text:
    Ann Cranston, adm’x, Resp’t, v. New York Central and Hudson River R. R. Co., App’lt.

      (Court of Appeals,

      Filed December 17, 1886.)

    Trial—Jury—Instructions to—When ground for new trial.
    Where in an action for damages resulting from the death of intestate, on the trial after, the jury had retired to consider their verdict, they came into court and one of them stated that there was no possibility of their agreeing. To which the court replied: -‘I can’t take any such statement as that, gentlemen; you must get together upon a matter of this kind.” and then added. ‘‘No juror ought to remain entirely firm in his own conviction one way or the other, until he has made up his mind beyond all question that he is necess rily right and the others are necessarily wrong.” Held, error that if the evidence was so clear as to lead to a conclusion with the degree of certainty required by the charge, there was nothing to submit to the jury, and it was the duty of the court either to direct a verdict or to non-suit the plaintiff.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the Rensselaer circuit awarding the plaintiff $5,000 damages for the alleged negligent killing of David Cranston at a railroad crossing in the city of Troy.

      E. L. Fursman, for app’lt; B. A. Parmenter, for resp’t.

       Reversing 39 Hun, 308.

   Rapallo, J.

It is a serious question whether the uncontroverted evidence did not disclose a want of the care and caution which the law required of the plaintiff’s intestate in approaching so dangerous a crossing as that at which he lost his life, and whether a non-suit should not therefore have been ordered; but we need not discuss that question, as the case contains an exception which we are all agreed is well taken, and requires a reversal of the judgment and a new trial. After the jury had retired to consider their verdict, they came into court, and one of them stated that there was no probability of their agreeing. To this the court replied as follows: “I can’t take any such statement as that. Gentlemen, you-must get together upon a matter of this kind.” He then added: “No juror ought to remain entirely firm in his own conviction one way or another, until he has made up his mind beyond all question that he is necessarily right, and the others are necessarily wrong.” To this statement the defendant’s counsel excepted. The jury thereupon brought in a verdict for the plaintiff.

We are of the opinion that.the instruction excepted to was not a correct statement of the law. It was incumbent upon the party holding the affirmative of the issue, who in this case was the plaintiff, to satisfy the jury by a preponderance of evidence of the facts upon which her right to recover depended. If she failed to do so, the defendant was entitled to a verdict. The jurors who were not satisfied by the evidence of the truth of the plaintiff’s allegations were justified in refusing, for that reason, to find a verdict in her favor, although they might not have made up their minds, beyond all question, that they were necessarily right, and that those who were in favor of finding a verdict for the plaintiff were necessarily wrong. To sustain this instruction would be to cast upon the defendant, in a civil action, a burden quite as heavy as that which rests upon the prosecution in a criminal case, and perhaps still more onerous. If the evidence was so clear as to lead to a conclusion with the degree of certainty required by the charge, there was nothing to submit to the jury, and it was the duty of the court, either to direct a verdict, or to non-suit the plaintiff.

The judgment should be reversed, and a new trial ordered, costs to abide the event.

All concur.


source: Caselaw Access Project

author: Dakforth, J.

license: Public Domain

text:
    Mary Emma Wyckoff v. Seth W. Scofield, et al. Matter of the petition of Maddock. William S. Maddock, App’lt, v. D. J. Noyes, receiver, Mary Emma Wyckoff, Pl’ff, and Smith and Scofield, Def’ts, Resp’ts.

      (Court of Appeals,

      Filed December 17, 1886.)

    1. Foreclosure—Receiver in—Power of as to fund.
    A receiver appointed in foreclosure proceedings has no power to lessen the fund to which plaintiff has a right to resort.
    2. Same—Not liable for work done under Laws 1882, chap. 410, § 473.
    The New York Consolidation Act, Laws 1882, chap. 410, section 473, provides that whenever there shall be an excavation upon any lot of land in the city of Mew York, and there shall be any party or other wall on the adjoining land standing upon or near the boundary line, if the person whose duty it shall be to preserve and protect said walls from, injury shall neglect so to do after notice from the Are department, the depar.ment may take such steps as in its judgment may be necessary to make the same secure,” at the expense of t..e person or persons owning-said wall or building of which it may be a part; and any ] erson or persons doing the said work or any part thereof, under and by direction of said department, may bring and maintain an action against the owner or owners,” etc. Held, that though it might be the duty of the owners to protect the wall against the effect of the excavation, the statute was not broad enough to cast the duty on others, certainly not upon a receiver appointed in proceedings for the foreclosure of a mortgage upon the property-
    Appeal from, an order of the general term of the superior court of the city of New York affirming an order of the special term. In January, 1884, defendant Scofield was the owner of premises situate in the city of New York, of which Wyckoff was mortgagee. One Noyes was appointed receiver of the rents and profits thereof during the pendency of this action to foreclose the mortgage. The petitioner herein was the owner of the adjoining premises on which there was an excavation, which rendered the wall of the mortgaged premises unsafe. The inspector of buildings notified the owner and the receiver to make the same secure, and upon their failure so to do, Haddock, by authority of the inspector, performed the necessary work and made application, to the special term for an order directing the receiver to pay from the rents and profits the sum so expended by him for the work. The special term denied, the application, and upon appeal the general term affirmed, its order.

      Lemuel Skidmore, for app’lt; Samuel A. Noyes, for resp’t.

       Affirming 53 N. Y. Supr. Ct. (21 J. & S.), 237.

   Dakforth, J.

It does not appear upon what ground the receiver was appointed, but it may be assumed that the premises were inadequate security' for the mortgage debt, or that the rents were expressly pledged for its payment, but, for whatever cause, it is plain the receiver had no-power to lessen the fund to which the plaintiff had a right to resort. Such directions might have been given by the court if necessary for the preservation of the property. It was not appliedto. The expenses were not incurred, nor the repairs made, with its permission, and whether, having been made, the court shall allow its receiver to reimburse the contractor, was a matter entirely within its discretion, and from its determination no appeal will lie to this court.

The appellant, however, asserts that "his 'right to compensation is given by section"413 of the act of 1882, chapter 410, known as the New York consolidation1 act. " It is-there provided that “whenever there shall be an excavation upon any lot of land in the city of New York, and there should be any party or other wall, on adjoining land, standing upon or near the boundary line, if the person whose duty it shall be to preserve and protect said walls from injury shall neglect or fail so to do after * * *

notice from the fire department, * * * the department may * * * take such steps as in its judgment may be necessary to make the same, secure, at the expense of the person or persons owning said wall or building of which it may be a part, and any person or persons doing the said work, or any part thereof, under and by direction of said department, may bring and maintain an action against the owner or owners, or any one of them, of the said wall or building of which it may be a part, for any work done or materials furnished in and about the said "premises in the same manner as if he had been employed to do the said work by the owner or owners of the said premises.”

It may be said that it was the duty of the owner of lot No. 367 to protect the wall against the effect of the excavation, but the statute is not broad enough to cast that duty upon others, certainly not upon the receiver, who can act only under the order of the court.

We think the petitioner failed to make out a case for the interposition of a court in equity, or a legal claim under the statute. The order appealed from should, therefore, be affirmed.

All concur.

Order affirmed.


author: Rapallo, J.

text:
    Martin, General Guardian, etc., v. New York, New Haven and Hartford Railroad Company.

      (Court of Appeals,

      Filed December 17, 1886.)

    1. Evidence—Declarations or deceased as to injury received, not tioMPETENT.
    In an action brought to recover damages for the death of plaintiff’s father alleged to have been caused by the negligence of defendant, the declarations of the deceased after the accident as to how it happened were introduced in evidence and received against defendant’s objection and exception. Held, that the evidence was inadmissible in favor of the plaintiff, and that tending to sustain a vital point in plaintiff’s case the erroneous admission thereof furnished ground for a new trial.
    2. Evidence admitted against objection—Party objecting may disprove WITHOUT WAIVING OBJECTION.

      Held, that the defendant did not waive his objection and exception by attempting to disprove the matter testified to, or to prove facts inconsistent with it. ■ That a party excepting to the admission of testimony .is not bound to, concede its truth, or to refrain from combating it, in order to retain the execution.

      Appeal from a judgment of supreme court, general term, first department, affirming a judgment in favor of the plaintiff, and affirming an order denying a motion for a new trial.
    The action was brought by plaintiff to recover damages from defendant for the killing of plaintiff’s father caused by the negligence of defendants. Testimony was admitted at the trial showing the statements made by the father, after the injury was-received, and while being carried from where the accident occurred, as to the manner in which it happened.

      Thomas P. Wickes, for resp’t; Frank Loomis, for app’lt.
   Rapallo, J.

The decision of this appeal is controlled by the case of Waldele, adm’x, v. The New York Central and Hudson River Railroad Co. (95 N. Y. 274); in which it was held after much discussion, that the declarations of a person who had been fatally injured upon-a railroad, made after he had sustained the injuries, explaining the manner in which the accident had happened, were not competent evidence in favor of his administratrix, in an action brought by her against the railroad company for causing his death by negligence.

The plaintiff was allowed to prove in the present case, under objection and exception, that after the deceased had been taken out from under the car by which he had been injured, and while he was being conveyed to .the switch-house by his fellow employees, some one asked him how the accident had happened, and he said: “I pulled.the pin and made a grab for the" car, and there was nothing there for me to grab.” Another version given by the witness was that deceased said he cut off the car and made a grab for the handle of the car, and there was nothing there for him.

The deceased was ah employee of the defendant, and the sole ground upon which the plaintiff’s claim to recover was founded was that the car which he was directed to detach from the train was not furnished with a horizontal grab-handle on its end, and that that alleged defect was the cause of the injury. The testimony thus erroneously admitted, therefore, tended to sustain the vital point of the plaintiff’s case.

The learned counsel for the respondent seeks to avoid the effect of the erroneous admission of this testimony by claiming that it did no harm, but we think that position cannot oe maintained. Whether the car on which the deceased attempted to climb, after he had cut it off, was or was not furnished with a grab-handle, and whether or not he met his death in the manner in which the witness testified that he said he did, were contested questions of fact which were submitted to the jury, and the evidence of his declaration very soon after the accident must have had weight with them in determining those questions.

It is further contended that the defendant is precluded from insisting upon this exception, by having itself inquired into the declarations of the deceased on the occasion referred to.

One witness testified that he attributed the blame to one of his fellow workmen; and another, that when asked how he came to fall, he answered that he did not know. All this testimony was taken after the declaration of the deceased, while being taken to the switch-house, had been admitted, notwithstanding the defendant’s objection and exception, and was introduced by way of contradiction of the witness Malone, who had given the objectionable testimony. The defendant did not waive his objection and exception by attempting to disprove the matter testified to, or to prove facts inconsistent with them. A party excepting to the admission of testimony is not bound to concede its truth, or to refrain from combating it, in order to retain his exception.

There are numerous other exceptions in the case worthy of attention, but as they may not arise on another trial, it is needless to pass upon them now.

For the error pointed out the judgment should be reversed and a new trial ordered, costs to abide the event.

All concur, except Daneorth, J., not voting.


author: Per Curiam.

text:
    Benjamin Fitch, Resp’t, v. Patrick McMahon, App’lt.

      (Court of Appeals,

      Filed December 17, 1886.)

    1 Arrest—Order of—What sufficient ground for under Code Civil Pro , § 550, sued. 1.
    This action was brought to replevin some goods alleged to have been obtamed by fraud, and defendant was arrested for a fraudulent disposition or concealment thereof, under Code Civil Procedure, section 550, subdivision 1. The affidavits of the plaintiff and others on which the order of arrest was granted showed that his firm, during September and October, 1885, sold the defendant the goods in question upon his representation that he was doing a good business That twenty-three days after the last sale defendant made a fraudulent assignment to one of his sons, with fraudulent preferences in favor of a non-resident son of over $4,000; that his assets amounted to $7,000 and liabilities to $14,000. Reid, that the fraud in the purchase of the goods justified the further inference that the inability of the sheriff to find the goods and take them on the requisition was in consequence of a fraudulent disposition or concealment of the .goods by the "defendant in pursuance of his original fraud, with the intent of depriving the true owner of the benefit thereof. That there was a case . presented by the affidavits justifying the granting of the order of arrest.

      2. Same—Pleading—“Wrongful taking” does not imply “fraudulent TAKING.”
    The allegation in the complaint that the defendant “ wrongfully took the chattels for which the action was brought did not necessarily imply a, fraudulent taking, and the right to arrest depended upon an extrinsic: fact to be shown, but, notwithstanding such a defect in the complaint, the-order of arrest will be granted when the evidence afforded by the affidavits in support of the motion tends to show an extrinsic fact amounting to-a fraud.
    The action is in replevin brought to recover certain goods, chattels and merchandise alleged to have been fraudulently obtained by the defendant from the plaintiff’s; firm and five other creditors, who prior to the commencement of this action had assigned their claims to the plaintiff, who brought the action. The sheriff of the county of Kings, pursuant to the writ of replevin, seized a portion of the personal property mentioned in the writ, and returned, that the remaining portion of said property had been assigned, concealed, removed or disposed of, so that he: could not find or take the same. On this return and affidavits of plaintiff and others that the case was within Code Civil Procedure, N. Y., section 550, subdivision 1, and that the ground of arrest was that the defendant had concealed, removed or disposed of the goods which plaintiff sought to recover, Justice Cullen, of the supreme court, Kings county, issued an order for the defendant’s arrest. Defendant then moved, before the special term, for an order vacating the order of arrest, on the papers upon, which such order was granted, which motion was denied. The memorandum of Justice Bartlett denying the motion to vacate was as follows: “Assuming that there are five-distinct causes of action attempted to be set out in the complaint, the objections based on the affidavit of the plaintiff tend only to show that he has really no cause of action as. far as the claim of his firm is concerned. The insufficiency of this cause of action, however, does not affect the validity of the order of arrest, though it may afford a reason for-reducing the bail. Motion denied, with costs to abide-event.”
    From this order, and from each part thereof reciting the reading of papers on which the order of arrest was not granted, defendant appealed to the general term, where-the order of the special term was in all things affirmed. See 3 N. Y. State Rep., 147. From this order the defendant appeals.

      Wm. J. Gaynor, for app’lt; Abram Kling, for resp’t.

       Affirming 3 N. Y. State Rep., 147.

   Per Curiam.

The ground of arrest, as stated in the order, is that specified in subdivision 1 of section 550 of the Code of Civil Procedure. The affidavits tended to establish that the goods purchased by the defendant from Benjamin Fitch & Oo. were obtained by fraud. The affidavit of Fitch shows that between the first of September and the twenty-first of October, 1885, his firm sold to the defendant goods and merchandise of the value and kind alleged in the first cause of action set out in the complaint, upon his representation that he was doing a good business, which the affiant alleges was untrue, “'which appears _by the affidavits annexed,” and to which he refers. It'appears by reference to their affidavits that on the thirteenth of November, 1885, twenty-three days after the last sale by Fitch & Co., the defendant made a general assignment to one of his sons, with a fraudulent preference, in favor of a son residing in England, of $4,220, and that his assets, at the time of his assignment, were $7,212.25, and his Habilities about $14,308.17. It is a reasonable inference from these facts that the defendant’s representations to Fitch & Co. that he was doing a good business, upon the faith of which Fitch & Co. sold the goods, were false.

The fraud in the purchase of the goods justified the further inference that the inability of the sheriff to find the goods, and take them on the requisition, was in consequence of a fraudulent disposition or concealment of the goods by the defendant, in pursuance of his original fraud, with intent that they should not be taken, and to deprive the true owner of the benefit thereof. Barnett v. Selling, 70 N. Y., 492.

The affidavits presented a case, justifying the judge granting the order in deciding that a cause of arrest, under subdivision 1, section 550, was made out. The evidence presented to the judge was not as full and satisfactory as might be desired, but there was enough to confer jurisdiction to grant the order. We assent to the contention of the defendant’s attorney that, the allegation in the complaint, that the defendant “wrongfully took” the chattels for which the action was brought did not necessarily imply a fraudulent taking, and that the right to arrest depended upon an extrinsic fact to be. shown. But we think the requisite extrinsic fact was shown, or, at least, there was evidence tending to show it, which gave the judge jurisdiction.

The order should be affirmed.

All concur.


author: Rapallo, J. Brady, J., Davis, P. J.,

text:
    Matter of the Petition of the New York Cable Company, App’lt, v. The Mayor, etc., of the City of New York, The Thirty-fourth Street Railroad Company, The Second Avenue Railroad Company, The Trustees of Gramercy Park et al., William Oathout et al., owners on Madison avenue, other objectors, Resp’ts.

      (Court of Appeals,

      Filed December 17, 1886.)

    1. Railroads—In cities—New York (city of)—Cable Railroad—General SURFACE ACT—DlD NOT ABROGATE EIGHTS OF CORPORATIONS ORGANIZED UNDER RAPID TRANSIT ACT—LAWS 1884, CHAP. 252—LAWS 1875, CHAP. 606.
    Commissioners having heen appointed by the mayor of the city of New York, pursuant to Laws 1875, chapter 606, and having in the latter part of April, 1884, concluded their proceedings providing for the incorporation of the petitioners, and the petitioners having failed to obtain the consent of the owner of one-half in value of the property bounded on the streets in which it was to construct and operate its railways, commissioners were, by order of the supreme court, appointed as by the said act in such case provided. Upon appeal from an order denying a motion made to confirm the report of said commissioners. Held, that Laws 1884, chapter 252, section 16, providing that “No street surface railroad shall be constructed to run in whole or in part upon the surface of any street or highway under the authority of any commission appointed under the provision of chapter 606 of the Laws of 1875, entitled “An act further to provide for the construction and operation of a steam railway or railways in counties of the state, or the acts in addition thereto or amendatory thereof, ” must be construed in connection with section 18 of the same act, providing that “ nothing in the act shall * * * interfere with, or repeal or invalidate any right heretofore acquired under the laws of this state by any horse railroad company, or affect or repeal any right of any existing street surface railroad company to construct, extend, operate and maintain its roads in accordance with the terms and provisions of it's charter, and the acts amendatory thereof,” and that section 16, so construed, did not abrogate the right and power of the petitioner, if in other respects legally organized, to proceed to obtain the requisite consents, and when obtained to construct the railways in conformity to their articles of association.
    2. Rapid transit act—Prior to passage of Laws 1875, chap. 606, AUTHORIZED ORGANIZATION OF STREET RAILWAYS NOT OPERATED BY ANIMAL POWER.

      Held, that Laws of 1875, chapter 606, known as the rapid transit act, did, before the passage of Laws 1884, chapter 252, known as the general surface act, authorize the organization of companies to construct street railways on the surface to be operated by any power other than animal.
    8. Condition of statute providing for organization of corporations MUST BE SUBSTANTIALLY COMPLIED WITH.

      Held, that unless validly organized in pursuance of the rapid transit act, the petitioner acquired no right to construct its road, and consequently could not demand - that the supreme court confirm the report of its com- ' missioners, as a substitute for the consent of a majority of the property holders. That a substantial compliance with the material require ments of the statute was a condition precedent, without performance of which the petitioner never became legally incorporated, or acquired any rights under the act.

      4. Same—Rapid transit act—Laws 1875, chap. 606, § 6—What a substantial COMPLIANCE WITH—LIMITATION IN REGARD TO TIME.
    It is provided by section. 6 of the rapid transit act that the commissioners appointed by the mayor must fix and determine the time within which such railway or railways, or portions of the same, shall be constructed and ready for operation, etc. The time fixed by the commis-. sioners in this case began by these articles of association to run from the date of obtaining the consents, etc., and no time was limited for obtaining such consents, and the only restriction in respect to time, was that due diligence should be used for the purpose of obtaining them. There was no actual limitation of the time within which the roads of petitioner sho Id be constructed. That time during which petitioner might by legal proceedings be prevented from the prosecution 'of its work was also excepted from the time limited for its completion. Held, that an objection that the organization of the petitioner was defective because of the failure of the commissioners to fix the time for the completion of the railway was not well taken. That the1 limitations as to time imposed by the commissioners were in that respect a substantial compliance with the statute.
    5. Same—Section 7—What not substantial compliance with—Provision AS TO FORFEITURE FOR NON-FULFILLMENT OF CONDITIONS.
    The commissioners, by section 7 of said act, in the articles of association, must provide for the release and forfeiture to the supervisors of the county of all rights and franchises acquired by the corporation, in case such railway or railways shall not be completed within the times and upon' the conditions therein provided. In article 10 of the articles of association it was provided that “ In case the several portions of such railway or railways shall not be completed, each within the time and upon the conditions hereinbefore for it provided, the rights and franchises acquired by said, corporation, for and as to any portion of such railway or railways not so' completed shall be released and forfeited to the supervisors of the county of New York.” Held, that the articles of association failed to comply with the requirements of the statute in that they did not provide for the release, and forfeiture to the supervisors of the county of all the rights and franchises acquired by the petitioner ih case of its failure to complete its railways within the prescribed time.
    6. Same—Section 5—What not substantial compliance with—Plans FOR CONSTRUCTION, ETC.'
    The commissioners must, by section 5 of said act, meet and decide upon the plan or p'ans for the construction of the railway or railways, wi ll the necessary supports, turnouts, switches, sidings, connections, landing places; etc., upon the route or routes, and in the "location determined by them;. Held, that the commissioners having left these matters largely under the control of the petitioner, there was not in respect to this a substantial compliance with the statute requirements, and that such compliance was ' essential to the valid organization of the petitioner.

      Charles P. Shaw, att’y for a-pp’lt; William M. Evarts, Everett P. Wheeler, Robert Sewell, Eseh Cowen, of counsel;; E. Henry Laeombe, corporation counsel, for Mayor, etc., resp’t; W. C. Trull, Vanderpoel, Green and Cuming and-Robinson, Scriber & Bright and others, for res’pts.

       Affirming 40 Hun, 1.

   Rapallo, J.

On the hearing of this motion at the-’ general term, the learned judges entertained different ’ views. Daniels, J., who delivered the principal opinion, was in favor of denying the motion on various grounds. He considered, in the first place, that the. act under- which-the petitioner claimed to have been organized, commonly known as the rapid transit act (Laws of 1875, ch. 606), did not authorize the construction of a railroad upon the surface of the land, but related only to elevated or underground railways, also that if the rapid transit act ever did authorize the construction of surface roads, the general surface railroad act of 1884 (chapter 252, section 16) prohibited the erection of surface roads under the rapid transit act, and abrogated any authority which the petitioner might previously have had to construct surface roads, and, further, that the«commissioners appointed by the mayor, as prescribed in the rapid transit act, had failed to comply with some of the requirements of that act, which were essential to the legal organization of the petitioner as a corporation.

Brady, J.,

concurred in only one of the propositions upon which Daniels, J., based his conclusion, viz.: the proposition that the sixteenth section of the general surface act of 1884 abrogated the authority of the petitioner to construct a surface road.

Davis, P. J.,

dissented from the conclusion reached by both of his associates. The only point, therefore, which was decided at the general term was that the provisions of the general surface act deprived the petitioner of all power or authority to construct a surface road.

But the other points are still in the case and are urged on this appeal with great earnestness by the counsel for the various objectors who have argued before us and those who have submitted printed briefs, and numerous objections in addition to those discussed by Daniels, J. are insisted upon.

As to a few of the routes designated by; the mayor’s commission, the general term denied the motion to confirm the report of the supreme court commissioners in the exercise of the discretionary power of the court in such cases, and its actions with reference to those routes cannot, and is not sought to be reviewed here, but as to the residue of the routes the court has declared in the order appealed from, that the motion was denied “solely and wholly on legal grounds and legal objections existing against the same, the petitioner being considered to have no legal right to construct or operate a railway on the streets and avenues last referred to.”

This declaration in the order authorizes us to review the questions of law involved in the determination of the general term, and seems to have been inserted with the view of inviting such an examination.

'We will first consider the point on which the majority of the justices sitting at the general term agreed, viz.: The effect of the act of 1884 (Chap. 252, § 16), as abrogating “the rights of the petitioner.

The language of that section is as follows: “§ 16. No street surface railrord shall be constructed to run in whole or in part upon the surface of any street or highway under the authority of any commission appointed under the provision of chapter six hundred and six of the laws of eighteen hundred and seventy-five, entitled ‘An act further to provide for the construction and operation of a steam railway or railways in counties of the state, or the acts in .addition thereto or amendatory thereof.”

The amendments to the constitution adopted in November, 1874, contained a provision (art. 3 § 18), that the legislature should not pass a private or local bill, granting to any corporation, association or individual, the right to lay down railroad tracks. But it was further provided, that the Legislature Should pass general laws providing for the ■cases enumerated in section 18, and that no law should authorize the construction of a street railroad except upon the consent of property-owners, and of the local authorities, or in case the consent of property-owners could not be •obtained, the determination of three commissioners appointed by the supreme court, which determination should be confirmed by the court.

From the time this amendment took effect, January 1, 1875, until the passage of the general surface railway act ■of 1884, there had been no law in force under which street railways could be constructed except the rapid transit act, the general railroad law of 1850 being inapplicable to street railways in cities, and no other general law having been passed, as required by the constitution. The rapid transit .act excluded the' use of animal power to draw the cars, subdivision 4 of section 26 giving authority to companies ■organized under that act to “ convey persons or property on their railroad by the power or force of steam, or by any motor other than animal power ” could be organized under that act. No horse railroad consequently could be organized under that act. To provide a more complete system of street surface railways, the act of 1884 was passed. It dispensed with the machinery of a mayor’s commission and allowed ■companies to be formed by the voluntary association of the requisite number of persons, authorized them to select their ■own routes, provided the requisite number of property owners or a supreme court commission and the local authorities consented thereto, and did not exclude the use of either animal or steam power, but authorized the use of “animal or horse power, or. any power other than locomotive steam power which might be consented to by the local authorities and a majority of the property owners,” etc.

Having thus made provision for a system of street sur--face roads more comprehensive even than could be claimed, to be provided for by the rapid transit act, the legislature naturally determined to make that system exclusive and to have no more mayor’s commissions for surface roads. But-it was matter of public notoriety that the commission which organized the petitioner had been at work since December, 1883. It had held numerous meetings in the city of New York, and had published notices of its proceedings from time to time, as required by the act. It had determined upon the necessity of the road, had located the routes, had, after public notice, adopted plans for the construction of the roads, prepared articles of association, caused subscription books to be opened, after public notice, for subscriptions to the capital stock, and the whole of the. capital stock, amounting to $2,000,000, had been subscribed and the fixed percentage thereof paid in "cash, a board of directors had been elected and the company organized, and the certificate of organization filed. All these acts were required by the act to be done before they could become a corporation. They were completed before the passage of the general suface act of May 6, 1884, viz.: On the 21st of April, 1884, and the plaintiff on that day became, in so far as the plans of the commissioners provided for surface roads, an existing street surface railroad company, provided in its organization it had conformed to the essential requirements of the rapid transit act, a question which will be considered' hereafter.

When the legislature passed the general surface railroad act, and by section 16, made it the only law. under which street surface railroads could thereafter be organized, I think that they intended to save the rights of all existing street surface railroad companies, even though they had been organized under the rapid transit act, and that with this view, section 18 of the general surface railway act was. inserted. That section provides that “nothing in the act shall "x' * * interfere with or repeal or invalidate any right-heretofore acquired under the laws of this state by any horse railroad company, or affect or repeal any right of any existing street surface railroad company to construct, extend, operate and maintain its road in accordance with the terms and provisions of its charter and the acts amendatory thereof.”

It is evident from the language of this section, that it was-intended to save the rights of existing street surface railroad companies other than horse railroad companies, because, after in terms providing for horse railroad companies it adds immediately after and in the same sentence the provision for the .protection of any existing street surface railroad company, without restricting it to horse railroad companies. As there was no law except the rapid transit act authorizing the formation of street surface railroad, companies to be operated by any power other than horsepower, the second branch of the saving clause must have-been intended to embrace existing companies organized under the rapid transit act.

An. examination of the proceedings of the legislature discloses that the general' surface railway act was proposed to the legislature by the railroad commissioners, and as origi-. nally prepared and introduced on their recommendation, it diid not contain the provisions of either section 16 or section 18, but they were both inserted by way of amendment. It is not unreasonable to infer that section 18, in so far as it re-, lotes to surface roads other than horse railroads, was intended for the express purpose of qualifying and restricting the sweeping provisions of section 16.

Construed m the light of this saving clause and in connection therewith, and bearing in mind the general princi-, pies relating to the construction of statutes as retroactive, I think the sixteenth section should be deemed to have, prohibited only the construction of roads by companies thereafter organized under the rapid transit act, and by. authority thereafter given by commissioners appointed in pursuance of this act, and was not intended to prohibit any company, theretofore organized and then existing, from exercising the corporate right and authority which it had acquired, to proceed with the construction of its road in accordance with its articles of association which had, been framed by the commissioners, and which constituted its charter, on complying with the conditions, as to consents, imposed by the constitution and by the rapid transit act.

The saving clause, which declares that section 16 shall not affect “any right” of any existing company to construct its road, is sought to be confined to cases where all the conditions required to be performed by the company before it can enter upon the. streets and actually lay the tracks, had been performed, and it is contended that until such performance the company has no right to construct its road; that section 18 saves only a consummated and perfected right, which does not exist so long as any of the conditions imposed upon the exercise of the power conferred by the charter remain unperformed.

I think this is too restricted a construction. The company, as was well known, had been for a long time engaged in having its routes determined and plans adopted by the mayor’s commission and its articles of association framed, its stock subscribed and its capital in part paid in; all of which proceedings necessarily involved a large expenditure, and they had succeeded in maturing their organization and becoming an existing company, provided their proceedings conformed to the act. It had thus acquired the corporate powers and an inchoate right to construct its road, and all that remained to be done was to acquire the perfected right to enter upon the street and lay its tracks, which was in substance its right of way, by obtaining the consents of the local authorities and a majority of the property owners, or in lieu thereof the approval of a supreme court commission. I think the saving clause was intended to protect such right as the company had, though it was an inchoate right and subject to the performance of further conditions. The statute does not say the perfected right, but “any right,” and although it was the intention of the general surface act to establish a uniform system for the future organization of street surface railroads and to prohibit the future establishment of such roads under authority of the rapid transit act, yet it was not intended to arrest the operations of a company already organized under that act, or to deprive it of tne corporate rights and powers which it had acquired at great expense in reliance upon the'provisions of the act.

Although the effect of section 16 on the rights of the petitioner is the only point upon which á majority of the court below, in its opinions, agreed as a ground for denying the motion, yet its order was made generally on legal grounds and legal objections, and upon the general conclusion that the company had no legal right to construct or operate a railway on the streets and avenues in question. Any legal objection, therefore, to the right of the company to construct its road is sufficient to sustain the order, and is open to the respondents on this appeal.

We must, therefore, consider the objection taken that "the rapid transit act did not authorize the construction of street surface railroads, but only of elevated or underground roads.

The rapid transit act authorizes the commissioners appointed by the mayor, in the first place, to fix and determine the route or routes, and declares that such commissioners “shall have the exclusive power to locate the route or routes of such railway or railways over, under, through or across the streets, avenues, places or lands in such county,” etc.

This form of expression, “over, under, through or across,” is preserved throughout the act and is often repeated, and it is claimed on the part of the appellant that the word “through” the streets refers to surface roads, and is used in contradiction to over and under. On the other hand, many provisions and requirements of the act are referred to, which are applicable only to elevated or underground railways. Such as those of section 5, in regard to “supports,” “stations,” “stairways,” “elevators;” those of section 17, in regard to “depots,” and those of section 26, subdivision 5, respecting “foundations,” “columns,” etc,, and from this it is argued that only elevated or underground railways were contemplated or intended to be authorized by the act. But a similar line of argument can be used, and with equal force, in support of the contention that the act intended to provide for surface roads as well as for underground and elevated roads. Section 26, subdivision 3, authorizes the crossing of and intersection with other railroads before constructed, but subdivision 5 of the same section, contains these exceptions: “Except that nothing in this act shall authorize the construction of a railway •crossing the track of any steam railway now in actual operation at the grade thereof, or the erection of piers or supports for any elevated railway upon a railway track now actually in use in any street or avenue.” Section 29 authorizes conductors, in case a passenger refuses to pay his fare, to put him out of the car at any usual stopping place, or near any dwelling house. Section 35 provides that where the route “ shall- intersect, cross or coincide with any horse railway track occupying the surface of said streets,” the company may for the purpose of constructing its work, temporarily remove the tracks of the horse railway, but “ nothing contained in this act shall authorize any corporation formed thereunder to use the tracks of any horse railway.”

By section 4, certain streets and places are exempted from having any railroad constructed therein, and in 1881, an act was passed (Chap. 485, Laws of 1881), amending the rapid transit act, providing that when any route designated by the mayor’s commissioners is located “over or on” any street thus exempted the commissioners shall have power to substitute a location over, under, through, or across any street not exempted, in the same general direction as the exempted street.

It is obvious that some of the provisions of the act are applicable exclusively to elevated or underground roads, and others exclusively to surface roads, and that such is necessarily the case where it is intended to provide for both classes of roads in a single act.

Although we may presume from the history of the time, that the legislature had most. prominently in view the securing of rapid transit by means of elevated or underground roads, yet the main object sought was rapid transit in any way it could be obtained, and in framing their act they made it sufficiently broad to include surface roads.

The act gives full power to the mayor’s commissioners to decide upon the plans on which the roads shall be constructed, and contains no restriction which excludes from their adoption the plan of a surface road.

The object was to obtain some better motor than horsepower and therefore they authorized steam or “any motor other than animal power.” Section 26, subd. 4. They might well trust to the local authorities, the property owners and the commissioners appointed by the mayor and those appointed by the supreme court, not to consent to the use of steam locomotives on the surface of the streets, and they did not in terms prohibit them as is done in the general surface railway act, which allows any power except that of a steam locomotive, including any other mode of propulsion by steam or other power which may be con-’ sented to by the local authorities and the property owners. I think that before the passage of the general surface railway act a corporation could be legally organized under the rapid transit act for the construction and operation of a street surface railway, and that such was the view entertained by the legislature appears from their enacting section 16 of the general surface act, prohibiting the future construction of surface roads under authority of that act, except in the case of existing companies.

Section 40 is relied upon as contradictory of this interpretation. It provides that this act (the rapid transit act),, shall not be construed to repeal or affect the general railroad law of 1850, nor shall any of its provisions apply to any railroad company organized under any general or special law of this state for the purpose of constructing a steam railroad upon the surface of the ground, nor to the operation or management of any such railroad heretofore constructed. I do not think that this section is in any respect inconsistent with or contradictory of the argument that the rapid transit act itself authorized the construction of a steam railroad on the surface.

The meaning of this section, as I understand it, is, that’ none of the provisions of the act shall apply to any surface' railroad company already organized at the time of the passage of the rapid transit act, under any general or special act, nor to the operation of any surface railroad constructed before the passage of the rapid transit act. This concluding sentence of the section rather confirms the view that the act was understood by the legislature to apply to surface roads constructed under its provisions, by declaring in terms that none of its provisions shall apply to' the operation or management of any surface road constructed before its passage.

This brings us to another class of questions, which present serious difficulties. They relate to the organization of the petitioner as a corporation. Unless validly organized, in pursuance of the rapid transit act, it acquired no right to construct the road, and consequently could not demand that the supreme court confirm the report of its commissioners, as a substitute for the consent of a majority of the property owners, and the order of confirmation would be of no avail if granted.

As no power, authority, or franchise is conferred directly by the legislature on the petitioner, but the act only prescribes the proceedings by which such rights can be acquired, a substantial compliance with the material requirements of the act is a condition precedent, without performance of which the petitioner never became legally incorporated, or acquired any rights under the act.

The general scheme of the act, omitting details, is that the public necessity for the steam railway or railways sought to be constructed in the county, shall be established by the determination of commissioners to be appointed, in cities by the mayors thereof, on the verified petition of fifty reputable householders and taxpayers of the county, and to organize as a board.

Upon the determination by such commissioners that the road is necessary, they are required to fix and determine the route or routes, and they are declared to have the exclusive power to locate the route or routes of such railway or railways, over, under, through or across the streets, avenues, places, or lands in such county, excepting certain designated streets and avenues, and also public parks and public buildings. Section 4.

The commissioners must also meet and decide upon the plan or plans for the construction of the railway or railways, with the necessary supports, turnouts, switches, sidings, connections, landing places, stations, buildings, •platforms, .stairways, elevators, telegraph and signal devices, or other requisite appliance's upon the route or routes, and in the location determined by them. • Section 5.

They must also fix and determine the time within which such railway or railways, or portions of the same, shall be constructed and ready for operation, together with the maximum rates for transportation and conveyance, and the amount of capital stock, etc. Section 6.

They must then prepare articles of association for the company to be formed. These articles must set forth and embody, as component parts .thereof, the several conditions, requirements and particulars determined by the commissioners, pursuant to sections 4, 5 and 6, and must further provide for the release and forfeiture to the. supervisors of the county, 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. They must also open books for subscription torne capital stock, after due public notice. Section 7.

When the whole capital stock has been subscribed and the percentage prescribed by the commissioners has been paid in cash, the subscribers are to meet for organization and elect directors, and thereafter the commissioners are to-deliver to the directors a certificate in duplicate of the organization of the company, setting forth the articles of association. Three of the directors are then to make affidavit in duplicate, that the full amount of stock has been subscribed in good faith and the prescribed percentage paid in cash, and that it is intended in good faith to construct, maintain and operate the railway or railways in the articles-of association mentioned. The certificates and articles are to be filed in the office of the secretary of state, and a duplicate in the office of thé clerk of the county wherever the railway or railways shall be located, and thereupon the persons who shall become stockholders, shall be a corporation.

The observance of all these essential requirements is, therefore, a condition precedent to a company of this description becoming a corporation, or acquiring the right to-exercise any of the powers conferred upon such corporations by the rapid transit act.

The respondents claim that the petitioner has failed in many respects to comply with the requirements. The principal objection discussed in the opinion of Daniels, J., at general term, is that the mayor’s commission did not “fix and determine the time within which such railway or railways, or portions of the same, shall be constructed and ready for operation,” as required by section 6 of the act.

The commissioners disposed of that subject in the following manner: They required separately as to each of the twenty-nine different routes which they had located, that it should be constructed and ready to be operated within a specified number of months or years, “from the date of the obtaining of 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 or those portions of streets or highways upon which it is proposed to construct and operate such railway or railways; or in case the consent of such property owners cannot be obtained, from the date of the confirmation by the court of the determination of three commissioners appointed by the general term of the supreme court in the first judicial district, that such railway or railways ought to be constructed and operated, provided that the date of such confirmation be the same or subsequent to the date of the said consent of such local authorities.” After specifying in regard to the twenty-nine routes respectively, periods varying from eighteen months to five years from the date of the consents, they added the following general provisions, viz.: First, “Resolved, that each of the said periods and hmitations of time hereinbefore referred to, and prescribed as the time within which the sections or portions of railway or railways shall be constructed and be ready to be operated is, however, subject to this proviso and reservation, as follow : The time, if any, unavoidably consumed by the pendency of legal proceedings or by the interference of the public authorities, or by omission to open or grade, or delay in opening or grading, any street or avenue, or any part or parts thereof, shah not be deemed a part of any period of time within which construction any completion of the railway or railways is required to be made. But the time, if any, during which such unavoidable delay shall continue shall be added to each of the periods hereby otherwise limited for construction and completion of the railway or railways;” and secondly, “ Resolved, That it is the intent of the board of commissioners, that the consents of the-property-owners .and of the local authorities specified in section 4 of chapter 606 of the Laws of 1875, as amended by chapter 485 of the Laws of 1881, and, if necessary, the-determination of commissioners to be appointed by the-general term of the supreme court and the confirmation of such determination by the court, shall be obtained with all due diligence.”

It is contended with considerable force -by the respondents that as the time fixed by the commissioners only begins to run at the date of the obtaining the consents, etc.,, and no time is limited for obtaining such consents, and the-only restriction in respect to time is that due diligence shall be used for the purpose of obtaining them, there is no actual limitation of the time within which the roads are to-be constructed, and the commissioners, have done little more than to require that they be completed with due diligence. It is claimed that the act contemplated that a definite time should be fixed by the commissioners so that it might readily be ascertained when the rights of the petitioner terminated, and their powers and franchises might be devolved upon some other company who would supply the public necessity of rapid transit.

I have with some hesitation come to the conclusion that the commissioners' substantially complied, m this respect, with the rapid trarisit act. That it is reasonable to consider that the intent of the act was that companies formed under the ■ act should be limited in respect only to time during-which it was possible for them to prosecute the work, and that time when legal barriers existed to them so doing should not be counted. The act itself provides (section 38) that “ 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 act,” and subsequent acts recognize the principle that only available time should be considered. The general surface railway act (Laws of 1884, chapter 252), limits the time for the commencement of the construction of the roads, thereby authorized to one year, and the time for their completion to three years after they have acquired the consent of the local authorities and that of the property owners, or the determination of the general term. And it further authorizes the supreme court to extend their time during the pendency of legal proceedings.

It thus appears that the. legislature, when itself undertaking to perform the duty, which by the rapid transit act it had devolved upon the commissioners, of determining the time within which street railroads should be constructed, adopted the sanie course as that adopted by the commissioners in this case, and it would seem to be in accordance with the spirit of the act. If the object was to secure the speedy construction of these roads by opening the door for some other company to come in and construct the road in case the first one organized failed to do so with promptitude, that object would not be advanced by causing a forfeiture of the franchises of the company first formed, for causes which.would operate on any company which might follow it. There was ample remedy for any delay which due diligence could obviate and which was not unavoidable. The company would be subject to a forfeiture of its franchises for not complying with the conditions of its charter, and also to the more summary punishment of a legislative repeal of such charter. These considerations induce me to regard the limit of time as determined by the mayor’s commission a sufficient compliance with the act.

A further objection-is taken that the articles of association framed by the mayor’s commissioners, do not conform to the requirement of section 7 of the act, which is very explicit in its terms. It requires that the articles of association shall set forth and embody the determination of the commissioners pursuant to sections 4, 5 and 6 and “further shall provide for the release and forfeiture to the supervisors of the county 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 ” This provision is thus made an essential part of the articles of association.

The provision in respect to forfeiture actually contained in the articles of association of the petitioner, instead of providing, as required by the act, for the release and forfeiture to the supervisors of the county of all the rights and franchises acquired by the corporation, in case the railway or railways shall not be completed in time, provides only (article 10) that “In case the several portions of such railway or railways shall not be completed, each within the time and upon the conditions hereinbefore for it provided, the rights and franchises acquired by said corporation, for and as to any portion of such railway or railways not so completed, shall be releasad and forfeited to the supervisors of the county of Yew York.”

This is a very material departure from the requirements of the act. The mayor’s commissioners had laid out twenty-nine different routes, some longitudinal,- extending the whole length of the city on the easterly and westerly sides thereof, and some transverse crossing from east to west, some long routes and some short, some elevated and some surface roads, some running through the thickly settled and some through the sparsely inhabited portions of the city, the aggregate length of the roads being upwards of seventy miles.

Whether the rapid transit act contemplated that the entire rapid transit business of the city should be concentrated in the hands of a single company, I cannot undertake to say. The act was such that it was theoretically, at least, capable of giving sanction to such an organization, though the practical difficulties in the way of complying faithfully with its requirements in devising a scheme, on such an extended scale, were very great.

One thing, however, is very clear. It was not intended to sanction the organization of a company which could acquire the franchise of building all the conceivable roads now required, or which might be required for years to come in the city of Yew York, and holding it for an indefinite time over that city, thus keeping off all smaller companies which might be required in particular localities, and retaining in itself the monopoly of the rapid transit business. The intention was that no franchise should be acquired to build a road, or set of roads, unless it was the actual intention of the promoters actually to build them and complete them within a limited time, and no road was to be authorized which was not intended to be thus constructed. And to secure this end the act contained stringent provisions. Before a corporation could be finally organized under the act, it was required to file an affidavit of three of its directors that the full amount of stock had. been subscribed, and the prescribed percentage paid in cash, and that it was intended in good faith to construct, maintain and operate the railway or railways in the article’s of association mentioned (§ 9). This refers to all the railways mentioned in the articles and not merely to a portion of them. The sixth section required the time within which each portion of all the roads mentioned in the articles should be completed, and the seventh section for the forfeiture and release to the supervisors of all the rights and franchises in case the railway or railways (meaning all of them) shall not be completed within the appointed time.

Under the article as framed by the commissioners, the company was left at liberty to select which of the twenty-nine routes it would complete, and which it would not without any reference to the interests of the public, and without -their action being subject to revision or control. As to many of the routes it had five years, after obtaining the necessary consents, to determine whether it would construct them, and during all this period they would hold, the shadow of their exclusive franchise over the neighborhoods affected, and if they finally concluded to abandon those routes they were to suffer no penalty except to forfeit to the supervisors of the county the franchise of constructing the routes which they elected to abandon.

This was not in accordance with the letter or spirit of the act. The mayor’s commissioners were sworn public officers, presumed to be disinterested and placed in office for the purpose of protecting the public interests, and it may well be presumed that in fixing routes ‘they would locate some which it would not be to the immediate interest of the company to construct, but for which they would be compensated by the franchise being coupled with a highly profitable route, the right to construct which would ensure the construction of the others. By the device resorted to, if it were sanctioned, they would be left at liberty to determine all these matters for themselves without anything to guide them but their own interest.

In 1882 this very subject was before the legislature, and they amended section I of the rapid transit act by adding the following: “Provided, however, that a failure by any corporation heretofore or hereafter organized under this act, to complete its railway within the time ' limited in and by its articles of association, shall work a forfeiture of the franchises of such corporation only with respect to that portion of its route which such corporation shall have failed to complete, and shall not affect the rights and fran-. chises of such corporation to construct and operate such. part of its railway which it shall have completed within the term prescribed by its articles of association, or as to which the túne for completion shall not have expired, anything contained in the articles of association of such corporation to the contrary thereof in any wise notwithstanding. Laws of 1882, chap. 393, § 2. But by section 5 of the same act it was expressly provided that none of its provisions should apply to the counties of Hew York and Westchester, thus emphasizing the legislative will as declared in the original act, that in those counties a rapid transit company should be required to obligate itself to construct all the roads mentioned in its articles of association under the penalty of a transfer of all its franchises to the supervisors of the county.

The commissioners, therefore, in framing article 10 of the articles of association, attempted to override the action of the legislature in refusing to make the amendment of 1882 (chap. 393, § 2), applicable to the city of Hew York, by incorporating the substance of the amendment in the articles of association of the petitioner, which they were authorized by law to prepare.

To this objection it is answered that the provision in the articles of association required by section 7 was superfluous and unnecessary, because the law would execute itself though nothing were said in the articles on the subject of forfeiture. The difficulty in the way of this answer is that there is no provision of law declaring a forfeiture to the supervisors or requiring a release to them. The only legislative enactment on that subject is the requirement of section 7, that the articles of association shall contain a stipulation or provision to that eff ect, and that requirement is positive and unequivocal and cannot be disregarded.

The general laws applicable to corporations would doubtless authorize the attorney-general to proceed by quo warranto for a forfeiture of the charter of the petitioner in case it should unreasonably delay or omit to exercise its franchises. But that would be a different kind of forfeiture from that mentioned in section 7. It would be a destruction of the franchises and not a transfer of them to the supervisors, and the act having made a specific provision on the subject, no other can be substituted.

It is further said that this requirement is not applicable to the city and county of Hew York, because the board of supervisors of that county was abolished prior to the passage of the rapid transit act, viz.: in the year 1870. Laws of 1870, chapter 190. This, I think, is a misapprehension.

By section 11 of the act referred to the board of supervisors, composed of supervisors theretofore elected by the people or appointed by the mayor, was declared abolished from and after the first Monday of July, 1870. But from that time all the powers and duties conferred by general or special laws upon the board of supervisors of. the city or county of New York, or upon any supervisor thereof, and all the obligations of the abolished board of supervisors were declared to belong to, be devolved upon and thereafter fully possessed, and required to be exercised by the board of supervisors constituted by that act, or by any supervisor thereof, and by section 1 of the act the mayor and recorder of the city of New York, together with the aldermen to be elected, under the act to reorganize the local government of the city of New York (Laws 1870, chapter 137) were declared, on and after the first Monday of July, 1870, to compose the board of supervisors of the county of New York, and each of said officers to be a supervisor of said county

The constitution requires (article 3, section 22) that there shall be in the several counties a board of supervisors to be elected in such manner as may be prescribed by law, except in cities whose boundaries are the same as those of the county, but that in any such city the duties and powers of a board of supervisors may be devolved upon the common council or board of aldermen thereof, and certain duties are imposed upon the board of supervisors of the city and county of New York, which require that such a body be maintained in that county. Article 3, section 3.

It cannot be claimed, therefore, that in the city and county of New York there are no supervisors to whom the franchises of the company can be forfeited and released.

It is further contended, with much force, on the part of the respondents, that plans for the construction of the roads, are fatally defective and in many respects fall far short of a substantial compliance with the requirements of the rapid transit act.

The points made on this subject in the briefs submitted by the various counsel for the respondents are so numerous that it would be impracticable within any reasonable limits to discuss all of them, I shall, therefore, select a few of those which I regard as prominent.

That it is essential to the formation of a corporation, under the rapid transit act, that the commissioners appointed by the mayor should decide upon some plan for the construction of the railway or railways located by them, cannot be doubted. The distinguishing feature of the act is that the company to be organized is not left at liberty, as are railroad companies formed under the general railroad act, and as were those which formerly were created by special acts, to decide for themselves upon the plan of construction, but that subject was placed under the exclusive control of the commissioners, in addition to the exclusive power to locate the route or routes. The power thus vested in the commissioners to decide upon the plan of construction was rendered necessary by the peculiar character of the roads authorized, which doubtless were principally intended to be located in populous cities, and might seriously affect valuable private rights. The extent of injury to these private rights would necessarily depend in a great degree upon the manner in which the roads, and especially the elevated roads, shall be constructed and operated. The necessity for increased facilities for transportation in large cities, and especially in the city of New York, was the spring which set in motion all these schemes and when it was sought to have them forwarded by legislative sanction the problem was to secure the greatest benefit to the public with the least injury to private rights. It was not safe to organize private corporations with unrestricted power to construct these roads on any plan which economy and a regard solely to their own interests might suggest, and, therefore, the expedient was resorted to of the. appointment by the local authorities of a board of sworn commissioners, who should give security for the faithful performance of their duties, and have power to stand between the projectors of the enterprise and the property-owners, and the public, and decide upon the plans which they should deem most just with reference to all these diverse interests.

This leads us to the inquiry into the extent to which it is essential to the validity of an organization under this act, that the commissioners should exercise the power of deciding upon the plans of construction.

To begin at the foundation, I think it incontestable that they must decide whether each contemplated road shall bean underground road, or, if I am right in my construction of the act, a surface road. To leave either of these questions undetermined, and relegate it to the discretion of the directors of the company to be formed, would, in my judgment, be a departure from the act and a failure to comply with one of the conditions precedent to the acquisition of corporate power.

How far further it is essential for the purpose of securing a valid organization, that the commissioners should decide upon plans of construction, it is difficult to determine. It-would be very inconvenient,, to say the least, to require that the details of the construction should be prescribed with the minuteness of the usual specifications in a building contract There undoubtedly is a line somewhere, dividing the essential from the non-essential. But we are not put to the necessity of searching for it in the present case. It is sufficient for its purposes to hold that, as far as reasonably practicable, the plans adopted by the- commissioners should disclose to what extent the streets are to be encroached upon, and the property abutting thereon affected, and the' means of transportation to be used, so that the local authorities and the property owners when applied to for their consents, or the commissioners- appointed by the supreme court with authority to consent in their behalf, may have the necessary materials to form an intelligent judgment whether the scheme proposed should or should not be assented to. To this extent, at least, I think the act requires that the commissioners appointed by the_ mayor, should decide upon the -plans, and that their decision should not be made subject to any modifications by the railroad company. That, those who consent to the construction of the road, whether they may be the local authorities, the property owners or the supreme court commissioners, may know to what kind of road they are consenting, to what degree the streets will be obstructed thereby, of what efficiency the proposed mode of construction is capable, and that their consents cannot be-used for the construction of any different road.

Justice seems to require that to this extent the commands of the statute be obeyed.

■ The routes laid out by the commissioners have been stated. Of these several, and indeed the principal ones, are, accórding to the plans adopted by them, to be surface roads. But as to several of the others," and indeed a portion of those designated in the first instance as surface roads, it' is, by the resolutions of the commissioners which are embodied in the articles of association of the company, left to the subsequent election of the company whether they shall be surface or elevated, roads.

A more flagrant violation of the statute can scarcely be conceived.

Article 7 of the articles of association, which embody, as directed by the statute, the determination of the mayor’s commissioners, provides (subd. 1) that the railways to be constructed by the company shall be laid upon the surface of the streets or avenues excepting on route No. 1, from Great Jones street to the Brooklyn bridge; No. 2, from West street to Thirty-third street and Tenth avenue, and from Thirty-second street to the northerly terminus of the route; on route No. 4, on route No. 26, and route No. 29, from Christopher street to Seventy-second street, all of which routes may be constructed on elevated structures. These routes "comprise a very important part of the general-scheme of the projected roads, and in the aggregate cover a space of upwards of seventeen miles in length, and yet the plans adopted by the commissioners do not determine whether they shall be elevated or surface roads, but leave that question to the decision of the company.

The third subdivision of article Y provides that- the elevated railways shall (with one small exception) be double track, but authority is given to add such other tracks as may from time to time be needed to accommodate increasing traffic, and to make such additions to the structures as may be needed for that purpose.

Subdivision 6 of the same article provides that the tracks ■of railways, when elevated, shall be carried either by longitudinal girders resting on the tops of columns, or by transverse girders supported by columns, without determining which, or prescribing the height of the column, except that the superstructure shall not be less than fourteen feet above the level of the streets. Subdivision 15.

Subdivision Y declares that the plan of construction of the elevated railways having authority for more than two tracks, which is the case with all the routes except one, shall be at the election of the company constructing the railway, either with a row of columns on the line of each ■curb and a superstructure carrying one or more tracks upon transverse girders spanning the street, or with a row of columns upon the line of each curb and a single track over each row of columns; authority being granted to add to the structure when an additional track or tracks may be needed, transverse girders between said rows of columns to support such additional track or tracks, or with a row of columns on the line of one curb and a row in the roadway of the street with authority on some streets to erect a third row in the roadway of the street for additional tracks ■when needed.

The power to erect stations and platforms is not restricted -or defined.

The company is left by subdivision 14 of article Y to de- ■ cide where they are necessary, and to erect them over the ■cross streets, and also to occupy so much of the sidewalks of the streets for stairways and approaches “as may be necessary,” thus leaving it to the company to determine how much of the streets it will occupy, and subdivision 41 gives authority to construct “such supports, turn-outs, switches, sidings, connections, landing places, stations, "buildings, platforms, stairways, elevators, telegraph, telephone and signal devices, and such other requisite appliances as shall be proper for the purpose of such railway, and as shall be necessary for the convenient use of the .same.”

The details enumerated in this subdivision are the same which are enumerated in subdivision 5 of the act, and of which the commissioners are therein required, after giving public notice inviting the submission of plans, to decide upon the plan of construction, and yet, instead of adopting any such, plan, they leave these matters to be determined by the company under a general authority to construct these appliances as may be proper and necessary for the convenient use of the railways.

Numerous other objections are made and elaborated in the points. Many criticisms are made with reference to the surface portions of the road, showing, as it is claimed, that no definite plan was adopted, even for the. construction of these portions of the railways, but that it was in substance-left to the company to select what they should deem the most approved form. It is not necessary to go now into all these details, as I think the particulars which have been specially referred to are sufficient to dispose of the case without passing upon the many other points made on the part of the respondents, and to show that the commissioners, instead of adopting definite plans, of construction obligatory upon the company; have left it at liberty to determine for itself many of the questions in which the local authorities and property owners are interested, and the determination of which was essential to enable them, or any commission appointed by the supreme court, to form an intelligent judgment whether or not consent should be given to the construction of the railways, and especially they have virtully left it to the company to determine how much of the streets it will occupy, and to extend this occupation from time as its interests may require. In this, respect it seems to me that the projectors of the road and the commissioners have failed to appreciate the spirit of the-rapid transit act, and the protection it was intended to-afford to the public and the property-owners. Experience has shown that an elevated road is capable of being constructed on such a plan as to interfere to a comparatively slight extent with the use of the streets for ordinary purposes, and with the rights of owners of property abutting thereon; but they may also be constructed in such a manner as virtually to destroy the value of such property. The-scheme of the act was to withhold from companies formed, under it, the right to determine upon these plans, and to-vest that power in an impartial board of sworn commissioners, and yet, as has been shown, these commissioners-have relegated to the company itself the power of deciding questions which it was their duty to determine, and even to change and enlarge their plans from time to time, as-their interests may render desirable. A single observation is sufficient to illustrate this point. By the so-called plan adopted by the commissioners, the company is authorized, in several instances, to elect between a surface and an elevoted railway, and, where they elect the elevated, to lay tracks on columns at each curb, or at its election to lay transverse girders from curb to curb, spanning the entire street. On these girders it purports to be empowered to lay additional tracks from time to time, without limit, as its business may require. It may, therefore, at its election, cover the entire roadway of the streets, or it may construct additional tracks on columns in the centre of the roadway.

■ It may erect stations over the sidewalks and cross streets, and may occupy as much of the sidewalks as it may deem necessary for stairways or approaches, without any restriction. The number and location of stations is not limited or defined, and all these structures over and in the roadway and on the sides may be carried to an unlimited height, so as practically to efface the buildings on the sides of the streets, the only limit being that the superstructure shall not be less than fourteen feet in height. In leaving the company at liberty to determine all these matters, and change the plans from time to time, accordingly, the commissioners have undertaken to enable it to exercise powers far more expansive and unrestricted than those which the rapid transit act intended to confer.

As the views I have expressed do not in all respects meet the concurrence of all my associates, I have stated separately the conclusions which I have reached in order that it may be ascertained what points are decided. These conclusions are:

First. That section 16 of the general surface act, construed in connection with section 18 of the same act, did not abrogate the right and power of the petitioner, if in other respects legally organized, to proceed to obtain the requisite consents and when obtained to construct the railways in conformity to their articles of association.

Second. That the rapid transit act did, before the passage of the general surface act, authorize the organization of companies to construct street railways on the surface, to be operated by any power other than animal.

Third. That the objection that the organization of the plaintiff is defective on the ground that the commissioners failed to fix the time for the completion of the railways, is not well taken.

Fourth. That the objection is well taken that the articles of association, prepared by the commissioners, fail to comply with section I of the rapid transit act, in that they do not provide for the release and forfeiture to the supervisors of the county of all the rights and franchises acquired by the company, in case of its failure to complete its railways within the prescribed time.

Fifth. That the commissioners have failed to substantially comply with the requirement of section 5 of the act, to decide upon the plan for the construction of the railways and other appliances specified in that section, and that such compliance was essential to their valid organization.

Sixth. That the order of the general term should be affirmed.

Rtjger, Oh. J., Miller, Danforth and Finch, JJ., concur; Andrews, J., concurs on the third, fourth and' fifth grounds stated in the opinion, and’ does not vote on the first and second grounds; Earl, J., concurs on the third, fourth and fifth grounds and dissents from the first and second grounds.__


text:
    Matter of the Petition of the New York Cable Company, App’lt, v. The Mayor, etc., of the City of New York, The Thirty-fourth Street Railroad Company, The Second Avenue Railroad Company, The Trustees of Gramercy Park et al., William Oothout et al., owners on Madison avenue, other objectors, Resp’ts.

      (Court of Appeals,

      Filed February 8, 1887.)

    1. Reargument—Upon a different state of facts from that presented TO GENERAL TERM CANNOT BE HAD BEFORE COURT OF APPEALS.
    Upon a motion made for a reargument before the court of appeals: Held, that the court could not rehear a matter upon a different state of facts from that upon which the general term acted, since that would be an exercise of original jurisdiction on the new state of facts presented and not a review of the actual determination of the court below.
    3. Same—When mat be had before general term.

      Held, that if a new state of facts giving rise to new questions and obviating the legal objections which existed to the application originally made by the petitioner were presented, the order made by the court" of ap peals affirming an order of the general term denying the application of the petitioner would be no obstacle to a rehearing of the matter at the general term on the new state of facts, or to a new application based upon the new facts.
    3. Conditions in statute—When compliance with must be strict.
    Where it is sought to take the property of an individual under powers granted by an act of the legislature to a corporation to be formed in a particular manner therein directed, the constitutional protection of the rights of private property requires that the powers granted by the legislature be strictly pursued and all the prescribed conditions be performed.

      Charles P. Shaw, att’y for the motion; Wm. M. Fvarts, Everett P. Wheeler, Robert Sewell, Esek Cowen, of counsel; E. Henry Lacomibe, corporation counsel; Wm. C. Trull, Vanderpoel, Green & Cuming and Robinson, Scribner & Bright and others against the motion.
   Rapallo, J.

The petitioner in this matter moves for a reargument of the appeal therein, alleging as one ground for such motion, that since the- decision of this court on such appeal, it has obtained from the general term of the supreme court an order to show cause why the report of the commissioners appointed by it should not be remanded to them for further hearing, which order0 to show cause is now pending, and that, in order to comply with the opinion of this court, the petitioner has taken proceedings for the amendment of its articles of association, by inserting therein an amended article X, in relation to the forfeiture ■of its rights and franchises to the supervisors of the county, and that to further comply with such opinion, the petitioner has, by resolution of its board of directors, requested the president of the board of commissioners appointed by the mayor, who framed the said articles of association, to call a meeting of said commissioners for the purpose of correcting the defects and supplying the omissions pointed out in said opinion. That the president of said board of commissioners had reconvened them, and they have further determined as to the plans for the construction of the petitioner’s railway, and have amended them in the particulars mentioned in the opinion, and the petitioner is willing to do such other things as may conform to the judgment of this court.

The petitioner claims that the functions of the mayor’s commission have not expired, but were continued, and were still existing at the time of this amendment, said commission having at its meeting in June, 1884, reserved the right to reconvene at the call of its president; that the times fixed by the rapid transit act for the performance of the several acts to be performed by the mayor’s commission, were not mandatory, but merely directory; that under the circumstances of this case they could be performed at the time of the amendment, and that the amendment of the articles of association was authorized by chapter 135 of the Laws of 1870, which empowered corporations formed under general laws to amend their certificates of incorporation in case of any informality therein.

Many grave objections are suggested to the validity of these proceedings to amend; but they cannot be considered on this motion. Even if the proceedings to amend were effectual, they would not afford ground for a reargument of the appeal. The jurisdiction of this court is confined to a review of determinations actually made by the supreme court, and this review must be had upon the same papers which were before the general term. We cannot rehear the matter upon a different state of facts from those upon which the general term acted, for that would be an exercise of original jurisdiction on the new state of facts presented, and not a review of the actual determination of the court below.

If a new state of facts, giving rise' to new questions and obviating the legal objections which existed to the application originally made by the petitioner, is now presented (a question which is not now properly before us, and upon which, therefore, we do not express any opinion), the order made by this court, affirming the order of the general term denying the application of the petitioner, will be no obstacle to a rehearing of the matter at the general term on the alleged new state of facts, should that tribunal see fit to grant such a rehearing, or to a new application based upon new facts (Riggs v. Pursell, 74 N. Y., 370), and on such new hearing, or new application, if the legislation of 1884 has not precluded the petitioner from proceeding under the rapid transit act to obtain authority,through the action of the mayor’s commission since 1884 to construct a surface road, it will be open to the supreme court to exercise its discretionary power over the whole matter, or to pass, as it did in the first instance, only on questions of law.

We, however, cannot make any modification of our decision, or any order in the matter based upon the alleged change of facts, or alleged amendment of the proceedings of the mayor’s commission and of the articles of association.

Some other grounds, however, are urged in support of this application for a reargument, which will be briefly noticed.

First. It is alleged that the articles of association of the petitioner were prepared upon the model of the articles of association of the Manhattan Elevated Railway Company, which company is said to have been organized under the rapid transit act. On this point it is sufficient to say that the articles of association of the Manhattan Elevated Railway Company have never been before this court, nor have we any judicial knowledge of their provisions, or their existence, unless they came incidentally in question in The Matter of the Gilbert Elevated Railway Company (71 N. Y., 361). They are not even mentioned, either in the arguments of counsel, or in the opinion of the court, in that case. None of the questions involved in the decision of this case were discussed in that case, nor was the attention of the court called to any of them, if they existed. The sufficiency of those articles has not been litigated or considered in any case which has been before this court.

Secondly. It is claimed that from the opinion in this case the court appears to have overlooked its decision in The Matter of the New York Elevated Railroad Company (70 N. Y., 327). That case was fresh in the memory of the court, several of the judges who participated in its decision, including the judge who delivered the opinion, having concurred in the decision of the present case, and we are unable to find that any point decided or discussed in that case conflicts with the decision in the present one in any particular. In so far as the validity of the organization of the present petitioner is concerned, it is impossible that there should be any such conflict, because the New York Elevated Railroad Company was not organized under the rapid transit act. Chapter 606 of the Laws of 1815.

The New York Elevated Railroad Company was originally incorporated under the general railroad law of 1850, and the supplementary act of 1866. It was recognized as an existing corporation by chapter 595 of the Laws of 1815, entitled “An act to authorize and require the New York Railroad Company to continue and complete its railroad in the city of New York, and to regulate the construction, operation and management thereof,”

That act recited the corporation of the Elevated Railway Company under the general law of 1850; that it had acquired by purchase, under a foreclosure of a mortgage, the powers and franchises of the West Side and Yonkers Patent Railway Company, and was by the act last referred to confirmed in the possession and enjoyment of said rights and franchises; and the powers of certain commissioners previously appointed were extended to it; and prior to the passage of the rapid transit act it had constructed and was actually operating an elevated steam railway on a portion of its route.

After the passage of the rapid transit act it proceeded under section 36 of that act to make certain connections and additions to its route, and no question could arise in the case except with respect to those connections. But even as to those, nothing was discussed in the opinion or decided which touches the present case.

The only point claimed in the papers on the present motion to have had the effect is that while the mayor’s commissioners had given to the Elevated Railroad Company authority to elect between several specified plans for the construction of a certain portion of the connections, the mayor’s commissioners had imposed as a certain condition that the company be confined to 'one of the specified plans unless the property owners should consent, and the point made was as to the action of the mayor’s commissioners in giving the right of election, but as to that of the supreme court commission, which it was said exceeded its powers in imposing the condition which restricted the company to one only of the plans, and all that this court said upon the. subject was that that complaint would come more properly from the railroad company than from the property owners. No question as to the incorporation of the Elevated Railroad Company was before the court, it being fully recognized as an existing corporation. The same remarks apply to the case of The Gilbert Elevated Railway Company (70 N. Y., 351). That company was organized as an elevated road before the rapid transit act of 1875, under acts passed in 1872, 1873 and 1874, and was an existing corporation at the time of the passage of the rapid transit act.

The proceeding which came before this court was had under section 36 of the rapid transit act, which authorized . any existing corporation which had not forfeited its charter or failed to comply with its provisions, whose route or routes coincided with those determined upon by the commissioners appointed under the rapid transit act, to construct and operate its railway thereon upon fulfillment of' the requirements of the rapid transit act. The question mainly considered was the constitutionality of section 36, which was contested as violative of section 18 of article 3. of the constitution.

These cases were not overlooked, but we found nothing in them in conflict with the conclusions at which we were-constrained to arrive in the present case.

Third. It is claimed that this court overlooked the authorities cited on the appellant’s points, to the effect that a defect in the articles of association or in affidavits annexed thereto is not fatal to the existence of . a corporation or its-faculty to acquire franchises, but that the state alone can interpose and take advantage of such defects.

This court did not deem it necessary to comment ■ in its. opinion upon the authorities, for the simple reason that we did not deem them applicable to the case at bar. In order to sustain proceedings by which a body claims to be a corporation, and as such empowered to exercise the right of eminent domain, and under that right to take the property of a citizen, it is not sufficient that it be a corporation de: facto. It must be a corporation de jure. Where it is; sought to take the property of an individual-under powers granted by an act of a legislature to a corporation to be formed in a particular manner therein directed, the consti- ° tutional protection of the rights of private property requires-that the powers granted by the legislature be strictly pursued and all the prescribed conditions be performed. Where: • the power is conferred upon a corporation duly formed, it; ■ wifi not be defeated simply because the corporation has done or omitted some act which may be a cause of forfeiture of its rights and franchises, for it rests with the state to determine whether such forfeiture will be enforced. Judicial proceedings are necessary to enforce such a forfeiture and it may be waived.. That was the point to which the opinion In the Matter of the Brooklyn, etc., R. R. Co. (72 N. Y., 245), cited by the appellant, was directed. It was assumed that this distinction was well understood, and a consideration of the opinion of the court in the present case was devoted to showing that the omissions and defects in the organization of the company were failures to comply with the conditions precedent to the existence of the petitioner as a corporation, and the exercise by it of the right of eminent domain instead of being mere causes of forfeiture of rights acquired. The petitioner further contends on this motion that this court has not pointed out any objections to the plans of so much of the petitioners’ railways as are surface roads, and, therefore, claims that the surface railway should be allowed, even if the others were disallowed.

But the learned counsel overlooks the fact that even if the plans of the surface road were in compliance with the act, that would not authorize a reversal of the general term decision, or authorize a confirmation of the report of the supreme court commissioners. Even supposing the report of the commissioners was not an entirety, and that it should be held equivalent to a consent of property owners as to a part of the routes, and ineffectual as to the others, the objection of the want of the prescribed forfeiture clause applies to all the routes and precludes even a partial confirmation.

Our decision was reached after careful examination and deliberation in view of the large interests involved. But notwithstanding our strong inclination to sustain the rights claimed to have been acquired by the petitioners if it could reasonably be done without disregarding the protection which the law had thrown around the public and private rights affected, we found some of the objections presented and insisted on by the respondents insurmountable.

Our attention has not been called on this motion to any subject which we had overlooked nor to any consideration which should induce us to change our conclusions.

The motion for a reargument or to amend the remittiturshould, therefore, be-denied.