day of , 189 , before me personally appeared to me known to be the persons described in and who executed the foregoing undfertaking, and severally acknowl- edged that they executed the same. [Signature of Notary.] JS'avigation Coepokation ; Incoepoeation of. 767 Formlfe— Nos, 71, 72, 73. No. 71. AfildaTit of Jnstifllcation. State of New Toek, ) . r SS* • . County of , ) L. M. and , being severally duly sworn, each for him- self, deposes and says, that he is one of the sureties named in the foregoing undertaking ; that he is a resident of and a householder, or freeholder, within the State of New York, and is worth the sum of dollars [twice the amount named in the undertahing] over and above all debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy i<,nd sale under execution. [Signatures of sv^el^esJ] Sworn to before me, this ) day of ,189 . ) [Signature of Notary.'] No. 72. Approval. I hereby approve of the foregoing undertaking, and of the suffi- ciency of sureties therein named. Dated, this day of , 189 . County Judge. No. 73. Certificate of Incorporation of a Navigation Corporation. See the Transportation Corporations Law, article 2, § 10, ante. "We, the undersigned, all being persons of full age, and at least two-thirds being citizens of the United States and one of us a resi- dent of the State of New York, for the purpose of becoming a navigation corporation for the objects hereinafter specified, pursu- ant to the provisions of article two of the Transportation Corporations Law of the State of New York, do hereby certify as follows, to wit : First. The name of the corporation is to be [insert corporate name'] Company. 768 JSTavigation Coepoeations ; Inooepoeation of. Forms — ]Sro.*73. Second. The specific objects for which it is formed are the fol- lowing, namely: For the purpose of building for its own use, equipping, furnishing, fitting, purchasing, chartering, navigating or owning steam, sail or other boats, ships, vessels or other property, to be used in business, trade, commerce or navigation, and for the carriage, transportation or storing of lading, freight, mails, property or passengers. Third. The waters to be navigated are [insert name of waters to he navigated. Example given : The waters, hays and inlets of the Sud&on river and tributaries thereof \* Fourth. The amount of its capital stock is to be [insert amount at not less than $20,000 nor mare than $4,000,000, which are the limits fixed hy statute]. Fifth. The term of its existence is to be [insert number of yea/rs not exceeding fifty]. Sixth. The number of shares of which the capital stock shall consist is to be [insert number of shares]. Seventh. The corporation is to have [insert number, hut not less thanfi/ue nor more than thirteen] directors. Eighth. The names of the directors for the first year are [insert the names]. Ninth. The principal oflice is to be situated in the city [o?' town] of , in the county of Tenth. The number of shares of stock which each subscriber of this certificate agrees to take in such corporation is as follows : f Names. Number of Shares Subscribed. In Witness "Whbeeof, we have made, signed and acknowledged this certificate in duplicate this day of , 189 . [Signature of Incorporators.] * In case of ocean steamers, the ports between which the vessels are to be navigated must alsa be stated. + The aggregate of such subscriptions must equal ten per cent of the capital and at least ten per cent of such subscriptions must be paid In cash. Navigai?ion Corpoeations ; Capital Stock. 769 Forms — No. 74. State of New York, 1 V ss * County of , ) " * On this. day of , 189 , before me personally caijae [state names of inoorpoi'ators'], to me severally known to be the persons described in and who made and signed the foregoing certificate and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notary.] State of New York, County of , [Insert names of at least three directors], being severally duly sworn, depose and say, and each for himself deposes and says, that he is one of the directors named in the foregoing certificate ; that at least ten per cent of the amount of capital stock named therein has been in good faith subscribed and at least ten per cent of such subscriptions has been paid in cash. [Signatures of at least three directors.] Severally sworn to before me,) this ' day of , 189 . ) [Signature ofNota/ry^ The above certificate of incorporation must be executed by at least seven persons. As to payments to be made upon filing and recording the certificates of incor poration, see the notes under Form No. 62. No. 74. Certificate by a Navigation Corporation of Pull Payment of Capital Stock. See the Transportation Corporations Law, article 2, § 13, anU. We, the undersigned, the president and a majority of the direct tors of [insert corporate name] Company, a navigation corporation, do hereby certify, pursuant to the provisions of article 2 of the Transportation Corporations Law, as follows, to-wit : 49 770 ISTavigation Coepoeations : Capital Stock. Forms — No. 74. That the amount of the capital stock of such corporation is [insert a?noun,t] dollars. That the whole amount of such capital stock has been paid in. In Witness "Wheeeof, we have made and signed this certificate in duplicate, this day of , 189 . [Signature of president I\ [Signatures of majority of directors.] State of New Yoek, ) j- ss.: County of . ) A. B., C. D. and E. F., being severally duly sworn, do depose and say, and each for himself, deposes and says, that said A. B. is the president ol [insert name of corporation], and that said A. B., C. D. and E. F. are directors of such comj^any, and a majority thereof ; that he has read the foregoing certificate and knows the contents thereof, and that the same is true. [Signatures of President and majority of directors.] Severally sworn to before me, this day of ,189- . [Signature of Notary.] State of New Yoek 1 ) ^ ss. : County of . ) On this day of , 189 , before me personally appeared A. B., C. D. and E. F., to me severally known to be the persons described in, and who made, signed and verified the fore- going certificate, and they severally acknowledged to me that they made, signed, executed and verified the same for the uses and pur- poses therein expressed. [Signature of Notary.] The fees payable upon filing and recording the above certificate are : At the office of the Secretary of State, a recording fee of fifteen cents per folio. At the county clerk's office, six cents for filing and ten cents per folio for recording. Stage Coach CoEPOEA^noNs ; Inooepoeation of. 771 Forms — No. 75. No. 75. Certificate of Incorporation of a Sta^e Coach Corporation. See the Transportation Corporations Law, article 3, § 20, ante. We, the uiidersigiied, all being persons of full age, and at least two-thirds being citizens of the United States, and one of us a resi- dent of the State of New York, desiring to become a corporation for the purpose of establishing, maintaining and operating a stage or omnibus route or routes {or for the purpose of maintaining and operating a stage route or routes already established, as the case ma]/ he}, for public use in the conveyance of persons and property elsewhere than in the city of New York, pursuant to the provisions of article three of the Transportation Corporations Law of the State of New York, do hereby certify : First. The name of the corporation is to be [insert nar-ie'] Company. Second. Such corporation is to continue for a term of {insert tcrni] years. Third. The route or routes upon which it is intended to run, as near as practicable, are [state route]. Fourth. The number of directors is to be [insert numher, not less than three nor more than five]. Fifth. The names of such directors for the first year are [insert names']. Sixth. The amount of its capital stock is to be [insert amount] dollars, divided into' [insert numher^ shares. Seventh. The place of residence of each subscriber hereto and the number of shares of stock he agrees to take in such corporation are as follows : No. of shaieis Names. Place of residence subscribed. A. B shares. CD shares. E. F shares. Q., JJ shares. I, J shares. In Witness Wheeeop, we have made, signed and acknowledged this certificate in duplicate this day of , 18 . [Signatures of incorporators, not less than fime in numher.] 772 Stage Coach Coepoeations ; Extension of Route. Forms — No. 76. State of jS"ew Yoek, ^ County of On this day of , 189 , before me personally came \Jnsert names], to me severally known to be the persons described in and who made and signed the foregoing certificate, and severally and duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [^Signature of JVotanj.] Relative to the payments to be made upon filing and recording the above cer- tificate, see the notes under Form No. 62. No. 76. Certificate of Alteration or Extension of Route of Stag's Coach Corpora- tion. See the Transportation Corporations Law, § 21, ante. We, the undersigned, the directors of the [insert corporate name'] Company, a stage coach corporation, organized imder the provisions of article three of the Transportation Corporations Law of the State of New York, do, for the purpose of altering [or extending] the route [or routes] of said corporation as designated in the certificate of incorporation thereof, hereby certify as follows, to wit : That by a vote of two-thirds of the directors of said corporation, at a meeting of said directors held at . on the day of , 189 , the route [or routes] designated in the certificate of incorporation of said [insert corporate na?ne] Com- pany was [or were] altered [or extended] as follows, to wit : [state alteration or extension]. In Witness Whereof, we have made, signed and acknowledged this certificate in duplicate, this day of 189 [Signatures oj- directors.] State of New Yoek, County of , ) On this day of , 189 , before me personally came [insert name], to me severally known to be the persons described in and who made and signed the foregoing certificate Teamway Corpoeations ; Incoepoeation of. 773 Forms — No. 77. and severally and duly acknowledged to me that they had made, ■signed and executed the same for the uses and purposes therein set forth. [Signature of JVotary.] The fees upon filing and recording the above certificate are the same as those mentioned under Form No. 74. No. 77. Certificate of Incorporation of a Tramway Corporation. See the Transportation Corporations Law, article 4, § 30, ante. We, the undersigned, all being persons of full age, and at least two-thirds being citizens of the United States and one of us a resi- dent of the State of New York, desiring to become a corporation for constructing, maintaining and operating an elevated tramway, constructed of poles, piers, wires, rods, ropes, bars or chains, for the transportation of freight in suspended buckets, cars or other recepticles, for hire, pursuant to the provisions of article i of the Transportation Corporations Law, do hereby certify : First. The name of the corporation is to be [insert name] Company. Second. The number of years such corporation is to continue is to be [insert period] years. Third. The places from and to which such tramway is to be con- structed, maintained and operated, are as follows : From to Fourth. The length of such tramway, as near as may be, is to be [state length]. Fifth. The name of each county through or in which it is intended to be made is [state each county]. Sixth. The amount of its capital stock is to be [insert amount] dollars. Seventh. The number of shares into which such capital stock is to be divided is to be [insert number]. Eighth. The number of directors thereof is to be [sfate Tiuniber, hut not less than three]. 774 Tramway Coepoeations ; Incoeporation of. Forms — No. 77. Ninth. The names and places of residence of the directors for the first year are as follows : Names. Places of residence. Tenth. The place of residence of each subscriber hereto, and the number of shares he agrees to take in such corporation, are as follows : Number of shares Name. Place of residence. subscribed. 1 shares. 2 shares. 3 shares. 4 shares. 5 shares. 6 shares. 7 shares. 8 shares. 9 shares. 10 shares. 11 shares. 12 shares. 13 shares. In Witness "Whereof, we liave made, signed and acknowledged this certificate in duplicate this day of , 18 . [Signatures of incorporators, at least thirteen in numher.l State of New Yoke, ) ' > ss. : County of . ) On this day of , 189 , before me personally came [insert names of the persons suhscrihing certificate'], to me severally known to be the persons described in and who made and signed the foregoing certificate, and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of N ss. : County of , ) and , being severally duly sworn, each for himself, deposes and says : That the said is the president of the [insert corporate name] Company, and said is the secretary thereof ; that the foregoing statement subscribed by him is in all respects true and correct. [Signatures of President omd Secretary.] Sworn to before me this \ day of , 189 . ) [Signature of Nota/ry, Gas and Electeic Light Coepoeations. 787 Forms — No. No. 89. Certificate of Incorporation of a Gas or an Electric light Corporation. See the Transportation Corporations Law, article 6, § 60, ante. "We, the undersigned, all being persons of full age, and at least two-thirds being citizens of the United States and one of us a resi- dent of the State of New York, desiring to become a corporation for the purposes herein specified, pursuant to the provisions of the Transportation Corporations Law, article 6, do hereby certify : First. The name of the corporation is to be [insert corporate name] Company. Second. Its objects are to be: Manufacturing and supplying gas for lighting the streets and public and private buildings of [here insert the name of any city or town or cities a/nd towns, not over five miles distant from each other, in this State, in which the business of the company is to he carried on.] [* Or, in case of an electric light corporatton state as follows, to wit : Second. Its objects are to he ; Manvfactaoring and using elec- tricity for producing light, heat or power, am,d in lighting streets, a/uemoes, public parks and places, a/nd 'public and private build- ings of cities, villages and towns within this State, as follows, to wit : {name places)]. Third. The amount of its capital stock is to be [insert amount] dollars. Fourth. The term of its existence is to be \i/nsert the number of years, not exceeding fifty]. Fifth. The number of shares of which the stock shall consist is to be [insert number of shares]. Sixth. The number of directors is to be [im,sert the number defmitely, hut such number must not be less than three nor more than thirteen]. Seventh. The names and places of residence of the directors who are to serve for the first year are as follows, viz. : * Or the corporation may lie formed for hoth gas and electric ligliting. 788 Watee-woeks Coeporatio.vs. Forms — No. 90 Names. Places of residence, 1 2. 3 Eighth. The name of the town and county in which the opera- tions of the corporation are to be carried on is [insert name of town and county\. In Witness Whereof, we have made, signed and acknowledged this certificate in duplicate, this day of , 189 . {Signatures of incorporators, at least three in numher.J State of New Yoek, ) ' > ss. : County of , ) On this day of , 1 89 , before me personally came [insert names of the persons signing certifioate'], to me severally known to be the persons described in and who made and signed the foregoing certificate and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notary.} For amount of fees and organization tax to be paid upon filing and recording the certificates of incorporation, see the notes under form No. 63. No. 90. Certificate of Incorporation of a Water-works Company. See the Transportation Corporations Law, article 7, § 80, ante. "We, the undersigned, all bemg persons of full age, and at least two-thirds being citizens of the United States and one of us a resi- dent of the State of New York, desiring to become a corporation for the purpose of supplying water to cities, towns or villages and the inhabitants thereof in this State, pursuant to the provisions of the Transportation Corporations Law, article 7, do hereby certify : First. The name of the corporation is to be [inset't corporate name} Company. Second. The amount of its capital stock is to be [insert amount] dollars. Watee-woeks Coepoeations. 789 Forms — Ko. 90. Third. The number of shares into which such capital stock is to be divided is {insert number of shares]. Fourth. The location of the principal business office of such cor- poration is to be \insert the narnie of the city, village or town, and the county]. Fifth. The number of its directors is to \)e\insert the dejmite nurnher, hut not less than seven]. Sixth. The names and places of residence of the directors for the first year are as follows, viz. : Names. Places of Eesidence. 1 2 4 , 6 • . . 6 '. r 7 , Seventh.. The names of the city [town or village, or cities, towns am,d villages, as the case may he], which it is proposed to supply with water are [insert names]. Eighth. The permit of the authorities of such city \town, or village, or cities, towns a/nd villages, as the case may he] has been granted, as more fully appears from such permit, which is annexed to this certificate and is hereby made a part thereof. Ninth. The post-office address of each subscriber, and the number of shares he agrees to take in such corporation, the aggregate of which at least equals one-tenth of the capital stock, and ten per centum of which has been paid in cash to the directors, are : Number of shares 27ames Post-offlce address. subscribed. ^ 3 shares. Q_ J) shares. j; J' shares. Q._ jj shares. J J shares. j[^ L shares. ]^_ 2f shares. 790 "Water- WORKS Corporations. Forms — No. 90. In Witness Whereof, we have executed and acknowledged this certificate in duplicate. Dated, this day of , 189 . [^Signatures of incorporators, at State of New York, y SS. County of least seven in number.^ On this day of , 189, before me personally came [insert names'], to me severally known to be the persons described in and who made and signed the foregoing certificate, and sever- ally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notary.] State of New York, ) ' >■ SS.: County of . ) [Here insert the names of at least three of the directors], being severally duly sworn, each for himseK, deposes and says that he is a director named in the foregoing certificate of incorporation ; that at least one-tenth of the capital stock mentioned in such certi- ficate has been subscribed ; that ten per cent of such subscriptions has been paid in cash to the directors. [Signatures of the three directors maki/ng affidavit.] Severally sworn to before me this day of , 189. [Signature of Notary.] Permit Referred to in the Foregoing Ceetifioate of Incor- poration. We, the undersigned, being a majority of the board of trustees of the incorporated village of " , in the county of [or, "being a majority of the officers holding the offices of super- visor, j ustice of .the peace, town cleric and highway commissioners of the town of , in the covmiy of ; or, being the board of water commissioners of the city of , in the county of ], having received from [insert names of the persons Watee-woeks Coepoeations. 791 Forms — No. 90. forming the corporation] aa application for a permit authorizing them to form a corporation for the purpose of supplying such vil- lage [or town, or city, as the case may be] with water, do hereby grant such permit, authorizing the formation of such corporation for the purpose of supplying such village [or town, or city] with water. Iir Witness Wheeeof, we have signed and acknowledged this permit in duplicate this day of , 189 . Majority of the Board of Trustees of said village. [Or, A. B., Supervisor. C. D., Justice of the Peace. E. F., Town Olerh. G. H., I. J., Oomm'bssioners of Highways. Or, A. B., C. D., E. F., Water Commissioners of said oity.'\ State of New Yoek, County of , On this day of , 189 , before me personally came [insert the names of subscribers to the permit], to me severally known to be the persons described in and who made and signed the foregoing certificate and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. • * [Signature of Notary ] For information as to the fees and organization tax to be paid upon filing and recording the certificates, of incorporation, see the notes under form No. 62. , 792 Telegraph anb Telephone Cobpoeations. Forms— No. 91. No. 91. Certificate of Incorporation of a Telegrapli and Telephone Company. See the Transportation Corporations Law, § 100, ante. We, the undersigned, all being persons of full age, and at least two-thirds being citizens of the United States and one of us a resi- dent of the State of Isew York, desiring to become a corporation for the purpose of constructing, owning, using and maintaining a line or lines of electric telegraph [^or telephone] wholly within or partly beyond the limits of this State, pursuant to the provisions of article 8 of the Transportation Corporations Law, do hereby certify : First. The name of the corporation is to be [insert corporate oiame\ Company. Second. The general roxite and the points to be connected are as follows, viz.: [state route and points to he connected]. Third. The amount of its capital stock is to be [insert amount] dollars. Fourth. The number of shares into which such capital stock is to be divided is [insert numher of shares]. Fifth. The term of existence of such corporation is to be [insert term] years. Sixth. The number of its directors is to be [insert the speoifio numher, hut not less than seven]. Seventh. The names and residences of the directors for the first year are as follows, viz. : Name. Residence. 1 2 3 ._ 4 !!!!!!!!!!!!!!. 5 6 !.!!!"!!! r State of New Yoek, Telegraph and Telephone Coepokations. 793 Forms — No. 93. Eiglitli. The po^t-office address of the subscribers and the number of shares which each agrees to take in such corporation are as follows : Number of shares Name. Post-offlce address. subscribed. 1 shares. 2 . shares. 3 shares. 4 ■ shares. 5 shares. 6 shares. 7 shares. In Witness "Wheeeof, we have made, executed and acknowl- edged this certificate in duplicate this day of , 189 . {^Signatures of incorjporators, not less than seven in numbe?'. \ . ss. : , County of On this day of , 189 , "before me personally came [insert the names of the subscribers to the foregoing certificate] to me known to be the persons described in and who made and signed the foregoing certificate and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notary.'] For information as to the fees and organization tax to be paid upon filing and recording tlie certificates of incorporation, see notes under Form No. 63. No. 93. Certificate for Extension of Lines of a Telegrapli or Teleplione Company. See tlie Transportation Corporations Law, article 8, § 101, ante. We, the undersigned, beingat least two-thirds of the directors of [insert name'] Company, do hereby certify that the written consent of the persons owning at least two-thirds of the capital stock thereof having been procured, as appears by the affidavit of three of the directors annexed hereto, marked "Exhibit A," and which 794 Telegraph and Telephone Coepoeations. Forms — No. 93. is hereby made part of this certificate, such corporation desires to construct, own, use and maintain a hne of electric telegraph [op telepho?ie], not described in its original certificate of incorporation [or desires to join with another corporation in constructing, leasing, owning, using and maintainin-g such line / or to hold or own any interest therein y or to iecoms lessees thereof, as the case may ie.] That we do hereby, for such purpose, pursuant to the provisions of the Transportation Corporations Law, article 7, section 101, , execute tliis amended certificate as follows, to wit : [Here insert all the recitals contained in the original certificate, including in the description of the route both the line or lines specified in the original certificate and the route of the proposed extension, and designating the extreme points connected thereby.] In WrrNESs "Whereof, we have executed and acknowledged this amended certificate in dupHcate, and have hereunto set our hands, this day of 189 . [Signatures of at least two- thirds of the directors.] State of New York, i County of ,\^^-'- On this day of > 189 , before me personally came [insert the names of the directors signing the certificate], to me known to be the persons described in and who made and signed the foregoing amended certificate, and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notary.] " Exhibit A," Referred to in the Foregoing Cbettficate. State of New York ) County of l)^^'' [Insert names of at least three directors], being severally duly sworn, each for himself, deposes and says that he is a director of [insert name of company] ; that the persons who have signed and executed the foregoing certificate constitute two-thirds of the directors of such company; that the written consent of persons owning at least two-thirds of the capital stock of such company has Bridge and Turnpike Cokporations. 795 Forms — No. 93. been obtained for the carrying out of the objects set forth in the annexed amended certificate. \_Signah6res of three directors.] Severally sworn to before me, ) this day of 189 . ! [Signature of Notary.'] Upon filing and recording the foregoing certificate in the office of the Secretary of State the fees will be fifteen cents per folio. At the county clerk's office: Filing, six cents; recording, ten cents per folio. No. 93. Certificate of Incorporation of a Bridge Company. See the Transportation Corporations Law, article 9, § 130, ante. We, the, undersigned, all being persons of full age, and at least two-thirds being citizens of the United States, and one of us a resident of the State of New York, desiring to become a corpora- tion for the purpose of constructing, maintaining and owning a bridge \pr causeway, as the case may he], pursuant to the pro- visions of the Transportation Corporations Law, article 9, do hereby certify : First. The name of the corporation is to be [insert corporate name] Company. Second. Its duration is to be [insert here a definite number of years, not exceeding fifty.] Third. The amount of its capital stock is to be [insert amount dollars. Fourth. The number of shares of its capital stock is to be [insert nxmiber.] Fifth. The number of its directors is to be [vnsert number]. Sixth. The names and post-office address of the directors for the first year are as follows, viz.: Ifames. Poet-oflce address. 796 Bbidge Airo Thenpike Coepokations. Foi-ms — No. 93. Seventh. The location and plan of such bridge are as follows, viz. : [insert location andplmi]. Eighth. The post-office address of each subscriber, and the num- ber of shares of stock which he agrees to take in such corporation, are as follows : Number of sliarAa Kamea. PoBt-office address. Bubscribed. shares. shares. shares. shares. In "Witness "Wheeeof, we have signed and acknowledged this certificate in duplicate. Dated, this day of , 189 . [^^natures of incorporators, at least Jive in number.] State of New Toek, ) County of , > ' ' On this day of , 189 , before me personally came [insert names of subscribers to certificate'], to me known to be the persons described in and who made and signed the fore- going certificate, and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signature of Notamj.] State of New Yokk, ) [• ss. : County of , ) [Here insert the names of at Isast three di/rectors], being severally duly sworn, each for himself, deposes and says, that he is a director named in the foregoing certificate of incorporation ; that the aggre- gate of the subscriptions to the capital stock is not less than one- fourth of the amount of the capital stock fixed and stated in such Bkidge and Ttjenpike Coepokations. 797 Forms— No. 94. certificate, and that five per cent of such subscriptions has been actually paid in cash. [Signatures of at least three di/rectors.] Severally sworn to before me this ) day of , 189 . ( [Signature of Nota/ry.\ For information as to fees and organization tax to be paid upon filing and recording the certificates of incorporation, see notes under Form No. 62. No. 94. Certificate of Incorporation of a Turnpike (or Plank-road) Company. See the Transportation Corporations Law, article 9, § 120, anU. We, the undersigned, all being persons of full age, and at least two-thirds being citizens of the United States and one of us a resi- dent of the State of New York, desiring to become a corporation for the purpose of constructing, maintaining and owning a turnpike \or planTc-road, as the case inay ie\, pursuant to the provisions of the Transportation Corporations Law, article 9, section 120, do hereby certify : First. The name of the corporation is to be [insert the corjporate name'] Company. Second. Its duration is to be [insert here a definite period of years, not exceeding fifty.] Third. The amount and number of shares of its capital stock is to be [insert amount] dollars, consisting of [insert number] shares. Fourth. The number of its directors is to be [insert number]. Fifth. The names and post-office address of the directors for the first year are as follows, viz. : Name. Post-office addreea. Sixth. The termini of the proposed road are [state terminal points]. Seventh, its length is to be [state length]. , 798 Bkidge and Turnpike Coepoeations. Forms — No. 94. Eighth. The name of each town, city or village into or through which such road is to pass is as follows [insert names of places']. Ninth. The post-oflBce address of each subscriber, and the number of shares of stock which he agrees to take in such corporation are as follows : Number of shares Namee. Fost-offlce addreee. subscribed. shares. shares. shares. shares. shares. In Witness Wheeeof, we have made, signed and acknowledged this certificate in duplicate, this day of 189 . [Signatures of incorporators, not less than five in number.] State of New Toek, | ' > ss. : County of , ' On this day of , 189 , before me personally came [insert names of subscribers to certificate] to me severally known to be the persons described in and who made and signed the fore- going certificate and severally duly acknowledged to me that they had made, signed and executed the same for the uses and purposes therein set forth. [Signai/ure of Notary.] State of New Yoek, ] County of , ) [Here insert the names of at least three directors] being severally duly sworn, each for himself, deposes and says, that he is a director named in the foregoing certificate of incorporation ; that the aggre- gate of the subscriptions to the capital stock is at least five hundred dollars for every mile of road to be constructed, and that five per cent of such subscriptions has been actually paid in cash. [Signatures of at least three directors.] Severally sworn to before me, ) this day of 189 . ) [SigTMpure of Ifota/ry.] Tor information as to fees and organization tax to be paid upon filing and recording the certificates of incorporation, see notes under Form No. 62. Bkidge Aj!fD Tpenpike Coepoeations. 799 Forms— No, 95. No. 95. Certificate of Extension of Corporate Existence of a Turnpike, Plank- road or Bridgre Corporation. See the Transportation Corporations Law, § 151, ante. Ceetificate of Extension of Coepoeate Existence of the Company. "We, the undersigned, being stockholders of the [insert corporate name] Company, a turnpike [jjlanh-road or "bridge] corporation, duly organized and existing under and by virtue of the laws of the State of New York, to-wit: Chapter 210 of the Laws of 1847 \pr the Tramsportation Corporations Law, article 9, as the case may he], each owning the number of shares of the capital stock of said corporation set opposite our respective signatures hereto, and together owning at least two-thirds of the capital stock of said cor- poration, to-wit : [insert nuniber] shares of the total of [insert number] shares, into which such capital stock is divided, do hereby, pursuant to the General Corporation Law, and also pursuant to the Transportation Corporations Law, section 151, consent that the corporate existence of said corporation be, and the same hereby is, extended for the term of [insert term of extension] years from the expiration of the time fixed in the certificate of incorporation of said corporation [or from, the expiration of the time fixed in a cer- tificate of extension of corporate existence, filed in the office of the Secretary of State on the day of ,18, and being for the term of yea/rsfrom the expiration of the period originally fi/doed in its certificate of incorporation for the dwration of its corporate existence]. In Witness Wheeeof, we have hereunto signed our names and written opposite our respective signatures the number of shares of stock owned by each of us in said corporation. Dated , 18 . SignatnreB. Number of Bhares. , 800 Beidge and Turnpike Coepoeations. Forms — No. 95. State of New Yoek, ) ^^ . County of . ' On this day of , 18 , before me personally came [insert names], to me known to be the persons described in and who signed the foregoing certificate and severally duly acknowledged to nie that they signed and executed the same for ■the uses and purposes therein set forth. [Signature of Notary.] Resolution nr Boaed of Supeevisoes. Kesolved, That this board, pursuant to the Transporation Cor- porations Law, particularly section 161, hereby gives its consent to an extension of the corporate existence of the [insert corporate name] Company for the period of years from the expira- tion of the time specified in the certificate of incorporation of said corporation [or for the period of years from the expiration of the time specified in the certificate of extension of its existence, filed in the office of the Secretary of State on the day of ,18 J. Office of the Cleek of the Boaed OF Supeevisoes of County. I, [insert name], clerk of the board of supervisors of the county of , do hereby certify that the foregoing resolution was duly adopted ^by the board of supervisors of county at a meeting of said board, held at their rooms, in , in said county, on the day of ,18 , a majority of said board being present. In "Witness "Wheeeof, I have hereunto set my hand and affixed the seal of office of the said board of supervisors this day of 18 . [SealP[ [Signature], Cleric of the Boa/rd of Supervisors of County. Yeeified Statement to be Appended to the Foeegoing Ceetificate. "We, the undersigned, the president and treasurer of the [insert corporate name] Company, a plank-road corporation [or as the case Bridge and Turnpike Corpokations. 801 Forms — Ko. 95. may Se], make the following statement for the purpose of extending the corporate existence of said corporation, to wit : Tli'at the actual capital expended upon the construction- of the road of said corporation amounts to the sum of dollars, exclusive of repairs. That the name of each town or ward through or into which the road passes is \insert same]. That said road extends from the village [or citi/'] of , in the town of , passing through the towns [. shares 5. I. J shares 6. K. L shares 7. M. jS^ shares 8. F. Q shares 9. R. S shares 10. T. U shares 11. V. "W shares 12. X. Y shares 13. X. B shares 14. Y. Z shares 15. N. O shares 804 Steam Railroads ; Incoepokation ov. Forms — No. 96. In "Witness Whereof, we liave executed and acknowledged this certificate in duplicate, and have subscribed our respective names hereto. Dated, the day of , 189 . [Si ff natures of incorporators, not less than fifteen, in number !\ State of New York, ] ' > ss. : County of ) On this day of > 189 , before me personally came \insert the names of the subscribers to the certificate], to me known to be the persons described in and who executed the foregoing cer- tificate, and severally duly acknowledged to me that they executed the same for the purposes therein mentioned.' {Signature of Notary.] State of New York, ) ,, . County of ) A, B, C, D, and E, F, being severally duly sworn, each for himself, deposes and says, that he is a director named in the fore- going certificate of incorporation ; that at least $1,000 of capital stock for every mile of road \luilt, in case of a road already built] proposed to he built has been subscribed thereto, and paid in good faith, and in cash, to the directors named in the certificate, and that it is intended in good faith to build, maintain and operate the road mentioned therein. [Signatures of the three directors by whom the affida/vit is made.] Severally sworn to before me, this day of , 189 . [Signature of Notary.] Upon filing and recording the certificate of incorporation In the office of the Secretary of State, the fees to be paid are: Filing, twenty-five dollars; recording fifteen cents per folio. Upon filing and recording a certified copy or duplicate original thereof in the office of the county clerk, the fees to be paid are: Filing, SIX cents; recording, ten cents per folio. In addition to such payments an organization tax of one-eighth of one per cent upon the amount of the capital stock must be paid to the State Treasurer. See the statutes regulating such pay- ments, decisions and further information relative thereto, ante, pages fiO-6 \. Steeet Haileoads ; Inoorpoeation of. 805 Forms — No. 97. No. 97. Certificate of Incorporation of a Street Surface Railroad Company. See the Railroad Law, § 3, ante. "We, the undersigned, all being persons of full age, and at least two-thirds being citizens of the United States and one of us a resident of the State of New York, desiring to become a corpora- tion, under and by virtue of the provisions of the Railroad Law, for the purpose of building, maintaining and operating a railroad, do hereby certify as follows : First. [Same as " First " inform No. 96 ] Second. [Same as " Second" inform No. 96.] Third. The kind of road to be built and operated \or operated] shall be a street surface railroad to be operated by horse power {odble or electricit]j\. Fourth. Such railroad is to be built, maintained and operated \or maintained and operated, if already huilt] from in the city [or village] of , to in the city [or village] of , which places will be its termini, and its length will be . miles. Fifth, Sixth, Seventh, Eighth, Ninth and Tenth. [Proceed as in corresponding clauses of form No. 96.] Eleventh. The names and description of the streets, avenues' and highways in which such railroad is to be constructed, are as ■follows : [Insert route.] Twelfth. [)Same as " Twelfth " inform No. 96.] In "Witness "Wheeeof, we have executed and acknowledged this certificate in duplicate, and have subscribed our respective names hereto. ' Dated, the day of , 189 . [Signatures of incorporators, not less than fifteen in number.] [Add here the acknowledgment as inform No. 96.] [Add also the affidavit of three directors as im, form No. 96.] For information relative to payments to be made upon filing and recording Ihe oertiflcates of incorporation, see the notes to Form No. 96., 806 Railroads ; Supplemental Cektificate. Forms — No. 98. No. 98. Supplemental Certificate Contai,ning Names and Places of Residence of Directors, Omitted from Certificate of Incorporation of a Kailroad Company. . See the Railroad Law, § 3, ante. We, the undersigned, tli^ subscribers to the certificate of incor- poration of the {insert corporate name'\ Company, do hereby make and file this supplemental certificate, pursuant to the provisions of section three of the Railroad Law of the State of New York, and for that purpose do hereby certify as follows : That the names and places of residence of the directors of the {insert corporate name] Company were omitted from the certificate of incorporation of said corporation when the same was executed and acknowledged. That thereafter the requisite ntimber of directors were chosen at a meeting of the subscribers to said certificate, held at , on the day of , 189 . That at said meeting the persons whose names and places of resi- dences are as follows were chosen as directors of said corporation, namely : Names. Places of residence. {Insert names and places of residence.] In Witness Whereof, we have executed and acknowledged this certificate in duplicate. Dated, the day of , 189 . {Signatures of subscriiers.'] {Add here the acknowledgment as in form No. 96.] For information as to fees payable upon filing and recording the certificates, see notes to Form No. 74. Raileoads ; Location of Roitte. 807 Forms — Nos. 99, 100. No. 99. Notice to Occupant of Lands of Filing Map and Profile of Koute. See the Hailroad Law, g 6, ante. To [name of ocoupanf] : Take notice that a map and profile of the route adopted in the oounty of by the Eailroad Company, duly certified by the president and engineer [or a majority of the direoiors] of said company, as provided by law, were filed in the office of the clerk of said county of , on the day of , 189 , at o'clock in the noon, and that such route designated thereby passes over the lands occupied by you. Dated, 189 Yours, etc., THE [insert corporate name] RAILROAD COMPANY. By [Signature'], Secretary. No. 100. Certificate to Map and Profile of Route to be Filed with County Clerks by Railroad Corporations. See the Railroad Law, § 6, ante. We, the undersigned, the president and engineer [or a majority of the directors] of the [insert corpotate name] Company, do hereby certify that the foregoing [or annexed] is a correct map and profile of the route adopted in the county of by the said Company, filed pursuant to the provisions of section six of the Railroad Law of the State of New York. Dated, , 189 . Witness : -r. • j j. President. Engineer. iOr Majority of Directors. 808 Railroads ; Location of Route. Porms — No. 101. No. 101. Petition by Owner or Occnpant of Land for Change of Location of Route of a Railroad. See the Railroad Law, § 6, ante. SUPREME COURT, COUNT Y. In the Matter OP THE Application of for Appointment OF Commissioners to Examine Route of| THE [insert corporate name'] Railroad COMPANT. To the Hon. E. L. F., a Justice of the Supreme Court iu the Judicial District. The petition of [inse7'i name] respectfully shows, that he is the occupant [or owner, or hath, as the case may he], of certain pieces or lots of land situate in the town of , county of , and State of New York. That on or about the day' of , 189 , the [insert corporate name] Company served upon your petitioner a written notice of the time and place of the filing of a map and profile designating the route of its road, and stating that such route passes over the lands of your petitioner, wliich lands are described as follows : [Insert description.] That such lands have not been purchased by or given to said railroad company. Your petitioner further shows that he is aggrieved by the pro- posed location of said route, and that the petitioner's objections to such route and location are as follows : [Insert same.] And your petitioner further shows, that the alteration of route proposed by him is as laid down upon the survey, map and profile annexed hereto, whicli said survey, map and profile show the route designated by said railroad company and the proposed alteration thereof. Wherefore, your petitioner prays that your honor will appoint three disinterested persons, one of whom shall be a practical civil engineer, commissioners to examine the route proposed by said rail- Railroads ; Location of Uodte. 809 Forms —No. 102. Toad compaiiy, and the route to which it is proposed to alter the same, and to adopt the proposed alteration, if found consistent with the just rights of all the parties and the public, including the owners or occupants of lands upon the proposed alteration, and that your honor will grant such other or further relief as may be proper and agreeable to law. Dated, , 189 . [^Signature of petitioner.] [Add verijloation hy petitioner, as inform No. 64.] {Annex map, survey and profile of routes.] No. 102. Notice of Application for Appointment of Commissioners to Examine Eoute of Railroad Corporation. See the Railroad Law,§ 6, ante. SUPEEME COURT, ^ COUNTY. In the M.4.TTBR OF THE APPLICATIOK OF FOB, APPOINT-' MENT OF Commissioners to Examine f Route of the ■ Railroad) Company. To the {insert name] Railroad Company, and {insert names of owners or occupants of lands to ie affected hy the proposed alteration]. Take notice, that upon the petition, survey, map and profile, copies of which are hereto annexed, an application will be made to the Honorable E. L. F., a justice of the Supreme Court in the jadicial district at the chambers of ■ said justice, in the city {or village] of , on the day of , 189 , at o'clock, in the noon, for the appointment of commission- ers, pursuant to law, to examine the route proposed by the said Railroad Company, and the route t(i which it is pro- posed to alter the same, as set out in said petition, survey, map 810 Railroads ; Location of Koute. Forms — No. 103. and profile, copies of whicli are herewith served upon you, and for such ofder thereupon as may be in accordance with law. Dated, , 189 . Yours, etc., T. S. R, Attorney for Petitioner. Oflice address No. 103. Order Appointing Commissioners to Examine Ronte. See the Railroad Law, § 6, ante, [Insert title as in preceding forms.'] On reading and filing the verified petition of dated , 189 , praying for the appointment of commissioners pursuant to section six of the Railroad Law to examine the route of the road of the [insert corporate name'] Company, and for such other relief as may be proper, with notice of this application and proof of the due service thereof together with a copy of said peti- tion upon the said railroad company and upon owners or occupants of lands to be affected by the alteration of route proposed by said petitioner, and on motion of , counsel for said peti- tioner, appearing for said railroad company, and for said , it is hereby Ordered, That A. B., a practical civil engineer of the city [or village] of , and C. D. and E. F. of , three dis- interested persons, be and the same are hereby appointed commis- sioners to examine the proposed route of the [inseH corporate name] Company, and the route to which it is proposed by the petitioner 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 the parties and the public, including the owners or occupants of lands upon the proposed alteration, and to make and certify their written determi- nation thereupon in accordance with law. Dated, , 189 . E. L. F., Justice of the Supreme Court. E.AILEOADS ; Location of Route. 811 Forms — Nos. 104, 105. No. 104. Oath of Commissioners. See the Railroad Law, § 6, ante. SUPREME COURT, COUNTY. {Insert title as in form No. 101. J State of New York, , ss. ; County of "We, the undersigned, duly appointed commissioners to examine the proposed routes, respectively, of the petitioner and of the \ins6rt corporate namel Company in the above-entitled proceeding, do solemnly swear that we will support the constitution of the United States and the constitution of the State of New York, and that we will faithfully perform the duties of such commissioners and of said office according to the best of our understanding and ability. A. B. CD. E. F. Subscribed and sworn to before me ) this day of , 189 . * {Signature of Notary."] No. 105. Determiniition of Commissioners Appointed to Examine Bonte. See the Railroad Law, § 6, ante. SUPREME COURT, COUNTY. {Insert title as inform No. lOl.J We, the undersigned, appointed as commissioners in the above- entitled proceeding by an order made by Hon. E. L. F., a justice of the Supreme Court of the judicial district, dated , 189 , dp hereby make and certify our written determina- tion, as follows, to wit : That having, in conformity with the statute and in obedience to the terms of said order, examined the route proposed by the 812 Railroads ; Location of Eoute. Forms — No. 106. [insert corporate name] Company, and the route to which it is proposed to alter the same, and after hearing the parties we do hereby affirm the route originally designated by said railroad com- pany [or do hereby adopt the proposed alteration of such route as set out in the petition of , and in the inap and su?-vey annexed hereto and marJced "I^xhiMt A."] We do hereby determine that the said route shall be and hereby is located accordingly, and that said location is consistent with the rights of all the parties and the public [including the owners or occupants of lands upon the proposed alteration.] That the testimony taken before us in this proceeding is annexed hereto, marked " Exhibit B." In "Witness Whereof, we have made and signed this certificate this day ,189 . [Signatures of commissioners.] No. 106. Notice of Appeal from Determination of Commissioners Appointed to Examine Bonte. See the Railroad Law, § 6, ante. SUPEEME COURT, COUNTY. [Insert title as inform Wo. 101. J To , Esq., attorney for , and , Esq., the county clerk of county : Take notice, that [insert name of appellant] hereby appeals to the General Term of the Supreme Court, from the decision and determination of the commissioners, made in the above-entitled proceeding and filed in the office of the clerk of county on the day of , 189 . Dated, , 189 . Yours, etc., M. K, Attorney for Appellant. Office address Eaileoads ; Location of EiOute. 813 Torms — Nos. 107, 108. No. 107. Order of General Term Affirmins or Reversing Determination of Com- missioners Appointed to Examine Route. See the Railroad Law, § 6, ante. At a General Term of the Supreme Court in and for the judicial department, held at in the city [or village] of , on the day of ,189 Present : Hons S. L. M., Presiding Justice, and D. C. H. and J. E. P., Justices. [Insert title of proceeding as inform Wo. 101.] The appeal of ,'in the above-entitled proceeding, from the determination of the commic-ioners appointed by ordor of , a justice of the Supreme Court in the judicial department, dated , 189 , which determination was -filed in the oflnce of the clerk of county, on the day of ,189 , having been heard at this term, now, on motion ^f , counsel for , the appellant \or respondent], and after hearing , counsel for , the respondent [or appellant], it is hereby Ordered, That the determination of said commissioners be and the same is hereby affirmed [or, reversed, as the case may he], and that the route of the road proposed by the said {insert corporate name] Railroad Company be and the same is hereby affirmed \or, that the route of tlie road proposed hy the petitioner, said , ie and the same is hereby adopted]. ■ind it is further ordered, that dollars \the compensation and expenses of the commissioners herein and] costs of this appeal and disbursements for printing be paid, by to No. 108. Certificate of a Railroad Company for a Change of Ronte. See the Railroad Law, § 13, ante. The {insert corporate name] Company, a domestic railroad cor- poration, by its president and secretary, who are duly authorized to 81i Raileoads ; Location of Route. Forms — No. 108. make this certificate, does hereby certify, pursuant to the Railroad Law, article 1, section 13 : That a meeting of the board of directors of such company was held at its office, at No. street, in the city [or village] of , on the day of , 189 , at o'clock, P. M. lor A. Jf.], all of the directors being present [oi' more than two-thirds of the directors being present, as the case may be]. That at such meeting the following resolution was offered : "Resolved, That [insert corporate name'] Company, alter or change its route [or apart of the route of its road or its termini, or locate such route, or apart thereof, or. its termini in an adjoining county, as the case may be] as follows, to wit : [Sere insert the proposed alterations or changes in the route or termini of the road], and further " Resolved, That the president and secretary of the com- pany be and they are hereby authorized to make and execute a proper certificate of such alteration or change of route and to file such certificate in the clerk's office of the proper county, together with a survey and map of such alteration or change." That such resolution was duly adopted at said meeting by a vote of two-thirds of all the directors of said company. In "Witness Whereof, we have made and executed this certifi- cate, and have hereunto set our hands and affixed the corporate seal of said company this day of 189. President. rCorporotel L seal. J Secretary. State of New Tobk, ) _ „ ' > ss. : Uounty of , ) [Insert the name of secretary], being duly sworn, deposes and says, that he is the secretary of said [insert corporate name] Com- pany, mentioned in the foregoing certificate ; that he is acquainted with [insert name of the president] and knows him to be the president of said company; tliat the signature of [insert name of Raileoads in Foeeign Countey : Incoepoeation. 815 Forms — No. 109. presidenti, subscribed to said certificate as president of said com- pany, is in the genuine handwriting of said {insert president^ name\ and was thereto subscribed by order of the board of directors of said company ; and the deponent subscribed his name thereto, as secretary, as aforesaid, and attached the corporate seal by virtue of a hke order of said board of directors. Secretary. Sworn to before me this day of 189 {Signature of Notary. \ The foregoing certificate is required to he filed in the county clerk's oflBce, together with a survey and map of the alteration or change of route. No. 109. Certificate of Incorporation of a Bailroad Company to Operate in a Foreigrn Country. See the Eailroad Law, § 17, ante. Oeetificate op Incoepoeation of Raileoad Company. We, the undersigned, all being persons of full age, at least two- thirds of whom are citizens of the United States and one of us a resident of the State of J^ew York, desiring to become and form a corporation, pursuant to section seventeen of the Eailroad Law, for the purpose of constructing, maintaining and operating in a foreign country, to wit : {Insert name of country'] a railroad {or, for the purpose of madntadningf a/nd operating in a foreign counPi-y, to wit : , a raAl/road already constructed] for public use in the transportation of persons and property, and of constructing, main- taining and operating, in connection thereWith, telegraph lines and lines of steamboats or sailing vessels, do hereby make, acknowledge and file this certificate, and certify as follows, to wit : First. The name of the corporation is to be {mserf corporate name] Company. {Continue as in form No.^Q.] 816 Kaileoads ; Consolidation. Forms — No. 110. No. 110. Agreement for Consolidation of Railroad Corporations. See the Railroad Law, §§ 70-71, ante. This joint agreement, made the day of , 189 _ , between the directors of [insert corporate name] Company, party of the first part, and the directors of [insert corporate name] Company, party of the second part, under the corporate seals of said companies, Witnessetli : That the [insert corporate name] Company, said party of the first part, the capital stock whereof is $ , is a railroad corporation organized under the laws of the State of New York, and operating a railroad wholly within said State [or partly within the State of New York and partly within the State of , or whose lines or routes of roal have been located, hut not constructed, as the case may he.] That [insert corporate name] Company, said party of the second part, the capital stock whereof is $ , is a railroad cor- poration organized under the laws of the State of New York [or under the laws of the State of J, and operating a railroad wholly within the State of New York [or within the State of , or as the case may he]. That the railroads of said companies [or hranches, or parts thereof, or the line or routes of their roads, if not constructed] form [or shall or may] form a continuous or connected line of rail- road with each other [or hy means of an intervening railroad hridge, tunnel or ferry]. That, in consideration of the mutual covenants and agreements herein contained, the said parties hereto do hereby merge and consolidate the capital stock, franchises and property of said par- ties hereto so as to form one corporation under and in pursuance of the laws of the State of New York, in such case made and pro- vided, and by these presents, They do hereby covenant and agree upon and prescribe the terms and conditions of such consolidation, and the mode of carry- ing the same into effect, which said terms and conditions and mode Kaileoads; Consolidation. 817 Forms — No. 140. of carrying the same into efEeet, tliey mutually covenant and agree to observe, as follows, to wit: First. That the name of the corporation hereby formed by said consolidation shall be [insert corporate name'] Company. Second. That the number of directors of said new corporation, hereby formed, shall be [state number, not less than nine]. Third. That the names and places of residence of the [insert number] directors and the other officers of said new corporation, who shall be the first directors and officers thereof, and shall manage its affairs for the first year, or until others are chosen in their places, are as follows, to wit : Name of directors. 1 Keeidences. 2 3 - 4 5 6 Y 8 9 Officers. President Names. Kesideceu. "V"if»ft-T*rpRiHfiTit Secretary Fourth. That the capital stock of said new corporation shall be dollars, consisting of shares of the par value of dollars each.* Fifth. That the manner of converting the capital stock of each of the companies, parties hereto, into the capital stock of said new corporation shall be as follows : [Mcample given: The oq/pital stock of each of the railroaid com- • In no case shall the capital stock of (he corporation formed by sack consolidation exceed the sum of the capital stock of the corporations so consolidated, at the par value thereof. (Sec the Railroad Law, § 71, subd. 2.) 52 818 Railroads; Consolidation. Forms — No. 110. parties, parties hereto, shall he convertible into the capital stock of said consolidated company and new corporation, share for share, and upon presentation and surrender of any outstanding certifi- cates of stock in either of said companies, parties hereto, certifi'Cates for like amounts of stock in said consolidated company and new corporation shall he issued to the holders thereof^ Sixth. That time and manner of choosing directors and officers shall be as follows : {Example given : That there shall he an elec- tion for directors of the said new corporation on the day of in the year 189 , and there shall he an annual election for directors of said new corporation on the day of in each and every year thereafter. That the said directors shall he chosen hy a majority of the votes of the stockholders voting at such election, in such manner as may he presci'ihed hy the hy-laws of the said consolidated company, and they shall continue to he directors of such consolidated company for one year from the date of their election and until others are cJiosen and qualified in their places. In such election each stockholder shall he entitled to one vote, either in person or hy proxy, for each share of stock held hy such ■stockholder for ten days previous to such election. Vacancies occurring in the hoard of directors shall he filled in such inanner as shall he prescrihed hy the hy-laws of the said consolidated com- pany. The president, vice-president, treasurer and secretary shall he chosen hy hallot hy the directors immediately succeeding the ■annual election of directors, and vacancies shall he filled as pro- ■vided in the hy-laws of said consolidated company. The directors ■of ths said new corporation may, from time to time, choose or appoint such other officers as they deem advisahle.] And the parties hereto do further covenant and agree as follows, to wit : [Insert any special terms and conditions agreed upon, amd mode of carrying the same into effect.'] In Testiiiont Wheeeof, the said parties of the first and second parts have executed this agreement in duplicate, and have hereunto set their respective signatures and have caused to be hereto affixed « Railroads; Consolidation. 819 Forms — No. HO. the corporate seals of their respective railroads, of which they are respectively the directors, the day and year first aforesaid. • ) ) ) Directors of the Company. ["^a™''] Attest : , President. , Secretary. Directors of the Company. j-corporata-] Attest : , President. , Secretary. State of New Yoek, ^ SS. I County of , [^Insert name of secretary of flrst-na/med constituent company'] being duly sworn, deposes and says, that he is the secretary of said [insert name of the company'] mentioned in the foregoing agree- ment of consolidation and merger, dated , 189 ; that he knows the corporate seal of said company ; that the corporate seal affixed to said agreement is such corporate seal, and was so affixed by order of the board of directors of said company; that deponent is acquainted with {insert the name of the president], and knows him to be the president of said company ; that he is acquainted with the handwriting of said [insert the na/me of the Resident] and that the signature of [insert the name of thepresi- tdeni}^ subscribed to said agreement as president of said company is in the genuine handwriting of said [insert president's name], and 820 Eaileoads; Consolidation. Forms — No. 111. was thereto subscribed by order of said board of directors ; and the deponent subscribed his name thereto as secretary, as aforesaid, by virtue of a like order of said board of directors. , Secretary. Sworn to before me this day of ,189 {^Signature of Notary. '\ [Prepare in the same form as above proof of execution hy_ the sec- retary of the other constituent company, and annex the same.] State of New York, , ' ^ ss. County of On this day of , 189 , before me personally came [insert names of directors of first constituent company sign- ing agreement], directors of [insert corporate name], to me sever- .ally known, to be the persons described in and who severally executed the foregoing agreement and severally acknowledged to me that they executed the same for the uses and purposes therein expressed. [Signature of Notofry.] [Prepare in the same form as above acknowledgment by direc- tors of ths other constituent company, and annex the same.] In case stockholders owning two-thirUs of all the stock of each of the consolidat- ing corporations shall sign a consent in writing signifying their assent to the consolidation, such consent of each constitutent corporation must be appended to the agreement in the following form : No. 111. Written Consent of Stockholders to be Annexed to Agreement for Con- solidation. We, the undersigned, stockholders of the [insert corporate name] Company, owning two-thirds of all its stock, do hereby sign this consent, signifying our assent to the within and annexed agreement of consohdation of said corporation with the [insert corporate nam^] Company. Railroads ; Consolidation. 821 Forms — No. 113. In Witness "Whereof, we have subscribed our names to this consent and set opposite our respective signatures hereto the number of shares of stocic owned by each of us in said' Company. Dated, this day of , 189 . shares. shares. [Attach achnowledgment of persons signing the consent, and the affidavit of the cusUtdiam, of the stoch hook as inform No. 23.] If the consent in writing of stockholders owning two-thirds of the stock is not obtained, such consent must be secured at a special meeting, and certifloatea to that effect must be annexed to the agreement in the following form: No. 112. Certificate of Adoption of Agreement for Consolidation of Railroad Corporation. (To be attached to agreement of consolidation in lieu of written consent, when the latter is not obtained.) I \insert secretary's name\ secretary of '\insert corporate name of first-Tnentinned constituent company], a corporation duly organ- ized and existing under the laws of the State of ]S"ew York, do hereby certify under the corporate seal of said company : That the annexed agreement bearing date the day of , 189 , for the consolidation of the said {insert name of first-mentioned constituent company] with [insert name of other constituent com- pany] under the name of [insert name of the new corporation] Company, as the corporate name of sacli new corporation, was sub- mitted to the stockholders of said [insert narne of first-mentioned . constituent company], at a special meeting of such stockholders called and held at the office of [insert place of meeting], number street, in the city [or village] of in the county of and State of New York, on the day of , 189 , for the purpose of taking the same into consideration ; that due notice of the time and place of holding such meeting, and the object thereof, was given by the said \%nsert name of first-men- tioned constituent company] to' its stockholders by written or 822 Railroads ; Consolidation. Forms — No. 112. printed notices addressed to each of the persons in whose name the capital stock of such corporation at the time of giving such notice, stood on the books thereof, and that such notice was dehvered to such persons respectively, or sent to them by mail, postage pre- paid, when their post-ofiSce addresses were known to said eorpora- ation, at least thirty days before the time of holding such meeting, and that a general notice of the time and place and object of such meeting was published at least once a week for four weeks succes- sively in [insert name of newspaper'], being a newspaper published and printed in the city of [or town or county of] , in which said [insert corporate name] Company has its principal office or place of business. That at such meeting of said stockholders the aforesaid annexed agreement was considered and a vote taken by ballot for the adoption or rejection of the same, in pursuance of and in conformity with the provisions of the statutes in such case made and provided, and said ballots were cast in person or by proxy, and that upon said ballots, votes of tlie stockholders owning at least two-thirds of all the stock of said corporation were cast for the adoption of said agreement for consolidation, there having been cast for such adoption the votes of [insert number] shares, and that said [insert number] shares constitute more than two-thirds of all the stock of said corporation. That such agree- ment for consolidation was thereupon declared duly adopted. In Witness Whereof, I [insert secretary's name], the said secre- tary of [insert name of first-mentioned constituent company], have hereunto certified the above facts upon the said agreement for con- soUdation, .and hereunto set ray hand and affixed the corporate seal of said [insert namie of first-menUoned constituent company], this day of , 189 . , Secretary, r CorporaU~\ r^ L leai. J Company, Railroads ; E.p:lative to Lease. 823 Forms — No. 113. State of New Yoek, County of , On this day of , 1 89 , before me the under- signed, a notary public in and for said county, personally appeared [insert name of secretary^, to me personally known to be the same person who signed the foregoing certificate as secretary of [insert corporate name] Company, and known to me to be such secretary, who, being by me duly sworn, did depose and say, that he is the secretary of said [insert corporate name] Company, and knows the corporate seal thereof, and that the seal affixed to the said certificate is such corporate seal, and was so affixed by order of the board of directors of said company, and that he signed his name thereto by the like order. In Witness Whbeeof, I have hereunto set my haiid the day and year above set forth. [Signature (f Notary. ] [Prepare in the same form as above the certificate of the secretary of the other constituent company, and annex the same.] Upon filing and recording the agreement of consolidation of railroad corpora- tions in the office of the Secretary of State the fees are as follows : Filing, twenty- five dollars; recording, fifteen cents per folio. In the county clerk's office the fees are: Filing, six cents; recording, ten cents per folio. No organization tax is payable to the State Treasurer; see organization tax act and decisions thereunder, ante, pages 60, 61. No. 113. Notice of Meeting of Stockholders of Kailroad Corporation to Consider Lease of Boad. See the Railroad Law, § 78, ante. To the Stockholders of the [insert corporate name] : . Notice is hereby given that a meeting of the stockholders of the [insert corporate name] Company will be held at , in the city [or village] of , in the county of , and that the object of such meeting is to consider a lease of the railroad owned [or operated] by said company to the [insert corporate name] Company for the term of years. Dated, , 189 . , Secretary. 824 Kaileoads ; Relative to Lease. Forms — Nos. 114, 115. No. 114. Certificate of the Adoption of a Lease of a Railroad. See the Railroad Law, § 78, ante. I, {insert nami], secretary of the [insert corporate name'] Com- pany, do hereby certify, as follows, to wit : That a meeting of the stockholders of the [insert corporate name'] Company, one of the parties to the foregoing contract or lease, was duly held at the office of the company, No. street, in the city of , on the day of , 189 , at o'clock in the noon, for the purpose of approving of said contract or lease. That notice of the time, place and object of said meeting was duly served, at least thirty days previously, upon each stockholder of the said [insert corporate name'], personally or mailed to him at his post-office address ; and such notice was also published at least once a week for four weeks successively in the , a newspaper printed in the city of , wliere the said [insert corporate name] Company has its principal office. That at the said meeting, by a vote of the stockholders owning more than two-thirds of the entire capital stock of the said [insert corporate name] Company, duly voting in person or by proxy, the foregoing contract or lease was duly approved. In "Witness Whereof, I have hereunto set my hand as such secretary, and affixed hereto the corporate seal of the said [insert corporate name] Company, this day of 1 89 . [Signature.] Secretary. r Corporate^ •' L seal. J No. 115. Record of Proceedings of Meeting of the Stockholders of a Railroad Corporation for the Adoption of a Lease, to be Entered in the BooJc of Minntes. See the Railroad Law, § 78, ante. ,^-Y., ,189 . A special meeting of the stockholders of the [insert- corporate name] Company was held this day at o'clock, M., pur- Street Kaileoads ; Consent to Consteuct. 825 Forms— No. 116. fiuant to due notice, served at least thirty days previously upon each stockholder personally, or mailed to him at his post-office address and also published at least once a week for four weeks successively in [insert name ofpajaer], a newspaper printed in the city of , where such corporation has its principal oifice, of which notice the following is a true copy, to wit : [Insert copy of notice as given inform Wo. 113.] Stockholders owning at least two-thirds of the stock of the cor- poration appeared in person or by proxy, and organized by choos- ing from their number , as chairman, and , as secretary. A certain contract or lease {describing it] was read by the secre- tary of the mee'Eing. The following resolution was then offered : " Kesolved, That a certain contract or lease [describing it] be and the same is hereby in all respects approved." Upon a vote of those present in person or by proxy upon such I'esolution, stockholders owning shares of stock, being at least two-thirds of the stock of the company, voted in favor of the adoption of such resolution, and stockholders owning shares of stock voted against its adoption [or, and no stockholder voted against its adoption, as the case may be]. Such resolution was thereupon declared duly adopted, and said contract or lease approved, and the meeting then adjourned. Secretary. No. 116. Consent of Property Owner to Construction of Street Surface Railroad. Bee the Kailroad Law, § 91. ante. I the undersigned, owner of property in the city [or village] of , fronting on the portion of street, situated between and streets, do hereby consent to the con- struction and operation of a street surface railroad by the [insert corporate name] Company through and along said 'street, in said city [or village], and to the construction by said company 826 Street Railroads ; Consent to Consteuct. Forms — Nos. 117, 118. of such switches, sidings and turnouts as may be necessary for the convenient working of such road, and that said company may operate said road by means and power of electricity, and may erect poles and string wires on said street for that purpose. Dated, , 189 . [Signatttre of property owner.] [^Attach acloiowledgment.'] No. 117. Consent to Use of Electricity by Existing' Street Snrface Railroad. See the Railroad Law, § 91, ante. I, the undersigned, owner of property in the city [or village'] of , fronting on the portion of street, situated between and i streets, along which portion of said street the [insert corporate name] now operates by animal power a street surface railroad, do hereby consent that said com- pany may operate said railroad by the means or power of electricity, and may erect poles and string wires for that purpose. Dated, , 1S9 . {Signature of property owner.] {Attach acknowledgment.'] No. 118. Notice of Application to Local Antliorities for Consent to Construct and Operate a Street Snrface Kailroad. See the Railroad Law, § 93, ante. Public notice is hereby given, pursuant to the directions con- tained in a resolution duly adopted on the day of 189 , by the common council [or hoard of trustees] of , and approved by the mayor [or as the case may he] on the , 189 , that an application in writing has been made to the common council of said city of [or hoard of trustees, etc.], by the [insert corporate name] Company for per- mission to construct, maintain, use and operate a street surface railroad for public use in, through, upon and along the surface of streets, avenues and highways, as follows : [Insert same.] Steeet Eaileoads ; Consent to Cohsteuct. 827 Forms — No. 119. ^ Notice is, therefore, hereby given that the common council of the city of [or board of trustees, etc.] will convene at in said city [or viUage]-on the day of , 189 , at o'clock M. of that day, at which time and place the aforesaid a^Dplication will first be considered by the said common council [or board of trustees], and all persons who desire may be heard relative thereto. Dated, , 189 . City Clerk, etc. No. 119. Application to Local Authorities for Consent to Construct and Operate a Street Surface Railroad. See the Railroad Law, § 92, ante. To the Honorable the Common Council of the City of [or the -Board of Trustees of the Village of ] : The petition of the [insert corporate name] Company respect- fully shows : That your petitioner is a street surface railroad corporation, duly organized and incorporated under and in pursuance of an act of the Legislature of the State of JSTew York, entitled the Railroad Law [or as the case may be]. That the said corporation proposes to build, construct, maintain and operate a street surface railroad for public use in the convey- ance of persons and property in cars for compensation in the city [or milage] of , in the county of , upon and along the surface of the following streets, avenues and highways in the city [or tillage] of , to-wit : Beginning at, etc. [describing route]. . That the railroad proposed to be built, constructed, maintained and operated by your petitioner, as hereinbefore set forth, is intended to be operated by any motive power, other than loconio- tive steam power, which now or at any time hereafter may law- fully be used and employed on its route. 828 Street Railroads ; Consent to Constbuot. Forms — No. 120. Your petitioner further shows that, pursuant to the laws of this State, it is necessary for it to obtain the consent of the common council of the city [or the board of trustees of the village'] of to enable it to construct, maintain and operate the railroad afore- said, and accordingly your petitioner now applies to your honorable body for such consent. Wherefore, your petitioner prays and makes application to the common council of the city of [or as the case may he] for its consent and permission to be granted to your petitioner, its successor, successors, lessees and assigns, to construct, maintain and operate a street surface railroad for public use, through, upon and along the avenues, streets and highways above set forth and described, together with all necessary connections, switches, sidings, turnouts, turn-tables, cross-overs and suitable stands for the convenient working of said railroad, and for the accommoda- tion of the company's cars which may be run over said railroad by your petitioner, its successors, lessees or assigns ; and also that con- sent and permission be granted to your petitioner, its successors, lessees or assigns to the erection upon said streets, avenues and highways of the necessary poles and the stringing of wires, so that the ears of said company may be moved by the means or power of electricity. Dated, ,189 . THE COMPANY, By , President. [Attach proof of execution.] No. 120. Consent by Local Anthorities to the Construction and Operation of Street Surface Railroad. See the Railroad Law, § 92, ante. Whereas, the [insert corporate name] Company, a street surface railroad corporation, has made application by petition in writing to the common council [or hoard of trustees, or as the case may he] of the city [or village, or town] of , in the county of Street Eailkoads ; Consent to Constetjox. 829 Forms — No. 130. for consent to construct, maintain and operate a railroad {or exten- sions, or Iranohes thereof, as the case manj be}, upon the surface of, through and along certain streets and avenues {roads or highways'] of the said city [or village], as follows, to wit ; {Insert the same], and for consent to construct such switches, sidings, turnouts and turn-tables and suitable stands as may be necessary for the con- venient working of such railroad. And, whereas, the said common council {or hoard of trustees], before acting upon such application, gave public notice thereof, and of the time and place when such application would first be con- sidered, which notice was published daily in said city, pursuant' to law, for at least fourteen days in the and the , two daily newspapers in said city {oir, as the case may he, showing a corwplianee with § 92 of the Mail/road Law]. And, whereas, at the time and place named in said notice the said application was duly considered and the said railroad company and the persons appearing at said time and place were heard in relation to said application. And, whereas, said common council {or hoard of trustees, etc.], has determined that consent shall be given to the construction, maintenance and operation of said railroad {or extensions, or branches], and of such switches, sidings, turnouts and turn-tables and suitable stands, as may be necessary for the convenient working of said railroad ; therefore, be it Resolved, That said consent be and the same hereby is given, pursuant to law, to the said {insert Gorporate name] to construct, ^ maintain and operate a railroad {or extensions, or branches] upon the surface of, through and along the following streets and avenues {or roads, or highways] of said city {or village], to wit : {Insert the route], and consent is also hereby given to said company to con- struct upon said streets and avenues such switches, turnouts and turn-tables and suitable stands as may be necessary for the con- venient working of said railroad ; further Resolved, That the foregoing consent is given upon the following expressed condition {or conditions], to wit : That the provisions of article four of the Railroad Law pertinent thereto shall be complied with. 830 Dissolution of Oobpoea.tion. Forms — No. 121. That this consent shall be filed in the office of the clerk of the county of [insert name of county in which the railroad is located]. That [7/^ t/te case is within the provisions of section 93 oj^the Hail- road Law, insert the conditions therein reouired, or any other conditions determined upo7i]. No. 121. Petition for Dissolution of a Corporation, See Dissolution and Receivers, ante. To the Supreme Court of the State of !N^ew York : The petition of and respectfully shows to this court : That they are a majority of the directors [or trustees, as the case may he], having the management of the concerns of the [insert corporate name] Company, a corporation created under the laws of the State of New York, to wit : Under [state the law]. That your petitioners have discovered that the stockj effects and other property of said corporation are not sufficient to pay all just demands for which it is liable, or to afford a reasonable security to those who may deal with it [or, if for other reasons, state them] ; and they deem it beneficial to the interests of the stockholders that the said corporation should be dissolved. That tlie principal office of the said corporation is located in [state location]. That your petitioners have annexed to this petition a schedule, marked "Schedule A," containing a statement of the matters required by section 2421 of the Code of Civil Procedure, as far as your petitioners know, or have the means of knowing the same. Wherefore your petitioners pray for a final order of this court dissolving the said corporation and appointing a receiver of its property and effects, and for such other and further relief as may be proper. Dated, , 189 . '{Signatoirea of Peti'&mvrs.] < Dissolution of Corpoeation. 831 Forms — No. 121. ^ SoHEDtTLB to BE AnNEXED TO PETITION. ScHEDtTLE A. rir.=it. A full and true accouat of all the creditors of the corpora- tion and of all unsatisfied engagements entered into by, and subsist- ing againstj the corporation. Second. A statement of the name and place of residence of each creditor, and of each person with whom such engagement was made, and to whom it is to be performed, if known ; or, if either is not known a statement of that fact. Third. A statement of the sum owing to each creditor or other person specified in the last subdivision, and the nature of each debt, demand or other engagement. Fourth. A statement of the true cause and consideration of the indebtedness to each creditor. Fifth. A full, just and true inventory of all the property of the corporation, and of all the books, vouchers and securities relating thereto. Sixth. A statement of each incumbrance upon the property of the corporation by judgment, mortgage, pledge or otherwise. Seventh. A full, just and true account of the capital stock of the corporation, specifying the name of each stockholder, his residence, if it is known ; or if it is not known, stating that fact ; the number of shares belonging to him, the amouuD paid in upon his share, and the amount still due thereon. State of New Yokk, ) ' ^ ss. : County of . ) {^Insert names of petitioners], being severally duly sworn, each for himself, says that the matters of fact stated in the foregoing petition subscribed by him, and the schedule thereto annexed and therein referred to, marked " Schedule A," are just and true, so far as he knows or has the means of knowing the same. [Signature of Petitioners.'] Sworn to before me this day ) of , 18 . ) [SigiMtu/re of Notary.] 832 Dissolution of Oorpoeation. Forms — No. 133. No. 122. Order to Show Cause. At a Special Term of the Supreme Court, held at , in the citj [or village'] of , oa , 189 ' . Present : Hon. D: C. H., Justice. Ik the Matter OF THE Application for a Volttntaby Dissolu-V TiON OF THE [imert corporate name] Com-' PANT. On reading and filing the petition of and , as directors [or trustees as the case may he'] of [insert corporate name] Company, a corporafton created under the laws of this State, having its principal office located at [insert location], this State, and the schedule thereto annexed, duly verified by the petitioners on the day of , 189 , and on motion of of counsel for the petitioners. Ordered, That all persons interested in said corporation show cause, before this court, before , Esq., who is hereby appointed referee for that purpose, at his office, JSTo. street, in the city [or village] of , N. Y., on the day of , 189 , at o'clock, in the fore- [or after] noon of the day, why the said corporation should not be dissolved. And it is further ordered, that a copy of this order be published at least once in each week of the three weeks immediately preced- ing the said day of , 189 , in the [insert name of newspaper] and the [insert name of newspaper], newspapers published in the city [or village] of , in the county of , wherein this order is entered. Justice of Supreme Court. Dissolution of Oobpoeation. ^3 Forms — No. 133. No. 1S3. Notice of Appointment of Receirer. SITPEEME COUET, '. . . . COUNTY. In the Matter OF THE Application for a Voluntary Dissolu- tion OF THE [insert corporate nanu] Com- pany. Notice is hereby given that I have been appointed by the Supreme Court of the State of New York receiver of all the prop- erty assets and effects of the above-named corporation, for the benefit of the creditors of said company and of the stockholders thereof, and that I have duly qualified as such receiver, and I do require : First. All the persons indebted to said corporation to render an account to me, at my office. No. , in the city [or village], of , in the county of and State of New York, on or before the day of , 189 , of all debts and sums of money owing by them respectively, and to pay the same to me. Second. All persons having in their possession any property or effects of such corporation iq deliver the same to me on or before the said day of , 189 . Third. All the creditors of said corporation to deliver to me their respective accounts and demands, duly proven by affidavit in. the usual form, on or before the said day of , 189 . Fourth. Any person holding any open or subsisting contract of said corporation to present the same in writing and in detail to me at the place aforesaid, on or before the said day of 189 . Dated, , 189 , Receiver. Attorney for Eeceiver. Office and post-office address 53 834 Kepobt to State Compteollek. Forms — No. 124. No. 124. Report Beqnired by State Comptroller Under Chapter 542, Laws of 1889. [Blanks for this report can be obtained by addressing the Comptroller.] Report of the Company for the year ending the first day of November, A. D. 189 , made pursuant to provisions of chapter 542, Laws of 1880, and the subsequent acts amendatory thereof. \_Give post-office address of company, street and number.] 189 . To the Comptroller of the State of Nevv York : Agreeably to law, as treasurer of the above company, I make the following report, viz.: 1. This company began business in the State of jSTew York in the month of , 189 . 2. The last report made by this company to the Comptroller of the State of New York under the provisions of the above act was made for the year ending November 1, 1 89 . 3. Value of real estate and of interest or interests in real property in New York State and where situated $ 4. Organized under the laws of tlie State of 5. Date of organization of the company, 6. Total authorized capital of company 7. "Whole number of shares of stock authorized. 8. Number of shares of stock issued, 9. Par value of each share 10. Amount paid into the treasury of the company on each share 11. Amount of capital paid in 12. Amount of capital upon which dividends were declared 13. Date of each dividend declared, 14. Amount of each dividend declared 15. Rate per cent per annum of dividends Report to State Compteollee. 835 Forms — No. 124. 16. The business transacted by this company in the State of New . York for the year ending November ] , 1 89 , was as fol- lows, viz.: [Oivingr nature of business and how carried on.] 17. And such business was carried on at the following named place or places, [drive street and number.] _ 18. Capital stock employed in New York State, $ [Preceding line need not be filled out bij compunies whose capital is all employed in this State.] 19. If not in New York State, where and how employed? 20. Highest price of sales of stock during the year aforesaid 21. Lowest price of sales of stock during the year aforesaid. Treasurer. State of New Yoek, County of , On this day of , A. D. 189 , personally appeared before me, a notary public in and for the county of , , treasurer of the above-named com- pany, who, being duly sworn according to law, did depose and say, that the foregoing report is just, true and correct, according as the accounts stand in the books of the company, and that it includes all dividends, whether cash, stock, scrip or of any other character or description, declared by said company during the year ending on the first day of November, A. D. 189 . Treasurer. Sworn to and subspribed before me, \ the day and year aforesaid. ) [l. s.j Nota/ry PubUc. 836 Repoet to State Compteollbr. Forms — No. 135. No. 125. Report and Appraisement for Year in which no Diyidend or a Diridend of Less than Six Per Cent has Been Declared, as Shown by Beport under Form No. 124. Eeport and appraisement of the Company, for the year ending the first day of November, 189 . State of New York, ) . r SS. • County of . ) On this day of A. D. 189 , before me, the subscriber, a notary public in and for the county of per- sonally appeared treasurer, and secretary of the above-named company, who being by me severally duly sworn, did say that the amount of capital paid in of said company is $ and that said company declared no dividend in cash, stock, scrip, or of any other character or description during the year ending the first day of November, 189 , save the dividends herein reported, and that they will with fidelity, according to the best of their knowledge and belief, estimate and appraise the capital stock of said company at its actual value in cash, not less, however, than the average price which said stock sold for during said year. ) Treasurer. Secretary. Sworn to and subscribed, before me, ) the day and year aforesaid. i [^Signature of Notary^ Repobt to State Compteollee. 837 Forms — No. 125. Office of the Company, , ,189 . "We, the undersigned, being the treasurer and secretary of the above-named company, do certify that, in pursuance of our afore- said oaths, we" have estimated and appraised the capital stock of said company, at its actual value in cash as follows, viz. : shares at dollars and cents per share, amounting in the whole to dollars. In "Witness "Wheeeof, we have hereunto set our hands the day and year aforesaid. 5 Treasurer. Secretary. This report should be filed in the State Comptroller's office on or before November fifteen, annually. The tax based on the report is due January fifteen. Accounts for the same will be sent from the Comptroller's ofiice about January first., [Both forms 124 and 125 are to be used in all cases where no dividend has been declared, and where the dividends declared do not amount to six per cent on the whole capital stock. Where the dividends are equal to or greater than six per cent, the first form, when properly filled, will be a sufficient report.] Whenever no dividend is made or declared, and the stock is appraised at a lower value than the previous year, or no value at all, an explanation of the fact should be made in the report. Ten per cent penalty may be added to the tax if the report is not. made and forwarded to the State Comptroller by November fifteenth. If the tax levied and assessed is not paid by January fifteenth, legal interest will be charged. If the report is not made by November fifteenth and the tax not paid by January fifteenth, the penalty and interest will both be charged. Companies whose dividends are six per cent or over need not answer questions 20 and 21. If the capital stock has been increased or decreased, report it under the head of remarks. 838 Affidavit; Exemption fhom State Taxation. Forms — No. 126. No. 126. Statement and Affldarit of Corporation Claiming Exemption from Direct State Taxation. See State Tax Law, § 3, ante. [Blanks for this proof can be obtained by addressing the Comptroller.] Statement and affidavit of of Company claiming exemption from making reports, and the payment of tax, as levied and assessed under chapter 542, Laws of New York, 1880, and the acts amendatory thereof and supplemental thereto. 1 . Full name of the corporation, joint-stock company or association. 2. ITame and title of officer making this statement. 3. Under what law of what State or country was the corporation, joint-stock company or association, incorporated, organized or formed, and date of organization ? 4. For what purpose ? 5. Nature of business now transacted ? 6. If a mining company state where the mines are located ? 7. If an agricultural company, state where the company's plant is situated ? 8. If a manufacturing company, state where the factory is located ? 9. Does the company maintain, own and operate the mine, plant or factory? 10. Does the company actually manufacture within the State of New York, all the goods, wares or merchandise sold or used by the company in its business in this State ? 11. Does the company lease to other parties the right of manu- facture of goods sold by it ? 12. Does the company cause any of its products to be manu- factured by any other person, partnership, association or corpora- tion within or without this State, that it uses or sells in this State? 13. Location of main business office of the company? Remarks : [^Signature.l Hacing Associations ; Eepoet foe Taxation. 839 Forms — No. 137. [ ss. • State of New Yoek, County of , [Insert name], President [or Treasurer], of the [insert corporate name] Company being duly sworn, deposes and says, that the answers to the above questions as set down by him and remarks, are true and correct. Sworn to and subscribed before me, ) this day of , 189 . ) [Signatiire of Notan'yI\ {Signature.] No. 127. Beport of Kacing Associations. Eepoet of the Geoss Receipts OF the [Insert corporate name] Association foe the teae 189 , made IN Accoedance with the Requieements of Chaptee 479, Laws of 188Y, as Amended. Office of [insert corporate name] Association, [Insert address.] ,189 The following scheduie ^ows tne gross receipts from all sources : Dollars. Cents From gate receipts From grand stand receipts *. . From refreshment privileges . . . ., From score card receipts ■ From betting and pool receipts From receipts f rorti all other sources Gross receipts Tax on gross receipts, rate of five per centum. 840 Joint Stock Association; Annual Cebtificate. Forms — No. 128. State of New Yokk, ) . f SS. • County of . ' Ou tlie day of , A. D. 189 , personally appeared before me a notary public in and for the county of [insert name], treasurer of the association who being sworn accord- ing to law, did depose and say that he is the treasurer of the said Association, that he has read the foregoing report and knows that it is true in every respect. Treasurer. Sworn and subscribed before me ) the day and year aforesaid. ) [Signature of Notary.] No. 128. Annnal Certificate of Joint Stock Association. See the Joint Stock Association Law, § 4, ante. We, the undersigned, the president and treasurer of the [insert name of association], a joint stock association, do hereby, pursuant to section 4 of the Joint-Stock Association Law, certify as follows : That the name of such association is the [state name]. That the date of organization of such association is [insert date]. That the number of its stockholders is [insert number]. That the names and places of residence of its officers are aa follows : President and director, A. B. [insert residence]. Treasurer and director, C. D. '■' " Secretary and director, E. F. (C Director, G. H. (( J. K. u L. M. K N. 0. (C Joint Stock Association; Annual Certificate. 841 Forms — No. 128. That the principal place of business of such association is at No. street, in the city [or village] of , State of New York. Dated, Albany, N.^Y., . 189 . [Signatv/re of President.'] [jSignature of Treasurer r\ State of New Yoek, ) ' [■ ss. : Coanty of , ) A. B. and C. D., being each for himself severally sworn, says, the said A. B., that he is the president of the \insert narrie of association], and the said C. D., that he is the treasurer of said company,' and that the statements contained in the foregoing certificate are true. [Signature of President.] [Signature of Treasurer. J Sworn to before me this day of ,189 . [Signature of Notary.] Upon filing and recording the above certificate annually in the office of the Secretary of State the fee to be paid is fifteen cents per folio for recording. At the office of the county clerk the fees are : Filing, six cents; recording, ten cents per folio. 54 INDEX TO FORMS. Alteration or Extension of Business or Powers: p„„g oertificatel ,tor ^32 Annual Reports: oopparatioms, other than monded or railroads 729 indiividTial repent by director or trustee 731 Bonds: coupon ' 7]^y registered 7j9 interest coupon 719 Business Corporations: . certificate of incorporation, limited liability 745 full liability! form 747 consolidation, agreement for 754 extension of business, certifiicate of 701 payment one-half capital, certifieate of 750 .prior to transacting business, certificate (not required) 141 reincorponation, certificate for 748 suppleanental cerKficate to change to full liability 752 Bridge Corporations: certificate of Incorporation .1 795 By-Laws : stock oorpoiratlioii, for use by 684 Capital Stock: increase or reduction, certificate of 737 m'eeting for, notice of 739 proof for comptroller, in case of reduction 740 payment of one-half of, by business corpora tions 750 ferry corporation 701 navigation corponations, full payment 769 shares, numiber of, change of, certificate for 743 Note. — The General Index begins at page 851. 8U INDEX TO FOEMS. Certificate of Incorporation: Page. bridge eorpopaticm 796 business ooijJOTatian, limited liability 745 full liability form 747 ferry corporation 759 gas or electric light corporation 787 nuTigation corporation 767 pipe line corporation 775 railroads, to be operatedl by steam power 802 streeit surface raalroad 805 forengn countries, roads to be operated in 815 reorgamzation by purchasers of propertyi suaA franchises 720 stage coach corpotratEon 771 telegraph amd telephone corporations ^ 792 tramway corporation 773 tupnpaike or planik-roadi corporation 797 water- works corporation 788 Challenges: proxy, oath to be taken 697 stockholder, oath to be taken 696 Change of Corporate Name: notice of application 676 order of court authorSzing change 677 petition for 675 resolution of directors authorizing application 677 Consolidation: business oopporations 754 railroad corporatione 816 Directors (see Election of Directors) : Dissolution of Corporations: notice of appointment of receiver 833 order to show cause 832 petitflion for 830 schednle to be thereto annexed 831 INDEX TO FORMS. 845 Election of Directors: Page. inspectors of elactkwi, certificate of 727 oath of, to be annexed to certLfijca'te 728 notice for, annual election ; 723 ^special election 698 stockholder, when given by 698 oath to be taken at, by challenged stockholder ; . . . . 696 proxy, to take, df challenged 697 petition to bourt to set aside 699 proxy at, from a stoclchol*ir 695 ibomdholdeo-, if givem by 696 Extension of Existence: certificate for 701 turnpike, plank-road or bridge corporation 799 Extension of Business or Powers: certificate by stock ooirporatlions generally 732 copy of proceedings of meeting, to be attacheid 733 notice of meeting 734 Ferry Corporations: icertificate of incorparatioin . . ., .-. . . ,\ 759 license to maintadn a ferry 764 applicaition for, by corporation owning the land 761 <3orpoi\ation by, not owniing the land 762 niotiee to owner of lands 763 piroof of servilce. . ., 764 undertaking to be given, upon application 765 adfBavit of justiflcatfon ". . 767 approval of undertaking 767 clerk's certificate to be annexed to copy of license 765 payment of one-half capital, aflSdavSt of 761 Foreign Corporations: oeiTtificate of removal' of office of designee 694 revocation and new designation 693 statement and designation by 689 consent to be attached 691 oath to be annexed to copy of icentificate of incorporallion < 692 resolution of directors authorizing 692 846 INDEX TO FOEMS. Gas or Electric Light Corporations: Page, certificate of incorporataon 787 Increase or Seduction of Capital Stock: certificate for 737 meeting for, notice of 739 proof for State Oomiptroller in case of reduction 740 Increase or Seduction of Number of Directors: certificate for 724 notice of meeftang 726 proof of service 726 Informality or Defect: amended oertificaite to looiriieot 679 amendied STipplemental certificate 680 Inspectors of Election: certificate by, of result of election 727 oath to be annexed) to 728 Joint Stock Associations: annual oentifloate of 840 Mortgage: consent for 703 short form 704 certifijcate of consent, given at special meeting 70i looppopation mortgage 706-717 coupon bond under 717 interest ooaiix)ns 719 registered boudi under 719 trustee's certificate 719 Navigation Corporations : certificate of incorporation 767 payment of capital stocli, certificate of 769 Note: oorporatfion, given by 720 resolution authorizing 720 INDEX TO FOEMS. 847 Notices: Page. annual election of directors 723 change of number of directors, of meeting for 726 ■proof of service of notice 726 extension of business, of meeting for 734 special election of directors, call for 698 stockholder, notice given by 698 vyaiver in certalin cases j 754 Oaths: proxy, to be taken by, when challenged 097 voter, to be taken by, when challenged 696 Objects : correction of petition to court, for 681 notice of application 683 extension of, certificate for 732 Pipe Line Corporations: certificate of incorporation 775 map and survey of line, notlice of filing 777 monthly statement by 786 petition for permission to construct through streets, highways, etc. . 783 notice of motion •. . . 784 order of court, granting permission 785 relocation of line, petition for 779 notice of application 778 commissioners to examine line, order appointing 780 report of such commissioners 781 order of 'Oourt upon such report 782 Proxies: bondholder, when given by 696 member of non-stock corporation, when given by 696 oath, when challenged 697 stockholder wheA given by 695 Bailroad Corporations: certificate of inoorponation, steam railroad 802 foreign oounitry, road jto be operated in 815 street surface railroad. 805 848 INDEX TO FOEMS. Railroad Corporations (Continued): Page. consolidation, agreement for 816 consent of stockholders 820 certificate In Ueu of 821 lease of road, notice of meeting to consider 823 adoption of, certlfloa'te for 824 meetiing for, record of 824 steam railroads, map and profile of route, notice of filing 807 oertiflcate to be attached to map and profile 807 route, location of, petition for change of 808 notice of application 809 order apipointing commissioners to examine route 810 oath of oommdssSniers 811 determlrnation: of commissioners 811 notice of appeal from. 812 order of oonrt affirming or reversing dietemmnation. . 813 route, change of, certificate for 813 street surface roads, consent to construct 825 consent to construct, by property owner 825 local authorities, when given by 828 application for 827 notice of 826 electicity, consent to use of 826 supplemental certificate to correct original 806 Receiver : notice of appointment 833 order to show canse 832 petition for appodntment of ....:.... 830 Reports (see Annual Report) : Stage Coach. Corporations: certificate of incorporation 771 route of, alteration or extension of * 772 State Taxation: rarid)ge oorporationa 191, 192 form for 795 businese corporations, incorporation 137 farms for 745-747 certified copy, application of term 4 filing of, may be used in county clerk's office 7 citizens of the United States, two-thirds -who execute must be 6 ■cumuilative voting, loay provide for 35 definition of , 4 duplicate original, use of for filing 7 English language must be used in 7 electric ligbt corporations ,'. 174, 175 form for 787 •ferry corporations 155 form for 759 filing and recording 7 feee, statutes regulating 71, 72 gas-light corporations 174, 175 form for 787 lost certificate, how supplied 17 navigation corporations 160 ■form for 767 persons of full age must execute certificates 6 pipe-line corporations 165, 166 foi-m for , 775 preferred stock, certificate may provide for 123- qualifioatione of incorporatons 6- stage-coach corporations 162 form for - 771 tax for the privilege of organization 6T payment of, Ihow to be made T2 table showing amounts payable 69 ■telegraph and telephone corporations 186 form for 792 tramway corporations 163, 164 form for 773 turnpike and plank-road corporations 191, 192 iforms for 797 55 858 GENERAL INDEX. Certificate of Incorporation (Continued): Page, water-works oorponafcionis 181, 182 form for 788 Certificate of Stock (see also Stock): oonsideration for issue of 116 par vailue, to be issued for not leiss than 116 forms for 735, 741 issue of regulated 109 lost certificate, how replaced 128 transfer of certificate 109 form of demand for 736 Challenges: elections, right of, at 38 oath to be taken 38 form of 696 inspectors may administer 38, 39 Change of Business (see Business). Change of Name (see Corporate Name) Change of Number of Directors (see Directors). Change of Number of Shares (see Shares). Citizens of United States: ■incorporatoiis, two-thirds of, must be 6 qualifications generally 6 exceptions in certain oases 6 Classification: ddrectons, terms of 87 stock, common and preferred 123 Classification of Corporations: stock corporaitions 3 business corporations 3 monied corporations 3 transportation corporations 3 Combinations: prohibitions under State laws 83, 84 federal or Sherman act 85 GENERAL INDEX. 859 Common Carriers (see also Kailroads): Page. passengers, diiiscriminatioii, a mlsdemeanoa* 498 ejectment of, use of force pennilited , 496 persons addiieted to Intoxiaation, employment of proiiibited 220 Condemnation Law (see Condemnation of Beal Property). Condemnation of Beal Property: abandonment of proceedings 564 act, short title 549 additional' proTusions applicable 555 answer to petition 554 Terifioation of. '. 554 appeal from final order 565 new appraisal 567 appearance oif parties 553 commissioners to lascertain compensation 555, 556 compensation of 557 duties of 557 oath to be talien by 557 report by , 557 confirmation of 560 setting aside report 560 oonflloting acts, repeal of . . . < 571 conflicting claimants to eompemsation 568 definitions 549 final order, entry of 563 appeal from 565, 566 new appraisal 567 judgment to be docketed 555, 556 judgment, enfOiTcement of 563 writ of assistance 563 new appraisal 567 offer to purcliase ' ■ ■ 561, 562 acceptance of offer 561, 562 order, final, entry of 563 orders, necessary to effect object of act, power to grant 570 owner, defined 549 compensation to, bow ascertained. 555, 556 payment of, order ifor 560 deposit of money for • 560 pendency of proceedings, notice of '. 570 860 GENERAL IISDEX. Condemnation of Keal Property (Continued): Paee petition to court foir 550, 531 notice of presentation 552 service of 552 veriflcation of 554 possession of property by plalnitiff, 'how continued 56S immediate poseession after answea* 569 railroads may acqmre lands by 229, 239 noti-ce to occupants 236 trial of issues 554 referee may be appointed 554, 555 writ of assistance 563 Conflicting Corporate Laws: effect of 50 general corporation law yields to 50 stock corporation law yields to 50 Corporators (see Incorporators): Consolidation: business corporaitions 145 ■form for 754 , electric light corporations 176 gas-Ugibt corporations 176 railroad coTporations 285-200 forms for 816-822 telegrap(h and telephone ooi-poraitions 189' turnpike, plank-road and bridge corporations 202 Constitutional Provisions: corporations, creation of 607 debts of, how secured 607 ■defioition of 608 municipal aid to corporations proihibited 610 private bills pioMbited 008 property for public use 610 compensation for required 610 amount, how determined 611, 612 public officers not to receive passes 612 GENERAL INDEX. 861 Construction of Laws (see also Construction of Statutes) : p conflicting provasdone, effect of 50 general provlsiioiis , 53 Construction of Statutes: application of act for GI5 definitions and use of termis 615-622 acknowledge, lacknowledgiment 618 affidavit ; (j]^{^ appoint 619 board composed of one person 619 bond, undertaking 619 chattels 615 cihoose, elect, appoint 619 ■county clerk, regisiter 620 day, mode of computing daye 622 elect 619 folio 617 following,' last, preceding, next 617 gender, number, tense 616 (hereafter, heretofore, now 617 holiday, half -holiday 620 judge 616 lunacy, idiocy 616 meeting, quorum, powers of majority. 619 month 621 night time 622 notice, service of upon body or board 620 oath, siwear 618 person 016 personal property 615 piFoperty. . .' ' 615 quorum 619 real property 615 repealing statutes, limiting effect of ■.. .: 622 repeal and re-enactment, effect of 623-624 revision, effect of 624 seal 617-618 signature ■ 617 Staite, territory 620 standard >time '• 622 862 GENERAL INDEX. Construction of Statutes (Continu9(il: Page. titles and ihead notes, altenatioiiis of 624 Tillage 620 writing 617 year 621 Corporate Existence: extension of 48, 49 form for 701 Corporate Laws: application of 50 conflicting, effect of 50 construction of 53 definition 5 titles of: general coi-poratiion law, the 2 banking law, ithe (not in this work) business corporations law, the 136 banking law, the (not in this work). railroad law, the 22,'5 stock corporation law, the 73 transportation oorporations law, the 154 Corporate Name: change of, proceedings for 11-15 iforms for 675-678 similariity of, not permditted 9 use of, by partnerships 492, 403 Corporate Powers (see also Powers): grant of general powers 19 Courts (see Supreme Court). Creditors: accounting to for prohibited transfer ; 124 preference of, proMbited 124 protection against unlajwful property transfer 124 remedy oif, for uoauthoiized dividends 9J bonds, for over^Bsue 92 GENERAL INDEX. 863 Creditors (Continued): remedy of (continued): Page. debts, for unauthorized 02 loans, if mad© to stoekSioldens 93 report, if false one be made 105 Criminal Proceedings Against Corporations: conviction and penalty 531 examination of charge 529 grand jury, examination -by 530 indictment, plea of guilty, how put in 528 puni^ment for offenses 495, 527 summons, form of 529 service of 529, 531 Cumulative Voting: certifloate of incorporation, may provide for 35 number of votes, regulated 35 right of, in certain corporations, restored to 35 Debts : aimount, limitation 92 contracting, power of 74 mortgage may be given as isecuTity 74 stockholders, when liaible for 131 limitation 134 unauthorized debts, liability of directors ifor 92 Defective Certificate: amended certificate to cure 15, 16 Definitions: certificate of incorporation 4 corporate law or laws "^ directors ■ • • • domeetic corporation • 4 foreign corporation : f member of a corporation 4 mixed corporatiooQ * monied corporations 4 864 GENERAL INDEX. Definitions (Continued): Page- municipal corporation 3 non-stock corporiation 4 offlco of a corporaition 4 principal office 4 stock corporation 4 Designation: ■foreign corporation must make 20-32 forms for 689-094 proeesa against, service of 29-32 Destroyed Certificate of Incorporation: certified copy, filing of, to supply 17 Destroyed Certificate of Stock: replacing, procedure 12S, 129 Directors: acts of majorijty binding 44 actions oollusively brought by, stayed 43 annual report to be made by 101 'authority of, on dissolution 46 board of, manages afCaiiis of corporation 44 by-laws, when to be maide by 44 neglect to adopt for annual election, effect of 90 collusion by, remedy 43 definition 4 dissolution, trustees, in case of 46 lalternative provisions 46 election of 87 books evidence at 3.5, 36 by-laws, to designate day 39, 87 by-law regulating, publication of 19, 20 certificate of inspectors, filing of 97 challenge of voter 38, 39 oath may be required 38 filing of ■ 39 form for 38, 39 proxy, form of oatlh 39 inspectors may administer 38 GENERAL INDEX. 865 Directors (Continued): election of (continued): Page. cumulative voting at, (hoiw provided for 35 existing corporeitions, figlit n'^stored to. 35 court may order new election 46 date, by-laws may fix 39, 87 form of petition for new eleotion 699 grievance at, redress by court 42 inepectors, appointment of 97 oaths, may administer 38, 39 forms aid subscriptions 131 full liability business corporations 144 wages of employes ; 131, 132 trustee of estate, how incurred by 132 Loans to Stockholders: unauthorized 93 Lost Certificate of Stock: replacing, procedure 128, 129 Lost Certificate of Incorporation: certified copy may be filed to supply 17 Limitations: 'Corporate powers, other than statutory prohibited 18 liability, for making false report 105 stockholders, liability of 134 Manufacturing Corporation Act of 1848, Chapter 40: act repealed. 56 manufacturing corporations now form under, business corpora- tions law 136 Harried Women: vote, right to, at corporate elections 493 majority: directors, powers of 44 GENERAL INDEX. 877 Meetings (see also Directors and Elections): Page. directors, by board of 44 quorum at 44 majority of, may act 44 qualifioations of voters 35 stockholders' meetings, to elect directors 87 cumulative voting, how authorized 35 proxy, voting by, authorized 37 qualifications of voters at 35 quorum at, by-laws may regulate. . , 19 voting at, regulated 35 Member of Corporation: definition 4 Misnomer: effect of, in actions against stockholders 591 Monied Corporations: definition 4 Monopolies: proMMtions, State laws 83, 84 United' States or Sherman act 85 Mortgage: amount, limitation 74 authority for 74 bonds, under, when convertible into stock 74, 75 consent of stockholders 74 forms for. 703-705 fomm for mortgage 706 payment of portion, by etoickho'lder 127 reorganization by purcliaseps under 79 rights of stockholder on foreclosure 127, 128 sale of property under 82 Supreme Ckmrt may direct 82 receiver, possession of 82 foreclosure under 82 878 GENERAL INDEX. Kame of Corporation: Page. diuplicatioD of prohibited 9 exceptions 9 chaDge of 11> 15 forms for 675-678 Navigation Corporations: additional ports, extending route to 161 capital stock, payment of 161 certificate to be filed 161 form for 769 penalty for non-payment , 161 certificate of incorporation 160 filing and recording 7 form for 767 employmient of persons addiated to intoxication proMbited 220 ferries not to be operated 162 general corporation law, provisions of, applicable to 2 game, transportation of, when p!Pohiblted 218, 219 licenses to sell liquors 220 railroads not to own stock in 160' siteamiboate connecting with railroads 272, 273 stock corporation law, provisions of, appUoable to 74 tax exemptions 213 tickets, statement to be printed thereon 515 • Non-User : forfeiture of corporate powers 48 exceptions 48 Notices : false, penalty for making 105 waiver of, in certain cases 54 Number of Birectors (see also Directors): increase or reduction 90 certificate of 90 form for. 724 GENERAL INDEX 879 Number of Shares (see also Stock): p increase or reduction 135 oertificate, form of 743 Oath: elections, may be required at 38 inspectors of election may administer 39 voter, when to take 38 form for 696 filing of, with certlfloate of election 97 inspectors of election to take 97 form for. . . , ; 728 proxy, when to take ■. 38, 39 form for 697 Obligations: issrae of, authorized 74 mortgage to secure 74 Objects: extensdons or alterations of 106 form for. 732 Officers: appointment and removal of, by directors 94 books, entries in, refusal to make, penalty 98 exhdbition of, refusal to permit, penalty 98 compeneation of, power to fix 19 election of , (see, also, directors) 94 by-law regulating to be published 19, 20 false report, penalty for making 105 power to appoint 19 ipowens and duties of 94 prohibited transfers of property, liability for 124 removal by directors 94 court, when authorized to make 590 security, may be required from 94 Office of Corporation: diefindtion 4 location, principal place of business, to be at 4 880 GENEEAL INDEX. Office of Corporation (Continued): Page. oath taken at eleotion, filed in 38, 39 proxy, filed in 38, 39 special elections to be held at 40, 41 elsewhere if access denied 40, 41 Organization of Corporation: fraud in, penalty 507, 508 Organization Tax: axrt regulating 67 corporate powers prohibited until paid 7 State treasurer, payable to 67, 72 table of amounts payable 69 transmission of, regnlations concemiing 72 Parlor Cars (see Bailroads). Far Value of Shares: business corporations, miaximumi and minimum limits 137 change of, certificate for 135 form of 743 Payment: capital stock, half of, by business corporations 142 certificarte of 142 form far 750 ferry corporations, affidavit of 157 form for 761 navigation corporations, full payment 161 certificate of, formi for 769 ooa-po rations generally, payment of subscriptioiis 107 mortgage debt, by stockholder 127 Penalty: false report, for making 105 financial statement, refusal to make 130 stock book, refusal to keep, or exhibit 98 extracts from, refusing to permit 98 GENERA.L INDEX. 881 Pipe Line Corporations: iPase. certificate of inoorpoiration, requisites 165, 166 filing and recording '. 7 form for 775 icommon carriers, liable as 171, 172 condemnation of real property 167 consent of local authorities for oonstruction 169 proceedings, forms for 777-782 construction over Indian reservations 170 constuotlon over State lands ' 170 oonsitruiction through villages and cities 169 ■ crossing railroads, plank-roads, etc 168 canals, rivers and creeks 168 delivery of property 172 false certificates by, penalty 517 fences, erection of optional 173 general ootporatlon law, provisions of, applicable to 2 locajtion of line ,. . . 166 forms for 777-782 miscondoct of officers 511, 512 povsrers, grant of additional 170 rates and .changes 171 receipts for property 172 regulations relative to 172 statements to be filed monthly 173 form for • 786 stock corporation law, pfovisionfi of, applicable to 74 taxation of property 174 use of line to be public ■ 171 vouchers, oancellation of 172 Flank-Bioads : croseingB over by pipe lines 168 tramways, regulations 164 Plank-Koad Corporations (see Turnpike Corporations). Pleadings: verification by corporation 536 882 GENEKAL INDEX. Pledgees : Page, stockholders, not liable as 131, 132 Pledgor of Stock: liability as stockholder 131, 132 vote, right to 35 Powers: banking prohibited, except by banks 35 bonds and stocks of other corporations, owning 109 borrowing money 74 corporate, prohibited until payment of fees and organization tax. . 7 debts, contracting 74 directors, majority, powers of 44 extension of powers 106 form for 732 foreign corporations, authority to do business 23 a«tionsi by, when maintainable 23 property in this State, acquiring 33 real, purchase of, at judicial sales 34 tax payable before doing business 70 forfeiture for non-user 48 general powers, grant of 19, 20 by-laws, may make 19 officers and' agents, power to appoint 19 property, may hold 19 other States, acquiring in 23 mortgage of property and franchises 74 obligations, issuing. . . 74 reorganized corporation 79-83 seal, to have and alter 19 statutory, other than prohibited 18 Preferred Stock: classification of, permitted 123 consent to, after incorporation, form for 742 exchange of, for common, how authorized 123 President of Corporation (see Officers). GENEEAL INDEX. 883 Principal Office of Corporation: p diefindtion 4 location of, to be at principal place of Imsiaess 4 Privileges (see Powers). Process: foreign csorporation, service upon 29-32 Property: acquiring, power of 19 foreign .corporation, may acquire 33 other States, acquisition in 23 mortgaging, regulations concerniiig 74 transfers of, when prohibited 124 Proxy: authority for _ 37 by-laws, may limit, when 37, '38 challenge of , 38, 39 oath, form of 39 filing of 39 inspectors may administer 39 duration 37, 38 form for 695, 696 filing of 38, 39 memibers of corporation, right to hold not confined to 4 revocation of. 37, 38 vote upon, right to 37 Qualifications: directors, at least two must be residents of State 44 incorporators 6 cdtizeng of United States, two-thirds imust be 6 natural persons of full age, must be , 6 residents of this State, majority must be 6 exceptions in certain cases 6 president must be a director 94 voters at meetings 35 books, evidence 35, 36 884 GENEEAL INDEX. Qualiflcations (Continued;: voters at meetings (continued): Page. challenge of 38 oath, form of 38 filing of 38, 39 inspectors may administer 38, 39 number of votes regulated 35 •cumulative voting 35 pledgor of stock, deemed ovcner 35 special elections. 41 Quorum: by-laws, when to fix 19 diireotors, majority of, constitutes 44 acts of, bind board 44 special ©lectione, what constitutes at 40, 41 Bacing Associations: tax upon gross receipts 668 Bailroads (see also Kailroads, Miscellaneous Acts Belative to): abandonment of part of route 316 aocomimodatlons for transportation 261 aicoommodations to connecting roads 262 animals, unlawful transpoiitation of, penalty 525 annual reiwrts 281 form of to be prescribed by commissioners 346 anitomiatic couplers. Penal Codie provision 502 badges, to be worn by employes 270 baggage, amount for each fare paid 264 checks to be furniished 270 connecting steamboat lines 272 injuries to baggage, penalties 271 unclaimed, saie of 271 proceeds of sale 271, 272 bills of lading, if fictitious or false, penalty 517, 518 board of railroad commisssioners (see Railroad Commissioners). brakes, automatic, when to be used 276, 277 hrakemen, may be policemen 282 canals, railroads near 231 supervisory power over, by public works department 231, 247 tracks over, change of 247 GENERAL INDEX. 885 Railroads (Continued): Va.se, capital stock, mintmtim amount of 223, 224 reduction authorized, when route is shortened 248 cars, disorderly conduot upon 525 •cattle guards, etc 257 certificate of incorporation, requisites of 223, 224 filing and recording of 7 forms for 802-805, 815 supplemental certificate 228 Chautauqua assembly grounds, roads through prohibited 242 conductors, badges .to be worn by 270 pollicemen, may be 282 qualifications 269 common carriers, rights and liabilities as 274 connecting roa'de, aecommodation of 262 railroad conmnissioners, when to act 262 consent for construction of road 283 constitutional restsiction upon 608 exception , . 609 railroad commissionere may grant 283 refusal by, proceedings thereupon ". . . 283 tunnels, for construction of '249 local authorities', consent of 249 property owners, consent of 249 refusal by, proceedings thereafter 249, 250 consolidation, proceedings for 285, 289 certificate of, forme for 816-823 meeting for. 287 mortgages made by consolidated railroads, foreclosure 291 prohibited by parallel lines 295 property vested in- new oorporation 289 taxation of 290 lOonstruction of st.eani roads 255 beginning construction, limit of time 234 consent of irailroad oommiissloners provided for 283 proceedings wben such consent is refused 283 consrfcitutional provisions. 608, 609 fences, farm crossings and cattle guards 257 grant of powers for 230 penalty for failure to rconstruct 234 route, iwhen common with another road 248 streams, highways, etc 231 886 GEI^EKAL INDEX. Kailroads (Continued): construction of steam road's (continued): Pnge. tunnels, consents for 249 weight of rail 256 crossdngs, stops at, when to be made 263 damages caused' by 243, 244 flagmen to be stationed ait certain 260 pil)e lines under, regulated 168 • sign boards to be placed at 260 tramways, crossings by 164 cotvplers, automatic, when to be used 276 damages caused by 'Crossings 243, 244 ejection of passengers refusing to pay fare 266 elevated railways; see rapid transit railways, infra. emigrants, rates to, penalty for violation 515 empioyes, badges must be worn by 270 intoxication of, a misdemeanor 501 jurisdiction of court in such cases 527, 528 qualifications of. 269 wages of, liability for, if not paid by contractor 255, 256 engineer failing to ring bell at crossings 501 engineers, illiterate, employment of, a misdemeanor 50O fare, rate of, power to fix 233, 264 alteration by legislature 265 cable roads. 264 extra, when payable 433 rebate tickets for 433 general provisions 264, 265 mountain roads. 264 New Yorli Central Railroad 265 penalty when excessive 266 refusal to pay, ejection of passenger 266 short roads, not in cities 265 sleeping and parlor cars, extra fare upon ' 268, 269 summer roads, maximum fare upon 254 fences, etc » 257 barbed wire, use of regulated 257 ferries in New Torls harbor, operation of 279 flagmen ait crossings 260 foreclosure sale, mortgagee may purchase at , 296 certificates of stock may issue after 296 liabilities of reorganized corporation 296 GENERAL INDEX. 887 Railroads (Continued): Pg^„g foreign countpies, formed for operation in 251 additional powers of 251, 252 certificate of incoi-poration, form for 816 localtiion of principal oflice 252 foreign railroads, powers of 291, 292 forfeiture of corporate powers 234 expenditure of ten per cent required 234 freight trains, riding upon; 503 freight, unclaimed, sale of 271, 272 game, tmnsportation of, when prohibited 218, 220 generaJi corporation law, provisions of, applicable to 2 grade, change of 246 grade crossings, srtops at 263 railroad commissioners may regulate. 263, 264 watchman at 263 guard poets, erection of ". . 276, 502 highways, intersection of 243 restoration of 243 Indian lands, acquisition of 242 intersection of other railroads 245 additionail lands for intemection of highways 243 intoxication, persons addicted to, not to be employed *........ 220 lands, acquisition by oondem'niation (see Condemnation Law). State lands, acquisition of 241 lease of road, when authorized 292 parallel lines not to be leased 295 proceedings to authorize lease 292, 293 forms for 824, 825 surrender of stock to lessee 294, 295 liability of railroads as eommon carriers 274 wages of emp^loye of contractor, liability for 255, 256 mails, conveyance of 280 obstructing oars upon .' 503 operation of summer roads'. 254 parallel lines, lease or oonsolidaition of prohibited 295 parks, use of i prohibited 250 passengers, ejectment of, force may be used 496 passenger cars, construction of 502 heating apparatus, regulation® 502 placing in front of freight car a misdemeanor 501 tools in 277 888 GENERAL INDEX. Railroads (Continuedi : Page. platform, riding upon forbidden. . '. 279 policemen, conductor and brakeman may be 282 powers, general 228-234 acquisition of real property 229 condemnation proceedings aTithorized 239 borrowing money, etc ' 234 buildings, etc., to erect 233 forfeiture, if road is not constructed 234 foreign railroads 291 higbways, intersection of 243 Indian lands, acquisition of 242 Intersection of otber rfuilroads , 232 canals 231 highways 231 plank-roads 231 streams 231 turnpikes 231 public lands, acquisition of 241 purchase of lands and stock in other states 234 real property, acquisition of , 229 condemnation, may be taken by 239 survey, entry upon lands for 228 transportattion of persons and property 233 transportation of persons and property, time and manner, to regulate 233 property, interfering with, unlawful 524 railroad commissioners (see page 893). rapid transit, steam railways (see, also, Rapid Transit Railways in Cities of over 1,000,000 Inhaibltants). abandonment of portion of route 435 application for 322 certificate, lOommissdoners to deliver 329 aflSdavit of directors 329 commissioners, appointment of 322 bond of 323 compensation of 333 first meeting of 323 new commissioners 334-339 powers of 334-339 oath of. 323 quorum 333 GENEEAL INDEX. »89 Eailroads (Continued): rapid transit, etc. icontinued): Page. report, confirmation of 332 filing of 332 removal of 333, 334 term, of office 33^ vacancies 334 construction of road, vifben to be completed 325 damages, appraisail of, 326 deposit of securities for 326 increase of, vchen and how required 339 determinia)tion of necessity of road 323 directors, election of 328, 329 fare, rate of 325 francMses, proviso as to forfeiture 328 gates on cars. . . . .■ 340 posting of section relative to 341 Incorporation, certifioarte of 328 organization, meeting for 328 penalty for violation of article 340 posting of section relative to 341 plans for construction. 325 adoption of 325 deliveiy of pJan®.. . .' 332 powers, granlt of 329 route, determination of 323 aibandonment of 334-339 portion of 435 coinciding with another. 331 crossing horse railroad track. 330 location of, exceptions relative to .^ 323, 324 stops, trains must come to full stop 340 posting of section relative to 341 real property, ajoquisitlon of 239, 240 reports to railroad commissioners j 281 restoration of streams, highways, etc 243 resttrdotion upon construction of new roadi 283, 284 rights as common oarriecs 274 route, location of 236-238 proceedings for 236-238 forms for 808-814 route, change of 246, 247 57 890 GENERAL INDEX. Bailroads (Continued): ' Page route, location of part in adjoining States 248 route, location, if partly the same two roads 248 safeguards, authority to use 277 signals to protect employes 276 sleeping > and paarades not to interfere with trains 425 s, railways in and near 440-442 in New York city, use of 457 GENERAL mDEX. 893 Railroads (Miscellaneous Acts): p^^-g streets, use of certain, prohibited 457 streets and highways across railroad tracks 419 tpamps, punishment of 431 tunnels, lighting and ventilation of 436-439 Railroad Commissioners: abandionmeitt of route, approval by board 816 accidents, investigation of 347 aoaountamt, deities of 343 additional aooommod'ations by railroads, duty relative to 348 annual report of board' 350 application of the law 353 appointment of board 342 award of prizes by board for improved appliances 353 clerical force, appoinmenit of ' 344 connecting roads, powers respecting accommodations 262 construction of new road, consent for 283 discontinua>nce of stations, consent for 244 eligibility of officers of board 344 engineers, appointment of 343, 344 evidence, copies certified by board, may be used as 351 fees to be collected, by the board 350 freight rates, cihange of 348 infonmation to be furnished by railroads 349 inspector, duties of 344 marshal, appointment of 343 meetings of 344 misconduet of 499 oath of office 344 passenger rates, change of 348 powers and duties of, generally 345 principal office of board .'. 344 prohibited adts by board or clerlis 351 quorum of board 344, 345 recommendations of board 348 enforcement of 348 repairs, duty relative to 348 reports of railroads, to prescribe form of 346 reports to be filed by State engineer 440 safeguards, approval of 277 894 GENERAL INDEX. Bailroad Commissioners (Continued): Page. salaries and expenee of board 351 assessed upon railroads r 352 secretary, appointment, powers and duties 343 stations, may oonsent to diseontimiance of 261 subpoenas, issue of by board 349 suspension from office 343 term of office 342 unlawful offers to 499 violations of law, duty relative to 347 witness before the board, fees of 349 Brailroad Law, The (see Bailroads): application of, to previous corporations 53 Rapid Transit Railways in Cities of over 1,000,000 Inhabitants: act for construction, operation and regulation of 354-415 Beal Property (see also Property): acquisiUon by condemnation (see Condemnation of Real rroperty). Receivers (see Bissolution and Receivers). Reduction of STumber of Directors (see Directors). Reduction of Capital Stock (see Capital Stock). Reincorporation of Existing Corporations: business corporations, proceedings' for 141 qualifications of incorporators, exceptions in sucb oases 6 Reorganization : corporaition formed after foreclosure 79 proceedings for organization 79-83 certificate, form for 721 Reports (see Annual Reports): GENERAL INDEX. 895 Residents of State: p^^ directors, at least two must be 44 incorporatons, one must be. 6 quallfloations generally 6 exceptions in certain cases ; 6 Revival of Corporation: court may order 48, 49 Rights Accrued: amended ceiitiflcate does not prejudice 15, 16 repeals of laws does not afEect - 52 Sale of Franchise and Property: authority for 107 consent of two-thirds of stock required * 107, 108 domestic corporations only, may purchase 107 ddasenting stockholders, remedy of 108 appraisal of stock of 108 supreme court, powers relative to 108 Saving Clause: repeals, effect of 52 liaJbilities, not affected by 52 rights, not affected by 52 Seal: power to have and alter 19 priva'te seal, use of authorized 617, 018 Secretary of Corporation (see Officers). Secretary of State: certificates filed and recorded in office of 7 copy certified- by, filable in county clerk's office 7 evidence in court, may be used for 17 ' fees, payable to in advance 7 transnnissdon of, Information relative to 72 896 GENERAL INDEX. Shares: Page. number and par value of, may be changed 135 proceed'mgs for 135 certificate, form of 743 Sleeping Cars (see Bailroads). Special Elections (see Elections). Stage Coach Corporations: certificate of inoorpora'tion, requisites of 162 filing and recording 7 fees payable for 772 form for 771 olassified as stock corporations 3 general corporation law, provisions of applicable to 2 New York city, exception xelative to 162 powers, additional, grant of 163 rouite, alteration or extension: 162 certificate of 163 form for 772 stock corporation laiw, ppovlsdons of applicable to 74 Statement to Stockholders: account of assets and liabilities 130 treasurer of corporation, when to furnish , 130 refusal by, penalty 130 time to make, how extended 130 State Constitution (see Constitutional Law). State Taxation (see also Taxation): acts relative to annual tax 626-G68 organization tax 67, 08 tax upon foreign corporations for Mcense 70 Stbtutory Construction Law (see also Construction of Statutes) : application of act 615 provisions of 614-625 GENERAL INDEX. 897 statutes Bepealed: schedules of 56-66, 210-212, 625:673 Stay of Proceedings: actions ooUusively brouglit 43 Steamboats (see also Navigation Corporations): ■connedtion of railroads witli 272-2T4 operajtion of, by railroads in foreign countries 251 Steam. Corporations (see Business Corporations). Stock (see also Capital Stock): acquisition of, in other corporations 109 bonds, convertible into, wlien to be 74, 75 certificates, to represent ownersihip 109 forgery of certificates, penalty 504 fonms for certificates 735, 741 issue of certificates 109 fraudu/lent ussxie, jyenalty 506, 5ff7 loss of, issue of new certificate 127-129 proceedings in sucli case 127-129 classifi'cation of common and preferred, how provided for 123 consideration for issfue of 116 money, labor or property may be received for 116 increase or reduction of 119-122 certificate to be filed 122 form for 737 meeting of stockholders to authorize 121 notice to be given 121 form for 739 number of shares, change of •. 135 certificate to be filed' 135 form for 743 ownership of, in other corporation 109 authority to acquire, how provided for 109 par, not to be less than 116 payment, when made, liability to cease 131 exception in case of full liability business corporation 144 exception as to wages of employes 132 preferred, clasisifioatiion of permitted 123 exchange of, for common, bow authorized 123 898 GENERAL INDEX. .Stock (Continued): Page. quorum, amount to constitute 19 by-laws may regulate 19 sulDsoriptions for, time of payment 117 forfeiture for non-payment 117 reissue in such case 117 form of subscription. 736 transfer of, regulations oonceming 109 demand for transfer, form of 736 entry to be made in sitock book 98 farm of transfer 736 Insolvency, transfer in contemplation of, prohibited 124 stockholder indebted to corporation, transfer by, how restricted 94 Stock Book: corporajtions to keep 98 entries to be made in 98 evidence, presumptive, to be 98 extracts from, to be permitted 98 penalty for refusing 98 form for 729 Btock Certificates (see Stock). Stock Corporations: daissification of 3 definition. 4 office of, where to be located 4 Btock Corporation Law: construing, rule relative to 53 provisions of ' 73-135 application of, to other laws 74 Stockholders: adimindstratons, etc., not liable as 132 accounting to, for prohibited transfers of property 124 by-laws, power to make 19, 44 directors to be 87 financial statement, when entitled to 130 GENERAL INDEX. 899 Stockholders (Continued): Page, liability, wlien to cease 331 exception in favor of employes 131, 132 exception in full liability business icorporatioas 144 MmitaJtions uptni. I34 loans to, prohibited 93 misnomer, not available in actions against 59I mortgage debt, payment during foreclosure 12r names of, to be entered on stock book 98 inspection of, by stockholders and judgmenit creditors 98 pledgors of stock, liable as stockholdens 132 preference of, over other oreddtons, prohibited 124 property tranefcre to, prohibition of certain 124 quorum, numiber to. constitute 19 by-laws m'ay regulate 19 remedy, for false report I05 transfer of stock by, when indebted to corporation 93 voting by (see Vote). Subscribers (see also Certificate of laoorporation). name in prospectus, inserting without authority, a" misdemeanor. . 507 Penal Code provisi'ons ooruceming frajidnlent subscriptions 508 Subscriptions to Stock: additional subscriptions, after inoorpioration, directors may receive a 11^ ten per cent payable in cash in certain cases 114, 115 forfeiture fior non-payment 117, 118 paymerits upon, time of, general provisions relative to 117, 118 money, labor or property may be received for 116 pipe line corporations, amount for each mile of line. , 165 railroads, amount for each mile of road 224 turnpike, plank-road and bridge corporations, amount required. , . . 192 water- works oorporaitions, percentage required 182 Succession: period of, for specified term 19 perpetual, when to be 19 right of, conferred 19 900 GENERAL INDEX. Summons: Page. criminal proceedings against coiporations 529 form of. ^29 service of ^29 Supplemental Certificates (see Certificate of Incorporation). Supreme Court: actions collusdvely brought stayed by 43 corporate property mortgaged, may direct sale of 82 financial sttatement to stodiliolderis, extending itime to malie 130 lost certificate of stock 128 appliciation for relief 128 order for new certificate 129 bond to be given 129 new eleotlon, may order 42 powers, respecting elections 42 revival of corporation by in certain cases 48, 49 Taxation of Corporations: annual by the State 026 payable by certain domestic and foreign corporations 629, 630 exemption of imanuflacturlng and mining <»mpanieB 629 consolidation of corporations tax upon 67, 68 increase of capital stock, payable only in cases of 68 foreign corporations, taf for privilege of doing business 70 increase of capital stock, tax for privilege 67 local tax upon domestic corporations 648, 668 foreign corporations subject .to tax 667 organization of corporations, tax upon 67 racing association, upon gross receipts 068 reorganization of corporations, tax upon 67, 68 table of amounts payable for organization- 69 United States income tax, declared- unconstitutional 669 Tax upon Organization (see also Taxation of Corporations): act for, provisions of 67, 68 corporate ^wers prohibited umtil paid 7 payment thereof to be made to State Treasurer 67, 72 table showing amounts payable 69 transmisBion, regulations 72 GENEtlAL INDEX. 901 Telegraph, and Telephone Corporations: Pao'e. certifloate of incorporaition, requisites of 186 filing and recorddng 7 fees and organization tax payajble 793 forms for 792 classified as' stock corporations 3 confiolidaitions authorized 189 construction of lines 188 compensation to owners 188, 189 ■oondemination law, when applicable 188, 189 divulging contenlts of message, [penalty 521 extension of lines '. 188 form for 793 general corporation, law, provision® O'f applicable to 2 injury to property, penalty 520 lease of property and franchises 189 special poUcemen, employment by . , 190 stock corporation law, provisions of applicable to 74 transmission of despatches 189 Term of Existence: extension of 48 form for 701 Title of Corporate Laws (see Corporate Laws). Tramway Corporations: certificate of incorporation, requisites of 163 filing and recording 7 fees and organization tax payable 774 ' form for 773 condemnation, may acquire land by 164 crossing railroad, highway, etc 164 • general corporation law, provisions of applicable to 72 powers, grant of, to • 164 stock corporation laiw, provisions of applicable to 74 Transfer Agent: foreign corporation, books to be exhibited by 130 penalty for refusal. > 1^1 Transfer of Stock (see Stock). 902 GENERAL INDEX Transportatiou Corporations: Page. classificaition of 3 railroadi corporations included 3 transpiortatiom corporations other than railroad included 3 Transportation Corporations Law: bridge corporations (see Bridge Corporations). construction of act '• • • 209 corporations under, classified as stock corporaitions 3 electric light corporations (see Electric Light Oorpopatione). ferry corporations (see Ferry Corporations), gas-light corporations (see Gras-Ldght Corporations). general coTporatlon law, provisions of applicable 2, 154 laws repealed by, schedule of 210, 212 nayiigation corporations (see Navigation Corporations), pipe line corporations (see Pipe Line Corporations), plank-road corporations (see Plank-road Corporations). provisions of 154, 212 saving clause 208 stage ooach corporations (see Stage Coach Corporations). stock copporatiom law, provision® of applicable 74, 154 telegraph and telephone corporations (see Telegraph and Tele- phone Corporations), tramway corporations (see Tramway Corporations), turnpike corporations (see Turnpike Corporations), water- works oopporatlons (see Water- works Corporations). Treasurer (see also Offlcers): appointment of, by directors 130 financial statement, when to be made by 130 refusal to make, penalty 130 time to make, extension of 130 powers and duties of 94 removal of 94 Trustees: application to, of the word directors 4 definition 4 Trustees of Estate: liability, when subject to 132 GENERAL INDEX. 903 ^'■"^*^= ' rage, prohibitions by State laws 83, 84 federal or Sherman act 85 Trusts (see Monopolies). Turnpike Corporations: abandomnent of road, when authorized 203 acts of directors, prohibittion of certain i 205- ax;tions for recovery of penallnee incurred by corporations 205 agreement for use of highways 192 application to boaxd X>t supervisors 193 certifloate of inicorporatiiin, requisites of 191, 192 filing and recording of 7 fees and organization tax payable upon. 798 ■ form for 797 oommisisionens to lay out roads 194 oonstruotion and wiidth of road , 196 consolidations authorized. . . 202 corporate existence, when to cease 205 crossing of road, by pipe lines 168 tramways, crossings by ' 164 directors, cerltain, acts of, prohibited , •. 205 stockholders, when all to be directors. .: 205 dissolution, what to constitute cause for .' 205, 206 expiration of existence by limita'tion of time. 206 lands of corpoiratioh in such case, when town to pay for 206 extension of corporate existence ; 207, 208 certificate thereof, to be filed '. 208 form for. . . . 799 fences, encroachmenlt of 204 gates, rates of toll 197 changes of rates by board of supervisors 217 exemptions from payment of toll 197 location and change of 198, 199 penalty for running a gate • 198 general corporation law, provisions of applicable to 2 highway labor upon line of 207 inspectors, their i>owers and duties 200 location of road, restrictionis upon 192 logs and timber, hauling of '. , 204 904. GENERAL INDEX. Turnpike Corporations (Contiaued) : Page. mile stones, guide posts, etc 201 ofBce of oorporation, location of 202 penalty incurred by corporation, actiouB for 205 limittation of time for bringing 205 proof of incorporation 205 public highways, use of , 192, 193 purchase of road by towns, when authorized 217 rates of toll regulated 197 change of by board of supervisors' 217 exemptions £rom payment of toll 197 real estate, possession and title to 194 roads, commissioners to lay out 194 route, change of 201 stock corporation law, provisions of applicable to 74 surrender of road 203 toll gatherers, regulations concerning 198 use of turnpike by plank-road 196 width of road 196 XTnited States Statutes: income tax, unconstitutional, declared to be 669 interstate commerce act 459-485 monopolies, act prohibiting f 85 Usury: defense of, corporations proliabiited from inteirposlng 78 Vacancies: directors, filling of 87 by-laws to provide for 87 created, if director ceases to be a stockholder 87 inspectors of election, how filled 97 Voluntary Dissolution (see Dissolution and Keceivers). Vote: books, evidence of right to 35, 36 challenge of 38 cumulative system, number regulated 35 existing corporations, restored to, certain 35' GENERAL INDEX. , 905 Vote (Continued): Page. oath may be required 38 filing of 38, 39 form of 38 inspectors may adminiieter 38, 39 pledgor of stock, voting by 35 proxy, voting by 37 dura)tion 37 33 filing of : 38, 39 revocation. . . .■. 37, 33 qualifications at special eleotionis 41 sajle of, forbidden 35, 3(5 stockholders, one for eaich share 35 cumulative voting, when permitted 35 Waiver of ITotice: authorized in certain cases 54 Wages: cash payment of 486-188 liability of ettockholders for 131 ireceivers, ipayable by, prior to other, claims 605 reduction of, wMle voting, prohibited 495, 527 weekly payment of 486 Water Companies (see also Water-works Corporations): formation of certain, under Business Corporations Law 152 Water- w^orks Corporations: ce!rtifi,cate of incorporation, requisdlte of 181, 182 filing and recording of 7 fees and organization tax payable upon 791 form for certificate 1 '. 788 permit of local authorities to be annexed 182 form for 790 condemnation of real property 185 oonttracts for water with, municipalities' 182-184 extension of operations 186 general corporation law, provisions of applicable to. , 2 highways, pipes, etc., in 214 58 3 906 GENEEAL INDEX. Water-works Corporations (Continued): Page. lands to be taken by, survey and map of 185 local authorities may contract for water 182 expenses for supply, to be raised by tax 184 map and survey 185 powers, grant of 384 stock corporation law, provisions of applicable to 74 survey and map 185 water must be supplied by .'. 182