author: By the Court.—O’Gorman, J.

text:
    THE PEOPLE, ex rel. THE NEW YORK UNDERGROUND RAILWAY COMPANY, Relator, Appellant, v. JOHN NEWTON, Commissioner, and D. LOWBER SMITH, Deputy Commissioner of Public Works, Respondent.

      Peremptory mandamus issues only in cases where its purpose is to give effect to a clear legal right.—General railroad act of 1850, chap. 140, the act of 1873, chap. 469 is supplementary thereto—Railroad corporations, when subject to acts other than those under which they are organized—Acts passed subsequent to organization imposing conditions, as to power to enact constitutionality of such acts.

    The New York City Central Underground Railway was organized under chapter 230 of the Laws of 1868. It made a mortgage whereby it purported to mortgage the right of seizure, occupation and possession, for the purpose of constructing and maintaining an underground double tract railway, of certain lands, premises and grounds in the city of New York, in, on, and under which the main line of the said railway is located, and which line extends from the City Hall park to and beyond Forty-fifth street by a route described as follows, namely: commencing in the City Hall park, on the easterly line of Broadway; thence easterly passing in front and in rear of the old City Hall to Centre street; thence under and across Centre street to City Hall place; thence through City Hall place to Pearl street; thence across Pearl street northeasterly' in a curved line to or near Mulberry street at a point between Bayard and Park streets; thence northerly under Mulberry street to Bleeeker street, and continuing northerly to and under Lafayette place to Astor place; thence northerly and easterly under Astor place, Eighth street and across the southeast corner of the block between Eighth and Ninth streets and easterly of St. Ann’s Church, to and under Fourth avenue; thence northerly under Fourth Avenue and Fourteenth street and Fourth Avenue to and under Union square; thence northerly in, under and through Union square to and under Seventeenth street; thence northerly, bearing easterly in a straight line to and under and across Twenty-third street, to and in, under and through Madison square and continuing northerly in, under, on, over and upon Madison avenue to and along the Harlem river. This mortgage was foreclosed, and on the foreclosure sale Origon Yandenburgh and Harvey Sheldon purchased the property purported to be mortgaged, and the same was conveyed to them on March 7, 1876. On the 19th of July, 1880, pursuant to chapter 469 of the Laws of 1873, as amended by chapter 113 of the Laws of 1880, the said Yandenburgh and Sheldon duly associated with themselves other persons and organized a corporation under the name of the New York Underground Bailway Company, and Vanderburgh and Sheldon conveyed to that company all that passed to them under the conveyance made under said foreclosure sale.
    The commissioner of public works of the city of New York having refused to grant to the New York Underground Bailway Company a permit to open the streets on the line of said railroad, that corporation appealed to the court for a mandamus compelling him to do so. The corporation had not obtained the consent of the majority of the owners in value of the property bounded on the line of the road, nor that of the proper local authorities having control over the streets, to the building of the road. There was no proof that it was the intention of the corporation to construct and operate the road, or that it had, or controlled sufficient pecuniary means to construct it. No map was filed specifically defining the route, and no such specified definition or determination appeared in the case; it appeared that the attorney-general had brought an action (which was still pending) for a dissolution of the relator’s company on the ground of forfeiture by reason of non-user and lapse of time.
    Held,—That under the acts the relator had shown neither a clear legal right to, nor the necessity for, the issuance of a peremptory writ of mandamus at the present time, and, therefore, the application for such a writ was properly denied.
    That the act of 1873, was as to railroad corporations supplementary to the general railroad act of 1850, chapter 140, and, therefore, the New York Underground Bailway Company, being organized under it, was subject to the provisions of chapter 582 of the Laws of 1880, which enacted that all railroad corporations theretofore or thereafter formed under chapter 140 of the act of 1850, and all acts supplementary thereto and amendatory thereof, should be subject to its provisions. —Fbeedman, J., at Special Term.
    That the New York City Central Underground Bailway Company, being organized under chapter 230 of the Laws of 1868, was by the third section of that act subjected to all the provisions of the general railroad act, chapter 140 laws of 1850, and the several .acts amendatory thereof and additional thereto, and for that reason it was subject to the provisions of chapter 582 of the Laws of 1880, and the New York Underground Bailway Company taking under a foreclosure of a mortgage made by the New York City Central Underground Bailway Company could take no greater" rights than that company possessed. —Ebeedman, J., at Special Term.
    As a result from these propositions that the New York Underground Bailway Company was subject to the provisions of chapter 582, of the Laws of 1880, requiring a railroad corporation, before building its road or any part thereof under any of the streets, roads or public place of any city in this state, to obtain the consent of the owners of one-half in value of the property bounded on the line of the road and of the proper authorities having control of the streets under or through'which it ran.—Freedman, J., at Special Term.
    That under §§ 1 and 48 of the general railroad act (Laws of 1850, chap. 140) and § 8 of title 3 of chapter 18, part 1 R. S. and § 1 of article 8 of the Constitution, (to which the corporation, to whose franchises, powers ■and privileges the relator succeeded, was subject,) ample power was reserved to the legislature to impose upon a railroad corporation before it commences its work, additional conditions for the exercise of the power conferred on it which are of a nature calculated to serve the public welfare and are proper regulations in respect to the exercise of a franchise affecting the public.
    That the writ of peremptory mandamus lies to give effect only to a clear legal right, and that the relator had shown neither a clear legal right to, nor the necessity for, the issuance of such writ.—Freedman, J., at Special Term.
    Before Sedgwick, Oh. J., and O’Gorman, J.

      Decided December 1, 1890.
    Appeal from an order made at special term denying a motion for a peremptory writ of mandamus.
    The facts sufficiently appear. in the opinions delivered at the special term and at general term, and in the head notes.

      Henry D. Sedgwick, attorney and of counsel, and George Hoadley and Edioard Winslow Paige of counsel, for relator, appellant, on the questions considered in the general and special term opinions, argued :—
    I. The relator is not forbidden by chapter 582 of the Laws of 1880, from building its railroad, until it has obtained the consent of certain property owners and local authorities. First.—That act does not apply to this person—the New York Underground Railway Company. First, because no such person is described in the act. The relator was not formed under any special act. The Act of 1868 created only the New York City Central Underground Railway Company, which is still living, and the relator is another, and quite a different person. People, ex rel. Schurz v. Cook, 110 N. Y. 443, 449. The relator was not formed under the Act of 1850, nor any act “ amendatory thereof.” That is not argued. It is claimed, however, that it was formed under an act “ supplementary thereto.” That this is not so, will, it is submitted, quite plainly appear from the following : The act under which the relator was formed is chapter 469 of the Laws of 1873, as amended by chapter 113 of the Laws of 1880, which provides for the incorporation of purchasers of property of corporations which have been sold under mortgage. It applies to all corporations. A college is said to have been reorganized under it. The first criticism that is to be made, is that if the Law of 1873 is an act supplementary to the general railroad act, it must also and in the same literal sense be an act supplementary not only to all the other general corporation acts, but also to each special charter. That is to say, it is just as much “ supplementary ” to the act chartering the Bank of New York as it. is to the general railroad act. Suppose the Bank of New York to be reorganized, it would hardly be argued that the new bank would be subject to all the provisions of any act which might provide things about all corporations formed under acts “ supplementary ” to the general railroad act, and, for the reason, that the new bank would not have been “ formed ” under the Act of 1873 as supplementary to the general railroad act, because the old bank had nothing to do with it. The same rule and reason apply here. It is held that the general railroad act applies only to steam railroads in the country, and not to street railroads in cities. N. Y. Cable Co. v. The Mayor, etc., 104 N. Y. 1, 14. And there is an express statute which prevents its application to any railroad of any kind in the city of New York, chap. 10, Laws of 1860. So far as this corporation is concerned, therefore, the Act of 1873 was not “ supplementary ” to the Act of 1850. When chapter 582, Laws 1880, was passed, there were provisions, consisting of five enactments, providing, with great minuteness and elaborate detail, for the reorganization of steam railroads in the country, all, of course, supplementary to the general railroad act. And one act for the reorganization of all corporations, conferring a few of the privileges provided for the railroad reorganization acts, and nothing not in those acts. And both classes of acts had been amended at that same session so that the legislature had the difference in their provisions, and in the persons to which they applied, fresh in its mind. Laws 1854, ch. 282 ; Laws 1873, ch. 710 ; Laws 1874, ch. 430 ; Laws 1876, ch. 466 ; Laws 1880, ch. 155. It follows that the general corporation act of 1873, under which the relator was organized, is not an act “ supplementary ” to the general railroad act. People v. B. F. & C. I. Ry. Co., 89 N. Y. 75, 84. The relator is not, therefore, one of the persons described by the language used in the Act of 1880. But as this is an act which it is claimed takes away a private, existing right, we are entitled to have it construed strictly. Maxwell’s Interpretation of Statutes, 346 ; Endlich’s Maxwell, § 340 ; Bishop on Written Laws, § 192. “ Strict ” construction means, at the least, that the statute shall not go beyond the letter—not go further than the meaning in words. Bishop, § 194 ; Smith's Com., p. 606, § 446 ; Endlich’s Maxwell, §§ 127, 329; Hasbrook v. Paddock, 1 Barb. 635, 641-2. Secondly. —The act, by its letter, applies only to companies whose roads should be “ wholly underground.” But this railroad is to be partly in open cut, and partly elevated. It therefore does not apply. Thirdly.— Neither is the relator within the spirit of the act. The act was plainly intended to confer upon corporations, which otherwise would not have such powers, the power to build and operate railroads under ground. And the proviso requiring the consent of property owners was added, because of the constitutional requirement, by which otherwise the grant of such new powers would not be good. It was intended to confer powers, not to take them away. And thus to apply only to corporations which did not already and from other sources possess the same powers. But Messrs. Yandenburgh and Sheldon, who then owned the franchises in question, had then the right to form a corporation, as they afterwards did, which would possess all these powers and greatly more. Therefore the act was not intended to apply. Fourthly.—No rights can be taken away by such general words. The Acts of 1868 and 1869 had given to the old company, by a grant from the owner of the soil, an easement in the soil, which was property. Milhau v. Sharp, 27 N. Y. 611, 620-622 ; Sixth Ave. R. R. Co. v. Kerr, 72 lb. 330, 332 ; The Mayor v. Second Ave. R. R. Co., 32 lb. 261, 272. And also a franchise to so use the public highways, which was and is also property. The Mayor v. Second Ave. R. R. Co., 32 N. Y. 261, 272-3 ; Brooklyn Central R. R. Co. v. B. City R. R. Co., 32 Barb. 358, 363 ; Davis v. The Mayor, 14 N. Y. 506, 523-4 ; Milhau v. Sharp, 27 lb. 611, 618-20. Neither of these things was personal to the corporation to which it was given, but afterwards became the property of human beings and can so become again. People v. O’Brien, 111 N. Y. 1, 44-53. If such property is to be destroyed, assuming the power to do it, the legislature must unmistakably say so, and general words are not enough. Sedgwick, Stat. & Cons. Law (ed. 1874), 361 ; Main v. Green, 32 Barb. 448 ; Berley v. Rampacher, 5 Duer, 183, 187 ; Matter

      of B. & A. R. R. Co., 53 N. Y. 574 ; Matter of B., H. T. & W. Ry. Co., 79 lb. 64, 68 ; Matter of City of Buffalo, 68 lb. 167. Fifthly.—The restriction claimed is by way of proviso only, but a proviso, as Justice Baldwin says in Voorhees v. U. S. Bank, 10 Pet. 449, 471, is simply a “ limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate nor the other be exercised unless in the case provided.” Potter's Dwarris, 128, note 11 ; Sedgwick, 49 (ed. 1874) ; Bishop, § 57. As the grant here does not operate, the restriction does not operate either. Sixthly.—The restriction itself is unconstitutional. It is (italics ours) : the “consent of the owners of one half in value of the property bounded on the line." Sec. 17 of Art. III. of the Constitution contains the following (italics ours) : “ Consent of the owners of one half in value of the property bounded on that portion of a - street or highway upon which it is proposed to construct or operate such railroad.” The consent of one half the owners “ on the line ” does not satisfy the Constitution. The owners of one half of each street must consent. Hilton v. Thirty-fourth Street R. R. Co., 1 How. N. S. 453. This is a street railroad. Matter of N. Y. District Ry. Co., 107 N. Y. 42. And the unconstitutional part cannot be separated from the rest. lb. 54-5. The answer to this argument which is made in the opinion of the special term is, it is respectfully submitted, inapplicable. That answer is, that as the relator took only the rights and franchises of the New York City Central Underground Company, and that as those rights had been conferred prior to the adoption of the Constitutional amendment of 1875, that amendment does not apply. But the Act of 1880 does not apply to rights and franchises at all. It relates solely to persons. At the time of its passage the rights and franchises were held by two human beings, —Vandenburgh and Sheldon—and, of course, it is beyond all question that the act did not apply to them, or to anything in their hands.. After the passage of the Act of 1880, the present relator was created, and the question is whether the Act of 1880 applies to it. This question is obviously unaffected by the fact that Vandenburgh.and Sheldon after-wards conveyed the rights and franchises to it. If they had never conveyed anything to it, the question would have been the same, i. ei.does the Act of 1880 describe such a person as the relator ? If, therefore, the above provision of the Act of 1880 be unconstitutional, as it is submitted that it plainly is, it cannot affect the relator. Lastly.—The legislature has no power to impose such a burden—because no such power has been reserved—and the relator is therefore protected by the Constitution of the United States, as construed in the Dartmouth College case. The Acts of 1868 and 1869, as already stated, granted to the artificial person which was created by that act an easement in the soil, and a franchise to so use, as granted in the easement, the public highways. Both of those things were and are property in no way dependent upon the life of the artificial person to which they were originally granted. With the power of the legislature to deal with that artificial person we have here no concern. But so far as that easement and that franchise are concerned,' the power reserved in the Act of 1868 (§ 15)—“ to alter, amend or repeal” that “act”—is not sufficient to render them liable to destruction or modification by the legislature. People v. O’Brien, 111 N. Y. 1, 45, 48-55. It remains to inquire whether the legislature can deal with the person owning that easement and that franchise. With the persons of Messrs. Vandenburgh and Sheldon, who owned it when the Act of 1880 was passed, the legislature, of course, could do nothing. The relator was formed under the Act of 1873, but that act contains no reservation of power at all. We are, therefore, to go to the Constitution. But the provision of the Constitution is (italics ours) : “ Corporations may be formed under general laws.” * * * “ All general laws and special acts passed pursuant to this section may be altered from time to time or repealed ” (Art. VIII, sec. 1). But this does not reserve any power of interference with a corporation formed under the act, “ so long as the act stood unrepealed.” People v. O’Brien, 111 N. Y. 1, 47-55. The case of People ex rel. New York Electric Lines v. Squire, 107 N. Y. 593, has no application, because, first, there was nothing but a police regulation contemplated, and the court put its decision expressly upon that ground (pp. 603-7); and, secondly, the general manufacturing act, under which that company was formed, reserves sufficient power. The case of Miller v. State, 15 Wall. 478, cited, in the opinion of the court, is wholly inapplicable. The railroad company there under consideration was formed under the general railroad act of 1850 ; and it cannot be successfully contended but what that act contains a sufficient express reservation (§ 48), and the decision goes upon that ground (p. 493). It is respectfully submitted also that the distinction taken in the opinion between the grant with the road unbuilt and the same grant after the road has been built, is unsound. The grant, as it is, is an easement and property, just as much property as if the road were built. Milhau v. Sharp, 27 N. Y. 611, 620-622 ; Sixth Ave. R. R. Co. v. Kerr, 72 lb. 330, 332 ; Mayor v. Second Ave. R. R. Co., 32 lb. 261, 272.
    II. The objections that it is not proved that the relator in good faith intends to build the road, and has not sufficient financial .means, are of no force. (1.) The Metropolitan Transit Co. case, 111 N. Y. 588, is supposed to support this proposition. That was an application to take lands, by the right of eminent domain, under section 14 of the general railroad act, and that section expressly requires those things to be alleged in the petition. They are required to be alleged and proved only in that one proceeding. Matter of Lockport and Buffalo R. R. Co., 77 N. Y. 557, 561-2. And expressly as to this corporation by the Act of 1868, chap. 230, § 6. (2.) The issue was tendered by the answer only, and the defendants have failed to prove it. There is nothing about it in the verdict. It is, therefore, not in the case—for (3.) The only other way in which the question could have been raised would have been by a seasonable motion on the part of the defendants to dismiss the writ, because it did not contain such an allegation. No such motion having been made, it is now too late, even if it were sound. Flora v. Corbean, 38 N. Y. 111, 113.
    TIT. The application is sufficiently precise as to the parts of the streets to be opened. (1.) The learned judge at special term is in error in the assumption that no maps are filed. They are so filed. It is true they are not returned with the verdict, but that does not alter the fact. The particular route and plans have been adopted, and the application for the permit was made with express reference to it. (2). The application is for a permit to construct according to the provisions and under the limitations of the charter. These provisions grant the power to enter upon and underneath the streets “ along the route and to the points herein specified,” and the excavations are not to be opened at any one time nor more than one in each quarter mile, nor more than two hundred and fifty feet in any one place, nor open longer than for a period of sixty days, and there are other details (Laws 1869, chap. 824, § 2). The description of the route is quite sufficiently distinct and precise so far as the streets are concerned; all the ambiguities specified, which were created by the permission to choose between alternative lines at certain places, having been removed by the choice having been made and the line adopted as described in the verdict. Under such circumstances no map is required. Matter of Coney Island and Brooklyn R. R. Co., 12 Hun, 451 ; Matter of P. P. & C. I. R. R., 67 N. Y. 371, 376. Nor is a map ever required, except for the purpose of the taking of land by the right of eminent domain under the general railroad act. Matter of Lockport and Buffalo R. R. Co., 77 N. Y. 557, 561-2 ; Matter of N. Y. L. E. & W. R. R. Co., 110 lb. 374. And in this particular case the necessity for all such things is expressly dispensed with by the act itself (ch. 230, § 6, Laws of 1868). (3.) Whatever may be the case as to the rest of the route, this objection cannot possibly apply to Lafayette place to which a separate demand was made for a permit, and a separate mandamus is prayed for. This is precisely within the language of the act construed in Matter of P. P. & C. I. R. R. Co., 67 N. Y. 371, 376.
    IV. The attorney-general’s suit is of no significance in this proceeding. (1.) That the attorney-general has brought a suit to kill the relator establishes the fact that the relator now lives. (2.) Counsel applied in that action to the special term of the Supreme Court for an injunction to stop this proceeding and that court denied their motion upon our stipulating not to open the streets under the permit Which we should get, by virtue of a judgment in this proceeding, until we had defeated the attorney-general’s action.

      William H. Clark, counsel to the corporation, John H. Strahan and D. J. Dean of counsel, for respondents, on the questions considered in the general and special term opinions, argued:—

      I. The relator has no right to occupy the streets of the city of New York for the construction and operation of an underground railway without the consent of a majority of the owners of property abutting on such streets, and the consent of the local authorities. Such consent is required by chapter 582. of the Laws of 1880, section 1. The Act of 1880 has been heretofore determined by the Court of Appeals to be unconstitutional, in so far as it provides that an order of the general term may be taken in lieu of the consent of local authorities. Matter of N. Y. District Railway, 107 N. Y. 54. But, in so far as the act provides that a tunnel and railway may not be built without the consent of property-owners and local authorities, or the order of the general term in lieu of the consent of property owners, it remains unaffected by that decision and the conditions prescribed by it are obligatory upon all railroad companies desiring to construct underground railways. The relator seeks to avoid the application of this statute to its railway by two arguments, namely : First—The relator argues that it has not been formed under any special act of the legislature, or under the general railroad act or any act supplementary thereto or amendatory thereof, and therefore it claims exemption from the provisions of the Act of 1830. The defendants controvert this position as follows : It is conceded that the New York Underground Railway Company, the relator, was formed under the provisions of chapter 469, Laws of 1873, page 724. The Act of 1873 is an act supplementary to and amendatory of the general railroad act of 1850, although its title makes no reference to the last-named act. The provisions of the Act of 1873 originated in chapter 282 of the Laws of 1854, which is entitled “ An act to amend the act entitled ‘ An act to,authorize the formation of railroad corporations and to regulate the same,’ ” passed April 2, 1850. Prior to the enactment of the Act of 1854 the difficulty had arisen that individual purchasers of railroad franchises, possessing in themselves no corporate powers, and failing to acquire by the foreclosure sale the right to be a corporation, and to succeed to the corporate life of a former corporation, found themselves in the awkward predicament of owning a property which they could not use, and might not be able to sell. In the People v. Brooklyn, Flatbush & Coney Island Railway Company, 89 N. Y. 84, Judge Finch says it was to cure this difficulty that the Act of 1854 and its subsequent amendments were enacted. The Act of 1854 was confined in its operation to railroad corporations. The Act of 1873 is, however, a general act not confined in its operation to railroad corporations, but applicable to all corporations. Its title therefore does not refer to the general railroad act ; it, however, supplements and amends the railroad act, and its provisions are a substitute for and extension of the Act of 1854. The Act of 1873 is therefore supplementary to and amendatory of the existing act in relation to the formation of railroads, and also in relation to other corporations. It is supplementary to both, and is none the less an amendment and supplement of the general railroad act, although its title does not, in terms, recite that act. The character of the act, whether it be amendatory and supplementary to the general railroad act, is determined by its provisions, and not by its title. It is a general act, and therefore might have been enacted without any title. People v. McCann, 16 N. Y. 61. It is therefore immaterial whether its title recites the general railroad act or not. In People v. Brooklyn, Flatbush and Coney Island Railroad Company, above cited, the Act of 1873 is enumerated as an amendment of the Act of 1854, which as we have seen, was specifially entitled “ act to amend the general railroad act.” The statute of 1880 enumerates two kinds of corporations : first, those created directly by act of the legislature ; secondly, those formed or incorporated under the general railroad act or acts supplementary thereto. The relator, as we have seen, is incorporated under the Act of 1873, which is a general act. The act, chapter 582 of the Laws of 1880, imposes the condition of procuring consent of property-owners, and of local authorities, upon all companies desiring to build underground railways, whether theretofore or thereafter formed, under special acts of the legislature, or under the general railroad act, or under acts supplementary thereto or amendatory thereof. Clearly, the relator, incorporated under the Act of 1873, has come into existence by virtue of an act supplementary to the general railroad act. Second —The relator next argues that the Act of 1880 cannot prescribe conditions of the exercise of its’ franchise which it is bound to observe, contending that to impose the condition of procuring assent of property-owners and of local authorities as a condition of exercising a franchise previously granted, impairs the obligations of the contract, and destroys its vested rights. It is clear that this contention cannot be sustained. The corporate powers and franchises to which the relator has succeeded, originated in the Act of 1868, chapter 250 and by section 3 of that act the corporation was subject to the provisions of the general railroad act. Section 1 of the general railroad act provides that the corporations organized thereunder shall be subject to the provisions contained in title 3 of chapter 18, first part of the Revised Statutes, and among the provisions therein contained is this : “ The charter, of every corporation that shall hereafter be granted by the legislature shall be subject to alteration, suspension or repeal in the discretion of the legislature ” (sec. 8). Section 48 of the general railroad act of 1850, also provides : “ The legislature may at any time annul or dissolve any corporation formed under this act.” Article 8, section 1, of the Constitution provides : “ Corporations may be formed under general laws ; but .shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the legislature, the object of the corporation cannot be obtained under general laws. All general laws and special acts passed pursuant to this section may be altered from time, to timo or repealed.” The power reserved by these statutory enactments and constitutional provisions is ample to authorize the legislature to impose the additional condition upon the relator requiring it to procure the assent of the property-owners before building its railway. The legislature of a state is authorized to alter the charter of a corporation or interfere with its management, and impose conditions upon the exercise of its powers so far as the welfare and convenience of the public may require. Morawetz on Corporations, § 1098. The legislature has not undertaken to deprive the corporation of any power. It has simply imposed a condition of the exercise of the power ; and such condition is of a nature calculated to serve the public welfare, and is a proper regulation in respect to the exercise of a franchise affecting the public. Such conditions may be imposed. Mayor v. Twenty-third Street Railway Company, 113 N. Y. 311 ; People v. O’Brien, 111 lb. 1 ; People v. Hills, 44 Barb. 340. Miller v. People of the State of New York, 15 Wall. U. S. 478, decides only that the legislature may not destroy rights of third parties, arising under contracts with a corporation by directing the dissolution of the corporation and the sale of its property. The legislature, in the Act of 1880, has not undertaken to impair or destroy the property of third persons secured by contracts with the corporation. It has only undertaken to impose a valid condition to be observed by the corporation in the exercise of its corporate franchise, as was the case in Tomlinson v. Jessup, 15 Wall. 454 ; Sinking Fund Cases, 99 U. S. Reports, 700. (See cases cited, 113 N. Y. 318.)
    II. The return to the alternative writ tendered an issue, by a denial that it is the intention of the company in good faith to construct, operate and maintain a railroad on the line mentioned in said writ. The defendants also averred in their return that the relator company does not control sufficient pecuniary means to perform the work proposed, etc. The issues thus tendered are material to the maintenance of any right on the part of the relator to relief at the hands of the court. Matter of the Metropolitan Transit Company, 111 N. Y. 599. It was, therefore, the duty of the relator in the case at bar, upon the issue raised by the return, to offer evidence at the trial, and secure a finding that it did, in good faith, intend to build its road and had means therefor. In the absence of such a finding, upon the pleadings before the court, it must be held that the relator has not made out its case, and in the absence of such a finding cannot prevail, and is not entitled to the mandamus.
    III. The peremptory writ will not be granted herein because the relator fails to show a clear legal right. People v. Supervisors of Chenango, 11 N. Y. 563 ; Holden v. Putman, 46 lb. 9.
   By the Court.—O’Gorman, J.

At the close of the trial of this case, the relator applied to the trial judge for judgment in its favor. This motion was founded on the alternative writ of mandamus theretofore granted, on the return and supplemental return thereto, and on the findings of fact. The trial judge denied the application of the relator and closed his opinion thus : “ Upon the whole case, the conclusion is inevitable that the right of the relator to the relief demanded is so doubtful that the application for a writ should be denied. The defendants are, therefore, entitled to a final order or judgment denying the application and dismissing the alternative writ with costs.”

After a careful examination of the findings, together with the briefs of the respective counsel on this appeal, and of the authorities cited by them, I am convinced that the conclusion arrived at by the learned trial judge is in all respects correct.

It is the indisputable rule of law that a peremptory writ of mandamus should never be granted unless in a case where its purpose is to give effect to a clear legal right. People ex rel. Mygatt v. Supervisors etc., 11 N. Y. 563; People ex rel. Perkins v. Hawkins, 46 lb. 9 ; People ex rel. Martin v. Brown, 55 lb. 191.

In the case at bar the right which the relator seeks to enforce is not only not free from doubt, but the weight of reason and authority is against it. The project which the relator in this case seeks to promote by the aid of a writ of mandamus is one which threatens the city of New York with serious disturbance and widespread inconvenience, with results of doubtful advantage. The occasion demands on the part of the court, great circumspection and caution, and thus the dictates of a wise forbearance unite with the principles of law in opposition to the relator’s demand.

No reason is apparent why the rights of the relator should not be ascertained and asserted by regular action at law, and no urgent necessity is shown for a resort to the sudden and peremptory interposition by mandamus. The order and adjudication of the trial judge are, in all things, affirmed for the reasons set forth in his written opinion, the relator to pay the respondent’s costs of this appeal.

Sedgwick, Ch. J., concurred.

Note.—The special term opinion, above referred to, is as follows:—

“ Motion for final judgment in proceedings for a mandamus.

“ Fbeedman, J.:—Upon the alternative writ of mandamus heretofore granted, the return and supplemental return thereto, and the findl ings of the jury upon the issues, a motion is now made for final judgment. Each party claims to be entitled to such judgment.

“By stipulation it was agreed between the parties, that the present commissioner of public works and his successors are, from time to time, to be substituted as defendants, so that the judgment of the court may have full effect.

“ The findings of the jury are as follows, viz.:

“1. That the legislature of the state of New York, in 1868, passed an act known as chapter 230 of the Laws of that year.

“2. That the legislature of the state of New York, in 1869, passed an act known as chapter 824 of the Laws of that year.

“ 3. That on the 11th day of January, 1876, a judgment was entered in the Superior Court of the city of New York, in a certain action in said court for the foreclosure of a mortgage on the premises, property and rights of property hereinafter described, in which action Origen Vandenburgh was plaintiff, and The New York City Central Underground Railroad Company, John C. Brown, Jesse Seligman, Henry M. Alexander, and the Mayor, Aldermen and Commonalty of the city of New York were the defendants, and duly appeared therein.

“ 4. That it was adjudged in said judgment, as against the defendants, except the city of New York, that the said company owned certain property and rights of property therein described, namely the right of seizure, occupation and possession, for the purpose of constructing and maintaining an underground double track railway, of certain lands, premises and grounds, in the city of New York, in, on and under which the main line of the said railway is located, and which line extends from the City Hall park to and beyond Forty-fifth street by route described as follows, namely :

“ 5. Commencing in the City Hall park, on the easterly line of Broadway ; thence easterly passing in front and in rear of the old City Hall to Centre street; thence under and across Centre street to City Hall place; thence through City Hall place to Pearl street ; thence across Pearl street northeasterly in a curved line to or near Mulberry street at a point between Bayard and Park streets; thence northerly under Mulberry street to Bleecker street, and continuing northerly to and under Lafayette place to As tor place; thence northerly and easterly under Astor place, Eighth street, and across the southeast corner of the block between Eighth and Ninth streets easterly of St. Ann’s Church, to and under Fourth avenue; thence northerly under Fourth avenue and Fourteenth street and Fourth avenue to and under Union Square; thence northerly in, under and through Union Square to and under Seventeenth street ; thence northerly bearing easterly in a straight line to and under and across Twenty-third street, to and in, under and through Madison Square and continuing northerly in, under, on, over and upon Madison avenue to and along the Harlem river.

“6. That it was adjudged in and by said judgment, against all of the defendants, except the city of New York, that such right of occupancy, seizure and possession continue from the date of the said judgment to the 17th day of April, 1968.

“ 7. That it was adjudged by and in said judgment as against all of the defendants, except the city of New York,' that the said last-named company had the right to enter into and upon the soil of said public grounds, pafcks and places for the purposes aforesaid freely and without molestation; to make such excavations in said streets, avenues, squares and grounds, as might be necessary from time to time; to construct and maintain the proper stations, platforms and buildings on such lands, premises and grounds, at such points along the route as might be most convenient for the ingress and egress of passengers and freight, and necessary for the operation of the company’s railway.

“ 8. That it was adjudged in and by said judgment that said mortgaged premises, franchises and property be sold at public auction according to law and the practice of the court, by or under the direction of a referee appointed in said action for that purpose, and with the several specific uses, rights and powers thereto belonging; and that the purchaser or purchasers on such sale be put into possession of the said premises, franchises and property, with the rights belonging thereto, on production of the referee’s deed for the same.

“9. That the referee, mentioned in the said judgment, on the 8th day of February, 1876, duly sold at public auction the premises, franchises, property and rights of property in the said judgment mentioned to Origen Vandenburgh and Hervey Sheldon, and on the 7th day of March, 1876, conveyed the same to the said purchasers by deed dated on that day and recorded in the office of the register of the city and county of New York in Liber 1350 of Conveyances, at p. 459, on the 18th day of March, 1876.

“ 10. That on the 19th day of July, 1880, pursuant to chapter 469 of the Laws of 1873, as amended by chapter 113 of the Laws of 1880, the said Origen Yandenburgh and Hervey Sheldon duly associated with them other persons pursuant to said act, duly organized a corporation under the name of the New York Underground Eailway Company, and filed with the secretary of state of the state of New York and the county clerk of the county of New York, pursuant to such statutes, articles of association of the said last-mentioned company.

“11. That said last-mentioned corporation duly succeeded to and became possessed of all the titles, rights, powers, franchises, privileges, immunities, easements, liberties, property and rights of property, which had theretofore belonged to the said The New York City Central Underground Railway Company.

“ 12. That on the 6th day of September, 1880, by deed dated on that day and duly recorded in the office of the register of the city and county of New York on the 18th day of September, 1880, in Liber 1554 of Conveyances, at page 466, the said Origen Vandenburgh and Hervey Sheldon duly conveyed to The New York Underground Railway Company the premises, franchises, property and rights of property so ■ as aforesaid conveyed to them by the referee.

“13. That on the 4th day of February, 1887, the said the New York Underground Railway Company made application to. John Newton, the then commissioner of public works of the city of New York, for a permit from the department of public works to open one or more streets of the city of New York on a part of the route aforesaid, which application was, on the 4th day of March, 1887, modified by a further written communication to said Newton, on the part of the said company, limiting the portion of the route so proposed to be opened to Lafayette place in said city.

“ 14. That on the 6th day of July, 1887, the said John Newton, commissioner of public works, refused to issue such permit.

“15. That on the 8th day of February, 1888, the said New YorkUnderground Railway Company made a further written application to the said commissioner of public works, for a permit to open the streets on the line of the company’s aforesaid railway, between the City Hall and Forty-fifth street, in the said city, which application was denied on or about the 20th day of February, 1888, by D. Lowber Smith, the then deputy commissioner of public works.

“ 16. That the said The New York City Central Underground Railway Company and the said The New York Underground Railway Company have not, nor has either of them, obtained the consent of the owners of one-half in value of the property bounded on the line of the proposed route of said railroad.

“ 17. That they have not, nor has either of them, obtained the consent of the board of aldermen of the city of New York.

“18. That they have not obtained the consent of the ownerg.of property bounded on the line of the said proposed route.

.“19. That the general term of the district in which the city of New York is situated has not appointed three commissioners, as required by chapter 582 of the Laws of 1880.

“ 20. That by the route and plans adopted by each of the railroads referred to, or mentioned in the foregoing findings, it became necessary or proper for the corporations to build a portion, or some portion, of their road underground.

“ Originally the relator company demanded of the commissioner of public works a permit to open the streets along its route, and included therein Broadway, between Seventeenth and Twentieth streets, and to this demand it adhered in its application for an alternative writ. Such writ, when issued, corresponded with the demand. Upon the trial of the issues it was held by the trial judge, that no right to enter upon Broadway was granted to the company, and he therefore directed a finding, defining the route in terms which exclude Broadway. The variance, it is now claimed, is fatal to the application of the relator, for the reason that it is a well established principle of law, that a peremptory mandamus cannot be issued otherwise than in exact accordance with the alternative writ and the demand made upon the officer, whose action is to be coerced.

“In the next place it is contended that the franchise granted by the Acts of 1868 and 1869 has been forfeited by non-user and lapse of time.

“ I do not stop to consider either of the two objections referred to. The first is of too technical a character, in view of the other important questions involved and which would have to be met on a new application, and the second is now in course of direct litigation, in the action brought by the attorney-general.

“ A third and more important objection, is that the relator company has not obtained the consent of a majority of the owners of the property abutting on the streets, nor the consent of the local authorities.

“ By chapter 582 of the Laws of 1880, section 1, it is provided that, ‘whenever, according to the route and plans adopted by any railroad company heretofore or hereafter formed under any special act of the legislature of this state, or under chapter 140 of the Laws of 1850, entitled ‘ an Act to authorize the formation of railroad corporations and to regulate the same,” and all acts supplementary thereto or amendatory thereof, for the building of its railroad, it shall be necessary or proper to build said road, or any part of the same underground, or to tunnel or bridge any river or waters, it shall be lawful for said company to enter upon, &c., * * * ; provided that whenever such road, or any part of the same, is intended to be built within the limits of any city * * * in this state, and to run by means of a tunnel underneath any of the streets, roads or public places thereof, the said company, before building the same underneath any of the said streets, roads or public places, shall obtain the consent of the owners of one-half in value of the property bounded on the line, and the consent of * * * the proper authorities having control of said streets, roads or public places; or in case such consent of the owners of property bounded on the line cannot be obtained, the general term of the Supreme Court, in the district in which said city * * * is situated, may, upon application, appoint three commissioners, who shall determine, after a hearing of all the parties interested, whether said railroad ought to be allowed to be built underneath such street, roads and public places, or any of them, and in what manner the same may be so built with the least damage to the surface, and to, the use of the surface by the public, and the determination of said commissioners, confirmed by the court, may be taken in lieu of the said consent of the said authorities and property owners.’ This Act of 1880, has been held by the Court of Appeals to be unconstitutional in so far as it provides that an order of the general term may be taken in lieu of the consents of the local authorities and of the owners of one-half in value of the property bounded on the line. Matter of New York District Railway, 107 N. Y. 54. But in so far as the act provides that a tunnel or underground railway shall not be built without the consent of such property owners and local authorities, it remains unaffected by that decision, and the conditions prescribed by it are obligatory upon all railroad companies covered by its provisions. The relator seeks to avoid the application of this statute to its railway by two arguments, namely: (1.) That the relator company has not been formed under any special act of the legislature, or under the general railroad act, or any act supplementary thereto or amendatory thereof, and therefore is exempt from the provisions of the Act'of 1880; and (2.) That the Act of 1880, even if otherwise applicable, is unconstitutional and void as against the relator, because by imposing the condition of procuring the assent of the property owners and of the local authorities as a condition of exercising a franchise previously granted, it impairs the obligation of the contract embraced in the franchise previously granted and destroys vested rights.

“It is conceded that the relator company was formed under the provisions of chapter 469 of the Laws of 1873, which authorize the purchaser or purchasers of franchises and property of corporations sold by foreclosure of mortgage, to associate other persons with them and to form a corporation to which the franchises, powers and privileges sold under the mortgage may be conveyed. In the case at bar Vandenburgh and Sheldon, the purchasers at the foreclosure sale of the property, franchises, powers and privileges of the New York City Central Underground Bailway Company, associated other persons with them, and pursuant to the Act of 1873, created the relator company and conveyed to it all the property, franchises, powers and privileges of the former company so purchased by them.

“ The answer to the first argument of the relator is, however, that the Act qf 1873 is an act supplementary to the general railroad act of 1850, although its title makes no reference to the last named act. The provisions of the Act of 1873 originated in chapter 282 of the Laws of 1854, which is entitled ‘ An Act to amend the act'entitled 1 An Act to authorize the formation of railroad corporations, and to regulate the same,’ passed April 2,1850. In this Act of 1854, provisions were first enacted that the purchasers of railroad franchises under foreclosure judgments might associate with themselves other persons, and thereupon become a corporation possessing the powers, privileges and franchises conveyed by and under the decree of foreclosure. Prior to the enactment of that act, the difficulty had arisen that individual purchasers of railroad franchises, possessing in themselves no corporate powers, and failing to acquire by the decree and sale of foreclosure the right to be a corporation, and to succeed to the corporate life of the former corporation, found themselves in the awkward predicament of owning a property which they could not use and might not be able to sell. It was to cure the difficulty, as was said by Judge Finch in The People v. The Brooklyn, Flatbush & Coney Island Railway Co., 89 N. Y. 84, that the Act of 1854, and its subsequent amendments, were enacted. Now it may be said that the Act of 1854 was confined in its operation to railroad corporations, and that the Act of 1873 is a general act applicable to all corporations. The fact, nevertheless, is that the Act of 1873 is, as to railroad corporations, supplementary to the railroad acts. Whether an act is amendatory or supplementary to the general railroad act, is to be determined by its provisions and not by its title. Even if it be conceded, therefore, that the Act of 1873 is not amendatory in the strict legal acceptation of that term, it is sufficient that it is supplementary to the general railroad act, and that the relator company was organized under it, although its right to construct the railroad in question may have been derived from other sources. There is nothing in chapter 10 of Laws of 1860 which, in my judgment, militates against the views so far expressed. But there are additional reasons in support of what has already been said. ‘ The New York City Central Underground Railway Company, organized under chapter 230 of the Laws of 1868, was, by the third section of said Act, expressly subjected to all the provisions of the Act, entitled ‘ An Act to authorize the formation of railroad corporations and to regulate the same,” passed April 2d, 1850, and the several Acts amendatory thereof and additional thereto, &c,’ The amendatory Act passed as chapter 824 of the Laws of 1869, made no change in this respect. This being so, and the rule being well settled, that under the foreclosure of a mortgage the purchaser can secure no greater rights than would accrue to him under and by virtue of a deed conveying all the right, title and interest of both the mortgagor and the mortgagee, and that a decree of foreclosure does not affect rights prior and paramount to those of the mortgagor and mortgagee, it is difficult to see how, in the absence of proof of a further and additional grant, the relator company can claim any greater rights than the New York City Central Underground Railway Company possessed. If there was such a further and additional grant, clear and convincing proof of it should be given. But no such proof was given.

“ The answer to the second argument of the relator is as follows, viz: The corporate franchises, powers and privileges to which the relator has succeeded, originated in the Act of 1868, chapter 230, and by section 3 of that Act the corporation was subject to the provisions of the general railroad act. Section 1 of the general railroad act provides that the corporations organized thereunder shall be subject to the provisions contained in title 3 of chapter 18 of the first part of the revised statutes, and among the provisions therein contained is this: ‘ The charter of every corporation that shall hereafter be granted by the legislature, shall be subject to alteration, suspension or repeal in the discretion of the legislature.’ (§ 8). Section 48 of the general railroad act of 1850, also provides: 1 The legislature may at any time annul or dissolve any corporation formed under this Act.’ And Section 1 of Article 8 of the Constitution provides: ‘ Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the legislature, the object of the corporation cannot be obtained under general laws. All general laws and special acts passed pursuant to this section may be altered from time to time or repealed.’ The power reserved by these statutory enactments and the constitutional provision referred to, is ample to authorize the legislature to impose the additional condition upon the relator that, before building its railroad, it should procure the consent either of the local authorities or of the property owners, or both. A different case would be presented if the road had been built upon the faith of the original franchise, and the condition were sought to be imposed subsequently. But as long as work has not been commenced, the legislature does not undertake to deprive the corporation of any power. It simply imposes a condition for the exercise of the power, and such condition is of a nature calculated to serve the public welfare, and is a proper regulation in respect to the exercise of a franchise affecting the public. Thus in the case of The People, ex rel., The New York Electric Lines Company v. Rollin M. Squire as Commissioner, &c., 107 N. Y. 593, it appeared that the relator company had acquired the franchise of laying electrical conductors in the streets of the city of New York under resolutions of the common council and Acts of the legislature, and that subsequently chapter 499, of the Laws of 1885, was passed, by which it was provided that such electrical conductors should not be laid except with the consent of a certain board of electrical control created by statute. It was held that the Act of 1885, so far as it affects corporations organized before its passage, is not obnoxious to the constitutional prohibition against laws impairing the obligations of contracts; that it does not annul, destroy, or materially impair or restrict, any franchises or contract rights previously secured, but seeks to regulate and control their-exercise, so that they shall cease to constitute a public nuisance; that regulations of such a character are strictly police regulations, and that the right to exercise this police power is a governmental function which cannot be alienated, surrendered or abridged by the legislature, by any grant, contract or delegation whatsoever. In the ease of The Mayor, etc., v. The Twenty-third Street Railway Co., 113 N. Y. 811, the legislature had required a street railroad corporation to pay into the treasury of the city of New York one per cent of its gross receipts, instead of paying a license fee upon each car as had heretofore been prescribed. The company resisted the payment of the percentage. It was held that while, under the power reserved, the legislature cannot deprive a corporation of its property or annul its contracts with third persons, it may take away its franchises to be a corporation or prescribe the conditions and terms upon which it may live and exercise such franchise, and that consequently the Act imposing the duty to pay a percentage was a valid and constitutional exercise of legislative power. So, a law changing the charter of a railroad company so that the city of Rochester, which as a stockholder had theretofore been entitled to name four directors out of thirteen, became entitled to appoint seven, which gave the control of the company to said city, was adjudged by the Supreme Court of the United States to be constitutional and valid, Miller v. The State, 15 Wall. 478. The cases already referred to are deemed sufficient to illustrate the proposition that the Act of 1880 is not unconstitutional and void for any of the reasons advanced by the relator. It is only the rights of third parties vested in contracts with a corporation, that the legislature cannot destroy by directing the dissolution of the corporation and the sale of its property. The People, etc., v. O’Brien, 111 N. Y. 1. The further claim of the relator that the condition imposed by the Act of 1880, requiring the consent of the owners of one-half in value of the property bounded on the line, is itself unconstitutional, because section 18 of article III of the Constitution requires the consent of the owners of one-half in value of the property bounded on that portion of a street or highway upon which it is proposed to construct or operate a railroad, which has been construed in Hilton v. The 34th Street R. R. Co., 1 How. Pr. N. S. 453, to mean the owners of one-half of each street, is also untenable, because that constitutional provision did not go into effect until January 1, 1875, and is applicable only to franchises to be thereafter granted, and because the rights and liabilities of the relator derive their origin from a date prior to that time. See Matter of Gilbert El. Ry., 70 N. Y. 361; People v. Brooklyn, F. & C. I. R. R. Co., 89 lb. 75.

“ The third objection, which has been sufficiently discussed, should, therefore, be. sustained. But even if there were error in this, there is a fourth objection which is fatal to relator’s case as it stands at present. It is that the relator has shown neither a clear legal right, nor the necessity for the issuance of the writ at the present time.

“ Aside from the question of forfeiture by non-user and lapse of time, on account of which an action has been brought by the attorney-general for the dissolution of the relator company, which action is still pending, and from the question of variance, which questions I do not stop to determine, but which nevertheless involve a doubt, the relator’s case is left uncertain by reason of its failure to adduce any proof that it is its intention in good faith to construct, maintain and operate the road on the line proposed, and that it has or controls sufficient pecuniary means to perform the work. The defendants raised and persisted in the objection from the very start. In the Matter of the Metropolitan Transit Co., 111 N. Y. 588, it was held by the Court of Appeals that the application of the company for the appointment of commissioners of appraisal to fix the compensation to be paid by the company to the city of New York for the use of certain streets, was not sufficient evidence of an intent on the part "of the company to build the road in good faith, and that good faith on the part of the company in that respect is made essential by the Act of 1850 (chap. 140, § 14). This being so, upon an application for a mandamus to coerce like in the present case, the action of an official who denies the good faith and pecuniary ability of the applicant, it is in the very nature of things part of the case of the applicant to show good faith. Such an application differs materially from an application for the appointment of commissioners to determine whether a road shall be built at. all, and if so, to prescribe and define the character, location and route of the road. For if the mandamus in the present ease were issued and enforced, as it must be presumed it would be, the streets might be excavated, and the work then stopped for want of power to proceed farther, and thus a great public nuisance might be created. The proposed road was laid out largely as an underground road through private land. All the authorities agree that such land has an indefinite extent, downwards as well as upwards, so as to include everything terrestrial under and over it. The legal maxim is ‘ Oujus est solum, ejus est usque ad coelum.’ The owners of this land are entitled to compensation. This has been conceded on the argument. Why then should not the relator company be compelled to show that, if it were permitted to tear up the streets, no delay would be incurred by the resistance of such owners ? All things considered, it is quite reasonable to require in this case that the relator should show good faith and sufficient ability to proceed with the work with due diligence from the time of the granting of the permit for the excavation of the streets.

‘1 Another element of uncertainty arises from the failure of the relator to define the route with sufficient precision. It should have defined the route with such precision, that the commissioner of public works in his permit might have defined the portions of the- streets to- be opened.

“The Act of 1869 defines a route, touching Mulberry street, between Bayard and Park streets, continuing either east or west of Mulberry street, or through Mulberry street; passing from Seventeenth street to Twenty-third street, either through the blocks between Broadway and Fourth avenue, or through to Madison avneue, if it be extended southerly; and continuing under Madison avenue, or east of the avenue, in whole or in part, to Eighty-sixth street, etc., etc. The description of the route thus given is sufficient for the purpose of incorporating a railroad company which, like the relator or its predecessor, the New York City Central Underground Bailway, is authorized by section 22 of the general railroad act, to define its route within"the general limits indicated by the statute.

“But preliminary to the commencement of actual work, and especially preliminary to an application for legal assistance in the excavation of the streets, the relator is bound to file a map, by which its route is specifically defined, and by which it is determined and fixed, whether its line is to be within the streets named, or east or west thereof, and at what points its route is to intersect the streets. The findings of the jury contain no such definition or specific determination. Nor does any such definition or specific determination appear anywhere else in the ease. In the absence, therefore, of all proof upon these points, no court will grant a mandamus, compelling the commissioner of public works to issue a permit for the excavation of the streets in general terms. The duty of keeping the streets of the city of New York in order is in a large measure cast by law upon the commissioner, and this involves the duty of being vigilant, to prevent all unnecessary encroachments upon, and obstructions of, the streets. When, therefore, the commissioner is applied to for a permit for the excavation of any part of a street, it is both his right and his duty to insist upon exact information as to the precise point at which the excavation is proposed to be made.

“ The considerations stated clearly demonstrate that the relator has ■shown neither a clear legal right to, nor the necessity for, the issuance of the writ at the present time. The, writ lies to give effect only to a clear legal right. The People, etc., v. The Supervisors of Chenango County, 11 N. Y. 563, and The People, etc., v. Hawkins, Supervisor, etc., 46 lb. 9.

There are other questions in the case, but, in view of what has already been said, it is not necessary to examine them.

“Upon the whole case the conclusion is inevitable, that the right of the. relator to the relief demanded is so doubtful that the application for a writ should be deniéd. The defendants are, therefore, entitled to a final order or judgment, denying the application and dismissing the alternative writ" with costs.”


source: Caselaw Access Project

author: By the Court.—Ingraham, J.

license: Public Domain

text:
    EDWIN B. MEEKS, as Surviving Executor, etc., Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Trusts under a will, express and implied—Power in trustees to hold and sell and distribute the rents and profits and the proceeds of a sale.

    Joseph W. Meeks, the testator, died seized of certain property, leaving a last will and testament whereby the said property was devised to the plaintiff and another person, in trust, as executors and trustees. (1.) The executors and trustees are directed, until the sale of the real estate as provided in the will, to keep the buildings in repair and insured; to pay all taxes and assessments on the property, and to collect and receive the rents and profits. (2). The executors are further expressly authorized, empowered and directed to sell at public auction, at such time and manner as they shall think best, all the real estate, etc., and to divide the proceeds into four parts, and pay over one and invest the other three in three separate trusts each for one life with remainder. (3.) Until the conversion of the real and personal estate into money, and its division as provided, the said absolute legatee and the three life legatees are to receive the income of the residuary estate, share and share alike. The defendants moved to dismiss the complaint on the grounds (1.) That the will attempts to Great an express trust not authorized by the Revised Statutes; (2.) That the trust created may suspend the power of alienation in contravention of the statute of perpetuities, and (3.) That the action should have been brought in the names of the real parties in interest.

      Held, That to entitle plaintiff to judgment it must appear that the title to the property in question became vested in the plaintiff, as trustee, or that he was entitled to the possession and enjoyment of the property. The testator clearly expressed his intention in the will, that his property should not descend to his heirs at law; and the heirs at law, as such, are not entitled to the proceeds of the sale of the property, or to the rents and profits realized therefrom, during the period that should elapse between the time of the death of the testator and the time of such sale. It is the plaintiff, as trustee, who would have been entitled to the amount required to have been paid for the prop erty, if the defendants had taken the same under the right of eminent domain; and, until the sale of the property by the plaintiff, as trustee, he is entitled to the possession of the property and to the rents and income thereof. It is the plaintiff, as trustee, therefore, who can maintain an action for the use and occupation of the property and for an injunction to restrain a trespass upon it; and a conveyance by him to the defendants, under the power of sale contained in the will would have conveyed a good title. The heirs at law of the testator were not necessary parties to this action to restrain a trespass upon the property, or to recover possession thereof, or damages for such trespass, nor necessary parties to a conveyance of the property in order to vest a good title thereby. The executors and trustees took the legal title to the property under the will. The intention of the testator that they should take the title to the estate, collect the rents and profits until it should be sold, and then receive the proceeds of sale and divide the same, is clearly expressed by the will. The will created an express trust to sell the property, receive the rents and profits and to apply the same, and the proceeds of the sale, to the use of the persons having a life estate in the same or otherwise entitled thereto.
    Before Freedman and Ingraham, JJ.

      Decided December 1, 1890.
    Appeal from judgment entered upon the decision of the special term.

      Davies & Rap alio, for appellants, argued:—
    The learned trial judge erred in finding that the plaintiff was, and with his co-trustee had been, the owner in fee simple of the premises in question. The Code requires that every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted. Code of Civil Procedure, § 449. The objection that the plaintiff is not the real party in interest is available to the defendants. Sandford v. Sandford, 45 N. Y. 723 ; Hubbill v. Lerch, 62 Barb. 295. If the plaintiff claims to be within the exception of a.n executor, or trustee of an express trust, he must show that he is an executor, or trustee, and has a right of action as such. If he has no right of action as executor , or if he is not a trustee, or if his alleged trust is void so that he takes no estate, then he cannot maintain the action. Griswold v. Watkins, 20 Hun, 114 ; McColl v. Frazer, 40 lb. 111. It is to be observed of this will that there is no devise of the residuary estate to the executors or trustees. On the contrary, the language, in respect to all that precedes the division of the converted estate, is, “ 1 order and direct ” or “ 1 authorize, empower and direct,” etc. This language shows clearly an intent that all that precedes the division shall be accomplished by means of powers in trust given to the executors. Fortunately it is not necessary to go far to find conclusive authority upon the true construction of such a will. The case of Henderson v. Henderson, 113 N. Y. 1, is, upon this point, the counterpart of this will, and decides that the executors take only powers in trust. The testator in that will directed his executors to partition his estate among his children, and, for that purpose, to sell the real estate, and, in the meantime, to take entire charge and control and .management of the real and personal estate ; to lease and to collect the rents, issues, profits-and income; to make investments ; to insure ; to pay taxes and assessments ;' to make repairs ; to pull down buildings and to erect new ones, and to pay each child of the testator $2,400 annually, in quarterly payments until the estate was divided. No devise of the residuary estate was made to the executors. The only difference in the two cases is that, in the Henderson case, after the estate was converted and divided, each child got his share absolutely, while in this case Albert V. Meeks gets his one-quarter absolutely, and Joseph, Edwin and Mrs. Hawkins each have their shares vested in the executors, as trustees, upon an express trust for their lives severally. But this difference does not touch the question of the character of the executor’s interest prior to the division. In construing the Henderson will the Court of Appeals says: “We do not think that any valid express trust was created by the testator, for, if such was his intention, it would be ineffectual for not being comprehended within the provisions of section 55 of the Article on Uses and Trusts in the Revised Statutes. The main purpose of the testator’s will was that his children should participate equally in his residuary estate, and that its division among them should be effected by his executor. For the better execution of that purpose he gave a discretionary power of sale to the executor and the further power to manage the estate and to receive the rents, profits and income thereof is conferred until partition and division.. There is no express devise of the residuary estate to any one, and, if no valid trust title was created in the executor, it must follow that the legal title to the real estate vested in the children at the testator’s death, subject to the power given to the executor to partition, and meanwhile to manage and sell.” " The same rule applies, even where the estate is devised directly to the executors, unless a valid express trust is also created. Cooke v. Platt, 98 N. Y. 35 ; Korvalinka v. Schlegel, 104 lb. 125. In Robert v. Corning, 89 N. Y. 225, upon which the plaintiff relies, the question whether the executors took an estate or simply powers in trust was not decided. Judge Andrews said that it was unnecessary to decide it. But he concurred in the opinion in the Henderson case, supra, that such a will created only powers in trust.
    In this will, the executors or trustees are not empowered to make leases. They are simply appointed collectors of the rents, etc., of property which is bequeathed directly to the children until the conversion of the estate. No duties are imposed by this will upon. the executors or trustees which require, or which even render convenient for their discharge, the vesting in the executors of an estate in these premises. Hence no estate in the executors will be implied, where none is expressly created. Brewster v. Striker, 2 N. Y. 19 ; Morse v. Morse, 85 lb. 53. As there is no valid trust title created in the executors of this will, and as their trusts relate only to the funds of Donelly and the widow, and the separated three-quarter shares of the divided estate, after sale and division, it necessarily follows that the legal title to No. 30 Vesey street, the premises in question, is now vested in the heirs at law of the testator, subject to the powers given to the executor to partition and in the meantime to manage and sell. But these powers do. not give to the surviving executor any standing in court as executor, or as trustee, to maintain this action. He stands in respect to the heirs, precisely as if he had a valid and irrevocable power of attorney from them to do what the will empowers him to do. The logical conclusion is that the plaintiffwas not the proper party to bring this action ; that he owns no estate in the premises to .which this action relates ; that judgment against him would not have barred an action by the true owners ; and that judgment in his favor will be no protection against an action by the true owners, if such should be brought. The existence of a power of sale for the purposes of division does not affect the question, for, in the first place, such a power does not authorize the plaintiff to maintain this action. In the second place the power of sale is expressly limited to a sale at public auction, and a conveyance taken from the plaintiff in the manner contemplated by the judgment, would not be in compliance with the terms of the will, and would be no protection to the defendants in case an action were brought for an injunction by the devisees under the will of Joseph W. Meeks.

      Eugene D. Hawkins, for respondent, argued:—
    I. The appellants must on this appeal take the position that the plaintiff is not properly a party to the suit; they cannot claim as a ground for reversal that there is a mere defect of parties plaintiffs or defendants, or that the plaintiff has not the legal capacity to sue. The plaintiff was named as executor in the will and qualified as such ; he has proceeded to act in the execution of the duties of the trust for eleven years, and he has brought this suit in his representative capacity, as executor and trustee. These acts are sufficient to denote his acceptance of the trust. 1 Lewin on Trust (1st Amer. ed.), p. 200. He alleges and proves that he is trustee of an express trust, and so, under § 449 of Code of Civ. Pro., he is the real party in interest and can sue without joining the beneficiaries. See Hubble v. Medbury, 53 N. Y. 102, where the court holds, “ The trustee of an express trust may by it, sue without joining the beneficiaries ” (it referring to § 113 of the old Code, which is the, same as § 449 above). See also Clark v. Fosdick, 118 N. Y. 12, and cases there cited. These questions as to plaintiff’s want off capacity to sue, and as to defect of parties, could not have been raised by demurrer, as the facts on which the defendants make the claim do not appear on the face of the complaint. The defendants should have raised these objections by answer (Code, § 498), and not having-raised them by answer (ff. 36-58) they are deemed to have waived them (Code, § 499). Defendants did notvat añy timé move to amend their answer by setting-up these additional defenses.
    II. That there is no express devise in trust to the executors,' does not prevent the existence of an express trust, under the Statute of Uses and Trusts. Vernon v. Vernon, 53 N. Y. 359. “To constitute a valid trust .under the statute, the trust must be declared in the instrument creating it; but it is not necessary that the purpose of the trust should be stated in the words of the statute. It is sufficient that a purpose within the statute is clearly embraced in the language used, in that a power conferred in express times includes a power over the estate, for the execution of which the trustee may be clothed with the legal title.” Hill on Trustees, (3d Amer. ed.), p. 99 : “ It is by no means necessary that the donee should be expressly directed to hold the' property to certain uses, or in trust, or as a trustee. * * * It is one of the fixed rules of equitable construction that there is no magic in particular words, and any expressions that show unequivocally the intention of the parties to create a trust, will have that effect. It was said by Lord Eldon, that the word 6 trust ’ not being made use of is a circumstance to be alluded to, but nothing more ; ,and if the whole frame of the will creates a trust, the law is the same though the word trust is not used.” (This paragraph quoted with approval in Tobias v. Ketchum, 32 N. Y. 326). Ward v. Ward, 105 N. Y. 74. “ When the duties imposed'are active and render the possession of the estate convenient and reasonably necessary, the .executors will be deemed trustees for the performance of their duties to the same extent as though declared to be so by the most explicit language ”—(cases cited). Morse v. Morse, 85 N. Y. 60. “No particular formula of words need be used. It is not essential that the words ‘ trust ’ or 6 trustee ’ should be used, or that there should be a direct devise in terms to the trustee, or that the authority to receive the rents and profits should be conferred in express language.” .In Leggett v. Perkins, 2 Comstock, 298, the will read r “ I give unto my two daughters, Susan .and Mary Jaggar, the remaining two-fifths of my estate, so that each may have and enjoy the interest and income of one equal one-fifth thereof during their several natural lives and at their deaths respectively I will the share of each to their respective issue, their heirs and assigns forever. Item, I hereby appoint my executors * * trustees to the estate of my two daughters, hereby authorizing and desiring my executors, as such trustees, to take charge of all such portion of my estate as is herein given to them respectively, and to take care of, manage and improve the same and to pay over to them the rents, interests or net income.” The executors were further authorized to- sell the real estate and invest the proceeds for the benefit of said daughters. Held : “ Now the trust to .receive and pay over the rents and profits of real estate was a familiar trust at common law ; and the decisions are uniform and clear, that, as a general rule, when a testator by his will empowers and requires his executors to receive and apply or pay the rents of an estate, to make repairs, or to pay annuities out of the same, the executors take by implication of law, the estate in trust over which those powers are to be exercised.” “The formal devise or delegation of the trust to them, is alone wanting ; but no express devise or delegation of trust was indispensably necessary. The law will imply the formal delegation, where the trust is in substance indicated.” Craig v. Craig, 3 Barb. Ch. 80 (Walworth, Ch.). Donovan v. Van DeMark, 78 N. Y. 246. “I give, devise and bequeath to George Chambers all my estate, in trust nevertheless for the necessary support and maintenance of my son A. during his natural life, and after his death I give and bequeath the said estate to Abraham’s children. “ I appoint and empower him to sell,” etc. Held, that the trustee was trustee of an express trust and the proper party to bring ejectment. All decisions agree “ that it is not necessary the trust should be stated in the very words of the statute, but it is sufficient if a purpose within the statute is clearly embraced in the language used, for the execution of which the trustee may be clothed with the legal title.” 1 R. S. pt. II., chap. I., tit. 5, p. 748, § 2 : “ § 2. In the construction of every instrument creating or conveying or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.”
    III. The power given the executors to insure, to repair, to pay taxes and assessments, to collect and receive the rents, and the direction that the residuary legatees shall receive the net income of the residuary estate, share and share alike, taken together with the imperative power of sale given to the executors, created an express trust and gave the executors the title to the real estate in fee, in trust. R. S., part II., chap. I., tit. 2, art. 2, p. 728, § 55 (7th Ed., p. 2181), provides as follows: “ § 55. Express trusts may be created for any or either of the following purposes : (2.) To sell * * * lands for the benefit of legatees. (3.) To receive the rents and profits of lands and apply them to the use of any person during the life of such person or for any shorter term.” “ § 60. Every express trust, valid, as such, in its creation, ***** shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The person for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.” Downing v. Marshall, 23 N. Y. 377 ; Coster v. Lorillard, 14 Wend. 323 ; Tobias v. Ketchum, 32 N. Y. 329 ; Duval v. Eng., etc., Church of St. James, 53 lb. 500 ; Moore v. Hegeman, 72 lb. 376 ; Savage v. Burnham, 17 lb. 561 ; Noyes v. Blakeman, 6 lb. 578 ; Marvin v. Smith, 46 lb. 576 ; Craig v. Hone, 2 Edw. Ch. 559; McLean v. McDonald, 2 Barb. 537.
    IV. The residuary estate, under the will of Joseph W. Meeks, so far as it was composed of real estate, was equitably converted into personal property the moment the will went into effect, and whatever interest the beneficiaries have is personal property, the whole title to, and estate in the real property vesting absolutely in the executors. Gilman v. Reddington, 24 N. Y. 12. “ Trusts in personal estate are subject to no statutory restriction ; in other words, the legislature has never attempted to define and enumerate the lawful occasions for creating such trusts. They stand, therefore, as at common law, subject only to the statutory rule against the suspension of ownership for more than two lives.” Greenland v. Waddell, 116 N. Y. 240 ; McLean v. Walgrove, 2 Barb. 534 ; Ash v. Ash, 18 Abb. N. C. 82 ; Morse v. Morse, 85 N. Y. 53 ; Thomson v. Thomson, 55 How. 494 ; Roberts v. Corning, 89 N. Y. 225 ; Grieveson v. Kirsopp, 2 Kean, 653 ; Burrell v. Baskerfield, 11 Beav. 533 ; Ward v. Arch, 15 Sim. 389.
   By the Court.—Ingraham, J.

The complaint alleges, that one Joseph W. Meeks died seized of certain property, therein described, leaving a last will and testament whereby the said property was devised to the plaintiff in trust for the purposes of and object of the will, and that by virtue thereof plaintiff became the lawful owner of said property with all the rights, easements and appurtenances thereto belonging, and the owner of any and all causes of action for damages thereto.

These allegations are denied by the answer. The will of said Joseph W. Meeks was introduced in evidence, and to entitle plaintiff to judgment it must appear that the title to the property appropriated became vested in the plaintiff, as trustee, or that he was entitled to the possession and enjoyment of such property.

If there is any intention clearly expressed in the will it is that the testator’s property shall not descend to his heirs at law. The executors are directed to sell the property and receive and distribute the proceeds thereof, and until the property is sold the executors are to receive the rents and profits, and to pay insurance, taxes and assessments. Under no circumstances can the heirs at law, as such, be entitled either to the proceeds of the sale of the property or to the rents and profits realized therefrom during the period that should elapse between the time of the death of the testator and the time of such sale.

. If the defendants had taken the property under the right of eminent domain it is the plaintiff, as trasteé, who would have been entitled to the amount required to be paid for such property, and until the property was sold the plaintiff, as trustee, would be entitled to the possession of the property and to the rents and income realized from the use and occupation thereof.

It is the plaintiff, as trustee, therefore, who could maintain an action for the use and occupation of the property, and for an injunction to restrain a trespass upon it. A conveyance by the trustee would convey a good title to the defendants under the power of sale contained in the will, and the heirs at law are not necessary parties either to this action to restrain a trespass thereupon, or to recover possession thereof, or to a conveyance of the property so as to vest a good title in the defendants.

It is not, therefore, necessary to decide in this action whether the title to the real estate vested in the plaintiff, -as trustee, under the will, but if it were necessary to determine that question I think that, under the rule stated in Roberts v. Corning, 89 N. Y. 225, the executor took the legal title to the property. Andrews, J.—speaking for the court in that case said: “ The testator contemplated that the real estate might not be sold for some time after his death * * * The presence of the legal estate in the trustees pending a sale if not absolutely necessary to nable them to perform the duty imposed upon them to divide the net income and profits, is a convenient and natural arrangement, and. the vesting of the legal estate in the trustees by implication would not, as we construe the will, defeat or disturb any of its provisions, but would be in harmony with its scheme and dispositions. * * * There are many authorities tending to sustain the proposition, that a trust will be implied when the duties imposed are active and render the possession of the legal estate in the executors convenient and reasonably necessary, although it may not be absolutely necessary to accomplish the purpose of the will, and when such implication would not defeat but would sustain the disposition of the will.”

These remarks apply to the will in question. There is, I think, a clear intention expressed in the .will that the executors should take the title to the real estate, collect the rents and profits until it should be sold, and then receive the proceeds of the sale and divide it among the legatees. An express trust may be created to sell lands for the benefit of legatees and to receive the rents and profits of lands and apply them to the use of any person, during the life of such person, and such a trust is created by the will as thus construed.

Henderson v. Henderson, 113 N.Y. 1, does not apply, for there the direction to the executors is to partition, not to sell, and the will gives the share set off to each child by the executors under the power conferred, to the child to whom it is allotted. It was held that no express trust was created because it was not within the provisions of the statute; that the main purpose of the testator was to divide the residuary estate among his children and the power of sale was given for the better execution of that purpose ; but in this case the trust will be within the provisions of the statute as before stated.

The other questions presented on this appeal have all been decided by this court adversely to the appellants and required no special mention.

Judgment should be affirmed, with costs.

Fbeedman, J., concurred.


author: By the Court.—Dugro, J.

text:
    CHARLES ZUST, Appellant v. JULIA T. LINTHICUM, Respondent.

      Jury, communications between them and the trial judge after they have left the bar to consider their verdict, must take place openly in the court or by and with the assent of parlies.

    In this case the jury while deliberating sent an inquiry to the court, that reached the court, and was made known to counsel of both parties. Plaintiff’s counsel objected to any communication between the court ■ and jury except in open court on the recall of the jury, This objection was at the time overruled, but no harm came from it for the question was not then answered. Subsequently the question was answered, and no exception was made to the answer, and no indication of dissatisfaction with it appears on the record. Held, that it is fair to assume that, at the time it was given the plaintiff was not averse'to it because of incorrectness or otherwise. If the plaintiff was averse to the answer being given to the jury for any cause, he should have called the attention of the judge to his complaint, so that the error, if any existed, could have been avoided or corrected at the time.
    Before Sedgwick, Oh. J., and Dugbo, J.

      Decided December 1, 1890.

      Appeal "by plaintiff from a judgment in favor of defendant entered upon the verdict of jury, and from orders denying plaintiff’s motions for a new trial on the judge’s minutes, and on the case as settled.

      Frederick G. Herter, attorney, and A. Walker Otis of counsel, for appellant, argued :—
    The communication between court and jury against the objection of the plaintiff was fatal to the verdict. This has been settled by numerous authorities, including the following: Taylor v. Betsford, 13 Johns. 487 ; Neil v. Abel, 24 Wend. 185 ; Watertown Bank v. Mix, 51 N. Y. 558 ; Plunkett v. Appleton, 9 J. & S. 196., Monell and Sedgwick, JJ. In the last case the court say, adopting the language of the Court of Appeals in Watertown Bk. v. Mix. “ There ought to be no communication between the judge and the jury after they have gone from the bar to consider their verdict in relation to the oral evidence or his instructions unless it take place openly in court or with the express assent of the parties.” And the court add that their decision is based on grounds of public policy and that “ not to set aside the verdict would”establish a precedent which would tend to impair the upright and faithful administration of justice.” In the case at bar the error was aggravated in this, that the judge assumed to state that a certain fact stood proven in the cause. This was a usurpation of the province of the jury and would of itself have been error even had the jury been recalled.

      Thomas Bracken, attorney and of counsel, for respondent, argued :—
    The objection taken to the answering of the query made in writing by the jury to the court is not well taken, and the motion to set aside the verdict is not tenable. Both are based on the ground that the communication was an irregularity. It was not. It was discretionary with the court to call the jury into the court-room and answer their question verbally, or on due notice to the attorneys for both sides, answer same in writing. The learned judge properly exercised the discretion vested in him, and from this there is no ground for appeal. The communication was made to and answered by the learned judge in open court, and with due notice to all parties interested. No injustice was done, nor was any irregularity had. Taylor v. Betsford, 13 Johns. 487. The case of Plunkett v. Appleton, 9 Jones & Spencer, 159, quoted by appellant and relied upon by him, is easily distinguished from- the case at bar, and is in no manner analogous. The cases in which the court will interfere with the exercise of discretion by the judge are .rare ; the application is nearly always denied. Frost v. Niles, 1 Hill. 300 ; Meakin v. Anderson, 11 Barb. 215 ; Sheldon v. Wood, 2 Bosw. 267.
   By the Court.—Dugro, J.

Plaintiff appeals from a judgment and two orders each denying a motion for a new trial : he cannot be successful in his appeal from the judgment, for an appeal from a judgment rendered upon the verdict of a jury only brings up the exceptions taken upon the trial (Third ave. R. R. Co. v. Ebling, 100 N. Y. 98), and he took no exception at the trial.

The motion for a new trial upon the grounds that the verdict was contrary to the evidence and to law was properly denied.

The verdict was not against the evidence, as the only witness examined was interested in the event of the trial, and the jury was, therefore, not bound to take his testimony as conclusive although it was uncontradicted. McNulty v. Hurd, 86 N. Y. 547. The case does not disclose that the verdict was contrary to law.

The later order appealed from denied a motion for a new trial made upon the ground that a communication sent by the judge to the jury was erroneous and in violation of the rights of the plaintiff. It seems the jury, while deliberating, sent an inquiry to the court in the presence of all counsel ; the plaintiff’s counsel thereupon objected to any communication between the court and the jury except by the recalling of the jury into open court; this objection, as calculated to preserve the conduct of the trial from irregularity, was doubtless proper, but it was overruled. No harm, however, came to the plaintiff by this ruling, for the question had not been answered. Thereafter the question was answered, no exception was taken to the answer, and no indication of dissatisfaction with respect to it appears upon the record ; it is, therefore, fair to assume that at the time it was given the plaintiff was not averse to it because of incorrectness. If it was otherwise he should in fairness have called the attention of the trial judge to his complaint so that the answer could have been corrected if cause therefor existed. The fact that the answer was not literally correct does not satisfy me that the plaintiff was prejudiced by it. A just inference from the question is that the jury desired to know whether the defendant had been paid by the plaintiff an amount equal to his wages up to the time of the formation of the corporation. If this was the information desired the answer conveyed it.

Upon the whole case, I think the judgment and orders should be affirmed.

Sedgwick, Ch. J., concurred.