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Gornell Law School Library
WINTE ON CORPORATIONS

CONTAINING

THE LAWS AS AMENDED TO JANUARY 1, 1907,

‘, CONCERNING

Business, Ratlroad, Ferry, Navigation, Stage Coach, Tramway,
Pipe Line, Gas, Electric Light, Water-Works, Telegraph,
Telephone, Turnpike, Plank-Road and Bridge Corpora-
tions, Joint-Stock Associations, etc., including the

Laws on Taxation, Dissolution and Receivers,

Statutory Construction, Condemnation of

Real Property, Code Provisions, etc.s
also all State and Federal Statutes
affecting the Class of Corpora-

tions above enumerated,

TOGETHER WITH

DECISIONS, ANNOTATIONS AND FORMS.

By FRANK WHITE,
OF THE NEW YORK AND ALBANY BAR,

Deputy Attorney-General of the State of New York ;
Lecturer on Corporations at the Albany Law School;
Former ‘Corporation Examiner in the Office of the Secretary of State.

SIXTH EDITION,

WITH STATUTES TO JANUARY 1, 1907.

NEW YORK:
BAKER, VOORHIS & COMPANY.
1907.

12830
CopYRIGHT,
1894,
By FRANK WHITE,

 

CopyYricut,

1895,
By FRANK WHITE.

 

Coryrricut,

1897,
By FRANK WHITE.

 

CopyrIcuHT,
1900,
By FRANK WHITE,

 

CopyricHt,
1902,
By FRANK WHITE,

 

COPYRIGHT,
1905,
By FRANK WHITE.

 

CopyvRIGHaT,
1907,
By FRANK WHITE.

THE ARGUS COMPANY,
PRINTERS, BINDERS AND ELECTROTYPERS,
ALBANY, N. ¥.
TO THE

HONORABLE CHARLES R. INGALLS,

For TwEnty-six YEARS
A Justicz of THE SUPREME CouRT oF THE STaTE or Nrw YORK

This Volume is Affectionately Dedicated

AS AN EXPRESSION OF RESPECT AND ADMIRATION FOR HIS EMINENT SERVICES
4S A JURIST AND FOR HIS PURE AND NOBLE CHARACTER, ILLUMINED
BY GREAT CIVIC VIRTUES AND THE ADORNMENTS WHICH GRACE
THE. DIGNITY OF PRIVATE LIFE.
INTRODUCTORY.

The policy which was inaugurated in this State during the
legislative session of 1901 of remodeling and liberalizing the laws
for the organization, regulation and management of corporations
has been consistently adhered to in the succeeding years, thereby
bringing such statutes into harmony with the most modern and
advanced corporate methods. In 1904 several important acts were
passed. still further simplifying corporate procedure. The effect
of these modifications, whereby, among other things, proper and
necessary safeguards have been adopted in behalf of corporate
interests, has been largely appreciated in attracting to the State
incorporated capital from all parts of the country, resulting in a
rapid growth in the number of stock corporations organized under
our laws, and a noticeable decrease in the formation of corporations
in the other heretofore popular charter granting States. The
number of corporations formed under the laws of this State during
the calendar year 1904 reached the record figures of 4,420, and, in
view of the fact that 505 new corporations came into existence
here in the month of January, 1905, it is fair to predict that the
current year will show an aggregate in excess of the high record
of the preceding year.

The author of this work takes what he hopes may be deemec
pardonable pride in the fact that he was accorded the privilege
of being associated with several other lawyers in accomplishing
the very desirable results achieved in modernizing our corporation
laws, and in thus popularizing the State of New York as a domicile
for important corporations.

In response to numerous requests from members of the bar, the
author has considered it advisable to republish his article, entitled
“ Advantages of Incorporation under the Laws of the State of
New York,” which appears on the next succeeding pages, and
which sets forth some of the salient features of the liberalized
corporate laws. ,
FRANK WHITE.
March 2, 1905.
ADVANTAGES OF INCORPORATION UNDER THE LAWS
OF THE STATE OF NEW YORK

COPYRIGHT, 1901, BY FRANK WHITE.

The corporate form for conducting business enterprises, both large and
sinall, possesses so many inherent advantages over a partnership or joint-
stock association that business men seem to be more interested in deter-
mining where to incorporate, than in ascertaining the desirability of incor-
poration,- The principal advantages of incorporation have become fairly
well recognized, particularly in obtaining for the interested varties immu-
nity from individual liability; in securing the element of perpetuity; the
unimpaired preservation of the rights and interests of the survivors in the
event of the death of any member of the concern, including the retention
intact of the good-will and prestige of the business, which is frequently
one of its most valuable and remunerative assets; the ease with which
the owner of shares of stock may dispose of them by will, sale or other-
wise; the increased facilities afforded for borrowing money; the con-
venience with which the varied interests to be taken into fhe company
can be satisfactorily safeguarded; these and numerous other advantages
that are accorded to corporations when contrasted with the dangers and.
disadvantages of transacting business under the rapidly disappearing
partnership method have appealed so forcibly to men engaged in the
activities of commercial and financial pursuits that the problem, ‘‘ Where
to Incorporate,” has assumed greater importance than ever.

New York’s new policy.— The writer of this article asserts most
emphatically that this problem has been settled in favor of New York
by recent legislation, and he proposes to submit what he deems adequate,
convincing and incontrovertible proof that the State of New York is the
most desirable State in which ‘to incorporate. ‘The ‘work of the legisla-
ture of the State of New York, during the session of 1901, in liberalizing,
modifying and enlarging the corporation laws by eliminating all objec-
tionable features and reducing the organization tax, and by inserting
numerous new and desirable features, has placed New York beyond
peradventure clearly and unmistakably in the van as the most inviting
State in which to incorporate not only enterprises located and carrying
on business within the State, but also those located and having their
property elsewhere.

Money wasted by incorporation elsewhere.— Previous to the recent
liberalization of the corporation laws by New York State a great variety
of misapprehensions and delusions respecting its corporate laws had
found lodgment in the minds of both laymen and lawyers. In many cases
in the past it has been very difficult, even for a person ‘well versed on the
subject, to account for the incorporation of New York enterprises in
either Delaware, New Jersey or West Virginia, for in the majority of
cases each of such companies was actually throwing away every dollar
spent for the sake of having a charter from New Jersey or other States,
for the reason that a company thus incorporated and having its business
and property in New York State does not receive a single benefit in return
for the expenditures made by it for a foreign charter. Why should such
a company subject itself to the laws of two sovereignties, file reports in
two States, pay an organization tax and annual taxes in two States, pay
a so-called “Trust” or registration company an annual fee for maintain-
ing a nominal office in another State, when the entire business and cap-

vil
vill ADVANTAGES OF INCORPORATION.

ital of such company are located in the State of New York? There is no
sound reason for it. There is no substantial argument that can sustain
such an unbusinesslike proceeding. Such a company obtains no benefits
or advantages that might not have been obtained under the statutes of
New York, provided its incorporators so desired. It does not escape any
of the taxes payable to this State, not even the one-eighth of one per cent.
organization tax, for after its incorporation in a foreign State, it must
obtain a license, or certificate of authority, to transact business in the
State of New York, and the cost of that license is one-eighth of one per
cent. upon the amount of capital employed within the State. It must pay
annual taxes in the State of its incorporation, besides paying the same
annual tax to the State of New York as though it were incorporated here.

The pecuniary feature as thus indicated has heretofore been in favor of
New York as the domicile of such corporations, but now, with a modern-
ized and liberalized system of corporation statutes, New York becomes the
most desirable State for all classes of corporations, whether carrying on
business and having the capital, or any portion thereof, employed here
or in other States. The Brackett bills, which were passed by the legisla-
ture of 1901, and signed by the Governor, signalize a new departure in
regard to the treatment of corporations by the State.

‘Salient features of the liberalized laws.— This new system of laws
has been enacted in recognition of the fact that the relation of corpora:
tions to the business transactions of the community have undergone a
decided change in this country within the past decade, and that the
demand for the use of corporate powers in combining the capital, the
energy and the skill required to successfully conduct business transac-
tions in competitive fields has become so imperative that the corporation
acts have needed remodeling and amendment. The amendatory legisla-
‘tion of 1901, which contains provisions similar to the English companies
act of 1862, was enacted for the purpose of attracting incorporated capital
to the State, and the results even at this early date are justifying the new
policy of the State. The most important changes are as follows: The
removal of objectionable liability features so that both directors and
stockholders are now freed from any of the entanglements which hereto-
fore existed. The incorporation tax has been reduced from one-eighth to
one-twentieth of one per cent. on the authorized capital stock. This
initial or organization tax, as it is termed in the statute, is payable but
once, and ‘that upon the formation of the company, and amounts to fifty
cents on each $1,000 of capital stock. The duty of filing an annual report,
the non-performance of which rendered every director individually liable
for all the debts of the corporation, has been stricken from the statutes
and in lieu thereof it is provided that in case a stockholder or a creditor
makes a written request upon an officer for the filing of a report (the form
of which is now very simple), the officer so requested is required to file
the same within ten days, and in case he fails to comply there is imposed
the liability of a fine of $50 a day, and this provision applies to both
domestic and foreign corporations. The power to borrow money has been
enlarged, and the legal limitations are removed, both as to the issue of
bonds and the sale thereof. Section 24 of the stock corporation law, for-
bidding the contracting of any debts in excess of the amount of the cap-
ital stock, is repealed, and a corporation is permitted to borrow as much
as its credit and security will permit, without reference to the amount
of its capitalization. Stock may be issued for property, and stock so
issued shall be regarded as full paid, and in the absence of fraud in the
transaction the judgment of the directors as to the value of the property
purchased shall be conclusive. This is the same language as the New
Jersey statute. The issue of preferred stock is permitted with the con-
sent of the owners of two-thirds of the capital stock, instead of unani-
mous consent previously required. The certificate of incorporation may
provide for the issue of partly-paid stock, subject to calls, upon which the
stockholders shall not be subject to any liability except the payment of
the amount unpaid on the stock. Corporations are authorized to provide
State or New York. ix

by certificate or in the by-laws that directors need not be stockholders.
Stock books are required to be kept open daily during only three business
hours. The new law does not require any percentage of the subscriptions
for stock to be paid in cash. The proceedings for an increase or reduc-
tion of capital stock and for extension of corporate existence are simpli-
fied. Agreements are authorized for pooling stock or creating voting
trusts, and the issue of certificates of beneficial interests in lieu of stock
deposited with the trustee. The statute now provides that when a mort-
gage recites that it has been duly authorized by the holders of the requi-
site amount of stock, such recital shall be presumptive evidence that the
law has been complied with, and if the mortgage has been recorded for
one year and interest has been paid thereon, it becomes valid, even though
irregular in the method of its execution. This provision prevents the
security of underlying corporate bonds being invalidated and thereby pro-
tects the purchasers of such bonds. The foregoing are a few of the many
liberal changes made.

Broad charter powers.— In addition to these attractive modifications, it
must be remembered that the New York corporation laws have, since 1892,
been amended in several noteworthy respects.. In the first place, they
offer simplicity of organization. The corporation is created by making
and filing a certificate, and in this instrument the incorporators are given
great latitude in setting forth the purposes, objects and powers of the
company. A certificate of incorporation of a business corporation may be
drawn sufficiently broad, for example, to enable the proposed company
to carry on a department store, a- manufacturing business, real estate
business, general contracting, warehousing, buying, owning and conduct-
ing hotels and other lines of business, if desired. The certificate may also
provide for cumulative voting in the election of directors. It may author-
ize the corporation to purchase, acquire, hold and dispose of the stocks,
bonds and other evidences of indebtedness of any corporation, domestic
or foreign, and issue in exchange therefor its stock, bonds or other obli-
gations. In fact, the certificate may contain any other provision for the
regulation of the business and the conduct of the affairs of fhe corpora-
tion and any limitation upon its powers and upon the powers of its
directors and stockholders which does not exempt them from any ‘obli-
gation or from the performance of any duty imposed by law. At any
time after incorporation the purposes, objects and powers of the corpora-
tion may, by an amended certificate, be extended, enlarged, altered or
diminished.

Dissolution inexpensive.— The New York statutes not only offer sim-
plicity of organization and management and freedom from publicity in the
private affairs of the company, but also an.easy and inexpensive method
of dissolution by the consent of the holders of two-thirds in amount of
the stock of the corporation and ‘without resorting to court proceedings.

Limited liability. To sum up the situation, the remodeled corpora-
tion laws of the State of New York afford freedom from any dangers or
ambiguities that might lead to personal liability of stockholders, directors
and officers, and grant them limited liability to the fullest extent, and
even in regard to stock issued for property all questions of liability have
been eliminated, except in cases where there is proof of actual fraud, this
provision being identical with the New Jersey law, and, furthermore, a
legal certificate of incorporation can be drafted under the terms of the
Business Corporations Law of the State of New York, fully as broad,
liberal and comprehensive, for all practical purposes, as is permitted in
New Jersey or Delaware.

Foreign corporations pay higher tax rate.— After consideration of the
attractive and desirable features of the laws of New York as above dis-
cussed, the question of expense becomes one of paramount importance,
and in this connection the initial expense of incorporation and the
annual tax payments must both receive a full measure of attention. While
passing to this phase of the question, it must be borne in mind that the
tax for the privilege of organization of a corporation under the laws of
x ADVANTAGES OF INCORPORATION.

New York has been reduced to one-twentieth of one per cent. upon the
amount of capital stock authorized in the certificate of incorporation
(fifty cents on each one thousand dollars of capitalization), and that a
resident corporation, namely, one having its business and property within
the State, which seeks incorporation elsewhere, after paying the initial
organization fees in the foreign State, must also pay to the State of New
York a license fee or tax for the privilege of conducting its business here.
and such tax is at the rate of one-eighth of one per cent., computed uporr
the basis of the amount of capital employed within the State, being two
and one-half times greater than the organization tax required to be pait
by companies incorporated under the laws of New York. In regard to
any concern, the property of which is located within the State of New
York, there is no justification whatever, either from an economical point.
of view or otherwise, for incorporation in any other State. Its incorpo-
ration elsewhere is a profligate, senseless waste of money. Whatever
may be the amount that companies of this character pay in the way of
charges and taxes to other States, or fees to registration companies, is
just so much money paid without any equivalent in benefits or privileges.
for the expenditures thus made. As has been already stated, such a
company must not only niake all the statutory payments required in the
State of its incorporation, but it must also pay into the treasury of the
State of New York two and one-half times as much as though it were
organized under the laws of this State.

Comparative tables of tax expenditures.— In order to elucidate more-
clearly the loss sustained in seeking charters in other States, here follows
an illustration with a business corporation organized under the laws of
New Jersey and capitalized at $1,000,000, its property and business being:
located in the State of New York:

New Jersey corporation, capitalized at $1,000,000.

Tax for incorporation in New Jersey.........cc ce cence ee ee eee $200 00
Fees of New Jersey registration company................005: 50 00
Aviat! tax. 1 Nev WOTS6 Fy. ca ced de aoras obs eee oad awe ew 1,000 00.
Fees for filing copy of charter and designation in New York

SUATC: sou «ares Sesh ee We fhe d ees batiuguae ogeters e409 sine dss raees y 11 00
License tax in New York State........ 0... cece eee eee een eens 1,250 00-

Annual tax in New York State (based on 6 per cent. dividends), 1,500 00:

New Jersey corporation, total expense, first year.. ....... $4,011 00:

New York corporation, capitalized at $1,000,000.

If this company were incorporated under the laws of New York State,.
the bill of expenses 'would have been as follows:

Tax for incorporation in New York........ 2... ccc cece cece eee $500 00
Filing and recording fees in offices of Secretary of State and
County Clerk: ts. wei s oayo tie ¢ tan seaigaseend aac uaeibaie niente teress Seeks 13 00
Annual tax on capital employed in the State (based on 6 per
Cent, GIVIGENAS): eiicciccis.s oneimie s Hl gds oo RHEeee soweis 24s RESO E SE 1,500 00
New York corporation, total expense, first year..... é sialon $2,013 00

 

By incorporating in New York State the company is not required to
make any payment to New Jersey whatever, or to any registration com-
pany, and pays a lower license or organization tax in New York State,
and thereby, in organizing under the laws of New York. this comnany
would have saved at the end of the first year the sum of $1,998.

’
State or New York. xl

New Jersey $1,000,000 corporation, second year.

The million dollar New Jersey corporation’s second year’s experience
would read like this:

Annual tax in New Jersey.............. jhasacabn trove Maou etactieaure $1,000 00
Fee of a New Jersey registration company hi Geigvoilehs a tetei a Geena es, a-ae 50 00
Annual tax on capital employed in New York..............26. 1,500 00

New Jersey corporation, total expense, second year....... $2,550 00

New York $1,000,000 corporation, second year.

As a New York State corporation, its second year’s payment to the
State would be one item, viz.:
Annual tax on capital employed in State (based on 6 a ee cent.

dividends) ........... Sitionesieed: G:edeustinadl nocd a.bimne t@aneere eeeeeeee $1,500 00

Thus the saving the second year in favor of the New York corporation
would be $1,050; or a total saving during the first two years of $3,048 in
favor of New York State. At the end of the tenth year the saving would
amount to $11,448.

If a corporation capitalized at $2,000,000 were used as an example, the
sum saved by incorporation in New York State would be twice as much.

To demonstrate 'what the result would be in the case of a smaller cor-
poration, an illustration will be made with a company capitalized dt
$100,000. The first year’s experience of such a company, organized in
New Jersey and doing business in New York State, would be as follows:

New Jersey corporation, capitalized at $100,000.

Tax for incorporation in, New Jerseys ss isis siswd sc .ce eee nme ss $25 00
Fees of a registration company....... asBduavene aaaehtavestepecaner Soseaasanaaueee 50 00
Annual tax in New Jersey... ...... cece ee cece eee e eer eeees 100 00
License fee and tax in New York............ee ese c ee ec cen eeee 136 00

Annual tax in New York State (based on 6 per cent. dividends), 150 00

New Jersey corporation, total expense, first year.......... $461 00
New York corporation, capitalized at $100,000.

The first year’s payment to the State of the same company, if incor-
porated in the State of New York, would be as follows:

Tax for incorporation in New York. ........ 0... cee ee see eee eee $50 00
Filing and recording fees to Secretary of State and County
COREE ear a sc ns & wsianaseincaucnag oo ee glseet agar ghetecni OS Seed SNR Olgas 13 00
Annual tax (based on 6 per cent. dividends)...............0005 150 00
New York corporation, total expense, first year............ $213 00

Amount saved the first year by incorporating in New York State, $248.
Xil ADVANTAGES oF INCORPORATION.

New Jersey $100,000 corporation, second year.

During the second year this company, if a New Jersey corporation,
would pay as follows:

Annual tax in New Jersey........ 0. cece ec cece eect eee heise $100 00
Fee of a New Jersey registration company................2005 50 00
Annual tax in New York State....... 0.0... . cece eee cee cence ee 150 00

New Jersey corporation, total expense, second year........ $300 00

 

New York $100,000 corporation, second year.

As a New York corporation, its second year’s payment to the State
would be one item, viz.:

Annual tax (based on 6 per cent. dividends)....... Sidra’ wyueaetste aug $150 00

Saving for the New York company the second year $150, and at the
end of the tenth year the saving to this $100,000 corporation would aggre-
gate the sum of $1,598, being equivalent to a dividend of more than one
and a half per cent. on the entire capital stock.

In making the above figures the matter is not presented in as strong 2
light in favor of New York as might be, for the reason that in the illus-
trations the supposititious corporations are placed upon a 6 per cent.
dividend basis without making any allowances for the deductions and
exemptions from State taxation to which certain domestic corporations
are entitled.

New York State should be chosen as the domicile for corporations
of other States.— Thus far the effort has been largely restricted to illus-
trations to prove that New York is the most economical and favorable
State in which to incorporate an enterprise located -within the State.
Now it is proposed to make a statement along other lines and which in
the opinion of the writer needs very little argument, as it is self-evident
to any person who understands the system of State taxation of corpora-
tions in New Jersey, Delaware and New York. The point to be made is
that New York is a desirable State in which to incorporate companies
which are operating and employing their capital in other States. In New
Jersey a corporation is taxed annually upon its entire capital stock issued
and outstanding, no matter whether the capital is employed in that State
or elsewhere. The same rule prevails in Delaware. In New York the
tax is computed only upon the amount of capital employed within the
State; therefore, if a corporation is organized under the laws of New
York and employs its capital elsewhere, the State Comptroller cannot
collect any tax whatsoever from such corporation. On this account
several of the large mining companies carrying on operations in the
Western States and Territories have been organized under the laws of
New York State, and thus have no annual franchise tax to pay. If a
$1,000,000 mining company to operate in, say Arizona, were incorporated
in the State of New York the incorporation expenses would be $513, a
trifle higher than in New Jersey, where incorporation expenses would be
$250; but New York State would exact no annual franchise tax. On the
other hand, if this mining company were organized in New Jersey, it
would be obliged to pay into the treasury of that State $1,000 annually,
merely for the sake of being a New Jersey corporation, besides paying
there $50 per year to a registration company, and these expenditures
‘would bring no greater benefits or advantages than could be obtained
by incorporation under the laws of the State of New York, where no
annual tax would be imposed upon such corporation.

Equitable State taxation.— A few weeks ago the writer of this article
addressed several representatives of corporations at the rooms of the
Board of Trade and Transportation in New York city during which he
characterized the annual franchise tax of the State of New Jersey as
State or New Yor. Xill

absolutely unjust, for which he was criticised in the editorial columns
of a New York newspaper. He adheres to the position then taken and
desires to answer the argument touching the ease with which the annual
franchise taxes in New Jersey may be computed in contradistinction to
what is fallaciously termed the cumbersome system of the Sfate of New
York. To the person who has given the annual franchise tax law of the
State of New York any fair amount of study it is not cumbersome or
complicated. It certainly does provide for some exemptions, deductions
and appraisals, merely because it was desired to make the tax as fair
and equitable as possible. The New York tax, like that of New Jersey,
is a franchise tax, but it is based upon and measured by the amount
of capital of the corporation employed within the State, and in case the
company is conducting an unprofitable business, and, on that account
_unable to pay dividends, the capital of the company is appraised. and
the amount of its indebtedness deducted, so that its franchise tax is
measured by what, it actually possesses within the State. Now, in
regard to the New Jersey annual franchise tax. It is claimed that this
tax being fixed at one-tenth of one per cent. on the issued and outstanding
stock, up to and including the sum of $3,000,000, regardless of the location
of the property of the company, is a simple method. It certainly is a
simple method. It is more than that, it is a combination of simplicity
and injustice. In New Jersey a corporation pays a franchise tax annually
into the State treasury, whether it has assets within the State or not. In
striking contrast to such method a corporation organized under the laws
of the State of New York and having its assets employed elsewhere pays
no annual franchise tax whatever to the State, and in case a portion of
its capital is employed within the State it is required to pay a tax only
upon that portion of its capital thus employed. Possibly the annual
franchise tax of New York State is not quite so simple in the method of
its computation as that of New Jersey, because New York has aimed to
measure the value of the franchise exercised by the corporation within
the State upon the fair and equitable basis of the amount of capital
actually employed therein, while New Jersey has made no attempt to
measure the value of the franchise by using the amount of the property
of the cotporation within the State as a basis of measurement. It has
established a fixed and arbitrary basis, and if a corporation has been
organized under the laws of New Jersey with a capitalization of $1,000,000,
all issued and outstanding, it is required to pay an annual tax of $1.000.
even though it has no capital employed within the State. If ‘all of its
capital of $1.000,000 is employed within that State it pays the same annual
tax of $1,000, and if only $100,000 of its capital is employed ‘within that
State it likewise pays the same annual tax of $1,000, but as heretofore
stated, a corporation organized under the laws of the State of New York
and having no capital employed within the State pays no annual tax
whatsoever, and if it has capital to the extent of $100,000 employed
within the State it pays a tax only upon the $100,000, notwithstanding
that it has an issued outstanding capital stock of $1,000,000. Even if it
were to be conceded that the critics are correct in their claim that the
annual tax law of the State of New York is not entirely free from
ambiguity, why should that be considered sufficient reason for the organi-
zation of a corporation outside the State? If the corporation seeks its
corporate rights in a foreign State it does not thereby escape any taxes
imposed by the State of New York. It is subjected to precisely the same
annual tax as a domestic corporation, provided it is carrying on business
and has its capital employed within the State, and besides pays a license
tax two and one-half times greater than the organization tax imposed
on domestic corporations. On the other hand, if a corporation has its
capital and business located in several different States there is every
possible argument in favor of its incorporation in New York State, because
here it is taxed upon a fair and equitable basis, as above set forth, while
in New Jersey it is taxed upon its entire outstanding capital stock, regard-
less of the location of the plant used in carrying on its business operations.
xiv ApvantTaGEs OF INCORPORATION.

Attachments against foreign corporations.— Corporations of other
States carrying, on business in this State are necessarily subjected to
many inconveniences not incurred by domestic corporations. Under New
York laws, as in other States, in the event of a suit being brought against
a foreign corporation, a warrant of attachment may be issued the moment
the summons is served and a levy may be made on any property, claim o"
demand owned by such corporation in the State. The claim upon which
the action is based may be unjust and easily disproved on a trial of the
case, yet it is in the power of the person claiming to be a creditor to
place the sheriff in charge of the property of the corporation and thereby
work irreparable injury to its credit and reputation. During the panic
years the downfall of many solvent foreign corporations capitalized by
citizens of New York State, and doing business wholly within the State,
was precipitated by the facility with which attachments are obtainable
agairst such corporations. The right to apply this remedy is a constant
and dangerous threat to a foreign corporation of weak financial standing
and a source of annoyance to a wealthy corporation sutticient in itself to
be seriously weighed and considered.

Public confidence.— Corporations organized under the laws of New
York have always enjoyed a larger measure of public confidence than has
been accorded those from other States. They have a higher standing and
better credit in the commercial world. New York State occupies a pre-
eminent position in the financial centers of the old world, and the bonds,
stocks, and other securities of corporations organized under its laws find
a better market both at home and abroad. There are numerous other
matters pertaining to the State of New York as a vantage-ground for the
formation of corporations in preference to other States that might be com-
mented upon for the purpose of sustaining the contention of the writer
that New York is the most favorable State in which to incorporate com-
panies of all classes, whether the capitalization is in the milHions or only
expressed in thousands, but the limitations of this article will not permit.
An effort has been made in the foregoing to briefly set forth in plain and
non-technical language a few of the salient features of these laws. In
conclusion the writer ventures the opinion that the next five years will
prove to be a notable epoch in the history of corporations in this country,
because of the fact that it will witness a reorganization under the attrac-
tive laws of the State of New York of a vast number of corporations
which are now existing under charters obtained in other States.
TABLE OF CONTENTS.

Nore.— For the purpose of finding any particular provision, reference
should be had to the index.

Page.
The General Corporation Law. ...... cc cce eee cece ee eee eens i-61
Schedule of Laws Repealed................266- 62-73, 27-278, 762, 866
The Organization Tax LaW........ cece cece cece ene ee eeeee oe 3
« able of Amounts Payable for Organization........ aaa W653
License Tax upon Foreign Corporations.......... Sisisneusee levees Sisdtere 16, 17
Fees of Secretary of State and County Clerk............ seseee 78,79
Information as to Transmission of Papers and Payments... 19
The Stock Corporation Law............ a aidvovale auseats Sear sees. 80-182
State Anti-Trust Law..............00. Stee eesenwesseeesess «=©6OTETOL
Federal Anti-Trust Law.............0+5 eae veceeeeees 101-108
The Business Corporations Law.. Saree eiac Bdaiediararelateld Siayalabiele OS 183-207 *
The Transportation Corporations Law.............ceeeseceeees 209-270
Ferry Corporations ....... 0... cece ccc e ec ee enc ceee seeeccess 209-214
Highway Law, Provisions Affecting....... seseeevawns 213) 214
Navigation Corporations ..... sel Bed ylaroudi d“eRae yaaa ceo avenaiiarts eecesees 215-217
Stage Coach Corporations .............0..eeeeee eisai tae 217-219
Tramway Corporations ......... ccc cece een enone sectuswece 219, 220
Pipe Line Corporations...........-02cccececceccereeseaces 221-229
Gas and Electric Light Corporations............. Se ae Sais 229-239
Water-works Corporations ....... rena itoietals secccccesees 239-245
Telegraph and Telephone Corporations........... cevececs. 245-251
Turnpike, Plank-road and Bridge Corporations... ceceeeees 252-270
Laws Repealed by.......-.- ssc cece eececneneceee tawaeveane 201-278
Miscellaneous Acts Applicable to Transportation Corporations.. 274-282
The Railroad Law ....... Stange idles Gcarncee aya sar euuiee eee Bika dra aeeeng ides ater ehe 283-456
Labor Law Provisions. .......... cece ccec es cecccsnees ce eeeye 488493
The New York Rapid Transit Act........... as chia ety coeeeeess 501-563
Lien Law Provisions...... b Satageds Wa papeussa Soe ecausger? a eccte ese rorerkeusne tareieye 493, 494
Miscellaneous Railroad Laws...............++4- see tieevecsecs 457=499
The Interstate Commerce ACt............eecse0e sts Goayavander’ see. 565-589
Miscellaneous Statutes Affecting Corporations Generally....... 590-608 ~-
Penal Code Provisions. ......... cc cseee cece ce ener ences seeeee. 609-640 °
Criminal Code Provisions. ........+csccscccasccccccecsecvesces 641-645 /

XV
Xvi TasLe oF ContTENTS.

Page.
Civil Code Provisions.........ccccecccsccecccccnseucuecacces we. 646-665.
The Condemnation Law................ Bins. tv Na eats a Sus eyshavains 666-691
Dissolution and Receivers.......... siluate eg 'a'aia'a:wealevahaiainians alate gi nace . 692-737 «
Constitutional Provisions ....... eee ee saree 738-746. «
The Statutory Construction Law....... Wgiearidia wastage ae eke 747-762 °
‘Taxation of Corporations, State Laws Regulating....... seeseee 763-862 *°
Joint-Stock Association Law.........ccceeceeeeeeeeeceseetentes 863-866
Commerce and Labor, act relating to.......... bese ee eneneeraee 602-608 :*
HOPMS ss: --enwn she Btls Kalntia bode gnieg wig da 4a phandcaiad eased hee e 867-1134 *
Index to Forms........... Sivewienaneiers es eiaal wiardigateteeiates Siwleigndiodnenesis « 1135-1142

General Index. . . ......cccccccccecceccccecccceccuceessscsecess 1143-1189
THE GENERAL CORPORATION LAW.

 

Laws or 1890, Cuaprer 563, Enritizp: “Aw Act iv Re
LATION To Corrorations, ConstrruTine Onaprer Turety-rive
oF THE GunzRat Laws,” as AMENDED To THE CoMMENCEMENT
or THE LzgtsLativeE Session or 1907.*

 

~

THe GenrraL Corporation Law.

SEcTION 1. Short title.. =
2. Classification of corporations. t as
3. Definitions.
4. Qualifications of incorporators. i
5. Filing and recording certificates of incorporation.
6. Corporations of the same name prohibited,
% Amended and supplemental certificates.
8 Lost or destroyed certificates.
; 9. Certificate and other papers as evidence.
10. Prohibition of other than statutory powers.
11. Grant of general powers.
12. Limitation of amount of property of a non-stock core
poration.
13. Acquisition of additional real property.
14. Acquisition of property in other states.
15. Certificate of authority of a foreign corporation.
16. Proof to be filed before granting certificate.
17. Acquisition of real property in this state by certain fore
eign corporations.
18. Acquisition by foreign corporations of real property in
this state upon judicial sales. :
19. Prohibition of banking powers.
2%. Qualification of members as voters,
21, Proxies.
22. Challenges.
23. Effect of failure to elect directors.

\

 

*The General Corporation Law (L. 1890, ch. 563) was passed June 7, 1890, to take effect
May 1, 1891. By the Laws of 1892, chapter 687, passed May 18, to take effect immediately,
said law was amended and entirely re-enacted, and has since been further amended, as appears
on the succeeding pages. :
Ssorr TItce.

y

 

The General Corporation Law, § 1.

 

Sxction 24. Mode of calling special election of directors.
25. Mode of conducting special election of directors.
26. Qualification of voters and canvass of votes at special
elections.
27. Powers of Supreme Court respecting elections. _
28. Stay of proceedings in actions collusively brought.
29. Quorum of directors and power of majority.
30. Directors as trustees in case of dissolution.
31. Forfeiture for non-user.
32. Extension of corporate existence.
33. Conflicting corporate laws,
34, Laws repealed.
35. Saving clause.
36. Construction.

87. Law revived.

38. When notice or lapse of time unnecessary.
39. As to acts of directors.

40. Alteration and repeal of charter.

41. Political contributions prohibited.

Sxorron 1. Short title. — This chapter shall be known as the
general corporation law.
(Former section 1, L. 1890, ch. 563, re-enacted by L. 1892, ch. 687.)

Neither the General Corporation Law nor the Stock Corporation Law
contains the provisions for the formation of corporations. The General
Corporation Law embodies the general provisions which are applicable to
corporations of every kind organized under the laws of the State of New
York, whether stock or non-stock corporations, unless specific exceptions
are made, as, for instance, in section 5 of this law, in relation to religious,
cemetery, monied, municipal or fire department corporations. The com-
missioners of statutory revision found in each of the numerous laws for
the creation and regulation of different classes of corporations many pro-
visions common to all such laws, which, being almost identical in phrase.
ology, served to make the statutes of which they were component parts
cumbersome and unwieldy without apparently serving any good purpose.
To illustrate: Each act authorizing the organization of new corporations
provided the same method of filing and recording certificates, an unvary-
ing reproduction of the general powers contained in the Revised Statutes,
and other matters in the line of uniform corporate legislation. Therefore,
pursuant to the plan of the revisers, these numerous provisions, so
frequently re-enacted in different corporation acts and applicable to all
corporations, except as stated, were consolidated and grouped into one
general act, entitled the General Corporation Law, the full text of which
appears on these pages. The Stock Corporation Law, comprising the pro-
visions common to stock corporations only, is the result of the same
method of generalization, so that in the several laws authorizing the
formation of various kinds of corporations having capital stock, to wit:
The Railroad Law, the Banking Law, the Insurance Law, the Trans-
portation Corporations Law (telegraph, gas and electric light,, water-
works, pipe-line, navigation, ete., corporations) and the Business Cor-
Cuassirication oF CoRPoraTIONs. 3

 

The General Corporation Law, § 2.

 

porations Law, only those matters have been inserted which are peculiar
to the particular class provided for, all other provisions applicable to cor-
porations formed under either of said laws being found in the General
Corporation Law and the Stock Corporation Law.

The provisions of the General Corporation Law and the Stock Corpora-
tion Law are also applicable to corporations heretofore organized under
either of the general laws for the formation of corporations which were
repealed in 1890 and 1892, as well as to corporations organized under
special acts. (Gen. Corp. Law, § 36.)

§ 2. Classification of corporations. — A. corporation shall
be either,

1. A municipal corporation,
2. A stock corporation,
3. A non-stock corporation, or iz
4, A mixed corporation. .
‘A stock corporation shall be either,
1. A monied corporation,

2. A transportation corporation, or
8. A business corporation.

‘A non-stock corporation shall be either,
1. A religious corporation, or
2. A membership corporation.

‘A mixed corporation shall be either,*
1. A cemetery corporation,
‘ 2. A library corporation,
8. A co-operative corporation,
4. A board of trade corporation, or
5. An agricultural and horticultural corporation.

A transportation corporation shall be either,
1. A railroad corporation, or
2. A transportation corporation other than a railroad
corporation.

A membership corporation shall include benevolent orders and
fire and soldiers’ monument corporations.
_A reference in a general law to a class of corporations described

 

* After the foregoing section was enacted the plan of having a ‘*mixed corporation law was
abandoned by the Commissioners of Statutory Revision, and corporations which are here classifivd
as ‘“‘mixed corporations’? have since been provided for in the Membership Corporations Law.
(Ch. 559, L. 1895.) The plan of including benévolent orders under membership corporations was
also abandoned, and such orders now come wen the scope of the Benevolent Orders Law.
(Ch. 377, L. 1896.)
4 Derintrions.

 

The General Corporation Law, § 3.

 

in accordance with this classification shall include all corporations
theretofore formed belonging to such class.
(New provisions, added by L. 1892, ch. 687.)

This section discloses the plan under which the corporation laws are
revised.

§ 3. Definitions.—1. A municipal corporation includes
county, town, school district, village and city, and any other terri-
torial division of the State established by law with powers. of local
government.

2. A stock corporation is a corporation having a capital stock
divided into shares, and which is authorized by law to distribute to”
the holders thereof dividends or shares of the surplus profits of the
corporation. A corporation is not a stock corporation because of
having issued certificates called certificates of stock, but which are
in fact merely certificates of membership and which is not author-
ized by law to distribute to its members any dividends or share of
profits arising from the operations of the corporation.

3. The term non-stock corporation includes every corporation
other than a stock corporation.

4, A moneyed corporation is a corporation formed under or
subject to the banking or the insurance law.

5. A domestic corporation is a corporation incorporated by or
under the laws of the State or colony of New York. Every corpura-
tion which is not a domestic corporation is a foreign corporation,
except as provided by the code of civil procedure for the purpose
of construing such code.

6. The term directors, when used in relation to corporations,
shall include trustees or other persons, by whatever name known,
duly appointed or designated to manage the affairs of the
corporation.

7. The term, certificate of incorporation, shall include articles |
of association or any other written instruments required by law to
be filed, to effect the incorporation of a corporation, including a cer-
tified copy of an original certificate of incorporation filed for such
purpose in pursuance of law.

8. The term, member of a corporation, shall include every per-
son having a right to vote at a meeting of the corporation for the
election of directors, other than a person having a right to vote
only upon a proxy.
DerFinirions. 5

 

The General Corporation Law, § 3.

 

9. The term, office of a corporation, means its principal office
within the State or principal place of business within the State, if
it has no principal office therein.

10. The term, business of a corporation, when used with refer-
ence to a non-stock corporation, includes the operations for the con-
duct of which it is incorporated. 5

11. The term, corporate law or laws, when used, in any law
forming a part of the revision of the general laws of the State of
which this chapter is a part, means the general laws of this State
relating to corporations included in such revision.

(Former section 2, L. 1890, ch. 563, as amended by L. 1892, ch. 687, and
ZL. 1895, ch. 672.)

The amendment of 1895 took effect May 14. By this amendment the
reference to mixed corporations was dropped, a clearer definition of a
stock corporation was inserted in paragraph 2 and of a foreign corpora-
tion in paragraph 5, and there was eliminated from paragraph 9 the
requirement that “ the office of a stock corporation shall be in the county,
town or city in which its business is principally carried on.”

Paragraph 6, in relation to directors and trustees, appears to be merely
a definition of terms, and to make the word, directors, when used in these
laws, applicable to corporations heretofore formed, in which the man-
aging officers are designated as trustees.

Under the definition in paragraph 2, a railroad corporation is, of course,
a stock corporation. (Oelberman v. N. Y. & Northern R. BR. Co., 77
Hun, 332.) 7 ‘

For general provisions applicable to all stock corporations, see the
Stock Corporation Law.

For provisions which are specially applicable to business corporations,
and for the formation thereof, see the Business Corporations Law, post.

For the provisions which are specially applicable to, and regulating the
formation of ferry corporations, stage-coach corporations, tram-way cor-
- porations, pipe-line corporations, gas and electric-light corporations, water-
works corporations, telegraph and telephone corporations, navigation cor-
porations, turnpike, plank-road, and bridge corporations, see the Trans-
portation Corporations Law, post.

' For provisions specially applicable to railroad corporations, ‘and for
the formation thereof, see the Railroad Law, post.

For provisions specially applicable to monied corporations and the
formation thereof, see the Banking Law (L. 1892, ch. 689) and the Insur-
ance Law (L. 1892, ch. 690).

The statutes regulating municipal corporations are not within the scope
of this work, which is devoted to what are generally termed private
eorporations, or corporate bodies formed by the voluntary agreement of
their members. ji

Under the foregoing section the terms “ principal office’? and “ principal
place of business” are synonymous when used in respect to corporations
\
6 QUALIFICATIONS OF INCORPORATORS.

 

The General Corporation Law, § 4.

 

organized under the laws of this State. (People ex rel. Knickerbocker
Press vy. Barker, 87 Hun, 341; aff’d, 147 N. Y., 715.)

A corporation created by act of Congress, if it is located in the State of
New York alone, is a domestic corporation, but it derives its powers and
faculties from the sovereign creating it, and from no other source, and it
is subjected to whatever limitations and disabilities grow out of the
laws of the United States. (McLanahan v. Mo t, 73 Hun, 131.)

The principle, that acts in the nature of ae proceedings under
color of organization may constitute a corporation de facto, is not appli-
eable as between the parties to the proceedings, who have knowledge of
the defects. (Childs v. Smith, 55 Barb., 45; 88 How. Pr., 328; reviewed,
46 N. Y., 34)

The right to be a corporation is a distinct, independent franchise, com-
plete within itself, having no’ necessary connection with other distinct
franchises, which are the subjects of legislative grants, and which may
or may not be given to corporations once created, as well as to natural
persons, as to the legislature may seem advisable. (Southern Pacific R.
Co. v. Orton, 32 Fed. Rep., 457.)

As to monied corporations see People v. Board of Supervisors of New
York (16 N. Y., 424; Tallmage v. Pell, 7 N. Y., 328).

A corporation is deemed a resident of the county where its principal
business office is located. (Conroe v. The Nat. Pro. Ins. Co., 10 How.
Pr., 405; Rossie Iron Works v. Westbrook, 36 St. Rep., 555.)

A corporation is purely artificial, having no natural or inherent power,
but only such as its charter confers. The charter ‘ef a corporation formed
under general ‘laws is the statute under which it was organized. Upon
filing the certificate of incorporation it comes into existence with power
to do only that which is expressly or impliedly authorized by the statute.
(People v. Ballard, 134 N. Y., 269.)

§ 4. Qualifications of incorporators.— A certificate of
incorporation must be executed by natural persons, who must be
of full age, and at least two-thirds of them must be citizens of the
United States and one of them a resident of this State. This sec-
tion shall not apply to a corporation formed by the reizicorporation
or consolidation of existing corporations, or to the reorganization
of a corporation upon the sale of the property and franchises of a
previously existing corporation or otherwise.

(New provisions, added by L. 1892, ch. 687, as amended by L. 1895,
ch. 672.)

Prior to the last amendment, which took effect May 14, 1895, at least
a majority of the persons who signed a certificate of incorporation were
required to be residents of this State. Now one resident is sufficient.

The terms of the foregoing section preclude corporations, co-partner-
ships and minors from acting as incorporators. It also prevents the
formation of corporations by persons acting in a representative capacity.

This section materially changes the qualifications heretofore required
Fitine anp Recorpine Crertiricates oF INcoRPoRATION. q

 

The General Corporation Law, § 5.

 

of incorporators. A majority of former acts provided that all the incor-
porators be citizens of the United States, and a majority of them citizens
and residents of this State.

The incorporators cannot delegate the power to agree upon the terms
of organization. (In re N. Y., L. E. & W. R. R. Co., 35 Hun, 220; affirmed
99 N. Y., 12.) :

Promoters of a corporation may agree as to the management thereof
before incorporation. (King v. Barnes, 109 N. ¥., 267.) j

Each member of a firm, engaged under the firm name in organizing a
corporation, is liable for the misrepresentations and concealments of the
others, committed in promoting the enterprise. (Walker v. Anglo-Am.
M. & T. Co., 72 Hun, 334.)

Persons engaged in organizing a corporation, who induce others to
subscribe for stock, by issuing statements and prospectuses, are liable
for damages if they make material misrepresentations, or conceal
material facts, to the injury of those whom they induce to subscribe,
and this liability extends to all those who are induced by their agents to
subscribe for shares. (Walker v. Anglo-Am. M. & T. Co., 72 Hun, 334;
Brewster v. Hatch, 122 N. Y., 349; Morgan v. Skiddy, 62 N. Y., 319;
Getty v. Devlin, 54 N. Y., 403, 70 N. Y., 504.) ;

A purchaser of shares from a stockholder in an existing corporation
had no interest in the application of the money paid therefor, but it is
different with one who agrees to subscribe for shares in a corporation to
be created. (Walker v. Anglo-Am. M. & T. Co., 72 Hun, 334.)

After accepting the benefits under a plan adopted by its promoters, the
corporation becomes subject to the terms of the plan. (Rogers v. New
York and Texas Land Co., 134 N. *Y., 197.)

§5, Filing and recording certificates of incorporation. —
Every certificate of incorporation including the corporate name or tithe
and every amended or supplemental certificate, and every certificate
which alters the provisions of any certificate of incorporation or any
amended or supplemental certificate, hereafter executed shall be in
the English language, and except of a religious, cemetery, moneyed,
municipal or fire department corporation, shall be filed in the office of
the secretary of State, and shall be by him duly recorded and indexed
in books specially provided therefor, and a certified copy of such
certificate or amended or supplemental certificate with a certificate
of the secretary of State of such filing and record, or a duplicate
original of such certificate or amended or supplemental certificate
shall be filed and similarly recorded and indexed in the office of the
clerk of the county in which the office of the corporation ig to be lo-
cated, or, if it be a non-stock corporation, and such county be not
determined upon at the time of executing: the certificate of incorpo-
ration, in such county clerk’s office as the judge approving the certifi-
cate shall direct. All taxes required by law to be paid before or upon
incorporation and the fees for filing and recording such certificate
8 Fixing anp Recorpine CERTIFICATES OF INCORPORATION.

 

The General Corporation Law, § 5.

 

must be paid before filing. No corporation shall exercise any corporate
powers or privileges until such taxes and fees have been paid.

(Former section 3, L. 1890, ch. 563, as amended by L. 1892, ch. 687;
L. 1895, ch. 672, and L. 1902, ch. 285.)

By the amendment of 1895 the provision was inserted requiring certifi-
cates to be in the English language. The words, “ including the corpo-
rate name or title,” were inserted by L. 1902, ch. 285.

Under the above section an original certificate must be filed in the
office of the Secretary of State, and either a certified copy thereof or a
duplicate original in the office of the county clerk.

The act relative to the tax payable to the State Treasurer for the
privilege of organization and for increasing the capital stock of corpora-
tions, and the statutes prescribing the fees payable to the office of the
Secretary of State and to county clerks appear, post.

The Secretary of State does not require the certificate of a county
clerk as to the authority of a notary public or other officer taking
an acknowledgment in this State of the execution of a corporation
certificate to be filed in his office, but if a duplicate ef such paper is
to be filed in a county other than the one in which such notary or other
officer is acting it is customary to attach the county clerk’s certificate
authenticating the act of such officer.

The formation of a corporation by a firm when financially embarrassed
and only two years before assignments for the benefit of creditors were
made by the firm, does not, in itself, afford ‘evidence of intent to
defraud the firm creditors, there being no evidence showing a connec-
tion between these two acts. (First Nat. Bk. v. Wood, 86 Hun, 491.)

Between a corporation de facto and its officers.a relation exists which
will be recognized as effectual to enable them through such relation to
justify the exercise of their functions in the management and operation,
of its business, and for that purpose it is, as to third persons, no less
effectual than a corporation de jure. (Lamming v. Galusha, 81 Hun, 247; ©
aff'd, 151 N. Y., 648.)

Where a corporation, organized under an uhconstitutional act,
assumed and exercised corporate powers thereunder, it became a cor-
poration de facto, if not de jure, and it required the judgment of a
competent court or an express act of the Legislature to terminate its
existence. (Coxe v. State of New York, 144 N. Y., 396.)

The Secretary of State is not required to file a certificate unauthor-
ized by the act. The right to file a certificate, by which a corporation
is to be ipso facto created, only exists in behalf of those who bring
themselves within the terms of the act. (Peo. ex rel. Blossom vy. Nelson,
46 N. Y., 477; Peo. ex rel. Davenport v. Rice, 22 N. Y¥. Supp., 631;
id., 68 Hun, 24; id., 52 St. Rep., 50.)

The Secretary of State will not be compelled to file the certificate of
incorporation of a company to be formed as a social organization when
its purposes are in reality those of a business corporation. (People
ex rel. Davenport, supra.)

 

Chapter 531, Laws of 1906, supplementing section 5 of this law, so far
as said section relates to non-stock corporations, reads as follows:

Section 1. Whenever under any law now or heretofore in force the
certificate of incorporation of any corporation other than a stock
corporation was or is required to be filed in more than one public office,
a certified copy of such certificate so filed in any one of such public
offices may be filed in such other office with the like effect as if the
original had been duly filed therein, provided, however that no rights
accrued prior to the filing of such copy shall be impaired or affected
thereby, provided also, that such filing of a copy shall not cause a
duplication or similarity of corporate names in violation of section six
of the general corporation law.
Firing anp Recorpinc Crerriricares or [NcurPoRATION. 9

 

The General. Corporation Law, § 5.

 

In case the Secretary of State refuses to file a certificate and the party
‘presenting the same feels aggrieved, the remedy is by mandamus under
the Code of Civil Procedure. (People ex rel, N. Y. Phonograph Co. v.
Rice, 128 N. Y., 591, affirming 57 Hun, 486; People ex rel. Hickemeyer
Field Co. v. Rice, 1388 N. Y., 614; id., 51 St. Rep., 93.)-

If it is desired to restrain the Secretary of State or county clerk from
filing a certificate, the proceedings should be by injunction. An injunc-
tion order against the Secretary of State can only be granted by the
Supreme Court at a term‘thereof, sitting in the third judicial department.
(See Code of Civil Procedure, section 605, post:)

Where a peremptory mandamus is applied for, which by its terms .acts
as a restraint upon State officers engaged in, or about to perform a duty
imposed by statute, and it is sought for to be used as a restraining order
-er injunction, the limitation upon the granting of such an injunction by
section 605 of Code of Civil Procedure applies; that is, it “shall not be
‘granted, except by the Supreme Court at a term thereof, sitting
in the. department in which the officer or board is located, or the duty
required to be performed.” (People ex rel. Derby v. Rice, 129 N. Y., 461.)

Subscriptions to the stock of a de facto corporation are binding upon
incorporators. (Dorris v. French, 4 Hun, 292; Eaton v. Aspinwall, 19
N. Y., 119; Dewitt v. Hastings, 69 N. Y., 518; L. O. R. R. Co. v. Munson,
16 N. Y., 451. See, also, Buffalo, etc., R. Co. v. Gifford, 87 N. Y¥., 294;
Dorris v. Sweeny, 64 Barb., 636; id., 60 N. Y., 463.)

Corporations organized under the Banking Law are required to file
duplicate certificates of incorporation, one in the office of the clerk of the
county where located, or the principal office of the corporation is to be
‘situated, and the other in the office of the Superintendent of Banks. See
Banking Law (L. 1892, chap. 689), sections 40, 100, 150, 170, 180, 210.

Corporations organized under the Insurance Law are required to file
‘their certificates of incorporation only in the office of the Superintendent
of Insurance, except in the case of town and county co-operative insur-
ance corporations, which are required to file their certificates in the
office of the town or county clerk and in the office of the Secretary of
State. See Insurance Law (L. 1892, chap. 690), sections 70, 110, 150, 170,
200, 230, 250, 263.

An organization such as will create a corporation de jure, does not
exist until the certificate of incorporation is filed in accordance with
law. (Childs v. Smith, 46 N. Y., 34; id., 38 How. Pr., 328.)

It would seem that the filing of the certificate in the office of the
Secretary of State is sufficient to effect incorporation; and an omission
‘to. file the duplicate in the office of the county clerk would not vitiate
‘the incorporation so as to render the members partners as between
themselves. (Raisbeck v. Oesterricher, 4 Abb. N. C., 444. See, also,
Western Transportation Co. v. Scheu, 19 N. Y., 408; Oswego Starch
Factory v. Dolloway, 21 N. Y.,. 449; Union Steamboat Co. v. City of
Buffalo, 82 N. Y., 351; Jessup v. Carnegie, 80 N. Y., 441; Eaton v.: Aspinwall,
19 N. Y., 121; affirming 3 Abb. Pr., 417; see also Card v. Moore, 68 App. Div.,
327, and cases therein cited.) :
10 CorPoRATE NAME.
The General Corporation Law, § 6.

= § 6. Corporate names. — No certificate of incorporation of a
_proposed corporation having the same name as a corporation authorized.
‘to do business under the laws of this state, or a name so nearly re-
sembling it as to be calculated to deceive, shall be filed or recorded in.
any office for the purpose of effecting its incorporation, or of authoriz~
ing it to do business in this state. A corporation formed by the rein-
corporation, reorganization or consolidation of other corporations or
upon the sale of the property or franchises of a corporation, may have
the same name as the corporation or one of the corporations to whose
franchises it has succeeded. No corporation shall be hereafter organ-
jzed under the laws of this state, with the word trust, bank, banking,
insurance, assurance, indemnity, guarantee, guaranty, savings, invest-
-ment, loan or benefit as part of its name, except a corporation formed.
‘under the banking law or the insurance law. i

(Former section 4, L. 1890, ch. 563, as amended by L. 1892, ch. 687; L.
1895, ch. 672; L. 1900, ch. 704; L. 1902, ch. 9.)

Héretofore a domestic corporation could be formed with a name resembl-.
ing that of a foreign corporation, and a foreign corporation was permitted.
to obtain a certificate of authority to do business within the State, even.
though its name conflicted with that of another foreign corporation pre-
viously authorized to do business in the State, but the amendment of 1902:
broadens the prohibition so as to prevent both of such infringements upon
the name of any foreign corporation that had theretofore received a certifi-
cate of authority. ‘

When the term of existence of a corporation has expired by limitation,.
the same corporate name may be used by a new corporation,- unless such
name has been continued in use by a co-partnership succeeding the defunct
corporation and having a property interest in the name.

A corporation cannot acquire the name of one of its incorporators, and.
make use of it to deceive the public, on the ground that such is the true
name of one of its incorporators. (De Long v. De Long Hook & Eye Ca,
89 Hun, 399.)

A corporation cannot, in legal proceedings, be properly designated by
two names, and cannot, except a8 authorized by law, change its own name,
either directly or by user, nor can the public give it a name other than.
that of its creation, by which it can be recognized in judicial proceedings..
(Matter of U. S. Mortgage Co., 83 Hun, 572.)

A corporation which has for years used the corporate title “ Roy Watch.
Case Co.” is entitled to enjoin a rival and lately constituted corporation
from employing the name ‘“‘Camm-Roy Watch Case Co.” (Roy Watch
Case Co. v. Camm-Roy Watch Case Co., 28 Misc., 45.)

Where an individual sells his business to a corporation, including the
good will, with the sole right to use his name, the corporation will be
entitled to an injunction restraining such individual from receiving mail
addressed to his name which relates to goods sold by the corporation.
(Dr. David Kennedy Corpn. v. Kennedy, 36 App. Div., 599.)

The use of the trade-mark, “The Little Antique Shop,” is an infringe-
ment upon the name, “The Little Shop.” (Crawford v. Laus, 29 Misc.,
248.) 3

The law protects the right of a man to use his own name in his own
business, even if such use injures another who has established a prior
Amendment of 1907. ‘

 

(Insert facing page 10, White on Corporations, 6th edition.)

Laws of 1907, chapter 115, amends the General Corporation Law, section
6, by adding the word “title” to the enumeration of words prohibited from
use in the name of a business corporation.

1
o

CorPorATE NaMEs. 11

 

The General Corporation Law, § 6.

 

business of the same kind and gained a reputation which goes with the
name. (Chas. S. Higgins Company v. Higgins Soap Company, 144 N. Y.,
462, revsg. 71 ‘Hun, 101; De Long v. De Long Hook & Hye Co., 7 App.
Div., 33; Meneely v. Meneely, 62 N. Y., 467.)

The name “The Tuerk Water Meter Company” is an infringement of
the name “ The Tuerk Water Motor Company.” (Tuerk Hydraulic Power
Co. v. Tuerk, 92 Hun, 65.) ;

The name “ Buffalo Commercial Bank” does not infringe upon “ Bank
of Commerce in Buffalo.” (In re Bank of Aitica, 35 St. Rep., 708, 12 N.
Y. Supp., 648.)

“The S. Howes Co.,’ engaged in manufacturing grain cleaners, is
entitled to enjoin ‘“ The Howes Grain Cleaner Co.’ from using the name
“ Howes.” (The S. Howes Co. v. Howes Grain Cleaner Co., 24 Misc., 83,
and cases therein cited; same case, 19 App? Div., 625.)

Where a foreign corporation does business within the State without.
complying with the statutes, and’ a domestic corporation, subsequently:
organized, innocently adopts the same name the latter will not be
restrained from using such name. (American Tartar Co. v. American
Tartar Co., 57 App. Div., 411.)

A corporation duly formed under the laws of this State has an absolute
legal right to reincorporate under the corporate name adopted by it under
its original incorporation. (People ex rel. U. S. Grand Lodge of Order
of Brith Abraham v. Payn, 161 N. Y., 229, aff’g 43 App. Div., 621.)

The right of one to use his own name in his own business is very differ-
ent from the lending or giving of his name to a corporation with a view
of making it similar to that employed by other persons in the same kind
of business. (De Long v. De Long Hook & Eye Co., 10 Misc., 577.)

The Secretary of State must decide in the first instance whether the
proposed name is, or is not, within the statutory prohibition. (State v
McGrath, 5 S. W. Rep., 29.)

The right to the exclusive use of a name will be protected upon the
same principle that persons are protected in the use of trade-marks. (Id.)

It is unnecessary to determine that there is intent to do wrong. The
right to protection of name is based upon the proprietary right acquired
by the use thereof. (American Grocer v. The Grocer, 25 Hun, 398. See,
also, Commercial Union Assur. Co. v. Smith, 18 St. Rep., 151, 2 N. Y.
Supp., 296; Matter of U. S. Mer. R. & Col. Assn., 22 St. Rep., 494, 115
N. Y., 176; Railway Age v. Garnett, 17 Weekly Dig., 250; Farmers’:
Loan and Trust Co. v. Farmers’ Loan and Trust Co., of Kansas, 21 Abb.
N. C., 104; Hygeia Water Ice Co. v. N. Y. Hygeia Ice Co., 19 N. Y. Supp.,
602, 47 St. Rep., 71; aff’d, 140 N. Y., 94; Hmployers’ Liability Assurance
Corporation v. Employers’ Liability Ins. Co., 61 Hun, 552; In re Bank of.
Attica, 12 N. Y. Supp., 648, 35 St. Rep., 708.)

Provisions restricting the use by corporations of the name “ university”
or “college” are contained in the University Law (L. 1892, ch. 378), sec-
tion 33, as follows: “ No individual, association or corporation not holding
university or college degree-conferring powers by special charter from the
Legislature of this State or from the Regents, shall confer any degrees,
nor after January first, eighteen hundred and ninety-three, shall transact
. ‘
12 Corporate Names; CHance or.

 

The General Corporation Law.

 

business under, or in any way assume the name university or. college,
till it shall have received from the Regents, under their seal, written per-
mission to use such name, and no such permission shall be granted by the
Regents, except on favorable report after personal inspection of the
institution by an officer of the University. * * * Violation of this
section shall be a misdemeanor. * * *” :

In re Crown Bank, 44 Chancery Division, 684 (Great Britain), held,
that the name of a corporation may be considered in construing the
objects stated in its memorandum of association (i. ¢., certificate of
incorporation).

*Change of corporate name. — The existing provisions
regulating changes of corgoprate names are now contained in the
Code of Civil Procedure, having been added thereto by an amend-
ment passed April 13, 1893, chapter 366, which reads as follows:

Petition by individual.— A petition for leave to assume
another name may be made by a resident of the State to the county
court of the county in which he resides, or, if he resides in the city
of New York, either to the supreme court or to the city court of
New York. The petition of an infant shall be made by his general
guardian, or by the guardian of his person, or by his next friend.

(Code of Civil Procedure, sec. 2410, as amended by L. 1895, ch. 946.)

Petition by corporation.— A petition to assume another
corporate name may be made by a domestic corporation, whether
incorporated by a general or special law, to the supreme court at
a special term thereof, held in the judicial district in which its
principal business office shall be situated, or, if it be other than a
stock corporation, at a special term held in the judicial district in
which its certificate of incorporation is filed or recorded, or in which
its principal property is situated, or in which its principal opera-
tions are or theretofore have been conducted. If it be a banking,
insurance or railroad corporation, the petition must be authorized
by a resolution of the directors of the corporation, and approved
if a banking corporation, by the superintendent of banks; if an
insurance corporation, by the superintendent of insurance, and if a
railroad corporation, by the board of railroad commissioners. The
petition to change the name of any other corporation must have
annexed thereto a certificate of the secretary of state, that the
name which such corporation proposes to assume'is not the name

 

* Chapter 922, Laws of 1870, as amended by ch. 280, Laws of 1876, and ch. 38, Laws of 1891, by
the terms of which corporations were heretofore authorized to change their names, was repealed
in 1892 ; see schedule of laws repealed, appended to this law, post.
Corporate Names; CHANGE OF. 13.

 

The General Corporation Law,

 

of any other domestic corporation or a name which he deems so.
nearly: resembling it, as to be calculated to deceive.
(Code of Civil Procedure, sec. 2411.)

For forms in proqeedings to change corporate name, see post, forms Nos. 1,.
2,3 and 4.

Contents of petition.—The petition must be in writing,
signed: by the petitioner and verified in like manner as a pleadiny-
in a court of record, and must specify the grounds of the applica-
tion, the name, age and residence of the individual whose name is.
proposed to be changed, and the name which he proposes to assume,
and if the petitioner be a corporation, its present name, and the:
name it proposes to assume, which must not be the name of any-
other corporation, or a name so nearly resembling it as to be calcu-
lated to deceive; and if it be a railroad corporation, a corporation.
having banking powers or the power to make loans upon pledges.
or deposits, or to make insurances, that the petition has been duly
authorized by a resolution of the directors of the corporation and
approved by the proper officer.

(Code of Civil Procedure, sec. 2412.)

Notice of presentation of petition. —If the petition be to-
change the name of an infant, and is made by the infant’s next.
friend, notice of the time and place when and where the petition.
will be presented must be served upon the father, or if he is dead.
or cannot be found, upon the mother, or if both are dead or can-
not be found, upon the general guardian or guardian of the person
of the infant, in like manner as a notice of a motion upon an.
attorney in ‘an action, unless it appears to the satisfaction of the.
court that the infant has no father or mother, or that both reside.
without the state or cannot be found, and that he has no guardian
residing within this state, in which case the court may dispense
with notice or require notice to be given to such persons and in
such manner as the court thinks proper. If the petition be made
by a corporation located elsewhere than in the city and county
of New York, notice of the presentation thereof shall be published.
once in each week for three successive weeks in the state paper, and
in a newspaper of every county in which such corporation shall
have a business office, or if it has no business office, of the county
in which its principal corporate property is situated, or in which
its operations are or theretofore have been principally conducted,
which newspaper, if it be a banking corporation, shall be desig-
nated by the superintendent of banks, if an insurance corpora-
tion, other than a town or county co-operative insurance cor-
poration, by the superintendent of insurance, or if a railroad cor-
poration, by the railroad commissioners. In the city and county
of New York such notice shall be published once in each week
for three successive weeks in two daily newspapers published in.
14 Corporate Namus; CHANGE OF.

 

The General Corporation Law.

 

such county. If the petition be made by a corporation, a copy
of the petition and notice of motion shall be filed with the sec-
retary of state, and the proposed name shall thereupon be reserved
for said corporation until three weeks after the date of such motion,
and until three weeks after_the date of any adjournment of such ,
motion if notice of such adjournment shall be filed with the
secretary of state, and no certificate of incorporation of a pro-
posed corporation, having the same name as the name proposed
in such petition, or a name so nearly resembling it as to be cal-
culated to deceive, shall be filed in any office for the purpose of
effecting its incorporation, and no corporation formed without
the state of New York having the same name or a name so nearly
resembling it as to be calculated to deceive shall be given authority
to do business in this state.

(Code of Civil Procedure, sec. 2418, as amended by L. 1894, ch. 264;
L. 1904, ch. 110; L. 1906, ch. 89.) 3

Order.—If the court to which the petition is presented is
satisfied thereby, or by the affidavit and certificate presented there-
with, that the petition is‘true, and that there is no reasonable ob-
jection to the change of name proposed, and if the petition be to
change the name of an infant, that the interests of the infant will
be substantially promoted by the change, and, if the petitioner be
a corporation, that the petition has been duly authorized and that
notice of the presentation of the petition, if required by law, has
been made, the court shall make an order authorizing the petitioner
to assume the name proposed on a day specified therein, not less
than thirty days after the entry of the order. The order shall be
directed to be entered and the papers on which it was granted, to
be filed within ten days thereafter in the clerk’s office of the county
in which the petitioner resides, if he be an individual, or in the
office of the clerk of the city court of New York if the order be
made by that court, or, if the petitioner be a corporation, in the
office of the clerk of the county in which its certificate of incorpora-
tion, if any, shall be filed, or if there be none filed in which its
principal office shall be located, or if it has no business office, in the
county in which its principal property is situated, or in which its
operations are or theretofore have been principally conducted, or
in the office of the clerk of the county in which the special term.
granting the order is held; and, if the petitioner be a corporation,
that a certified copy of such order shall, within ten days after the
entry thereof, be filed in the office of the secretary of state; and
also, if it be a banking corporation, in the office of the superin-
tendent of banks, or if it be an insurance corporation, in the office
of the superintendent of insurance, or if it be a railroad corporation,
in the office of the board of railroad commissioners. Such order
shall also direct the publication, within ten days after the entry
thereof of a copy thereof in a designated newspaper, in the county
Corporate Names; CHANGE oF. 18

 

The General Corporation Law.

 

in which the order is directed to be entered, at least once if the
petitioner be an individual, or if the petitioner be a corporation,
once in each week for four successive weeks. The county clerk,
in whose office an order changing the name of a corporation is
entered, shall record the same at length in the book kept in his
office for recording certificates of incorporation.

(Code of Civil Procedure, séc. 2414, as amended by L. 1895, ch. 946.)

When change to take effect. —If the order shall be fully
complied with, and within forty days after the making of the
order, an affidavit of the publication thereof shall be filed and
recorded in the office in which the order is entered, and in each
office in which certified copies thereof are required to be filed, if
any, the petitioner shall, on and after the day specified for that
purpose in the order, be known by the name which is thereby
authorized to be assumed, and by no other name. No proceedings
heretofore had under heetions two thousand four hundred and four-
teen and two thousand four hundred and fifteen of the code of civil
procedure for the change of the name of ‘a corporation, shall be
invalid by reason of the non-filing of an affidavit of the publication
of the order changing such name within twenty days from the
date thereof.
(Code of Civil Procedure, sec. 2415, as amended by L. 1894, ch. 264.)

Substitution of new name in pending action or pro-
ceeding.— An action or special proceeding, civil or criminal,
commenced by or against a person whose name is so changed shall
‘not abate, nor shall any relief, recovery or other proceeding therein
be prevented, impeded or iipatrad 3 in consequence of such change
of name. The plaintiff in the action or the party instituting the
. ‘Special proceeding, or the people, as the case requires, may, at any
time, obtain an order amending any of the papers or proceedings
therein, by the substitution of the new name, without costs and
without prejudice to the action or proceeding.

(Code of Civil Procedure, sec. 2416.)

Reports by clerks to state officers. — The clerk of each
county and of each court, shall annually, in the month of
December, report to the secretary of state all changes of names of
individuals or of corporations, which have been made in pursu- °
-ance of orders filed in their respective offices during the past year
and since the last previous report, and also report in like manner
16 AMENDED AND SUPPLEMENTAL CERIIFICATES.

 

The General Corporation Law, § 7.

 

to the superintendent of banks all changes of names of banking
corporations, and to the superintendent of insurance all changes.
of names of corporations authorized to make insurances. The
secretary of state must cause to be published, in the next volume
of the session laws a tabular statement showing the original name
of each person and corporation and the name which he or it has
been authorized to assume.
(Code of Civil Procedure, sec. 2417.)

§ 7 Amended and supplemental certificates. — If in the
original or amended certificate of incorporation of any corpora-
tion, or if in a supplemental certificate of any corporation any
informality exist, or if any such certificate contain any matter not.
authorized by law to be stated therein, or if the proof or ackndwl-
edgment thereof shall be defective, the corporators or directors of
the corporation may make and file an amended certificate correct-
ing such informality or defect or striking out such unauthorized’
matter; and the certificate amended shall be deemed to be amended
accordingly as of the date such amended certificate was filed, and
upon the filing of such an amended certificate of incorporation, the:
corporation shall then for all purposes be deemed to be a corpora-
tion from the time of filing the original certificate.

The supreme court may, upon due cause shown, and proof made,
and upon notice to the attorney-general, and to such other persons.
as the court may direct, and upon such terms and conditions as it
may impose, amend any certificate of incorporation which fails to-
express the true object and purpose of the corporation, so as to
* truly set forth such object and purpose.

When an amended or supplemental certificate is filed, an entry
shall be made upon the margin of the index and record of the
original certificate of the date and place of record of every such
amended certificate.

. The amendment of a certificate under this section shall be with-
cat prejudice to any pending action or proceeding, or to any rights.
previously accrued.

(Former section 5, L. 1890, ch. 563, as amended by L. 1892, ch. 687.)

For forms of papers under the foregoing section see post, forms Nos. 5,
6, 7 and 8.

Under chapter 135, Laws of 1870, now repealed, it was held that the
uct was intended to enable corporations to remedy patent’ omissions
that is, the omission of things which are required to be stated, and which
being omitted, make the certificate imperfect upon its face. (Matter of
Lost Onertricares ; CERTIFICATES AS EvipEnce. 17

 

The General Corporation Law, §§ 8, 9.

 

N. Y., L. H. & W. R. R. Co., 25 Hun, 556.) Sections? above, however, is
much broader and more liberal in its terms, and seems to permit the
correction of the specified irregularities, whether they are patent upon
the face of the certificate or not.

This section does not authorize the filing by a railroad corporation.of
an amended certificate of incorporation, which, while purporting ‘to have
been filed for the purpose of correcting an informality and defect in the
original certificate of ineorporation, consisting of an omission to particu-
larly state, define and describe a portion of the route of said road as well
as the terminus, was intended to effect a change in the proposed route
and terminus. (Matter of Riverhead, Quogue & Southampton R. R. Co.,
36 App. Div., 514.)

A corporation de facto may legally do and perform every act which the
same entity could do or perform were it a de jure corporation; and as to
all the world except the paramount authority under which ‘it acts, and
from which it receives its charter, it occupies the same position as though
in all respects valid; and, even as against the State, except in direct pro-
ceedings to arrest its usurpation of power, its acts are to be treated as
efficacious. (Lamming v. Galusha, 81 Hun, 247; aff’d, 151 N. ¥., 648.) The
validity of a corporation cannot be impeached by third persons by show-
ing aliunde the certificate of incorporation that certain requisites of the
statute have not been complied with. (Id.)

The directors have no implied power to make articles of association,
and hence none for making any amended certificate. (In re N. Y. Cable
R. Co., 109 N. Y., 32.) 2A

§ 8. Lost or destroyed certificates.— If either of the
certificates of incorporation shall be lost or destroyed after filing,
a certified copy of the other certificate may be filed in the place of
the one so lost or destroyed and as of the date of its original filing,
and such certified copy shall have the same force and effect as the
original certificate had when filed.

(Former section 6, L. 1890, ch. 563, as amended by L. 1892, ch. 687.)

Where the certificate filed in the county clerk’s office is lost, it is com-
petent to prove by oral evidence that a certificate was in fact filed. (N.
Y. Car Oil Co. v. Richmond, 6 Bosw., 213.)

§ 9. Certificate and other papers as evidence.— The
certificate of incorporation of any corporation duly filed shall
be presumptive evidence of its incorporation, and any amended
certificate or other paper duly filed or recorded relating to the
incorporation of any corporation, or its existence or management,
and containing facts required or authorized by law to be stated
therein, shall be presumptive evidence of the existence of such
facts.

(Former section 7, L. 1890, ch. 563, as amended by L. 1892, ch. 687, and
La 1895, ch. 672.) .

For provisions of act relative to nace of consolidation of corporations,
see Miscellaneous Statutes, post, page 576.

.

:
18 Lixaration oF Powers.

 

The General Corporation Law, § 10.

 

The only changes made to this section by the last amendment were the
insertion of the words “or recorded” and “or authorized” in the fourth
and sixth lines, respectively.

This section is in addition to, and does not repeal or supersede section
932 of the Code of Civil Procedure, which provides that 2 duly certified
copy of a papér filed in a public office is evidence as though the original
were produced. The full text of said section is as follows, to wit:

A copy of a paper, filed, kept, entered, or recorded, pursuant to law,
in a public office of the State, the officer having charge of which has
pursuant to law, an official seal; or with the clerk of a court of the State;
or with the clerk or secretary of either house of the Legislature, or of
any other public body or public board, created by authority of a law of
the State, and having, pursuant to law, a seal; or a transcript from a
record, kept, pursuant to law, in such a public office, or by such a clerk
or secretary, is evidence, as if the original was produced. But to entitle
it to be used in evidence, it must be certified by the clerk of the court,
under his hand and the seal of the court; or by the officer having the
eustody of the original; or his deputy or clerk, appointed pursuant to
law, under his official seal and the hand of the person certifying, or by
the presiding officer, secretary, or clerk of the public body or board,
appointed, pursuant to law, under his hand, and, except where it is certi-
fied by the clerk or secretary of either house of the Legislature, under
the official seal of the body or board. (Code of Civ. Pro., sec. 933.)

A certified copy is proof, prima facie, of the genuineness of the signa-
tures thereto attached in an action against a subscriber for the amount
of stock purporting to be subscribed by him. (Matter of N. Y., L. & W.
R. R. Co., 35 Hun, 220; affirmed, 99 N. Y., 12.)

All that a corporation is called upon to prove, to establish its existence,

, is its charter, and user under it. (Jones v. Dana, 24 Barb., 395; U. S.
Ins. Co. v. Tillman, 1 Wend., 555.)

An objection that there was a failure to prove the incorporation of a
sompany of another State, because the certificate of its Secretary of State,
under the great seal, was not exemplified, as required by section 906 of
United States Revised Statutes, is without force. (U. S. Vinegar Co. v.
Foehenbach, 74 Hun, 435.) E

The fact of incorporation cannot be proved by parol testimony. (Nicoll
v. Clark, 13 Misc., 129.)

§ 10. Limitation of powers.— No corporation shall possess
or exercise any corporate powers not given by law, or not
necessary to the exercise of the powers so given. The certificate of
incorporation of any corporation may contain any provision for the

-regulation of the business and the conduct of the affairs of the
corporation, and any limitation upon its powers, or upon the powers
of its directors and stockholders, which does not exempt them from
the performance of any obligation or the performance of any duty
imposed by law.

(Former section 9, L. 1890, ch. 563, as amended by L. 1892, ch. 687, and
by L. 1895, ch. 672.)
(

_Limrration oF Powers. ‘ - 19

 

The General Corporation Law, § 10.

 

The amendment of 1895, which took effect May 14, changed the head
note of this section and added the last sentence, which embraces the same

provisions as those contained in section 2 of the Business Corporations
Law.

For example of provisions for the regulation of portion of business and
affairs of a corporation, see post, form No. 131.

What a corporation may or may not do within its grant of powers is
to be determined by the reasonable intendments of its charter as well
as its clear expressions of authority. (Brooklyn Heights R. R. Co. v.
City of Brooklyn, 152 N. Y., 244.) -

In an action in this State upon an ultra vires contract of another State,
the contention that the contract is void and non-enforceable by the law
of such other State will not prevail where the law of the other State does
not appear by the record; but our courts will determine the case according
to the law of this State as established, or, in the absence of controlling
authority, as justice, having regard to all interests, may seem to require.
(Bath Gas Light Co. v. Claffy, 151 N. Y., 25, aff’g 74 Hun, 638.)

The defense of ultra vires will not defeat an action brought by a lessor
corporation to recover past due rent from the lessee corporation under the
terms of a lease, not malum in se or expressly prohibited by law, but not
within the express or implied powers of the lessor corporation. (Bath Gas
Light Co. v. Claffy, 151 N. Y., 25.) ‘ :

The purchase by a manufacturing corporation of the exclusive right to
sell the product of another corporation is ultra vires,,as the business pro-
posed to be carried on is entirely foreign to the scope of a corporation
organized solely for manufacturing purposes. (Powell v. Murry, 3 App.
Div., 273.)

Corporations organized under the laws of this State cannot bind the
property of the corporation by accommodation indorsements, except cor-
porations organized for the purposes of guaranty and indemnity. (Fox
y. Rural Home Co., Ltd., 90 Hun, 365.) i

Where a manufacturing corporation has succeeded a former partnership
acquiring with the other assets a large tract of land on which work was
in progress for the erection of a manufacturing plant and homes for em-
ployes, the continuing of such improvements is not ultra vires. (Steinway
v. Steinway & Sons, 17 Misc., 43.) In such a case not only the erection
of dwelling-houses for renting and sale to operatives and the regulation
of streets, construction of sewers and supply of water, but alse moderate
contributions toward the establishment of a church, school, free library
and free baths, aré within the corporate authority. (Ed.)

A corporation has no power to indorse a note for the accommodation of
the maker. (4. D. Farmer & Son Type Founding Co. v. Humboldt Pub.
Co., 27 Mise., 314.)

A by-law which imposes a perialty upon members of a dairy corporation
for failure to furnish a e¢ertain quality of iailix is unreasonable and ultra
vires. (Monroe Dairy Ass’n v. Webb, 40 App. Div., 49.) .

A holding of feal estate by a corporation, which, even if ultra vires,
has not beetf attacked by the sovereign or by a creditor, cannot be ques-
20 Limitation oF Powers.

 

The General Corporation Law, § 10.

tioned by a stockholder who has assented to the acquisition. (Burden v.
Burden, 159 N. Y., 287, aff’g 8 App. Div., 160.) ®

A guaranty of rent by a brewing corporation to the owner of premises
upon which its beer is sold is not a contract ultra vires, and is valid.
(Holm v. Claus Lipsius Brewing Co., 21 App. Div., 204.)

The plea of ultra vires should not, as a general rule, prevail, whether
interposed for or against a corporation, when it would not advance jus-
tice, but, on the contrary, would accomplish a legal wrong. (Whitney
Arms Co. v. Barlow, 63 N. Y., 62.)

The position of the Supreme Court of the United States upon ultra vires
contracts is, that a contract made by a corporation, which is unlawful and
void because beyond the scope of its corporate powers, does not, by being
carried into execution, become lawful and valid, and that the proper
remedy of the party aggrieved is to disaffirm the contract and sue to
recover, aS on a quantum meruit, the value of what the defendant has.
actually received the benefit of. (Louisiana v. Wood, 102 U. S., 294;.
Parkersburgh v. Brown, 106 U. S., 487, 503; Champman v. Douglas County,
107 U. S., 348, 360; Salt Lake City v. Hollister, 118 U. S., 256, 263; Penn..
R. R. Co. v. St. Louis, etc., R. R. Co., 118 U. S., 290.)

A corporation, in order to attain its legitimate objects, may deal pre-
cisely as an individual may, who seeks to accomplish the same ends.
(Barry v. Merchants’ Exchange Co., 1 Sandf. Chan., 289; Safford v.
Wycoff, 4 Hill, 422.)

Unless restrained by law, every corporation has the incidental power
to make any contract necessary to advance the objects for which it was
created. (Legrand v. Manhattan Mer. Assn., 80 N. Y., 638.)

A manufacturing corporation has no power to indorse accommodation
notes. (Nat. Park Bank v. G. A. M. W. & S., 116 N. Y., 281.)

Contracts of corporations are ultra vires when they involve adventures:
outside of and not within the scope or powers given by their charter..
(Jennison et al. v. C. S. Bank, 122 N. Y., 135.)

A corporation can not avail itself of the defense of ultra vires, when:
the contract has been in good faith fully performed by the other party,
and the corporation has had the full benefit of the performance and of
the contract. (Lienkauf v. Lombard, 137 N. Y., 417; Whitney-Arms Co..
v. Barlow, 63 N. Y., 62; Watts-Campbell Co. v. Yuengling, 51 Hun, 302.)

A person dealing with a corporation is chargeable with notice of its.
powers and the purposes for which it was formed, and when dealing
with its agents or officers is bound to know the extent of their power:
and authority. A corporation necessarily carries its charter wherever
it goes, for that is the law of its existence. (Jennison v. The Citizens’
Savings Bank, 122 N. Y., 140; Alexander v. Cauldwell, 83 N. Y., 480;
see, also, Patterson v. Robinson et al., 116 N. Y., 193; Wilson v. Kings.
Co. E. R. R. Co., 114 N. Y., 491; Martin v. N. F. P. Co., 122 N. Y., 165;
Wahlig v. S. P. M. Co., 25 N. Y¥. State Rep., 864.)

As to right of telegraph companies in making pooling contracts. (See.
Benedict v. West. Un. Tel. Co., 9 Abb. N. C., 214.)

Whenever privileges, granted by the Legislature to a corporation, come
under review in the courts, they are to be strictly construed against the
corporation; nothing passes but what is granted in clear and explicit.
terms. (People ex rel. Third Ave. R. R. Co. v. Newton, 112 N. Y., 396.)
GRANT oF GENERAL Powzrs. Q1

 

The General Corporation Law, § 11.

 

§ 11. Grant of general powers. — Every corporation as
such has power, though not specified in the law under which it is
incorporated:

1. To have succession for the period specified in its certificate of
incorporation or by law, and perpetually when no period is specified.

2. To have a common seal, and alter the same at pleasure.

3. To acquire by grant, gift, purchase, devise or bequest, to hold
and to dispose of such property as the purposes of the corporation
shall require, subject to such limitations as may be prescribed by
law.

4. To appoint such officers and agents as its business shall
require, and to fix their compensation, and

‘5. To make by-laws, not inconsistent with any existing law, for
the management of its property, the regulation of its affairs, and
the transfer of its stock, if it has any, and the calling of meetings
of its members. Such by-laws may also fix the amount of stock,
which must be represented at meetings of the stockholders in order
to constitute a quorum, unless otherwise provided by law. By-laws
duly adopted at a meeting of the members of the corporation shall
control the action of its directors. No by-law adopted by the board’
of directors regulating the election of directors or officers shall be
valid unless published for at least once a week for two successive
weeks in a newspaper in the county where the election is to be
held, and at least thirty days before such election. Subdivisions
four and five of this section shall not apply to municipal
corporations.

(Former section 8, L. 1890, ch. 563, as amended by L. 1892, ch. 687, and
L. 1895, ch. 672.)

For form of by-laws, see post, form No. 9.

By the amendment of 1895 the words “and the calling of meetings of
its members” were inserted in the first sentence of subdivision five, and
.also the words “adopted by the. board of directors” in the last sentence
but one. Goo

1. The term of existence"may be extended. (See sec. 32, post.)

2. The corporate seal is not always necessary in order to bind the
corporation. It is of great value as showing the acts of the corpora-
tion. (Lienkauf v. Coleman, 110 N. Y., 50; Whitford v. Laidler, 94 N.
Y., 145.)

8. A maximum limit of property that may be held by a non-stock eor-
poration is prescribed in the next succeeding section. No such limit is
prescribed for stock corporations. |

4. See section 29, post, and the Stock Corporation Law, sections 20, 27
and 28.
22 Grant or GENERAL Powers.

 

The General Corporation Law, § 11.

 

5. Directors may make necessary by-laws, subject, however, to the
by-laws ‘duly adopted by the members of the corporation. (See section
29, post.) The by-laws should fix the time and place of the election of
directors. (See Stock Corporation Law, section 20, post, and section 22,
post.) The by-laws should prescribe the manner of appointing inspectors
of election (id., section 28, post), and they should prescribe a manner of
transferring stock. (Id., section 40, post.)

No provision relative to suing and being sued was enacted in the above
section, because contained in the State Constitution, article 8, section 3,
as follows: ‘ All corporations shall have the right to sue and shall be
subject to be sued in all courts in like cases as natural persons.”

A contract made by a treasurer of a corporation in disregard of a by-law
restricting the execution of such a contract is not binding on the corpora-
tion. (Parmelee v. Associated Physicians & Surgeons, 9 Misc. R., 458;
but see cases therein cited.) /

The unexplained presence of a corporate seal upon promissory notes of
a corporation does not affect their apparent charactér and require them
to be regarded as sealed instruments. (Weeks v. Esler, 143 N. Y., 374.)

A corporation possesses not only powers specifically granted in terms
by its charter, but also such powers as shall be necessary to the exercise
of the powers so enumerated and given. (People ex rel. Tiffany v. Camp-
bell, 144 N. Y., 166.) .

Where notes were executed by the president and treasurer, who had
been accustomed to sign, and the money borrowed was used for. the
corporation, such notes are valid, although the by-laws provided that all
notes should be signed by the secretary. (Millbank v. De Riesthal, 82
Hun, 537; Grant v. George'C. Treadwell Co., 82 Hun, 591.)

Under subdivision 5 above, a daily publication of the by-law is not
intended. A publication once a week for two weeks is sufficient. (Wood
v. Knapp, 100 N. Y., 109.) i

An action to have a by-law declared illegal is not maintainable when
its enforcement will not subject the party to irreparable injury. (Thomas
vy. Musical Mut. Pro. Union, 121 N. Y., 45.)

Where the act or contract of a corporation is not within the scope of its
powers to perform under any circumstances, the doctrine of estoppel can-
not be invoked to make it good. (Brisay v. Star Co., 18 Misc., 349.)

A corporation can only have an existence under the express law of the
State by which it is created, and can exercise no power which is not
granted by the charter under which it exists, or by some era legislative
act. (Oregon R. R. Co. v. Oregonian R. R. Co., 130 U. S.,

The power conferred in this section upon a ioe ‘to make by-
laws regulating the transfer of stock only authorizes it to prescribe the
officer by whom stock shall be transferred and the mode of its trausfer.
(Kinnan v. Sullivan County Club, 26 App. Div., 213.)

A by-law which provides that a majority of the stock, present in per-
son or by proxy, at any meeting shall constitute a quorum, is not applica-
ble to elections for directors, as such elections are regulated by the Stock
Corporation Law, section 20. (Matter of Rapid Transit Ferry Co., 15 App.
Div., 530, revsg. in part 19 Misc., 409.)

A minority stockholder is not "entitled to have a new by-law annulled
on the claim that it is unreasonable, when it deals to a large extent with
ordinary business and is not void as a whole. (Burden v. Burden, 159
N. Y., 287, aff’g 8 App. Div., 160.)

Where the certificate of incorporation of a benevolent society refers
to its laws and rules and a member, upon joining it, agrees in writing
to conform to them, its by-laws become a part of the contract. (Frenca
v. Society of Select Guardians, 23 Misc., 86.) :
Lrrations Uron Prorzerty or Non-srock Corporations. 23

 

The General Corporation’ Law, § 12.

For limitations as to right to acquire real property see next section;
also State Constitution, article 8, sections 1, 3, post.

A corporation although created only for a term of years, may purchase
and hold lands in fee. (Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y., 121;
People v. O’Brien, 111 N. Y., 38.)

When property or rights have been acquired or become vested, no
amendment or alteration of the charter can take away the property or
fights which have become vested under a legitimate exercise of the
powers granted. (Albany R. R. Co. v. Brownell, 24 N. Y., 345; People
y. O’Brien, 111 N. Y., 1; Id., 111 N. Y., 52.)

A corporation may take title to all kinds of property, even the stock
of another corporation, in the payment of a debt. (H. & G. Man. Co. v.
H. & W. Metal Co., 38 State Rep., 157.) .

Where a corporation is authorized, under certain circumstances, 10
hold and convey real property, it will be presumed, in the absence of
proof to the contrary, that real property conveyed by it was -held and
conveyed in pursuance of its powers. (Farmers’ Loan & Trust Co. v.
Curtiss, 7 N. Y., 466.)

A corporation can not take and hold property by devise or bequest
,beyond the maximum permitted by its charter, or the statute under which
it is organized. (McGraw v. Cornell Univ., 111 N. Y., 66.)

By-laws of stock corporations are, as to third persons, private regula-
tions ‘binding as between the corporation and its members or third
persons having knowledge of them, but of no force as limitations per se
as to third persons of an authority which, except for the by-laws, would
be construed as within the apparent scope of the agency. (Rathbun v.
Snow, 123 N. Y., 349.)

A by-law, enacted under express authority of an act of the Legislature,
and in conformity with the power conferred, has the same force as if
enacted by the Legislature. (Brick Church v. Mayor, ‘etc., of N. Y., 5
Cow., 538; McDermott v. Board of Police, 5 Abb. Pr., 422.)

A by-law must be reasonable, and adapted to the purposes of the
corporation, or it is void., (People v. Medical Soc., 24 Barb. R., 570;
see also Matthews v. Associated Press, 136 N. Y., 333; Compton v. The
Chelsea, 128 N. Y., 587; Kent v. Quicksilver Mining Co., 78 N. Y., 159.) °

In failing to comply with a by-law the corporation neglects to perform
a duty which it owes to the public, and if its neglect results in injury,
there is secured to the person injured the right to be indemnified by the
corporation. (Knox v. Eden Musee, etc., 74 Hun, 483.)

§ 12. Enlargement of limitations upon the amount of
the property of non-stock. corporations. — If any general or
special law heretofore passed, or any certificate of incorporation,
shall limit the amount of property a corporation other than a stock
corporation may take or hold, such corporation may take and hold
property of the value of three million dollars or less, or the yearly
income derived from which shall be five hundred thousand dollars
or less, notwithstanding any such limitations. In computing the
24 Acquisition oF Property mn OrHerR States.

 

The General Corporation Law, §§ 13, 14.

 

value of such property, no increase in value arising otherwise than
from improvements made thereon shall be taken into account.
(New provisions, added by L. 1892, ch. 687, as amended by L. 1894, ch. 400.)
The foregoing limitations do not affeet stock corporations. As to what are
oe as stock and non-stock corporations, respectively, see sections 2 and
§ 13. Acquisition of additional real property— When any cor-
poration, except a life insurance corporation, shall have sold or
conveyed any part of its real property, the supreme court may,
notwithstanding any restriction of a general or special law, author-
ize it to purchase and hold from time to time other real’ property,
upon satisfactory proof that the value of the property so purchased
does not exceed the value of the property so sold and conveyed
within the three years next preceding the application.
aed sec. 10, L. 1890, ch. 563, as am’d by L. 1892, ch. 687; L. 1906,
ch. 228.
It ae that this provision is to be read in connection with the preceding
section only, and is not intended to apply to stock corporations.
The words “ notwithstanding any restriction of a genesal or special law ”
were inserted by the amendment of 1892.-

As to effect of a conflicting provision in another law, see section 33, post,*
and Statutory Construction Law, section 32, post.

§ 14. Acquisition of property without the state,—Any domestic
corporation transacting business in other states or foreign countries
may acquire and dispose of such property as shall be requisite for
such corporation in the convenient transaction of its business. Any
domestic corporation establishing or maintaining a charitable, philan-
thropic or educational institution within this state may also carry on
its work and establish or maintain one or more branches of such
institution or an additional institution or additional institutions in
any other state, the District of Columbia or in anv part of the terri-
tories or dependencies of the United States of America or in any
foreign country and for either of said purposes may.take by dévise
or bequest, hold, purchase, mortgage, sell and convey or otherwise
dispose of such real and personal property without this state as may
be requisite therefor. But nothing in this section contained shall be
construed as exempting from taxation property to any additional
amount than is now allowed to such corporation under existing laws.

(Former section 11, L. 1890, ch. 563, as amended by L. 1892, ch. 687; L. 1903,
ch. 178.)

Any corporation acquiring property in other States or foreign countries
should also consult the statutes of the State or country in which the property
a aa of this State can exercise no power in another State without
the sanction of such State. (Runyan v. Lessee of Coster, 14 Peters (U. 8.),
122; Demarest v. Flack, 128 N. Y., 205; Hickory Farm Oil Co. v. Buf., etc.,
R. R. Co., 2 By. & Corp. L. J., 470.)

Every power which « corporation exercises in another State depends for its
validity upon the laws of the sovereignty in which it is exercised, and a cor-
poration can make no valid contract without the sanction, express or implied,
of such sovereignty. (Runyan v. Lessee of Coster, 14 Peters (U. 8.), 129;
Briscoe v. Southern Kansas Ry. Co., 40 Fed. Rep., 280.)

If such other State does not permit the corporation to acquire or hold
real property, it must be expressed in ‘some affirmative way. It can not

’

~
CrrtiricaTe or AuTHoriry or 4 Forzrran CorroraTion. 25

 

The General Corporation Law, § 15.

 

be inferred. gables v. Springs Co., 100 U. S., 55; Christian Union v.
Yount, 101 U. S., 352.)

§ 15. Certificate of authority of a foreign corporation.
— No foreign stock corporation other than a monied corporation,
shall do business in this state without having first procured from
the secretary of state a certificate that it has complied with all the
requirements of law to authorize it to do business in this state,
and that the business of the corporation to be carried on in this
state is such as may be lawfully carried on by a corporation incor-
porated tnder the laws of this state for such dr similar business,
or, if more than one kind of business, by two or more corpora-
tions so incorporated for such kinds of business respectively. The
secretary of state shall deliver such certificate to every such cor-
poration so complying with the requirements of law. .No such
eorporation now doing business in this state shall do business
herein after December 31, 1892, without having procured such
certificate from the secretary of state, but any lawful contract
previously made by the corporation may be performed and en-
forced within the state subsequent to such date. No foreign stock
‘corporation doing business in this state shall maintain any action
in this state upon any contract made by it in this state unless
prior to the making of such contract it shall have procured such
certificate. This prohibition shall also apply to any assignee of
such foreign stock corporation and to any person claiming under
such assignee or such foreign stock corporation or under either
of them. No certificate of authority shall be granted to any for-
eign corporation having. the same name as an existing domestic
corporation, or a name so nearly resembling it as to be calculated
to deceive, nor to any foreign corporation, other than a moneyed
or insurance corporation, with the word “trust,” “ bank,” “ bank-
ing,” “insurance,” ‘ assurance,” “ indemnity,” “ouarantee,”
“ ouaranty,” “savings,” “ investment, ” “loan,” or “ benefit,” as
a part of its name.

(New provisions, added by Ti 1892, ch. 687, as amended by L. 1901, ch,
96 and ch. 538; L, 1904, ch. 490.)

For. forms of papers under these provisions, see post, forms Nos. 10, 11, 12
and 13. °

The clause in the last sentence beginning ‘with the words “ nor to any,
foreign corporation,” etc., was added by L. 1904, ch. 490.

The provisions making the procuring of a certificate of authority a
prerequisite to the making of an enforcible contract, and extending the
inhibition to assignees were added by L. 1901, ch. 538,

Foreign corporations, in addition to procuring the certificate, must
also pay a license fee. (See § 181 of Tax Law, page 76.)

For definitions of “foreign,” “stock” and “:monied” corporations,
respectively, see section 3, ante.

See, also, Penal Code, §§ 593 and 608, as enacted by L. 1904 ch. 489, as
to use of word “ trust.”
26 \CerTiFIcaTE oF AUTHORITY oF A ForEIGN CoRPORATION.

 

The General Corporation Law, § 15.

 

In relation to the proof to be filed with the Secretary of State in order
to obtain the certificate of authority above provided for, see section 16.

For other provisions affecting foreign corporations see reference to
‘the same in the index under the heading “ Foreign Corporations.”

The provisions of the foregoing section of the law and of the ‘next
succeeding section, post, page 32, do not confer upon the Secretary of
State supervisory power over corporations organized in other States and
doing business here so as to enable him to enforce a compliance with the
terms of those sections. It rests entirely with the corporation itself to
elect whether or not it will bring itself under the protection of the laws
of this State, so as to be permitted to make enforcible contracts within
the State. The foregoing section provides that no foreign stock corpora-
tion, other than a banking or insurance corporation, shall do business in
the State without having prior thereto procured from the Secretary of
State a certificate of authority, and the next section, entitled, “ Proof to
be filed before granting certificate,” post, page 32, provides that, before
the granting of such certificate, the corporation applying for the same
must file a sworn copy of its charter or certificate of incorporation, and
a statement under its corporate seal, setting forth the business or objects
of the corporation which it is engaged in carrying on, or which it pro-
poses to carry on, within the State, and a place within the State which
is to be its principal place of business, and designating, in the manner
prescribed in the Code of Civil Procedure, a person upon whom process
against the corporation may be served within the State.

In addition to these requirements such corporations must pay a license
fee in accordance with section 181 of the Tax Law. See page 76, post.

Rights Conferred by Procuring Certificate.

Every foreign corporation that has filed the necessary papers and pro-
cured the certificate required by the foregoing section is accorded the
same right to transact business here as domestic corporations. (Lancaster
y- Amsterdam Impnft. Co., 140 N. Y., 57.) Provided the license fee pre-
scribed by the Tax Law is paid within the specified time. (Tax: Law,
section 181, page 76, post.)

Power of State to Impose Conditions.

The State has absolute power to exclude a foreign corporation; or, it
May impose such conditions upon permitting the corporation to do busi-
ness within its limits as it may judge expedient; and it may make the
grant or privilege dependent upon the payment of a specific license
tax, or a sum proportioned to the amount of its capital. (Horn Silver
Mining Co. v. New York, 143 N. Y., 305; Philadelphia Fire Assn. v. New
York, 119 U. S., 110; Pembrina Mining Co. v. Pennsylvania, 125 U. S.,
181; Norfolk & W. R. R. Co. v. Pennsylvania, 136 U. S., 114; Paul v. Vir-
ginia, 8 Wallace (U. S.), 168; People ex rel. Southern Cotton Oil Co. v.
Wemple, 131 N. Y., 64; Bank of Augusta v. Earle, 13 Pet. (U. S.), 519:
Cooper Mfg. Co. v. Ferguson, 113 U. §., 727; Christian Union v. Yount,
101 U. S., 352; People v. Formosa, 131 N. Y., 478; Demarest v. Flack, 128
N. Y., 205.)

Gorporations are not citizens within the meaning of the Constitution
CERTIFICATE oF AUTHORITY OF A ForREIGN CorporaTIon. 27

 

The General Corporation Law, § 15.

 

of the United States, article 4, section 2, clause 1, declaring that “the
citizens of each State shall be entitled to all privileges and immunities of
citizens, in the several States.” They are creatures of local law, and.
have not an absolute right of recognition in other States, but depend for-
that and for the enforcement of their contracts upon the assent of those.
States, which may be given on such terms as they please. (Paul v. Vir-
ginia, 8 Wallace (U. S.), 168. Same rule upheld in Pembrina Mining Co.
v. Pennsylvania, 125 U. S., 181; Norfolk & W. R. R. v. Pennsylvania, 136
U. S., 114, and Horn Silver Mining Co. v. New York State, 143 U. S., 305.):

The’ provisions in the fourteenth amendment to the United States
Constitution, section 1, that “no State shall deny to any person within
its jurisdiction the equal protection of the laws,” do not prohibit a State.
from requiring for the admission of a foreign corporation such condi-
tions as it chooses. (Pembrina Mining Co. v. Pennsylvania, 125 U. S.,.
181.)

The only limitation upon this power of the State to exclude a foreign
corporation from doing business within its limits, or hiring offices for
that purpose, or to exact conditions for allowing it to do business or
hire offices there, arises where the corporation is in the émploy of the
federal government, or where its business is commerce, interstate or
foreign. (Pembrina Mining Co. v. Pennsylvania, supra; People ex rel..
Southern Cotton Oil Co. v. Wemple, 131 N. Y., 64.)

Doing Business Within the State

The doing of isolated acts of business within a State is not “ doing
business” within such a prohibition. (Cooper Mfg. Co. v. Ferguson,
113 U. S., 727; National Knitting Co. v. Bronner, 20 Misc, 125.) A
foreign corporation engaged in running a steamboat, and which has no:
place of business, agent or representative in the State, and has made no.
contract in relation to its business within the State, is not doing busi-
ness in the State within the meaning of this section. (Savage v. Atlanta
Home Ins. Co., 55 App. Div., 20.)

Where a foreign corporation had no office or place of business in this
State the fact that its traveling salesman took orders here, subject to.
the approval of the corporation at its office in another State, does not
place it in the position of ‘doing business in this State.” (Tallapoosa
Lumber Co. v. Holbert, 5 App. Div., 559; Murphy Varnish Co. v. Connell,.
10 Misc., 553; National Knitting Co. v. Bronner, 20 Misc., 125; Novelty
Mfg. Co. vy. Connell, 88 Hun, 254; Vaughn Machine Co. v. Lighthouse, 64-
App. Div., 138.) Orders so taken for approval at the home office do not.
constitute a contract in this State even though the corporation has an
office here. (American Broom & Brush Co. v. Addickes, 19 Misc., 36.)

The fact that a foreign corporation consigns a portion of its goods to.
brokers, its agents, and that sales are made in the State from such goods,
either directly at a, price fixed by the corporation or in fulfillment of
orders approved by it, the proceeds being deposited to the credit of the
corporation in a bank in this, State, and the charges of the brokers being
paid by check after the deposit instead of being deducted before the
deposit, does not constitute doing business within the State under the
Tax Law. (People ex rel. Southern Cotton Oil Co. v. Roberts, 25 App.
Div. 13.)
28 CERTIFICATE oF AUTHORITY OF A Forergn CoRPORATION.

 

The General Corporation Law, § 15.

 

Where a foreign corporation consigns goods to persons in this State
for sale, and sales are made by the factor in his own name, and the
proceeds collected and accounted for by him, such corporation does not
do business in this State within the meaning of this provision, and no
certificate is necessary to enable it to maintain an action to recover the
net proceeds of such goods. (Bertha Zinc & Mineral Co. v. Clute, 7 Misc.,
123.)

A contract made between two foreign corporations by a written order
mailed within the State and accepted in another State, where one of the
corporations is domiciled, is not a contract made within this State, as the
contract was not completed until the acceptance of the order; therefor,
a certificate authorizing the vendor corporation to do business here was
not necessary. (Shelby Steel Tube Co. v. Burgess Gun Co., 8 App. Div.,
444.) A cause of action based on a default in paying for goods delivered
in this State on such contract arises here, and can be maintained under
subdivision 3, section 1780 of the Code of Civil Procedure, which provides
that an action may be maintained by one corporation against another
“‘ where the cause of action arose within the State.” (Id.)

Cases Superseded by Amendment of 1901.

It has been held that a contract made in this State by a foreign cor-
poration before it had obtained a certificate of authority to transict
business within the State is nevertheless enforcible by action as soon
as such certificate is procured. (Neuchatel Asphalt Co., Limited, v. The
Mayor, ete., of New York, 155 N. Y., 373, aff’g 12 Misc., 26; Reedy Elevator
‘Co. v. American Grocery Co., 23 Misc., 520; both cases in effect overruling
Providence Steam & Gas Pipe Co. v. Connell, 86 Hun, 319.) But these
decisions are no longer applicable, having been superseded by the amend-
ment of 1901, chapter 538, in effect Sept. 1, 1901, which provides that the
certificate of authority must be procured prior to the making of con-
‘tracts within the State.

‘

Rights of Assignees of Foreign Corporations.

It has been held that where a foreign corporation has been doing busi-
ness within the State for more than thirteen months, without having
paid the license tax required by section 181 of the Tax Law, that it has
no right to maintain an action in the courts of this State, and, also, that
its assignee can have no standing in court for the reason that the
assignee cannot be in a better position than the assignor. (Mueller vy.
William F. Wall Rope Co., 53 N. Y. Supp., 255; Kinney v. Reid Ice Cream
Co., 57 App. Div., 206; in effect overruling Lindheim v. Sitt, 68 N. Y.
Supp., 145.) These decisions were rendered prior to the enactment of
‘chapter 538 of the Laws of 1901, in effect September 1, amending section
15 in respect to assignees of foreign corporations. This section as thus
amended now expressly provides that the assignee shall have no right
‘of action in the courts of this State where the assignor, being a foreign
corporation, has failed to comply with the law, thereby conforming the
law to the rule laid down fn 57 App. Div., 206, supra.

This section it seems only prohibits actions upon contracts made in this
State by foreign corporations which have failed to procure the necessary
CrrtiricaTe or AuTHORITY or a ForEIgn Corporation. 29

 

The General Corporation Law, § 15.

 

certificate, and has no application to actions upon contracts made by
other parties and assigned to such corporations. (O’Reilly, Skelly &
Fogarty Co. v. Greene, 18 Misc., 423, aff’g 17 Misc., 302.)

Contracts Made Prior to December 31, 1892.

A foreign corporation not baving a certificate authorizing it to do-
business within the State may nevertheless sue in the State of
New York upon contracts made prior to the enactment of the foregoing
section. (Atlantic Construction Co. v. Kreusler, 40 App. Diy., 268; Provi-
dence Steam & Gas Pipe Co. v. Connell, 86 Hun, 319; O’Reilly, Skelly. &
Fogarty Co. vy. Greene, 17 Misc., 302.)

Attachments by Foreign Corporations.

The Code of Civil Procedure provides in’ what cases attachments may
be issued, and what is necessary to be shown by the plaintiff to entitle
him to the attachment, but these provisions are not exclusive, and the-
Legislature may affix other conditions to the right of invoking such
remedy. As a remedy by attachment is a step in an action the provisions.
of section 15 of the General Corporation Law apply, and the papers upon
which a foreign corporation doing business in the State, in relation to a
transaction within the State, must show, for the purposes of the attach-.
ment, that the corporation has complied with said section 15. (Sawyer:
Lumber Co. v. Bussell, 84 Hun, 114.)

Where a foreign corporation fails to allege in attachment papers that
it had obtained a receipt for tax for the privilege of doing business within:
the State, or whether or not the thirteen months’ limit has passed since
it commenced to do business, it is a defect, and an averment in an
affidavit that the corporation has complied with the requirements of
séctions 15 and 16 of the General Corporation Law, and with all the:
requirements of law to authorize it to do business in this State, does
not remedy the defect in attachment proceedings. (Reedy Elevator Co..
y. American Grocery Co., 24 Misc., 678. See, also, 23 Misc., 520.)

Attachments Against Foreign Corporations.

An attachment may issue against the pfoperty of a foreign corporation:
within the limits of the State, however solvent it may be, and however
great its ability to pay all claims against it on demand. It is powerless:
to prevent a creditor, or a fictitious claimant even, from obtaining an
attachment against its property in this State. (Robertson v. Ongley Elec--
tric Co., 82 Hun, 585.)

Section Applies only to Actions on Contract.

The provisions of this section apply to actions on contract only, and
have no application to a judgment creditor’s action brought to set aside
alleged fraudulent transfers and conveyances. (Joseph Schlitz Brewing
Co. v. Ester, 86 Hun, 22.)

A-foreign stock corporation is not prevented from maintaining an
action of replevin by the foregoing section, such action being purely ex
delicto, and not ex contractu. (American Typefounders Co. v. Connor,
6 Misc., 391, 26 N. Y. Supp., 742.)

A foreign corporation, which has not been authorized to transact, bust-
30 CrRTiFICATE OF AUTHORITY oF A Foriegn Corporation.

 

The General Corporation Law, § 15.

 

ness within the State, may file a mechanic’s lien against the owner of a
house in this State in whose construetion its goods have been used,
where it appears that the goods were delivered by it, within the State,
to a domestic corporation, which in turn furnished them to the owner.
(Matter of Simonds Furnace Co., 30 Misc., 209.)

Supplementary Proceedings.

Under the provisions of the Code of Civil Procedure, in reference to
proceedings supplementary to execution (secs. 2435, 2452, 2458, 2463), such
proceedings may be instituted against a foreign corporation having no
‘agent and doing no business in this State, and a receiver of its property
Im this State may be appointed. (Logan v. McCall Pub’g Co., 140 N. Y.,
447.) The policy of this State does not preclude a creditor of such a cor-
poration from obtaining a preference upon assets here. (Id.)

Lack of Certificate.

A complaint in an action brought by a foreign stock corporation must
allege a compliance with this section. (Welsbach Co. v. Norwich G. &
E. Co., 96 App. Div., 52; see, also, Parmele Co. v. Haas, 171 N. Y., 579.) =

The objection that a foreign corporation, which has brought an action
upon the contract made by it in this State, has not procured a certificate
of authority, is not affirmative defense, and is not available unless
pleaded. (W. P. Fuller & Co. v. Schrenk, 58 App. Div., 222; O’Reilly,
Skelly & Fogarty Co. v. Greene, 18 Misc., 423; Nicoll v. Clark, 13 Misc.,,
128.)

Failure of the complaint in an action by a foreign corporation to allege
‘that plaintiff has paid the license fee is not a demurrable defect.
'(O’Reilly, Skelly & Fogarty Co. v. Greene, 18 Misc., 423, aff’g 17 Misc., 302.)

a
Exclusive Remedy Elsewhere Bars Action Here.

The statutory liability of stockholders in foreign corporations for debts
-of the corporation cannot be enforced except at the domicile-of the cor-
poration, when the law of the domicile provides the remedy. (Marshall
v. Sherman, 148 N. Y., 9, revsg. 84 Hun, 186.) |

An action to enforce the statutory liability of the stockholders of an
insolvent foreign corporation cannot be maintained in the courts of the
State of New York when the statutes of the State in which such foreign
corporation is located provide a special remedy, which is exclusive of all
-other remedies, and can only be administered in such State. Where the
remedy is of such a character that it can only have effectual operation
in one forum, a party interested should not be permitted to enforce it in
another place. (Cleveland, Lorain & Wheeling Ry. Co. v.:Kent, 87 Hun,
329.) Statutes relating to procedure have no extra-territorial effect. (Id.)

Infringement of Name.

Where a foreign corporation does business in the State without com-
plying with the statutes entitling it to transact business therein, and a
domestic corporation, subsequently organized, adopts the same name as
that used by the foreign corporation without knowledge of the existence
‘of such corporation, it will not be'restrained, upon motion for a pre-
liminary injunction made in an action brought against it by the foreign
corporation, from using the name adopted by it during the pendency of
the action. (American Tartar Co. v. American Tartar Co., 57 App. Div.,
-411.) :
CrrtiricaTE or AuTHORITY oF A Forrign Corporation. 31

 

The General: Corporation Law, § 15.

 

Statute of Limitations Not a Defense.

A foreign corporation cannot avail itself of the aiwente of limitations of
‘the State of New York in an action brought in the New York courts.
(Robeson vy. Central R. R. Co. of N. J., 76 Hun, 444; Boardman y. Lake
Shore & M. S. Ry. Co., 84 N. Y., 185; Rathbun v. Northern Central Ry.
Co., 50 N. ¥., 656; Olcott v. Tioga R. R. Co., 20 N. Y., 210; Mallory v.
‘Tioga R. R. Co., 3 Keyes, 354.)

'

‘Receivers of Foreign Corporations.

The courts of this State have power to appoint a receiver of a foreign
corporation to preserve assets within their jurisdiction for the protection
of domestic creditors. (Hall v. Holland House Co., 12 Misc., 55; Popper
vy. Supreme Council Order of Chosen Friends, 61 App. Div., 405.)

A receiver of a foreign corporation. may enforce in this State the: lia-
bility of a stockholder incurred under a statute of the foreign State.
(Wigton v. Kenney, 51 App. Div., 215.)

A foreign corporation may sue in its own name in this State, notwith-
‘standing the appointment of a receiver pendente lite by the United
States Circuit Court in another State. (Sigua Iron Co. v. Brown, 33 Misc.,
50.)

Miscellaneous Cases. :

A corporation formed by consolidation of a domestic and a foreign cor-
‘poration, is a domestic corporation. (In re Sage v. L. S. & M. 8. Ry. Co.,
"0 N. Y., 220; People v. N. Y., Chicago & St. L. R. R.:Co., 129 N. Y., 474.)

An assignment for the benefit of creditors, made in this State by an
insolvent foreign corporation, valid under the law of its domicile, will be
recognized as valid here. (Vanderpoel v. Gorman, 140 N. Y., 563.) Such
an assignment is not violative of the provision of the Stock Corporation
Law, section 48, which prohibits a transfer or’ assignment by a corpora-
tion in contemplation of insolvency; that provision refers solely to domes-
tic corporations. (Id.)

The bringing of an action in this State by a foreign corporation is not
evidence that the contract upon which the action is based was made in
the State of New York. (Lukens Iron & Steel Co. v. Payne, 13 App.
Div., 11.)

Resident stockholders of a foreign corporation may maintain an action
to prevent waste, and to compel restitution for stock or property improp-
erly diverted. (Nash v. Hall, 11 Misc., 468.)

This section only applies to foreign corporations doing business within
the State, therefore a foreign corporation may sue in this State on a
‘contract made in another State. (Batchelder & Lincoln Co. v. Knopf, 54
App. Div., 329.)

When a foreign corporation is recognized by the courts and authorities
of the State of its domicile, it is entitled to be recognized as a corpora-
‘tion here unless it appears that it was formed for purposes illegal here or
was doing acts prohibited by the laws of this State. (U. S. Vinegar Co.
v. Schlegel, 143 N. Y., 537; Demarest v. Flack, 128 N. Y., 205; Lancaster
y. Amsterdam Improvement Co., 140 N. Y., 57.) Where it has filed a
certificate of incorporation required by the laws of this State, it is a
32 Proor To BE FILep BEFORE GRANTING CERTIFICATE.

 

The General Corporation Law, § 16.

 

corporation de facto, and questions of irregularity in organization are
matters for that State to inquire into. (Id.)

The right of a foreign corporation to sue in this State is conferred by’
section 1779 of the Code. (O’Reilly, Skelly & Fogarty Co. v. Greene, 18
Misc., 423.)

An owner and transferee of stock in a foreign corporation may main-
tain an action to compel the corporation to recognize the transfer, record
it on their books and igsue new stock in place of the old; and may, in the
same action, obtain the additional relief of enjoining the corporation
from a proposed illegal issue of preferred stock (Ernst v. Elmira Muni-
cipal Improvement Co., 24 Misc., 583.)

A statute of this State granting powers and privileges to corporations
must, in the absence of plain indications to the contrary, be held to apply
only to domestic corporations. (In re Estate of Prime, 136 N. Y., 347.)

Corporations formed under Iusurance Law and Banking Law are
required to obtain similar certificates from the Superintendent of Insur-
ance and Superintendent of Banks, respectively, before commencing busi-
ness. (See Insurance Law, secs. 9, 31; Banking Law, secs. 31, 32.)

§ 16. Proof to be filed before granting certificate.—
Before granting such certificate the secretary of state shall require
every such foreign corporation to file in his office a sworn copy in
the English language of its charter or certificate of incorporation
and a statement under its corporate seal particularly setting forth
the business or objects of the corporation which it is engaged in
carrying on or which it proposes to carry on within the state, and a
place within the state which is to be itssprincipal place of business,
and designating in the manner prescribed in the Code of Civil Pro-
cedure a person upon whom process against the corporation may
be served within the state. The person so designated must have
an office or place of business at the place where such corporation is.
to have its principal place of business within the state. Such des-
ignation shall continue in force until revoked by an instrument.
in writing designating in like manner some other person upon
whom process against the corporation may be served in this state.
If the person so designated dies or removes from the place where
the corporation has its principal place of business within the state,
and the corporation does not. within thirty days after such death or
removal designate in like manner another person upon whom pro-
cess against it may be served within the state, the secretary of
state may revoke the authority of the corporation to do business
within the state, and process against the corporation in an action
upon any liability incurred within this state before such revocation,
may, after such death or removal,and before another designation is
Proor to BE FILED BEFORE GRANTING CERTIFICATE. 33

 

The General Corporation Law, § 16.

 

made, be served upon the secretary of state. At the time of such
service the plaintiff shall pay to the secretary of state two dollars to
be included in his taxable costs and disbursements, and the secretary
of state shall forthwith mail a copy of such notice to such corpora-
tion if its address, or the address of any officer thereof, is known to
him.

(New provisions added by L. 1892, ch. 687, as amended by L. 1895,
ch. 672.)

‘For forms under this section, see post, forms Nos. 10, 11, 12 and 13.

The last amendment was merely the insertion of the words “in the
English language” in the fourth line.

The Secretary of State has rejected many papers drawn under this sec-
tion which in his opinion set forth objects not within the scope of the act,
but in only one case has his action been contested in the courts. In this
ease a corporation organized under a special act of the Legislature of the
State-of New Hampshire was authdrized to carry on the business of a
safe deposit and trust company, and to deal in money and securities.
Said corporation desired authority to carry on in this State a portion of
the business which it was organized to carry on, and presented for filing
papers in which the business to be carried on here was stated to be the
purchase and sale of the stock, bonds and other written evidences of
indebtedness of public corporations, to wit, stock, bonds and other written
evidences of indebtedness of States, cities, villages, towns and. other
political subdivisions. The Secretary of State refused to file the papers
or to issue a certificate for the reason that it being a banking corporation,
invested with banking powers, could not do business by authority from
the office of the Secretary of State. The corporation applied for a writ
of mandamus to compel the filing of the papers. The writ was denied.
Decided March 18, 1893, in Supreme Court, Special Term, Third Depart-
ment; Herrick, Justice. No appeal was taken. (People ex rel HE. H.
Rollins & Sons v. Rice.) :

A foreign corporation applied to the Secretary of State for a certificate
of authority to carry on the business of acting as trustee, and also to
guarantee contracts. The certificate was refused. In this case the Attor-
ney-General, in an opinion.dated April 30, 1897, held that where a com-
pany proposed to act in the capacity of a trustee the business came within
the provisions of subdivision 4 of section 156 of the Banking Law, and
that the guarantee feature was a purpose provided for by subdivision 4,
section 70 of the Insurance Law; therefore, the purposes set forth were °
those of a monied corporation, and not within the scone of sections 15 and
16 of this law.

The provisions of the Code of Civil Procedure, referred to in the fore
going section, are as follows:

3
ot Proor to BE FILED BEFORE GRANTING CERTIFICATE.

The General Corporation Law. z

 

Frovisions of the Code of Civil Procedure, referred to in the
foregoing section.

Personal service of the summons, upon a defendant, being a
foreign corporation, must be made by delivering a copy thereof
within the State as follows:

1. To the president, vice-president, treasurer, assistant treas-
urer, secretary or assistant secretary; or, if the corporation lacks
either of those officers, to the officer performing corresponding
functions, under another name.

2. To a person designated for the purpose by a writing, under
the seal of the corporation, and the signature of its president, vice-
president, or other acting head, accompanied with the written con-
sent of the person designated; and filed in the office of the secretary
of state. The designation must specify a place, within the State,
as the office or residence of the person designated; and if it is within
the city, the street and street number, if any, or other suitable
designation of the particular locality. It remains in force until
the filing in the same office of a written revocation thereof, or of
the consent, executed in like manner; but the person designated
may, from time to time, change the place specified as his office or
residence,to some other place within the state, by a writing executed
by him, and filed in like manner. The secretary of state may
require the execution of any instrument, specified in this section,
to be authenticated as he deems proper, and he may refuse to file it
without such an authentication. An exemplified copy of a
designation so filed, accompanied with a certificate that it has not
been revoked, is presumptive evidence of the execution thereof,
and conclusive evidence of the authority of the officer executing it.

3. Ifsuch a designation is not in force, or if neither the person
designated, nor an officer specified in subdivision first of this section,
can be found with due diligence, and the corporation has property
within the state, or the cause of action arose therein; to the cashier,
a director, or a managing agent of the corporation, within the state.

(Code of Civil Procedure, sec. 432, as amended by L. 1903, ch. 311.)

The provisions of this article, relating to the mode of service of
a summons, apply likewise to the service of any process or other
paper, whereby a special proceeding is commenced in a court, or
before an officer, except a proceeding to punish for contempt, and
except where special provisions for the service thereof is otherwise
made by law.

(Code of Civil Procedure, sec. 433.)
Proor to BE FItep BEFoRE GRANTING CERTIFICATE. 35

The General Corporation Law.

 

Proof of service, as prescribed in this article, must be made by
affidavit, except as follows:

1. If the service was made by the sheriff, it may be proved by his
certificate thereof. * * *
(Code of Civil Procedure, sec. 434.) :

When no designation has been made service upon a special agent is
proper if it does not appear that he was not the president or secretary
of the corporation or an officer performing corresponding functions, or
its cashier, director or managing agent. (Silver v. Western Assurance
Qo., 3 App. Div., 572.)

A designation, under section 80 of the Insurance Law, chapter 690, Laws
of 1892, of the superintendent of insurance as the person upon whom
service of process may be made in an action against a foreign insurance
corporation does not preclude service of summons pursuant to the fore-
going section. (Silver v. Western Assurance Co., 3 App. Div., 572; How-
ard v. Prudential Ins. Co., 1 App. Div., 135.) In such a case a proper
service may be made upon a foreign insurance corporation either under
the provisions of the code or the Insurance Law. (3 App. Div., 572,
supra.)

An agent of a foreign newspaper corporation who signs as its ‘ eastern
representative,” and conducts all its business transacted in the State, is
the managing agent of the corporation within the meaning of subdivision
3 of the foregoing section. (Palmer v. Chicago Evening Post Co., 85
Hun, 403.)

When the person designated by a foreign corporation cannot be found
within the State, a delivery of the summons and complaint to the cus-
todian of property attached and a delivery thereof by the latter to the
managing agent of the corporation, who calls the attention of the board
of directors of the corporation thereto, is a sufficient service to support
the attachment, although the papers were not delivered to such agent
with intent to effect a service, and were subsequently returned to said
custodian. (Kieley v. Central Complete Combustion Mfg. Co., 18
Misc. R., 85.)

Where it appears that a person has been managing agent for a corpora-
tion, the burden rests upon the corporation to show a termination of such
relation. (Id.)

In determining what agents are managing agents under this section of
the code each case must necessarily depend upon its own facts. A reas-
onable requirement is that the person served should be of sufficient
responsibility to render it probable that the company will receive notice
of the service. (Coler v. Pittsburgh Bridge Company, 84 Hun, 285.)

An agent who has general supervision of a business is a managing
agent, although the district in which his powers are exercised may be
limited. (Mullins v. Met. Life Ins. Co., 78 Hun, 297; Ives v. Same, 78
Hun, 32.) An agent who merely superintends certain soliciting agents
and has no authority to employ or discharge them is not a managing
agent. (Schryver v. Same, 29 N. Y., Supp., 1092.)

The term “ managing agent’ includes any person holding some respou-
386 Acguistrion or Reat Property py Forrian Corporations.

 

The General Corporation Law, § 17.

 

sible and representative relation to the company. (Coler v. Pittsburgh
Bridge Co., 146 N. Y., 281.)

The term “ managing agent”’ imports some person invested by the cor-
poration with general powers involving the exercise of judgment and
discretion. Where the foreign corporation has not designated any person
as prescribed, the service of a summons upon one having no other con-
nection with the corporation than that of attorney of record in an action
to which the corporation is a party, gives the court no jurisdiction.
(Taylor v. Granite State P. Assn., 186 N. Y., 348; Reddington v. Mariposa
L. & M. Co., 19 Hun, 405; Palmer v. Penn. Co., 35 Hun, 369; Tuchband
vy. ©. & A. R. R. Co., 115 N. Y., 487. See, also, A. & P. Tel. Co. v. B.
& O. R. R. Co., 87 N. Y., 355; Pope v. Terre Haute C. & M. Co., 87
N. Y., 137, Childs v. Harris Mfg. Co., 104 N. Y., 477.)

Service of summons on the general superintendent of the work of oper-
ating the lines of a domestic telegraph company is sufficient as a service
on the “managing agent.” (Barrett v. Am. Telephone & Teleg. Co.,.
188 N. Y., 491.)

§ 17. Acquisition of real property in this state by certain
foreign corporations.—Any foreign corporation created under
the laws of the United States, or of any state or territory thereof,
and doing business in this state, may acquire such real property in
this state as may be necessary for its corporate purposes in the
transaction of its business in this state, and convey the same by
deed or otherwise in the same manner as a domestic corporation.

(Former sections 12, L. 1890, ch. 568, as amended by L. 1892, ch. 687.)

Public policy does not forbid transaction of business in this State by a
corporation formed in another State by citizens of this State, for the
purpose of transacting business here. (Demarest vy. Flack, 128 N. Y., 205.)

The courts of this State will not interfere with the internal adminis-
tration of the affairs of a foreign corporation. (Fisher v. Charter Oak
Life Ins. Co., 52 Super. Ct., 179; Berford v. N. Y. Iron Mine, 56 Super.
Ct., 236.) . 4

This section permits corporations organized under the laws of any State
or territory of the United States to acquire real estate here for its cor-
porate purposes, and convey the same in like manner as a domestic cor-
poration. (See Chautauqua Co. Bk. v. Risley, 19 N. Y., 369; Moss v. Aver-
ill, 10 id., 449.) Whether a corporation holds real property in excess of the
limit permitted by law is a question that can be raised only in a direct
proceeding by the State against the corporation. (Barnes v. Suddard,
117 IIL, 237.)

As to a foreign corporation which holds real estate contrary to law, see
Fritts v. Palmer (132 U. S., 282), and the dissenting opinion therein,

The power of corporations to take and hold property is a corporate
power and depends upon their charters. The law of this State cannot
enlarge or change the powers of a foreign corporation. They are solely
those given by the law of domicile. Foreign corporations are permitted
by comity to exercise their powers within this State, when not in contra-
Proutsirion or Banxzina Powers. 37

 

The General Corporation Law, §§ 18, 19.

 

vention of our statutes or public policy. (In re Estate of Prime, 136
N. Y., 347.)

§ 18, Acquisition by foreign corporation of real property
in this state—Any foreign corporation may purchase at a sale
upon the foreclosure of any mortgage held by it, or, upon any
judgment or decree for debts due it, or, upon any settlement to
secure such debts, any real property within this state covered by or
subject to such mortgage, judgment, decree or settlement, and may
take by devise any real property situated within this state and hold
the same for not exceeding five years from the date of such pur-
chase, or from the time when the right to the possession thereof
vests in such devisee, and convey it by deed or otherwise in the
same manner as a domestic corporation.

(Former section 13, L. 1890, ch. 563, as amended by L. 1892, ch. 687,
and L. 1894, ch. 136.)

By the amendment of 1894 the provision was inserted extending to
foreign corporations the right to acquire real property by devise.

Sections 17 and 18 afford no warrant for ignoring the broad and general
authority contained in sections 15 and 16. Section 18 may still have an
office to perform in limiting the period of time for which a foreign cor-
poration, without a certificate from the Secretary of State, may hold land
taken for a debt, or purchased at a sale under a judgment or decree;
while the necessity for retaining section 17 is not readily perceived.
The foreign corporation, which desires to acquire real property, solely for
"use connected with the transaction of its business here, must, under sec-
tion 15, procure the certificate of the Secretary of State as a condition
of being permitted to carry on business and, having the certificate, its
right to do business as freely as a domestic corporation, necessarily
carries with it the recognition of the right to acquire and hold what real
property may be necessary for, that purpose. Both sections, possibly,
‘were retained in the revision of the corporation laws out of abundant
caution. Neither section is a new enactment; but merely the continua-
tion of an existing law. "Whatever the reason to be assigned for retaining
sections 17 and 18, the provisions of sections 15 and 16 contain an
authoritative declaration by the Legislature, and no attempt should be
made to refine away their comprehensive meaning. It is not the policy of
this State to prevent foreign corporations from acquiring and holding real
property here, if desired, for the transaction of any lawful business,
{Lancaster v. Amsterdam Improvement Co., 140 N. Y., 576.)

§ 19. Prohibition of banking powers.— No corporation
except a corporation formed under or subject to the banking laws,
shall by any implication of* construction be deemed to possess
the power of carrying on the business of discounting bills, notes
or other evidences of debt, of receiving deposits, or buying and

 

‘ coe the progress of the act through the Legislature the word ‘“‘or” became changed
o “ of, .
38 QuaLiFicaTIon or Mrmpers as VOTERS.

 

The General Corporation Law, § 20.

 

selling bills of exchange, or shall issue bills, notes or other evi-
dences of debt for circulation as money.

(Former section 14, L. 1890, ch. 563, as am’d by L. 1892, ch. 687; L. 1904,
ch. 236.)

The amendment of 1904 struck out the prohibition against buying gold .
or silver bullion and foreign coins previously contained in this section.

It is the settled policy of the Legislature to prévent corporations not
formed for banking purpcses from carrying on, or in any way interfering
with the same. (N. Y. Loan & Trust Co. v. Helmes, 77 N. Y., 64. See,
also, N. Y. Life Ins. & Trust Co. v. Beebe, 7 N. Y., 364; Pratt v. Short,
79 N. Y., 443-444.)

Certificates of deposit irredeemable within twenty years and gags
interest as loans are violations of this provision. (N. Y. Life Ins. &
Trust Co. v. Beebe, 7 N. Y., 364.)

§ 20. Qualification of members as voters.—Unless
otherwise provided in the certificate of incorporation, every stock-
holder of record of a stock corporation shall be entitled at every
meeting of the corporation to one vote for every share of stock
standing in his name on the books of the corporation; and at
every meeting of a non-stock corporation, every member, unless
disqualified by the by-laws, shall be entitled to one vote. The
stockholders of a stock corporation, by a by-law adopted by vote
at any annual meeting, or at any special meeting duly called for
such purpose, may prescribe a period, not exceeding forty days
prior to meetings of the stockholders, during which no transfer of
stock on the books of the corporation may be made. Except in
cases of express trust, or in which other provision shall have been
made by written agreement between the parties, the record holder:
of stock which shall be held by him as security, or which shall
actually belong to another, upon demand therefor and. payment
of necessary expenses thereof, shall issue to such pledger or to
such actual owner of such stock, a proxy to vote thereon. The
certificate of incorporation of any stock corporation may provide
that at all elections of directors of such corporation, each stock-
holder shall be entitled to as many votes as shall equal the num-
ber of his shares of stock multiplied by the number of directors
to be elected, and that he may cast all of such votes for a single
director or may distribute them among the number to be voted
for, or any two or more of them as he may see fit, which right,
when exercised, shall be termed cumulative voting. The stock-
holders of a corporation heretofore formed, who, by the pro-
visions of laws existing on April thirty, eighteen hundred and
ninety-one, were entitled to the exercise of such right, may here-
after exercise such right according to the provision of this section.
A stockholder may, by agreement in writing, transfer his stock to
QuaLiFICATION OF MEMBERS as VOTERS. 39

 

The General Corporation Law, § 20.

 

any person or persons for the purpose of vesting in him or them
the right to vote thereon for a time not exceeding five years upon
terms and conditions stated, pursuant to which such person or
persons shall act; every other stockholder, upon his request there-
for may, by a like agreement in writing also transfer his stock
to the same person or persons and thereupon may .participate in
the terms, conditions and privileges of such agreement; the cer-
tificates of stock so transferred shall be surrendered and cancelled
and certificates therefor issued to such transferee or transferees
in which it shall appear that they are issued pursuant to such
agreement and in the entry of such transferee or transferees as
owners of such stock in the proper books of said corporation that
fact shall also be noted and thereupon he or they may vote upon
the stock so transferred during the time in such agreement speci-
fied; a duplicate of every such agreement shall be filed in the
office of the corporation where its principal business is trans-
acted and be open to the inspection of any stockholder, daily,
during business hours. No member of a corporation shall sell his
vote or issue a proxy to vote to any person for any sum of money
or any thing of value. The books and papers containing the
record of membership of the corporation shall be produced at any
meeting of its members upon the request of any member. If
the right to vote at any such meeting shall be challenged, the
inspectors of election, or other persons presiding thereat, shall
require such books, if they can be had, to be produced as evi-
dence of the right of the person challenged to vote at such meet-
ing, and all persons who may appear from such books to be mem-
bers of the corporation may vote at such meeting in person or by
proxy, subject to the provisions of this chapter.

(L. 1890, ch. 563, § 20, as amended by L. 1892, ch. 687, and L. 1901, ch.
355.)

The last amendment, which took effect April 16, 1901, contains a saving
clause as follows:

§ 2. This act shall take effect immediately, but shall not affect any
action or proceeding pending in any court at the time it takes effect or
any right of any creditor of any corporation or of any stockholder
against any director under existing law, providing action thereon be
commenced within six months after this act takes effect, except as in
this act otherwise provided.

For form of pooling agreement, see post, form Nos. 149-150.

The system of cumulative voting above provided for is derived from
L. 1875, ch. 611, § 26.

This section, as amended in 1901, authorizes a provision in the certifi-
eate of incorporation to withhold. limit or amplify the voting power of
40 QuaLiricaTIoN oF MEMBERS as VOTERS.

 

The General Corporation Law, § 20.

 

the different classes of stockholders. Prior to this amendment every
stockholder was entitled to one vote for every share of stock held by
him, except when the certificate of incorporation provided for cumulative
voting. The amended section also empowers stockholders by a by-law to
prescribe the time for closing stock books for voting purposes, not exceed-
ing forty days prior to meetings of stockholders. This is in lieu of the
former provision which entitled persons who became stockholders at
least ten days prior to a stockholders’ meeting to vote thereat. Another
important change made in 1901 was the insertion of the provision author-
izing agreements for “pooling” stock or creating “ voting trusts,” and
the issuance of certificates of beneficial interest in lieu of stock deposited
with the trustee in pursuance of such agreement. The amendment of 1901
further provides that, except in certain specified cases, the real owner or
pledgor of stock standing in the name of another is entitled upon demand
and payment of necessary expenses, to receive a proxy to vote thereon.

One who votes or issues a proxy to vote at a corporate election with-
out being entitled thereto, or who, being entitled to vote, sells his vote
or proxy to vote is guilty of a misdemeanor. (Penal Code, section 613.)
As to stock book, inspectors of election and meeting for election of
directors. (Stock Corporation Law, sections 29, 28 and 20, respectively.)

A corporation which has purchased a majority of the stock of another
corporation may vote thereon the same as any other stockholder. (Oelber-
mann v. N. Y. & Northern R. R. Co., 77 Hun, 332; In re Buffalo, N. Y. &
Erie R. R. Co., 74 St. Rep., 345.) But such right does not authorize such
corporation to divert business to the injury of minority stockholders.
(Farmers’ Loan & Trust Co. v. N. Y. & N. R. R. Co., 150 N. Y., 410.)

An election will not be set aside on account of a mere informality.
(In re H. R. R. R. Co., 19 Wend., 135; Partridge v. Badger, 25 Barb., 146.)

When the regular stock book is not accessible directors must provide
a new one to enable stockholders to exercise their legal rights. (In re
The Argus Co. v. Manning, 138 N. Y., 557; Socorro M. Mining Co. v. Pres-
ton, 17 Misce., 220.)

It has been held, prior to the change in this section authorizing pooling
of stock, that an agreement that stock should be held for ten years, dur-
ing which time the power of attorney was to remain irrevocable, was not
void as against public policy. (Hey v. Dolphin, 92 Hun, 230.)

A shareholder may vote on a measure although personally interested
therein. (Gamble v. Queens County Water Works Co., 123 N. Y., 91.)

Stockholders are not divested of the right to vote by giving an option
to the purchasers of stock. (Matter of Newcomb, 42 St. Rep., 442.)

If votes erroneously rejected would, if received, have elected a certain
ticket, the election will be set aside. (In re L. I. R. R. Co., 19 Wend.,
37; ex parte Murphy, 7 Cow., 153.)

Married women who are stockholders have the same rights at cor-
porate elections as other stockholders. (Laws of 1851, ch. 321.)

As to powers of Supreme Court respecting disputed elections, see sec-
tion 27 of this law.

In the absence of provisions in the certificate or by-laws as to the
manner of voting. such voting must be by shares of stock owned by the
stockholders present. (Matter of Rochester Dist. Tel. Co., 40 Hun, 172.)
Proxies. 41

The General Corporation Law, § 21.

 

An administrator may vote, and a formal transfer to him on the books
is unnecessary. (Matter of No. Shore S. I. Ferry Co., 63 Barb., 556.)

The right of a stockholder to vote upon and to transfer his stock can
be limited only by a statute, or by a provision in the certificate of incor-
poration. (Kinnan v. Sullivan County Club, 26 App. Div., 213.)

A transfer of stock which is designed merely to give a transferee power
'tto vote, is void. (In re Glen Salt Co., 17 App. Div., 235; aff’d, 153 N. Y.,
688.) But this case was decided prior to the enactment of ch. 355, Laws
of 1901, which authorizes voting trusts.

Provisions of this section and section 29 of the Stock Corporation Law
sshould be construed together, respecting the right to vote for directors.
(In re Glen Salt Co., 17 App. Div., 235; aff’d, 153 N. Y., 688.)

A pledgee of stock, still standing on the books in the name of a
deceased pledgor, is not a stockholder. (Matter of First Nat. Bk. of
Brooklyn, 28 Misc., 662.)

No stockholder is bound to vote for a larger number of persons than he
chooses. (Vandenburgh v. Broadway Ry. Co., 29 Hun, 356.)

§ 21. Proxies.—Every member of a corporation, except a
religious corporation, entitled to vote at any meeting thereof may
so vote by proxy.

No officer, clerk, teller or bookkeeper of a corporation formed
‘under or subject to the banking law shall act as proxy for any
stockholder at any meeting of any such corporation.

Every proxy must be executed in writing by the member him-
‘self, or by his duly authorized attorney. No» proxy hereafter
‘made shall be valid after the expiration of eleven months from the
date of its execution unless the member executing it shall have
specified therein the length of time it is to continue in force,
which shall be for some limited period. Every proxy shall be
revocable at the pleasure of the person executing it; but a cor-
poration having no capital stock may prescribe in its by-laws the
‘persons who may act as proxies for members, and the length of
time for which proxies may be executed.

(Thus amended by L. 1892, ch. 687.)

For forms of prowies, see post, forms Nos. 14, 15 and 16.

A proxy need not be a stockholder, (In re Lighthall Mfg. Co., 47 Hun,
‘258.

- irrevocable proxy given to secure a debt is invalid. (In re Germicide
Co., 65 Hun, 606, 48 St. Rep., 294.)

Inspectors of election have no power to determine the genuineness of
‘proxies offered. If they are apparently the acts of stockholders, and
regular upon their face, that ends the matter, so far as the inspectors are
concerned.’ (In re Cecil, 36 How. Pr., 477. See, also, In re White v. N. Y.

State Agl. Soc., 45 Hun, 580.)
A proxy which merely states the year and month of the election, the
day not having been determined when it was signed, is sufficient. (In xe
42 CuaLtences; Farure ro cLecr Drirecrors.

 

The General Corporation Law, §§ 22, 23.

 

°
U. S. Cremation Co., 18 N. Y. Supp., 905, 46 St. Rep., 135; Matter of
Townshend, 46 St. Rep., 135.)

§ 22. Challenges.— Every member of a corporation offering:
to vote at any election or meeting of the corporation shall, if re-
quired by an inspector of election or other officer presiding at
such election or meeting, or by any other member present, take:
and subscribe the following oath: “I do solemnly swear that in
voting at this election I have not, either directly, indirectly or im-
pliedly received any promise or any sum of money or anything of
value to influence the giving of my vote or votes at this meeting
or as a consideration therefor.” Any person offering to vote as.
proxy for any other person shall present his proxy and, if so re-
quired, take and subscribe the following oath: “I do solemnly
swear that I have not, either directly, indirectly or impliedly,
given any promise or any sum of money or anything of value to-
induce the giving of a proxy to me to vote at this election, or
received any promise or any sum of money or anything of value
to influence the giving of my vote at this meeting, or as a con-
sideration therefor.” The inspectors or persons presiding at the
clection may administer such oath, and all such oaths and proxies.
shall be filed in the office of the corporation.

(Thus amended by L. 1892, ch. 687, and L. 1895, ch. 672, and L. 1901, ch..
355.)

The amendment of 1901 simplified the form of oath to be taken by @
challenged voter and conformed the section to the modified provisions of
section 20. For the saving clause in the act of 1901, ch. 355, preserving:
existing rights, see note to section 20.

For forms under this section, see post, forms Nos. 17 and 18.
For form of oath of inspectors and certificate of result, see post, forms Nos..
89 and 40.

§ 23. Effect of failure to elect directors.—If the di-
rectors shall not be elected on the day designated in the by-laws,
or by law, the corporation shall not for that reason be dissolved;
but every director shall continue to hold his office and discharge:
his duties until his successor has been elected.

(Former section 18, L. 1890, ch. 563, as amended by L. 1892, ch. 687.)

Provisions in statutes and by-laws requiring election on a specified day
are directory, and the electicn may be held at a later day. (Beardsley v.
Johnson, 121 N. Y., 224; St. George Vineyard Co. v. Fritz, 48 App. Div.,
233.

Cea holding over and continuing to act are directors de jure until
their successors are chosen. (Phila. & Rdg. C. & I. Co. v. Hotchkiss, 82
N. Y., 474.)
SpecraL Exections or Direcrors. 43

 

The General Corporation Law, §§ 24, 25.

 

The continuous neglect of a corporation for a number of years, to hold
any election of officers, affords a proper case for the issue of a mandamus.
(People ex rel. Walker vy. Albany Hospital, 11 Abb. Pr. (N. S.), 4. See, also,
People v. Twaddell, 18 Hun, 427; In re Vandenburgh v. Broadway Ry. Co.,
29 Hun, 348. See, also, 38 App. Div., 159.)

§ 24. Mode of calling special election of directors. —If
the election has not been held on the day so designated, the direc-
tors shall forthwith call a meeting of the members of the corpora-
tion for the purpose of electing directors, of which meeting notice
shall be given in the same manner as of the annual meeting for the
election of directors.

If such meeting shall not be so called within one month, or, if
held, shall result in a failure to elect directors, any member of the
corporation may call a meeting for the purpose of electing direc-
tors by publishing a notice of the time and place of holding such
meeting at least once in each week for two successive weeks im-
mediately preceding the election, in a newspaper published in the
county where the election is to be held and in such other manner
as may be prescribed in the by-laws for the publication of notice
of the annual meeting, and by serving upon each member, either
personally or by mail, directed to him at his last known post-office
address, a copy of such notice at least two weeks before the meet-
ing.

(Thus amended by L. 1892, ch. 687.)

For form of notice of special election, see post, forms Nos. 19 and 20.

Notice of election of directors. (Stock Corporation Law, section 20.)
By-laws regulating election to be published. (General Corporation Law,
section 11, subdivision 5, ante.)

§ 25. Mode of conducting special election of direc-
tors.—Such meeting shall be held at the office of the corpora-
tion, or if it has none, at the place in this state where its principal
business has been transacted, or if access to such office or place
is denied or can not be had, at some other place in the city, vil-
lage or town where such office or place is or was located.

At such meeting the members attending shall constitute a
qvorum. They may elect inspectors of election and directors and
adopt by-laws providing for future annual meetings and election
of directors, if the corporation has no such by-laws, and transact
any other business which may be transacted at an annual meeting
of the members of the corporation.

(Thus amended by L. 1892, ch. 687.)

A by-law which provides that ‘a majority of the stock, present in
person or by proxy, at any meeting of the stockholders shall constitute
44 QwvatiricaTion oF Voters anp ‘Canvass or VOTES.

 

The General Corporation Law, §§ 26, 27.

 

a quorum,” does not apply to an election, which is governed by section 20
of Stock Corporation Law. Any number of stockholders, however small
their holdings, may elect directors, provided they hold a plurality of
stock voted. (Matter of R. T. Ferry Co., 15 App. Div., 530, revsg. in part,
19 Misc., 409.)

As to inspectors, see, also, section 28 of the Stock Corporation Law, post.

(See In re Lighthall Mfg. Co., 47 Hun, 258.)

§ 26. Qualification of voters and canvass of votes at
special elections.—In the absence at such meeting of the books
of the corporation showing who are members thereof, each person,
before voting, shall present his sworn statement setting forth that
he is a member of the corporation; and if a stock corporation, the
number of shares of stock owned by him and standing in his name
on the books of the corporation, and, if known to him, the whole
number of shares of stock of the corporation outstanding. On
filing such statement, he may vote as a member of the corpora-
tion; and if a stock corporation, he may vote on the shares of stock
appearing in such statement to be owned by him and standing in
his name on the books of the corporation.

The inspectors shall return and file such statements, with a
certificate of the result of the election, verified by them, in the
office of the clerk of the county in which such election is held,
and the persons so elected shall be the directors of the corpora-

tion.
(Thus amended by L. 1892, ch. 687.)

For form of sworn statement of voter, see post, form No. 21.

The right to vote is determined by the transfer books which are con-
‘clusive upon the inspectors. (See People v. Tuthill, 31 N. Y., 550.)

For form of inspectors’ certificate for filing in county clerk’s office see
Stock Corporation Law, section 28, post.

§ 27. Powers of supreme court respecting elections.—
The supreme court shall, upon the application of any person or
corporation aggrieved by or complaining of any election of any
corporation, or any proceeding, act or matter touching the same,
upon notice thereof to the adverse party, or to those to be affected
thereby, forthwith and in a summary way, hear the affidavits,
proofs and allegations of the parties, or otherwise inquire into the
matters or causes of complaint, and establish the election or order
a new election, or make such order and give such relief as right
and justice may require.

(Former section 15, L. 1890, ch. 563, as amended by L. 1892, ch. 687.)

For form of petition to set aside election of directors, see post, form No. 22.
Powers or SuprREME Court Kespecting Exections. 45:

 

‘The General Corporation Law, § 27.

 

A trustee of an estate voting, despite protests of his co-trustee, upon
estate stock in favor of himself, will not be permitted to derive personal
profit therefrom. (Matter of Elias, 17 Misc., 718.)

Where one set of trustees claim to be de facto in office, and have posses-
sion of corporate books and assets, and a rival board, claiming to be trus-
tees de jure, are seeking to obtain possession of the corporate assets, a
court of equity will interfere. (Model Bldg. & Loan Assn. v. Patterson,
12 Misc., 400. See, also, Reis v. Rhode, 6 Civ. Proc. Rep., 406; Ciancimino
vy. Man, 1 Misc., 121; and cases cited.)

Only some person whose right has been infringed may institute pro-
ceedings under this section. (In re Syracuse, C. & N. Y. R. R. Co., 91
N. Y., 1.)

The court may go behind entries in the transfer book and determine
whether a transfer appearing thereon was a sale or only a pledge..
(Strong v. Smith, 15 Hun, 222; aff’d, 80 N. Y., 637.)

The court cannot compel inspectors to count votes which they have
erroneously refused. The only relief is to order a new election if justice
requires it. (People ex rel. Putzel y. Simonson, 61 Hun, 338.)

This section only authorizes an application to the court to establish or
set aside an election in a summary way, and not by mandamus. (People
ex rel. Putzel v. Simonson, 61 Hun, 338; In re The Argus Co. v. Manning,
138 N. Y¥., 587.)
"Where inspectors reject ballots, thereby causing no choice, a new elec-
tion was properly had. (People ex rel.Thorn v. Pangburn, 3 App. Div. 456.)

The fact that qualified persons were permitted to vote after the hour
for closing had expired, does not vitiate election. (Rudolph v. Southern
Beneficial League, 23 Abb. N. C., 190.) /

When a voter presents his ballot he does all that the law requires bim
to do. It is then the duty of inspectors to credit him with all the votes
to which the books show that he is’entitled. (Matter of Mutual Fire
Ins. Co., 51 App. Div., 163.)

The court has power to annul the election of an ineligible trustee, and
it is not necessary that the Attorney-General should proceed under section
1948 of the Code of Civil Procedure. (Matter of Northern Dispensary, 26
Mise., 147.) .

The provision as to notice does not make it necessary to notify all the”
stockholders. Notice to persons who claim to be elected and to the
cerporation is sufficient. (In re Schoharie Valley R. R. Co., 1 Abb., N. S.,
394.) The corporation must be a party and is entitled to nofice. (In re
Pioneer Paper Co., 36 How., 111.)

This proceeding and the one under the Code (secs. 1948-1956) are
exclusive of all other methods of testing the legality of an election. (W.
S. R. R. Co. v. Hay, 14 Abb., N. S., 191.)

All the persons complaining should be named and the alleged irregulari-
ties set out. (In re Mohawk & H. R. R. R. Co., 19 Wend., 135.)

The objections upon which the proceedings are based should be taken
at the time of the election. (In re Lighthall Mfg. Co., 47 Hun, 258.) See,
also, Matter L. I. R.. R. Co., 19 Wend., 37; In re-U. S. Cremation Co., 46
St. R., 185; Vandenburgh v. Broadway Underg. C. Ry. Co., 29 Hun, 348.)

The fact that another party is joined, without authority, as petitioner
with a stockholder, does not affect the latter’s right to have his petition
46 Stray or ProcrEeprncs.

 

 

Tie General Corporation Law, § 28.

 

heard. (In re Argus Co. v. Manning, 138 N. Y., 557.) Order to show
cause iu proceedings under this section may be granted by justice of the
Supreme Court out of court. (Id.) The receipt of illegal votes in favor
of one who has received a majority of legal votes cast will not defeat
his election. (Id.) ‘

Where a reorganization committee, holding sixty per cent. of the stock,
has been enjoined from voting, the election represents only the wishes
of a minority, and must be set aside. (Matter of Townsend, 24 Misc., 80.)

The validity of an election of a foreign corporation will not be deter-
mined in this State upon a motion for an injunction, nor does section
1948 of the Code apply to foreign corporations. (Washington Lighting
Co. v. Dimmick, 41 App. Div., 596.)

§ 28. Stay of proceedings in actions collusively
brought. —If an action is brought against a corporation by the
procurement or default of its directors, or any of them, to enforce
any claim or obligation declared void by law, or to which the cor-
poration has a valid defense, and such action is in the interest or
for the benefit of any director, and the corporation has by his con-
nivance made default in such action, or consented to the validity
of such claim or obligation, any member of the corporation may
apply to the supreme court, upon affidavit, setting forth the facts,
for a stay of proceedings in such action, and on proof of the facts
in such further manner and upon such notice as the court may
direct, it may stay such proceedings or set aside and vacate the
same, or grant such other relief as may seem proper, and which
will not injuriously affect an innocent party, who, without notice
of such wrong-doing and for a valuable consideration, has ac-
quired rights under such proceedings.

(Former section 16, L. 1890, ch. 563, as amended by L. 1892, ch. 687.)

A stay of proceedings will not be granted unless it is shown that
actions were collusively brought in the interest of a director. (Matter
of Gardner, 86 Hun, 30.)

Where a judgment is collusively obtained, a stockholder is entitled to
an order vacating the judgment. (Matter of Virgil, 26 Misc., 320.)

As to what matters are sufficient to constitute a cause of action.
(Phenix Nat. Bk. v. A. B. Cleveland Co., 34 St. Rep., 498; Meyers v. Scott,
20 St. Rep., 35.)

When injunction pendente lite is proper. (Hoyt v. Malone, 31 St. Rep.,
739.)

When resident stockholders may maintain action to restrain foreign
corporation. (Ives v. Smith, 28 St. Rep., 917. See Rogers v. Phelps, 31
St. Rep., 872.)

Where a contract of a corporation was voidable, but all the stock-
holders assented thereto, no fraud was practiced upon the company.
(Barr v. N. Y., L. E. & W. R. R. Co., 125 N. Y., 263. See, also, Thomas v.
Mus. Pro. Union, 121 N. Y., 45.)
Quorum or Directors anp Powers or Masority. 47

 

The General Corporation Law, § 29.

 

§ 29. Quorum of directors and powers of majority.—
The affairs of every corporation shall be managed by its
board of directors at least one of whom shall be a resident of
this state. Unless otherwise provided (by law) a majority of the
board of directors of a corporation at a meeting duly assembled
shall be necessary to constitute a quorum for the transaction of
‘business and the act of a majority of the directors present at a
meeting at which a quorum is: present shall be the act of the
board of directors. The members of a corporation may in by-
laws fix the number of directors necessary to constitute a quorum
at a number less than a majority of the board, but at least equal
to one-third of its number. Subject to the by-laws, if any adopted
by members of a corporation, the directors may make necessary
‘by-laws of the corporation.

(Thus amended by L. 1892, ch. 687; L. 1901, ch. 214; L. 1904, ch. 737.)

The last sentence but one was inserted in 1904. Prior to 1904 there
was no parenthesis enclosing the words “ by law.”

At least two directors were required to be residents of the State prior
to 1901. ;

A majority of a quorum of the board may act. (General Corporation
Law, section 39, and Statutory Construction Law, section 19, post.) Stock-
holders may make by-laws. (General Corporation Law, section 11, sub-
-division 5.) Effect of failure to adopt certain by-laws. (Stock Corpora-
tion Law, section 22.) Election, qualification and classification of direc-
tors. (Stock Corporation Law, section 20.) Change of number of direc-
tors. (Stock Corporation Law, section 21.)

A contract made by a director with the corporation is not void, but
merely voidable, in case he’ fails to show that it was fair, and that no
undue advantage was taken of his position. (Sage v. Culver, 147 N. Y.,
241; Barr v. N. Y., L. E. & W. BR. R. Co., 125 N. Y., 263; Marbury v.
Stone, 17 App. Div., 352; Strobel v. Brownell, 16 Misc., 657; Skinner v.
‘Smith, 134 N. Y., 240; Munson v. S. G. & C. BR. R. Co., 103 N. Y., 58;
Keans v. N. Y. & College Point Ferry Co., 17 Misc., 272; Davonne v.
Fanning, 2 Johns. Ch., 251.) If the contract is just, and all of the
stockholders are competent to assent, and do so, with full knowledge
of its terms, it is binding on the corporation. (Welch v. Importers &
‘Traders’ Nat. Bk., 122 N. Y., 177.) Delay in moving to set aside a void-
‘able contract may be deemed equivalent to ratification. (Barr v. N. Y.,
L. E. & W. BR. R. Co., 125 N. Y., 263.)

The fact that an officer of the corporation voted in favor of giving
him a salary does not render such contract void, but only voidable at the

“instance of the corparation, or one whose interests are concerned.
(Keans v. N. Y. & College Point Ferry Co., 17 Misc., 272.)

A court will not interfere with the control of a corporation by its
‘directors and a majority of its stockholders, although the directors may
have acted unwisely and not for the best interest of the corporation they
represented, unless it is shown that the action of the governing body has
been so clearly against the interests of the minority stockholders as to
amount to a wanton and fraudulent destruction of the rights of such
minority. (Hart v. Ogdensburg & Lake Champlain R. R. Co., 89 Hun,
‘316; Gamble v. Queens Co. Water Co., 123 N. Y., 91; Flynn v. Brooklyn
‘City R. R. Co., 9 App. Div., 269; Lewisohn Bros. v. Anaconda Copper
Mining Co., 26 Misc., 613; Beveridge v. N. Y. E. R. R. Co., 112 N. Y., 15
48  Qvorum or Directors anp Powers or Masority.

 

The General Corporation Law, § 29.

 

Leslie v. Lorillard, 110 N. Y., 519; Hawes v. Oakland, 104 U. S., 450.)
Mere errors of judgment on the part of directors .are not sufficient to
warrant interference. ((Hennessy v. Mublman, 40 App. Div., 175.)

All powers directly conferred by statute, or impliedly granted, of neces-
sity, must be exercised by the directors who are constituted by the law
as the agency for the doing of corporate acts. (Beveridge v. N. Y. Elev.
R. R. Co., 112 N. Y., 22; Leslie v. Lorillard, 110 N. Y., 536; People’s Bank
vy. St. Anthony R. C. Church, 109 N. Y., 512.)

It is only where the statute or the by-laws require it that co-oper-
ation of stockholders is needed. (Beveridge v. N. Y. El. R. R. Co., 112 N.
Y., 1; Dabney v. Stevens, 40 How. Pr., 341; Sheridan Elec. L. Co. v.
Chatham Nat. Bk., 127 N. Y., 517, aff’g 52 Hun, 580.)

No director can vote at a meeting of the board of directors by proxy.
(The Craig Med. Co. v. The Merchants’ Bank of Rochester, 59 Hun, 561.)

The board of directors may appoint an executive committee of its own
members with power to transact its business during the intervals between
the meetings of the board. (Olcott v. Tioga R. R. Co., 27 N. Y., 546; Sheri--
dan Elec. L. Co. v. Chatham Nat. Bank, 127 N. Y., 517.)

The board may delegate its authority to agents, or to a quorum com-
posed of less than a majority of the number. (Hoyt v. Thompson’s Execu-
tor, 19 N. Y., 201.)

Notes issued in the name of a corporation by trustees who have no
right to act by reason of having parted with their stock, and at a meet-
ing not duly notified, and as a scheme to saddle its liability upon its
stockholders, do not constitute valid claims as against its stockholders.
(Close vy. Potter, 155 N. Y., 145, revsg. 11 Mise., 729.)

It is the duty of a stockholder, if he desires to set aside acts of the
corporation, to act promptly, and in failing to do so he is estopped from
asserting any right as against a person acting in good faith. (Drake v.
N. Y. Suburban Water Co., 26 App. Div., 499.)

A resolution passed at a special meeting of the board of directors,
although its by-laws make no provision for a special meeting, held with-
out objection and not in violation of any by-law, at a proper place, upon
notice to all the persons elected as directors, and who have accepted the
office, and where all such persons are present, is valid. (United Growers
Co. v. Eisner, 22 App. Div., 1.)

The accumulation of a surplus by directors cannot be enjoined by a
stockholder so long as the directors are acting honestly and within their
discretionary powers. (Burden v. Burden, 159 N. Y., 287, aff’g 8 App
Div., 160.)

The directors are vested with no title to the corporate property; they
hare legal privity with the corporation only, and for the consequences of
their malfeasance or want of due care their liability is to it, and it is only
on the refusal of the corporation to sue that a stockholder, by virtue of
his equitable interest, may do so on behalf of the corporation for the ulti-
mate benefit of himself and other stockholders. (Empire State Say. Bk.
v. Beard, 81 Hun, 184; and cases cited.)

When one corporation obtains control of the board of directors of
another corporation, and, thereafter, without consideration, obtains the
property of the latter corporation, and so arranges its affairs as to render
Quorum or Directors anp Powers or Masority. 49

 

~The General Corporation Law, § 29.

all the shares of its stock, other than those held by the controlling corpo-
ration, valueless, a stockholder of the corporation which has been thus
despoiled, may maintain an action to redress the wrong done to his com-
pany. (Pondir v. N. Y., L. E. & W. BR. R. Co., 72 Hun, 385; Farmers’ Loan
& Trust Co. v. N. Y. & Northern Ry. Co., 150 N. Y., 410; Sage v. Culver,
147 N. Y., 241; Barr v. N. Y., L. E. & W. R. R. Co., 96 N. Y., 444.)

Directors are authorized to manage the business of the corporation,
audit and pay its debts, and make contracts within the ordinary scope
and business of the corporation. (Kelsey v. Sargent, 40 Hun, 150.)

If officers do an unauthorized act or incur indebtedness which would
not create a corporate liability, the stockholders may subsequently ratify
the acts and validate the transaction. (Martin v. Niagara F. P. Co., 122
N. Y., 172, aff’g 44 Hun, 130.) If an officer is allowed without inter-
ference for a long period to conduct the business of a corporation, the
inference that he has authority is justified. (Id.)

The liability of directors of a corporation on the ground of negligence
extends only to the damages sustained by the corporation as the natural
and proximate result of their acts or omissions. (Bloom v. Natl. United
Benefit Sav. & Loan Co., 152 N. Y., 114, aff’g 81 Hun, 120.)

Where it can fairly be gathered from all the allegations of a complaint
that the officers and directors of a corporation have made use of relations
of trust and confidence in order to secure or promote some selfish interest,
enough is then averred to set a court of equity in motion. (Watkins v.
Watkins & Turner Lumber Co., 11 App. Div., 517; Sage v. Culver,'! 147 N.
Y., 241; O’Brien v. Fitzgerald, 143 N. Y., 377.)

A contract pertaining to the ordinary business affairs of a corporaticn
made by its directors with a third party cannot be revoked by the stock-
holders. (Genesee Valley & Wyoming Ry. Co. v. Retsof Mining Co., 15
Mise., 187.) : ‘

Where a person makes a promissory note in the name of a corpora-
tion he impliedly warrants that he has authority to do so, and, if he has
no such authority, he is liable upon the implied warranty for the damages
which have resulted from the breach. (Miller v. Reynolds, 92 Hun, 400.)

A stockholder cannot enjoin the execution of a contract made by his
corporation with another corporation, within the corporate powers and
free from fraud, on the sole ground that the promoters of the contract
were directors in both corporations. (Burden vy. Burden, 159 N. Y., 287,
-aff’'g 8 App. Div., 160.)

As in the case of every other trustee or agent, no director can, in acting
on behalf of the corporation, reserve or secure to himself any advantage
or benefit. (Koster v. Pain, 41 App. Div., 443.)

An agreement whereby a majority of the directors holding a majority
of the corporate stock agree to so vote as to continue themselves in office
and to draw excessive salaries constitutes an unlawful combination and
is void. (Snow v. Church, 13 App. Div., 108.)

Directors have no right to vote themselves salaries as a mere incident
to their offices. They may, however, become employes of the corporation
and receive compensation therefor, but their action may be questioned by
stockholders and reviewed by the latter in equity. (Fitchett v. Murphy,
26 Mise., 544.)

4
50 Quorum or Directors anp Powrrs or Magorrry.

 

The General Corporation Law, § 29.

 

A railroad corporation, which has leased its road, but still maintains
its organization, may, by its board of directors, lawfully agree to com-
pensate its president for services rendered on behalf of the corporation.
(Bagley v. Carthage, W. & S. H. R. R. Co., 165 N. Y., 179, aff’g 25 App.
Div., 475.) '

An action brought by and in behalf of stockholders of a business cor-
poration in which it is alleged that the directors, at a time when the
company was insolvent, wrongfully and fraudulently transferred its
property’ to themselves or to preferred creditors, is equitable in its
nature, and cannot be maintained unless the corporation is made a party.
(Corning v. Barrett, 22 Misc., 241.)

Directors are bound to manage the corporate property and affairs in
good faith, and for a violation of that duty resulting in waste of assets,
injury to its property or unlawful gain to themselves, they are liable to
account to the corporation, or its representatives. (Bosworth v. Allen,
168 N. Y., 157, revsg. 57 App. Div., 633.)

Where the board of directors authorize proceedings for voluntary disso-
lution and an attorney is employed who takes the requisite action, the
proceeding is that of the corporation, and the directors are not personally
liable to the attorney. (Drew v. Longwell, 81 Hun, 144.)

It is the duty of courts to protect corporations from unauthorized acts
of its officers, yet when directors permit its officers to hold themselves out
as clothed with power to manage its affairs, and thus lead innocent per-
sons to contract with them, they cannot repudiate such contracts. (Par-
melee v. Associated Physicians & Surgeons, 11 Misc., 363.)

Where a corporation consists of a small number of persons, it may
transact business by conversation without the formality of resolutions,
(Hall v. Herter Brothers, 83 Hun, 19.)

It is only where the promoter informs every subscriber, or the director
informs every fellow director and stockholder, that he is personally inter-
ested in and of the amount of profit he expects to make on a sale to the
corporation, that the promoter or director will be permitted to retain or
pinay :. profit on such sale. (Colton Improvement Co. v. Richter, 26

se., 26.)

Directors cannot, without the consent of all the stockholders, make a
lease which involves an abandonment of the purposes of a corporation
for five years. (Hennessy v. Muhlman, 37 App. Div., 232.)

In an action to hold directors responsible to a receiver for neglectful
and wrongful performance of their duties, the action is one at law, and
more is required for the intervention of a court of equity than mere alle-
gations that the acts complained of are numerous and complicated.
(Dykman, as receiver of Commercial Bank, v. Keeney, 154 N. Y., 483,
revsg. 21 App. Div., 114.)

In an action to recover damages from directors and stockholders of a
corporation because of alleged fraudulent representations as to its pros-
perity and solvency, the defendants who were active in consummating
the fraud are to be deemed the agents of those who were passive.
(Reynolds v. Leyden, 24 App. Div., 395.)

The officers of a corporation have no implied power to execute a con-
tract which appears upon its face to be ultra vires, and persons claiming
under such a contract must prove that the officers had special authority
to execute it. (Broadway Theatre Co. v. Dessau Co., 45 App. Div., 475.)

A director may purchase the outstanding unmatured obligations of the
corporation at less than their par value and enforce them at maturity.
(Seymour v. Spring Forest Cem. Assn., 144 N. Y., 333.) He may loan
money to the corporation and receive mortgage security for his debt.
td

Direcrors as Trusters 1x Case oF DissoLuTion. 51

 

The General Corporation Law, § 30.

 

(Preston v. Loughran, 58 Hun, 210.) A director may purchase the cor-
Ba property at a foreclosure sale. (Harpending v. Munson, 91 N. Y.,
’ A director or stockholder of a corporation is not chargeable with actual
knowledge of its business merely because he is a director or stockholder.
(Rudd v. Robinson, 36 St. Rep., 501.)

In an action by a stockholder to require the officers or trustees of a
corporation to account for a breach of their trust, allegations as‘to the
dealing of such officers or trustees with the corporate property are proper.
(Scharf v. Warren-Scharf Paving Co., 15 App. Div., 480.)

While directors may not properly vote to discontinue an action, when
they are personally interested as defendants, yet a majority of the stock-
holders may do so. The latter are not disqualified to vote on a question
at a shareholders’ meeting because of an interest in the result. (Socorro
Mountain Mining Co. v. Preston, 17 Misc., 220, 40 N. Y. Supp. 1040.)

Money obtained from an outsider by a director by virtue of his office
belongs to the corporation. (McClure v. Law, 161 N. Y., 78, revsg. 20
App. Div., 459.)

A director can only become the purchaser of property of the corporation
subject to its right to elect to disaffirm the sale and demand a resale.
(Hoyle v.. Plattsburgh & Montreal R. R. Co., 54 N. Y¥., 329. See, also,
Bulkley v. Whitcomb, 121 N. Y., 107; Gardner v. Ogden, 22 N. Y., 332;
Kelsey v. Sargent, 40 Hun, 150, citing 38 N. Y., 201; 39 N. Y., 202; 37
N. Y., 317; 73 N. ¥., 511; 54 N. ¥., 314; 56 N. Y., 486; 103 N. Y., 58; 41
Hun, 489.)

Directors have no separate or individual authority to bind the corpo-
ration, and this, although a majority of the whole number acting singly
and not collectively as a board should assent to the particular transaction.
Such action must be taken at a meeting of the board. (People’s Bank v.
St. Anthony’s Church, 109 N. Y., 512, aff’g 39 Hun, 498.)

The collective authority of the trustees, acting as a board is necessary,
in order to bind the corporation by the action of the trustees. (Cammeyer
v. Churches, 2 Sandf. Ch., 186; Constant v. Rector, 4 Daly, 305.)

§ 30. Directors as trustees in case of dissolution —

Upon the dissolution of any corporation, its directors, un-
less other persons shall be appointed by the legislature, or by
some court of competent jurisdiction, shall be the trustees of its
creditors, stockholders or members, and shall have full power to
settle its affairs, collect and pay outstandimg debts, and divide
among the persons entitled thereto the money and other property
remaining after payment of debts and necessary expenses.

Such trustees shall have authority to sue for and recover the
debts and property of the corporation, by their name as such trus-
tees, and shall jointly and severally be personally liable to its cred-
itors, stockholders or members, to the extent of its property and
Sian: that shall come into their hands. °

(Thus amended by L. 1892, ch. 687.)

For proceedings for the dissolution of corporations without making
application to the court, see section 57 of the Stock Corporation Law.

For provisions as to judicial proceedings for voluntary and involuntary
dissolutions, see Code Civil Procedure, ‘sections 1784-1813, 2419-2431, post.

' This section is not applicable to a foreign corporation. (Wamsley v.
H. L. Horton & Co., Ltd., 12 App. Div., 312.) : .
:

52 Drercrors as Trustees rv Case or DissoLurion.

 

The General Corporation Law, § 30.

 

An action for libel, which has abated because of the dissolution of the
corporate defendant, may be continued and revived against the former
directors of the defunct corporation, in order to reach the assets in their
hands as the trustees under this section. (Shayne v. Even’g Post Pubg.
Co., 168 N. Y., 70, revsg. 56 App. Div., 426.)

After the term for which a corporation was organized has expired, its
assets, under the foregoing section, shall be held by the directors as
trustees for its creditors and stockholders with full power to close up its
affairs. (People ex rel. Haberman-v. James, 5 App. Div., 412.)

Where a corporation by the laws of the State of its incorporation, is in
effect continued in existence after the expiration of the term of its charter
for the purposes of suits by it to collect its debts, the provision that upon
dissolution the directors or other persons appointed by the Legislature, or
by some court of competent jurisdiction shall be the trustees of its cred-
itors and stockholders, with authority to sue for and collect its debts, has
no application. (The O’Reilly, Skelly & Fogarty Co. v. Greene, 18
Misc., 423.)

A cause of action for injuries caused by negligence of a corporation
survives its dissolution, and the action may be maintained against its.
directors. (Marstaller v. Mills, 143 N. Y., 398.)

The Legislature intended by this provision that the corporate property
should be held and administered upon by the directors, where other per-
sons were not appointed, for the purpose of its distribution in the settle-
ment of all existing claims upon it, whether the claimant was a creditor
in the légal sense or not. The term “creditor,” in view of the evident
purpose of this act, includes persons to whom the corporation was under
any enforceable obligation, as well as those to whom it was indebted.
(Marstaller v. Mills, 143 N. Y., 398.)

When the term of existence of a corporation expires no dissolution by
the court is necessary. (Sturges v. Vanderbilt, 73 N. Y., 384; People v..
Walker, 17 N. Y., 503.)

Upon the dissolution of a corporation, its real property does not revert
to the grantors thereof, but passes to the trustees under this section.
(Heath v. Barmore, 50 N. Y., 302.)

Upon the dissolution of a corporation, its remaining directors become
vested with the title to its property and responsible to its creditors and
stockholders for the value thereof. (People v. O’Brien, 111 N. Y., 1.)

Upon the expiration of the charter, the title to the corporate property
vests in the directors then in office, in trust for the creditors and stock-
holders. (Central City Savings Bank v. Walker, 66 N. Y., 424 ; see London
I. F. Co. v. Terbell, 48 N. Y., 427.)

This section expressly limits the liability of the directors as trustees to.
the extent of the property and effects that shall come into their hands.
(Hoffman v. Van Nostrand, 42 Barb., 174.)

A corporation which has been enjoined from the exercise of its cor-
porate franchises and deprived of its property, and thus has ceased:
to exist for all practical purposes, is not thereby actually dissolved. Until
a judgment dissolving it is rendered, creditors may proceed by suit against
it, unless restrained by injunction, and its stockholders do not cease to
be such. (Kincaid v. Dwinelle, 59 N. Y., 548; Decker vy, Gardner, 124
N. Y., 339.) %
Forrerrure ror Non-vsEr. 53

 

The General Corporation Law, § 31.

 

The assets of a corporation, upon its dissolution, become a fund for
the payment of its debts, including those to mature as well as accrued
indebtedness, and all open and subsisting engagements entered into by
the corporation. (People v. National Trust Co., 82 N. Y., 283.)

The foregoing section empowers the directors of'a corporation to act
as trustees for the settlement of its affairs in case of the termination
of the existence of the corporation by limitation, or in case of a dissolu-
tion, when no other persons are appointed by the court or Legislature to
act as trustees for the purpose of winding up its affairs.

A corporation cannot cease to exist of its own will; its life continues
until either the charter period has expired or the court has decreed a dis-
solution. (People v. Ballard, 134 N. Y., 269 ; id., 186 N. Y., 639.) A busi-
ness corporation, therefore, cannot sell all of its property to another cor-
poration, either foreign or domestic, organized through its procurement,
for the purpose of taking its place and its assets and earrying on its busi-
hess ; as this is a practical dissolution of the corporation. (Id.) While
the stockholders who assented to such an unlawful disposition of the
corporate property may be estopped thereby, those not assenting are
not bound, and the State may demand that those of the officers of the
corporation who did the wrong shall make restitution. (Id.} The fact
that the trustees, in making the transfer, acted in good faith does not
validate it, and the fact that there may be difficulty in the final adjust-
ment of rights because some of the stockholders assented, constitutes no
defense to the action. (Id.) But all the stockholders uniting might
undoubtedly surrender the franchises of a corporation and work its dis-
solution. (Denike v. N. Y. & R. Lime & Cement Co., 80 N. Y., 606.)
‘Query, can a portion of them do so in the absence of statutory authority
when the corporation is unable to conduct its business without loss,
{People v. Ballard, 186 N. Y., 639.)

Subsequent to the determination of the matters in controversy in
Denike v. N. y. & R. Lime & Cement Co. (80 N. Y., 606.), and People v.
Ballard (186 N. Y., 639), last above cited, new provisions were enacted
whereby a stock corporation may, under prescribed restrictions, sell and
convey its property, rights, privileges and franchises to a domestic cor-
poration. (See Stock Corporation Law, sec. 33, post.)

§ 31. Forfeiture for non-user.—If any corporation, except
@ railroad, turnpike, plank-road or bridge corporation, shall not
organize and commence the transaction of its business or undertake
the discharge of its corporate duties within two years from the
date of its incorporation, its. corporate powers shall cease.

(Former section 21, L. 1890, ch. 563, as amended by L. 1892, ch. 687.)

By the amendment of 1892 the period within which a corporation is
compelled to exercise. a user of its corporate rights and franchises is
changed from one year to two-years.

An action against a corporation to obtain an adjudication that its cor-
porate powers have ceased, as provided in this section, may be main-
tained by the Attorney-General under section 1798 of the Code of Civil
,Procedure. (People ex rel. Hearst v. Ramapo Water Co., 51 App. Div., 145.)
54 ForFerturE ror Non-usser.

 

The General Corporation Law, § 31.

 

The words ‘all rights and privileges granted hereby shall be null and
void” do not render a forfeiture clause self-executing. (Matter of New
York & Long Island Bridge Co. v, Smith, 148 N. Y., 540.) The question
whether a forfeiture clause is or is not self-executing depends wholly
upon the language employed by the Legislature. (Id.)

Where the words of forfeiture were, “the corporation shall be dis-
solved” the default did not work a dissolution ipso facto, but proceedings
were necessary to accomplish an actual dissolution. (People v. Buffalo
Stone & Cement’ Co., 181 N. Y., 140.)

A forfeiture clause which provides that in case of default by the cor-
poration, “its corporate existence and powers shall cease,” is self-execut-
ing, and the corporate powers cease without judicial proceedings. (In re
Brooklyn, Winfield & Newtown R. R. Co., 72 N. Y., 245.) And the corpo-
rate existence ceased by the mere fact of failure of a corporation to
perform certain acts imposed by the charter, in which the words of for-
feiture were, “this act and all the powers, rights and franchises herein
and hereby granted shall be deemed forfeited and terminated.” (Brooklyn
Steam Transit Co. v. Brooklyn, 78 N. Y., 524.) But, where it was pro-
vided that in case of default, the company should “forfeit the rights
acquired by it,” it was held that the provision did not ex proprio vigore
put an end to the corporate life in case of default, but simply exposed the
company to proceedings on behalf of the State to establish and enforce
the forfeiture. (In re Brooklyn Elevated R. R. Co., 125 N. Y., 484.)

While it is true that corporate powers or franchises can be transferred
to an individual only by legislative sanction, yet the property of a bus-
‘iness corporation merely can be vested in an individual by his purchase
of all the stock of a corporation to such an extent at least that it cannot
be assailed collaterally. (Boyer v. Village of Little Falls, 5 App. Div., 1.)

Notwithstanding that a business corporation had not exercised any cor-
‘porate functions in thirty-seven years, yet such corporation or its prop-
erty rights cannot be attacked or adjudicated upon collaterally, as the
privileges and franchises granted to a private corporation are vested
rights, and cannot be divested or altered without either the consent of
the corporation or by virtue of a forfeiture declared by the proper tribunal.
(Boyer v. Village of Little Falls, 5 App. Div., 1.)

A corporation omitting to perform a duty imposed by its charter or to
comply with its provisions does not ipso facto lose its corporate character,
or cease to be a corporation, but simply exposes itself to the hazard of
being deprived of its corporate character and franchises by the judgment
of the court in an action instituted for that purpose by the Attorney-Gen-
eral in behalf of the people. (Brooklyn Steam Transit Co. v. Brooklyn,
78 N. ¥., 529; Day v..Ogdensburg & Lake Champlain R. R. Co., 107
N. Y., 129.)

If a cause of forfeiture against the corporation exists, there is nothing
in the conduct of any of the stockholders or officers of the corporation
which can defeat the rights of the people to enforce the forfeiture.
(People v. B. S. & C. Co., 181 N. Y., 144; Application of B. E. R. R. Co.,
125 N. Y., 484; People v. Atlantic Avenue R. R. Co., 125 N. Y., 513.)

Where it appears that a corporation has never exercised its powers or
franchises and that such non-user is willful and without justification, and,
also, that it has conspired, through its officers, to do illegal acts, the

°
Extension or Corporatr EXIsTENcRE. 55.

 

_ The General Corporation Law, § 32.

 

Attornay-Ganexal may maintain an action for its dissolution. (People v.
-The Milk Exchange, Ltd., 133 N. Y., 565.)

The State may, by legislative enactment, waive forfeitures and recog-
nize the existence of a corporation and may also grant such corporation
other .and further powers. (Bohmer vy. Haffen, 22 Misc., 565; Matter of
N. Y. El. R. R. Co., 70 N. Y., 327.)

§ 32. Extension of corporate existence.—Any domestic
corporation at any time before the expiration thereof, may ex-
tend the term of its existence beyond the time specified in its
original certificate of incorporation, or by law, or in any certificate
of extension of corporate existence, by the consent of the stock-
holders owning two-thirds in aniount of its capital stock, or if not
a stock corporation, by the consent of two-thirds of its members,
which consent shall be given either in writing or by vote at a
special meeting of the stockholders called for that purpose, upon
the same notice as that required for the annual meetings of the
corporation; and a certificate. under the seal of the corporation
that such consent was given by the stockholders in writing, or
that it was given by vote at a meeting as aforesaid, shall be
subscribed and acknowledged by the president or a vice-presi-
dent, and by the secretary or an assistant secretary of the cor-
poration, and shall be filed in the office of the secretary of state,
and shall by him be duly recorded and indexed in a book spe-
cially provided therefor, and a certified copy of such certificate,
with a certificate of the secretary of state of such filing and
record, or a duplicate original of such certificate, shall be filed
and similarly recorded and indexed in the office of the clerk of
the county wherein the corporation has its principal place of
business, and shall be noted in the margin of the record of the
original certificates of such corporation, if any, in such offices,
and thereafter the term of the existence of such corporation shall
be extended as designated in such certificate. If the term of
existence of any domestic corporation shall have expired and it
shall be made satisfactorily to appear to the supreme court that
such corporation was legally organized, pursuant to any law of
this state, and that it shall have issued its bonds payable at a
date beyond the date fixed in its charter or certificate of in-
corporation for the expiration of its corporate éxistence, and such
bonds shall be unmatured and unpaid, the supreme court may,
upon the application of any person interested and upon such
notice to such other parties as the court may require, by order,
authorize the filing and recording of a certificate reviving the
existence of such corporation, upon such conditions and with ,
1

56 Extension or Corporate EXISTENCE.

 

The General Corporation Law, § 32.

 

such limitations as such order shall specify, and extending such
corporate existence for a term not exceeding-the term for which
it was originally incorporated. Upon filing and recording such

_ certificate in the same manner as certificates. of extension of
corporate existence duly issued before the expiration of the exist-
ence of a domestic corporation is authorized by law to be filed and
recorded, such corporate existence shall be revived and extended in
pursuance of the terms of such order, but such revival and exten-
sion shall not affect any litigation commenced after such expiration
and pending at the time of such revival. If a corporation formed
under or subject to the banking law, such certificate shall not be
filed or recorded unless it shall have indorsed thereon the written
approval of the superintendent of banks; or, if an insurance corpo-
ration, unless it shall have indorsed thereon the written approval of
the superintendent of insurance; and, if a turnpike or bridge corpo-
ration, it shall not be filed unless it shall have indorsed thereon or
annexed thereto a certified copy of a resolution of the board of
supervisors of each county in which such turnpike or bridge is
located, approving of and authorizing ‘such extension. If all the
stock of a corporation other than a corporation formed under or
subject to the banking law, or an insurance corporation, or a turn-
pike, plank-road or bridge corporation shall be lawfully owned by
another stock corporation entitled by law to take a surrender and
merger thereof, the corporate existence of such corporation whose
stock is so owned may be extended at any time for the term of the
‘corporate existence of the possessor corporation, by filing in the
office or offices in which the original certificate or certificates of
incorporation of the first-mentioned corporation were filed a certifi-
cate of such extension executed by its president and secretary
and by such corporation owning all the shares of its capital stock.
Every corporation extending its corporate existence under this
chapter or under any general law of the state shall thereafter be
subject to the provisions of this chapter and of such general law,
notwithstanding any special provisions in its charter, and shall
thereafter be deemed to be incorporated under the general laws of
the state relating to the incorporation of a corporation, for the
purpose of carrying on the business in which it is engaged, and
shall be subject to the provisions.of such law. The certificate of
incorporation of any corporation whose duration is limited by such
certificate or by law, may require that the consent of stockholders
owning a greater percentage than two-thirds of the stock, if a stock
corporation, or of more than two-thirds of the members, if a non-

_ stock corporation, shall be requisite to effect an extension of corpo-
rate existence as authorized by this section.

(Former section 22, L. 1890, ch. 563, as amended by L. 1892, ch. 687;
L. 1900, ch. 177; L. 1901, ch. 355; L. 1905, ch. 256.) ;
. For form of certificate of extension of eristence, sce form No. 23.
_+ Cowriictine Corporate Laws. 57

 

The General Corporation Law, § 33.

 

As amended in 1901, this section provides that the extension of exist-
ence may be made at any time before the expiration of the charter, and
that the consent may be in writing, or may be given at a special meeting
of the stockholders called for that purpose. These two alternative
methods are in lieu of the former provision whereby the extension could
only be effected by the filing of a written consent, within three years
before the expiration of the corporate existence.

§, 38. Conflicting corporate laws.—lIf in any corporate
law there is or shall be any provision in conflict with any pro-
visions of this chapter or of the stock corporation law, the pro-
visions so conflicting shall prevail, and’ the provision of this chap-
ter or of the stock corporation law with which it conflicts shall not
apply in such a case. If in any such law there is or shall be a
provision relating to a matter embraced in this chapter or in the
stock corporation law, but not in conflict with it, such provision
in such other law shall be deemed to be in addition to the pro-
vision in this chapter or in the stock corporation law relating to
the same subject-matter, and both provisions shall, in such case,
be applicable.

(Added by L. 1892, ch. 687.) ;

When a statute amends a former statute “so as to read as follows,” it
operates as a repeal by implication of inconsistent provisions in the
former law, and of provisions omitted in the amended law. (In re Estate
of Prime, 136 N. Y., 347.) Where the amended act re-enacts provisions
in the former law, either ipsissimis verbis or by the use of equivalent
though different words, the law will be regarded as having been continu-
ous. (Id.)

Provisions in the Business Corporations Law, the Transportation Corpo-
rations Law and the Railroad Law similar to and not in conflict with the
provisions of the General Corporation Law and the Stock Corporation
Law, must be deemed to be in addition to the provisions of said last-
mentioned laws. (Oelbermann v. N. Y. & Northern Ry. Co., 77 Hun, 332.)

Where a general act conflicts with a special act, the latter is not to be
deemed repealed by implication. (In re Brown v. ‘Duane, 39 St. Rep., 694.)

Special privileges granted by the Legislature to a gas company in con-
sideration of its furnishing gas at a specified price were not taken away
by repeal of the law granting them and the enactment of provisions simi-
lar to the foregoing section. (People ex rel. Standard Gas Light Co. v.
Gilroy, 22 N. Y. Supp., 271.)

Although a-statute is not expressly repealed by a subsequent enaick:
ment upon the same subject, yet, if it appears by the latter statute that
it was intended to cover the subject-matter of the former, the prior statute
will be deemed by implication to have been repealed. (People v. Vos-
burgh, 76 Hun, 562.)

Where a revising statute covers the whole subject-matter of aatecedent
statutes. and such plainly appears to have been the legislative intent, it
is to be deemed to contair the entire law upon the subject, and it virtu-
58 Laws Repeatep; Savina Crauvse.

 

The General Corporation Law, §§ 34, 35.

 

ally repeals the former enactments. (Matter of N. Y. Institution for
Deaf, etc., 121 N. Y., 234.)

A repeal of statutes by implication is not favored in the law; and
when both the latter and former statute can stand together, both will
stand unless the former is expressly repealed, or the legislative intent to re-
peal it is very manifest. (People ex rel. Kingsland v. Palmer, 52 N, Y., 83,88.)

Where it is intended to alter or repeal an existing statutory enactment,
the act itself should contain provisions to that effect, or it should be
plainly manifest that such was the design, by the latter act being repug-
nant to and inconsistent with the former. (Mark et al. v. The State, 97
N. Y., 578.)

A repeal by implication because of inconsistency or repugnancy should
never be declared where a reasonable construction will harmonize stat-
utes alleged to be conflicting. (People v. Crissey, 91 N. Y., 632.)

The invariable rule of construction in respect to the repealing of stat-
utes by implication, is, that the earliest act remains in force, unless the
‘two are manifestly inconsistent with and repugnant to each other, or,
unless in the latest act, some express notice is taken of the former, plainly
indicating an intention to abrogate it. (Bowen v. Lease, 5 Hill, 226.)

§ 34. Laws repealed— Of the laws enumerated in the
schedule hereto annexed, that portion specified in the last column
is repealed. Such repeal shall not revive a law repealed by any
law hereby repealed, but shall include all laws amendatory of the
laws hereby repealed.

(Former section 23, L. 1890, ch. 563, as amended by L. 1892, ch. 687.)

The provisions of the second sentence are also embodied in the Statu-
tory Construction Law, section 31, post.

The effect of the repeal of a repealing law is to restore the law repealed
by the latter, in the absence of a contrary intention expressly declared or
necessarily to be implied. (Ottman v. Hoffman, 7 Misc., 714, and cases.
there cited.)

A legislative intent to revive a law which has, by legislative action,
already been wholly annihilated, is not alone sufficient to accomplish such
revival; there must be some legislative expression using language equiva-
lent to a re-enactment. (Bank of Metropolis v. Faber, 150 N. Y., 200;
Same v. Same, 1 App. Div., 341, disapproving Ottman v. Hoffman, 7
Misc., 714, supra.)

The annexed schedule includes laws repealed by the General Corpora-
tion Law, the Stock Corporation Law, the Railroad Law, the Transporta-
tion Corporations Law and the Business Corporations Law, respectively,
in71890.

§ 35. Saving clause.— The repeal of a law or any part of
it specified in the annexed schedule shall not affect or impair any
act done, or right accruing, accrued or acquired, or liability, pen-
alty, forfeiture or punishment incurred prior to May 1, 1891,
under or by virtue of any law so repealed, but the same may be
asserted, enforced, prosecuted or inflicted, as fully and to the
CongtTRUCTION. 59:

 

The General Corporation Law, § 36.

same extent as if such law had not been repealed. All actions and.
proceedings, civil or criminal, commenced under or by virtue of
the laws so repealed, and pending on April 30, 1891, may be
prosecuted and defended to final effect in the same manner as
they might under the laws then existing, unless it shall be other-
wise specially provided by law.

(Former section 24, L. 1890, ch. 563, as amended by L. 1892, ch. -687.)

Provisions similar to the foregoing are embodied in the Statutory Con-
struction Law, section 31, post.

In the absence of evidence as to the precise time of day it was approved
by the Governor, an act which contains a provision that it shall take
effect immediately operates during the entire day of its approval. (Cro-
veno v. Atlantic Ave. R. R. Co., 150 N. Y., 225; Niendorff v. Manhattan
Ry. Co., 150 N. Y., 276.)

The effect upon a prior statute of a subsequent amendment “ so as to
read as follows” is not to be determined in.4ll cases by any fixed and
absolute rule, but frequently becomes a question of legislative intent to
be determined from the nature and language of the amendment and from
all the circumstances of the case. (Bank of the Metropolis v. Faber, 150
N. Y., 200; In re Rochester Water Comrs., 66 N. Y.; 415; People v. Clute,
50 N. Y., 451.) :

A statute which is amended and re-enacted so as to read as prescribed:
in the amendatory statute is thereby wholly annulled as to all future
cases, and, except as to rights and duties already existing, becomes
merged and incorporated in the later statute. (People v. Wilmerding, 136.
N. Y., 363, distinguishing In re Prime, 136 N. Y., 347.) ‘

The repeal of the Business Corporations te of 1875 by chapter 687, Laws
of 1892, did not affect a cause of action existing under the former statute,
upon which proceedings were commenced May 19, 1892, as it was pre-
served by the foregoing saving clause. (Christie v. Bowne, 83 Hun, 107.)

The liability of stockholders in-a corporation formed under Laws of
1875, chapter 611 (now repealed), for debts of the corporation thereafter
incurred until the capital stock is all paid in, was preserved by the saving
clauses of the repealing acts of 1890. and 1892. (Berwind-White Coal
Mining Co. v. Ewart, 11 Misc., 490.)

A proceeding regularly commenced by a corporation under a then exist-
ing law, which was thereafter repealed, represents a right accruing and
can be enforced as fully as if no appeal had been enacted. (Cameron v.
N. Y. & Mt. Vernon Water Co., 62 Hun, 269; aff’d, 183 N. Y., 336.)

§ 386. Construction.— The provisions of this chapter, and of
the stock corporation law, the railroad law, the transportation cor-
porations law, and the business corporations law, so far as they
are substantially the same as those of laws existing on April 30,
1891, shall be construed as a continuation of such laws modified or
‘.amended according to the language employed in this chapter, or
in the stock corporation law, the railroad law, the transportation
corporations law, or the business corporations law, and not as
‘new enactments. :

References in laws not repealed to provisions of laws incor-
porated into the general laws hereinbefore enumerated and re-
pealed, shall be construed as applying to the provisions so incor-
porated.

 
60 CoNnsTRUCTION.

 

The General Corporation Law, § 37.

 

Nothing in this chapter or in the other general laws hereinbe-
fore specified shall be construed to amend or repeal any provision
of the Criminal or Penal Code or to impair any right or liability
which any existing corporation, its officers, directors, stockholders
or creditors may have or be subject to or which any such corpora-
tion, other than a railroad corporation, had or was subject to on
April 30, 1891, by virtue of any special act of the legislature
creating such corporation or creating or defining any such right
or liability, unless such special act is repealed by this chapter.

(Former section 25, L. 1890, ch. 563, as amended by L. 1892, ch. 687.)

Provisions similar to the first and second paragraphs, respectively, of
the preceding section were also enacted in the Statutory -Construction
Law, section 36, ‘post.

The Legislature has power, without violating the Federal Constitution,
to repeal or amend laws pertaining to business or stock corporations
formed under the law of 1875, and to prescribe the liability of stockholders
in such corporations to its creditors for debts contracted after the act
was repealed or amended. (Berwind-White Coal Mining Co. v. Ewart,
11 Misc., 490.)

A later statute covering the same subject-matter as a prior statute and
embracing new provisions operates to repeal the prior act, although the
two acts are not in express terms repugnant. (McDermott v. Nassau
Electric R. R.:Co., 85 Hun, 422. See, also, People v. Wilmerding, 136 N. Y.,
363.),

The rule that a special act is not affected by a subsequent general act
‘does not apply if the intent is manifest that the general act should apply
to all cases, whether existing under general or special acts. (McKenna
v. Edmundstone, 91 N. Y., 233.)

The saving and construction clauses of the Stock Corp. Law of 1890, ch.
564, §§ 71, 72, which preserved under that law an existing lability of ©
‘stockholders under the Manufacturing Act of 1848, ch. 40, were not em-
bodied in the amended Stock Corp. Law of 1892, ch. 688, but the equiva-
Yent thereof was accomplished by inserting these clauses in the Stat.
Const. Law. of 1892, ch. 677, §§ 31, 32, and continued the liability of stock-
holders theretofore existing into the new and amended law. (Close v.
Potter, 155 N. Y., 145, revsg. 11 Misc., 729.)

In construing a statute, the court ‘should ascertain and carry out the
intention of the Legislature, and where the use of certain words in the
statute is inconsistent with that intention, or makes the whole clause
meaningless or absurd, the court may reject such words when, by their
rejection, the clear intention of the Legislature may be carried out.
(Gusthal v. Strong, 23 App. Div., 315.)

§ 37. Law revived.—Chapter three hundred of the laws of
eighteen hundred and fifty-five, entitled “ An act to incorporate
the Baptist Historical Society of the city of New York,” which
was inadvertently repealed by the transportation corporations law,
is revived and re-enacted, and shall be of the same force and effect
as if it had not been repealed.

(Added by L. 1892, ch. 687.)

This section is self-explanatory.
Law Revivep; Waiver or Notice, ETc. 61

 

The General Corporation Law, §§ 38-40.

 

§ 38. When notice or lapse of time unnecessary.— Whenever under
the provisions of any of the corporate laws a corporation is authorized
to take any action after notice to its members or after the lapse of a
prescribed period of time, such action may be taken without notice and
without the lapse of any period:of time, if such action be authorized or
approved, and such requirements be waived in writing by every member
of such corporation, ot by his attorney thereunto authorized.

(New provisions added by L. 1895, ch. 672.)

For forms of reference to waiver for insertion in certificate of proceedings,.
see post, form No. 133. :

For forms of waiver of notice by stockholders, see post, forms Nos. 60 and.
130, respectively. ‘

§ 39. As to acts of directérs.— Whenever, under the provisions of any
of the corporate laws, a corporation is authorized to take any action by
the agreement or action of its directors, managers or trustees, such.
agreement or action may be taken by such directors, regularly convened
as a board, and acting by a majority of a quorum, except when other-.
wise expressly required by law or the by-laws of the corporation and.
any such agreement shall be. executed in behalf of the corporation by
such officers as shall be designated by the board of directors, managers.
or trustees. At any meeting at which every member of the board of
directors shall be present, though held without notice, any business may
be transacted which might have been transacted if the meeting had been
duly called. Except when otherwise required by law or the by-laws of
the corporation, special meetings of the members of the corporation.
may be called in the same manner as the annual meeting thereof.

(New, added by L. 1895, ch. 672, and amended by L. 1901, ch. 355.)

The amendment of 1901 consisted of the addition of the’ last two
sentences.

§ 40. Alteration and repeal of charter.— The charter of every cor-
poration shall be subject to alteration, suspension and repedl, in the
discretion of the legislature. ,

(New, added by L. 1895, ch. 672.)

§ 41. Political contributions prohibited.— No ecprporation or joint-
stock association doing business in this state, except a corporation or
association organized or maintained for political purposes only, shall
directly or indirectly pay or use or offer, consent-or agree to pay or use
any money or property for or in aid of any political party, committee
or organization, or for, or in aid of, any corporation, joint-stock or
other association organized or maintained for political purposes, or for,
or in aid of, any candidate for political office or for nomination for such
office, or for any political purpose whatever, or for the reimbursement
or indemnification of any person for moneys or property so used. Any
officer, director, stockholder, attorney or agent of any corporation or
joint-stock association which violates any of the provisions of this.
section, who participates in, aids, abets or advises or consents to any
such violation, and any person who solicits or knowingly receives any
money or property in-violation of this section, shall be guilty of a mis-
demeanor and punishable by imprisonment in a penitentiary or county
jail for not more than one year and a fine of not. more than one thou-
sand dollars. No person shall be excused from attending and testifying,
or producing any books, papers or other documents before any court
or magistrate, upon any investigation, proceeding or trial, for a viola-
tion of any of the provisions of this section, upon the ground or for the
reason that the testimony or evidence, documentary or otherwise,
required of him may tend to convict him of a crime or to subject him
to a penalty-or forfeiture; but no person shall be prosecuted or sub-
jected to any penalty or forfeiture for or on account of any trans-
action, matter or thing concerning which he may so testify or produce
evidence, documentary or otherwise, and no testimony so given or pro-
duced shall be received against him upon any criminal investigation or
proceeding.

(New, added by L. 1906, ch. 239.) é

 
62 Scurepvute or Laws Rerearap.

 

 

The General Corporation Law.

Scuepvute or Laws REPEALED.

Revised Statutes.......... Part 1, chapter 18........
Laws of Chapter Sections,
ABV sss aicuoss 0.00 sere a i All
LSID sen cess avadeeews te ee ee All
LSE camara tde nw dauee Ms ao itvew wedges es All
LB1G o.4 skew Saleen DS. Steak ewes All
LOE o74 eee ete cures 220 ieee Sew Wow He's All
L818 sie wash oe seein s Olid nen sea ee All
1BLD av deneee reese s ee ee eee All
1821..... oe cece enaee DA Sie a eect veleanncera eee All
1822 eee eeceees QU ice digoke Gore pais eS All
1836.......0. eeseees DB4  ccrid Saker ee es All
1836... ccceceeccaees BIG sis cewe Va ewe eels All
18B8. ec ccecencevess 60. ei asce ea cin ee ee All
1838... .ccseeee eeeees 1G1ee saenmussh scene All
1838......... Samia, DOD ea wediareteeseaver as All
1B90s sev ecasseeeeses Lee iorGuees eww es All
1842....... sonsceces LEB... eee eens All
1846......... vemees'e LBD) vate cie wee sars All
DBEG os as gece eiciate as 210 sus eee edewneww es 17, 18.
BAG ii hi hagens ates TOs cua ihea mean nee 3, 4
LBA oo ac ewe senna es PO. sree eines een esis All
DBAT ov eeee ee eave xs DOD eee eekeawsis he eas All
ASAT ca saminwwwed sane DH Us a cedlaiee stem asc eps All
DBAT Seedieedenaseaes BR Oe Soin anes ewe All
IGAT Seat enicn sea ne ds 20 ses eeeu see RES All
Lc ereeer errr er ree Le eee ee All
LOE ch ve wen Giana es oe ee oe All
LOA o ciewiewanea eee 0D as dee eA eee Es All
TBSS ces owsvaon ewes Cl eeniedesoawnanaes All
1848. .ccccccccccacss MOV etcew ks peate ae All.
IS4S  taaiccenissase's  EOe ce eeaeegeness All.
1848. cecccccccccces 208s ccnwwxw sen ears All.
1848... scccccveveses LEE... cc cece scans All.
B48. scccccssccvenges BOO. cisseccecaceces All.
1849... ccccvvcecnces 250... cc cece ee ceees AIL
1849... csvcwccccccces. SOD. cece sees enees All.
1850. cocdisescexeces Tleswsaew es ava eae All.
1800. s asiceensevicnnne LEQ. caseusawesaaans All.

WDSOLS cicceetee es cep ews U4 ratsiacs Gun ele ba aanw hate All.
Sogepute or Laws Repzarep. 63

 

The General Corporation Law.

 

Paws of Chapter Sections.
TON aro sehen wreetdagst DOs cairn oe eeu All.
Wolscewvesesexesias OSipeescrcsaces see All:
MSGS ci devece eecioees 1OT cates pase essa All
TSG) e2ee oscee aus Lowe OT esecu tear suipsees All
Dae sus eadentedcws AGT rims o aise alers All.
Te3 oct een ewaes OOP wea am el eae ee All.
DOR Seas ets ble ig ics Soca oee se eeu ye All.
1888 oct eas Perea es Bh Dlucre ahs psd tae All.
fe ee Mawienewune I cute cudcouwess All.
Tie eciewaneke saa ew TO bere ene ceeeeoeas All.
OSS es dad eer aas Uda erat icks 15 neki tmaeae awe AlL
1853...... SENG eee Re OAS eee uaa eae All.
SBS. Ses Ruane ween DOS coke ataues Sie eeiede All.
IEG Bc ceeuuienekea re? AT; wcineeaveskenes 1, 2, 4
1853....... ey na acs AS wiuean ware ouca All.
NSdemu nee eeeee seeds S022 caieckenwsates All.
NBGS cook's alee haute CIB iiin ea awew eames aes All.
O04 ci wagiaewte ape ws Bintan a Nalee tha ad All.
USD aa keine ere OT pupvenea aeens All.
TESA ch eaasnee eae 1A OakGe ses eons eewe All.
U5 oie eters Oat aioe o ten All.
DONA ee een cea a Doe aoe eme eos All.
TOG ctw cmewaw cease DOO seesaw aitias All.
DGG Rit hone ue eins; Os sueceue nee was All.
ADE watucaoe ee heeds BIE Gee oa Ase es All
TOS i owke neice caw ROT ca eewvetacuces All.
AGE pce cncem anaes SOPs cade oe as All.
TESS iaseu ba caedeens BOO skied es eae ee All.
ol: nee UE tons eran ing ae renee ian All.
Ton olke ses cuweeeeons ZED gute vcuveusede All
TBS 5 viva wwicacs pulaoes AUD ucvexdecaveeenus All
185505. 0s pieeiean TA paca yes edi gccha twin ot tes All.
ASS acco a Gieee Sees Bilcc sees All.
TGs hiss oko w So Ge jai eee seats All.
TEST ceeveanes nese DU ou piteare ates paaeteae All.
TOUT vueeeenteneete OP oii ay cement All.
ASST cog ivaeeaeeevius LRGs eSeadeew mens All. :
TBS (eae oaroeaseoees 902: ince aeacees All
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WBS kis kkewckaeneo: PBA ohc oie tdoa liad aie a All.
AGT ood een bs God DL Ou ni baaores ens All.
64 SowEepute or Laws Rerea.ep.

 

The General Corporation Law.

 

Laws of Chapter "Sections.
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TEN weenceks easeRes Clo ae eee tae All
Ie cck Gece hemes: Tic causauetapeeess All
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DBO 1icc-0o5 Ais ack nicsaaws PS oinrayooueeeseut All
TBO ts sercemencneeee BO areaieid we wacetsae acts All
TSG Os duces eears Rees OB edenaceecek ears: ll
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TOG eeyakae at tee AW Os scarey ake aise All
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NBUS ies Shade evened Gee Dewueatnee eisese All
1868 "co miknagon ces le Sash tai Ou ac All
1BGt ia peur kiverse BAG. secuusewexed eed All
1864 yak emewendees Soe eee ae All
Tein ne anew erases OA eet .en Gee All
THpA cud hero eure Dliteclwey cae oes Gee All
TSCA enkaee hee Bere ce ius eee All
1BGb sigacaneeuaw ents Ot cere iwesy emo All
1505 oxsesusedouees CAB eceonsccensins All
LEG) siee seavek an nens BOT euevedewe denn’ All
Deana e wend ese BO re Lied are ots All
POBo a4 mune weudatet. a cad parece kee All
TS GOs acca owclowes eae Ocoee ees eens All ;
ADR wescg ewes ous Bahia ars h oie All ;
GGG ened euaeascear: 90D. nee ne ee ws All
(BGG vinden esas pide Oh caeeueusagwes All
1806 Soca ewan anes BON oo tite el ene All

 

®§o in the original law, although erroneously printed as 1828 ‘in the Session Laws of 1809-

page 1817.
#*8o in the original Jaw, although erroneously printed as 1866 in the Seasion Laws of 1899.

page 1817.
ScuepuLe or Laws lepxeauep.

 

 

7% The General Corporation Law.

Laws of Chapter Sections.
TAG deco htac eas 780 ess: ssuebaaane All
No as cy create as coma a ae stay eee alters All
DS CG sare eee Saige ees OO eiasacend tea weasels ‘All
BOT eicndwae ew epee LO eed ya eee es All
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186 Pcie eines eee gis DAs aid avd cacial'e eaten ieee All
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TAT cep ecrtekwanee AOD eguct em os All
TSO eee ss acess servers DOD viscemice spares wae arene All
VS 6% asecce eae wae wees Ui Dwavade ania eee All
ABO coe ensean aa 906 ieee a dies Sete eas All
W861 edie ene eee O80 Se eae ee a All
TB Owen aulcied wares DG so ee celace pens goats ace All
VOGT vx eee aia caw eceisiets QA se2esadee nee as All
1868. cscs eae eee ee GOS iy och wwe se ees All
TS GS aisiate eemocie eee ites ZO Oe sis sieies Revenge was All
TSG 82 eak. Sacre eines DUB aaa bles See eS All
1868 fener wee OB Leh a ataratersah oie as All
1869 sedis ew aos die Selig DBS rss a cea eta aia ease gh All
1869 0c sae eevs a ees DO oj wis etete ce Gaiala ae ie ale All
1869 wc cies aes GOD sce e ee ee ew All
T8609: ooops ateiaa dae 106 ciao ee BER aa wes All
TBC so ieee Sisiswe eis 3050 DAs ae Mlle eS Sais All
1869 wis eaeireiepieiee Saves OE Gare ereiias w ototh ne whosaes All
LST Ov cik ees awecneres TDA oid hee eneiee eae. All
1810 ieee ewes eee DBDs 25s in oes oa tee ei al e's All
187 Osio5 ca ee SSS es BOD 6 ata. e we elses Gis wee All
1S 70 5c. sors: cieseetae ace aiese AAS ee loe ieee eReuetayerwiavats All
TSUOs oi teaueweiareete ds DOB. oGis ansais wate ears All
TBO 6 see avie te bi cate ters AD a ted vias Boeerer oie os All
VST Lace dias aden wee OD eters oe sisi oats we Boal w lee All
BT Ligtisde is Siete eee okerk ss ABD ee weis Caw Maes All
VB Nicis siisvesiete oie ee DA Da See cece ee aieaet All
LB TL ssa siichs jee vetapateiaters 560....... a dutha ds ctetene All
VST Lisceccacvcne ates: OD Lidice dre chee aeceiel eee All
TST 2Soue se ateeaels BOG e ones eh as woe All
VTA oe svid wists nce ace ees CO eas Hicks Siete ahaa All
TST Lcrsce sieve PAkbiae ae OOP ue lesa swigie ieee All
1872 66 cece ba sae ew we BL icitscieseh sce tea oy hare tose All

fe,
66

SowEepuLe or Laws Rerea.ep.

 

The General Corporation Law.

 

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68 Scuepute or Laws RepEaen.

 

The General Corporation Law.

 

Laws of Chapter Sections,
TOTO Gere muneg een BAD a Sahe Sie ine gh ates All
1ST crs ooran eee suletis AM otinarayeaeaec Maas e All
LBS eiswweusne sees BOB is dws scale we sees All
LSID sew eeaweis eee BOB... pace c ccc c wees All
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1879 os acy wae es DA Dies Gis alent De device All
LBBQ iw aise se eee ease Diss ie weal ong Je feilel ee All
1880056 aces een stiiews SO egiiisew kN ide wie All
DS SO ison se aerate onniesd DOs. cease All
DSB O sos vassereresa eis aise oe DF oo ci ts) Ee laiane rae a All
1880 occa aveeweeae eeu: TS iki ah eaershesetn sae a seieks All
LSSO icici scewmangannieess IBS os ee wi arte ee All
1880 2 sicesrg cok wsraeess LDS iste euie wa eee ws All
1880. ..2 cee cavec een LOQs cease heal wees All
1880 isc. auiedaeractees IS wits sa eess All
1380. tee ea QLD. 2 Bin de ace ea woe All
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1880. cage audeteu DE Vig waar iav'esaioee aigwa ihe eS All
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1880. ssi sieewe sites QOS wer sos G ae eee NS All
1880 aids wees es 26 Liécniacs se ws Sarde GAs All
L880 wisdees seasick ree i OA Oe aa eat Aa lia tas All
1880 occas sects Said FSi Bist eee All
1880 ica e areas ids AN Tite cha atesataid Staal All
1880 ice se gee eras ae 484 36S Wialnenetoagraeia All
L880 6s cere ces te eas ONO cde sry seaieis eee es All
1880 csewia sees ans 0% DT Dis sirevarey ae iota a, sheets All
1880 oa iine wins nay pia DOMe ew exvendeevean All
LOGO adewesinots ws i 7 oT ee ee All
1880... cece ence eee O8ditan sates auc All
LBB Us ccuiieweesinietew ss DD sci Aas her aratsous enon sais All
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1881. .... cee ee wees DO Od:cica sate tareat ee sete oie ee All
PBST is ces saassta casera eee Dee cave ce, 8 ieywier eset All
Scnepute or Laws Repeaiep.

 

The General Corporation Law.

 

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Sections.
it

 

70 , Scuepute or Laws Repeauep.

The General Corporation Law.

 

All
All
All
All
All
All
All
All
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1885. .cesceccccceces B05..60.% ee oer lh.
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1885: % snwaecsies v0 eee; 498 cess era niwse ees All
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1885... .cecccceceees 540...... fasten ecee GALL
PEGoy csene eieaeeeee DOO Suck eweaine eeeee All
1886. .cccccccesseces GB..cccseccecceese All
1886. .cccceccsevcece 182..... ccccseccoee All
1886 .cesae tastes aces Pid as4es secceccooe. All,
1886... cccccccscccee S21. crccescescesees All
¢

Scuepute or Laws Repeaep. vel

 

The General Corporation Law.

Laws of Chapter Sections.
1886......... ea oiessereus OLD elaine of apeus ie sales All
TSBC* ood sreisse caw ccoieies 408 oi ices Secs ieee wei sie All.
VSS Sisco ween sivas AVG scence gad eees ees All.
NOSE coven dde cones us BU oo ten gsuasee. AML
DS BG cases ace wuseiere oats DDL pack Gree eeveiewleie sis All
1886........ eee esas DID weaceseesia nore Gad Oo ee All
188626 cede ceases we BSB s csc a ta eee eee All
DS 86 css see eee eh DO Dia cistietee cdot eee ae All
1886......... eee GOL wie ees Sate es All
1886.......2. bifsiareeenere OOD eviews bees oieine All
1886......056. Tee OS 4p ecg dw areee Wace All
1886.0). 6s<4 ae ereteee2s 642 oo cake erases All
W887 s.6ssesee ears aeenes ADOC aie gow eee es All
1887.......6. afeheqe tiene ASG oie eapciets Sa lasoreeaste All
1B BT 6 sinew ne sare de ee DOO urecuccss uate aerate All
1887..... Cee teehee DlOsdeara ves aie Sates All
ABST 8 aicsiae visser sie CIB oe ciuieieie@ eeieieres All
NEST cies cde ee ewes G22 3 ce ei Resales All
PBB Tce ocacsieiads dea eis ea CDA ates Sr aaah ee ies All
1888 so Sai crieie ease ce-earene'le ie DB Oia. sa oe io a aig saloya a chee All
18885 ee satiate eee ones B06 cise ei esceeaeeas All
1888 sects eee eres BIS ois 6 eins ee eats All
VO88 oo bic cic wilo cance BOD sees sa ose Eee sha All
TB SB ie sccse-scge.oke eore atee-e OD Bess he elere edie glace All
L888 266 bsieisivene sees OAT avails aihig teere Ga eee All
T8886 cece ee tees AGO: oa tase eid’ shinee dels e's! 8 All
1888 Sach aera eraret siete HIG caw e se calee esis All
TB BB iio Sos aie oie o sie tiers Oil Bey scale Saeerel wi evaiete a8 All
1888........6. area a0 $49. eee esas cece e All
VSSS osceiereie ceieee ie ears 560..... eialcioleleis @ieonc All
1889...... Mie ew EL aey CD ise Me dae ees All
1889 cccascsccseeses, Mess nescence ewes All.
1889 sigiejateralets a WB aceeaa wees eee All
1889..... eh ieiaiie' lees 6 23808 eek santos All
1889..... jt Relea we es DAD 5: iaic cao oe Halisiis eos All
1889 Se Ree DEVS saved ereiecd: earns a8 All
1889s io casseene ess BOD da cee aaa ewes All
TOSS. cere woanerene S60 cc puaeee nee All :
1889... cece w weer 426.200. Sislekelanc eee All

 

*So in the original law, although erroneonsly printed as 1887 in the Session Laws of 1608,
page 1822.
72 Scuepote or Laws ReEpracep.

 

The General Corporation Law.

 

Laws of Chapter Sections.
DSBS sceccenee aeenle OL Ok aire ee wee ee All.
1889... iewec seen os DA eis xi ce eles Pace GB .. All.
1889s sieoeees ee SOL sees oe All.
1889...... Sa gude nae (OO us aa edampes eatin All
1889...... eine eee DOR eo Get pists Siow All
1890 edie ws seeietaeee eis 238. sa Wah ata susie! All
1890...... sta ea aes OB ee sae eX aoa een All
1890...... SAG Sine ce TVD. neiesieesie aioe é All
1890.......... ernie alas MUS a thsecavele tect lave Wein . All
1890. Bignlata is divas eos 292s easmeGedeeetaea's All
1890 sess sprsaeaier dies ALG wae ve eww .... AML
1890 vcs en eee desea BDV onid ise ewes ss seen ALL
1890. secre news 483. caeesica ns Seams ALL
1890 3 gcse Seeks age BOT owiotis ees Hae Risse All.
1890...... svesslece ia ateyens DOS oie ce Savetae o's oon wists All.
1890..... sp cnane bene eS 508... eee eee wees. ALL
1890 woes were wears 548......4. Soest All.
1891......8. SSSR ora wins Dicuss ope Met aiaceseys All.
oO lwseakanisadeuies OR cose wreneeas ier All.
1B9Qiccnevesrawewiase Bowie Sikes ote ans ... All

To each of the revised corporation laws passed in 1890, to wit, the
General Corporation Law (ch. 563), the Stock Corporation Law (ch. 564),
the Railroad Law (ch, 565), the Transportation Corporations Law (ch. 566),
and the Business Corporations Law (ch. 567), there was appended a
separate schedule of the laws repealed by each of said acts. The amenda-
tory legislation of 1892, however, combined these several independent
repealing schedules into the foregoing schedule of laws repealed, and
annexed the same to the General Corporation Law. The separate sched-
ules theretofore appended to the Stock Corporation Law, the Railroad
Law and the Business Corporations Law were thereupon eliminated; but
the schedule affixed to the Transportation Corporations Law was left
undisturbed, although the acts enumerated therein were also embodied in
the foregoing schedule. 3

Chapter 971, Laws of 1867, as amended by chapter 85, Laws of 1878,
entitled “An act for the incorporation of co-operative and industrial
unions,” was repealed by chapter 548, Laws of 1896. Corporations with
the co-operative features may now be formed under the Business Corpo-
rations Law for any of the purposes within the scope of said law.
Tax Upon OrGaAnizaTION. 73

 

Statutory Payments for Incorporation.

 

TAX UPON ORGANIZATION.

‘Provisions oF THE Tax Law In RELATION TO THE PAYMENT OF
OrcanizaTIon Tax By CoRPORATIONS.

[The following is section 180 of chapter 908, Laws of 1896, entitled “An
act in relation to taxation, constituting chapter twenty-four of the gen-
eral laws.” The provisions of the revised tax laws regulating the annual
taxation of corporations are published elsewhere in this volume. See
the index under “ Taxation.”]

§ 180. Organization tax——LEvery stock corporation incor-
porated under any law of this state shall pay to the state treasurer
a tax of one-twentieth of one per centum upon the amount of
apital stock which the corporation is authorized to have, and a
like tax upon any subsequent increase. Provided, that in no case
shall such tax be less than one dollar. Such tax shall be due and
payable upon the incorporation of such corporation or upon the in-
crease of its capital stock. Except in the case of a railroad corpo-
ration neither the secretary of state nor county clerk shall file any -
certificate of incorporation or article of association, or give any
certificate to any such corporation or association until he is fur-
nished a receipt for such tax from the state treasurer, and no stock
corporation shall have or exercise any corporate franchise or
powers, or carry on business in this state until such tax shall have
‘been paid. And in ease of a decrease of capital stock, upon which
the tax required by law has been paid, and a subsequent increase
thereof, a tax shall be paid only upon so much of such increase as
exceeds the amount of capital stock upon which a tax has been be-
fore paid. In case of the consolidation of existing corporations
into a corporation, such new corporation shall be required to pay
the tax hereinbefore provided for only upon the amount of its
eapital stock in excess of the aggregate amount of capital stock of
said corporations. This section shall not-.apply to state and national
banks or to building, mutual loan, accumulating fund and co-opera-
tive associations. A railroad corporation need not pay such tax at
the time of filing its certificate of incorporation, but shall pay the
same before the railroad commissioners shall grant a certificate, as
required by. the railroad law, authorizing the construction of the
road as proposed in its articles of association, and such certificate
shall not be granted by the board of railroad commissioners until
it is furnished with a receipt for such tax from the state treasurer.

(L. 1896, ch. 908, sec. 108, gs amended by L. 1897, ch. 369; L. 1901, ch.
448; L. 1906, ch. 524.) :

The amendment of 1901 reduced the tax payable under this section
from one-eighth to one-twentieth of one per cent.
74 Tax Uron OraanizatIon.

 

Statutory Payments for Incorporation.

 

By the amendment of 1897 the last sentence was added to this section,
relieving railroad corporations from the payment of the organization tax
at the time of filing the certificate of incorporation and making such tax
payable when the railroad commissioners issue the certificate provided for
by the provisions of section 59 of the Railroad Law.

The foregoing section of the revised Tax Law supersedes the organi-
zation tax act of 1886, ch. 148, as amended by L. 1887, ch. 284 and L. 1892,
ch. 668. ,

The case of People ex rel. Hickemeyer Field Co. v. Rice, 138 N. Y., 614,
in which it was held that two or more corporations might consolidate.
without paying an organization tax, except upon an increase of capital
stock, arose under the act of 1886, ch. 143, as amended by L. 1892, ch. 668,
and the provisions of the present law have been made to conform to that
decision.

When a new corporation is formed by the consolidation of a domestic
corporation with a foreign corporation it is not required to pay an organi-
zation tax, even upon the capital stock in excess of the aggregate amount
of capitalization of the constituent companies. (People v. Chicago & St.
L. R. R. Co., 129 N. Y., 474, revsg. 61 Hun, 66; People v. Fitchburg R. R..
Co., 129 N. Y., 654.)

An organization tax must be paid upon a reorganization of a corporation
under L. 1874, ch. 430, as amended by L. 1876, ch. 446 (now repealed and
superseded by sec. 3, Stock Corporation Law, post); Peo. ex rel. Schurz
v. Cook, 110 N. Y., 443; Peo. ex rel. Mertens v. Cook, (Id.) In such case
the right to be a corporation, possessed by the old corporation, was not
mortgaged nor sold, and so did not pass to the purchasers. They obtain
such right upon filing the certificate, and then only by direct grant of
the State. (Id.)

A corporation reorganized under the provisions of section 4 of the Busi-
ness Corporations Law is not required to pay an organization tax. (In re
Consolidated Kansas City S. & R. Co., 13 App. Div., 50; overruling Matter
of N. Y. & Suburban Investment Co., 16 N. Y. Supp., 213; 40 N. Y. St.
Rep., 139.)
Tax Upon OnrGanizaTIoNn. 5

 

Statutory Payments for Incorporation.

 

Oreanization Tax Taste, SHowine ONE-TWENTIETH oF ONE
; Per Cent. on Various Amounts.

 

   
   
  

Capital stock. Tax. |] Capital stock. Tax.
$500. cictscceeseirssseenes acess *$1-00 $175,000 $87 50
600. .. seseces, *1 00 200,000 400 00
WOO s-viexns -. *100 225,000 112 50
800.... *1 00 250,000 125 00
900 *1 00 275,000 187 50
1,000 *1 00 800,000 150 00
1,500, *1 00 325,000. 162 50
1,800. *1 00 350,000 175 00
D2 OOO sre ssiora:eicisinte’ajsiais 1 00 375,000 187 50
2, 1 25 000 200 00
2, 1 40 425,000 212 50
3, 1 50 450,000 225 00
3,500..... 175 475,000 237 50
4,000. 2 00 500,000 250 00
4,500 2 25 525,000 262 50
5,000. 2 50 550,000 275 00
5,500 275 5,000 287 50
6,000. 3 00 000 300 00
6,500. .. 3°25 as 312 50
7,000. . 3 50 rats 325 00
7,500 3 75 675,000. . 337 50
, 8,000. . 4 00 see 350 00
8,500. . 4 25 362 50
9,000. . 4 50} 375 00
9,500. . 4 75 387 50
10,000. . 5 00 400 00
12,000. 6 00 412-50
15,000. . 7 50 425 00
18,000 9 00 437 50
20,000. 10 00 450 00
25,000 12 50 462 50
30,000. 15 00 475 00
35,000. 17 50 487 50
40,000. 20 00} 1,000,000 500 00
45,000 22 50] 1,250,000 625 00
50,000. 25 00} 1,500,000 750 00
55,000. 27 50| 1,750,000 875 00
,000. 30 00 000 1,000 00
65,000. 82 50] 3,000,000. . 1,500 00
70,000. 35 00 000,000. . 2,500 00
75,000. 37 50| 10,000,000 5,000 00
000. 40 00] 15,000 7,500 00
85,000. 42 50! 920,000,000 10,000 00
000. 45 00} 25,000,000 12,500 00
95,000. 47 50] 50,000,000 25,000 00
100,000. 50 00] 75,000,000 37,500 00
125,000. 62 50 | 100,000,000 50,000 00
150,000... cue cece cece 75. 00 |'500,000, 250,000 00
be i 1

 

 

* The statute, Tax Law, § 180, as amended, provides that one dollar shall be the
minimum amount of organization tax to be paid by any corporation.
76 License Tax Uron Forricn Corporations.

 

Statutory Payments for Incorporation.

 

LICENSE TAX UPON FOREIGN CORPORATIONS.

=

Laws or 1896, Cuapter 908, § 181.

Provisions of the Tax Law in relation to the payment of a license
tax by foreign corporations.

[For the provisions of the revised tax laws regulating the annual tax-
ation of foreign corporations transacting business within the State of New
York, see ue index under ‘“ Taxation.”’]

§ 181. License tax on foreign corporations.—Every
foreign corporation, except banking corporations, fire, marine,
casualty and life insurance companies, co-operative fraternal in-
surance companies, and building and loan associations, authorized
to do business under the general corporation law, shall pay to the
state treasurer, for the use of the state, a license fee of one-eighth
of one per centum for the privilege of exercising its corporate
franchises or carrying on its business in such corporate or or-
ganized capacity in this state, to be computed upon the basis
of the capital stock employed by it within this state, during the
first year of carrying on its business in this state; and if any year
thereafter any such corporation shall employ an increased amount
of its capital stock within this state, the same license fee shall be
due and payable upon any such increase.. The measure of the
amount of capital stock employed in this state shall be such a-por-
tion of the issued capital stock as the gross assets employed in any
business within this state bear to the gross assets wherever employed
in business. For purposes of taxation, the capital of a corporation
invested in the stock of another corporation shall be deemed to be
assets located where the physical property represented by such
stock is located. No action shall be maintained or recovery had in
any of the courts in this state by such foreign corporation without
obtaining a receipt for the license fee hereby imposed within thir-
teen months after beginning such business within the state, or if at
the time this section takes effect such a corporation has been en-
gaged in business within this state for more than twelve months,
without obtaining such receipt within thirty days after such tax is
due.

(L. 1896, ch. 908, see. 181, as am’d by L. 1901, ch. 558; L. 1906, ch. 474.)

The provisions relative to the measurement of the amount of capital
stock employed in this State were enacted to take effect Oct. 31, 1906..
License Tax Upon Fortran Corporations. qT

 

Statutory Payments for Incorporation.

 

By the amendment of 1901, chapter 558, the exemption theretofore
existing in favor of foreign corporations “‘ wholly engaged in carrying on
manufactures in this State” was stricken out, and a provision inserted.
placing such corporations upon the same basis as other foreign corpora-
tions respecting this license tax. Another new provision is the require-
ment that when any corporation subject to this license tax shall employ’
an increased amount of capital stock within the State, the same license
tax, shall be payable upon such increase.

It will be noticed that the rate of this tax, payable by foreign corpora-
tions for the privilege of doing business within the State, remains at.
one-eighth of one per cent., while the rate for the organization of domestic
corporations has been reduced to one-twentieth of one per cent., thereby
intentionally discriminating in favor of the organization of corporations.
under the laws of the State of New York. :

When the foregoing section was first enacted, with the other sections
of chapter 908, Laws of 1896, to take effect June 15, 1896, it embodied, with
certain modifications, the provisions of chapter 240, Laws of 1895, but the.
latter act was continued in force until foreign corporations that had
commenced business within the State prior to June 15, 1896, shall have-
paid the tax due under said act.

The provisions of the foregoing section cannot avail as a defense to an
action brought by- the assignee of a foreign corporation which has not
paid the license fee in question, where the defendant merely introduces’
inconclusive testimony tending to show that such corporation was doing

business within the State at the time of the trial of the action, and offers. |

no proof in this regard as to any anterior period. (Stern v. Childs, 26
-Misc., 419.)

The fact that a foreign corporation, more than thirteen months after
beginning to do business in the State, and at the time of commencing an
action, had ceased to do business, does not exempt it from paying the-
license tax. (Kinney v. Reid Ice-Cream Co., 57,App. Div., 206.)

Where a foreign corporation has been doing business within the State,
for more than thirteen months without having paid a license tax, it has
no right to maintain an action in the courts of this State, and its assignee
can have no standing in court, for the reason that the assignee cannot
be in a better position than the assignor. (Kinney v. Reid Ice-Cream Co.,.
57 App. Div., 206.) This case was decided prior to the enactment of
chapter 538, Laws of 1901, amending section 15 of the General Corpora-.
tion Law. Said amendment expressly provides that the assignee shall
have no right of action in the State courts where the assignor, being a
foreign corporation, has failed to comply with the provisions of said
section.

An answer, interposed in an action upon a bond given to obtain an
attachment, alleging that the plaintiff’s assignor, a foreign corporation,
although not doing business in the State at the time of the commence-
ment of the action, had previously done so for over thirteen months, and
had not paid the license tax, is not demurrabie. (Kinney v. Reid Ice-
Cream Co., 57 App. Div., 206.)

A complaint in an action brought by a foreign stock corporation must
allege a compliance with this section. (Welsbach Co. v. Norwich G. &
E. Co., 96 App. Div., 52; seé, also, Parmele Co. v. Haas, 171 N. Y., 579.)

This section is not intended to prohibit compliance after the time pre-

‘scribed by law. (Dunbarton F. S. Co. v. G. & J. Ry. Co., 87 App. Div., 21.)

,
78 Fitine anp Recorpine FEEs.
Statutory Payments for Incorporation.

For provisions requiring foreign corporations to obtain a certificate of
authority to do business within the State and the proof to be filed with
the Secretary of State in order to procure said certificate, see sections 15
and 16 of the General Corporation Law, and see also notes under said sec-
tions for numerous important decisions affecting such corporations.

Frees Payaste To Srorrrary or State anp County CLERKS.

SrcreTaRY oF StaTE.—The fees to be collected by the Secretary of
State, in connection with corporation certificates, are regulated by the
Executive Law (L. 1892, ch. 683), section 26, which provides as follows:

* * * ¥ ¥ * ¥ *

2. Searching the records in his office for any one year and for
every other year in which such search is made, six cents;

3. , For a copy of any paper or record not required to be certified
or otherwise authenticated by him, ten cents per folio;

4. For a certified or exemplified copy of any law, record or
paper, fifteen cents per folio, and one dollar additional for a cer-
tificate under seal of his office;

5. For a certificate under the great seal of the State, one
dollar.

6. For recording a certificate, notice or other paper required
“to be recorded, except as otherwise provided by this section,
‘fifteen cents per folio;

7. For a certificate of the official character of a commissioner
of deeds residing in another State or a foreign country, twenty-
- five cents, and for every other certificate under the seal of his
office, one dollar;

* * * * * * * &

_ 12. For filing and recording the original certificate of incor-
‘poration of a railroad corporation for the construction of a railroad

in a foreign country, fifty dollars; for filing the original certificates
of every other railroad corporation, twenty-five dollars; for filing
the original certificate of any other stock corporation, ten dollars;
for filing any original certificate of incorporation drawn under
article two of the membership corporations law, ten dollars.

(Thus amended by L. 1897, ch. 411; L. 1904, ch. 26.)

The amendment of 1897 added the last clause prescribing a filing fee of
ten dollars for certificates of incorporation drawn under article two of
the Membership Corporations Law (L. 1895, ch. 559).

The Executive Law, above mentioned, repealed the fee bill of 1882, ch.
156, which previously regulated the filing, recording and miscellaneous
fees payable at the office of the Secretary of State.
Amendment of 1907.

(Insert facing page 78. White on Corporations, 6th edition.)

. Laws of 1907, chapter 213, amends the Executive Law, section 26, sub-
division 4, and also adds a new subdivision, numbered 17, each of which
reads as follows:

4. For « certified or exemplified copy of any law, record or paper, fifteen
centa per folio, and one dollar additional for the certificate under seal of
hig office, attached thereto;

* *

* * * % * * 'o# x Se *
. 17, For a certificate under chapter two hundred and one, of the laws of
eighteen hundred and ninety-nine, ten dollars.

2
Finine anp Recorpine F rss. a9

 

Statutory Payments for Incorporation.

County CLERKs. — The provisions as to fees payable to County Clerks
are contained in the Code of Civil Procedure, section 3304, as amended by
Laws of 1896, chap. 572, as follows:

§ 3304. Fees of county clerks generally.—A county .
clerk is entitled, for the services specified in this section, except:
where another fee is allowed therefor by special statutory provision, —
to the following fees to be paid in advance: :

* * * * * * * *

For a copy of an order, record, or other paper, entered or filed
in his office, eight cents for each folio.
* * * * * * * *

For recording any instrument, which must or, may legally be |
recorded by him, ten cents for each folio.
* * * * * * * *

For filing any paper required by law to be filed in his office,
other than as expressly provided for in this section, six cents.

TRANSMISSION OF PapERs AND PaYMENTs.

When corporation papers are transmitted by mail for filing at Albany,
the most satisfactory and expeditious results will be secured by observ-
ing the following suggestions, to wit:

The tax of one-twentieth of one per cent. upon the capital stock for the
privilege of organization of a stock corporation (or for an increase of
eapital stock) should be remitted directly to State Treasurer, Albany,
N. Y. All such tax payments exceeding in amount the sum of twenty
five dollars, are required, by a rule of the Treasurer's office, to be made
in cash or by certified check, New York draft, post-office money order or
express order.

All corporation certificates should be mailed in a separate enclosure,
addressed to Secretary of State, Albany, N. Y., together with the filing
and recording fees of that office.

Do not forward to the State Treasurer any certificate intended for
filing in the office of the Secretary of State, as is often done. On the
other hand, do not send the organization tax to the Secretary of State.
The statute provides for its payment to the State Treasurer, who will
‘upon receiving such payment, if the same be in acceptable form, as above
required, immediately notify the Secretary of State to that effect, and the
latter official will simultaneously, if the certificate is unobjectionable,
‘give notice to apply the tax and issue receipts therefor. 7
THE STOCK CORPORATION LAW.

Laws or 1890, Cuapter 564, Entirtep, “ Aw Act 1n Reta-
TIon To Stock Corporations, ConsTiruTine CuapTEerR THIRTY-
SIX OF THE GrnERAL Laws,” as AMENDED TO THE CoMMENCE-
MENT OF THE LEGISLATIVE Sxssion oF 1907.*

—
Tue Stock Corporation Law.

ARTICLE 1. GENERAL POWERS; REORGANIZATION. (§§ 1-8.)
2. DIRECTORS AND OFFICERS; THEIR ELECTION, DUTIES AND LIABIL-
ITtes. (§§ 20-34.)
3. Srock; STOCKHOLDERS, THEIR RIGHTS AND LIABILITIES. (§§ 40-62.)

ARTICLE I.

GeneraL Powers; REorGANIZATION.

Srction 1. Short title and application of chapter.
2. Power to borrow money and mortgage property.
3. Reorganization upon sale of corporate property and fran-
chises.
4. Contents of plan or agreement.
5. Sale of property; possession of receiver and suits against him.
6. Assent of stockholders to plan of readjustment.
7. Combinations prohibited.
8. Relative to corporate mortgages.

Section 1. Short title and application of chapter.—
This chapter shall be known as the stock corporation law, but
article one shall not apply to monied corporations.

(Former section 1, L. 1890, ch. 564, as amended by L. 1892, ch. 688.)

A monied corporation is a corporation formed under or subject to the
Banking or the Insurance Law. (Gen. Corp. Law, sec. 3, ante.)

The Stock Corporation Law does not authorize the formation of corpo-
rations thereunder, except by the purchasers of corporate property and
franchises, as provided in section 3, post. This law, however, contains the
provisions which are specially applicable to all stock corporations. For
the laws pertaining to the formation of different kinds of stock corpora-
tions, reference should be had in this volume to the Business Corporations
Law, the Railroad Law and the Transportation Corporations Law, each

 

* The Stock Corporation Law (L. 1890, ch. 564) was passed June 7, 1890, to take
effect May 1, 1891. By the Laws of 1892, chapter 688, passed May 18, to take
effect Immediately, sald law was amended and entirely re-enacted, and hag since
been further amended, as indicated on the succeeding pages.
Power To Borrow Monry anp Morreace Property. 81

 

The Stock Corporation Law, § 2.

 

of which also contains the provisions peculiar to, and having especial
bearing only upon the particular class of companies provided for in such
laws, respectively. As to the plan of the commissioners of statutory
revision in drafting the Stock Corporation Law, see note, ante, page 2.

§ 2. Power to borrow money and mortgage praeperty.*— In addition
to the pewers conferred by the general corporation law, every stock
corporation shall have the power to borrow money and contract debts,
when necessary for the transaction of its business, or for the exercise
of its corporate rights, privileges or franchises, or for any other Jawful
purpose of its incorporation; and it may issue and dispose of its obliga-
tions for any amount so borrowed, and may mortgage its property and
franchises to secure the payment of such obligations, or of any debt
coutracted for said purposes. Every such mortgage, except purchase
money mortgages and mortgages authorized by contracts made prior to
May first, eighteen hundred and ninety-one, shall be consented to by
the holders of not less than two-thirds of the capital stoek of the cor-
poration, which consent shall be given either in writing or by vote at a
special meeting of the stockholders called for that purpose, upon the
same notice as that required for the annual meetings of the corpora-
tion; and a certificate under the seal of the corporation that such con-
sent was given by the stockholders in. writing; or that it was given
by vote at a meeting as aforesaid, shall be subscribed and acknowledged
by the president or a vice-president and by the secretary or an assistant

_secretary, of the corporation, and shall be filed and recorded. in the
office of the clerk or register of the county wherein the corporation
has its principal place of business. When authorized by like congent,
the directors under such regulations as they may adopt, may confer on
the holder of any debt*or obligation whether secured, or unsecured,
evidenced by, bonds of the corporation the right to convert the principal
thereof, after two and not more than twelve years from the date of
such bonds into stock of the corporation; and if the capital stock
shall not be sufficient to meet the conversion when made, the directors
shall from time to time, authorize an increase of capital stock sufficient
for that purpose by causing to be filed in the office of the secretary:
of state, and a duplicate thereof in the office of the clerk of the county
where the principal place of business of the corporation shall be located,
a certificate under the seal of the corporation, subscribed and acknowl-
edged by the president and secretary of the corporation setting forth,

1. A copy of such mortgage; or resolution of dirkctors authorizing
the issue of such bonds. \

2. That the holders of not less than two-thirds of the capital stock
of the corporation duly consented to the execution of such mortgage or
resolution of directors authorizing the issue of such bonds by such
corporation; ;

3. A copy of the resolution of the directors of the corporation author-
izing the increase of the capital stock of the corporation necessary for
the purpose of such conversion; :

4. The dmount of capital theretofore authorized, the proportion
thereof actually issued and the amount of the increased capital stock;
_If the corporation be a railroad corporation the certificate shall have
endorsed thereon the approval of the board of railroad commissioners.
When the certificate herein provided for has been filed, the capital stock
of such corporation shall be incréased to the amount specified in such
certificate. c

(Former section 2, L. 1890, ch. 564, as amended by L. 1892, ch. 688;
L. 1901, ch. 354; L. 1905, ch. 745.)

For forms of consent, mortgage, bonds, coupons, etc., see post, forms Nos.
24 to 32.

For form of corporate promissory note, see post, form No. 33.

The provisions prescribing: the method of procedure for conversion of
bonds into stock were added in 1905.

*For provisions applicable to mortgages executed by railroad corporations, see
the Railroad Law, section 4, subdivision 10.

a

‘
82 Power to Borrow Monsey anp Morreace Property.

 

The Stock Corporation Law, § 2.

 

Rights which arose under above section prior to April 16, 1901, upon
which date the last amendment took effect, were preserved by section 5,
chapter 354, Laws of 1901, which reads as follows:

“This act shall take effect immediately, but shall not affect any action
or proceeding pending in any court at the time it takes effect or any right
of any creditor of any- corporation or of any stockholder against any
director under existing law, providing action thereon be commenced
within six months after this act takes effect, except as in this act other-
wise provided.”

By the terms of this section, as above amended in 1901, the consent to
mortgage may be given by the holders of at least two-thirds of the capital
stock of the corporation, either in writing or by vote, cast either in person
or by proxy (see General Corporation Law, section 21) at a special meeting
called for that purpose, upon the same notice as that required for the
annual meetings, and in either event a certificate under the seal of the
corporation must be executed setting forth that such consent was given
by the stockholders in writing, or that it was given by vote at such
special meeting, as the case may be, which certificate is to be signed by
the president or a vice-president and by the secretary or an assistant
secretary of the corporation and filed and recorded in the office of the
clefk or register of the county wherein the principal place of business of
the corporation is located. ;

A further change, made by the amendment 6f 1901, is an enlargement
of the power to borrow money secured by mortgage, the maximum limita-
tion restricting the amount of mortgage indebtedness having been stricken
out, thereby enabling the corporation to incur a mortgage indebtedners

‘for the lawful purposes of its business to any extent that its credit and

security will permit, without reference to the amount of its capitalization.

Heretofore provisions which were essentially a continuation of the for-
mer limitations of this section were contained in section 24 of this law,
which prescribed,as a penalty upon directors voting for an overissue of
vonds personal liability ‘to the holders of the bonds illegally issued for
the amount held by them, and to all persons sustaining damage by such

Prior to the enactment of the Lien Law, the recording of mortgages
executed by railroad corporations was regulated by chapter 779, Laws of
1868, as amended by chapter 529, Laws of, 1895, while the recording of
mortgages executed by telegraph, telephone or electric light companies
was regulated by chapter 171, Laws of 1891, but said acts have been
repealed by the Lien Law (chapter 418, Laws of 1897), section 91 of
which embodies the subject of mortgages creating a lien upon real and
personal property of corporations, and reads as follows:

 

§ 91. Corporate mortgages against real and personal
property. Mortgages creating a lien upon real and personal
property, executed by a corporation as security for the payment of
bonds issued by such corporation, or by any telegraph, telephone or
electric light corporation, and recorded’as a mortgage of real prop-
erty in each county where such property is located or through

 
t +
Powrer tro Borrow Monty anp Mortgage Property. 83

 

The Stock Corporation Law, § 2.

 

illegal issues for any damage caused thereby, but said section 24 was
repealed by chapter 354, Laws of 1901, so as to leave nothing in conflict ;
with the liberalized features of the foregoing section.

In connection with the above section, see, also, section 8 of this law,
post (added by chapter 354, Laws of 1901), which provides that when a
mortgage recites that it has been duly authorized by the holders of the
requisite amount of stock, such recital shall be presumptive evidence that
the law has been complied with, and if the mortgage has been recorded
for one year and interest has been paid thereon, it becomes valid, even
though irregular in the method of its execution. This provision prevents
the security of underlying corporate bonds being invalidated, and thereby
protects the purchasers of such bonds.

This section relates to all stock corporations, except banking and insur-
ance corporations (see section 1 of this law) and railroad corporations (see
the Railroad Law, section 4, subdivision 10) :

The original directors named in a certificate of incorporation become
directors by virtue of the direct command of the statute, not through an
election by stockholders, and are clothed with all the powers of the cor-
poration and authorized to make any contract in its behalf that it is
eapable of making. (Hamilton Trust Co. v. Clemes, 163 N. Y., 423, aff’g
17 App. Div., 152.)

A mortgage given by a corporation in an effort to perform a legal obli-
gation to give a first mortgage upon its assets, under a contract entered
into by such directors with another corporation, which is fully performed
on its part, is valid in equity as against junior judgment creditors, even
upon the assumption that there was a failure to observe certain statu-
tory requirements. (Hamilton Trust Co. v. Clemes, 163 N. Y¥., 423, aff’g”
17 App. Div., 152.) The directors named in a certificate of incorporation
become such by virtue of the direct command of the statute, and not
through an election by stockholders. (Id.)

A corporation and its creditors are estopped as against the mortgagee,
so long as it holds the benefit of property acquired under a mortgage,
from raising the objection that the necessary consents of stockholders
were not given. (Hamilton Trust Co. v. Clemes, 17 App. Div., 152.)

Interest coupons detached from bonds and delivered to a third person

‘and becoming due betore the mortgage securing bonds was acknowledged
are not entitled to payment out of the proceeds of the sale of ‘the mort-
gaged premises. (Holland Trust Co. v. Thomson-Houston Elec. Co., 62
App. Div., 299.)

 

which the line of such telegraph, telephone or electric light cor-
poration runs, need not be filed or refiled as chattel mortgages.

The operations of the acts superseded by the foregoing section were
restricted to mortgages executed by railroad, telegraph, telephone or elec-
tric light companies, but the scope of the foregoing section of the Lien
Law has been extended so as to include mortgages executed by any
corporation. That was doubtless the intention in enacting the amenda-
tory act of 1895, ch. 529, but this purpose failed by reason of an omission
to amend the title of the original act. (See State Trust Co. v. Casino
Co., 19 App. Div., 344, overruling in effect Same v. Same, 5 App. Div., 381.)
84 Power to Borrow Money ann Morrasce PRorerty.

 

The Stock Corporation Law, § 2.

 

A mortgage executed by a corporation, in a condition of insolvency,
upon its property, in excess of its value, to secure an issue of bonds,
intending to give such bonds in payment of its debts to such creditors.
‘ as would accept them, and to pay the non-consenting creditors the pro-
ceeds of the remaining bonds, or leave them to their legal remedies.
against the equity of redemption of such mortgage, is invalid, its effect
being to coerce the creditors into extending the time for payment of
their debts, by leaving the non-consenting creditors without security..
(Jenkins v. John Good Cordage & Mach. Co., 56 App. Div., 573.)

Where a corporation is in the hands of a receiver appointed in fore--
elosure proceedings under a mortgage given to secure its bonds, a holder
of its past-due coupons gains no preference by levying under a judgment.
obtained by him upon such coupons, on personalty of the corporation
included in the said mortgage, when it has been duly recorded where-
its real estate is located, as under Laws of 1868, chapter 779, amended
by Laws of 1895, chapter 529, such recorded mortgage need not be filed
or refiled as a chattel mortgage. (Guaranty Trust Co. v. Troy Steel Co.,
33 Misc., 484.)

The court will not, in order to deprive one of the status of a bona fide
holder of corporate bonds, assume that a demand for the payment of
past-due interest had been made so as to mature the bonds before the
purchase merely because of the commencement, before that time, of a
suit to foreclose the mortgage securing the bonds, which, for some undis-
closed reason, was discontinued. (Buffalo Loan, Trust & Safe Deposit
Co. vy. Medina Gas & Electric Light Co., 162 N. Y., 67, aff’g 12 App. Div.,.
199.)

Corporate bonds do not stand dishonored upon their face and deprived:
of their negotiability so far as to prevent a transferee from acquiring the
status of a bona fide holder, because eight coupons representing past-due-
interest are attached thereto, notwithstanding that the bonds provide
that they shall become due, principal and interest, upon default in pay-
ment of any installment of interest for six months after maturity and
demand. (Buffalo Loan, Trust & Safe Deposit Co. v. Medina Gas &
Electric Light Co., 162 N. Y., 67, aff’g 12 App. Div., 199.) ;

Where a mortgage of all its property, made by a corporation to secure
the principal and interest of its bonds, includes future earnings, and pro-
vides that until default the mortgagor shall have use of the earnings in
conducting its business, and that upon default the trustee may go into .
possession, and appropriate the earnings to the payment of the mortgage
debt, the mortgage does not, as against general creditors, operate as a
lien upon earnings until actual entry and possession under it. (N. Y..
Security & Trust Co. v. Saratoga Gas & Electric Light Co., 159 N. Y., 137,
revsg. 30 App. Div., 89.)

Mortgages executed in violation of section 48 of this law may be
attacked by a person who, after such mortgages were recorded, but, on
the same day, obtains judgment in an action brought against the corpo-
ration to recover damages for personal injuries. (Munson vy. Genesee
Iron & Brass Works, 37 App. Div., 203.)

The fact that mortgages were given to secure just obligations against
@ corporation, and were not fraudulent as against creditors, is imma-
Power, TO Borrow Monry anp Mortaacr Property. 85

 

The Stock Corporation Law, § 2.

‘terial, where it appears that the mortgagees knew that they were exe-
-euted in contemplation of its insolvency. (Munson v. Genesee Iron &
Brass Works, 37 App. Div., 203.) : :

A railroad mortgage which provides that, on a prescribed default in the
payment of interest. on the bonds, the trustee named in the mortgage
might take possession of the mortgaged property and operate the road
in order to pay the interest and principal of the bonds entitles such
trustee as against a permanent receiver appointed upon a dissolution
-of a corporation to operate the road. (Matter of New Paltz & Wallkill
V. R. R. Co., 26 Misc., 324.) . ,

A holder of corporate bonds which are pledged as collateral for his
-debts, who takes up the coupons as they mature and cancels them to
protect the credit of the company, is not entitled to have them partici-
pate in the proceeds of a foreclosure of the mortgage as against the
pledgee, but they may participate as against all other parties in interest.
Atlantic Trust Co. v. Kinderhook & Hudson R. Ry. Co., 17 App. Div., 212.)
_ Corporate bonds not actually issued and past-due coupons cut from
‘ponds at the time they were issued, and retained by the company, cannot
participate in the distribution of the proceeds of a sale of the mortgaged
property. (Atlantic Trust Co. v. Kinderhook & Hudson R. Ry. Co., 17
App. Div., 212.) ‘

Where directors have, upon a statement to stockholders showing the
solvency of a corporation, obtained their consent to the issue of bonds
to procure an alleged necessary loan, the conduct of such directors in
subsequently voting to one of their number a very large bonus, which
is to be shared by other directors and which was given under the sub-
sequent claim that it was necessarily paid to float the loan, as the cor-
poration was practically insolvent, is unconscionable, being an attempt
‘by trustees to enrich themselves at the cost of their trust. (Com’l Nat.
Bk. v. Syracuse R. T. Ry. Co., 25 Misc., 36.) r

An agreement between the receivers of a railroad company and a
‘trustee of a mortgage given by such company to secure its bonds, to
prevent competition at a foreclosure sale, is void. (Atkins v. Judson, 33
App. Div., 42.).

There is nothing malum in se or malum prohibitum in the act of a cor-
poration in lending its credit to its president, or in mortgaging its property
for his debt. If the stockholders do not assail its validity and no rights
af creditors intervene, there can be no legal objection, to the mortgage.
(Osborn v. Montelac Park, 89 Hun, 167; aff’d, 153 N. Y., 672. See, also,
‘Quee Drug Co..v. Plaut, 55 App. Div., 87.)

The right of bondholders to sue is not affected by a provision intended
merely'as a further assurance to investors in the bonds. (Townsend v.
Colorado F. & I. Co., 16 App. Div., 314.)

The rights of stockholders are subordinate to those of creditors, and
‘the courts will not approve any judgment which directs a sale of all the
‘corporate property in the interest of a stockholder, or of one particular
class of stockholders, which makes no provision for the payment of
ereditors. (Drake v. N. Y. Suburban Water Co., 26 App. Div., 499.)

On the foreclosure of a mortgage executed by a corporation which.
subsequent to its execution, consolidated with another corporation, under
\

86 Power to Borrow Monry anp Mortesace PROPERTY.

 

The Stock Corporation Law, § 2.

 

an agreement that the mortgage should be the obligation of the consoli-
dated company as to the entire issue of bonds, the court, without decid-
ing whether the provision in the mortgage subjected any after-acquired
property to the mortgage lien, held that the provisions of the consolidation
agreement with reference to the mortgage were conclusive upon the stock-
holders who voted for such agreement. (Drake v. N. Y. Suburban Water
Co., 36 App. Div., 275.)

Interest coupons, payable to bearer, and attached to bonds issued by a
corporation, are negotiable promissory notes, and, if they are lost, the
owner may maintain an action thereon, under section 1917 of the Code of
Civil Procedure, upon giving a bond of indemnity; although the mortgage
requires their presentation and surrender for payment. (Rolston v. Cen-
tral Park, North & East R. R. R. Co., 21 Misc., 439, aff’g 20 Misc., 656.)

Under a guarantee of punctual payment of principal and interest of
bends ‘‘ when and as the same shall become due and payable,” the guar-
antor is liable for the principal where the mortgage trustee, pursuant to
the terms of the mortgage and deeds, declares the same due and payable
because of non-payment of interest. (Dougan v. Evansville & T. H. R.
R. Co., 15 App. Div., 483.) '

A guarantee of the payment of a bond does not accompany a coupon
which has been severed and transferred to another person. ‘(Clokey v.
Evansville & T. H. R. R. Co., 16 App. Div., 304.) ©

Where an action is brought upon a coupon of a negotiable bond issued
by a corporation, it is entitled to show that the plaintiff received the bond
in bad faith, knowing that it was stolen and that he did not part with
value for it. (Wisner v. Osteyee Bros., 23 Misc., 123.)

Legality of a mortgage, not limited in its amount, given to secure
bonds to be used in taking up outstanding issues, and also to secure
further bonds, which are only to be issued with the consent of stock-
holders, considered. (Flynn y. Coney Island & Brooklyn R. R. Co., 26
App. Diy., 416.) ' -

The refiling of a mortgage executed by a corporation, upon a leasehold
interest in real property and also upon chattels, which has been once
duly recorded and filed, is not necessary, as the leasehold interest is a
chattel real and not within the scope of the words ‘“ goods and chattels,”’
used in chapter 279 of the Laws of 1833. (State Trust Co. v. Casino Co.,
19 App. Div., 344, 46 N. Y. Supp., 492, aff’g 18 Misc., 327.)

Whatever rights, as against the mortgagor, are vested in the trustee of
a mortgage given to secure the payment of bonds, inure to the benefit of
the bondholder and are enforcible by him, in case of refusal or neglect
on the part of his trustee to act for him upon request. (O’Beirne v.
Allegheny & Kinzua R. R. Co., 151 N. Y., 372, aff’g 80 Hun, 570.)

When a mortgage given by a railroad corporation and its organizers to
a trustee to secure its bonds provides that the organizers shall convey to:
the trustee other property as additional security, a bondholder may main-
tain an action for specific performance where the trustee neglects or
refuses, on request, to bring it, and to such an action the railroad com-
pany is a proper party. (O’Beirne v. Allegheny & Kinzua R. R. Co., 151
N. Y., 372, aff’g 80 Hun, 570.)

A corporation cannot acquire the majority of the stock of another cor-
J

Powrr to Borrow Monzy anp Morteace Property. 87

 

The Stock Corporation Law, § 2.

 

poration, obtain control of its affairs, divert the income of its business,
refuse business which would have enabled it to pay interest on its bonds
and avoid default, and then institute an action in equity to enforce
defaulted obligations against such corporation, with the avowed purpose
of obtaining entire control of its property to the injury of the minority
stockholders. (Farmers’ Loan & Trust Co. v. N. Y. & Northern Ry. Co.,
150 N. Y., 410, revsg. 78 Hun, 213.)

The complaint in an action by minority stockholders to restrain the
majority stockholders from proceeding in fraud of their rights must set
forth the unlawful acts of the defendants which disclose the alleged:
fraud; mere charges of conspiracy, fraudulent combination, evil intent,
etc., are insufficient. (Oelbermann v. N. Y. & Northern Ry. C©o., 14
Misc., 131.)

The lien of a mortgage given by a railroad corporation, which in terms
covers all real and personal property which the corporation had or should
thereafter acquire for the operation of its railroad, attaches to after-
acquired property, and the actual lien of the mortgage upon after-
acquired property is prior to the lien of subsequent attaching or judg-
ment creditors. (Platt v. N. Y. & Sea Beach Ry. Co., 9 App. Div., 87,
aff’g 17 Misc., 22.) :

A mortgage given by a railroad corporation covering after-acquired
personal property need not be filed as a chattel mortgage. (Platt v. N. Y.
& Sea Beach Ry. Co.. 9 App. Div., 87.)

A mortgage given by a business corporation, under the act of 1875,
upon its real and personal property, _eovers only personal property in
existence’ when the mortgage was given. (Beebe v. Richmond Light,
Heat & Power Co., 13 Misc., 737.) A mortgage of the franchise of such
a corporation is not authorized by the statute. (Id.)

Where an officer of a corporation, who practically owns it, and has
power to raise money upon its negotiable bonds, receives a loan upon
them, the advances thus made, although further secured by the individual
note of the officer, will be deemed to have been made to the corporation
and not to the officer individually. (Buffalo Loan, T. & S. D. Co. v.
Medina Gas & Elec. Lt. Co., 12 App. Div., 199.) _

Upon foreclosure under a corporation mortgage, the terms of which
gave a preference to past-due interest coupons, a purchaser at the sale
with notice must redeem such coupons. (Holland Trust Co. v. Thomson-
Houston Electric Co., 9 App. Div., 473.)

In order to validate a corporation mortgage it is not only essential that
the stockholders owning two-thirds of the stock of the corporation should
give their consent, but also that such consent should be filed in the proper
clerk’s office. (Matter of Wendler Machine Co., 2 App. Div., 16.)

A person who has executed a corporation mortgage which contained a
recital to the effect that the requisite written assent of the stockholders
had been obtained, or one accepting a conveyance subject to the mort-
gage, or the mortgagor who has sold the mortgaged premises, cannot
require proof of such assent. ‘(Beebe v. Richmond Light, Heat & Power
Co., 3 App. Div., 334. See, also, Same v. Same, 13 Misc., 737.)

A ereditor of a corporation, who assented to the execution of a mort-
gage by it and remained silent until after it was foreclosed and rights of
88 Powrr To Borrow Monry anp Morreace PROPERTY.

 

The Stock Corporation Law, § 2.

 

third parties have intervened, is estopped from attacking the validity of
such mortgage. (New Britain Nat. Bank v. A. B. Cleveland Co., 91
Hun, 447.)

A mortgage given by a corporation upon all its property to secure its
creditors is not invalid as being for a purpose foreign to the lawful busi-
ness of the corporation. (New Britain Nat. Bank v. A. B. Cleveland Co.,
91 Hun, 447.) "

A mortgage to secure the purchase price of property may be executed
by a corporation without the consent of its stockholders. (Coman v.
Lakey, 80 N. Y., 345; Farmers’ Loan & Trust Co. v. Equity Gas Light Co.,
84 Hun, 373.) :

Under the former statute it has been held that the Written consent of
stockholders owning at least two-thirds of the stock of the corporation,
duly obtained and filed, is an indispensable condition to a valid mort-
gage. (Vail v. Hamilton, 85 N. Y., 456.)

But without such filing the mortgage is valid as against a subsequent
mortgagee or purchaser, with notice. (Roch. Sav. Bk. v. Averell, 96
N. Y., 467.) :

If part of the stock is owned by the corporation it cannot give the
assent itself to make up the requisite two-thirds. (Vail v. Hamilton,
supra.) But an assent by two-thirds of the issued stock is sufficient.
(Id.; Lyceum v. Ellis, 30 St. Rep., 242.) .

A mortgage executed without the assent is validated by a subsequent
assent if there are no intervening rights. (Rochester Sav. Bk. v. Averell,
96 N. Y., 467; Martin v. Niag, F. Paper Co., 122 N. ¥., 165; Greenpoint
8. Co. v. Whitin, 69 N. Y., 328.)

A defective assent, in the absence of fraud, or of any objection by
stockholders, must be of such a character that an intention to consent
to mortgage cannot be inferred from the instrument. (Greenpoint S. Co.
v. Whitin, 69 N. Y., 328.)

It is doubtful if any but stockholders can complain that the statutory
assent was not given and filed. (Id.; Paulding v. Chrome S. Co., 94
N. Y., 334.)

The assent is valid though some of the shares have not been paid for,
or only in services, and certificates have not been issued to stockholders.
(McComb v. Barcelona Ap. Assn., 31 N. E., 613, 45 St. Rep., 784; aff’d, 134
N. Y., 598.)

The assent and mortgage may be filed and recorded simultaneously.
(Roch. Sav. Bk. v. Averell, 96 N. Y., 467; Everson v. Eddy. 36 St.
Rep. 764; Welch v. Imp. & T. Nat. Bk., 122 N. Y., 177.)

For the purposes of the assent the amount of stock actually issued and
owned should be considered the amount of capital stock. (Greenpoint S.
Co. v. Whitin, 69 N. Y., 328, 20 Hun, 355; Lyceum y. Ellis, 30 St.
Rep., 242.)

Consent to mortgage the real and personal property does not include
the corporate franchises vested in the corporation by virtue of its organ-
ization as such. (Lord v. Yonkers Fuel Gas Co., 101 N. Y., 614.)

The right to assent to mortgaging property is collective, to be exercised,
in common with other shareholders, pursuant to the method prescribed by
law. (Campbell v. American Zylonite Co., 122 N. Y., 455.)
\

Power To Borrow Money anp Morreacre Prorerty. 89

,

 

The Stock Corporation Law, § 2.

 

The proviso, in respect to the assent of shareholders, is for their pro-
tection. (Greenpoint Sugar Co. v. Whitin, supra; Rochester Sav. Bk. v.
Averell, supra; Lord ’v. Yonkers Fuel Gas Co., 99 N. Y., 547.)

If there are but two stockholders and both consent, it is sufficient.
(Welch v. Importers’ & Traders’ Nat. Bk., 122 N. Y., 177; Castle v. Lewis,
‘78 N. Y., 131.) :

Where bonds had been diverted by the president of a corporation the
-holders who purchased them for value were entitled to preference in pay-
ment out of the proceeds of the foreclosure of the mortgage given to
secure the bonds. (Shaw v. Saranac Horse Nail Co., 78 Hun, 7.)

An agreement was made between two stockholders of an insolvent full
liability corporation, which recognized the insolveney of the company and
the stockholders’ liability for debts, whereby the parties thereto agreed to
pay the debts including bonds, taking assignments of all evidences of such
debts for the purpose of enforcing contribution from the other stock-
holders. It was also agreed that a mortgage given should be foreclosed
and the proceeds applied to the satisfaction of the debts. Held, that such
parties could not turn their payments of debts, including bonds, into a
‘purchase of an equity as against holders of similar bonds who had pur-
chased the same for value. (Shaw v. Saranac Horse Nail Co., 78 Hun,
7%.) Hypotlecation of bonds to secure the payment of debts does not pay
‘them, but subjects the bonds to the risk of sale at less than par, as a sale
-on a pledge would be to the highest bidder. (Id.) A person cannot acquire
good title to bonds, which were originally diverted by being pledged by
him to an innocent holder, by thereafter taking upon himself the obliga-
tion for which the bonds were improperly pledged. (Id.)

When a demand upon a trustee of a corporate mortgage to foreclose the
‘same would be futile, because of his absence abroad or insanity, a bond-
holder may appear as plaintiff in an action to foreclose. (Ettlinger, v.
Persian Rug & Carpet Co., 142 N. Y., 189.)

The validity of a mortgage is not affected when the resolution author-
‘izing its execution was adopted by the votes of persons owning the
indebtedness to be secured where such indebtedness was valid and
‘binding. (Rettenhouse v. Winch, 133 N. Y., 678, aff’g 32 St. Rep., 506.
See, also, Lord v. Yonkers F. G. Co., 99 N. Y., 547; Star P. Co. v. Andrews,
‘9 N. Y. Supp., 731, 31 St. Rep,, 188; Carpenter v. Black H. G. M. Co., 65
N. Y., 43; Denike v. N. Y. & R. Lime Co., 80 N. Y., 599.)

A corporation may dispose of its--bonds by pledge as well as sale.
(Duncomb v. N. Y., Housatonic & Northern R. R. Co., 84 N. ¥., 190.)

An officer of a corporation may own its mortgage bonds, but he can-
not buy the bonds directly from the corporation below par, except at the
‘peril of avoidance by the court. (Coman v. Lackey, 80 N. Y., 345, 88
N. Y., 1; Harpending v. Munson, 91 N. Y., 650.)

A railroad company’s rolling stock is personal property and will not
pass under a mortgage of its real estate. (Hoyle v. Plattsburgh & Mon-
treal R. R. Co., 54 N. Y., 314. See, also, Dean v. Biggs, 25 Hun, 122; Parish
v. Wheeler, 22 N. Y., 494.)

Where a corporation was unable to pay an installment falling due on a
mertgage, an agreement was made whereby the mortgagee agreed to
-accept less than the principal in full payment, if paid at a fixed date, and
90 Powsrz to Borrow Money anp Morreace Property.

 

The Stock Corporation Law, § 2.

 

the corporation agreed, in case of default of such payment, to deliver a
deed of the mortgaged premises to the mortgagee in satisfaction of the
debt. Held, said agreement was valid; that the act of the trustees in
executing the deed was not ultra vires. (Wolf v. Arminus C. M. Co., 6
Misc., 562, distg. Abbott v. Hard Rubber Co., 33 Barb., 580.)

A stockholder cannot set up as a defense to-an*action to foreclose a
corporate mortgage that such mortgage was not properly executed nor
authorized, where interest has been regularly paid upon the bonds to
. the knowledge of such stockholder for twelve years. (Warren v. Bigelow
Blue Stone Co., 74 Hun, 304.)

Where two individuals sign a promissory note, and after their respective
names attach the words “ President” and ‘“ Treasurer,” it is an individual.
obligation of such persons and not the obligation of the corporation, if
there is nothing in the body of the note to indicate that it is a. corporate
obligation, even though the name of the corporation be printed on the
margin. (First Nat. Bk. of Bklyn. v. Wallis, 150 N. Y., 455, aff’g Same
v. Same, 84 Hun, 376, and Same v. Stuetzer, 80 Hun, 435; Casco Nat. Bk. v..
Clark, 139 N. Y.,.307; Merchants’ Nat. Bk. v. Clark, 139 N. Y¥., 314.)

A corporation has no authority to make a scrip dividend in one year,.
and in the succeeding year to issue bonds to pay such dividend. (Merz.
vy. Interior Conduit & Insulation Co., 87 Hun, 430.) .

The issue of debenture bonds to be’ subscribed for by stockholders.
and paid for in part by surrender of stock is invalid as not complying
with sections 23 and 42 of this law, which latter requires the issue of
bonds for money, labor or property.: (Merz v. Interior Conduit & Insula-
tion Co., 20 Misc., 378.)

A chattel mortgage cannot be given future effect as a lien upon per-
sonal property which at the time of the delivery of the mortgage was.
not in existence, when rights of creditors of the mortgagor have inter-
vened. (Roch. Distilling Co. v. Rasey, 142 N. Y., 570.)

The decisions in New Britain Nat. Bk. v. A. B. Cleveland Co., 91 Hun,
447, and Beebe v. Richmond Light, Heat & Power Co., 13 Mis-., 737,
respectively, so far as relates to an overissue of bonds, are superseded by
the amendment to the foregoing section made by chapter 354, Laws of
1901.

Usury not a defense.

Corporations are prohibited from interposing the defense of usury by
Laws of 1850, chapter 172, the terms of which are as follows:

“SEecTion 1. No corporation shall hereafter interpose the defense of
usury in any action.

§ 2. The term corporation, as used in this act, shall be construed to
include all associations and joint-stock companies having any of the
powers and. privileges of corporations not possessed by individuals or
partnerships.” .

This statute is retrospective in its operation upon the contracts of cor-
porations; and it is no objection to a statute repealing a penal enactment
that it does so operate. (Curtis v. Leavitt, 15 N. Y., 9; Southern Life Ins,
& Trust Co. v. Packer, 17 N. Y¥., 51.) ’

No matter what the discount may be, usury cannot grow out of pbuy-
ing paper from a corporation, even where the paper is made for the
~

Reorcanization Uron Sate or ‘Corporate Property. 91

 

The Stock Corporation Law, § 3.

 

corporation’s accommodation. (Farrow v. Holland Tryst Co., 74 Hun,
585.) ‘ : :

The prohibition against setting up thé defense of usury applies to
foreign as well as domestic corporations. (Southern Life Ins. Co. v.
Packer, 17 N. ¥., 52.) :

Neither the corporation maker of a note nor its indorsers can plead
usury as a defense to the note. (Ludington v. Kirk,-17 Misc., 129.)

Days oF GRAcE ABOLISHED.— The act of 1894, chapter 607, abolishing
days of grace, has been repealed by the Negotiable Instruments Law
(chapter 612, Laws of 1897), section 145 of which supersedes said act of
1894 and reads as follows:

§ 145. Time or Maturity. Every negotiable instrument is payable
at the time fixed therein without grace. When the day of maturity falls
upon Sunday, or a holiday, the instrument is payable on the next suc- ,
ceeding business day. Instruments falling due on Saturday are to be
presented for payment on the next succeeding business day, except that
instruments payable on demand may, at the option'of the holder, be pre-
sented for payment before twelve o’clock noon on Saturday when that
entire day is not a holiday. ‘ ,

§ 3. Reorganization upon sale of corporate property
and franchises.— When the property and franchises of any do-
mestic stock corporation shall be sold by virtue of a mortgage or
deed of trust, duly executed by it, or pursuant to the judgment or
decree of-a court of competent jurisdiction, or by virtue of any
éxecution issued thereon, and the purchaser, his assignee or grantee
shall have acquired title to the same in the manner prescribed by
law, he may associate with him any number of persons, not less
than the number required by law for an incorporation for similar
purposes at least two-thirds of whom shall be citizens of the'United
States and one shall be a resident of this state, and they may be-
come a corporation and take and. possess the property and fran-
chises thus sold, and which were at the time of the sale possessed
by the corporation whose property shall have been so sold, upon
making and acknowledging and filing in the offices where certificates
of incorporation are required by law to be filed, a certificate in
which they shall describe by name and reference to the law under
which it was organized, the corporation whose property and fran-
chises they have acquired, and the court by whose authority the sale
had been made, with the date of the judgment’ or decree author-
izing or directing the same, and a brief description of the property
sold, and also the following particulars:

1. The name of the new corporation intended to be formed by
the filing of such certificate; and the place where its principal
office is to be located. ,
92 Reorcanization Upon Sax or Corporate PRoprrty.

 

The Stock Corporation Law, § 3.

 

2. The maximum amount of its capital stock and the number of
shares into which it is to be divided, specifying the classes thereof,
whether common or preferred, and the amount of, and rights pertain-
ing to, each class.

3. The number of directors, not less nor more than the number
required by law for the old corporation, who shall manage the affairs
of the new corporation, and the names and post-office address of the
directors for the first year.

They may insert in such certificate any provisions relating to the
new corporation, or its management, contained in any plan or agree-
ment which may have been entered into-as provided in section four
of this chapter. Such corporation shall be vested with, and be en-
titled to exercise and enjoy, all the rights, privileges and franchises,
which at the time of such sale belonged to, or were vested in the
corporation, last owning the property sold, or its receiver, and shall
be subject to all the provisions, duties and liabilities imposed by law
on that corporation. Any proceedings heretofore taken in substan-
tial compliance with, this section as hereby amended and any and
all incorporations based thereon are hereby ratified and confirmed.

(Former section 3, L. 1890, ch. 564, as amended by L. 1892, ch. 688; L.
1901, ch. 354; L..1902, ch. 80; L. 1904, ch. 706.) :

For form of certificate, see post, form No. 34.

The words, ‘“‘ his assignee or grantee” in the fifth line, were inserted by
the amendment of 1902, and the last sentence was also added, ratifying
and, confirming incorporations theretofore based on proceedings under
this section.

By L. 1901, ch. 354, the provision that a majority of the persons
reorganizing the corporation must be citizens of the United States and
residents of the State of New York, was modified so as to provide that
at least two-thirds must be citizens of the United States and at least
one a resident of the State, thus conforming these qualifications to
those prescribed in regard to incorporation of. companies de novo. For
terms of the saving clause preserving rights existing prior to the amend-
ment, see note to section 2.

The certificate above provided for must be filed and recorded in the
office of the Secretary of State, and a duplicate original, or a copy ‘cer-
tified by the Secretary of State, must also be filed and recorded in the
office of the clerk of the county in which the office of the new corpora-
tion is to be located. (General Corporation Law, section 5, ante.)

The tax of one-twentieth of one per cent. for the privilege of organ-
ization must be paid by the reorganized corporation, as it is a new
corporation within the meaning of the organization tax law. (People
ex rel. Schurz v. Cook, 110 N. Y. 443; People ex rel. Mertens vy. Cook,
id.)

This right of reorganization was formerly conferred only upon railroad
-corporations under L. 1873, ch. 469; L. 1874, ch. 430, and L. 1876, ch. 446,
each of which is now repealed and superseded by the above and the three
immediately succeeding sections, by the terms of which the right is
extended to all domestic stock corporations, except banks and insurance
corporations, the latter being excluded by section 1 of this law.
i
Reorganization Upon Sate or Corporate Property. 93.

 

The Stock Corporation Law, § 3.

 

When a reorganization committee has received bonds under an agree-
ment for the purchase of property at a foreclosure sale it will be held
accountable for the violation of the agreement. (Industrial & General
Trust, Ltd. v. Tod, 52 App. Div., 195.)

A plan for the reorganization of a corporation, prepared by a voluntary
committee and tendered to bondholders, who accept it, should be strictly
construed as against the committee. (United Water Works Co., Ltd. v-
. Omaha Water Co., 164 N. Y., 41, revsg. 29 App. Div., 630.)

A minority stockholder cannot maintain an individual action for dam-
ages his stock sustained by the defendant’s tortious acts in improperly
forcing the foreclosure of a mortgage upon the corporate. property. If
the corporation which has been injured refuses to sue, it is a necessary
party to an action brought in behalf of the plaintiff and all others simi-
larly situated. (Niles v. N. Y. C. & H. R. R. R. Co., 35 Misc., 69.)

A’ promise by one ‘holding receiver’s certificates to carry out and fur-
nish the money for a reorganization agreement which he did not sign,
in consideration of the validity of his certificates, which were being dis-
puted, is rendered binding by the prompt amendment of the decree of
foreclosure to that effect and the discontinuance of a pending suit.
to test the validity of such certificates. (Cox v. Stokes, 156 N. Y., 491.)

A reorganization agreement limits and defines the powers of the com-
mittee, and they cannot change such agreement without the consent
of the bondholders. (Cox v. Stokes, 156 N. Y., 491, revsg. 78 Hun, 331.)

The fact that the members of a reorganization committee, which holds.
a controlling interest in trust of the stock of a railroad, with power
to vote thereon, until such time, not to exceed five years from the date
of sale, as the condition of the road should, in their judgment, warrant
the distribution thereof among the bondholders, have disposed of stock
of the road held by them individually, does not affect their authority
as members of the committee to act as directors and to hold and vote
upon the trust stock. (Haines v. Kinderhook & Hudson Ry., 33 App.
Div., 154, aff’g 23 Misc., 605.)

The property of a corporation was purchased at mortgage foreclosure:
sale by a bondholders’ reorganization committee for a new corporation.
which issued $7,000,000 in bonds, $4,000, 000 preferred stock, and subse-
quent to these $3,250,000 common stock, which latter stock the stock-
_ holders of the old. corporation were privileged to purchase at $10 for
each $100 share. In a suit against the old corporation by a judgment
creditor to reach a sum that the new corporation had realized fronf the
new common stock taken by stockholders of the old corporation, it was.
held that property of the old corporatidn, sold to the new corporation
upon a mortgage foreclosure, could not be reached by the plaintiff and
that his only claim would be upon any surplus after paying jncum-
branées; that the new corporation had a right to sell its common stock
at any price it saw fit to ask for it. (Ferguson v. Ann Arbor R, R. Co.,
17 App. Div., 336.)

An agreement by a bondholding committee to purchase a railroad at
foreclosure sale and convey it is not void as stifling competition at the
sale. (Munson v. Magee, 22 App. Div., 333.)

Upon the reorganization of a corporation after foreclosure, nen- -assent-

“
.

94 Reorcanization Urox Sate or Corporate PROPERTY.

 

The Stock Corporation Law, § 3.

 

ing bondholders are only entitled to their distributive share in the pro-
ceeds of the sale of the mortgiged property where the directors of the
new company merely assume the debts and obligations of the old com-
pany, excepting its mortgage bonds. (Fernschild v. Yuengling Brewing
Co., 154 N. Y., 667, aff’g 15 App. Div., 29.)

Bondholders in a railroad corporation owe no active duty towards each
‘other; and where a trust mortgage permits any bondholder to purchase
upon a foreclosure, a profitable purchase on its foreclosure, made by a .
committee organized by a majority of the bondholders to protect their
interest and open to all bondholders who chose to come ‘in, cannot be
successfully attacked by a bondholder who did not act with such com-
mittee. (Moss v. Geddes, 28 Misc., 291.)

A stockholder, permitted ex gratia to participate in a bondholders’
agreement for the reorganization of an insolvent railroad: and who has
failed to comply with tne regulations of the plan lawfully established
by its reorganization committee, has no status to procure a modification
thereof. (Miller v. Dodge, 28 Misc., 640.)

If the promoter of the reorganization of a railroad controlled by him
contracts in writing with another to deliver to such other, upon com-
pletion of the road, a certain amount of bomds and stock of the reorgan-
ized road, for services to be performed in connection with the reorganiza-
tion, and the promisee performs such services, he will not be deprived of
his right to compensation merely because the reorganization and com-
pletion were not accomplished by the agencies or in the manner first
selected by the promoter and embodied in a contract between him and
a third party. (Babbitt v. Gibbs, 150 N. Y., 281, revsg. 76 Hun, 613.)

A railroad corporation which holds as trustee a fund to pay the floating
indebtedness of its predecessor is chargeable, after a reasonable time,
with interest on a just claim which it refused or unreasonably neglected
to pay. (Davidson v. Mexican National R. R. Co., 11 App. Div., 28.)

The right to be a corporation, which the old corporation had, was not
mortgaged or sold, and so did not pass to the purchasers. They obtain
such right upon filing the certificate mentioned, and then only by direct
grant from the State. (Id. See, also, Metz v. Buffalo, Corry & Pittsb.
R. R. Co., 58 N. Y., 61.)

This section does not prevent a sale or transfer by a purchaser to a
corporation already existing and capable of holding the property and
exercising the franchises. (People v. Brooklyn, Flatbush & C. I. Ry.
Co.,*89 N. Y., 75.) :

Any number of persons may purchase the property for themselves and
organize a new corporation, which will possess all the powers, rights,
privileges and franchises of the prior corporation. (Vatable v. N. Y., L. E.
& W. R. R. Co, 96 N. Y., 49. See, also, Pratt v. Munson, 84 N: Y., 582;
Thornton v. Wabash Ry. Co., 81 N. Y., 462.)

The rights of each of the stockholders of the prior corporation will be
cut off by the foreclosure and sale. The only property interest left to
him is in the surplus, if any, after satisfying the mortgage and other
preferential claims. (Vatable v. N. Y., L. E. & W. R.-R. Go., 96 N. Y., 56.)
If, however, the purchasers buy in pursuance of a plan for the adjustment
of the respective interests of the mortgage creditors and stockholders,

.
ConTENTS oF Pian oR AGREEMENT. 95

 

The Stock Corporation Law, § 4.

 

then such plan must be embodied in the certificate to be filed. (Id.) In
such case the statute secures to a stockholder the option to join the new
‘company by a compliance with the terms of the plan. (Id.)

§ 4. Contents of plan or agreement.—At or previous to
the sale the purchasers thereat, or the person for whom the
purchase is to be made, may enter into a plan or agreement, for or
im anticipation of the readjustment of the respective interests
therein of any creditors, mortgagees and stockholders, or any
of them, of the corporation owning such property and franchises
at the time of sale, and for the representation of such interests
in the bonds or stock of the new corporation to be formed, and
may therein regulate voting by the holders of the preferred and
common stock at any meeting of the stockholders, and may pro-
vide for, and regulate voting by the holders, and owners of any
or all of the bonds of the corporation, foreclosed, or of the bonds
issued or to be issued by the new corporation; and such right of
-yoting by bondholders shall be exercised in such manner, for such
period, and upon such conditions, as shall be therein described.
Such plan or agreement must not be inconsistent with the laws
of the state and shall be binding upon the corporation, until
changed as therein provided, or as otherwise provided by law.
The new corporation when duly organized, pursuant to such plan
or agreement and to the provisions of law, may issue its bonds
and stock in conformity with the provisions of such plan or
agreement, and may at any tithe within six months after its or-
garization, compromise, settle or assume the payment of any
debt, claim or liability of the former corporation upon such terms
as may be lawfully approved by a majority of the agents or
trustees intrusted with the carrying out of the plan or agreement
of reorganization, and may establish preferences in favor of any
portion of its capital stock and may divide its stock into classes;
but the capital stock of the new corporation shall not exceed in
the aggregate, ‘the maximum amount of stock mentioned in the
eertificate of incorporation.

(Former section 4, L. 1890, ch. 564, re-enacted by L. 1892, ch. 688, and
amended by L. 1901, ch. 354.) :

The only change, except in phraseology, made in this section by the
amendment of 1901, was the striking out of the maximum limitation
‘as to the amount of bonded indebtedness permitted, so as to harmonize
the section with the new provisions of section 2, ante.

When the plan for readjustment of interest has been embodied in the
certificate filed for the organization of the new corporation it constitutes
notice to stockholders of the general features of such plan. (Vatable v.
N. Y., L. E., ete.. Co., 96 N. Y.. 59.)
96 SaLe or PROPERTY.

 

The Stock Corporation Law, §§ 5, 6.

 

Demand -for relief by bondholders of the old corporation considered..
(White v. Wood, 129 N. Y., 527.)

§ 5. Sale of property; possession of receiver and
suits against him.—The supreme court may direct a sale of
the whole of the property, rights and franchises, covered by the
mortgage or mortgages, or deeds of trust foreclosed at any one
time and place to be named in the judgment or order, either in
case of the non-payment of interest only, or of both the principal
and interest’'due and unpaid and secured by any such mortgage or
mortgages or deeds of trust. Neither the sale nor the formation
of the new corporation shall interfere with the authority or pos-
session of any receiver of such property and franchises, but he
shall remain liable to be removed or discharged at such time as the
court.may deem proper. No suit or proceedings shall be com-
menced against such receiver unless founded on willful miscon-
duct or fraud in his trust after the expiration of sixty days from
the time of his discharge; but after the expiration of sixty days.
the new corporation shall be liable in any action that may be com-
menced against it, and founded on any act or omission of such re-
ceiver for which he may not be sued, and to the same extent as.
the receiver, but for this section would be or remain liable, or to
the same extent that the new corporation would be had it done or
omitted the acts complained of.

(Former section 5, L. 1890, ch. 564, re-enacted by L. 1892, ch. 688.)

In an action against a receiver of a corporation who was discharged
from his receivership more than sixty days before the commencement
thereof, plaintiff is prevented from maintaining it, but a new corporation
succeeding to the franchises is subject to the same liability as existed
against the receiver. (Abbott v. Jewett, 25 Hun, 603.) An amendment is
allowable in such case substituting the new corporation in the place of the
receiver as defendant. (Id.; Tighe v. Pope, 16 Hun, 180.)

8 6. Municipalities may assent to plan of readjust-
ment -- The commissioners, corporate authorities or proper offi-
cers of any city, town or village, who may hold stock in any cor-
poration, the property and franchises whereof, shall be liable to
be sold, may assent to any plan or agreement of reorganization:
which lawfully provides for the formation of a new corporation,
and the issue of stock therein to the proper authorities or officers
of such cities, towns or villages in exchange for the stock of the
Comsinations ABOLISHED. 97

 

The Stock Corporation Law, § 7.

 

old or former corporation by them respectively held. And such
commissioners, corporate authorities or other proper officers may
assign, transfer or surrender the stock sd held by them in the
manner required by such plan, and accept in lieu thereof the
stock issued by such new corporation in conformity therewith.

(Former section 6, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and
L. 1901, ch. 354.)

The amendment of 1901 changed the foregoing section by striking out
a clause which read as follows: “ Every stockholder in any corporation,
the franchises and property whereof shall have been thus sold, may
assent to the plan of readjustment and reorganization of interests pur-
suant to which such franchises and property shall have been purchased
at any time within six months after the organization of the new cor-
poration, and by complying with the terms and conditions of such plan
become entitled to his pro rata benefits therein.”

§ 7. Combinations abolished.— No domestic stock corpo-
ration and no foreign corporation doing business in this state shall
combine with any other corporation or person for the creation of
a monopoly or the unlawful restraint of trade or for the pre-
vention of competition in any necessary of life.

(Former section 7, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and
L. 1897, ch. 384.)

By the amendment of 1897 the scope of this section was extended so
as to include foreign corporations. For reference to other provisions
affecting such corporations, see the index under the heading “ Foreign
Corporations.” :

An agreement between manufacturers of eighty-five per cent. of the
envelopes of the country and an outside manufacturer, providing that the
selling price should be fixed by an agent of the combination, threatens a
monopoly, and is, therefore, invalid. (Cohen v. Berlin & Jones Env. Co.,
166 N. Y., 292, revsg. 38 App. Div., 499.)

_All combinations in trade are not condemned, and self-preservation may
justify the prevention of undue and ruinous competition when the preven-
tion is sought by fair and legal methods. (U.S. Vinegar Co. v. Foehren-
bach, 148 N. Y., 58, discussing 143 N. Y., 537, aff’g 74 Hun, 435; Rafferty
v. Buf. Gas Co., 37 App. Div., 618.)

An agreement by which a person promises that he will nof directly
or indirectly engage in, or become associated with, any business of a
similar character to that of the other party, either as principal, agent,
employe, or in any other relation or capacity, or as stockholder, director,
trustee, agent, officer or employe of any corporation, other than one spec-
ified, in any State or Territory of the United States, except the State of
Washington is not illegal as in general restraint of trade. (Nat. Wall

7
98 AppiTionaL Act To Prevent MoNopPotLIEs.

 

The Stock Corporation Law.

 

Paper Co. v. Hobbs, 90 Hun, 288, citing Diamond Match Co. v. Roeber,
106 N. Y., 473.)

If the business of a corporation is threatened with competition it is not
illegal if it can persuade a competitor to abandon an enterprise in which
both cannot succeed. (Oakes v. Cattaraugus Water Co., 143 N. Y., 430.)

A corporation which controls the market and requires its stockholders to
fix prices of a commodity is a combination inimical to trade and commerce,
and so unlawful. (People v. Milk Exchange, Limited, 145 N. Y., 267.)

When a corporation is organized for the purpose of forming a combina-
tion to unlawfully fix the price of an article and limit the supply thereof,
proceedings to forfeit its charter may be instituted by the Attorney-
General of the State. (People v. The Milk Exchange, Ltd., 133 N. Y., 565.)

Corporations cannot enter into a combination similar to a partnership
between individuals, massing their stock, and sharing profits and losses,
without express authority by charter. (People v. North River Sugar
Ref’g Co., 121 N. Y., 582, 3 N. Y. Supp., 401; Mallory v. Hanaur Oil
Works, 86 Tenn., 598.) ,

It seems that an action by the Attorney-General to annul a charter, or
a criminal prosecution, is the only mode of redress to individuals for
injuries occasioned by unlawful combinations. (Thomas v. Musical Mut.
Prot. Union, 121 N. Y., 45.)

A corporation engaged in an illegal trust combination is estopped from
setting up the illegality of the combination in an action against the
receiver of the trust. (Pittsburgh Carbon Co., Ltd, v. McMillin, 119 i
N. Y., 46.)

Combination to advance price of article of food is unlawful. (Leonard
v. Poole, 114 N. Y., 371.)

The validity of a purchase of the business of another to prevent compe-
tition, if supported by a consideration, will depend upon its reasonable-
ness as between the parties. .(Diamond Match Co. v. Roeber, 106 N. Y.,
473; however, see Tode v. Gross, 127 N. Y., 480; Richardson v. Buhl, 43
N. W. Rep., 1102.)

A contract whereby a competitor is removed, but not excluding all
competition, is not objectionable. (Leslie v. Lorillard, 110 N. Y., 519.)

It is not against public policy for two corporations engaged in the same
general line of business to consolidate. (Cameron v. N. Y. & Mt. V. Water
.Co., 62 Hun, 269; aff’d on other grounds, 133 N. Y., 336; Holmes & Griggs
Mfg. Co. v. Holmes & W. M. Co., 127 N. Y., 252.)

An association of corporations to use a patented article, there being no
“community of profits and losses, is not unlawful. (Good v. Daland, 121
N. Y., 1.)

As to transportation agreements, see Tonawanda V. R. R. Co. v. N. Y.,
L. BE. & W. R. R. Co., 123 N. Y., 640, 316.

As to rights of certificate holders where a trust has been dissolved,
see Cameron v. Havemeyer, 12 N. Y. Supp., 126; Gray v. Oxnard Bros.
Co., 59 Hun, 387.)
AppirionaL Act To Prevent Monopotizs. 99

 

The Stock Corporation Law. *

 

AvpitionaL Act To Prevent Monopo.tiss.

Another act to prevent monopolies was added to the statutes of this
State by L. 1893, ch. 716, and amended by L. 1896, ch. 267; but said act
was superseded by L. 1897, ch. 383; the latter being also repealed and
superseded by the present act, L. 1899, ch. 690, which reads as follows:

An Act to prevent monopolies in articles or commodities of com-
mon use, and to prohibit restraints of trade and commerce, pro-
viding penalties for violations of the provisions of this act, and
procedure to enable the attorney-general to secure testimony in
relation thereto.

Szcrion 1. Every contract, agreement, arrangement or omy
bination whereby a monopoly in the manufacture, production or
sale in this state of any article or commodity of common use is or
may be created, established or maintained, or whereby competi-
tion in this state in the supply or price of any such article or com-
modity is or may be restrained or prevented, or whereby for the
‘purpose of creating, establishing or maintaining a monopoly
within this state of the manufacture, production or sale of any
such article or commodity, the free pursuit in this state of any
lawful business, trade or occupation is or may be restricted or pre-
vented, is hereby declared to be against public policy, illegal and
void.

§ 2. Every person or corporation, or any officer or agent
thereof, who shall make or attempt to make or enter into any such
contract, agreement, arrangement or combination, or-who within
this state shall do any act pursuant thereto, or in, toward or for
the consummation thereof, wherever the same may have been
made, is guilty of a misdemeanor, and on conviction thereof shall,
if a natural person, be. punished by a fine not exceeding five
thousand dollars, or by imprisonment for not longer than one
year, or by both such fine and imprisonment; and if a corporation,
‘by a fine of not exceeding five thousand dollars.

§ 3. The attorney-general may bring an action in the name
and in behalf of the people of the state against any person, trus-
tee, director, manager, or other officer or agent of a corporation,
or against a corporation, foreign or domestic, to restrain and pre-
vent the doing in this state of any act herein declared to be illegal,
or any act, in, toward or for the making or consummation of any
contract, agreement, arrangement or combination herein prohib-
ited, whenever the same may have been made.
100 ApprtionaL Act To Prevent Monopo.iss.

 

The Stock Corporation Law.

 

§ 4. Whenever the attorney-general has determined to com-
mence an action or proceeding under this chapter, he may pre-
sent to any justice of the supreme court, before beginning such
action or proceeding under this chapter, an application’ in writ-
ing, for an order directing the persons mentioned in the applica-
tion to appear before a justice of the supreme court, or a referee:
designated in such order, and answer such questions as may be
put to them or to any of them, and produce such papers, docu-
ments and books concerning any alleged illegal contract, arrange-
ment, agreement or combination in violation of this chapter;
and it shall be the duty of the justice of the supreme court, to
whom such application for the order is made, to grant such ‘ap-
plication. The application for such order made by the attorney-
general may simply show, upon his information and belief that
the testimony of such person or persons is material and neces-
sary. The provisions of article one, of title three, of chapter
nine of the code of civil procedure, relating to the application
for an order for the examination of witnesses before the com-.
mencement of an action and the method of proceeding on such
examinations shall not apply except as herein prescribed. The
order shall be granted by the justice of the supreme court to-
whom the application has been made, with such preliminary in-
junction or stay as may appear to such justice to be proper and
expedient, and shall specify the time when and place where the
witnesses are required to appear, and such examination shall be-
held either in the city of Albany, or in the judicial district in
which the witness resides, or in which the principal office, within:
this state, of the corporation affected, is located. The justice or’
referee may adjourn such examination from time to time and wit-
nesses: must attend accordingly. The testimony of each witness:
must be subscribed by him, and all must be filed in the office of the
clerk of the county in which such order for examination is filed.

§ 5. The order for such examination must be signed by the
justice making it, and the service of a copy thereof, with an en-
dorsement by the attorney-general, signed by him, to the effect.
that the person named therein is required to appear and be exam-
nied at the time and place, and before the justice or referee speci-
fied in such endorsement, shall be sufficient notice for the attend-
ance of witnesses. Such endorsement may contain a clause
requiring such person to produce on such examination all books,
papers and documents in his possession, or under his control, re-
lating to the subject of such examination. The order shall be
~

AppitionaL Act To Prevent Mownopro.izs. 101

 

The Stock Corporation Law.

 

‘served upon the person named in the endorsement aforesaid, by
‘showing him the original order, and delivering to and leaving with
him at the same time, a copy thereof endorsed as above provided,
and by paying or tendering to him the fee allowed by law to wit-
‘nesses subpoenaed to attend trials of civil actions in a court of rec-
-ord in this state.

§ 6, No person shall be excused from answering any questions
that may be put to him, or from producing any books, papers or
-documents, on the ground that the testimony. or evidence, docu-
mentary or otherwise, required of him may tend to incriminate
him, but no person shall be prosecuted in any criminal action
or proceedings, or subjected to any penalty or forfeiture, for or
-on account of any transaction, matter or thing concerning which
he may testify, or produce evidence, documentary or otherwise,
before said justice or referee appointed in the order for his exam-
ination, or in obedience to the subpoena of the court, or referee
acting under such order, or either of them or in any such case or
“proceeding.

§ 7. A referee appointed as provided in this act. possesses all the
powers and is subject to all the duties of a referee appointed under
‘section ten hundred and eighteen of the. code of civil procedure, so
far as practicable, and may punish for contempt a witness duly
‘served as prescribed in this act for non-attendance or refusal to be
‘sworn or to testify, or to produce books, papers and documents
according to the direction of the endorsement aforesaid, in the same
manner, and to the same extent as a referee appointed to hear, try
and determine an issue of fact or of law.

§ 8. Chapter three hundred and eighty-three of the laws of
-eighteen hundred and ninety-seven is hereby repealed.

The foregoing act applies to both foreign and domestic corporations.
For other provisions in relation to foreign corporations, see the index.

See Matter of. Davies, 168 N. Y., 89, revsg. 55 App. Div., 245, 32 Mise., 1.

FEDERAL ANTI-Trust Law.— Besides the foregoing provisions of State
laws ‘upon this subject, an act of the United States, generally called the
“ Sherman Anti-Trust Law,” was passed by Congress July 2, 1890, ch. 647,
and entitled: “An act to protect trade and commerce against unlawful
restraints and monopolies,” the full text of which is as follows:

SEcTION 1. Every contract, combination in the form of trust or other-
wise, or conspiracy in restraint of trade or commerce among the several
States, or with foreign nations, is hereby declared to be illegal. Every
person who shall make any such contract or engage in any such combina-
tion or conspiracy, shall be deemed guilty of a misdemeanor, and, on
102 AppiTionaL Act To Prevent MoNnopotizs,

 

The Stock Corporation Law.

 

conviction thereof, shall be punished by fine not exceeding five thousand
dollars, or by imprisonment not exceeding one year, or by both said pun-
ishments, in the discretion of the court.

§ 2. Every person who shall monopolize, or attempt to monopolize,
or combine or conspire with any other person or persons, to monopolize
any part of the trade or commerce among the several States, or with
foreign nations, shall be deemed guilty of a misdemeanor, and, on convic-
tion thereof, shall be punished by fine not exceeding five thousand dollars,
or by imprisonment not exceeding one year, or by both said punishments,
in the discretion of the court.

§ 3. Every contract, combination in form of trust or otherwise, or
conspiracy, in restraint of trade or commerce in any Territory of the
United States or of the District of Columbia, or in restraint of trade or
commerce between any such Territory and another, or between any such
Territory or Territories and any State or States or the District of Colum-
_bia, or with foreign nations, or between the District of Columbia and any
State or States or foreign nations, is hereby declared illegal. Every per-
son who shall make any such contract or engage in any such combination
or conspiracy, shall be deemed guilty of a misdemeanor, and, on convic-
tion thereof, shall be punished by fine not exceeding five thousand dollars,
or by imprisonment not exceeding one year, or by both said punishments,
in the discretion of the court.

§ 4. The several circuit courts of the United States are hereby invested
with jurisdiction to prevent and restrain violations of this act; and
it shall be the duty of the several district attorneys of the United States,
in their respective districts, under the direction of the Attorney-General,
to institute proceedings in equity to prevent and restrain such violations.
Such proceedings may be by way of petition setting forth the case and
praying that such violations shall be enjoined or otherwise prohibited.
When the parties complained of shall have been duly notified of such
petition the court shall proceed, as soon as may be, to the hearing and
determination of the case; and pending such petition and before final
decree, the court may at any time make such temporary restraining order
or prohibition as shall be deemed just in the premises.

§ 5. Whenever it shall appear to the court before which any pro-
ceeding under section four of this act may be pending, that the ends of
justice require that other parties should be brought before the court, the
court may cause them to be summoned, whether they reside in the dis-
trict in which the court is held or not; and subpoenas to that end may be
served in any district by the marshal thereof.

§ 6. Any property owned under any contract or by any combination,
or pursuant to any conspiracy (and being the subject thereof) mentioned
in section one of this act, and being in the course of transportation from
one State to another, or to a foreign country, shall be forfeited to the
United States, and may be seized and condemned by like proceedings as
those provided by law for the forfeiture, seizure and condemnation of
property imported into the United States contrary to law.

§ 7. Any person who shall be injured in his business or property by
any other person or corporation by reason of anything forbidden or
RewaTIVE TO Corporate Morteaces. 103:

 

The Stock Corporation Law, § 8.

 

- declared to be unlawful by this act, may sue therefor in any circuit court
of the United States in the district in which the defendant resides or is
found, without respect to the amount in controversy, and shall recover
three fold the damages by him sustained, and, the costs of suit, including
a reasonable attorney’s fee. :

§ 8. That the word “person,” or: “persons,” whenever used in this,
act, shall be deemed to include corporations and associations existing
under or authorized by the laws of either the United States, the laws of
any of the Territories, the laws of any State, or the laws of any foreign
‘ country. i :

§ 8. Relative to corporate mortgages.— Whenever any
mortgage affecting property or franchises within this state here-
tofore or hereafter executed by authority of the board of directors
in behalf of any stock corporation, domestic or foreign, of any de-
scription, recites or represents in substance or effect that the exe-
cution of such mortgage has been duly consented to, or authorized
by stockholders, such recital or representation in iany such mort-
gage, after public record thereof within this state, shall be pre-
sumptive evidence that the execution of such mortgage has been
duly and sufficiently consented to, and authorized by stockholders
as required by any provision of law. \After any such mortgage
heretofore or hereafter shall have been publicly recorded for more
than one year in one or more of the counties of this state con-
taining the mortgaged premises or any part thereof, and the cor-
poration shall have received value for bonds actually issued under
and secured by such mortgage, and interest shall have been paid
on any of such bonds according to the terms thereof, such recital
or representation of such mortgage so recorded shall be conclusive
evidence that the execution of such mortgage has been duly and
sufficiently consented to, and authorized by stockholders as re-
quired by any provision of law, and its validity shall not be im-
paired by reason of any defect or insufficiency of consent or
authority of stockholders or in filing or recording such consent or
authority, and such mortgage shall be valid and binding upon the
corporation, and those claiming under it, as security for all valid
bonds issued or to be issued thereunder, unless such mortgage
shall be adjudged invalid in an action begun as hereinafter, in
this section, provided. Notwithstanding the foregoing provisions
of this section, the invalidity of any such mortgage heretofore re-
corded because of insufficiency of consent by stockholders may be
adjudged in any action for such purpose begun before the first
day of April, nineteen hundred and two, and the invalidity of any
such mortgage hereafter recorded, because of insufficiency of con-

\
104 Rewative To Corporate Morreacss.
4

The Stock Corporation Law, § 8.

 

sent by stockholders, may be adjudged in any action for such pur-
pese begun, within one year after the earliest record of such
mortgage in any county in this state, provided in either case that
such action shall have been so begun by or in behalf of the corpora-
tion by direction of the board of directors acting in their own
discretion, or upon the written request of the holders of not less
than one-third of the capital stock of the corporation; and in any
such action so begun by or in behalf of the corporation, the recitals
or representations of the mortgage shall be presumptive evidence
only as first above provided. Whenever hereafter, in compliance
with any law of this state, the officers of any corporation shall have
made and filed and recorded a certificate that the execution of a
mortgage hereafter made by the corporation has been duly con-
sented to by stockholders, such certificate shall be conclusive
evidence as to the truth thereof, in favor of any and all persons
who in good faith shall receive or purchase, for value, any bond
or obligation purporting to be secured by such mortgage, at any
time when said certificate shall remain of record and uncancelled.
Nothing in this section contained shall affect any right or any
remedy in respect of any such right of any creditor accrued before
this enactment nor shall it dispense with the necessity of obtaining
the consent of the board of railroad commissioners to any mort-
gage by a railroad corporation.

(New section, added by L. 1901, ch. 354.) :

‘The foregoing section applies to both foreign and domestic corpora-
tions. | ‘For other provisions in relation to foreign corporations, see the
index.

In explanation of the foregoing section the text of the memorandum
supporting the same and filed with the legislative committee prior to
the enactment of the section is given herewith, to wit:

“This section undertakes to prescribe a period (not less than one year
from the passage of this act) after the expiration of which it shall be
conclusively presumed that any mortgage, executed by the authority of
the board of directors of any domestic or any foreign stock corporation,
has been authorized by the stockholders, if such mortgage, having been
publicly recorded for more than one year, contains a recital to that effect.
In other words, the bill proceeds upon the theory that though the consent
of stockholders is necessary to the execution of any mortgage heretofore
or hereafter made by a stock corporation under section 2 of the Stock
Corporation Law, or by a railroad corporation under section 4, subdivision
10 of the Railroad Law, the acquiescence of stockholders for a long period
after the publication of such a mortgage containing a recital of stock-
holders’ assent, shall constitute a bar to their right to contest the mort-
ReEtative To Corrorate Morraaass. 105

 

The Stock Corporation Law, § 8.

 

gage purporting to secure bonds which have been negotiated and issued
and upon which interest has been paid.

“This is in exact accordance with the prevailing public policy of this
‘State, recognizing and applying the doctrine of estoppel by acquiescence.
(Kent v. Quicksilver Mining Co., 78 N. Y., 159; New Britain Nat. Bk. y.
A. B. Cleveland Co., 91 Hun, 447, 158 N. Y., 722, 159 N. Y., 528.)

“It also accords with the long-established policy of this State, which
from an early date has discountenanced technical defenses by corpo-
rations to the enforcement of their obligations; as, for instance, the act
prohibiting corporations from pleading usury (Laws of 1850, ch. 172),
and the section of the Code denying to corporations in certain cases the
‘right to interpose a demurrer except by the express leave of the court
(Code of Civil Procedure, § 1778).

“That acquiescence for a long period should estop stockholders from
disputing the directors’ publicly recorded declaration that stockholders
Rave duly assented to a mortgage upon the faith of which bonds have
‘been sold to the public, is a proposition which for its support seems to
require no argument. 2

“But to constitute an estoppel out of such acquiescence, legislative
authority is necessary, if under the corporation laws the mortgage is
void unless assented-to by stockholders; for it is familiar law that as
against a void instrument, no lapse of time constitutes an estoppel (see
“98 Fed. Rep., 666-671); and it is the declared law of this State that with-
‘out stockholders’ assent, as required by statute, a corporate mortgage is
absolutely void. (Vail v. Hamilton, 85 N. Y., 456; The Vigilancia, 73
Fed. Rep., 452-457.)

“ Originally, the requirement of stockholders’ assent was of limited
application; for, at first, it prevailed only in respect of manufacturing
corporations. Their financial transactions were small in comparison
-with those of the present time, when the bonds of industrial corporations,
both domestic and foreign, have become a familiar and extensive form
-of investment. * * *

“‘When it is considered that an assent, perfect in form, may be sub-
ject to vitiation because of some latent and undisclosed technical irregu-
larity, it is obvious that sound public policy, as well as the interest of
‘the investing public, requires that at some time there should arise a
statutory bar to the possibility of pleading or proving any latent techni-
-eal defect. ;

“This is not less obvious when it is recalled that by recent legislation,
the savings banks— which are the favored institutions of the State —
have been authorized to invest in the corporate bonds of railroad
‘companies.

“The new section 8 provides, first that the directors’ recital in a mort-
gage publicly recorded, shall constitute presumptive evidence; and, sec-
-ondly, that after the expiration of a year from the public record of a
mortgage containing such a recital, the valid assent of stockholders shall
be conclusively presumed, if bonds have been issued for money actually
Teceived by the corporation and interest paid thereon.

,
‘

106 RewativE To Corporate Morteaces.

 

The Stock Corporation Law, § 8.

 

“Inasmuch as very properly the amendment applies both to past and
future mortgages, the concluding paragraphs of the section protect exist-
ing rights by giving to the board of directors, or to one-third of the stock-
holders of a corporation, the opportunity at any time within a year after
.the public record of the mortgage, or within a year after this enactment,
to contest the same for lack of stockholders’ assent; and the existing
rights of creditors also are preserved.

“The constitutionality of a retroactive statute providing that certain
instruments shall constitute presumptive proof, is recognized in,the case
of Howard v. Moot, 64 N. X., 262-268.

“The constitutionality of legislation constituting a short statute of
limitations, has been established by the Court of Appeals in the cases.
of People v. Turner, 117 N. Y., 227, 145 N. Y., 459, and Meigs v. Roberts,
162 N. Y., 371-378.

“The section also provides that the certificate hereafter filed by the
officers under section 2 shall be conclusive in favor of bona fide pur-
chasers of bonds who become such while said certificates shall remain.
of record and uncancelled.”

 

Article 1 of the Stock Corporation Law terminates with section 8, supra,
and the next article (II) begins with section 20. The revised corporation.
laws were enacted in this manner with intervals between the articles in
the numerical order of sectioning, instead of maintaining a continuity
of section numbers, so as to allow for internal amendatory expansion of.
each law by the insertion of new sections in proper logical connection.

‘
Drrecrors. "107

 

The Stock Corporation Law, § 20.

 

ARTICLE ITI.

Dieectrors anp Orricers; THrrr Erection, Duties anp
LiaBILITIEs.
SEcTIon 20. Directors. ie
21. Change of number of directors.
22. When acts of directors void.
23. Liability of directors for making unauthorized dividends.
24, (Repealed by Laws of 1901, Chapter 354.)
25. Liability of directors for loans to stockholders.
26. Transfers of stock by stockholders indebted to corporation.
27. Officers.
28. Inspectors and their oath.
29. Books to be kept.
30. Annual report. ;
31. Liability of officers for false certificates, reports or public
notices.
32. Alteration or extension of business.
’ 33. Sale of franchise and property.
34. Liabilities of directors and officers, limitations.

§ 20. Directors.— The directors of every stock corporation
shall be chosen at the time and place fixed by the by-laws of the
corporation by a plurality of the votes at such election. Each
director shall be a stockholder unless otherwise provided in the
certificate, or in a by-law adopted by a stockholders’ meeting. Va-
cancies in the board of directors shall be filled in the manner pre-
scribed in the by-laws. ,Notice of the time and place of holding
any election of directors shall be given by publication thereof, at
least once in each week for two successive weeks immediately
preceding such election, in a newspaper published in the county
where such election is to be held, and in such other manner as may
be prescribed in the by-laws. Policy holders of an insurance cor-
poration shall be eligible to election as directors, whether or not
they be stockholders. At least one-fourth in number of the direct-
ors of every stock corporation shall be elected annually.

(Former section 20, L. 1890, ch. 564, as amended by L. 1892, ch. 688;
L. 1901, ch. 354; L. 1906, ch. 238.)

The words “whether or not they be stockholders” in the last sen-
tence but one were inserted in 1906.

The amendment of 1901 modifies this section by striking out the pro-
visions that directors shall be chosen from the stockholders, and that if
a director shall cease to be a stockholder his office shall become vacant,
and substitutes in lieu thereof a new feature, permitting persons who
are not stockholders to be directors if the certificate of incorporation or
a by-law adopted by a stockholders’ meeting so provides.

Yk
108 Directors.
The Stock Corporation Law, § 20.

 

 

Rights which arose under this section prior to April 16, 1901, upon
which date the amendment took effect, were preserved by section 5 chapter
354, Laws of 1901, which reads as follows:

“This act shall take effect immediately, but shall not affect any action
or proceeding pending in any court at the time it takes effect or any right
of any creditor of any corporation or of any stockholder against any
director under existing law, providing action thereon be commenced
within six months after this act takes effect, except as in this act other-
wise provided.”

For form of notice of annual meeting, see post, form No. 35.

For forms of classification of directors, see forms Nos. 85a, 85b, 35c.

For form of oath of inspectors of election and certificate of result, see post,
forms Nos. 39 and 40.

The term directors when used in these laws, includes trustees. (Gen.
Corp. Law, § 3, ante.) This provision of said section 3 is, it seems,
intended merely for a definition of terms and that the managing board
of a corporation organized under Laws 1848, ch. 40 (now repealed), should
still be called trustees.

At least one of the directors of every corporation must be a resident of
this State. (Gen. Corp. Law, § 29, ante.) ‘

No liability for a dissolution arises from failure to elect directors on
the day fixed in the by-laws. (Gen. Corp. Law, § 23, ante.) But see the
Stock Corporation Law, § 22, as to neglect or refusal of directors to
adopt by-laws for holding annual election.

Unless others are appointed by the court the directors shall be trustees
of creditors, etc., in case of dissolution. (Gen. Corp, Law, § 30, ante.)

The number of directors may be changed. See next succeeding section.

By-laws adopted at a meeting of members of the corporation control
action of directors. (Gen. Corp. Law, § 11, subd. 5, ante.) Any by-law
adopted by directors, regulating election of directors or officers, must
be published. (Id.)

The directors may appoint officers of the corporation. (See § 27 of thie
law.)

The directors shall manage the affairs of every corporation and a major-
ity of the board of directors constitutes a quorum. (Gen. Corp. Law, § 29,
ante.) And the act of a majority at a meeting having a quorum is the
act of the board. (Gen. Corp. Law, §§ 29 and 39.)

At elections of directors each stockholder has one vote for every share
of stock held by him, unless otherwise provided in the certificate of incor-
poration. (Gen. Corp. Law, § 20, ante.)

For liability of directors for unauthorized dividends, loans to stock-
holders, etc., see §§ 23 and 25 of this law, post.

Whenever, under the provisions of any of the corporate laws, a corpora-
tion is authorized to take any action by the agreement or action of its
directors, managers or trustees, such agreement or action may be taken
by such directors, regularly convened as a board, and acting by a majority
of a quorum, except when otherwise expressly required by law or the
by-laws of the corporation. (Gen. Corp. Law, § 39.)

At any meeting at which every member of ‘the board of directors shall
be present, though held without notice, any business may be transacted
Directors. 109:
The Stock Corporation Law, § 20.

 

 

which might have been transacted if the meeting had been duly called.
(Gen. Corp. Law, § 39.)

For other decisions applicable to the provisions of the forégoing sec-.
tion, see the cases cited under section 20 of the General Corporation Law.

For liability of directors for unauthorized dividends and loans to stock-
holders, etc., see §§ 23 and 25 of this law, post.

_For penal provisions relative to misconduct of directors, see Penal.
Code, §§ 590, 594, 602, 610, 611, 614, post.

A special meeting for electing directors may be called. (Gen. Corp.
Law, §§ 24, 25, 26, ante.) In certain cases any member of the corporation
may call such meeting. (Id.)

As to proceedings to compel directors to account for their official con- -
duct; to transfer to the corporation-property belonging to the same, etc.,.
or for the removal of such director, see Code Civ. Pro., §§ 1781-83 and
§§ 1811-12, post.

As to inspectors of election and their election, see § 28 of this law, post..

Directors cannot vote by proxy at meetings of the board. (Craig Medi-
cine Co. v. Merch. Bk.,’59 Hun, 561.)

At a meeting held for the election of directors, any number of stock-
holders, however small their holding, provided they hold a plurality of
the stock voted, may elect directors, notwithstanding a by-law to the
contrary. There must, however, be a quorum. (Matter of Rapid Transit
Ferry Co., 15 App. Div., 530, revsg. in part, 19 Misc., 409.)

In the absence of any provision in the by-laws of a corporation, or in
the statute under which it was incorporated, making a ballot containing a.
printed and a written name of candidates for the same office void, such
ballot cannot be rejected, but should be counted for the written name. -
(Thorn v. Pangburn, 14 Misc., 195.)

An owier of property may sell it to a corporation of which he is a stock--
holder and trustee, if he does not, while acting in his own interests, also-
act as trustee or representative of the corporation. (Gamble v.-Q. C. W..
Co., 123 N. Y., 91; Flynn v. Brooklyn City R. R. Co., 9 App. Div., 269.)

In the absence of any proof of authority conferred upon an auditing-
board, beyond its usual functions to allow or reject. claims, it has no
authority to rescind a contract or determine the future action of the cor--
poration. Such authority is in the board of directors or trustees. (Skin--
ner v. Wood M. & R. Mach. Co., 140 N. Y., 217.)

The mere fact that a party is a trustee or director of a corporation does.
not make him chargeable with actual knowledge of its business trans-
actions and of the entries made on its books so as to render such books
per se evidence against him. (Powell v. Conover, 75 Hun, 11.)

Where a candidate at a corporate election receives a majority of the
legal votes cast, the receipt of illegal votes in his favor will not defeat
his election. (Argus Co. v. Manning, 138 N. Y., 557.)

Neither stockholders nor directors can do a corporate act, out of the-
jurisdiction creating the corporation, which can bind those who do not.
participate in it. (Ormsby v. U. M. C. Co., 56 N. Y., 623.)

A trustee who, in spite of the protests of his co-trustee, votes upon the
estate stock in favor of himself as director, thereby disfranchising such
stock, is guilty of a breach of trust, and will not be permitted to derive
personal profit therefrom. (Matter of Elias, 17 Misc., 718.)

The mere election of a person as a director of a corporation, where he
neither accepts the position nor acts as such, is not sufficient to establish
the fact that he is a director. (United Growers Co. v. Eisner, 22 App.
Div., 1. z

A deed which does not, in all respects, conform to the resolution of the-
directors, is nevertheless effective where the consideration has been ac-
cepted by the corporation.+ (White v. Sheppard, 41 App. Div., 113.)

Prior to the last amendment to the foregoing section the following
cases applied thereto: As soon as a director parts with all beneficial inter-.
 

110- Cuancr or NumBer oF Directors.
a , The Stock Corporation Law, § 21. ~ oa

 

est in and control over his stock and causes the corporate officers to have
knowledge of the fact, he ceases to be a director. (Chem. Nat. Bk. v. Col-
well, 132 N. Y., 250; Beardsley v. Johnson, 121 N. Y., 224.) The election of
a disqualified person does not make him even a de facto director. (In 're
Newcomb, 42 St. Rep., 442.) One who holds the legal title to stock, but
has no beneficial interest therein, is ineligible as a director. (Matter of
Elias, 17 Misc., 718.) The provision, that “if a director shall cease to be a
stockholder his office shall become vacant,” is self-executing. (Sinclair v.
Fuller, 158 N. Y., 607, aff’g 9 App. Div., 297.) But these decisions have
been superseded by the amendment of 1901, which struck out the clause
vacating a directorship in case a director ceased to be a stockholder, and
which provides that directors need not be stockholders if the certificate
_ of incorporation or a by-law made by stockholders so states.

§ 21. Change of number of directors.— The number of directors of
any stock corporation may be increased or reduced, but not below the
minimum number prescribed by law, when the stockholders owning a
majority of the stock of the corporation shall so determine, at a meet-

ing to be held at the usual place of meeting of the directors, on two
weeks’ notice in writing to each stockholder of record. Such notice
shall be served personally or by mail, directed to each stockholder at
his last known post-office address. Proof of the service of such notice
shall be filed in the office of the corporation at or before the time of
such meeting. The proceedings of such meeting shall be entered in the
minutes of the corporation and a transcript thereof verified by the
president and secretary of the meeting shall be filed in the offices
where the original certificates of incorporation were filed. Such
increase or reduction may also be effected by unanimous consent with-
out a meeting, in which case there shall be filed in ‘the offices herein
specified, the unanimous consent of the stockholders in writing, signed
by them, or their duly authorized proxies, but no such consent shall be
valid unless there is annexed thereto an affidavit of the custodian of
the stock book of such corporation stating that the persons who
have signed such consent, either in person or by proxy, are the holders
of record of the entire capital stock of said corporation issued and
outstanding. If a corporation formed under or subject to the banking
law, the consent of the superintendent of banks, and if an insurance
corporation, the consent of the superintendent of insurance, shall be
first obtained to such increase or reduction of the number of directors.
This section shall apply to any stock corporation whether organized
under a general or special law, and the number of directors may be
increased as hereby provided notwithstanding the maximum number
of directors now prescribed by law. If the number of directors be
increased, the additional directors authorized by such increase shall
be elected by the votes of a majority of the directors in office at the
time of the increase. If the original or an amended certificate of incor-
poration of the corporation shall provide that the directors shall be
divided into two or more classes, whose terms of office shall respectively
expire at different times, the additional directors shall be divided
among such classes as nearly as practicable in proportion to the
respective numbers of directors constituting each class prior to
such increase.

(Former section 21, L. 1890, ch. 564, as amended by L. 1892, ch. 688; L.
1903, ch. 320; L. 1904, ch. 307; L. 1905, ch. 750.)

For form of certificate, see post, forms Nos. 36, 37,,38.

The amendment of 1904 added the provision permitting an increase or
reduction of.number of directors to be effected by unanimous consent
without a meeting.

The last two sentences were added in 1905.
Crrrain Acts Voip; Unaurnorizep DivipEnps. 111

 

The Stock Corporation Law, §§ 22, 23.

 

To effect a legal increase or reduction of the number of directors, it is
essential that a transcript of the minutes of the stockholders’ meeting
at which the change was determined upon shall have been filed in the
offices where the original certificates of incorporation were filed. (In re
Dolgeville v. Elect. Lt. & Power Co., 160 N. Y., 500, revsg. 41 “App. Div.,
24.)

The verified transcript above provided for must be filed and recorded
in the office of the Secretary of State and a duplicate ‘original must also
‘be filed and recorded in the county clerk’s office in which the certificate
sof incorporation was filed. (Gen. Corp. Law, § 5.)

‘A reduction in the number of directors cannot be assailed collaterally
in an action by a creditor to enforce a corporate debt, although no cer-
‘tificate of such reduction was filed. (Wallace & Sons v. Walsh, 125
'N. Y., 25.)

                        

§ 22. When the directors
of any corporation for the first year of its poeaorate existence shall
‘hold over and continue to be directors after the first year, because
of their neglect or refusal to adopt the by-laws required to enable
the stockholders to hold the annual election for directors, all their
acts and proceedings while so holding over, done for and in the
name of the corporation, designed to charge upon it any liability
or obligation for the services of any such director, or any officer,
or attorney or counsel appointed by them, and every such liability
or obligation shall be held to be fraudulent and void,

(Former section 22, L. 1890, ch. 564, re-enacted without change by L.
1892, ch. 688.)

No liability for a dissolution arises from failure to elect directors on the
day fixed in the by-laws. (Gen. Corp. Law, § 23.)

In certain cases any member of the corporation may call a meeting to
aAlect directors. (Gen. Corp. Law, § 24.)

§ 28. Liability of directors for making unauthorized
dividends.— The directors of a stock corporation shall not make
dividends, except from the surplus profits arising from the business
of such corporation, nor divide, withdraw or in any way pay to
the stockholders or any of them, any part of the capital of such
corporation, or reduce its capital stock, except.as authorized by
‘law. In case of any violation of the provisions of this section, the
‘directors under whose administration the same may have happened,
except those who may have caused their dissent therefrom to be
entered at large upon the minutes of such directors at the time,
or were not present when the same happened, shall jointly and
‘severally be liable to such corporation ‘and to the creditors thereof
112 Unauruonizep DivipENDSs.

 

The Stock Corporation Law, § 23.

 

to the full amount of any loss sustained by such corporation or its-
creditors respectively by reason of such withdrawal, division or
reduction. But this section shall not prevent a division and dis-
tribution of the assets of any such corporation remaining after the:
payment of all its debts and liabilities upon the dissolution of such
corporation or the expiration of its charter; nor shall it prevent
a corporation from accepting shares of its capital stock in com-
plete or partial settlement of a debt owing to the corporation,
which by the board of directors shall be deemed to be bad or
doubtful.

(Former section 23, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and.
L. 1901, ch. 354.) ‘

Prior to the amendment of 1901 directors violating this section were
liable to the corporation and its creditors for the full amount of the-
unauthorized dividend, but by the terms of the section as above amended
the harshness of this penalty has been mitigated. The last clause of the
section permitting the corporation to accept shares of its capital stock in
settlement of a debt is new.

Laws of 1901, chapter 354, amending the above section, to take effect
April 16, contains a saving clause preserving then existing rights, for the-
full text of which see note to section 2 of this law.

This section applies to foreign as well as domestic corporations. (See
§ 60 of this law.)

As to other actions against directors or trustees for misconduct, see
Code Civ. Pro., §§ 1781-1783, and 1790-1796, post; and for penal provisions
relative thereto, see Penal Code, §§ 594, 602, 610-611 and 614, post.

Directors are liable for loans to stockholders; see § 25.

A corporation has no authority to make a scrip dividend in one year,.
and in the succeeding year to issue bonds to pay such dividend in whole or
in part. (Merz.v. Interior Conduit & Insulation Co., 87 Hun, 430.)

The issue of debenture bonds to be subscribed for by stockholders and
paid for in part by the surrender of stock is invalid as not complying:
with this section and section 42 of the Stock Corporation Law, which
requires the issue of bonds for money, labor or property. (Merz v. In-
terior Conduit & Insulation Co., 20 Misc., 378.)

The accumulation of a surplus by the directors of a corporation can-
not be enjoined ‘by a stockholder so long as the directors are acting
honestly and within their discretionary powers. (Burden v. Burden, 159
N. Y., 287, aff’g 8 App. Div., 160.

After a dividend is declared, it is, in legal contemplation, severed from‘
the assets of the corporation and is thereafter held by it as a trustee of
the person who was the stockholder at the time when the dividend was
declared. (McGill v. Holmes, Booth & Haydens, 23 Misc., 524.)

Directors of a corporation have no right to pay dividends unless they-
leave the capital stock unimpaired. (Berwind—White Coal Mining Co. v.
Ewart. 11 Misc., 490.) ;

Dividends declared by a corporation, but payable at a future time, are no-
Unaurnorizep [ivipENps. 1138

 

The Stock Corporation Law, § 24.

 

longer a part of the assets of the corporation, but become at once the
property of the shareholders, and are thereafter held by the corporation
simply as a trustee for the shareholder. (Matter of Kernochan, 104 N. Y.,
616, 624; Hopper v. Sage, 112 N. Y., 530; Jermain v. L. 8. & M..S. Ry. Co.,
91 N: Y., 488, 492; People ex rel. U. S. Trust Co. v. Barker, 86 Hun, 131.)

Where the surplus of a corporation properly applicable to a dividend is
ample for that purpose and the directors in bad faith, and without reason-
able cause, refuse to declare one, the courts will interpose and direct the
declaration of a reasonable dividend. (Hiscock v. Lacy, 9 Misc., 578.)

The term capital as used in this section means the property of the cor-
poration, contributed by its stockholders or otherwise obtained by it, to the
extent required by its charter. When the property exceeds that limit the
excess is surplus and may be divided in money or property or by a scrip
dividend. (Williams v. W. U. T. Co., 93 N. Y., 188; Burrell v. Bushwick
R. R. Co., 75 N. ¥., 211.) ,

This section is intended to prevent the division, distribution, withdrawal
and reduction of the property of a corporation below the sum limited in
its charter. (Williams v. W. U. T. Co., 93 .N: Y., 187; Rorke v. Thomas,
56 N. Y., 559.)

Dividends are payable to the person in “whose name the stock étande
on the books of the corporation or its legal representatives. Officers of a
corporation are not required to demand production of the certificate of
stock before paying dividends thereon. (Brisbane v. D., L. & W. R. R.
Co., 94.N. Y., 204; Jermain v. L. 8S. & M.S. Ry. Co., 91 N. Y., 483: Boardman
y. Same, 84 N. Y., 157.)

The rate of dividend to be paid and the amount of surplus to be retained
by a corporation must rest in the fair and honest discretion of its directors.
(McNab v. McNab & H. Mfg. Co., 62 Hun, 18; Beveridge v. N. Y. El. R. R.
Co., 112 N. Y., 1; Williams v. W. U. T. Co., 93 N. Y., 187; Reynolds y.
Bk. of Mt. Vernon, 6 App. Div., 62.) ;

Under Laws of 1848, chapter 40 (now repealed), it was held that if the
trustees choose to bear the responsibility, they have power to declare and
pay dividends though no surplus exists beyond the capital, at least until
some judicial restraint intervenes. to TENT (Edison Gen. Blectric Co.
vy. Barker, 141 N. Y., 251.) :

§ 24, This section has been repealed by chapter 364,
Laws of 1901.

The section thus stricken from the statute books prohibited any wtowk
corporation, except a moneyed corporation, from creating any debt, if
thereby its total indebtedness not secured by mortgage, shall exceed the
amount of its paid-up capital stock, and it provided further that the
directors consenting to the creation of any such debt shall be personally
liable therefor to the creditors of the corporation. This section has
always been a vexatious one, and by its repeal a corporation is allowed
to borrow as much as its credit and ‘security will permit without reference
to the amount of its capital stock.

Rights which arose under section 24, prior to April 16, 1901. upon
which date the repeal took effect, were preserved by section 5, chapter
354, Laws of 1901, which reads as follows:

; §
114 Lrasizity ror Loans To STocKHOLDERS.

 

The Stock Corporation Law, § 25.

 

“This act shall take effect immediately, but shall not affect any
action: or proceeding pending in any court at the time it takes effect
or any right of any creditor of any corporation or of any stockholder
against any director under existing law, providing action thereon be
commenced within six months after this act takes effect, except as in
this act otherwise provided.”

As to mortgages and bonds of a stock corporation, and the proceed:
ings respecting the issue thereof, see section 2 of this law.

For cases which arose prior to the repeal of section 24, see the fourth
edition of * White on Corporations,” pages 105, 106. See, also, 58 App.
Div., 57, 316; 16 App. Div., 581.

§ 25. Liability of directors for loans to stockholders, —
No loan of moneys shall be made by any stock corporation, except:
a monied corporation, or by any officer thereof out of its funds to
any stockholder therein, nor shall any such corporation or officer
discount any note or other evidence of debt, or receive the same in
payment of any installment or any part thereof due or to become
due on any stock in such corporation, or receive or discount any
note, or other evidence of debt, to enable any stockholder to with-
draw any part of the money paid in by him on his stock. In case
of the violation of any provision of this section, the officers or
directors making such loan, or assenting thereto, or receiving or
discounting such notes or other evidences of debt, shall, jointly and
severally, be personally liable to the extent of such loan and in-
terest, for all the debts of the corporation contracted before the
repayment of the sum loaned, and to the full amount of the notes
or other evidences of debt so received or discounted, with interest
from the time such liability accrued.

(Former section 25, L. 1890, ch. 564, as amended by L. 1892, ch. 688.)

For further penalty, see Penal Code, § 594, post.

The principal object of this section is to prevent: a reduction of the
capital under cover of loans to stockholders. It is intended for the pro-
tection of creditors. (A. C. Nellis Co. v. Nellis, 62 Hun, 67, 41 St. Rep.,
599.) The trustees or directors cannot ratify an act which they could
not lawfully do in the first instance. (Id.; Peterson v. Mayor, etc., 17
N. Y., 449; Brady v. Same, 20 N. Y., 312.)

To create the liability imposed by this section there must have been
a loan of money in such a form as to create an indebtedness and an
absolute liability for its repayment by the borrower. (Billings v. Trask,
30 Hun, 314.)

The officers making or assenting to any loan of its money to stock-
holders are personally liable for all the debts of the corporation con-
tracted before payment of such loan. (Boynton v. Hatch, 47 N. Y., 225.)
Srock Transrer; gow Restricrep; Orricers. ‘115

 

The Stock Corporation Law, §§ 26, 27.

 

§ 26. Transfers of stock by stockholder indebted to
corporation. — If a stockholder shall be indebted to the corpora-
tion, the directors may refuse to consent to a transfer of his stock
until such indebtedness is paid, provided a copy of this section is
written or printed upon the certificate of stock.

(Former section 26, L. 1890, ch. 564, re-enacted by L. 1892, ch. 688.)

‘When a copy of this section has not been written or printed upon a

“subscriber's stock certificate, and there is no provision in the by-laws
or in the subscription agreement making the subscriber liable for the
full amount of his subscription, or making the stock non-transferable
until fully paid, a subscriber is not liable to pay in full for the stock
subscribed for by him, after he has ceased to be a stockholder by a bona
fide transfer of his shares. (Rochester & Kettle Falls Land Co. v. Ray-
tmond, 158 N. Y., 576, aff'g 4 App. Div., 600.)

When certificates of stock contain restrictions which were originally
unauthorized, the stockholders may, by lapse of time and course of
dealing, acquiesce in and ratify the restriction. (Reynolds v. Bank of
Mt. Vernon, 6 App. Div.; 62.) ,

In the absence of above provision the corporation has no lien which it
can enforce and no authority to make a by-law embodying a similar pro-
vision. (Driscoll v. West, B. & C. Mfg. Co., 59 N. Y., 96.)

As to rights of vendee of stock. (Johnson v. Underhill, 52 N. Y.,
203; McNeal v. Tenth Nat. Bk., 46 N. Y., 325; Com. Bk. v. Kertright, 22
Wend., 384.)

: § 27. Officers.— The directors of a stock corporation may
appoint from their number a president, and may appoint a secre-
tary, treasurer, and other officers, agents and employes, who shall
respectively have such powers and perform such duties in the man-
agement of the property and affairs of the corporation, subject to
the control of the directors, as may be prescribed by them or in the
by-laws. The directors may require any such officer, agent or
employe to give security for the faithful performance of his duties,
and may remove him at pleasure. The policyholders of an insur-
ance corporation shall be eligible to election or appointment as its
officers.

(Former section’27, L. 1890, ch. 564, as amended by L. 1892, ch. 688.)

This section is permissive, but it is necessary that the corporation 7
should have a president and a secretary, or treasurer, as stock certificates
must be signed by two officers. (See § 40, post.) It will probably be
found convenient in order to secure a compliance with the law in the
absence of an officer, to have a president, vice-president, a secretary, and
@ treasurer. The two last named are not required to be directors, but
the president must be chosen from among the directors, and the vice-
president should also be a director, if given authority in the by-laws
to act in behalf of the president in the latter’s absence. The statute
116 OFFICERS.

 

The Stock Corporation Law, § 27.

 

permits one person to hold two offices. While the president must be a
director, he need not be a stockholder if the certificate of incorporation,.

‘or a by-law adopted by the stockholders, provides that directors are not.

required to be stockholders. (Stock Corp. L., § 20.)

One person may be chosen to fill two different offices. (Novelty Mfg..
Co. v. Connell, 88 Hun, 254.)

When the president of a corporation executes on behalf of the latter
a contract of such a nature as the corporation could authorize him to
make, or could ratify if made, and it is acknowledged by the president.
assuming to act for the corporation under the authority of its board of
directors, the contract is binding upon the corporation unless it shows.
affirmatively the president’s lack of authority. (Hudson River & Wash-
ington Co. Midland R. R. Co. v. Hanfield, 36 App. Div., 605.)

The president and director of a corporation who renders services.
beyond his official duties, upon an employment of the directors with a.
promise of compensation, is entitled thereto, although no salary attaches.
to his official position and there is no express resolution of the directors
to employ and compensate him. (Bagley v. Carthage, W. & S. H. R. R.
Co., 165 N. Y., 179, aff’g 25 App. Div., 475.)

When a corporate officer has tendered his oauteaa Hout: in a letter deliv-
ered to the president, to take effect immediately, the resignation is com--
plete when it is tendered, and its validity is not dependent upon its accept-.
ance by the directors or upon the election of his successor. (Manhattan

Co. v. Kaldenberg, 165 N. Y., 1, revsg. 27 App. Div., 31.)

The treasurer cannot bind the corporation for work, labor and ser-
vices, as such contract is beyond the scope of the duties of his office.
(Connell v. Ernst-Max-Nathan Co., 35 Misc., 133.)

When an authorized transfer by a president of a corporation of the
corporate property is made in payment of his individual indebtedness
it will be upheld. (Quee Drug Co. v. Plaut, 55 App. Div:, 87. See, also,
Osborn v. Montelac Park, 89 Hun, 167; aff’d, 153 N. Y., 672.)

When a corporation is to be charged with liability upon an act of its.
general counsel and vice-president, slight evidence in support of authority
for the act is sufficient to require the corporation to show the true:
relation which such officers bear to the corporation, the authority of
such officers being peculiarly within its knowledge. (Nutting v. Kings.
Co. El. Ry. Co., 21 App. Div., 72.)

Declarations of an agent or officer of a corporation are not admissible.
in an action against it, except when made as part of the res gestae, or
in the performance of his duties as such agent or officer. (Cosgray v..

New England Piano Co., 22 App. Div., 455.)

When by-laws of a corporation authorize its officers alone ‘3 make
contracts, one of its agents has no power to bind it. (Minor v. Edison
Elec. Illg. Co., 22 Misc., 543.)

Where the manager of a corporation, having general control of its:
business, verbally hires premises, and the corporation subsequently occu-
pies such premises, such possession is a ratification of the act of the
manager. (William Wicke Co. v. Kaldenberg Mfg. Co., 21 Misc., 79.)

Where a corporation takes possession of premises rented by its man-.
Orricers. 117

 

The Stock Corporation Law, § 27.

 

ager, it is estopped from denying the manager’s authority to make the
Jease. (William Wicke Co. v. Kaldenberg Mfg. Co., 21 Misc., 79.)

The president of a corporation is impliedly vested with authority to
‘transact its ordinary business and the corporation is liable for a contract
made for it by him. (Reedy Elevator Co. v. American Grocery Co., 23
Misc., 520; also, Powers v. Schlicht Heat & Power Co., 23 App. Div., 380.)

A by-law of a corporation, fixing the salary of its president, may be
validly modified by an executed’ parol agreement, acquiesced in by all
ithe parties. (Bowler v. American Box Strap Co., 22 Misc., 335.)

The acceptance of the resignation of an officer is not necessary to.
make the resignation effective. (Noble v. Euler, 20 App. Div., 548.)

Executive officers of a corporation have no power to employ a person
for life. (Carney v. N. Y. Life Ins. Co., 19 App. Div., 160.)

If an officer makes a contract in excess of his authority, and the cor-
‘poration ‘accepts the avails, it is deemed to have ratified the act and is
estopped from repudiating it. (White v. Sheppard, 41 App. Div., 113.) ;

When the scope of the authority conferred by a corporation upon its
president does not appear in terms, his authority may be implied from
the power he was accustomed to exercise. (Chambers v. Lancaster, 160
N. Y., 342, aff’g 3 App. Div., 215.)

Directors have no right to vote theraselves salaries as there incidents
to their offices. However, they are not debarred from becoming employes
of the corporation, and are entitled to a reasonable compensation as such.
(Fitchett v. Murphy, 26 Misc., 544.) ‘

A director of a corporation is not liable to it for damages for preventing
‘the consummation by outside parties of a contract with a corporation
to furnish inducements for the removal of its works, when it appears
that such director, in advising such parties in regard to the concealment
of the condition of the corporation, performed only an obvious duty as a
matter of honest business dealing. (Hale v. Mason, 160 N. Y., 561, aff’g
22 App. Div., 630.)

The authority of the president of a corporation to bind it by acts
‘within the scope of his apparent authority may be implied from the
adoption or recognition of his acts by the corporation or its directors.
(Hall v. Ochs, 34 App. Div., 103.)

Money received from an outsider by a director and president of a
corporation for procuring the outsider and his friends to be elected
directors and give the control, together with the property of the cor-
poration, is money obtained by virtue of his office, for which he must
account to the corporation. (McClure v. Law, 161 N. Y., 78, revsg. 20 App.
Div., 459.) 5

A corporation will not be liable for any slander uttered by an officer
thereof unless it can be proved that the corporation expressly orderéd
and directed the officer to use the objectionable words. (Odgers on
Libel & Slander, page 368; Eichner v. Bowery Bank, 24 App. Div., 63.)

The fact that a person, who intended to bind herself individually, used
the name of “1 corporation in executing a contract, will not avail a person
who has not been misled. (Davis v. Smith, 42 App. Div., 333; Goodsell v.
W. U. Telegraph Co., 130 N. Y¥., 430.)
118 OFFICERS.

 

The Stock Corporation Law, § 27.

 

Where a corporation has agreed, in writing, with an employe to pay
him, in addition to a fixed salary, three per cent. upon such salary for
every one per cent. in excess of ten per cent. which shall be paid as divi-
dends to the stockholders and the corporation doubles its stock and
thereafter declares a 100 per cent. dividend and soon thereafter a thirty
per cent. dividend, the matter presents a question for the consideration
of the jury, as to whether the employe’s compensation was affected by
such increase of capital. (Bradburn v. Solvay Process Co., 18 App. Div.,
542.)

Assuming that a brewing corporation has power to guarantee a cus-
tomer’s lease, the landlord cannot recover upon such guarantee, executed
by the vice-president alone, where there is no affirmative proof that the
corporation had any knowledge of the existence of the guarantee, or
knew that the vice-president had executed it in the name of the corpora-
tion. The form of lease and guaranty is sufficient to put the landlord
upon inquiry as to the extent of the vice-president’s powers. (Aronson v.
David Mayer Brewing Co., 29 Misc., 289, revsg. 26 Misc., 655, 867.)

The president of a corporation, composed of but five members, has
apparent authority to make a contract, and the validity of the contract is.
not impaired by the fact that it was.signed and sealed on behalf of the
corporation by the general manager. (Standard Fashion Co. v. Siegel--
Cooper Co., 44 App. Div., 121.) .

The general rule is that an agreement made by an officer or agent of a
corporation who assumes to act in its behalf can be enforced against the
corporation where it has received the benefit of the agreement. (Davies v.
Harvey Steel Co., 6 App. Div., 166; Patterson, as Receiver, v. Robinson, 116
N. Y., 193; Cunningham v. M. S. & F. C. R. R. Co., 63 Hun, 439.) The
consent of a corporation will be presumed in the case of an executed
contract made by its agent, but without express authority, for, in such
ease, the receipt and appropriation of the fruits of the transaction fur-
nishes the best evidence of its approval. (Davies v. Harvey Steel Co., 6
App. Div., 166.)

The president of a corporation has prima facie power to do any act.
which the board of directors could authorize or ratify. (Davies v. Harvey
Steel Co., 6 App. Div., 166; Prindle v. Washington Life Ins. Co., 73 Hun,
448.)

AD agreement by a person owning a majority of the stock of a corpora-
tion to secure the corporate offices and a salary to a party contracting
with him is void as against public policy, notwithstanding that such party
was a capable man, qualified as an expert to manage the business of the
corporation, and that such majority stockholder believed it would be to
his interest as the largest stockholder and to the interest of all the
parties concerned in the welfare of the corporation that such services.
should be secured for them. (Fennessy v. Ross, 5 App. Div., 342.)

Where the secretary and treasurer and general manager of a corpora-
tion, who had charge of its business, executed a written contract for the
sale of products of the corporation, the vendee is entitled to recover dam-
ages against the corporation for a breach of such contract, notwithstand-
ing that a by-law of the corporation was not complied with which pro-
_

OFFICERS, 119

 

The Stock Corporation Law, § 27.

 

vided that the president should sign all contracts involving a greater
liability than $200. (Cone v. Empire Plaid Mills, 12 App. Div., 314.)

An agreement _in writing by the president of a corporation, upon re-
ceiving a release from a discharged employe, to thereafter settle the
question of the amount of wages due to him, is not a promise to pay such
wages and does not render the former personally liable, especially as the
writing failed to recite any consideration. (Schisgal v. Wronkow, 18
Misc., 445.)

The fact that an officer of a corporation voted in favor of a resolution
giving him a salary’ does not render the contract void, but only voidable
at the instance of the corporation. (Kearns v. N. Y. & College Point
Ferry Co., 19 Mise., 19, aff’g 17 Misc., 272.)

Although a certificate of incorporation provides that no debt exceeding
$100 shall be incurred except in writing and under the corporate seal, yet,
where a contract involving a larger sum has been discussed by all the
directors and the matter has been left in the hands of the president, the
vendor is entitled to recover the amount. (Globe Gas Light Co. v. Metro-
politan Investment Co., 10 App. Div., 342.)

Where a promisee sues upon a contract made with him in the name of
a corporation by its president, and the contract is one which the corpora-
tion could authorize its president to make or which it could ratify when
made, the burden rests upon the corporation to show that the act of the
president was unauthorized. (Patterson v. Ongley Electric Co., 87 Hun,
462.) .

If the president of a corporation, who is authorized to make corporate’
notes for a corporate purpose, makes a corporate note regular in form,
payable to the order of a third party, who has no interest therein, and the
note is indorsed by-the nominal payee, to a firm of which the president is
a member, and then indorsed by the firm, and the president thereafter
wrongfully delivers the note, before ‘maturity, to a stranger having no
knowledge of a defect in the title, as collateral security for a cash advance
of more than its amount upon a note of the firm and for its benefit, the
fact that the corporate note bears upon its face the signature, as presi-
dent, of the party dealing with it, is not sufficient to put the transferee
upon inquiry, so as to deprive him of the character of a bona fide pur-
chaser. (Cheever vy. Pittsburgh, Shenango & L. E. R. R. Co., 150 N. Y., 59,
revsg. 72 Hun, 380.) ~

When officers or agents assume to act in behalf of a corporation and
employ a person to perform a service for the corporation, and such service
is performed with the knowledge of the directors and principal officers,
and the corporation receives the benefit of such.service without objection,
it is liable under an implied assumpsit. (Prindle v. Washington Life Ins.
Co., 73 Hun, 448.) :

While the law looks with disfavor upon contracts made between a direc-
tor or officer of a corporation and the corporation, because it cannot accu-
rately measure the influence of a trustee with his associates, yet a pledge
as collateral for a loan actually made by an officer or director to the cor-

. poration is not void because of the relation of the parties. (Kinsman vy,

Fisk, 83 Hun, 494.)
120, OFFICERS.

 

The Stock Corporation Law, § 27.

 

Where the officers of a corporation signed an agreement in their indi-
vidual names, adding the title of the office held by each after his signature,
and the character in which such officers assumed to act is known to the
person dealing with them, the agreement is that of the corporation’ and
not the individual agreement of its officers. (Groves v. Acker, 85 Hun,
492.)

Where two individuals sign a promissory note, and after their respective
names attach the words “ Prest.”” and “ Treas.,”’ it is an individual obliga-
tion of such persons and not the obligation of the corporation, if there is
nothing in the body of the note to indicate that it is a corporate obligation,
even though the name of the corporation be printed on the margin. (First

‘Nat. Bk. of Bklyn. v. Wallis, 150 N. Y., 455, aff’g 84 Hun, 376.)

The president of a corporation, having full personal charge of the busi-
ness which the corporation was organized to transact, represents it, and
prima facie has power to do any act which the directors could authorize or
ratify. (Oakes v. Cattaraugus Water Co., 143 N. Y., 430.)

A person who'deals with an officer of a corporation, to whose office no
inherent executive authority attaches, is chargeable with notice of an
apparent want of authority and so deals with such officer at his peril.
(Parmelee v. Associated Physicians and Surgeons, 9 Misc., 458, and cases

‘therein cited.)

A corporation is not bound by a contract on its behalf, made by the
treasurer in disregard of a by-law prohibiting the execution of such a
contract by him alone. (Parmelee v. Associated Physicians and Surgeons,
9 Misc., 458.)

A person who is both a stockholder and a director of a corporation can-
not sustain a claim for salary as president thereof unless his claim is
founded on a contract entitling him to compensation. (Starbuck v. Housa-
tonic R. R. Co., 83 Hun, 534.)

In an action on a note by a bona fide holder, the fact that the note was
made by the president of a corporation and was not signed by its treas-~
urer, as required by the by-laws, is not a defense if there was no diversion
of the note or of the proceeds thereof from its original purpose. (Nat.
Spraker Bk. v. Geo. C. Treadwell Co., 80 Hun, 363; Grant, as Rec. v. Geo.
C. Treadwell Co., 1 App. Div., 367.)

A person has a right to assume that the officers of a corporation possess
the authority to act for the corporation-in those capacities in which the
corporation holds them out to be its representatives or permits them so to
act. (Railway Equipment & Pub. Co. v. Lincoln Nat. Bk., 82 Hun, 8.)

Where the president of a corperation has been in the habit of executing
notes in its name, and his acts in so doing have never been repudiated or
questioned by the directors, it is sufficient to sustain a finding by a jury
that the president was authorized to execute the notes, although the by-
laws of the corporation provided that its notes should be signed by, its
treasurer together with its president or secretary. (Grant, as Receiver of
St. Nicholas Bk. v. Geo. C. Treadwell Co., 82 Hun, 591.)

The president cannot supersede an express resolution of the board of
directors. (Tradesmen’s Nit. Bk. v. Manhattan Lumber Co., 46 St. Rep.,
487.)
OFFIcERs. 121
The Stock Corporation Law, § 27.

 

 

T

An assignment of a claim by a corporation, executed by its president
‘in the presence of its secretary and attested by its corporate seal, is suffi-
cient to protect the debtor in paying the amount of the claim to the
-assignee. (Purdy v. Nova Scotia M. Ry. & Iron Co,, 8 Misc., 510.)

The secretary of a corporation is one of its general managing agents,
and when in the discharge of the duties of his office represents the cor-
poration. (Hastings v. Brooklyn Life Ins. Co., 138 N. Y., 473.)

Participation by an officer of a corporation in a swindling scheme does
‘not deprive the corporation of the right to attempt to recover by all legal
means the moneys out of which it has been unlawfully and wrongfully
‘swindled. (Farrow v. Holland Trust Co., 74 Hun, 585,)

One dealing with an officer of a corporation is put upon inquiry where
‘the act of the officer would be illegal unless actually authorized as, e. 9.,
where securities offered for sale or as security by the officer are appa-
‘rently the property of the corporation. (Knox v. Eden Musee Am. Co.,
.Ltd., 74 Hun, 483.) :

The corporation is under an implied obligation to make indemnity for
-a loss sustained by the negligent or wrongful exercise by its officers of the
general powers conferred upon them. (Mutual Life Ins. Co. v. Forty-
‘second St., ete., R. R. Co., 74 Hun, 505.) Officers of corporations are pre-
‘sumed to have the authority to perform the duties which such officers
ordinarily perform in corporations of like character. (Id.)

The board of directors may appoint an executive committee of its mem-
bers and authorize it to transact the business of the corporation during
‘the interval between the meetings of its board of directors. (Sheridan
E. L. Co. v. Chatham Nat. Bk., 127 N. ¥., 517.)

Officers are not individually liable if it appears on the face of the instru-
ment that they contracted with reference to corporate business and had
authority to make such contract. (Whitford v. Laidler, 94 N. Y., 145.)

_Recognition of a person as manager by the other managers, under a
‘mistaken supposition that he was duly ‘elected, is not, as between the
person and the corporation and where the public or third persons are not
-concerned; equivalent to, nor car it be made available as an election.
People ex rel. Nicholl y. N. Y. Infant Asylum, 122 N. Y., 190.) ;

The directors control ‘the rate of dividend and the amount of surplus to.
‘pe held. (McNab v. McNab & Harlin Co., 133 N. Y., 687, aff’g 62 Hun, 18.)
“When directors who are also officers and own nearly all the stock, they
may increase their salaries where each refrains from voting to increase
‘his own salary. (Id.)

A contract executed in the name of the corporation by its president
cand secretary and sealed with its corporate seal, is valid and binding
‘upon the corporation until evidence to the contrary shall be produced.
(Jourdan v. L. I. R. R. Co., 115 N. Y., 385.)

Officers of a corporation cannot avail themselves of their position and
opportunity to deplete the trust fund for their own benefit. (Bulkley v.
Whitcomb, 121 ‘N. Y., 107. See, also, Johnson v. U. S. & S. Co., 37 St.
Rep., 876.)

Directors and officers are agents of the corporation and liable to it for
unauthorized dcts. (Holmes, B. & H. v. Willard, 125 N. Y., 75.) But the
122 Inspectors anv Tweir Oatu.

 

The Stock Corporation Law, § 28.

 

corporation may indorse unauthorized acts of directors and officers. (Id.
See, also, Martin v. N. F. P. Mf’g Co., 122 N. Y., 165.)

Officers are not entitled to compensation unless the same has been pro-
vided for. (Mather v. Eureka N. Co, 118 N. Y., 629.)

A contract for a corporation, executed by its president, although with-
out authority of the board of directors, will be presumed to have been.
ratified unless it dissents within a reasonable time, provided the contract.
is within the corporate powers of the company. (Indianapolis R. M. Co.
v. St. L., ete, R. R. Co., 120 U. S., 256; Pittsburg R. R. Co. v. Keokuk
Bridge Co., 131 U. S., 371.)

In certain cases, a corporation cannot repudiate acts of its financial
manager. (Case Mf’g Co. v. Soxman, 138 U. S., 431.)

The president of a manufacturing company, having general authority
to contract by parol for making and delivering its products, has like
authority, until it is withdrawn, to authorize the termination and release
of such contract. (Indianapolis R. M. Co. v. St. L. R. R. Co., 120 U. S.,.
256.)

§ 28. Inspectors and their oath.— The inspectors of elec-
tion of every stock corporation shall be appointed in the manner
prescribed in the by-laws, but the inspectors of the first election of
directors and of all previous meetings of the stockholders shall be.
appointed by the board of directors named in the certificate of in-
corporation. No director or officer of a monied corporation shall be
eligible to election or appointment as inspector. Each inspector
shall be entitled to a reasonable compensation for his services, to-
be paid by the corporation, and if any inspector shall refuse to.
serve, or neglect to attend at the election, or his office become va-
cant, the meeting may appoint an inspector in his place unless the
by-laws otherwise provide. The inspectors appointed to act at any
meeting of the stockholders shall, before entering upon the dis--
charge of their duties, be sworn to faithfully execute the duties
of inspector at such meeting with strict impartiality, and according
to the best of their ability, and the oath so taken shall be subscribed.
by them, and immediately filed in the office of the clerk of the
county in which such election or meeting shall be held, with a
certificate of the result of the vote taken thereat.

(Former section 28, L. 1890, ch. 564, as amended by L. 1892, ch. 688.)

For form of certificate and oath of inspectors, sce post, forms Nos.‘89, 40.

Violation of oath or dishonest or corrupt conduct by an inspector con-
stitute a misdemeanor. (Penal Code, § 613, post.)

For other provisions relative to corporate elections, see Stock Corp. L.,
§ 20, and Gen. Gorp. L., §§ 20-27, and notes under said sections.

Unless the by-laws of the company provide that the inspectors shall be
stockholders, other persons may be chosen.

The use of the word “inspectors” requires that there shall be at least
\

Booxs to Be Kept. , 123
The Stock Corporation Law, § 29.

 

 

two. (In re Lighthall Mfg. Co., 47 Hun, 258.) An election under the
appointment and authority of one inspector is void. (Id. See, also, Mat-
ter Chenango Co. Mut. Ins. Co., 19 Wend., 635.)

An election of directors will not be set aside on the ground that the
inspectors were not sworn in the form prescribed by the statute; and it
seems that if no objection was interposed at the time of the election,
it will stand, although no oath whatever was administered to the
inspectors. (In re Mohawk & H. R. R. Co., 19 Wend., 135; Merritt v.
Village of Portchester, 71 N. Y., 309.)

Inspectors ofa corporate election may be candidates at, such election.
(Ex parte Willcocks, 7 Cow., 402.)

The requirement that the oath of inspectors of election is to be filed in
the office of the county clerk is directory only, and failure to comply does
not invalidate the election. (Union Nat’l Bk. v. Scott, 53 App. Div., 65.)

8 29. Books to be kept.— Every stock corporation shall
keep at its office, correct books of account of all its business and
transactions, and a book to be known as the stock-book, contain-
ing the names, alphabetically arranged, of all persons who are
stockholders of the corporation, showing théir places of residence,
the number of shares of stock held by them respectively, the time
when they respectively became the owners thereof, and the amount
paid thereon. The stock-book of every such corporation shall be
open daily, during at least three business hours for the inspection
of its stockholders and judgment creditors, who may make extracts
therefrom. No transfer of stock shall be valid as against the cor-
poration, its stockholders and creditors for any purpose except to
render the transferee liable for the debts of the corporation to
the extent provided for in this chapter, until it shall have been
entered in such book as required by this section, by an entry show-

Ang from and to whom transferred. The stock book of every such

corporation and the books of account of every bank shall be pre-
sumptive evidence of the facts therein so stated in favor of the
plaintiff, in any action or proceeding against such corporation or
any of its officers, directors or stockholders. Every corporation
that shall neglect or refuse to keep or cause to be kept such books,
or to keep any book open for inspection as herein required, shall
‘forfeit to the people the sum of fifty. dollars for every day it shall
so neglect or refuse. If any officer or agent of any such corpora-
tion shall wilfully neglect or refuse to make any proper entry in
such book or books, or shall neglect or refuse to exhibit the same,
or to allow them to be inspected and extracts taken therefrom ag
‘provided in this section, the corporation and such officer or agent
shall each forfeit and pay to the party injured a penalty of fifty
124 Booxs to Bre Kept.
The Stock Corporation Law, § 29.

 

 

dollars for every such neglect or refusal, and all damages resulting
“ to him therefrom.

(Former section 29, L. 3890, ch. 564, as amended by L. 1892, ch. 688;
L. 1900, ch. 128, and L. 1901, ch. 354.)

For form of stock book, see post, form No. 41.

‘By the amendment of 1901 the stock book is required to be open for
inspection during only three hours each day, leaving the rest of the day
free for the use of the books in the proper work of the corporation.

Chapter 354, Laws 1901, amending this section, which took effect April
16, provides that existing rights shall not be affected if action be begun
within six months. For full text of this,saving clause, see note to § 2.

The production, upon a trial, of a book or paper, belonging to or under
the control of a corporation, may be compelled, in like manner as if it
was in the hands, or under the control, of a natural person. For that
purpose a swhpoena duces tecum, or an order, made as prescribed in the
last section, as the case requires, must be directed to the president, or
other head of the corporation, or to the officer thereof, in whose custody
the book or paper is. (Code of Civ. Pro., § 868.)

In a case specified in the last section, or where a subpoena duces tecum,
or an order, made as prescribed in section eight hundred and sixty-six or
section eight hundred and sixty-seven of this act, requires a public ‘officer
to attend, and bring a book or paper under his control, the subpoena
or order is deemed to be sufficiently obeyed, if the book or paper is pro-
‘duced by a subordinate officer or employe of the corporation, or in the
public office, who possesses the requisite knowledge to identify it, and to
testify respecting the purposes for which it is used. If the personal
attendance of a particular officer of the corporation or public officer is
required, a subpoena, without a duces tecum clause, must also be served
upon him. (Code of Civ. Pro., § 869.)

For misdemeanors in relation to corporate books, see Penal Code, § 611,
post.

Stock book is evidence of stockholders’ right to vote at corporate meet-
ings. See Gen. Corp. Law, § 20, and cases cited. :

Although the stock book of a domestic corporation is to be kept open
during only three hours each day, a different provision applies to foreign
corporations, as the stock book of such corporations must be kept open
daily during business hours. (Stock Corp. Law, § 53.)

This section does not make the stock book the only competent evidence
of facts therein stated or preclude the’ plaintiff, in an action brought
against a director of a corporation which neglected to keep a stock book,
from showing, by common-law evidence, that he was a stockholder and
was thus qualified to act as a director. (Union Nat’l Bk. v. Scott, 53 App.
Div., 65.)

The refusal or neglect to ‘exhibit a stock book cannot be predicated
upon a statement made by an employe of the corporation in charge of its
office to a stockholder who applies at that office for such inspection that
he could examine the book at the office of the president, which was only
a short distance from its office. (Lozier v. Saratoga Gas, Electric Light &
Power Co., 59 App. Div., 390.) ; .
Booxs to Be Kerr. 125.

 

« The Stock Corporation Law, § 29.

 

The right of a stockholder to examine the books is not absolute, and
where he has been defeated in a prior action upon his contention that.
contributors to an impairment of the capital had subsequently withdrawn
their contributions, the court will not grant him a mandamus to examine
and copy the by-laws and entire corporate books, as to allow such inquisi-.
torial research by a hostile and defeated party will not be a proper exer-
cise of judicial discretion. (People ex rel. Mackey v. Am. Union Life
Ins. Co., 31 Misce., 617.)

The common law right of a stockholder to inspect the books of his.
corporation still exists in this State, unimpaired by legislation;-and the-
Supreme Court has power to enforce the right, upon good cause shown.
(Matter of Steinway, 159 N. Y., 250, aff’g 31 App. Div., 70.)

{The president of a corporation is entitled, as a matter of right, to.
inspect the stock book of the company, and to make extracts therefrom,
and his motives in so doing are immaterial. (Gunst v. Goldstein, 37°
App. Div., 550.) ;

A book containing the names of the owners of shares, and the number:
of shares held by each, and the amount paid thereon, answers the require-
ments of the statute and is a stock book, although called by a different.
name. (Buker v. Steele, 43 N. Y. Supp., 346.) i

A demand for all the books of the corporation for inspection is not a.
sufficient demand to be allowed to inspect the stock book so as to render
the officers liable for a refusal. (Buker v. Steele, 43 N. Y. Supp., 346.)

The only demand upon which can be predicated an action for a penalty
is one made at a reasonable time, during business hours, at the office of
the corporation where the stock book is kept. (Buker v. Steele, 43 N. Y.
Supp., 346.)

This section, imposing a penalty for refusal to exhibit the stock book,
is highly penal; therefore, a complaint in an action to recover the ben-
alty must state all the material facts. (Gunst v. Goldstein, 30 Mise., 44,.
and cases cited.)

The Supreme Court has power by mandamus to compel a corporation
to permit a stockholder to inspect the books, and papers of the corpora-—
tion other than the transfer books. (Matter of Steinway, 159 N. Y., 250,
aff’g 31 App. Div., 70.)

The statutory authority in relation to the transfer book of a corpora--

' tion is not exclusive of other methods of obtaining information relating
to the business and affairs of the corporation. (Matter of Steinway, 159:
N. ¥., 250, aff’g 31 App. Div., 70.)

A building and loan. asseciation is a stock corporation and the fore-
going section applies to it. (Buker v. Steele, 43 N. Y. Supp., 346.)

In an action under this section for a refusal to allow an inspection of
a stock book, the plaintiff cannot recover the costs and counsel fees of
mandamus proceedings by which he compelled the corporation and its
officers to allow an inspection. (Clason v. Nassau Ferry Co., 20 Misc.,
315.) .

A stockholder is not bound to accept the offers of the vice-president
to allow him to inspect the stock book at some place other than the office:
of the company, and cannot be required to go elsewhere for that pur-

, pose. (Recknagel v. Empire Self-Lighting Oil Lamp Co., 24 Misc., 193.)

\
126 Booxs to Be Kept.

The Stock Corporation Law, § 29.

 

 

An owner and transferee of stock in a foreign corporation may main
tain an action to compel the corporation to recognize the transfer, record
it on their books and issue new stock in place of the old; and may, in
the same action, obtain the additional relief of enjoining the corporation
from a proposed illegal issue of preferred stock. (Ernst v. Dimira
Municipal Improvement Co., 24 Mise., 583.)

A pledgee of stock of a domestic corporation, still standing on its
books in the name of a deceased pledgor, is not a stockholder either
under the foregoing section of the Stock Corporation Law, or under the
General Corporation Law, section 20, and hence cannot be accorded the
common-law right which a stockholder has of inspecting the corporate
books. (Matter of First Nat. Bk. of Brooklyn, 28 Misc., 662.)

To permit every stockholder to examine the entire corporate books and
records by accountants selected by him, when and as often as he pleases,
would be to establish a rule highly prejudicial to the interests of all cor-
porations and their stockholders. (People ex rel. Hatch v. L. 8S. & M. S.
R. R. Co., 11 Hun, 1; aff’d, 70 N. Y., 220.)

Where certain disputable stock has stood on the corporate books for
more than a year, without protest, in the name of a director, the court
will restrain other directors, who seek to gain control of the corporation,
from declaring void, not only the disputable, but also the valid, stock
of the director until such time as he has explained what has become of
certain certificates which are missing from the stock book, which has
been in his custody. (Hall v. Lay, 27 Misc., 602.)

Stockholders who, because of their failure to pay dues, have forfeited
their shares in accordance with the constitution, and after due notice,
cannot maintain an action for reinstatement on the ground that they
were not allowed to examine the corporate books, and consequently could
not judge whether it was wise to keep up the payments, especially where
the request to examine the books was made after they were in default
in the payment of dues. (Buker v. Leighton Lea Assn., 18 App. Div., 548.)

It is not necessary that an original subscriber must have his holding
entered in the stock book before he can act as a stockholder. (Hantfilton
Trust Co. v. Clemes, 17 App. Div., 152; aff’d, 163 N. Y., 423.)

A peremptory writ of mandamus will not be issued to compel a corpo-
ration to exhibit to a stockholder its books of account and records to
enable the stockholder to discover whether the corporation, which has
reduced the price of its product, is selling the same at a loss, and
whether it is paying its fixed charges out of capital, with a view, if such
be found to be the case, of preventing such action on the part of the
company by an application for the appointment of a receiver, where it
appears that such reduction in price of products was made to meet a
reduction made by a rival company, and that the stockholder’s contem-
plated action would be injurious rather than beneficial to the corpora-
tion and the other stockholders. (In re Pierson, a stockholder of New
Amsterdam Gas Co., 44 App. Div., 215.)

Where the stock book and seal are withheld or concealed in order to
prevent a transfer of stock in time to permit the new’stock to be voted
on at the annual meeting, it is lawful fon the directors to adopt a new
Booxs to Bre Kept. 127
The Stock Corporation Law, § 29.

 

 

seal and stock book to accomplish that purpose. (Socorro Mountain
Mining Co. v. Preston, 17 Misc., 220.)

By virtue of the provisions of the foregoing section, a stockholder of a
orporation has the right to inspect the stock book with his attorney, or
other person having the requisite knowledge to obtain for him the infor-
mination to Which he was entitled. (People ex rel. Clason v. Nassau Ferry
‘Co., 86 Hun, 128.)

The board of directors may adopt a new stock book if for any reason
‘the existing transfer book is not available for use by them for the mak-
ing of transfers of stock. (Argus Co. v. Manning, 138 N. Y., 557.)

This section does not affect the validity of a stock transfer actually
made as between vendor and vendee, although a transfer has not been
entered upon the corporation, books. (Johnson v. Underhill, 52 N. Y., 203.)

As to evidence to support a recovery of a penalty, see Kelsey v.
Pfandler P. F. Go., 20 St. Rep., 533. Sufficiency of a complaint. (Levy
-y. Cohn, 45 St. Rep., 278.) Affidavits in a mandamus proceeding. (Martin
-v. Wm. J. Johnston Co., Ltd., 133 N. Y., 692, aff’g 62 Hun, 557.)

In ¢ontempt proceedings upon failure to- produce books required to be
‘kept, presumption is that such books have been kept. (Fenlon v. Demp-
sey, 50 Hun, 131.) :

The provision that no transfer of stock shall be valid for any purpose
except to render the transferee liable for debts until it shall have been
entered in the stock book, is only for protection of the corporation, and
does not prevent passing of the entire legal and equitable title, as between
the parties, by the delivery of the certificate with agreement and power
-of tyansfer. (Chem. Nat. Bk. v. Colwell, 132 N. Y., 250. ' See, also, Isham
vy. Buckingham, 49 N. Y., 216; Robinson v. Nat. Bk., etc., 95 N. Y., 637;
Billings v. Robinson, 94 N. Y., 415; Rudd v. Robinson, 126 N. Y., 113.)

The book containing the names of the stockholders which every corpo-
‘ration is obliged to keep, is presumptive evidence of the facts therein
‘stated. This section, however, does not make such book the only or even
‘the best evidence of the fact that a person was a stockholder. (Herries
v. Wesley, 13 Hun, 492.)

The custodian of the books, who submits them for the inspection of a
“stockholder or creditor but refuses to permit extracts therefrom, subjects
himself to the penalty prescribed. (Cortheal v. Bronner, 5 N. Y., 562.)
Such custodian is not constituted a judge of the motives of the inspec-
tion, or of the manner thereof, or of the purpose which the information
is to serve. (Id.) Stockholders have a right to know who are qualified
voters and the number of votes each is entitled to cast. (Id.; People ex
rel. Richmond v. Pacific M. 8. Co., 50 Barb., 217.)

As to denial of averments of ownership of shares contained in affi-
-davits upon an application for a mandamus to compel an inspection, see
Matter of Martin, 41 St. Rep., 409. See, also, People v. Cromwell, 102
N. Y., 477; People v. Board, etc., 46 Hun, 296; Kelsey v. Pfandler, 20 St.
Rep., 533.:. ‘

When the by-laws require the books to be kept by the secretary it is
no defense to an application where the treasurer’s refusal to permit
128 ANNUAL Report.

 

The Stock Corporation Law, § 30.

 

inspection is unqualified, and not put on the ground of inability. (Matter
of Martin, supra.)

If deprived of possession of the stock book the directors may open a
new one, making it so far as possible a. copy of the old book, and, in such
case, the inspectors of election may refer to the new book to ascertain
who are voters, but if the old book is produced, the record therein must
govern as to transfers therein before the new book was opened. (Scho-
harie Valley R. R. Co., 12 Abb., N. S., 394. :

A transfer of stock, valid as between the parties, but not entered on.
the stock book, does not relieve the transferrer of liability as a stock-.
holder to the creditors of the corporation. (Shellington v. Howland, 53
N. Y., 371.)

A transfer of stock in good faith, when the corporation is solvent, and
entered upon the corporate books relieves the transferrer of liability.
(Tucker v. Gillman, 121 N. Y., 189; Cutting v. Damerel, 88 N. Y., 410.)

Delivery of the certificate, as between owner and assignee, with the
assignment and power indorsed, passes the entire title in the stock, sub-
ject only to such liens or claims as the corporation may have upon it.
(Cushman v. Thayer Mfg. J. Co., 76 N. Y., 365; McNeil v. Tenth Nat.
Bk., 46 N. Y., 331.)

To relieve a stockholder the transfer of stock on the corporate books:
must be under a bona fide sale, without any secret understanding or trust.
in favor of the vendor. (Veiller v. Brown, 18 Hun, 571.)

The corporation is liable for unauthorized refusal] to transfer shares.
on its books. (Dunn v. Star Fire Ins. Co., 19 W. Dig., 531.)

Upon a refusal to permit an inspection of books by a person entitled
thereto, a mandamus is a matter of absolute right. (People ex rel.
McDonald v. U. S. M. R. Co., 20 Abb. N. C., 192.) A demand by his.
attorney-at-law is insufficient. (Id.)

§ 30. Annual report to secretary of state.— Every domestic stock cor-
poration and every foreiga stock corporation doing business within
this state, except moneyed and railroad corporations, shall annually
during the month of January, or, if doing business without the United.
States, before the first day of May, may make a report as of the first.
day of January, which will state:

1. The amount of its capital stock and the proportion actually issued.

2.. The amount of its debts or an amount which they do not exceed,

3. The amount of its assets or an amount which its assets at least.
equal.

4. The names and addresses of all the directors and officers of the
company, and in the case of a foreign corporation, the name also of the
person designated in the manner prescribed by the code of civil pro-
cedure, as a person upon whom process against the corporation may _be
served within this state.

Such report shall be made by the president or a vice-president or the-
treasurer or a secretary of the corporation and shall be filed in the
office of the secretary of state. If such report be not so made and filed,
any such officer who shall thereafter neglect or refuse to make and to:
file such report, within ten days after written request so to do shall.

,
ANNUAL REPORT. 129

 

The Stock Corporation Law, § 30.

 

have been made by a creditor or by a stockholder of the corporation,
shall-forfeit to the people the sum of fifty dollars for every day he shall
so neglect or refuse. i

(Former section 30, L. 1890, ch. 564, as ‘amended by L. 1892, ch. 2, and
ch. 688; L. 1897, ch. 384, and L. 1901, ch. 354; L. 1905, ch. 415.)

For form of report, see post, form No. 42.

Subdivision 4 of this section was added in 1905.

In addition to the foregoing requirements the report should state the
amount of stock, if any, issued for property, as required by section 42
of this law.

The provisions of this section have been greatly modified by the amend-
ments of 1901. The report is not required to be sworn to, nor to be filed
with the county clerk, and the duty of making and filing it in the office
of the Secretary of State has been transferred from directors to the
‘executive officers of the corporation. The unreasonable penalties imposed
upon directors for failure or neglect on their part to file the perfunctory
annual report have been ‘stricken from the statute. The old law has
been the cause of much anxiety to innocent and well-meaning‘ directors,
and the necessity for this change had become imperative. A failure or
neglect on the part of the officers of a company to perform this duty of
filing a report no longer renders every director individually liable for the
debts of the corporation, but in lieu thereof imposes the liability to a
fine of $50 a day upon the officer who thus fails to file a report, but only
after he has been requested in writing by a stockholder or a creditor to
file it. This is modeled upon the,requirement of the New J ersey statute.

Rights which arose under the above section, prior to April 16, 1901,
upon which date the amendment took effect, were preserved, provided
action be begun within six months, by section 5, chapter 354,’ Laws of
1901, which reads as follows: “This act shall take effect immediately,
but shall not affect any action or proceeding pending in any court at the
time it takes effect or any right of any creditor of any corporation or of
any stockholder against any director under existing law, providing action
thereon be commenced within six months after this act takes effect,
except as in this act otherwise provided.” /

This section applies to both foreign and domestic corporations. For
other provisions affecting foreign corporations, see Index under “ Foreign
Corporations.”

The term “ directors” as used in this section includes trustees or other
persons by whatever name known, duly appointed to manage the affairs
of the corporation. (General Corporation Law, section 3.)

The decisions construing section 30 as it read prior to the modifications
made by chapter 354, Laws of 1901, are not applicable to said section as
above amended. For the decisions construing the former provisions of
said section, see the cases cited in the fourth edition of ‘White on Cor-
porations,” pages 116-121, and, also, the following: Morgan v. Hedstrom,
164 N. Y., 224, aff’g 25 App. Div., 547; Manhattan Co. v. Kaldenberg,
165 N. ¥., 1, revsg. 27, App. Div., 31; Matty v. Sampson, 64 App. Div.,
1; Sinclair v. Fuller, 158 N. Y., 60%, aff’g 9 App. Div., 297; Witherow
v. Slayback, 158 N. Y., 649, revsg. 11 Mise., 526; Chapman v. Lynch,
156 N. Y., 551; Lilienthgl v. Betz, 61 App. Div., 601; Ginsburg v. Von
Seggern, 59 App. Div., 595; Wood & Sellick Co. v. Vandeveer, 55 App.

9
f

130 Liasitity oF Orricrers For Fause Report.

 

The Stock Corporation Law, § 31.

 

Div., 549; Union Natl. Bk. v. Scott, 53 App. Div., 65; Leonard v. Faber,
52 App. Div., 495; Union Natl. Bk. v. Keim, 52 App. Div., 135; St. George
Vineyard Co. v. Fritz, 48 App. Div., 233; Uptegrove v. Schwarzwaelder,
46 App. Div. 20; aff’d, 167 N. Y. 587; Tysen v. Fritz, 44 App. Div., 562;
Bank of Metropolis v. Faber, 38 App. Div., 159; Lee v. Jacobs, 38 App. °
Div., 531;'Am. Grocery Co. v. Pratt, 36 App. Div., 152; Gerdau v. Faber,
26 App. Div., 606; Milson Rendering & Fertilizing Co. v. Baker, 16 App.
Div., 581; Seebeck v. King, 34 Misc., 483; Lilienthal v. Yuengling, 33 Misc.,
619; Wood & Sellick Co. v. #nglish, 31 Misc., 557.)

§ 31. Liability of officers for false certificates, reports
or public notices.— If any certificate or report made or public
notice given by the officers or directors of a stock corporation shall
be false in any material representation, the officers and directors
signing the same shall jointly and severally be personally liable
to any person who has become a creditor or stockholder of the cor-
poration ‘upon the faith of any such certificate, report, notice or
any material representation therein to the amount of the debt con-
tracted upon the faith thereof if not paid when due, or of the
damage sustained by any purchaser of or subscriber to its stock
upon the faith thereof. The liability imposed by this section shall
exist in all cases where the contents of any-such certificate, report
or notice or of any material representation therein shall have been
communicated either directly or indirectly to the person so becom-
ing a creditor or stockholder and he became such creditor or stock-
holder upon the faith thereof. No action can be maintained for a
cause of action created by this section unless brought within two
years from the time the certificate, report or public notice shall
have been made or given by the officers or directors of such cor-
poration.

(Former section 31, L. 1890, ch. 564, as amended by L. 1892, ch. 688.)

The term “ directors,” as used in this section, includes trustees or other
persons by whatever name known, duly appointed to manage the affairs
of the corporation. (General Corporation Law, section 3.)

This section being penal must be strictly construed. (Torbett v. God-
win, 62 Hun, 407; Veeder v. Baker, 83 N. Y., 156.)

Untruthful representations which would have no effect upon the judg-
ment or conduct of persons dealing with the corporation could not be held
to be material. (Walton v. Godwin, 33 St. Rep., 889; id., 58 Hun, 87.)

Officers signing a false report are liable only for debts contracted after
the report was filed. (Bagley & Sewall Co. v. Lennig, 61 App. Div., 26;
Torbett v. Godwin, 42 St. Rep., 323, 62 Hun, 407.)

It is not necessary to show that the officers knew the certificate or
report to be false. (Huntington v. Attrill, 118 N. Y., 365; Torbett v. Eaton,
113 N. Y., 623, 49 Hun, 209. But see, also, Bonnell v. Griswold, 89 N. Y.,
122; Same v. Same, 80 N. Y., 128; Lake Sup. I. Co. v. Drexel, 90 N. Y., 87;
Pier v. Hanmore, 86 N. Y., 95; Butler v. Staley, 101 N. Y., 71.)
Extension or Business aNp Powers. 131

 

The Stock Corporation Law, § 32.

 

In an action against a director a judgment against the corporation is
neither conclusive nor prima facie evidence of the debt. (Torbett v. God-
‘win, 62 Hun, 407; Brand v. Goodwin, 24 St. Rep., 305.)

The action under this section abates upon the death of either party.
(Brackett v. Griswold, 103°N. Y., 425; Blake v. Same, 104 N. Y., 613;
Whitaker v. Masterton, 104 N. Y., 280.)

The penalty is recoverable by the assignee. (Pier v. George, 86 N. Y.,
413; Torbett v. Godwin, 62 Hun, 407.)

Only those who make the false report are liable. (Bonnell v: Griswold,
68 N. Y., 294; Torbett v. Godwin, 62 Hun, 407.)

* The burden is placed upon the plaintiff of establishing that the cer-
‘tificate filed was in point of fact false. (Ferguson v. Gill, 74 Hun, 566.)
As to the measure of damages. (Parsons v. Johnson 28 App. Div., 1.)

§ 32. Alterations or extension of business.—Any stock
orporation heretofore or hereafter organized under any general or
special law of this state may alter its certificate of incorporation so
as to include therein any purposes, powers or provisions which at
the time of such alteration may apply to corporations engaged in a
busineés of the same general character, or which might be included
in the certificates of incorporation of a corporation organized under
any general law of this state for a business of the same general
character, by filing in the manner provided for the original certifi-
cate of incorporation an amended certificate, executed by the presi-
‘dent and secretary, stating the alteration proposed, and that the
same has been duly authorized by a vote of a majority of the direct-
ors and also by vote of stockholders representing at least three-
fifths of the capital stock, at a meeting of the stockholders called
for the purpose in the manner provided in section forty-five of this
chapter, and a copy of the proceedings of such meeting, verified by.
the affidavit of one of the directors. preaety thereat, shall be filed
with such amended certificate.

(New, added by L. 1892, ch. 688; amended os L. 1901, ch. 354; L. 1905,
ch. 751.)

For form of certificate, see post, form No. 44.

Until the amendment of 1905 the certificate was required to be
executed by a majority of the directors. The proper officers to execute
it now are the president and secretary, and in addition to the sanction
of the stockholders the alteration must be authorized by a vote of
directors.

Prior to 1901, this section authorized a corporation only to * extend
or alter its business and powers,” although the general laws provide
for inserting-in the certificate of incorporation various matters in addi-
tion to the specification of the business and powers of the corporation,
and there are various provisions of law authorizing the filing of
amended or supplemental certificates specifying other matters than
those provided for by this section. As amended in 1901 the
section provides that a corporation, by filing an amended or supple-
mental certificate, may alter its certificate of incorporation so as to
include therein any purposes, powers or provisions which at, the time
of such alteration may apply to corporations engaged in business of
‘the same general character or which might be included in the certifi-

x
132 Satz or FRANCHISE AND PROPERTY.

 

The Stock Corporation Law, § 33.

 

cate of incorporation of a corporation organized under any general law
for a business of the same general character.

Under the above section any domestic stock corporation may alter its
certificate of incorporation to include any purposes, powers or provisions
which might properly be included in the certificate for the formation of
a corporation of the same general character under any general law. (Peo-
ple ex rel. Municipal Gas Co. v. Rice, 138 N. Y., 151.) One of the addi-
tional powers which may be acquired under this section is the power to
exchange its stock for that of another corporation, although this is in
effect the merging of the business and franchises of the two corporations.
(Id.) ‘e

§ 33. Sale of franchise and property.— A stock corpora-
tion, except a railroad corporation and except as otherwise pro-
vided by law, with the consent of two-thirds of its stock, may sell
and convey its property, rights, privileges and franchises, or any
interest therein or any part thereof to a domestic corporation,,
engaged in a business of the same general character, or which
might be included in the certificate of incorporation of a. corpora-
tion organizing under any general law of this state for a business
of the same general character, and a domestic corporation the
principal business of which is carried on in, and the principal
tangible property of which is located within a state adjoining the
state of New York, may with the consent of the holders of ninety--
five per centum of its capital stock, sell and convey its property |
situate without the state of New York, not including its fran-~
chises to a corporation organized under the laws of such adjoining-
state, and such sale and conveyance shall, in case of a sale to a
domestic corporation, vest the rights, property and franchises
thereby transferred, and in case of a sale to a foreign corporation
the property sold in the corporation to which they are conveyed
for the term of its corporate existence, subject to the provisions.
and restrictions applicable to the corporation conveying them.
Before such sale or conveyance shall be made such consent shall
be obtained -at a meeting of the stockholders called upon like no-
tice as that required for an annual meeting. If any stockholder
not voting in favor of such proposed sale or conveyance shall at.
such meeting, or within twenty days thereafter object to such sale,
and demand payment for his stock, he may, within sixty days.

-after such meeting, apply to the supreme court at any special term
thereof held in the district in which the principal place of business.
of such corporation is situated, upon eight days’ notice to the cor-
poration, for the appointment of three persons to appraise the:
Lrasitiry or Dreectors, Limrrations. 133

 

The Stock Corporation Law, § 34.

 

value of such stock, and the court shall appoint three such ap-
praisers, and designate the time and place of their proceedings as
shall be deemed proper, and also direct the manner in which pay-
ment for such stock shall be made to such stockholders. The
court may fill any vacancy in the board of appraisers occurring by
refusal or neglect to serve or otherwise. The appraisers shall
meet at the time and place designated, and they or any two of them,
after being duly sworn honestly and faithfully to discharge their
duties, shall estimate and certify the value of such stock at the
time of such dissent, and deliver one copy to such corporation, and
another to such stockholder, if demanded; the charges and ex-
penses of the appraisers shall be paid by the corporation. When
the corporation shall have paid the amount of such appraisal, as
directed by the court, such stockholders shall cease to have any
interest in such stock and in the corporate property of such cor-
poration and such stock may be held or disposed of by such corpo-
ration.

(New section, added by L. 1893, ch. 638, and amended by L. 1901, ch. 130.)

The amendment of 1901 added the provision permitting a domestic cor-
poration owning property in an adjoining State to sell such property to
a corporation organized in such adjoining ‘State. This new feature was
undoubtedly inserted to meet a special case.

A transfer by a corporation of its entire property, even with unanimous
consent of its stockholders, to another corporation, in consideration for
which the capital stock of the purchasing corporation is issued to the
stockholders of the vendor corporation, is invalid as against creditors of
the latter corporation, since the creditor has the right to rely upon its
assets for payment, and has an equitable lien thereon, both as against
‘stockholders and all transferees, except those purchasing in good faith and
for value. (Hurd v. N. ¥. & Com’l Laundry Co., 167 N. Y., 89, revsg. 52
App. Div. 467; Cole v. Millerton Iron Co., 133 N. Y., 164.)

Where the rights of bona fide purchasers have not attached, a domestic
corporation, which has taken over all the assets and liabilities of a prac-
tically extinct foreign corporation which was controlled by substantially
tthe same officers and stockholders and which also had its principal office
in New York, will be held liable upon an outstanding merchandise debt
contracted by the foreign corporation. (Clokey v. Internat’! Rubber Cloth-
ing Co., 28 Misc., 326.)

§ 34. Liabilities of directors, limitations.— No director
or officer of any stock corporation shall be liable to any creditor
of the corporation, because of the creation of any excessive in-
debtedness, or because of any failure to make or to file an annual
report, whether heretofore or hereafter occurring; |

(1) In case of any debt, as to which personal liability of di-
134 Luasitity or Dregctors, Limitations.

 

The Stock Corporation Law, § 34.

 

rectors or officers may be or shall have been waived by such cred-
itor, or by anyone under whom he claims; or by any provision of
any instrument creating or securing such debt; or

(2) Unless within three years after the occurrence of the act
or the default in respect of which it shall be sought to charge the
director or officer, such creditor shall have served upon such di-
rector or officer written notice of his intention to hold him per-
sonally liable for his claim; provided, nevertheless, that any such
liability, because of any such default now existing and not waived
as above provided, may be enforced by action begun at any time
within the year eighteen hundred and ninety-nine or by action
begun thereafter, if within such year written notice of intention
to enforce such liability shall have been given as above provided.

Any director or officer, who, because of ‘any such existing or
future liability, shall pay any debt of the corporation, shall be
subrogated to all rights of the creditor in respect thereof against
the corporate property, but not against the stockholders of the
corporation; and also shall be entitled to contribution from all
other directors and officers of the corporation similarly liable for
the same debt, and the personal representatives of any such di-
rector or officer who shall have died before making such con-
tribution.

(New section, added by L. 1899, ch. 354.)

Under section 30 of the Stock Corporation Law as amended in 1901,
directors are relieved hereafter from the duty of filing reports and their
personal liability in connection therewith has been abolished, and in addi-
tion as section 24 of this law has been repealed by Laws of 1901, chapter
354, there can be no such thing as excessive indebtedness nor liability of
directors for the creation thereof; therefore, the foregoing section is no
longer applicable, except as to matters arising prior to April 16, 1901,
when chapter 354 took effect, but existing proceedings and rights were
preserved, if action be begun thereon within six months, by section 5 of
said act, which reads as follows:

“This act shall take effect immediately, but shall not affect any action
or proceeding pending in any court at the time it takes effect or any right
of any creditor of any corporation or of any stockholder against any
director under existing law, providing action thereon be commenced within
six months after this act takes effect, except as in this act otherwise
provided.”

For cases construing the foregoing section, see Shepard v. Fulton, 55
App. Div., 329; St. George Vineyard Co. v. Fritz, 48 App. Div., 233; Staten
Island Midland R. R. Co. v. Hinchcliffe, 34 Misc., 624.

For explanation of interval in numbering between section 34, supra, andi
section 40, infra, see the note immediately preceding article 2 of this law.
Issuzn anp Transrers or Srocx. 135

 

The Stock Corporation Law, § 40.

 

ARTICLE III.

Stock; StockHoLpers, THEIR Ricuts anp LraBriitres.

Szction 40. Issue and transfers of stock.

41. Subscriptions to stock.

42, Consideration for issue of stock and bonds.

43. Time of payment of subscriptions to stock.

44. Increase or reduction of capital stock.

45. Notice of meeting to increase or reduce capital stock.

46. Conduct of such meeting; certificate of increase or
reduction. : ;

47. Preferred and common stock.

48. Prohibited transfers'to officers or stockholders.

49, (Repealed by Laws of 1901, Chapter 354.)

50. Application to-court to order issue of new in place of lost
certificate of stock.

51. Order of court*upon such application.

52. Financial statement to stockholders.

58. Stock books of foreign corporations.

54, Liabilities of stockholders.

55. Limitation of stockholder’s liability.

56. Increase or reduction of number of shares.

57. Voluntary dissolution.

58. Merger.

59. Change of place of business.

60. Liabilities of officers, directors and stockholders of foreign
corporations.

61. Dissolution by incorporators.

62. Partly paid stock.

‘

§ 40. Issue and transfers of stock.—The ‘stock of every
stock corporation shall be represented by certificates prepared by
the directors and signed by the president or vice-president and
secretary or treasurer and sealed with the seal of the zorporation,
and shall be transferable in the manner prescribed in this chapter
and in the by-laws. No share shall be transferable until all pre-
vious calls thereon shall have been fully paid in.

Any stock corporation, domestic or foreign, now existing or
hereafter organized, except monied corporations, may purchase,
acquire, hold and dispose of the sto¢ks, bonds and other evidences
of indebtedness of any corporation, domestic or foreign, and issue
in exchange therefor its stock, bonds or other obligations if author-
ized so to do by a provision in the certificate of incorporation of such
stock corporation, or in any certificate amendatory thereof or supple-
mentary thereto, filed in pursuance of law, or if‘the corporation
whose stock is so purchased, acquired, held’ or disposed of,
engaged in a business similar to that of such stock corporation,
136. Issuzrs AND TRANSFERS OF STOCK.

 

The Stock Corporation Law, § 40.

 

or engaged in the manufacture, use or sale of the property, or in the
construction or operation of works necessary or useful in the business
of such stock corporation, or in which or in connection with which
the manufactured articles, product or property of such stock corpo-
ration are or may be used, or is a corporation with which such stock
corporation is or may be authorized to consolidate. When any such
corporation shall be a stockholder in any other corporation, as herein
provided, its president or other officers shall be eligible to the office
of director of such corporation, the same as if they were individually
stockholders therein and the corporation holding such stock shall
possess and exercise in respect thereof, all the rights, powers and privi-
“leges of individual owners or holders of such stock. Any stock cor-
poration may, in pursuance of a unanimous vote of its stockholders
voting at a special meeting called for that purpose by notice in writ-
ing signed by a majority of the directors of such corporation stating
the time and place and object of the meeting and served upon each
stockholder appearing as such upon the books of the corporation,
personally or by mail at his last-known post-office address at least
sixty days prior to such meeting, guarantee the bonds of any other
domestic corporation engaged in the same general line of business;
and any stock corporation owning the entire capital stock of any
other domestic stock corporation engaged in the same general line of
business may in pursuance of a two-thirds vote of its stockholders
voting at a special meeting called for that purpose by notice in writ-
ing signed by a majority of the directors of such corporation, stating
the time and place and object of the meeting and served upon each
stockholder appearing as such upon the books of the corporation per-
sonally, or by mail, at his last known post office, at least sixty days
prior to such meeting, guarantee the bonds of such other corporation.

(Former section 40, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and
L. 1902, ch. 601.) x

For forms of certificate of stock, see post, forms Nos. 48, 45, 51.
For form of demand for transfer of certificate of ‘stock, see post, form No. 46.

The last clause permitting a corporation owning the entire capital stock
of another corporation to guarantee the bonds of the latter pursuant to a
two-thirds vote of the stockholders was added by the amendment of 1902.

For method of transferring stock, see section 29, ante.

An issue of stock without authority from the corporation is a misde-
meanor. (Penal Code, section 591, post.)

A corporation cannot acquire thle majority of the stock of another cor-
poration, obtain control of its affairs, divert the income of its business,
refuse business which would have enabled it to pay interest on its bonds
and avoid default, and then institute an action in equity to enforce de-
faulted obligations against such corporation, with the avowed purpose of
obtaining entire control of its property to the injury of the minority stock-
holders. (Farmers’ Loan & Trust Co. v. N. Y. & Northern Ry. Co., 150
N. Y., 410. See, also, cases therein cited.)
Issur anp TRANSFERS OF STOCK. 137

 

The Stock Corporation Law, § 40.

 

A corporation cannot maintain an action to procure the cancellation of
certificates of stock alleged to have been illegally issued by its officers,
without showing that it had the right to issue the certificates or that the
certificates alleged to have been illegally issued were executed by an
officer having authority to execute them, or that they resembled certifi-
cates rightfully issued, or that some one had been, or would be, deceived,
damaged or injured by purchasing them. (Reno Oil Co. v. Culver, 60
App. Div., 129, revsg. 33 Misc., 717.) ,

The certificates of stock are only evidence of the ownership of the
shares, and the interest represented by the shares is held by the company
for the benefit of the true owner. ‘As the habitation or domicile of the
company is and must be.in the State that created it, the property repre-
sented by its certificates of stock may be deemed to be held by the com-
pany within the State whose creature it is, whenever it is sought by suit
to determine who is its real owner. (Jellenik v. Huron Copper Mining
Co., 177 U. S., 1.) é

Certificates of stock are simply muniments and evidence of the holder’s
title to a certain number of shares in the property and franchises of the
corporation of which he is a member. (Mechanics’ Bk. v. N. Y. & New
Haven R. R. Co., 3 Kern., 627; Angell & Ames on Corpns., section 560.)

A transfer of stock upon the corporate books, standing alone, is not
‘sufficient to constitute a valid gift of the stock, but in addition the trans-
feree must be given dominion over the stock. The possession of the
certificate is not, however, essential to the validity of the gift. (Richard-
gon v. Emmett, 61 App. -Div:, 205.)

Where a director, owning one-half of the capital stock of a corporation,
surrenders his certificate of stock to the other directors, who own the
pemaining half of the capital stock, in order to obtain new certificates of
smaller denominations, and the other directors issued to him certifica-
cates for only a portion of his stock, he is ent{ftled to maintain an action
against such directors to compel them to transfer to him the stock wrong-
fully withheld, and, under section 603 of the Code of Civil Procedure, to’
an injunction pendente lite, restraining them from issuing such shares to
any other person. (Bedford v. Am. Aluminum & Specialty Co., 51° App.
Div., 537:) :

The distinction between an agreement to form a corporation and tao
subscribe to its stock, which, when acted upon by the corporation, is
binding, and an agreement to subscribe for stock in a: corporation there-
after to be formed, which is not binding, Considered. (Yonkers Gazette
Co. v. Taylor, 30 App. Div., 334.)

An instrument which, after referring to a plan to form a corporation,
states that “the undersigned hereby subscribe for the number of shares
set opposite our names,” is absolute and unconditional, and is binding
when it is acted upon by the corporation then in contemplation of for-
mation, and the fact that the corporation was incorporated under a differ-
ent name, because of the Secretary of State’s decision that the name orig-
inally adopted could not be used, does not relieve the subscriber from his
‘liability. (Yonkers Gazette Co. v. Taylor, 30 App. Div., 334.)

The payment of ten per cent. when the agreement to incorporate is
138 | Issvz anp TransFERs or STOCK.

 

The Stock Corporation Law, § 40.

 

made is not essential to its validity. (Yonkers Gazette Co. v. Taylor, 30
App. Div., 334; United Growers’ Co. v. Hisner, 22 App. Div., 1.)

A subscription for stock is not affected by a secret collateral contract.
(Yonkers Gazette Co. v. Jones, 30 App. Div., 316.)

A subscriber cannot be released from liability to a corporation upon
his subscription to its stock by a promise to that effect, without considera-
tion, by its president, in the absence of any action upon the part of the
corporation itself. (United Growers’ Co. v. Eisner, 22 App. Div., 1.)

A subscriber who was an original incorporator of a company, and, as
a director, took part for some months, in the conduct of its business,
cannot, in an action. against him to recover an alleged unpaid balance
upon two separate subscriptions for shares of stock, one of which was
an original subscription made for the purpose of organization, question
the validity of the organization of the corporation. (United Growers’ Co.
y. Hisner, 22 App. Div., 1.)

Subscriptions to capital stock, induced by the false representations of
an agent authorized to obtain subscriptions, may be set aside by an
action in equity to rescind the subscription induced by such representa-
tions. (Talmadge v. Sanitary Security Co., 31 App. Div., 498.)

A written agreement to subscribe for shares of stock in a proposed
corporation constitutes a valid subscription for such shares, which the
corporation, when organized, may elect to enforce. (Non-Hlectric Fibre
Mfg. Co. v. Peabody, 21 App. Div., 247.)

A subscriber for shares of the original stock of a corporation becomes
a member of the corporation by virtue of his subscription, and the delivery
of a certificate for the stock is not essential to his becoming a stockholder;
it is merely evidence of that relation. (Kohlmetz v. Calkins, 16 App. Div.
518.)

The directors who hold all the stock of the corporation, which has
never done any business and has no creditors, and where none of the
subscriptions to its stock have been paid in in cash, may release one
another from the payment of their subscriptions to the stock. (Non-
Electric Fibre Mfg. Co. v. Peabody, 21 App. Div., 247.)

False representations in inducing subscription to the stock of a gor-
poration considered. (Seeber v. People’s Building-Loan & Savings Assn.,
36 App. Div., 312.)

When a certificate of incorporation provides for the purchase of stock
and bonds of another corporation, as provided for in this section, it will
permit a corporation to purchase the stock and bonds of a rival company
in order to prevent ruinous competition. (Rafferty v. Buffalo City Gas
Co., 37 App. Div., 618.)

In an action by a stockholder against the trustees, attacking the hold-
ing, by the corporation, sf stocks of other companies, and seeking the
distribution thereof, the burden is on the plaintiff to show that such
stocks were illegally held. (Burden v. Burden, 159 N. Y., 287, aff’g 8 App.
Div., 160.)

Where the holder of a certificate for 216 shares of stock, by written
instrument, transfers seventy-five shares thereof, and thereafter, before
the seventy-five shares thus transferred are entered upon the books of
\

Issuz anD TRANSFERS OF STOCK. 139:

 

The Stock Corporation Law, § 40.

 

the corporation in the name of the transferee, transfers all of the 216:
shares to another party, he, by such last-mentioned transfer, wrongfully
exercises ownership over the seventy-five shares, which constitute a con-
version thereof. (Mahany v. Walsh, 16 App. Div., 601.)

In case of a sale of stock, actual delivery thereof is not necessary to
perfect the title to the transferee. (Mahany v. Walsh, 16 App. Div., 601;
Mitchell v. West, 55 N. Y., 107; Cayword v. Van Ness, 145 N. Y., 600, aff’g
74 Hun, 28; Schoonmaker v. Vercealen, 9 Hun, 138; Beardsley v. Beardsley,.
138 U. S., 262.)

The legal title to stock held by an executor is transferable by a written
assignment thereof, signed by him merely with his individual name, and
such assignment carries with it a right of action for a conversion of the
stock. (Mahany v. Walsh, 16 App. Div., 601.) :

It seems that where an agreement is made between stockholders that
if any of them desire to sell théir stock, they shall give the preference
to the other parties of the agreement before selling to any other party,
that if the period of operation of such provision was unlimited it would
be void as against public policy, as imposing a perpetual restraint on the:
power of alienation of the stock. (Brown v. Britton, 41 App. Div., 57.)

The right of a stockholder to vote and to transfer his stock can be
limited, if at all, only. by an express statutory provision, or by a pro-
vision in the certificate of incorporation. A by-law by which a stock-
holder is prevented from voting upon or transferring his stock until all
dues thereon have been paid, is invalid, even as against a person who.
agreed to take his stock subject to the by-laws. ce v. Sullivan
County Club, 26 App. Div., 213.)

The provision empowering a corporation to make by- -laws regulating
the transfer of its stock merely authorizes it to prescribe the officer by
whom the stock shall be transferred and the mode of its transfer. It
does not authorize the imposition upon the stock of a penalty limiting

_ the unconditional right of transferring it. (Kinnan v. Sullivan County

Club, 26 App. Div., 213.) ‘

The relation of shareholder in a corporation is created by the subscrip-
tion agreement, and it is not essential to such relation that a certificate:
of stock be actually issued. (Beals v. Buffalo Expanded Metal Constn.
Co., 49 App. Div., 589.) When such subscriber accepts an office in the
corporation and does other acts which can only be done by a shareholder,
he is estopped from denying the existence of that relation, notwithstand-
ing the fact that no stock book was kept by the corporation, and that he:
never received a certificate of stock. (Id.)

A by-law imposing upon each share of stock dues to the extent of ten
dollars per year, passed after the owner acquired his stock, affords no
authority for an assessment thereof and is, as to the owner, ex post facto.
and unauthorized. (Sullivan County Club v. Butler, 26 Misc., 306.)

Where a corporation issues certificates of stock bearing on their face:
the words, “shares $100 each, full paid and non-assessable beyond $10
ber annum,” the corporation cannot subsequently - assess the shares, and
“the acceptance of the shares, with the clause, “ non-assessable beyond $10-
per annum,” does not amount to an assent upon the part of the owner
140 Issuz anp TRANSFERS OF STOCK.

 

The Stock Corporation Law, § 40.

 

{o an assessment which is not authorized by law. (Sullivan County Club
v. Butler, 26 Misc., 306.)

Questions of fraudulent representations in the sale of corporate stock
considered. (Townsend v. Felthousen, 156 N. Y., 618; Darling v. Klock,
33 App. Div., 270.)

No statute of this State makes it illegal for a foreign corporation to
guarantee the payment of bonds of another corporation. (Dougan v.
Evansville & T. H. R. R. Co., 15 App. Div., 483, 44 N. Y. Supp., 503.)

An agreement by which one corporation offers the stockholders of
‘another corporation to purchase their stock in the latter company at 100
per cent. above par, upon the deposit with a trustee of a majority of the
holdings, and to pay for the stock in cash or by bonds of the, purchasing
corporation, is not illegal, as this section permits of such purchase.
(Phelan v. Edison Elec. Illg. Co., 24 Misc., 109.)

An owner and transferee of stock in 4 foreign corporation may compel
‘the corporation to recognize the transfer, record it on their books and
issue new stock in place of the old. (Ernst v. Elmira Municipal Improve-
ment Co., 24 Misc., 583.)

In the absence of a statutory provision or by-law to the contrary, an
original subscriber to the stock of a corporation can transfer his stock to
another, and, if made in good faith, his liability ‘as a stockholder ceases
and the transferee will be substituted in his place with the same rights
‘and liabilities as the original holder. (Rochester & Kettle Falls Land
Co. v. Raymond, 158 N. Y., 576, aff’g 4 App. Div., 600.) :

When one corporation obtains control of the board of directors of
‘another corporation, and thereafter, without consideration, obtains the
property of the latter corporation, and so arranges its affairs as to render
all the shares of its stock, other than those held by the controlling cor-
poration, valueless, a stockholder of the corporation which has been thus
despoiled may maintain an action to redress the wrong done to his com-
pany. (Pondir v. N. Y., L. E. & W. R. R. Co., 72 Hun, 385.)

The right of a corporation to purchase stock and bonds of another cor-
poration, given under the foregoing section, confers upon the purchaser
no authority to employ the stock and bonds for purposes condemned by
the principles of equity. (Farmers’ Loan & Trust Co. v. N. Y. & Northern
Ry. Co., 150 N. Y., 410, revsg. 78 Hun, 213.)

A corporation may acquire by purchase all the stock of another corpora-
‘tion, and yet the latter may continue a distinct and existing organization,
with its own officers and board of directors. (Einstein v. Rochester Gas
.& Electric Co., 146 N. Y., 46.)

Persons who are merely stockholders and hold no office ina corporation
do not hold positions of trust or confidence toward each other, and one in
accepting an offer to purchase his stock by another is under no obligation
‘to volunteer the information that the company is insolvent. (Rothmiller
y. Stein, 143 N. Y., 581.)

The liability of a corporation to a bona fide holder of certificates of its
stock, fraudulently issued by the wrongful or criminal acts of its officers
or agents, is determined by the general rules of law governing the rela-
tions of principal and agent as developed and applied to corporations, act-
Issuz anp TRaNsFeERs or STock. 141

 

The Stock Corporation Law, § 40.

 

ing solely through such agencies. (Jarvis v. Manhattan Beach Co., 148.
N. Y., 652, aff’g 75 Hun, 100.)

The general rule, that the principal is liable to a third person in a civil
action for the fraud or other malfeasance of his agent, perpetrated by the
latter in the course of his employment, although the principal did not
authorize, justify or know of the misconduct, is applicable to a corporation
in the case of a fraudulent issue of stock certificates by its agent. @ arvis.
v. Manhattan Beach Co., 148 N. Y., 652, aff’g 75 Hun, 100.)

While corporation stock certificates do not possess all the qualities of
commercial paper, they do possess some of them, and innocent parties.
dealing in them will be protected upon analogous principles, and, in a
proper case, will be entitled to compel Tecognition as stockholders, where
power exists to issue new certificates, or to indemnity if there is not.
(Jarvis v. Manhattan Beach Co., 148 N. Y., 652, aff’ 75 Hun, 100.)

Certificates of stock are not negotiable in form; they represent no debt.
and are not securities for money; but the courts of this country, in view
of the extensive dealings in certificates of shares in corporate enterprises,
and the interest both of the public and of. the corporation which issues.
them in making them readily transferable and convertible, have given
to them some of the elements of negotiability. (Knox v. Eden Musee
Co., ‘148 N. Y., 441, revsg. 74 Hun, 483.)

The owner of shares of stock may transfer his title by delivery of the
certificate with a blank power of attorney indorsed thereon, signed by the
owner of the shares named in the certificate, and such a delivery transfers.
the legal title to the shares as between the parties to the transfer, and not
a mere equitable right. (Knox v. Eden Musee Co., 148 N. Y., 441, revsg.
74 Hun, 483.)

The transferee, in good faith and for value, holds his title free from
latent equities between prior parties in the line of transmission. Under
the doctrine of implied agency and the application of the principle of
estoppel to the situation, the true owner is in many cases precluded from
asserting his title. But the title of the true owner of a lost or stolen
certificate may be asserted against any one subsequently obtaining its
possession, although the holder may be a bona fide purchaser. (Knox v.
Eden Musee Co., 148 N. Y., 441, revsg. 74 Hun, 483, distinguishing McNeil
v. Tenth Nat. Bk., 46 N. Y., 325; N. ¥. & N. H. R. R. Co. v. Schuyler, 34
N. ¥., 30, and citing Anderson v. Nicholas, 28 N. Y., 600; Bangor Elec. Lt.
Co. v. Robinson, 52 Fed. Rep., 520; Biddle v. Boyard, 13 Pa. St., 150; Bar-
stow v. Savage M. Co., 64 Cal., 388; Shaw v. R. R. Co., 101 U. §&., 557.)

The by-laws of a corporation are primarily for its own and stockholders’
protection, and neglect by its officers in a single instance to obey a by-law
which directs the cancellagion of certificates of stock surrendered for
transfer, before issuing new certificates, is not such negligence as will
render the corporation liable, at the suit of an innocent third party, for
the value of certificates which should have been canceled, but which were
fraudulently pledged to such party, by the manager employed by the cor-
poration, as security for a loan made to him personally. (Knox v. den.
Musee Co., 148 N. Y., 441, revsg. 74 Hun, 483.)

The act of the manager of a corporation, without any authority to issue

‘ ‘
1492 Issuzr anpD TRANSFERS OF STOCK.

 

The Stock Corporation Law, § 40.

 

-certificates for any purpose, in issuing as valid, as security for a personal
debt, surrendered certificates of stock directed by its president to be can-
celed, and of which the company had never invested the manager with
indicia of ownership, is a willful and criminal act, and upon no princi-
ple of agency, either express or implied, can the corporation be made liable
therefor. (Knox v. Eden Musee Co., 148 N. Y., 441, revsg. 74 Hun, 483.)

The capital stock of a corporation is personal property; it has not, nor
has the certificate or other evidence of title or ownership, any of the quali-
ties of commercial or negotiable paper. (Weaver v. Barden, 49 N. Y.,
286.) While certificates of stock do not possess, in full, the qualities of
commercial paper, yet when the transfer indorsed thereon is signed in
blank by the shareholder named therein, they become, in effect, so far as
the public is concerned, as if they had been issued to bearer. (Fifth Ave.
Bank v. Forty-second St. & Grand St. Ferry R. R. Co., 137 N. Y., 231.)

A corporation will not be bound by representations made by its presi-
‘dent and chief administrative officer as to the genuineness of a certificate
-of stock, when such officer was not engaged in the transaction of the busi-
ness of, or in the discharge of any duty imposed upon him by the corpora-
‘tion. (Manhattan Life Ins. Co. v. Forty-second St. & Grand St. Ferry R.
R. Co., 139 N. Y., 146, distinguishing Fifth Ave. Bank v. Same, 137 N. Y.,
231.) But the rule which imposes a liability upon the principal for‘the
unauthorized acts of his agent applies to a spurious, but apparently genu-
ine, certificate of stock, wrongfully issued by a person who was at the
time secretary, treasurer and transfer agent, and invested with authority
to sign, countersign and seal valid certificates of stock, and who, when he
issued the certificate in question, was acting within the scope of his appa-
‘rent authority. (Hellman v. Same, 74 Hun, 529.) A bona fide holder of
such certificates has a claim to recognition as a stockholder, or to indem-
nity. (Mutual Life Ins. Co. v. Same, 74 Hun, 505.)

When certificates of stock contain restrictions which were originally
unauthorized, the stockholders may, by lapse of time and course of
dealing, acquiesce in and ratify the restriction. (Reynolds v. Bank of
Mt. Vernon, 6 App. Div., 62.)

An agreement between the stockholders of a corporation that no one of
them will sell, assign or dispose of bis stock, without having first given
the other parties an opportunity to purchase, does not preclude a party
from transferring a legal title to his stock without the consent of the
others, and in violation of the agreement, and this although the trans-
feree was cognizant of the agreement, at the time of the transfer. (In re
Argus Co. v. Manning, 138 N. Y., 557.) Enforcement of specific perform-
ance of such an agreement by a court of equity is in the discretion of the
court. (Id.) q

A provision on the face of a certificate of stock that the shares therein
referred to are held “subject to the conditions and stipulations contained
in the articles of association above mentioned,” is sufficient notice to put
a purchaser of the shares upon inquiry to ascertain what the conditions
and stipulations are. (Gibbs v. Long Island Bank, 83 Hun, 92.)

A stockholder has a right to transfer his certificate of stock, which is
liable to assessment, and if the certificate so surrendered is delivered to

a
Issvz anp TRANSFERS OF STOCK. 143

 

The Stock Corporation Law, § 40.

 

the corporation and canceled by it, and a new certificate issued to the
transferee, the corporation thereby surrenders all claim upon the original
stockholder, and accepts the transferee in his’ place. (Rochester & Kettle
Falls Land Co. v. Raymond, 158 N. Y., 576, aff’g 4 App. Div., 600. See,
also, cases therein cited.) 2

When the officers of a corporation, authorized to issue stock certificates,
fraudulently issue certificates for shares in excess of the number the cor-
poration is authorized to issue, the corporation is liable to an innocent
holder in damages for such overissue to the extent of the value of the
shares. (Archer v. Dunham, 89 Hun, 387.)

Where a valid sale of stock, pledged for a debt, has been,made upon
default in payment, and the pledgee has purchased the same, neither
the pledgor nor his personal representatives, in case of his death, are
necessary parties to an action to compel the corporation to transfer the
stock. (Buffalo German Ins. Co. v. Third Nat. Bk., 19 Misc., 564.)

A pledgee or purchaser of certificates of stock, which state on their
face that the corporation shall have a lien on them for any indebtedness
to it of the owner of the stock, takes with notice of such provision,
although he does not read them at the time of purchase or pledge. (Buf-
falo German Ins. Co. y. Third Nat. Bk., 19 Misc., 564.)

A court of equity has not the power to restrain a corporation which
has legally purchased stock of another corporation from voting on such
stock, upon the allegation or proof that such corporation intends to cause
a board of directors to be elected who may injure or prejudice the inter-
ests of the minority stockholders of the corporation whose stock has been
0 purchased. (Oelbermann v. N. Y. & Northern Ry. Co., 77 Hun, 332.)

It has been repeatedly decided by the courts of this State, and by many
others, that, unless expressly authorized by law, it is ultra vires and
contrary to public policy for any corporation to purchase the stock of
another corporation. The Legislature of this State, however,‘ has seen
fit to make a radical change in the law, and, so long as the present statute
remains in force, the courts must enforce it. (Oelbermann v. N. Y. &
Northern Ry. Co., 77 Hun, 332.)

When certificates of stock are transferable without restriction, the cor-
poration cannot discriminate and refuse to transfer certificates to a person
who is hostile to it. (Rice v. Rockefeller, 134 N. Y¥., 174.)

The finding-of a jury, upon conflicting evidence as to whether or not
certain representations as to the validity of certain stock certificates were
made by the corporation, is-conclusive. (Jarvis v. Manhattan Beach Co.,

“95 Hun, 100.) A bona fide holder of a certificate of stock which shows
apparently all the requisites of genuineness is entitled to recognition as a
stockholder if a new certificate can be issued to him, or to indemnity. (Id.)

No presumption that a party is still a stockholder in a corporation arises
by the production from the papers of the corporation of a canceled stock
certificate, showing that the shares represented thereby had been issued to
him, that he had signed a blank transfer on the back of the certificate, and
that the certificate had come into the hands of the company and had been
canceled, without any proof that such transfer was obtained from him
-without consideration or by false representations. (Thompson v. Stanley,
144 Issuz anp TRANSFERS OF STOCK.

 

The Stock Corporation Law, § 40.

 

73 Hun, 248.) The relation of stockholder is not established by the mere
production of a certificate of stock with a transfer purporting to be signed
by the administrator of the person named on the face of such certifi-
eate. (Id.)

In an action against a corporation upon a guaranty of another corpora-
tion’s bonds, an allegation in the complaint that the guaranty was made
by defendant ‘“‘ having authority so to do,’ is one of fact and not a con-
clusion of law. (Bryce v. Louisville, N. A. & C. Ry. Co., 73 Hun, 233.)

Where stock was purchased upon condition that a guaranty was to be
given in respect thereto, but such guaranty was not delivered until several
days after the purchase, held that the purchase of stock and the guaranty
were parts of the same transaction, and the purchase of the stock was a
sufficient consideration to sustain the guaranty. (Oppenheim v. Water-
bury, 86 Hun, 122.)

When an agreement has been made with a person, as a stockholder,
for his protection as such, and another succeeds to his stock, his successors:
or assigns become entitled to the protection which the contract gave to
him. (Hinstein v. Rochester Gas & Elec. Co., 77 Hun, 149; aff’d, 146
N. Y., 46.)

When certificates of stock contain apparently all the essentials of genu-
ineness, a bona fide holder thereof has a claim to recognition as a stock-
holder. (Mut. Life Ins. Co. v. Forty-second St. R. R. Co., 74 Hun, 505.)

The vendor of stocks is the mominal owner thereof until a transfer of
such stock is made on the books of the corporation. Both vendor and
vendee are liable to creditors. (Johnson v. Underhill, 52 N. Y., 203.)

A subscription to the certificate of incorporation, with a statement of
the number of shares opposite the name, is a binding subscription for the
stock, and takes effect upon the filing of the certificate. (Phoenix W.
Co. v. Badger, 67 N. Y., 294.)

The relation of stockholder is established by the subscription and pay-
ment, and does not depend upon the issue of a certificate or other evidence:
of such right by the corporation. (Rutter v. Kilpatrick, 63 N. Y., 604.)

The right to sell shares is a personal one, and so is the right to grant
or withhqld assent to change their relative value. (Campbell v. Am.
Zylonite Co., 122 N. Y., 455, 34 St. Rep., 38.)

A transfer of stock, valid as between the parties, but not entered upon
the books of the corporation, does not exempt the transferrer from lia-
bility as a stockholder to the creditors of the corporation. (Shellington: v.
Howland, 53 N. Y., 371.) .

The certificate of stock is the muniment of the shareholder’s title, and’
evidence of his right. (Kent v. Quicksilver M. Co., 78 N. Y., 180.)

A stockholder may proceed against a corporation if it negligently can-
cels his stock and issues certificates therefor to another. (St. Romes v.

Levee Cotton Co., 127 U. S., 614.)

This section is not violated by a transfer to a corporation of the stock
of another corporation as a gift. (Frothingham v. Broadway & Seventh
Ave. R. R. Co., 9 N. Y. Civ. Pro. Rep., 304; King v. Barnes, 113 N. Y., 476.)

The capital stock is the money contributed to the capital, and is usually
represented by shares issued to the subscribers to the stock on the initia-
SuBscRIPTIONS TO STOCK. 145

 

The Stock Corporation Law, § 41.

 

tion of the corporate enterprise. (Christensen v. Eno, 106 N. Y., 97;
Burrall v. Bushwick R. R. Co., 75 N. Y., 211.)

An agreement between stockholders not to sell, assign, pledge or give
power of attorney to vote, or agree to sell the stock respectively owned
by the parties without the concurrent consent of all is void on its face.
(In re Argus Co. v. Manning, 138 N. Y., 557; Fisher v. Bush, 35 Hun, 641.
See, also, Titus v. Prest., etc., G. W. Turnpike Road, 61 N. Y., 237.)

Unless expressly authorized by law so to do, a corporation cannot ,pur-
chase or deal in stocks of other corporations, but may take such stock in
payment of a debt. (Holmes & G. Mfg. Co. v. Holmes & W. M. Co., 127
N. Y., 252; Milbank v. N._Y., L. E. & W. R. Co., 64 How., 20; Talmage
v. Pell, 7 N. Y., 328; Kent v. Quicksilver M. Co., 78 N. Y., 159; Palmer v.
Cypress H. Cem., 122 N. Y., 429.) \

When a corporation sells the stock of another corporation it is entitled
to recover the- purchase price, although the original acquisition of such
stock may have been illegal. (Sistare v. Best, 88 N. Y., 527; Holmes &
7G, Co. v. Holmes & Wessell Co., 53 Hun, 52; aff'd, 127 N. Y¥. 252.)

Remedies of a stockholder who is denied recognition as such. (King v.
Barnes, 113 N. Y., 476; Robinson v. National BE., etc., 95 N. Y., 637; Cush-
man v. Thayer Mfg. Co.,76 N. Y., 365; Burrall v. Bushwick R. R. Co., 75
N. Y., 211; Hughes v. Vermont C. M. Co., 72 N. Y., 207; Ormsby v. Same,
56 N. Y., 623; Peckham v. Van Wagenen, 83 N. Y., 40.)

A corporation may, with the consent of all its stockholders, sell its
plant to another corporation and retire from business, taking payment in

\ the stock of the other corporation. (Holmes & G. Mfg. Co. v. Holmes &
W. Metal Co., 127 N. Y., 252.) But a transfer of its entire property is
illegal as against creditors of the corporation. (Cole v. Millerton Iron Co.,
133 N. Y., 164; Hurd v. N. Y. & Com’l Laundry Co., 167 N. Y., 89, revsg.
52 App. Div., 467.) :

Where a board of directors appointed an executive committee, giving
it no power to issue stock, and thereafter stock was issued by the presi-
dent of the corporation under the authority of such committee and the
board of directors neither authorized nor ratified such issue, no title was
conferred upon one who was not a purchaser in good faith for full value.
(Ryder v. Bushwick R. R. Co., 134 N. Y., 83.)

§ 41. Subscriptions to stock.— If thewhole capital stock
shall not have been subscribed at the time of filing the certificate
of incorporation, the directors named in the certificate may open
books of subscription to fill up the capital stock in such places,
and after giving such notices as they may deem expedient, and
may continue to receive subscriptions until the whole capital stock
is subscribed. At the time of subscribing, every subscriber, whose
subscription is payable in money, shall pay to the directors ten
per centum upon the amount subscribed by him in cash, and no
such subscription shall be received or taken without sneh navment.

(Former section 41, L. 1890, ch. 564, as amended by L. 1892, ch. 688.)

10
146 Susscrirtions To Stock.

 

The Stock Corporation Law, § 41.

 

The amendment of 1892 consisted of the insertion of the words “ whose
subscription is payable in money” in the second sentence. It should be
carefully noted that under the amendment it is only the subscriber,
“‘whose subscription is payable in money,” who is required to pay ten
per cent. in eash at the time of subscribing, and that most of the decisions
in the following cited cases were rendered prior to the amendment.

The relation of shareholder in a corporation is created by the subscrip-
tion agreement, and it is not essential to such relation that a certificate
of stock be actually issued. (Beals v. Buffalo Expanded Metal Constn.
Co., 49 App. Div., 589.) When such subscriber accepts an office in the
corporation and does other acts which can only be done by a shareholder,
he is estopped from denying the existence of that relation, notwithstand-
ing the fact that no stock book was kept by the corporation and that he
never received a certificate of stock. (Id.)

Where, contemporaneous with a subscription to the stock of a corpora-
tion, the subscriber and the corporation enter into an agreement by which
the subscriber, in consideration of the delivery to him at a future time
of the stock for which he subscribes, agrees to advance moneys to the
corporation up to the par value of said stock, the sums so advanced to
be repaid to him “immediately upon the receipt and payment of such
contracts for which such sums have been advanced,” such agreement is
not, as against the creditors of the corporation, to be read in connection
with his subscription. (Beals v. Buffalo Expanded Metal Constn. Co., 49
App. Div., 589.) The execution by the subscriber, with knowledge of the
insolvency of the corporation, of an assignment of the agreement to a
third person, who assumes the subscribers’ obligations thereunder, and
of a release to the corporation of all demands existing, and those subse-
quently accruing which might inure to the subscriber, and the transfer
of the agreement, by the assignee thereof, to, and its acceptance by, the
corporation, do not operate to release the subscriber from liability upon
his unpaid subscription. (Id.)

Where the certificate of incorporation expresses no illegal purpose, and
the transaction between the corporation and subscribers is valid on its
face, subsequent corporate acts tending to manifest an illegal purpose on
the part of the directors neither affect the validity of the incorporation
nor render void contracts of subscription to the stock. (U.S. Vinegar Co.
vy. Foehrenbach, 148 N. Y., 58, discussing 143 N.-Y., 537, aff’g 74 Hun, 435.)

A mere promise to subscribe to the capital stock of a corporation is
void. (General Electric Co. v. Wightman, 3 App. Div., 118.) °

In litigation between a corporation and one who has sold goods to it,
where a counterclaim based upon a subscription to the stock of the cor-
poration is interposed, the contract to subscribe can only be enforced
according to tne terms thereof. (Elliot v. N. Y. Endowment Co., 73 Hun,
519.) The contract of subscription is to be deemed in writing where the
subscription was accompanied by a letter stating that a certain amount
would be paid in cash, and the balance by deducting a percentage from
the subscriber’s monthly accounts with tHe corporation; and in such case
the counterclaim can only be maintained by proof of what the percentage
on the monthly accounts amounted to. (Id.)
Sugscriptions To Sock. 147

 

The Stock Corporation Law,, § 41.

 

This section does not prescribe how or where books of subscription
shall be opened, or what kinds of books shall be used. There may be one
book or many. (B. & J. R. R. Co. v. Gifford, 87 N. Y., 294.) Subscriptions
‘for stock may be made before the organization of the corporation, provided
the ten per cent. thereon is paid on a proper call thereafter. (Id.)

An action cannot be maintained to recover the amount of stock sub-
scribed unless ten per “cent. thereof is paid in cash at the time of the
‘subscription. (Hxcelsior Grain Binder Co. v. Stayner, 25 Hun, 91; Perry
v. Hoadley, 19 Abb. N. C., 76.)

A check given in payment of the subscription, which check was counter-
manded, is not sufficient. The payment must be in cash, or its actual
equivalent. (Excelsior G. B. Co. v. Stayner, above. ‘See, also, Durant v.
Abendroth, 69 N. Y., 148.)

A subscription after incorporation is not binding until at least ten per
‘cent. has been paid. (N. Y. & O. M. R. R. Co. v. Van Horn, 57 N. Y., 473;
South Buffalo Natural Gas Co. v. Bain, 9 Misc., 425, and cases therein
cited.) Actual payment of such percentage after subscription, with intent
to complete the same, satisfies the statute. (Beach v. Smith, 30 N. Y.,
116; B. R. & U. R. R. Co. v. Clarke, 25 N. Y., 208.) Such payment may be
made in services rendered the corporation. (Id.; Veeder v. Mudgett, 95
N. Y., 295.)

Payment in patent-rights of unascertained value is not a compliance.
(Tasker v. Wallace, 6 Daly, 364.)

Notes given for the ten per cent. upon which payment was afterwards
enforced, satisfies the statute. (O. C. & R. R. RB. Co., v. Wooley, 1 Keyes,
118.)

Bach subscription constitutes a separate and independent agreement.
‘There can be no presumption that a person was induced to subscribe
because another had done so. (Whittlesey v. Frantz, 74 N. Y., 456.)

An agreement between parties about to form a corporation‘that the
capital stock is to be represented by property which they severally con-
tribute, at a valuation fixed upon between themselves, is not invalid.
(Lorillard v. Clyde, 86 N. Y., 384.)

Signing the certificate of incorporation and setting opposite thereto the
number of shares to be taken is a sufficient subscription for stock. (Phoe-
nix Warehousing Co. v. Badger, 67 N. Y., 294; Buffalo, ete, v. Badger,
67 N. Y., 294; Dayton v. Borst, 31 N. Y., 435.)

The corporation must be named as a party to the agreement of sub-
scription for shares. (Lake Ontario S. R. R. Co. v. Curtiss, 80 N. Y., 219.)

No one can-be made a stockholder without his consent, express or
implied. (Glenn v. Garth, 133 N. Y., 18.)

Bonds taken as a bonus on a stock subscription by the directors are
not valid. (Duncomb v. N. Y., H. & N. R. R. Co., 84 N. Y., 190.)

An agreement to take stock in a corporation to be thereafter formed,
becomes binding upon the organization of the corporation and its accept-
ance of the agreement. (Buffalo & J. R. R. Co. v. Clarke, 87 N. Y., 294;
Buffalo & P. BR. R.-Co. v. Hatch, 20 N. Y., 157; Buffalo & N. Y. C. R. BR.
Go. v. Dudley, 14 N. Y., 336.)
148 Consiperation For Issuz or Stock anp Bownps.

 

The Stock Corporation Law, § 42.

 

§ 42. Consideration for issue of stock and bonds. — Ne
corporation shall issue either stock or bonds except for money,
labor done or property actually received for the use and lawful.
purposes of such corporation. Any corporation may purchase:
any property authorized by its certificate of incorporation, or neces-
sary for the use and lawful purposes of such corporation, and
may issue stock to the amount of the value thereof in payment.
therefor, and the stock so issued shall be full paid stock and not
liable to any further call, neither shall the holder thereof be liable:
for any further payment under any of the provisions of this act;
and in the absence of fraud in the transaction the judgment of the:
directors as to the value of the property purchased shall be con-
clusive; and in all statements and reports of the corporation, by
law required to be published or filed, this stock shall not be stated
or reported as being issued for cash paid to the corporation, but
shall be reported as issued for property purchased.

(Former section 42, L. 1890, ch. 564, as amended by L. 1892, ch. 688,.
and L. 1901, ch. 354.)

This section formerly provided that, no stock shall be issued for less.
than its par value and no bonds for less than the fair market value
thereof, but by the amendment of 1901, chapter 354, these restrictions.
were abolished and the additional provisions inserted, permitting a cor-
peration to purchase any property authorized by its certificate of incor-
poration, and in the absence of such authorization permitting it to
purchase any property necessary for the use and lawful purposes of the
corporation and to issue stock to the amount of the value thereof in pay-
ment therefor, and declaring stock so issued to be full-paid stock and '
not liable to any further call. Said amendment also added the provision
that “in the absence of fraud in the transaction the judgment of the:
directors as to the value of the property purchased shall be conclusive.”
These new features are upon the lines of the English Companies Act and
the New Jersey statute upon the same subject. The foregoing important
modifications will preclude the serious questions which occasionally oc-
curred under the former practice as to the legality and validity of the
issue of stock of a corporation in payment for properties not having a
determinable market value.

Section 5 of chapter 354, Laws of 1901, taking effect April 16th, and
amending the foregoing section, provides that pending actions or proceed-
ings shall not be affected, nor existing rights, if action be begun within:
six months. For full text of this saving clause, see note under section
2, page 82.°

In view of the sweeping changes made in section 42 by the last amend-
ment, only a few of the decisions rendered in cases heretofore arising
thereunder are applicable. For such cases, see the fourth edition of
“White on Corporations,” pages 134-136, and pages 1001-1062. The cases:
hereinafter cited also arose before the change in the law, and this fact.
should be borne in mind in using them.
ConsiprRaTion FoR IssuzE or Stock anp Bonps. 149

 

The Stock Corporation Law, § 42.

Corporations are not permitted to interpose the defense of usury. See
ante, page 90.

A leasehold of a building required by a corporation for a manufactory
-constitutes property necessary for the business of the corporation. (Close
-y. Noye, 147 N. Y¥., 597.)

In determining whether this section has been violated, the value of a
franchise of a corporation to be acquired under a contract is to be con-
:Bidered, as well as the value of the plant and tangible properties of the
company secured thereby. (Rafferty v. Buffalo City Gas Co., 37 App.
Div., 618.)

The purpose of a corporation to secure itself against ruinous competi-
-tion is “a lawful purpose” within the meaning of this section. (Rafferty
y. Buffalo City Gas Co., 37 App. Div.,. 618.) , e

A contract, by which a railroad corporation agrees to pay for the con-
-struction of a railroad by issuing all its bonds and the greater part of its
.stock to the contractor and covenants to make such payment.in advance,
is not, in the absence of evidence showing that the par value of the
‘stock and the market value of the bonds was greater than the value of
the contract obligation received therefor to build the road, invalid under
the foregoing section. (Hudson River & Washington Bos Midland R. R.
Co. v. Hanfield, 36 App. Diy., 605.)

An issue of stock to a promoter is not an issue for cash or property.
‘(Herbert v. Duryea, 34 App. Div., 478.)

Where a corporation having no creditors, and only three stockholders,
each holding one share of stock, enters, with the consent of two of the
stockholders, and without objection on the part-of the third, into a con-
tract for the construction of its plant, whereby it agrees to pay the con-
structing firm the balance of its entire issue of stock, and the contract
is fully performed on both sides, a person, who subsequently buys stock
which was issued to his assignor in payment for services rendered to
the constructing firm, cannot claim that the contract was invalid upon
the ground that it was executed in fraud of the rights of the stockholders.
(Drake v. N. Y. Suburban Water Co., 26 App. Div. 499.)

Bonds issued under a trust mortgage by an embarrassed corporation

_ upon the surrender by creditors of notes given by the corporation for
money and property actually received by it for its use and lawful pur-
poses, and accompanied by an extension to it of the time of .payment,
do not violate this section. (Matter of ‘Snyder, 29 Misc., 1.)

Stock issued for good-will is issued for property actually received
within the meaning of the statute. (Washburn v. National W. P. Co., 81.
Fed. Rep., 1%.)

Where a corporation issues to a person, in payment for his lands, cer-
tificates of its stock bearing on their face the words “shares $100 each.
¥Full-paid and non-assessable beyond $10 per annum,” the corporation can-
not subsequently assess the shares as the statute does net authorize an
‘assessment, and the acceptance of such shares with such clause does not
amount to an assent upon the part of the holder to an assessment which
is not authorized by law. (Sullivan County Club v. Butler, 26 Misc., 306.)

,
’
150 Time or Payment or Sunscrirtions to Stock.

 

The Stock Corporation Law, § 43.

 

§ 43. Time of payment of subscriptions to stock.—
Subscriptions to the capital stock of a corporation shall be paid at
such times and in such installments as the board of directors may
by resolution require. If default shall be made in the payment
of any installment as required by such resolution, the board may
declare the stock and all previous payments thereon forfeited for.
the use of the corporation, after the expiration of sixty days from
the service on the defaulting stockholder, personally or by mail
directed to him at his last-known post-office address, of a written
notice requiring him to make payment within sixty days from
the service of the notice at a place specified therein, and stating
that, in case of failure to do so, his stock and all previous payments
thereon will be forfeited for the use of the corporation.

Such stock, if forfeited, may be reissued or subscriptions there-
for may be received as in the case of stock not issued or subscribed
for. If not sold for its par value or subscribed for within six
months after such forfeiture, it shall be canceled and deducted
from the amount of the capital stock. If by such cancellation,
the amount of the capital stock is reduced below the minimum
required by law, the capital stock shall be increased to the required
amount within three months thereafter or an action may be
brought or proceedings instituted to close up the business of the.
corporation as in the case of an insolvent corporation. If a re-
ceiver of the assets of the corporation has been appointed, all un-
paid subscriptions to the stock shall be paid at such times and in
such installments as the receiver or the court may direct.

(Former section 43, L. 1890, ch. 564, as amended by EL. 1892, ch. 688.)

For form of subscription list, sce post, form No. 47.

The first paragraph is a re-enactment of the whole of former section:
43. The second paragraph, providing for reissue, sale or cancellation of .
forfeited stock, for proceedings, to close up affairs of corporation, and for
payment of subscriptions in case of receivership, was added by L. 1892,
ch. 688,

In the absence of special provisions to the contrary, either in the
statute under which a corporation was organized or in its by-laws, an
original subscriber to its stock can transfer his stock to another, and,
if the transfer is in good faith, his liability ceases and the transferee
will be substituted in his place, with the same rights and liabilities as
the original holder. (Rochester & Kettle Falls Land Co. v. Raymond, 158
N. Y., 576, aff’g 4 App. Div., 600.)

Where books of account, upon which depend the right of a corporation
to forfeit the stock of the subscriber for his failure to pay assessments,
are much confused, he is entitled to maintain an action in equity to
enjoin the sale of his stock and for an accounting to determine whether
Time or PayMENT oF SuBpscRirTions To Stock. 151

 

The Stock Corporation Law, § 43.

 

he is indebted to the corporation. (Schuetz v. German-American Real
Estate Co., 21 App, Div., 163.)

A general assignee of an insolyent corporation of another State, ap-
pointed in that State, can maintain in the courts of this State an action
in equity against all original stockholders residing here, to enforce their
common-law contractual liability to pay the Subscription price of their
stock. (Stoddard v. Lum, 159 N. Y., 265, revsg. 32 App. Div., 565.)

When there has been no formal subscription for stock the corporation
eannot recover an amount unpaid upon its stock, unless a promise to pay
the same, either express or implied, has been made by the person sought
to be charged, and if there be no such agreement the sole remedy for the
corporation is by the sale of the shares of the delinquent members.
(Rochester & Kettle Falls Land Co. v. Roe, 7 App. Div., 366.)

A purchaser of stock who has been sued for unpaid subscriptions should
be allowed to prove that his transferrer represented that the stock was
fully paid and that he was also so informed by the directors of the cor-
poration at the time when he made the purchase. (Rochester & Kettle
Falls Land Co. v. Roe, 7 App. Div., 366.)

An order of the court directing the receiver of a corporation to collect
its outstanding assets authorizes an action by him, without a previous
demand, to enforce payment of a subscription for stock. (Armstrong v.
Danahy, 75 Hun, 405.) :

A person who has, by fraud, been induced to subscribe for the stock of
a corporation, may bring an equitable action for a rescission of the con-
tract, a cancellation of his subscription, and the removal of his name from
the books of the corporation. (Bosley v. Nat’l Mach. Co., 123 N. Y., 550.)
The statute of limitations does not commence to run against the action
until after discovery of the fraud. (Id.)

A secret agreement of a corporation, with certain of its subscribers,
whereby they are to have some advantage not common to all the stock-
holders, or be released from payment of the stock, is no defense to an
action brought -to collect the subscription of one who was not promised
the same advantages. (Armstrong, etc. v. Danahy, 75 Hun, 405.) Such
secret agreements are void. (Id.)

A corporation, when formed, may enforce payment of the subscriptions
to its capital stock against persons who subscribed its articles of asso-
ciation before the corporate body had a legal existence. (Dorris v. French,
4 Hun, 292; Buffalo & N. Y. C. R. R. Co. v. Dudley, 14 N. Y., 336; Troy
& Boston R. R. Co. v. Tibbitts,.18 Barb., 297.)

When stock is declared forfeited, the liability of the holder thereof to
the corporation for further payment thereon ceases. (Mills v. Stewart,
41 N. Y., 389; Small v. Herkimer Mfg. Co., 2 N. Y., 330.)

The remedy by forfeiture is merely cumulative, and does not prevent an
action for the installments until the forfeiture is resorted to. (Troy &
Boston R. R. Co. ¥. Tibbitts, 18 Barb., 297; Northern R. R. Co. v. Miller,
10 Barb., 260; O., R. & C. R. R. Co. v. Frost, 21 Barb., 541; B. & N. Y.
C. BR. RB. Co. v. Dudley, 14 N. Y., 336; Mann v. Currie, 2 Barb., 294.)

After a forfeiture, the holder is divested of his title in the shares,
which is then vested in the corporation and remaining stockholders.
(Weeks v. Silver Islet C. M. & L. Co., 54 J. & S., 1; aff'd, 120 N. ¥., 620.)
152 Increase on Repvuction or Caprrat Stock.

 

The Stock Corporation Law, § 44.

 

When actions cannot be maintained for amounts unpaid on stock.
(Christensen v. Eno, 106 N. Y., 97; Zel. M. Co. v. Meyer, 28 St. Rep., 759;
Williams v. Taylor, 120 N. Y., 244.)

One who has made an absolute transfer of stock, in good faith, to
another, is thereby released from further liability upon calls for payment
of the stock. (Billings v. Robinson, 94 N. Y., 415; Cutting v. Damerel, 88
N. Y., 410.)

When stock has been transferred as full paid, in good faith, to pay a
contractor, the certificate does not render the holder liable to pay for the
stock. (Van Cott v. Van Brunt, 82 N. Y., 535.) ,

When the stockholders and contractors are the same persons, and the
directors were interested in the contractor’s work, it will not avail a third
person to complain, where all the stockholders participated. (Barr v.
N. Y., L. E. & W. R. R. Co., 125 N. Y., 263. See, also, Gamble v. Queens
Co. W. Co., 123 N. Y., 263.)

After consolidation, a person who had previously subscribed for stock
of one of the constituent corporations, and paid only ten per cent. upon
the same, is not entitled to full-paid stock. (Babcock v. S. & L. V. R. R.
Co., 133 N. ¥., 420; id., 39 St. Rep., 506.)

Each subscription constitutes a separate and independent agreement.
Effect of release of one of the subscribers from his obligation to pay for
stock considered in Whittlesey v. Frantz, 74 N. Y., 456.)

A transfer upon the books renders the transferee liable, although he
holds the stock as collateral security for a debt. (Roosevelt v. Brown, 11
N. Y., 148; Cutting v. Damerel, 88 N. Y., 410.)

No contract to pay any further sum for-stock than that required upon
the original subscription is to be implied from such subscription. (Sey-
mour v. Sturges, 26 N. Y., 134.)

A subseriber failing to pay as required by the terms of his subscription,
1s properly chargeable with interest from the time of the default, and
cannot compel the corporation to issue the stock until both the principal
and interest are paid. (Gould v. Town of Oneontd, 71 N. Y., 298.)

§ 44. Increase or reduction of capital stock.— Any do-
mestic corporation may increase or reduce its capital stock in the
manner herein provided, but not above the maximum or below
the minimum, if any, prescribed by general law governing cor-
porations formed for similar purposes. If increased, the holders
of the additional stock issued shall be subject to the same liabilities
with respect thereto as are provided by law in relation to the
original capital; if reduced, the amount of its debts and liabilities
shall not exceed the amount of its reduced capital, unless an in-
surance corporation, in which case the amount of its ‘debts and
liabilities shal] not exceed the amount of its reduced capital and
other assets. The owner of any stock shall not be relieved from
any liability existing prior to the reduction of the capital stock
Increase oR Repuction oF Capital Stock. 153

 

The Stock Corporation Law, § 44.

 

-of any stock corporation. If a banking corporation, whether the
“capital be increased or reduced, its assets shall at least be equal
‘to its debts and liabilities and the capital stock, as increased or re-
‘duced. A domestic railroad’ corporation may increase or reduce
its capital stock in the manner herein provided, notwithstanding
any provision contained herein, or in any general or special law
fixing or limiting the amount of capital stock which may be issued
by it.

(L. 1890, ch. 564, as amended by L. 1892, ch. 688; L. 1894, ch. 346; L. 1899,
-eh. 696, and L. 1901, ch. 354.)

For forms of certificate of increase or reduction of capital stock, see post,
forms Nos. 48, 49, 50, 50a. x

In 1899 this section was amended so as to permit a railroad company
‘incorporated by special act to increase or reduce its capital stock in con-
formity with this law, notwithstanding any restriction in such special
act fixing or limiting its capitalization.

By the amendment of 1901, chapter 354, the wording of this section
-was changed in such a manner as to empower a stock corporation created
by special act of the Legislature to make an increase or reduction of its
‘capital stock in conformity with this law, notwithstanding any provision
in the special act of incorporation, fixing or limiting the amount of the
capitalization of such corporation.

Upon an increase of capital stock a tax of one-twentieth of one per,
-eent. is payable. (Tax Law, section 180, ante, page 73.)

An order of reference, obtained by three directors of a corporation
having seven originally, requiring the parties in interest to show cause
why the corporation should not be dissolved, ought not to be granted
‘when, at: the time dissolution proceedings were begun, directors, who
-were at least such de facto and represented a majority of the stockholders,
-were, to the knowledge of the petitioning directors, in control of the cor-
poration and had given notice to stockholders of a meeting to reduce the.
-ecapital stock, with a view to avoid dissolution or threatened insolvency,
-actual insolvency not being alleged in the petition for dissolution. (Matter
-of Bay State Shoe & Leather Co., 26 Misc., 571.)

Where stockholders have taken valid action for a reduction of capital
«stock and the directors subsequently provide for the issue of debenture
bonds payable in part by stock, the court will interfere with such reduc-
tion of stock only so far as it is incidental to the proposed issue of bonds.
‘(Merz v. Interior Conduit & Insulation Co., 20 Misc., 378.)

The capital stock of a corporation cannot be increased except in the
manner prescribed by statute. There is no such thing as an implied
authority to increase or diminish the capital stock of a company. (Hin-
stein v. Rochester Gas & Electric Co., 146 N. Y., 46.)

When three corporations consolidate and purchase a majority of the
stock of @ fourth corporation, exchanging five shares for each one of the
latter and the latter continues its separate organization, the transaction
does not amount to an increase of the capital stock of such rourth corpo-
154 Increase or Ripuction or Capirat Stock.

 

The Stock Corporation Law, § 45.

 

ration. (Einstein v. Rochester Gas & Electric Co., 146 N. Y., 46, 77
Hun, 149.)

The amount of capital stock may be reduced before it has been actually
paid in. The reduced amount may still exceed the sum actually paid in.
In such case the stockholders must pay it in after the reduction. (Strong
v. Brooklyn C. T. R. R. Co., 93 N. Y., 426.) There can be no surplus for
distribution in such case. (Id.)

Upon an increase of capital stock, the provisions of section 54 of this.
law, apply only to such increased capital. (Veeder v. Mudgett, 95 N. Y..,.
295. See, also, Cuykendall v. Douglas, 19 Hun, 577.)

It seems that a reduction of capital stock does not authorize the dis-
tribution among stockholders of a sum equal to the difference between the
original and reduced amount, unless the corporation has on hand actual
capital for payment of debts, exceeding the amount to which it has.
reduced its stock. (Strong v. Brooklyn Cross-Town R. R. Co. 93 N.
Y., 426.)

A corporation has no implied authority to increase or reduce its capital
stock. (Sutherland v. Olcott, 95 N. Y., 100.)

In disposing of the increased capital stock, the managing ‘board are to be:
considered as trustees for holders of the original stock, and must so dis--
pose of the increase that as much value as possible shall be returned to
the corporation for its business purposes. (Williams v. W. U. Tel. Co., 9
Abb. N. C., 419, 93 N. Y., 162.) The term “capital stock’? means the
property of the corporation contributed by the stockholders or otherwise
obtained, to the extent required by its charter (or certificate of incorpora-
tion). Property in excess of that limit is surplus, which may be divided
either in money or property, or in a “ scrip dividend,” provided an increase-
of the share capital has been lawfully authorized. (Id.)

§ 45. Notice of meeting to increase or reduce capital
stock.— Every such increase or reduction must be authorized.
either by the unanimous consent of the stockholders, expressed in
writing and filed in the office of the secretary of state and in the
office of the clerk of the county in which the principal business.
office of the corporation is located, or by a vote of the stockholders.
owning at least a majority of the stock of the corporation, taken
at a meeting of the stockholders specially called for that purpose:
in the manner provided by law or by the by-laws. Notice of the
meeting, stating the time, place and object, and the amount of
the increase or reduction proposed, signed by the president or a
vice president and the secretary, shall be published once a week,
for at least two successive weeks, in a newspaper in the county
where its principal business office is located, if any is published
therein, and a copy of such notice shall be duly mailed to each
etockholder or member at his last-known post-office address at
Meetine to Increase on Repuce OCapitat Stock. 155

 

The Stock Corporation Law, § 46.

least two weeks before the meeting or shall be personally served
on him at least five days before the meeting.

(Former section 45, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and
L. 1893, ch. 700, and L. 1901, ch. 354.)

For form of notice, see post, form No. 49.

By the amendment of 1901, the following changes were made in this
section:

An increase or reduction of capital stock is authorized, without holding
a meeting of the stockholders, by filing a written unanimous consent.

When a special meeting of stockholders is to be held for the purpose
of increasing or reducing the capital stock, it may be called “in the
manner provided by law, or by the by-laws.” When called in the man-
ner provided by law, the notice is not required to be signed by a majority
of the directors as heretofore, but may be signed only by the president or
the vice-president and the secretary. The time for mailing notices for
such meetings has been reduced from three weeks to two weeks prior to
the meeting, and such mailiig may be dispensed with by a personal
service of the notice on a- stockholder at least five days before the
meeting. :

' Laws of 1901, chapter 354, amending the foregoing section. to take
effect April 16th, saves existing rights, provided action be beguu within
six months. For full text of said saving clause, see note under section 2
of this law.

Since 1895 special meetings of stockholders to increase capital stock,
without notice of meeting and without the lapse of any period of time,
have been sanctioned by statute, provided such action were authorized
and the statutory requirements were waived in writing by all the stock-
holders, pursuant to section 38 of the General Corporation Law.

The book of minutes of the corporation and the certificate showing that
the requisite number appeared in person or by proxy and voted for an
increase of stock, established, in the absence of evidence that due notice
of the meeting was not given to the stockholders, that the stock was
increased at a regularly assembled meeting of stockholders. (Cuykendall
v. Douglas, 19 Hun, 577.)

§ 46. Conductofsuch meeting; certificate of increase
or reduction.— If, at the time and place specified in the notice,
the stockholders shall appear in person or by proxy in numbers rep-
resenting at least a majority of all the shares of stock, they shall
organize by choosing from their number a chairman and secre-
tary, and take a vote of those present in person or by proxy, and
if a sufficient number of votes shall be given in favor of such in-
crease or reduction, or if the-same shall have been authorized by
the unanimous consent of stockholders expressed in writing signed
by them or their duly authorized proxies, a certificate of the pro-
ceeding showing a compliance with the provisions of this chapter,

ee
>
156 Merrtine to Incrmasrt on Repuce Carirat Stock.

 

The Stock Corporation Law, § 46.

 

the amount of capital theretofore authorized, and the proportion
thereof actually issued, and the amount of the increased or re-
duced capital stock, and in case of the reduction of capital stock
the whole amount of the ascertained debts and liabilities of the
corporation shall be made, signed, verified and acknowledged by
the chairman and secretary of the meeting, and filed in the office
of the clerk of the county where its principal place of business
shall be located, and a duplicate thereof in the office of the sec-
retary of state. In case of a reduction of the capital stock, except
of a railroad corporation or a moneyed corporation, such certifi-
eate or consent hereinafter provided for shall have indorsed
thereon the approval of the comptroller, to the effect that the
reduced. capital is sufficient for the proper purposes of the cor-
poration, and is in excess of its ascertained debts and liabilities;
and in case of the increase or reduction of the capital stock of a
railroad corporation or a moneyed corporation, the certificate or
the unanimous consent of stockholders as the case may be, shall
have indorsed thereon the approval of the board of railroad com-
missioners, if a railroad corporation; of the superintendent of
banks, if a corporation formed under or subject to the banking
law, and of the superintendent of insurance, if an insurance cor-
poration. When the certificate herein provided for, or the unani-
mous consent of stockholders in writing, signed by them or their
duly authorized proxies, approved as aforesaid has been filed, the
capital stock of such corporation shall be increased or reduced, as
the case may be, to the amount specified in such certificate or con-
sent. The proceedings of the meeting at which such increase or
reduction is voted, or, if such increase or reduction shall have been
authorized by unanimous consent without a meeting, then a copy
of such consent shall be entered upon the minutes of the corpora-
tion. If the capital stock is reduced, the amount of capital over
and above the amount of the reduced capital shall, if the meeting
or consents so determine or provide, be returned to the stockholders
pro rata, at such times and in such manner as the directors shall
determine, except in the case of the reduction of the capital stock
of an insurance corporation, as an alternative to make good an
existing impairment. ‘

(Former section 46, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and
L. 1893 ch. 700; L. 1901, ch. 354; L. 1902, ch. 286; L. 1904, ch. 123.)

The last clause, embodying the exception relative to insurance corpo-
rations, was added by L. 1902, ch. 286.

For forms under this section, see post, forms Nos. 48, 49, 50, 56a. ,

It seems that the approval of the Comptroller is not necessary in the
ease of a corporation organized prior to 1878. (People ex rel. Eden Musee
v. Carr, 36 Hun, 488; aff’d, 100 N. Y., 641.)

Where a corporation has increased its capital stock in a legal manner,
a failure to file the certificate of increase, until a motion has been made
for a receiver, does nut necessarily show that the directors in control
PREFERRED AND Common Srock. 157

 

The Stock Corporation Law, § 47.

withheld the certificate for a wrongful purpose, nor is bad faith shown
by their refusal, under advice of counsel, to allow holders of stock, by
the record, to vote thereon, where the actual interest of such holders.
was only that of pledgees. (Thalmann v. Hoffman House, 27 Misc., 140.).

§ 47: Preferred and common stock.— Every domestic
stock corporation may issue preferred stock and common stock, and
different classes of preferred stock, if the certificate of incorpora-
tion so provides, or by the consent,of the holders of record of two-
thirds of the capital stock, given at a meeting called for that pur-
pose tipon notice such as is required for the annual meeting of the
corporation. A certificate of the proceedings of such meeting,
signed and sworn to by the president or a vice-president, and by
the secretary or assistant secretary, of the corporation, shall be
filed and recorded in the offices where the original certificate of
incorporation of such ‘corporation was filed and recorded; and the
‘corporation may, upon the written request of the holders of any
preferred stock, by a two-thirds vote of its directors, exchange the
same for common stock, and issue certificates for common stock
therefor, upon such valuation as may have been agreed upon in
the certificate of organization of such corporation, or the issue of
such preferred stock, or share for share but the total amount of
such capital stock shall not be increased thereby.

(Former section 47, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and
L, 1901, ch, 354.)

For forms of certificate of preferred stock, see post, form No. 51.

For form of consent authorizing issue of preferred stock,-see post, form No.

For examples of various classifications of preferred and common stock, see
post, forms Nos, 184, 185, 136, 137, 188, 189 and 140.

As amended in 1901; this section authorizes the classification of stock
foto commen and preferred, and into different classes of preferred stock
by a vote of the holders of two-thirds of the capital stock of the corpora-
tion, instead of by unanimous consent, which was required prior to this.
amendment. This change harmonizes the section with the statutes of
nearly: all the other States.

Laws of 1901, chapter 354, amending the foregoing section, to take
effect April 16th, saves existing rights, provided action be begun within
six months. For full text of said saving clause, see note under section 2:
of this law.

The cases respecting preferred stock arose before the enactment of the
provisions of the foregoing section, and, therefore, the decisions therein
laid down principles of law which do not, in their entirety, apply to:
issues of preferred stock made pursuant to the above statute, which
expressly authorizes such stock. This fact should be borne in mind in
158 Pronipitep TrRansrers To Orricers orn STOCKHOLDERS.
‘

 

The Stock Corporation Law, § 48.

 

order that these early decisions may not be misleading. The cases
referred to are as follows:

The right of every shareholder to his proportion of the profits is a
vested individual right, and, in the absence of some power conferred by
statute or by the articles of association to change the relative value of
shares by giving some preference over others, as to dividends, the power
cannot be implied, and no such change can be made without unanimous
consent. (Campbell v. American Zylonite Co., 122 N. Y., 455, revsg. 23
J. & S., 562.)

Neither a corporate body, nor a majority of its stockholders, has power
to provide in by-laws for the creation of preferred stock, so as to bind a
minority of the stockholders not assenting thereto. (Kent v. Quicksilver
M. Co., 78 N. Y., 159.)

The holding and owning of a share of common stock gives a right which
cannot be divested without the assent of the owner and holder, or unless
the power so to do has been reserved in some way. (Mech. Bank vy. N. Y.
& N. H.R. R. Co., 13 N. Y., 599.)

In the absence of a statute reserving such power, a corporation cannot
issue preferred stock to the prejudice of the owners of its common stock,
without their unanimous consent. (Ernst v. Elmira Municipal Improve-
ment Co., 24 Misc., 583, and group of cases therein cited.)

§ 48, Prohibited transfers to officers or stockholders.—
No corporation which shall have refused to pay any of its notes or
other obligations, when due, in lawful money of the United-States,
nor any of its officers or directors, shall transfer any of its prop-
erty to any of its officers, directors or stockholders, directly or in-
directly, for the payment of any debt, or upon any other considera-
tion than the full value of the property paid in cash. - No convey-
ance, assignment or transfer of any property of any such corpora-
tion by it or by any officer, director or stockholder thereof, nor
any payment made, judgment suffered, lien created or security
given by it or by any officer, director or stockholder when the
corporation is insolvent or its insolvency is imminent, with the
intent of giving a preference to any particular creditor over other
creditors of the corporation shall be valid, except that laborers’
wages for services shall be preferred claims and be entitled to
payment before any other creditors out of the corporation assets
in excess of valid prior liens or incumbrances. No corporation
formed under or subject to the banking, insurance or railroad
law shall make any assignment in contemplation of insolvency.
Every person receiving by means of any such prohibited act or
deed any property of the corporation shall be bound to account
therefor to its creditors or stockholders or other trustees. No
stockholder of any such corporation shall make any transfer or
ProuiBitep TRANSFERS TO OFFICERS OR StockHoLpERS. 159

 

The Stock Corporation Law, § 48.

 

assignment of his stock therein to any person in contemplation
of its insolvency. Every transfer or assignment or other act done
in violation of the foregoing provisions of this section shall be
void. No conveyance, assignment or transfer of any property of
a corporation formed under or subject to the banking law, exceed-
ing in value one thousand dollars, shall be made by such corpora-
tion, or by any officer or director thereof, unless authorized by
previous resolution of its board of directors, except promissory
notes or other evidences of debt issued or received by the officers
of the corporation in the transaction of its ordinary business and
except payments in specie or other current money or in bank bills
amade by such officers. No such conveyance, assignment or trans-
fer shall be void in the hands of a purchaser for a valuable con-
sideration without notice. Every director or officer of a corpora-
‘tion who shall violate or be concerned in violating any provisions
-of this section, shall be personally liable to the creditors and stock-
holders of the corporation of which he shall be director or an
officer to the full extent of any loss they may respectively sustain
by such violation.

(Former section 48, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and
L. 1901, ch. 354.) °

The amendment of 1901 added the provisions that laborers’ wages are
entitled to payment as preferred claims out of the corporation assets, in
excess of valid prior liens or incumbrances. It also added the sentence
prohibiting a corporation formed under or subject to the Banking, Insur-
ance or Railroad Law from making any assignment in contemplation of
‘insolvency. ?

Laws of 1901, chapter 354, amending the foregoing section, to take
effect April 16th, saves existing rights, provided action be begun within
six months. For full text of said saving clause, see note under section 2
-of this law.

Until the passage of chapter 688, Laws of 1892, amending this section,
‘the courts seemed uniformly to uphold acts on the part of officers of
insolvent corporations which were plainly intended to facilitate the
-efforts of creditors to secure preferential liens by judgment. (Varnum
v. Hart, 119 N. Y., 101; French v. Andrews, 145 N. Y., 441.) By said
amendment of 1892, the suffering of a judgment, creating a lien and
giving security by an insolvent corporation, with the intent of giving a
preference, are brought within the prohibition of the act, the Legislature
having been doubtless influenced in their action by reason of the above
decisions. (Olney v. Baird, 15 Misc., 385; aff’d, 7 App. Div., 95.)

By chapter. 688, Laws of 1892, amending this section, the prohibited
-acts were restricted to such as were committed “ with the intent of giving
@ preference to any particular creditor over other creditors of the cor-
poration.” (Home Bank v. Brewster & Co., 17 Misc., 442; Same case, 15
160 Proursirep TransFers To OFFICERS oR STOCKHOLDERS.

 

The Stock Corporation Law, § 48.

 

App. Div., 338; Hilton v. Ernst, 38 App. Div., 95.) Therefore, a stock.
corporation may make a general assignment without preferences. (Home
Bank v. Brewster, supra.)

This section does not apply to foreign corporations. (Standard Nat..
Bk. v. Garfield Nat. Bk., 56 App. Div., 43; Vanderpoel v. Gorman, 140 N.
Y., 569; Matter of Hulbert Bros. & Co., 38 App. Div., 323; Standard Nat..
Bk. v. National Silk Label Co., 30 Misc., 219; Worthington v. Pfister Book-
binding Co., 3 Misc., 418; Lane v. Wheelwright, 69 Hun, 180.) But see
section 60 of this law relative to foreign corporations transacting busi-
ness in this State.

Where an officer of a corporation, for the purpose of enabling a creditor
to obtain judgment speedily, procured notes, aggregating $7,700, to be
made for small amounts, so as to permit the creditor to obtain judgment
in a city court on a short service of summons, violates this section.
(Rossman v. Seaver, 41 App. Div., 604.)

In determining the question whether an insolvent corporation, or its.
officers, with the intent of giving a preference to a creditor, performed
any act which enabled him to obtain a judgment, where the evidence is.-
tapable of an interpretation in which the absence of a wrongful act is.
equally consistent with the presence of such act, that meaning must be-
given thereto which accords with its absence. (Lopez v. Campbell, 163
N. Y., 340, revsg. 18 App. Div., 427.)

Where the president of a corporation, which has a deposit in a bank
of which he is a director, upon learning, as a director, of the imminent.
insolvency of the bank, immediately informs his corporation and assists.
and procures it to withdraw its deposit by means of its own check, and
the bank never opened for business after the check was paid, there is:
no violation of this section, either upon the part of the corporation or
upon the part of its president, as a director of the bank. (O’Brien v..
East River Bridge Co., 161 N. Y., 539, revsg. 36 App. Div., 17.)

This section prohibits the following acts:

1. It prohibits officers and directors of an insolvent corporation or of’
one about to become insolvent, from using their knowledge of its con-
dition and their dominant position for their individual benefit in col-
lecting their own claims, either through a voluntary payment, or through
collusive and preferential liens, to the prejudice of other creditors, not.
so favorably situated.

2. It prohibits a preferential general davipiiient by a corporation,
though it does not forbid assignments without preferences.

3. It prohibits a transfer of any of the corporate assets to an officer,
director or stockholder upon any other consideration than the payment.
of the full value of the property in cash. (O’Brien v. East River Bridge-
Co., 161 N. Y., 539, revsg. 36 App. Div., 17.)

A general assignment without preferences, executed by a corporation,
will not be set aside at the instance of a judgment creditor for his sole-
benefit, because officers of the corporation, prior to the assignment, made
payments to themselves and others in discharge of existing obligations’
of thé corporation, which payments were in violation of this section,
where there is no proof that the corporation itself authorized such pay--
ments. (Creteau v. Foote & Thorne Glass Co., 54 App. Div., 168.)
‘ PROHIBITED TRansrers To Orricrers or StockHoLpErRs. 161

 

The Stock Corporation Law, § 48.

 

One not a stockholder or judgment creditor of the corporation at the
time of a transfer of its property cannot claim that such transfer was
ultra vires, as in violation of the prohibition of transfers in contempla-
tion of insolvency. (Wilson v. Mechanical Orguinette Co., 68 N. Y. Supp.,
173.)

A permanent receiver of a corporation, which while insolvent, executed
a bill of sale of its property, may maintain an action for conversion
against the vendee, and is not obliged to bring a suit in equity to compel
such vendee to account for property thus transferred. (McQueen v.
New, 45 App. Div., 579.) This section was not intended to limit the
receiver’s remedy to a suit in equity for an accounting. This provision
being remedial, its language should not be narrowed or limited so as to
lessen remedies given by former statutes which were not repealed by
it. (Id.)

When, in an action brought by a receiver of a corporation, appointed
in dissolution proceedings, to set aside a judgment recovered against it,
by default, as violative of this section, it appears, that, although the
creditor had been in the habit of selling goods to the corporation on a
eredit of from two to four months, he sold it goods upon the terms of
immediate payment five days before the corporation admitted its insol-
vency, and thereafter recovered judgment by consent of the ‘president
of the corporation, such judgment will be set aside. (Spellman v.
Looscher, 162 N. Y., 268, revsg. 31 App. Div., 94.)

The purpose of this section is to prevent any improper act or omission
on the part of the corporation or its officers which would result in securing
to a particular creditor a preference over its other creditors, but where
a ereditor has a just claim to which the corporation has no defense, and
he adopts the ordinary process and procedure of the court to enforce it,
which results in a judgment by default, it cannot be properly held to
be within the condemnation of the statute, unless the corporation or its
officers were guilty of some act besides mere non-resistance to the cred-
itor’s efforts to obtain the judgment. (Lopez v. Campbell, 163 N. Y., 340,
revsg. 18 App. Div., 427.)

This section does not prohibit a corporation, which is insolvent, and
has failed to pay its notes or other obligations when due, from executing
to one of its directors a general assignment without preferences, except
as authorized by the statute, for the benefit of creditors. (Munzinger v.
United Press, 52 App. Div., 338.)

The plaintiff in an action which is pending against a corporation at the
time when the latter makes an assignment for the benefit of creditors
becomes, upon subsequently recovering judgment against such corpora-
tion, a creditor thereof, and may maintain an action to set aside the
assignment upon the ground of fraud. (Munzinger v. United Press, 52
App. Div., 338.) .

The word “ obligations” used in this section, does not include open
running accounts for services rendered to the corporation under written
contracts fixing the rate of payment where the amount due at a given
time can be ascertained only by an examination of the books of the party

11
162 Proursirep Transrers To OFFICERS OR STOCKHOLDERS.

 

The Stock Corporation Law, § 48.

rendering the services, and by the bills presented therefor. (Munzinger
v. United Press, 52 App. Div., 338.) .

A foreign corporation has power to make a general assignment for the
benefit of creditors under the laws of this State, provided fhe assign-
ment is also valid under the law of the domicile of the corporation.
(Rogers v. Pell, 154 N. Y., 518, revsg. 89 Hun, 159.)

A resolution by the board of directors “that the company execute a
general assignment,” without expressly deputing any one to act, author-
izes its president to make an assignment for the company. (Rogers v.
Pell, 154 N. Y., 518, revsg. 89 Hun, 159.) ,

A corporation may loan its credit to its president or mortgage its prop-
erty for his debt, if the stockholders or the equitable owners of the stock
do nét object, and if no rights of creditors intervened. (Quee Drug Co.
v. Plaut, 55 App. Div., 87; Osborn v. Montelac Park, 89 Hun, 167; aff’d, 153
N. Y., 672.)

A transfer by the president of a corporation of the corporate property
in payment of his individual indebtedness will be upheld, provided his
act has-been authorized and rights of creditors are not violated. (Quee
Drug Co. v. Plaut, 55 App. Div., 87.)

When an officer of a corporation, having a valid claim against it which
he could have enforced but for the fact that he was then an officer of it,
and therefore within the restraint of the statute, transfers his claim to
another, so that the office and title cease to rest in the same person,
the claim becomes enforcible against the corporation, even fhough the
transferee is the wife of the transferrer, provided that the transfer was an
absolute one and made in good faith for a valuable consideration. (Jeffer-
son Co. Nat. Bk. v. Townley, 159 N. Y., 490, revsg. 92 Hun, 172.)

The provisions of this section, that “no stockholder of any such cor-
poration shall make any transfer or assignment of his stock therein to
any person in ‘contemplation of its insolvency,” are aimed only at trans-
fers made for the purpose of relieving the stockholder from his statu-
tory or contractual liability, and do not affect a bona fide sale of stock
by one who is. under no liability as stockholder to the corporation or its
creditors at the time of the transfer. (Sinclair v. Fuller, 158 N. Y., 607,
affg 9 App. Div., 297.)

In an action. by a judgment creditor under the foregoing section on
behalf of himself and all other creditors similarly situated, to set aside
certain transactions and judicial proceedings undertaken by an insolvent
corporation to enable a defendant, also a creditor of the corporation
to secure a preference, the fact that no other creditor of the corporation
appears in the action does not entitle the plaintiff to priority over the
other creditors in the payment of a judgment recovered. (Lodi Chemical
Co. v. National Lead Co., 41 App. Div., 535. .See, also, Lodi Chemical Co.
v. Charles H. Pleasants Co., 25 Misc., 97.)

Where officers of an insolvent corporation, in consideration of a fur-
ther advance in cash from a judgment creditor, agreed to give him
demand notes for the entire amount of his claim and to transfer cer-
tain accounts to him as security and gave several notes for such amounts
Prouipitep TRANSFERS To OrFicers oR STOCKHOLDERS. 163

 

The Stock Corporation Law, § 48,

 

as would enable such creditor to obtain judgment in a City Court upon a
short service of summons and refrained from putting the corporation
into a receivership until after judgment had been taken on the notes and
levies made, renders such judgments void. (Rossman vy. Seaver, 41 App.
Div., 603, aff’g 22 Misc., 661.) ,

An assignment with preference by a foreign corporation which does
not transact business within the State of New York, does not contravene
the statutory law of the State of New York, prohibiting transfers of prop-
erty by an insolvent corporation with an intent to give a preference, nor
is it repugnant to its general policy. (Matter of Hulbert Bros. & Co.,
38 App. Div., 323.) But, see section 60 of this law relative to foreign
‘corporations transacting business within the State.

The provision to the effect that no officer, director or stockholder of
a corporation shall make any transfer or assignment of its property to
‘any person in contemplation of its insolvency, applies to such a transfer
or assignment made by the corporation itself. (Munson v. Genesee
Iron & Brass Works, 37 App. Div., 203.)

Mortgages executed in violation of this section may be attacked by a
‘person who, after such mortgages were recorded, but on the same day,
obtained judgment in an action against the corporation to recover for
‘personal injuries. (Munson v. Genesee Iron & Brass Works, 37 App.
Div., 203.)

It seems that a general assignment for the benefit of creditors, executed
by a corporation to a director or stockholder thereof, is not repugnant
to this section; a transfer contemplated by the section is one which
‘is for the benefit of the director or stockholder, and operates in the
nature of 4 preference. (Linderman v. Hastings Card & Paper Co., 38
App. Div., 488.)

Where officers of an insolvent stock corporation have assigned accounts
of the corporation to creditors the latter are not entitled to retain the
-~proceeds on the ground that such assigned accounts were to take the
place of accounts which had been previously assigned as security for
loans made by such creditors and which had been unlawfully collected
by the corporation. (Hilton v. Ernst, 38 App. Div., 94.)

The president of a corporation has no power to determine whether a
general assignment for the benefit of creditors shall be made or to
-execute it unless authority be conferred upon him by the board of
‘directors, and where he attempts to do so without such authority, his
‘acts as against the stockholders and ereditors are absolutely void.
(Schaefer v. Scott, 40 App. Div., 438.)

The common-law right of an insolvent corporation to make a general
assignment for the benefit of creditors has been restored by the enact-
ment.of the foregoing section as amended in 1892, subject, however, to
the condition that the assignment must be without preferences. (Croll
v. Empire State Knitting Co., 17 App. Div., 282.)

An inhibition against transfers of property made in contemplation of
‘insolvency, entitles a permanent receiver, suing under this section, to
Tecover preferential cash payments made by the corporation subsequent ,

‘
164 Prourerrep TRANSFERS TO OFFICERS OR STOCKHOLDERS.

 

The Stock Corporation Law, § 48.

 

to the passage of chapter 564, Laws of 1890, section 48, but -before the
amendment of 1892 went into effect. (Stiefel v. N. Y. Novelty Co., 25
Misc., 221.)

Assignments of book accounts, made by an insolvent corporation in.
contemplation of insolvency and to give the assignee a preference, will
be set aside at~ the instance of judgment creditors of the corporation.
(Dudensing v. Jones, 27 Misc., 69.)

A payment made when a corporation is hopelessly insolvent to a trus-
tee for past services as general manager, and with a view to secure to
him a preference, is void. (Dwight v. Williams, 25 Misc., 667.)

A judgment creditor, whose execution has been returned unsatisfied,
may maintain an action to set aside an assignment for creditors, made:
by the corporation after it had, with knowledge of its insolvency, already
disposed of # considerable part of its property among its officers and
attorneys, and may secure payment of his judgment from the corporate-
property by virtue of a lien created by the issuing of the execution.
(Koechl y. Leibinger & Oehm Brewg. Co., 26 App. Div., 573. See, also,.
Same v. Same, 24 Misc., 298.)

In the case of the Troy Waste Mfg. Co. v. Harrison, 73 Hun, 528, it:
was held that a corporation cannot make, in contemplation of insolvency,
a general assignment for the benefit of creditors, even without prefer-
ences, but that case is no longer an authority. (Vanderpoel v. Gorman,
-140 N. ¥., 568; Home Bank v. Brewster & Co., 17 Misc., 442.) A corpo-
ration has the right under the foregoing section to make a general assign-
ment without preferences. (Id.)

Just prior to a general assignment by a corporation its president gave
to his wife and others a portion of its assets; held, that these transactions.
were part of a scheme to hinder, delay and defraud creditors, and should.
be set aside. (Home Bank v. Brewster & Co., 17 Misc., 442.)

A corporation which makes payments of money to some creditors with
the intent to hinder, delay and defraud other creditors, violates this.
section. (Stiefel v. N. Y. Novelty Co., 14 App. Div., 371.)

The provision forbidding a stockholder of a corporation to make “ any
transfer or assignment of his stock to any person in contemplation of its.
insolvency,’’ and declaring such “transfer, or assignment, or other act
done in violation of the foregoing provision to be void,” renders a transfer:
by a shareholder of his shares, in contemplation of the insolvency of the
corporation, void as to the persons injured by the transfer; but where
there was no fraud as between the transferrer and the transferee, nor
as against the corporation assenting to the transfer, the transfer must
be deemed to be valid; the purpose of the prohibition being to prevent.
solvent shareholders from escaping from their statutory liability to those
who were creditors of the corporation when the transfer was made, and
further to prevent them from escaping from their contractual liability to-
a corporation not assenting to the transfer. (Sinclair v. Dwight, 9 App.
Div., 297.)

Where a corporation suffers a judgment at the instance of a creditor
PrRon1BITED TRANSFERS To OFFICERS OB STOCKHOLDERS. 165

 

The Stock Corporation Law, § 48.

 

who, although not a director, substantially controls the company, the
judgment is void. (Olney v. Baird, 7 App. Div., 95, aff’g 15 Misc., 385.)

The payment by an insolvent corporation of a debt a few days before it
came due constitutes an intent to make a preference when it is shown,
‘that at the time of such payment, debts to other persons were due and
unpaid, and that the corporation did not have available assets from
which to pay the other debts, although the managers of the corporation
‘expected to get help through other persons. (Baker, as Receiver of Ft.
Ann Woolen Co., v. Emerson, 4 App. Div., 348.)

An insolvent corporation is not obliged to defend a suit brought against
it for a valid debt, to which there was no defense, for the sole purpose of
-defeating a preference. (Ridgway, as Receiver of Casper & Co., v. Symons,
.as Receiver of Robinson & Symons, 4 App. Div., 98.)

A mortgage is not invalid as made in contemplation of insolvency when,
-at the time of its execution, the officers of the corporation and its creditors
whose obligations were secured by such mortgage believed it to be solvent.
«New Britain Nat. Bank v. A. B. Cleveland Co., 91 Hun, 447.)

The officers of a corporation organized under our laws must administer
‘its property and its affairs in accordance with the laws of this State, and
the fact that the transfers of property of such corporation, in violation
-of the laws of the State of New York, were made in another State does
not render the act less fraudulent in law, nor does it relieve the officers
thereof from liability therefor. (McQueen v. New, 87 Hun, 206; Olmey v.
Baird, 7 App. Div., 95.)

The mere fact that a corporation, in contemplation of insolvency, has
‘paid creditors who are its officers in property belonging to the corpora-
‘tion, thus preferring such creditors contrary to the provisions of the
-statute, in the absence of proof of actual, intentional fraud, is insufficient
‘to justify the granting of an attachment. (Lexow v. St. Lawrence Marble
Co., 16 Mise., 133.)

The first part of section 48 absolutely prohibits the transfer of any
-eorporate property to an officer, director or stockholder of a corporation,
which shall have refused to pay any of its obligations when due, upon
-any other consideration than the full value of the property paid in cash.
That portion of the section contemplates the prevention of preferences to
a particular creditor or creditors of a corporation which is insolvent or
the insolvency of which is imminent. It does not declare invalid all
transfers of property on payments made to creditors of an insolvent cor-
poration, but only such as are made with the intent of giving a prefer-
-ence to one creditor over another. (Milbank v. De Riesthal, 82 Hun, 537.)

Where judgments were suffered to be recovered, and the purpose of
recovering them was to give the judgment creditors of the corporation
‘preference over other creditors, it is doubtful whether the levying upon
the property of the corporation by virtue of executions upon such judg-

_ nents was receiving the property of the corporation by means of any act
prohibited uy this section. (Matter of Gardner, a stockholder of the
Walker Tailoring Co., 86 Hun, 30.) s

Assignment of property by an insolvent corporation for the purpose
x

166 Prouipitep Transrers To Orricers or STOCKHOLDERS.

 

The Stock Corporation Law, § 48.

of paying its debts is a very different action from so disposing of its prop-
erty while solvent as to make further exercise of its franchises impos-
sible. (Vanderpoel vy. Gorman, supra, distinguishing People v. Ballard,
134 N. Y., 269, 294.)

If certain of the persons, for whose benefit an assignment of accounts.
due the corporation was made, after the corporation had refused to pay
its notes or other obligations when due, had ceased to be officers, directors.
or stockholders before the assignment, the same was not invalid as to
them. The statute distinguishes between a transfer to an officer or stock-
holder and one to a person holding neither of such positions. (Milbank v.
Welch, 74 Hun, 497.) To a stockholder or director a transfer of corporate: ;
property is forbidden, if the corporation shall have refused to pay any of
its notes or obligations when due, but to other creditors a transfer of
corporate property in payment of its debts is only prohibited ‘“‘ when the
corporation is insolvent or its insolvency is imminent, with the intent of
giving a preference to any particular creditor over other creditors of the
corporation.” (Id.)

A bill of sale in contemplation of insolvency is void. (Keiley v. M. & T.
Bk., 39 St. Rep., 438, 15 N. Y. Supp., 173.) It must appear that the corpo-
ration is insolvent. (Everson v. Eddy, 36 St. Rep., 763, 12 N. Y. Supp., 872.):

This section is intended to secure equality among creditors, and forbids.

all transfers that are intended to give preference or which have that
effect in reality. (Kingsley v. First N. Bk., 31 Hun, 329; Browver v. Har-
beck, 9 N. Y., 589; Robinson v. Bk. of Attica, 21 N. Y., 406.)
, An act done by a corporation in the ordinary course of its business,
uninfluenced by the state of its affairs, cannot be said to have been done
in contemplation of insolvency. (Dutcher v. I. & T. Nat. Bk., 59 N. Yi, 5.
See, also, Binns v. Williams, 88 N. Y., 660.) :

Proof that at the time of a transfer by a corporation it was insolvent is:
not conclusive evidence of a violation of this provision. The act must
have been done because of existing or contemplated insolvency. (Pauld-
ing v. Chrome Steel Co., 94 N. Y., 334.) ,

A transfer of the entire corporate property and effects, which has the
effect of terminating the regular business of the corporation, and was
made and accepted by the transferee with that purpose, is illegal as:
against creditors of the corporation. (Cole v. Millerton I. Co., 133 N. Y.,.
164; id., 38 St. Rep., 34.)

Judgment on offer of insolvent corporation is void. (Braem v. Mer. Nat..
Bk., 127 N. Y., 508, 40 St. Rep., 327; Nat. Broadway Bk. v. W. M. Co., 59
Hun, 470; Varnum v. Hart, 119 N. Y., 101.) But an insolvent corporation.
is not obliged to defend any suit brought to recover a valid debt. (1d.)
It is necessary to show active procurement by an officer of the corporation..
(Dickson v. Mayer, 35 St. Rep., 482, 26 Abb. N. C., 257, 12 N. Y. Supp., 651.):
If the creditor acted in good faith in making advances to pay off incum-
brances he will be protected. (King v. Union Iron Co., 33 St.~Rep., 545.)

This section prohibits a director of an insolvent corporation, who is also
a creditor, from obtaining a preferential lien through the process of an
attachment. (Throop v. Hatch Lith. Co., 125 N. Y., 530, dis? g Varnum
v. Hart, above.)
iy

New Certiricate or Stock; AprricaTion For. 16%

 

The. Stock Corporation Law, §§ 49, 50.

A foreign corporation is not subject to this provision, and an attach-
ment by a director was sustained. (Hill v. Knickerbocker Elec. L. & P.
Co., 45 St. Rep., 761, 18 N. Y. Supp., 813.)

A transfer of the corporate property by the authority of the frustees, or
directors, to themselves, may be set aside, in case it injures any public
interest, or the private interest of any shareholder or creditor, even
though such transfer was executed in good faith. (Skinner v. Smith,
134 N. Y., 240, and cases therein cited.) But this rule is not broad enough
to condemn all transfers executed by a purely private business corpora-
tion, with or to its trustees or directors, in good faith, in case no public
or private interest is harmed thereby. (Id.) Such contracts are not void
but voidable at the election of those who are affected by the fraud. (Id.)

 

§ 49. This section has been repealed by Laws of 1901,
Chapter 354.

The section thus stricken from the statute books enabled any stock-
holder during the pendency of mortgage foreclosure proceedings against
his corporation to pay a portion of the mortgage debt and to that extent
to become subrogated to the rights of the mortgage creditors. The repeal
of this section does not disturb the equitable right of subrogation which
has been recognized by the courts irrespective of statutory provisions.

Chapter 354, Laws of 1901, repealing section 49, contained a saving
clause, the full text of which’ is printed in the note under section 2 of
this law.

§ 50. Application to court to order issue of new in place
of lost certificate of stock.— The owner of a lost or destroyed
certificate of stock, if the corporation shall refuse to issue a new
certificate in place thereof, may apply to the supreme court, at any
special term held in the district where he resides, or in which the
principal business office of the corporation is located, for an order
requiring the corporation to show cause why it should not be
required to issue a new certificate in place of the. one lost or
destroyed. The application shall be by petition, duly verified by
the owner, stating the name of the corporation, the number and
date of the certificate, if known, or if it can be ascertained by the
petitioner; the number of shares named therein, to-whom issued,
and as particular a statement of the circumstances attending such
loss or destruction as the petitioner can give. Upon the presenta-
tion of the petition the court shall make an order requiring the
corporation to show cause, at a time and place therein mentioned,
why it should not issue a new certificate of stock in place of the one
described in the petition. A copy of the petition and order shall be
served on the president or other head of the corporation, or on the
‘

168 Oxprer or Court Upon Sucn APPLicaTIon.
The Stock Corporation Law, § 51.

 

 

secretary or treasurer thereof, personally, at least ten days before
the time for showing cause. ,

For form of bond of indemnity, see post, form No. 147.

(Former section 50, L. 1890, ch. 564, as amended by L. 1892, ch. 688.)

The title of the true owner of a lost or stolen certificate of stock may
be asserted against anyone subsequently obtaining its possession, although
the holder may be a bona fide purchaser. (Knox v. Eden Musee Co., 148
N. Y., 441.)

One who has lost his stock certificate, and finds the company unwilling
to replace it, may apply at a special term of the Supreme Court for an
order to show cause why a new certificate should not be given. The
court may, on the hearing, proceed summarily to hear and determine
the facts, and may make an order requiring the company to issue a new
certificate upon receiving from the petitioner a specified bond of indemnity.
(Kinnan .v. 42d St., M. & St. Nicholas Ave. R. Co., 140 N. Y¥., 183.) This
is not a remedy at law, but must be regarded as a cumulative, additional
and summary remedy of a purely equitable character, and to be admin-
istered by an equity court. (Id.) :

To confer upon the court jurisdiction to make an order in a proceeding
instituted under this and the preceding section, it must be proved that
the petitioner is the owner of the certificates and that they have been
lost or destroyed and cannot after due diligence be found. (Matter of
Biglin v. Friendship Association, 46 Hun, 224. See, also, Brisbane v. D.,
L. & W. R. R. Co., 25 Hun, 438; aff’d, 94 N. Y., 204.)

A corporation which has permitted a.transfer of stock upon a forged
power of attorney, and has canceled the original certificates, may be
compelled to issue new certificates; and, if it has no shares which it can
so issue, to pay the value thereof. (Pollock v. National Bank, 7 N. Y., 274.)

§ 51. Order of court upon such application,.— Upon the return
of the order, with proof of due service thereof, the court shall,
in a summary manner, and in such mode as it may deem advisable,
inquire into the truth of the facts stated in the petition, and
hear the proofs and allegations of the parties in regard thereto,
and if satisfied that the petitioner is the lawful owner of the num-
ber. of shares, or any part thereof, described in the petition, and
that the certificate therefor has been lost or destroyed, and cannot
after due diligence be found, and that no sufficient cause has been
shown why a new certificate should not be issued, it shall make an
order requiring the corporation, within such time as shall be
therein designated, to issue and deliver to the petitioner a new
certificate for the number of shares specified in the order, upon
depositing such security, or filing a bond in such form and with
such sureties as to the court shall appear sufficient to indemnify any
person other than the petitioner who shall thereafter be found to
be the lawful owner of the certificate lost or destroyed; but such
provision requiring security to be deposited. or bond filed is to be
>

Financia StaTEMENT oF STOCKHOLDERS. 169

 

The Stock Corporation Law, § 52.

 

construed as excluding an application made by a domestic munici-
pal corporation or by a public officer in behalf of such corporation ;
and the court may direct the publication of such notice, either be- -
fore or after making such order as it shall deem proper. Any per-
‘son claiming any rights under the certificates alleged to have been
lost or destroyed shall have recourse to such indemnity, but in any
Application under the provisions of this act in which a domestic
municipal corporation or a public officer in behalf of such corpora-
tion, shall be by the foregoing provisions of this section, excused
from depositing security or filing a bond, such municipal corpora-
tion shall be liable for all damages that may be sustained by any
person, in the same case and to the same extent as sureties to a bond
or undertaking would have been, if such a bond or undertaking had,
been filed ; and the corporation issuing such certificate, shall be dis-
charged from all liability to such person upon compliance with
‘such order; and obedience to the order may be enforced by attach-
ment against the officer or officers of the corporation on proof: of his
or their refusal to comply with it.

(Former section 51, L. 1890, ch. 564, re-enacted without change by L.
"1892, ch. 688; am’d by L. 1905, ch. 35.) : :

In 1905 the provisions respecting domestic municipal corporations
were inserted.

The provisions relative to the issue of a new certificate of stoek in
place of one lost, do not affect. the liability of a corporation to its
creditors under the provisions of section 1917 of the Code of Civil Pro-
cedure. (Rolston v. Central Park, N. & E. R. RB. Co., 21 Misc., 439,
-aff’g 20 Misc., 656.) .

§ 52. Financial statement to stockholders.— Stockholders owning five
per centum of the capital stock of any corporation other than a monied
corporation, not exceeding one hundred thousand dollars, or three per
-centum where it exceeds one hundred thousand dollars, may make a
-written request to the treasurer or chief fiscal officer thereof, for a
statement of its affairs, under oath, embracing a particular account of
-all its assets and liabilities, and the treasurer shall make such state-
ment and deliver it to the person presenting the request within thirty
ays thereafter, and keep on file for twelve months thereafter a copy
-of such statement, which shall at all times during business hours be
‘exhibited to any stockholder demanding an examination thereof; but
‘the treasurer or such chief fiscal officer shall not be required to deliver
more than one such statement in any one year. The supreme court, or
sany justice thereof, may upon application, for good cause shown, extend
the time for making and delivering such certificate. For every neglect
or refusal of the treasurer or other chief fiscal officer thereof to comply
-with the provisions of this section he shall forfeit and pay to the person
making such request the sum of fifty dollars, and the further sum of
ten dollars for every twenty-four hours thereafter until such statement
shall be furnished.

(Former section 52, L. 1890, ch. 56, as amended by L, 1892, ch. 688.)

It may be that the Supreme Court, independently of statute, by virtue of
its supervisory power, has the right to order an inspection of the books of
account of a corporation by a stockholder; but such an order will not be
granted by the court unless it appears that the applicant is the owner of
170 Stock Booxs or Forrren CorporaTIons.

 

The Stock Corporation Law, § 53.

 

the amount of stock specified in the foregoing section, and has made a.
written request to the treasurer of the corporation for a statement of its
affairs, under oath, embracing a particular account of all its assets and
liabilities, and that such treasurer has not within thirty days delivered.
such statement. (People ex rel. Clason v. Nassau Ferry Co., 86 Hun, 128.)

A detailed statement of the assets and liabilities of the corporation is.
sufficient; the business transactions of the corporation are not required
to be stated. (French v..McMillan, 43 Hun, 188.) Omission to demand
sworn statement merely waives verification. (McCrea v. Bedell, 9 Misc.,.
372.) a

Where a stockholder owning more than five per centum of the capital
stock makes a written request for a financial statement and the treasurer
negle¢ts to deliver the same within thirty days, the fact that he had
resigned before the expiration of such period is no defense. (Osborne v..
Gilliams, 33 Misc., 312.)

When a proper demand for a financial statement has been made, but.
the corporation had been dissolved before the expiration of the thirty
days, no statement need be made, as a defunct corporation no longer has
a treasurer and cannot through him or through any one be called upon
to render such a statement. (Osborne v. Gilliams, 33 Misc., 312; McCrea
v. Bedell, 9 Misc., 372.),

The furnishing to a stockholder by the treasurer of a stock corporation
of an unverified ‘statement of its affairs,’ after a demand for a state-
ment under oath, made by the stockholder and the refusal of the treas-
urer to furnish any other statement, although the defect was pointed out
to him, subjects him to the statutory penalty of fifty dollars for a fail--
ure to furnish a legal statement and the further penalty of ten dollars
for every day’s neglect, up to the time when an action for the penalty
is begun, notwithstanding the stockholder’s delay in bringing his action..
(St. John v. Eberlin, 23 Misc., 585.)

§ 53. Stock books of foreign corporations. — Every for-
eign stock corporation having an office for the transaction of busi-
ness in this state, except moneyed and railroad corporations, shall
keep therein a book to be known as a stock book, containing the
names, alphabetically arranged, of all persons who are stockholders.
of the corporation, showing their places of residence, the number
of shares of stock held by them respectively, the time when they re--
spectively became the owners thereof, and the amount paid thereon.
Such stock book shall be open daily, during business hours, for the-
inspection of its stockholders and judgment creditors, and any
officer of the state authorized by law to investigate the affairs of
any such corporation. If any such foreign stock corporation has.
in this state a transfer agent, whether such agent shall be a corpora-
tion or a natural person, such stock book may be deposited in the
office of such agent and shall be open to inspection at all times
during the usual hours of transacting business, to any stockholder,
Stock Booxs or Forzten Corporations. 171

 

The Stock Corporation Law, § 53.

 

Fadement creditor or ‘officer of the state authorized by law to in-
vestigate the affairs of such corporation. For any refusal to allow
such book to be inspected, such corporation and the officer or agent
so refusing shall each forfeit the sum of two hundred and fifty dol-
lars to be recovered by the person to whom such refusal was made.

(Former section 56, L. 1890, ch. 564, re-enacted as section 53 by L. 1892,
ch. 688, and thus amended by L. 1897, ch. 384.)

For other provisions affecting foreign corporations, see the index.

Although the stock book of a foreign corporation is required to be kept
open daily during business hours, a different provision governs domestic
corporations whereby the stock book of such corporations is to be kept
open during only three hours each day for inspection of stockholders and
judgment creditors. (Stock Corporation Law, section 29.)

The State courts have no jurisdiction to grant the application of a
stockholder of a foreign corporation, not made in an action at law or in
equity, for a writ of mandamus to compel an inspection by him of the
books and records of such corporation. (Matter of Rappleye, 43 App.
Div., 84.)

It is the absolute duty of a ‘nistet agent in this State to exhibit at
all reasonable times during the usual business hours, to any stockholder,
when required, the transfer book and a list of the stockholders, if in his
power so to do. (Kenedy v. Chicago, Rock Isl. & Pacific R. R. Co., 14
Abb. N. C., 326.) A demand for the exhibition of the stock book is not
sufficient as a demand for the transfer book. (Id.)

The duties imposed by this section are put specifically upon the transfer
agents, and not upon the corporations or the officers of the corporations
which they represent. (People ex rel. Hatch v. Lake Shore & M. S. Ry.
Go., 11 Hun, 1; People ex rel. Field v. No. Pac. R. R. Co., 50 Super. Ct., 456.)

Jurisdiction over foreign corporations is limited to such as ‘is con-
ferred by the statutes of the State, as we have no general or common-
law jurisdiction over them of a visitorial character or in the regulation
‘of their internal affairs. (Matter of Crosby, 43 App. Div., 618, revsg.
28 Misc., 300.) ;

A stockholder of a foreign corporation, having an office for the trans-
action of business in the State, but which does not keep therein the
stock book required by law, may inspect books kept by its transfer
agent and by its registrar of transfers of stock in this State containing
some or all of the information required to be shown by a stock book
when kept, as these books may be deemed to have been prepard by the
foreign corporation. He may also inspect papers officially in the
possession of the assistant secretary and treasurer of the corporation -
in its New York office and which contain similar information. (People
ex rel, Singer v. Knickerbocker Trust Co., 38 Misc., 446.)

Where a stockholder in a foreign corporation, having its only office for
the transaction of business within the State located in New York city,
demands an inspection of its stock book, and the vice-president in charge
states that the book is in the hands of an accountant'in Brooklyn to be
written up, offers to give the stockholder a letter to such accountant
or to have the book at the main office of the company in Jersey City on
172 Liasinities oF STOCKHOLDERS.

 

The Stock Corporation Law, § 54.

 

the following Wednesday, the stockholder is entitled to recover the
penalty imposed. (Recknagel v. Empire Self-Lighting Oil Lamp Co., 24
Misc., 193.)

When a foreign corporation has failed to keep in its office a stock book
for the inspection of stockholders, a person in the office who is not shown
to have been an officer of the corporation cannot be made liable for the
statutory penalty imposed upon a refusal to show the stock book, by
proof that he answered a demand for it by saying that the book was not
in the office. (Greene v. Shain, 22 Misc., 720.)

A mandamus to compel exhibition of transfer books should be directed
to the transfer agents only. (People ex rel. Hatch v. L. S., ete., above.)

The court may order a reference for the purpose of obtaining better
information before proceeding. (People ex rel. Del. Mar. v. St. L. & San F.
Ry. Co., 44 Hun, 552.) ,

In a proceeding under this section, it is immaterial whether the transfer
of stock to the relator was merely colorable or whether\any consideration
was paid therefor. (People ex rel. Harriman v. Paton, 20 Abb. N. C., 172.)
An objection to exhibit the transfer books, on the ground that the appli-
cant’s motives are hostile to the corporation, is not a valid one. (1d.)

§ 54. Liabilities of stockholders.— Every holder of capi-
tal stock not fully paid, in any stock corporation, shall be per-
sonally liable to its creditors, to an amount equal to the amount
unpaid on the stock held by him for debts of the corporation con-
tracted while such stock was held by him. As to existing corpora-_
tions the liability imposed by this section shall be in lieu of the
liability imposed upon stockholders of any existing corporation,
under any general or special law, (excepting laws relating to
moneyed corporations, and corporations and associations for bank-
ing purposes,) on account of any indebtedness hereafter contracted
or any stock hereafter issued; but nothing in this section contained
shall create or increase any liability of stockholders of any existing
corporation under any general or special law. The stockholders of
every stock corporation ‘shall jointly and severally be personally
liable for all debts due and owing to any of its laborers, servants
or employes other than contractors, for services performed by them
for such corporation. Before such laborer, servant or employe
shall charge such stockholder for such services, he shall give him
notice in writing, within thirty days after the termination of such
services, that he intends to hold him liable, and shall commence an
action therefor within thirty days after the return of an execution
unsatisfied against the corporation upon a judgment recovered
against it for services. No person holding stock in any corporation
as collateral security, or as executor, administrator, guardian or
trustee, unless he shall have voluntarily invested the trust funds
N

LiasiLities oF STOCKHOLDERS. 173

 

The Stock Corporation Law, § 54.

 

in such stock, shall be personally subject to liability:as a stock-
holder; but the person pledging such stock shall be considered
the holder thereof and shall be liable as stockholder, and the es-
tates and funds in the hands-of such executor, administrator,
guardian or trustee shall be liable in the like manner and to the.
same extent as the testator or intestate, or the ward or person in-
terested in such trust fund would have been, if he had been living
and competent to act and held the same stock in his own name,
unless it appears that such executor, administrator, guardian or
trustee voluntarily invested the trust funds in such stocks, in which
case he shall be personally liable as a stockholder.

(Former section 57, L. 1890, ch. 564, as amended by L. 1892, ch. 688, and
L. 1901, ch. 354.) ,

Prior to 1892 it was necessary to file a certificate of full payment of
capital stock in order to relieve stockholders from personal liability. This
requirement of the statute was eliminated by Laws of 1892, Chapter 688,
and the liability feature was modified so as to read as follows: ‘“ The
stockholders of every stock corporation shall, jointly and severally, be per-
sonally liable to its creditors, to an amount.equal to the amount of the
stock held by them respectively, for every debt of the corporation, until the-
whole amount of its capital stock issued and outstanding at the time such
debt was incurred shall have been fully paid in.” But this burdensome lia-
bility has also been abolished by Laws of 1901, chapter 534, amending the
foregoing section, so that now each stockholder’s liability is limited to
the amount, if any, remaining unpaid upon his stock, and only for debts.
of. the corporation’ contracted while such unpaid stock was so held.
Another noteworthy change effected by the amendment of 1901 was the
insertion of the provisions that this limited liability of stockholders is in
lieu of any liability heretofore imposed upon stockholders of existing cor-
porations by any general or special law on account of any indebtedness
hereafter contracted or any stock, hereafter issued, and that nothing
contained in the amended section shall create or increase any liability of
stockholders of any existing corporation.

Section 42 of this law provides that stock may be issued for property -
and that “in the absence of fraud in the transaction the judgment of the.
directors as to the value of the property purchased shall be conclusive.”

As to certificate of payment of one-half the capital stock by a corpora-
tion organized under the Business Corporations Law, see that law, sec-
tion 5.

For acts relative to payment of wages weekly and in cash and prefer-
ence in payment thereof, see miscellaneous statutes, post.

In view of the mitigation of the liability of stockholders made in section
54 by the last amendment the decisions in the following cases, which
arose prior to said amendment of 1901, have been in great part superseded,
and this fact should be borne in mind in reading caid.cases. For other
decisions applicable to this section prior to its modification, see fourth
edition of ‘“‘ White on Corporations,” pages 152-154.
174 LiaBititigs oF STOCKHOLDERS.

 

 

The Stock Corporation Law, § 54.

 

A stockholder is not primarily liable for the debts of the corporation.
It is only after the creditor has obtained judgment against the com-
pany, issued execution, which has been returned unsatisfied, that the
stockholder becomes liable. (Close v. Potter, 155 N. Y., 145, revsg- 11
Misc., 729; United Glass Co. v. Levett, 24 Misc., 429.)

Proof that the holder of notes made in the name of a corporation knew
that the corporation was insolvent and that the notes had been issued
after such insolvency had become known, and that he was aware that the
stock had not been fully issued or paid for, and that the notes were
payable to the corporation and were transferred to himself without other
indorsement than that of the corporation, are sufficient to raise a ques-
tion of fact as to whether he is a bona fide holder. (Close v. Potter, 155
N. Y., 145, revsg. 11 Misc., 729.)

The statutory cause of action for the enforcement of stockholders’
personal liability is not governed by the rules controlling commercial
paper; and it seems that the rules applicable to a bona fide holder as
against the maker are not available to a plaintiff seeking to enforce
stockholders’ liability, based upon a note made by the corporation. (Close
vy. Potter, 155 N. Y., 145, revsg. 11 Misc., 729.)

In an action against a stockholder of an insolvent corporation to enforce
a debt of the corporation upon the ground that the whole amount of the
authorized capital stock has never been paid in, proof that certain stock
was never in fact paid for, either in cash or property, is competent. (Her-
bert v. Duryea, 34 App. Div., 478.)

Where an action to enforce the liability of a stockholder under sections
54 and 55 the complaint alleges that at the time the debt was created the
defendant was a stockholder of the corporation and contains other suffi-
cient allegations it need not allege that the defendant ceased to be a
stockholder, if such was the fact, nor that the action was brought within
two years, as these latter are matters of defense. (¢Citizens’ Bank of
Buffalo v. Weinberg, 26 Misc., 518.)

The assignee of a creditor and holder of the notes of a business cor-
poration whose capital stock has never been fully paid, and which has
been dissolved, after the appointment of the receiver, is entitled to main-
tain an action against a stockholder, who has paid nothing for his stock,
in order to recover a debt of the corporation, not exceeding the par value
of his stock. (Thompson v. Nicolai, 21 Misc., 700.) It is unnecessary
for a plaintiff to join in his action, other creditors, the corporation, its
receiver, or other stockholders; nor, in view of the dissolution, need he
show an execution against the corporation unsatisfied. (Thompson v.
Nicolai, 21 Misc., 700.)

An attorney and counsellor-at-law, regularly employed at a fixed salary,
is not an employe. (Bristor v. Smith, 158 N. Y., 157, aff’g 29 App. Div.,
624.)

An attorney-at-law employed, but not exclusively, by a corporation, at
a weekly salary, and not having his office in any building nor upon any
property ‘of the corporation, cannot maintain an action under section
54 of the Stock Corporation Law, making stockholders personally liable
for debts due to its laborers, servants or employes for services, as he is
neither a laborer, servant nor employe. (Bristor v. Kretz, 22 Misc., 55.)
:

LraBiLitiges oF STOCKHOLDERS. 175

 

The Stock Corporation Law, § 54.

 

In an action brought by a judgment creditor to enforce the statutory
liability imposed by section 54 before the last amendment, a defense, first,
that the corporation had property subject to levy and sale under the execu-
‘tion when it was returned unsatisfied;:and, second, that the return was
made by the sheriff acting in collusion with the plaintiff, can only be sus-
‘tained by establishing both propositions. (Berwind-White Coal Mining
‘Co. v. Wadsworth, 27 App. Div., 550.) '

In an action against a stockholder whose stock has not been paid for
‘In money or property as required by the statute, to recover for legal
services rendered the corporation by the plaintiff’s assignors, the fact
that one of the plaintiff’s assignors is a stockholder of the corporation
‘does not preclude a recovery, where it appears that the employment and
services of the plaintiff’s-assignors were joint and not several. (Mont-
gomery v. Brush Electric Illg. Co., 48 App. Div., 12; aff'd 168 N. Y., 657.)

A stockholder is liable for debts when his stock has been issued for
‘property which was substantially and intentionally overvalued. (White,
-Corbin & Co. v. Jones, 45 App. Div., 241; Nat’l] Tube Works Co. v. Gilfillan,
124 N. ¥., 302. See, also, Moosbrugger v. Walsh, 89 Hun, 564; Briggs v.
‘Cornwell, 9 Daly, 439; Briggs v. Waldron, 83 N. Y., 582; McDowell v.
‘Sheehan, 129 N. Y., 200; Herbert v. Duryea, 34 App. Div., 479.) These
“eases arose prior to the enactment of chapter 354, Laws 1901.

If a shareholder, in contemplation of the insolvency of .a corporation,
in regpect to which he is under some liability as a shareholder, under
section 54, supra, or in case his stock has not been fully paid for, assigns
his shares to an irresponsible person for the purpose of escaping liability,
‘he remains liable to the then existing creditors of the corporation. (Sin-
elair v. Dwight, 9 App. Div., 297.)

Where many creditors of an insolvent corporation have brought separate
-actions against’ stockholders who are severally individually liable for its
debts, the Supreme Court has power, at the instance of a creditor suing
on behalf of himself and of all other creditors, to secure an accounting:
-and an adjudication as to the respective liabilities of the respective stock-
holders, to restrain the creditors who have brought individual actions
from the further prosecution of their actions, to the end that the rights
of all the creditors and the liabilities of all the stockholders may be
adjudged in one action. (Bagley & Sewall Co. v. Ehrlicher, 8 App. Div.,
581.)

The issuing and return of an execution against a corporation is a con-
dition precedent to the right of a judgment creditor to maintain an action
against a stockholder of such corporation to recover his debt, and before
a stockholder of a corporation can be made liable for such debt it must
appear that the judgment creditor has attempted in good faith to collect
his judgment from the corporation. (Berwind-White Coal Mining Co. v.
‘Ewart, 90 Hun, 60.)

The fact that a stockholder was induced by fraud to subscribe for and
‘take his stock is no defense to an action by a creditor of the corporation
‘to enforce his individual liability. (Moosbrugger v. Walsh, 89 Hun, 564.)

The majority stockholders owe to the minority much the same duty
-which directors owe to all the stockholders. All must be permitted to
share equally in the benefits, and the law requires, both from the officers
176 Limitation oF StocKHOLDER’s LiaBILiry.

 

The Stock Corporation Law, § 55.

 

of the corporation and the majority stockholders, the utmost good faith
in the management and control of the corporate business and property.
But between themselves stockholders owe no duty to each other, and in
the purchase and control of his stock or any of the corporate obligations.
each stockholder acts for himself, and he is in no sense a trustee for
others. (Farmers’ Loan & Trust Co. v. N. Y. & N. Ry. Co., 78 Hun, 213;.
Gamble v. Queens Co. Water Co., 123 N. Y., 91. See, also, 150 N. Y., 410.)

§ 55. Limitation of stockholder’s liability. — No action.
shall be brought against a stockholder for any debt of the cor-
_ poration until judgment therefor has been recovered against the:
corporation, and an execution thereon has been returned unsatisfied
in whole or in part, and the amount due on such execution shall be
the amount recoverable, with costs against the stockholder. No
stockholder shall be personally liable for any debt of the corpora-
tion not payable within two years from the time it is contracted,
nor unless an action for its collection shall be brought against the:
corporation within two years after the debt becomes due; and no
action shall be brought against a stockholder after he shall have
ceased to be a stockholder, for any debt of the corporation, unless
brought within two years from the time he shall have ceased, to be-
a stockholder.

(Former section 58, L. 1890, ch. 564, re-enacted with only the number
changed, by L. 1892, ch. 688.)

Failure to proceed to judgment and execution against a corporation,
before bringing an action against a stockholder, cannot be excused except
when the performance of the condition is impossible. (United Giass Co..
v. Vary, 152 N. Y., 121, aff’g 79 Hun, 103.) ,

The exemption of stockholders from personal liability for debts of the-
corporation, under the act of 1848, chapter 40, unless a suit shall be-
brought for the collection thereof against the company within one year
after the debt shall become due, was preserved as to a debt contracted
prior to the taking effect of the Stock Corporation Law of 1890, and, as
to such a debt, was not affected by the substitution of the words “two.
years” for “one year” in the latter act. (Close v. Potter, 155 N. Y., 145,.
revsg. 11 Misc., 729.) :

The giving of renewal notes by a corporation does not operate to
prevent the running of the statutory limitation upon stockholders’ lia-
bility for the original indebtedness. (Close v. Potter, 155 N. Y., 145
revsg. 11 Misc.,°729.)

A court of equity will not enforce specific performance of a contract:
which recites that “in consideration of one dollar to me paid by the
Central Fireworks Company, and of the agreement upon the part of°
that corporation to purchase from me certain shares of the stock of the-
Consolidated Fireworks Company of America,” the subscriber covenanted
with the Central Fireworks Company that, for twenty years next ensuing,.
Noumper oF SHares, CHANGE OF. 177

 

The Stock Corporation Law, § 56.

 

he would not engage, either directly or indirectly, as principal, partner,
shareholder, officer, agent or employe, in the manufacture or sale of
fireworks, or of materials, machinery or appliances for the production of
the same. (Central Fireworks Co. v. Charlton, 42 App. Div., 104.)

An action does not lie in favor of all the creditors of the corporation,
but only in favor of that class who have'a debt payable within two years
‘from the time it was contracted and who have secured judgment and
have had executions returned unsatisfied, and, if the action is against
a stockholder who has ceased to be such, it. must be brought within
two years from the time he ceased to be such stockholder. (Citizens’
Bank of Buffalo v. Weinberg, 26 Misc., 518.)

Under Laws 1848, chapter 40, section 24, it was held that the complaint
need not allege that the defendant was a stockholder within two years
prior to the commencement of the action. (Castner v. Duryea, 16 App.
Div., 249.) ,

In order to be entitled to a recovery from a stockholder, the issuance and
return unsatisfied of an execution on the judgment which is the founda-
tion of the suit, must be shown. (Terry v. Rothschild, 83 Hun, 486.)

This section treats the corporation as the primary debtor and the liabil-
ity of the stockholder as ultimate and subsidiary. (Handy v. Draper, 89
N. Y., 337.) Ny

The time within which an action must be commenced begins to run on
the day when the debt first became due. (Hardman v. Sage, 124 N. ¥.,
25; Jagger Iron Co. v. Walker, 76 N. Y., 522.) :

The statute does not begin to run in favor of a stockholder until after
the return of execution against the, corporation. (Handy v. Draper, 89
N. Y., 334.)

A proceeding affecting only the property of the corporation attached
and execution against that property is not a compliance with the con-
dition of this section. (Rocky Mt. Nat. Bk. v. Bliss, 89 N. Y., 338.)

Compliance with the condition precedent is excused when rendered
legally impossible. (Skellington v. Howland, 53 N. Y., 371; Kineaid v.
’ Dwinelle, 59 N. Y., 548; Cuykendall v. Corning, 88 N. Y., 129.)

If a stockholder is divested of his interest in the corporation by judg-

ment of dissolution the time limited begins to run from the date of entry.

of such judgment. (Hollingshead v. Woodward, 107 N. Y., 96.)

§ 56. Increase or reduction of number of shares.
—The number of shares into which the capital stock of any stock
corporation is divided may be increased or reduced by a two-thirds
vote of all stock duly represented at a meeting held and conducted
in like manner, and upon filing a like certificate, as required for

‘the increase or reduction of its capital stock. If such increase or

‘reduction of the number of shares be so authorized, the corpora-

tion shall issue to each stockholder certificates for as many shares

of the new stock as equal in par value the shares of the old'stock

held by him, upon surrender and cancellation of such old stock.
12

:
178 Votuntary DissoLurion.

 

The Stock Corporation Law, § 57.

 

This section does not authorize the increase or reduction of the
capital stock of such corporation.

(New section, added by L. 1893, ch. 196, and amended by L. 1901,
ch. 354.)

For form of certificate, see post, form No. 53.
Laws 1901, chapter 354, amending this section, made no substantial
change.

§ 57. Voluntary dissolution.— Any stock corporation,
except a moneyed or a railroad corporation, may be dissolved be-
fore the expiration of the time limited in its certificate of incor-
poration or in its charter as follows: The board of directors of any
such corporation may at a meeting called for that purpose upon, at
least, three days’ notice to each director, by a vote of a majority
-of the whole board, adopt a resolution that it is in their opinion
advisable to dissolve such corporation forthwith, and thereupon
shall call a meeting of the stockholders for the purpose of voting
upon a proposition that such corporation be forthwith dissolved.
Such meeting of the stockholders shall be held, not less than thirty
nor more than sixty days after the adoption of such resolution,
. and the notice of the time and place of such meeting so called by
_the directors shall be published i in one or more newspapers pub-

lished and circulating in the county wherein such corporation has
its principal office, at least once a week for three weeks successively
next preceding the time appointed for holding such meeting, and
on or before the day of the first publication of such notice, a copy
thereof shall be served personally on each stockholder, or mailed
to him at his last-known post-office address. Such meeting shall
be held in the city, town or village in which the last preceding an-
nual meeting of the corporation was held, and said meeting may, om
the day so appointed, by the consent of a majority in interest of
the stockholders present, be adjourned from time to time, and
notice of such adjournment shall be published in the newspapers
in which the notice of the meeting is published. If at any such
meeting the holders of two-thirds in amount of the stock of the
corporation, then outstanding, shall, in person or by attorney, con-
sent that such dissolution shall take place and signify such consent,
in writing, then, such corporation shall file such consent, attested
by its secretary or treasurer, and its president or vice-president,
together with the powers of attorney signed by such stockholders
executing such consent by attorney, with a statement of the names
and residences of the then existing board of directors of said cor-
Voxtuntary Disso.urion. 179

 

The Stock Corporation Law, § 57.

 

poration, and the names and residences of its officers duly verified
by the secretary or treasurer or president of said corporation, in
the office of the secretary of state. The secretary of state shall
‘thereupon issue to such corporation, in duplicate, a certificate of
the filing of such papers and that it appears therefrom that such
corporation has complied with this section in order to be dissolved,
and one of such duplicate certificates shall be filed by such cor-
poration in the office of the clerk of the county in which such cor-
poration has its principal office; and thereupon such corporation
shall be dissolved and shall cease to carry on business, except for
the purpose of adjusting and winding up its business. The board
of directors shall cause a copy of such certificate to be published
at least once a week for two weeks in one or more newspapers pub-
lished and circulating i in the eounty in which the principal office
of such corporation is located, and at the expiration of such -publi-
cation, the said corporation by its board of directors shall proceed
to adjust and wind up its business and affairs with power to carry
‘out its contracts and to sell its assets at public or private sale, and
to apply the same in discharge of debts and obligations of such
corporation, and, after paying and adequately providing for the
payment of such debts and obligations, to distribute the balance
of assets among the stockholders of said corporation, according to
their respective rights and interests. Said corporation shall never-
theless continue in existence for the purpose of paying, satisfying
and discharging any existing debts or obligations, collecting and
’ distributing its assets and doing all other acts required in order to
adjust and wind up its business and affairs, and may sue and be
sued for the purpose of enforcing such debts or obligations, until
its business and affairs are fully adjusted and wound up. After
paying or adequately providing for the debts and obligations of
the corporation the directors may, with the written consent of the
holders of two-thirds in amount of the capital stock, sell the re-
maining assets or any part thereof to a corporation preanized under
the laws of this or any other state, and engaged in a business of the
same general character, and take in payment therefor the stock or
bonds or both of such corporation and distribute them among the
stockholders, in lieu of money, in proportion to their interest
therein, but no such sale shall be valid as against any stockholder,
who, within sixty days after the mailing of notice to him of such
sele shall. apply to the supreme court in the manner provided by
section thirty-three of this act, for an appraisal of the value of his
180 Mrrerr; Cuanes or Prace or Business.

The Stock Corporation Law, §§ 58, 59.

interest in the assets so sold; unless within thirty days after such
appraisal the stockholders consenting to such sale, or some of them,.
shall pay to such objecting stockholder or deposit for his account,
in the manner directed by the court, the amount of such appraisal
and upon such payment or deposit the interest of such objecting
stockholder shall vest in the person or persons making such pay-
ment or deposit.

(New section, added by L. 1896, ch. 932, as amended by L. 1900, ch..
760.)

For form of papers under this section, see form No. 141.

For judicial dissolution, see Code Civil Procedure, sections 2419-2431,.
post.

§ 58. Merger.— Any domestic stock corporation and any foreign
stock corporation authorized to do business in this state lawfully own-
ing all the stock of any other stock corporation organized for, or
engaged in business similar or incidental to that of the possessor cor-
poration may file in the office of the secretary of state, under its com--
mon seal, a certificate of such ownership, and of the resolution of its:
board of directors to merge such other corporation, and thereupon
it shall acquire and become, and be possessed of all the estate, prop-
erty, rights, privileges and franchises of such other corporation, and
they shall vest in and be held and enjoyed by it as fully and entirely
and without change or diminution as the same were before held and
enjoyed by such other corporation, and be managed and controlled
by the board of directors of such possessor corporation, and in its
name, but without prejudice to any liabilities of such other corpora-
tion or the rights of any creditors thereof. Any bridge corporation
may be merged under this section with any railroad corporation
which shall have acquired the right by contract to run its cars over
the bridge of such bridge corporation.

(New section, added by L. 1896, ch. 932, as amended by L. 1900, ch. 476,.
and L. 1902, ch. 98.)

Prior to the amendment of 1902 the provisions of this section applied only
to domestic corporations.

For form of certificate of merger, see form No. 154.

§ 59. Change of place of business.— Any stock corpo-
ration now existing or hereafter organized under the laws of this
_ State, except moneyed corporations, may at any time change its
principal office and place of business from the city, town or county
named in its certificate of incorporation, or to which it may have
been changed under the provisions of this section, to any other
city, town or county in this state, in which it may desire to actually
transact and carry on its regular business from day to day, pro-
vided, and such change has been authorized, either by unanimous
Forrten Corporations; LiaBititizs or Orricers, ETc. 181

 

The Stock Corporation Law, § 60.

 

consent of the stockholders expressed in writing and duly acknowl-
-edged and filed in the office of the secretary of state, or by a vote of
the stockholders of said corporation at a special meeting of stock-
holders called for that purpose. When such change shall be author-
ized by the stockholders as herein provided, the president and
secretary and a majority of the directors of such corporation shall
Signa certificate stating the name of said corporation, the city,
town and county where its principal office and place of business
was originally located, and to which it may have been subsequently
‘changed, and the city, town and county to which it is desired to
-change its said principal office and place of business, and that it is
the purpose of said corporation to actually transact and carry on its
regular business from day to day at such place, and that such
change has been authorized as herein provided, and the names of
the directors of said corporation and their respective places of
residence which certificate shall be verified by the oaths of all the
persons signing the same, and when so signed and verified, shall be
filed in the office of the secretary of state and a duplicate thereof in
the office of the clerk of the county from which said principal office
and place of business is about to be removed or changed, and
another in the office of the clerk of the county to which said removal
or change is to be made, and thereupon the principal office and
place of business of such corporation shall be changed as stated in
said certificate.

(New section, added by L. 1896, ch. 929, am’d by L. 1905, ch. 489.)

The permission to change place of business by unanimous consent wag
inserted in 1905.

For form of certificate of change of place of business, see post, form No, 142.

§ 60. Liabilities of officers, directors and stockholders of
foreign corporations. — Except as otherwise provided in this
chapter the officers, directors and stockholders of a foreign stock
corporation transacting business in this state, except moneyed and
railroad corporations, shall be liable under the provisions of this
chapter, in the same manner and to the same extent as the officers,
directors and stockholders of a domestic corporation, for:

1. The making of unauthorized dividends;

2. The creation of unauthorized and excessive indebtedness ;

8. Unlawful loans to stockholders ;

4, Making false certificates, reports or public notices ;

5. An illegal transfer of the stock and property of such corpo-
ration, when it is insolvent or its insolvency is threatened ;

6. The failure to file an annual report.

Such liabilities may be enforced in the courts of this state, in
the same manner as similar liabilities imposed by law upon the
officers, directors and stockholders of domestic corporations.

(New section, added by L. 1897, ch. 384.)
182 i Partity Par Stock.

 

=

The Stock Corporation Law, § 62.

For other provisions affecting foreign corporations, see references
thereto in the index under the heading “ Foreign Corporations.” —

The foregoing section subjects foreign corporations to the provisions of
sections 23, 25, 30, 31 and 48 of the Stock Corporation Law. Such corpora-
tions are also required to comply with the provisions of sections 15 and
16 of the General Corporation Law.

§ 61. Dissolution by incorporators.— The incorporators
named in any certificate of incorporation filed for the purpose of
creating a domestic stock corporation, other than a moneyed or
transportation corporation, may, before the payment of any part
of the capital, and before beginning business, surrender all corpo-
rate rights and franchises, by signing, verifying and filing in the
office of the secretary of state and the clerk of the county where the
certificate of incorporation is filed, a certificate setting forth that.
no part of the capital has been paid, that there are no liabilities,
that such business has not been begun, and surrendering all rights .
and franchises; and proof of the facts set forth in such certificate
to the satisfaction of the secretary of state; and thereupon the said
corporation shall be dissolved, and its corporate existence and pow-
ers shall cease.

(New section, added by Laws of 1904, ch. 296.)

For short method of dissolving a corporation which has been engaged
in business, see section 57 of the Stock Corporation Law.

§ 62. Partly paid stock.—The original or the amended
certificate of incorporation of any stock corporation may contain
a provision expressly authorizing the issue of the whole or of any
part of the capital stock as partly paid stock, subject to calls thereon
until the whole thereof shall have been paid in. In such ease, if
in or upon the certificate issued to represent such stock, the amount
paid thereon shall be specified, the holder thereof shall not be sub-
ject to any liability except for the payment to the corporation of
the amount remaining unpaid upon such stock, and for the pay-
ment of indebtedness to employes pursuant to sections fifty-four
and fifty-five of this chapter; and in any such case, the corporation
may declare and may pay dividends upon the basis of the amount
actually paid upon the respective shares of stock instead of upon
the par value thereof.

For form of certificate of partly paid stock, see post, form No. 148.

(New section, added by L. 1901, ch. 354.)

This new section provides a desirable method for the issue of partly
paid stock subject to assessment, with a right to dividends upon the
amount actually paid thereon. In case’a corporation intends to issue this
species of stock a provision to that effect must be inserted in the certifi-
cate of incorporation, or in the event that an existing corporation pro-
poses to issue such stock it must make and file an amended certificate,
pursuant to section 32 of the Stock Corporation Law, authorizing the
same. =

As enacted in 1890, chapter 564, the Stock Corporation Law contained
another article (IV) composed of sections numbered 70, 71, 72, 73. By the
amendment of 1292, however, said article was eliminated and the pre-
visicns of the sections embodied therein were transferred to the General
Corporation Law, sections 34, 35 and 36, ante.
THE. BUSINESS CORPORATIONS LAW.

 

Laws or 1890, Cuaprer 567, Entittep: “Aw Act in Re-
LATION TO Busnes Comankirore, ConstTITUTING CHAPTER.
Forry-onz oF THE GENERAL Laws,” as AMENDED TO THE Com-
MENCEMENT OF THE Lze@isLaTIvE SESSION oF 190%.

Tue Bustness Corporations Law.*

Secrion 1. Short title and limitation of chapter.
2. Incorporation. :
3. Restriction upon commencement of business.
4. Reorganization of existing corporations.
5. Payment of capital stock.
7 6. Full liability corporations.
7. Extension of business. (Repealed by L. 1895, ch. 671.)+
8. Consolidation of corporations.
9. Submission of consolidation ‘agreement to stockholders.
10. Powers of consolidated corporations.
11. Transfer of property of old corporations to consolidated cor-
porations.
12. Rights of creditors of old corporations. '
13. District steam corporations.
14. Examination of meters by agent of district steam cor-
porations.

15. Entry by agent of district steam corporation to cut off steam..

16. Water companies.
17. Real estate corporations; condemnation.

§ 1. Short title and limitation of chapter.—This
chapter shall be known as the business corporations law.

(Former section 1, L. 1890, ch. 567, as amended L. 1892, ch. 691, and L.
1895, ch. 671.)

In addition to the provisions of this law, which are specially applicable
to business corporations, other provisions applicable to such corporations
are contained in the General Corporation Law and the Stock Corporation
Law. See, also, the comments on pages 2 and 80, respectively.

 

*The Business Corporations Law (L. 1890, ch. 567) was passed June 7,1890,to take
effect May 1, 1891. By the Laws of 1892, chapter 691, passed May 18, to take effect
immediately, said law was amendedand entirelyre-enacted, and has since been fur-
ther amended as indicated on the succeeding pages. ;

{The provisions for alteration or extension of the purposes and powers of a bust-
ness corporation are contained in section 32 of the Stock Corporation Law.

183

'
184 IncoRPoRaTION.

The Business Corporations Law, § 2.

§ 2. Incorporation.— Three or more persons may become a
stock corporation for any lawful business purpose or purposes other
than a moneyed éorporation, or a corporation provided for by the
banking, the insurance, the railroad and the transportation cor-
poration laws, by making, signing, acknowledging and filing a cer-
tificate which shall contain:

1. “The name of the proposed corporation.

2. The purpose or purposes for which it is to be formed.

3. The amount of the capital stock, and if any portion be pre-
ferred stock, the preferences thereof.

4, The number of shares of which the capital stock shall -con-
sist, each of which shall not be less than five,nor more than one
hundred dollars, and the amount of capital not less than five hun-
dred dollars, with which said corporation will begin business.

5. The city, village or town in which its principal business office
is to be located. If it is to be located in the city of New York, the
borough therein in which it is to be located.

6. Itsduration. _

7%. The number of its directors, not less than three.

8. The names and post-office addresses of the directors for the.
first year.

_ 9. The names and post-office addresses of the subscribers to the
certificate, and a statement of the number of shares of stock which
each agrees to take in the corporation.

If meetings of the board of directors are to be held only
within the state the certificate or by-laws must so provide. The
certificate may contain any other provision for the regulation of
the business and conduct of the affairs of the corporation and any
limitation upon its powers, and upon the powers of its directors
and stockholders which does not exempt them from any obligation
or from the performance of any duty imposed by law.

(Section 2, L. 1890, ch. 567, as amended by L. 1892, ch. 691; L. 1895, ch.
671; L. 1896, ch. 396; L. 1896, ch. 460; L. 1901, ch. 520; L. 1908, ch. 525; L.
1904, ch. 446.)

For forms of certificates of incorporation under this law, see post, forms Nos.
54 and 55, et seq.

For an example of provisions for a limitation of powers, etc., under the sec-
ond paragraph of subdivision 9 of the foregoing section, see form No. 131.

For examples of various classifications of preferred and common stock, see
post, forms Nos. 134, 135, 186, 137, 138, 139 and 140.

The first sentence in the last paragraph was inserted by ch. 446, L. 1904.

The second sentence in subdivision 5 was added by the amendment
of 1903.

Prior to the amendment of 1901, ch. 520, the maximum number of
directors for a corporation under this law was thirteen, but this
limitation was stricken out by said amendment, so that now there is
no maximum; however, the certificate must definitely fix the number
of directors the corporation is to have, but not less than three, and
mame those who are to Serve for the first year.
Amendment of 1907.

* (Insert facing page 184, White on Corporations, 6th edition.)

Laws of 1907, chapter 646, amends the first paragraph of section 2 of the
tusiness Corporations Law, to read as follows:

§ 2. Incorporation Three or more persons may become a stock corpora-
ion for any lawful business purpose or purposes other than a moneyed cor-
oration, or a corporation provided for by the banking, the insurance,
he railroad and the transportation corporation laws, or an educational
astitution or corporation which may be incorporated as provided in the
niversity law, by making. signing, acknowledging and filing a certificate
‘hich shall contain:

By the amendment the words “or an educational institution or corpora-.
ion which may be incorporated as provided in the university law,” were
aserted.
1 3
INcORPORATION. ° 185

 

-The Business Corporations Law, § 2.

 

By the amendment of 1901, subdivision 9 of this section was changed
by inserting the words “of the certificate,” so that the names and post-
office addresses of the incorporators are to be set forth in the certificate,
with a statement of the number of shares of stock which each agrees to
take in the corporation, instead of setting forth the complete subscription.
list of the persons who agree to take stock in the proposed corporation.

¥
‘

Incorporators.

All the incorporators must be of full age, and at least two-thirds of
them must be citizens of the United States, and at least one of them
must be a resident of the State of New York. (General Corporation Law,
‘section 4.) Only natural persons can become incorporators. (Id.) Cor-
porations, copartnerships and persons acting in a representative capacity,
are, therefore, excluded from acting as incorporators; however, after the
formation of the corporation, copartnerships may become stockholders, so
also may persons acting as executors, administrators, guardians or trus-
tees. (Stock Corporation Law, section 54.) Other stock corporations, both
domestic and foreign, may likewise become stockholders. (Stock Corpora-
tion Law, section 40.)

‘Corporate Name. ~-

The name of the corporation must not conflict with that of any other
diomestic corporation, and it must not contain the word trust, bank, bank-
ing, insurance, assurance, indemnity, guarantee, guaranty, savings, invest-
ment, loan or benefit. (General Corporation Law, section 6.) In selecting
a corporate title, if desired, an individual name, or the name of a copart-
nership, to whose business the new corporation succeeds, may be used.
At any time after incorporation the name may be changed by proper pro-
ceedings. (See Code Civil Procedure, sections 2410-2417, ante, pages 12-15.)
In the formation of corporations under this.law the word “limited”
ought not to be used as a part of the corporate title, as it can serve no good,
purpose, and, if used, would be misleading by creating an impression that
the corporation had been organized under chapter 611, Laws of 1875,
which was repealed in 1890. (See, also, comments under “ Liability of
Stockholders,” page 188.)

‘Objects.

A stock corporation may be formed under this law to carry on any one
or more kinds of business that may be lawfully conducted by an indi-
vidual, except as limited in the first paragraph of section 2. If found
desirable, after organization, the purposes, powers, or provisions set forth
in the certificate of incorporation may be altered or extended by an
‘amended certificate. (Stock Corporation Law, section 32.) It should be
noted that the only classes of corporations that are excluded from organi-
gation under the provisions of the Business Corporations Law are such as
are provided for by other corporate laws, to-wit: Railroad corporations
{see the Railroad Law); ferry, navigation, stage coach, tramway, pipe-
186 IncoRPoRaTION.

 

The Business Corporations Law, § 2.

line, gas and electric light, water-works, telegraph and telephone, :turn-
pike, plank-road and bridge corporations (see the Transportation Corpo-
rations Law); banks and insurance corporations. Although companies
formed for the purpose of producing and selling artificial gas must be
organized under the Transportation Corporations Law, yet a company to
be formed for the purpose of boring natural gas wells and piping and
delivering the gas to consumers for hire may properly incorporate under
the Business Corporations Law. (Wilson v. Tennent, 61 App. Div., 100.)
Notwithstanding the provisions in the Transportation Corporations Law
for the organization of water-works corporations thereunder, certain water
companies are permitted to incorporate under this law. (See notes under
section 16 of this law.) :

Persons seeking to form a corporation under a general law have a
reasonable latitude as to what they may insert in their certificate of
incorporation, in addition to the matters required by law. They may
insert other provisions not inconsistent with law or public policy which
are germane to the purposes of the corporation, and necessary, convenient
or appropriate to the accomplishment of such purpose. If they keep
within such limits the public authorities have no reason to interfere, the
interests of the public are not jeopardized, and the rights of no citizen are
violated. (People ex rel. Fairchild v. Preston, 140 N. Y., 552.)

Capital Stock.

Subdivision 3 of the foregoing section is complied with by stating the
amount of the capital stock, if all the stock is to be of one class; but if
any portion is to be preferred stock the amount thereof and the nature
of the preferences must be set forth. Corporations are permitted to issue
both preferred and common stock, and different classes of preferred stock,
if the certificate of incorporation so provides, or to make preferred issues
after incorporation. (See Stock Corporation Law, section 47.) No limita-
tions as to the amount of capital stock are prescribed, except that it shall
not be less than five hundred dollars; for it is to be noted, that the ‘cer-
tificate of incorporation must state the amount of capital, (but not less.
than five hundred dollars), with which the corporation will begin, busi-
ness, and the amount so stated must be paid in money or property before
the corporation is permitted to incur debts. (See section 3, post.) One-
half of the capital stock is required to be paid in within one year. (See
section 5, post, and notes thereunder.) But failure to pay in half the
capital stock within the statutory time merely creates a liability for a
forfeiture of corporate rights. Proceedings must be taken to accomplish
an actual dissolution. (People v. Buffalo Stone & Cement Co., 131 N. Y.,
140; id., 42 St. Rep., 753; People v. U. & D. R. R. Co. 128 N. Y., 240;
Denike v. N. Y., ete, Lime Co., 80 N. Y., 599; Matter of Brooklyn El. R.
R. Co., 125 N. Y., 434.) The amount’ of capital stock may be increased or
reduced after incorporation. (Stock Corporation Law, sections 44, 45, and
46.) Stock may be issued for money, services or property, and when issued
for property “in the absence of fraud in the transaction the judgment of
the directors as to the value of the property purchased shall be con-
IncoRPORATION, 187

 

The Business Corporations Law, § 2.

 

clustve.” (Stock Corporation Law, section 42.) The certificate of incor-
poration may provide for partly paid stock. (Stock Corporation Law,
section 62.) 7

Shares of Stock.

The par value of the shares of stock must not be less than five dollars
nor more than one hundred dollars each. The par value of the shares
may be increased or reduced after incorporation, without changing the
amount of the capital stock. (See Stock Corporation Law, section 56.)

Principal Office.

The name of the city, village or town in which the principal office of
the corporation is to be located must be stated in the certificate. The
location may be changed at any time. (Stock Corporation Law, section
59.) Under the definition in section 3 of the General Corporation Law
the terms “principal office” and “principal place of business” are
synonymous. (People ex rel. Knickerbocker Press v. Barker, 87 Hun,
341; aff’d, 147 N. Y. 715.) The location of the principal office in the cer-
tificate of incorporation is, as against the corporation, conclusive evidence
of its residence, unless it has been legally changed. (People ex rel. Knick-
erbocker Press v. Barker, 87 Hun, 341; aff’d, 147 N. Y. 715; People ex
rel. Edison Electric Light Co. v. Barker, 91 Hun, 594.)

Duration.

The period of existence must be stated, but there is no limitation as
to the length of the term, and it may be perpetual if the certificate so
states. Corporate existence fixed for a term of years may be extended
at any time before the expiration thereof. (See General Corporation Law,
section 32.) ,

‘Directors.

The minimum number of directors is three, but there is no maximum
number fixed under the law as amended in 1901. At least one director
must be a resident of the State. (General Corporation Law, section 29.)
Bach director is to be a stockholder unless otherwise provided in the
certificate, or in a by-law adopted by a stockholders’ meeting. (Stock
Corporation Law, section 20.) The board of directors may be classified
so that only one-fourth of the number need to be elected annually, thereby

 

Chapter 369, Laws of 1896, which became a law April 22, 1896, was.
enacted for the relief of certain business corporations, and reads as
follows: *

§ 2, Any certificate of incorporation heretofore filed under said Busi-
ness Corporations Law, which shall contain the names and post-office
addresses, either of the subscribers to the stock or of the subscribers
of the certificate, and a statement of the number of shares of stock
which each agrees to take in the corporation, shall be deemed to have
complied. with the requirements of said subdivision as heretofore existing.
188 IncorPoRraTION.

 

The Business Corporations Law, § 2.

preventing any sudden change of management which might otherwise
occur. (Stock Corporation Law, section 20.) Vacancies in the board are
to be filled in the manner prescribed in the by-laws. (Stock Corporation
Law, section 20.) In case of a failure to elect directors at the time fixed
for the annual meeting of stockholders, each director continues to hold
his office until his successor has been elected. (General Corporation Law,
section 23.) If desirable after incorporation the number of directors may
be changed. (Stock Corporation Law, section 21.) The certificate may
provide for cumulative voting at elections of directors. (General Corpo-
ration Law, section 20.) Any limitation upon the powers of directors may
be inserted in the certificate which does not exempt them from obliga-
tions or duties imposed by law. (Business Corporations Law, section 2;
General Corporation Law, section 10.)

The original directors named in the certificate of incorporation be-
come such, for the first year, by direct command of the statute, and not
through an election by stockholders; therefore, such persons have full
power to act as directors in the performance of any corporate duty after
the filing of the certificate. The corporate authority of such an organi-
zation must from necessity be coincident with the inception of its cor-
, porate existence, and antedates acquisition by it of property, or the issue
of stock certificates representing such property. (Hamilton Trust Co. v.
Clemes, 163 N. Y., 423, aff’g 17 App. Div., 152; McDowell v. Sheehan, 129
N. Y., 207; Davidson v. Westchester Gas Light Co., 99 N. Y., 558.)

Additional Powers.

The certificate of incorporation’ may authorize the company to acquire,
hold and dispose of the stocks, bonds and other obligations of any other
corporation, domestic or foreign, with power to issue in exchange its own
securities therefor. (Stock Corporation Law, section 40.) The right to
issue preferred stock of one or more classes may be provided for. (Stock
Corporation Law, section 47.) Provisions can be inserted for an issue
of partly paid stock. (Stock Corporation Law, section 62.) The certifi-
cate may provide for cumulative voting at elections of directors. (Gen-
eral Corporation Law, section 20.) A provision to the effect that directors
are not required to be stockholders can be set forth in the certificate.
(Stock Corporation Law, section 20.) The last clause of subdivision 9
in section 2, and the like provision in the ,General Corporation Law,
section 10, added in 1892, also permit a corporation organizing under this
law to insert in its certificate of incorporation any limitation upon its
powers, and upon the powers of its directors and stockholders whic
does not exempt them from obligations and duties imposed by law.

Liability of Stockholders. ;

The liability of a stockholder is limited to the payment of the amount
remaining unpaid, if any, upon his stock. (Stock Corporation Law,
section 54.) It will thus be seen that such corporations are what were
formerly termed “ limited liability companies,” without making any state-
ment to that effect in the certificate, and without using the word
“limited” as a part of the corporate title. A full liability corporation
IncORPORATION. 189

 

The Business Corporations Law, § 2.

 

ean be formed under this law only by stating affirmatively that it is.
to be a full liability corporation. (See section 6 of this law.) Stock
issued for property necessary for the corporation is full-paid stock, and
in the Absence of fraud in the transaction, the judgment of the directors
as to the value of the property purchased shall be conclusive. (Stock
Corporation Law, section 42.)

Filing and Recording.

The certificate of incorporation must be filed and recorded in the office:
of the Secretary of State, and a copy of such certificate duly certified
by the Secretary of State, or a duplicate original certificate, must be
filed and recorded in the office of the clerk of the county in which the
office of the corporation is to be located. (General Corporation Law,
section 5, page 32.) If a certificate is to be recorded in a county other
than the one where it is executed, the county clerk’s certificate should be
attached, authenticating the act of the notary, justice of the peace, or
commissioner of deeds taking the acknowledgment. The Secretary of
State does not require such county clerk’s certificate as to an acknowledg-
ment taken within the State before a person duly authorized to take the
same, but an acknowledgment or affidavit taken by a notary public in
another State must be authenticated by the county clerk.

’
ae

Fees and Organization Tax.

The fees in the office of the Rcctetaty of State are: Filing, $10;
recording, 15 cents a folio; fees in the county clerk’s office: Filing, six
cents; recording’ ten cents per folio. In addition to such payments an
organization tax of one-twentieth of one per cent. upon the capital stock
must be paid to the State Treasurer before the certificates can be filed.
For text of the statutes regulating these payments, and information
relative to remittances, see pages 73-79. This tax equals 50 cents on
each $1,000 of capital stock. i ‘

Directors’ Meetings.

The holding ‘of directors’ meetings without the State is impliedly
authorized by the provision added to section 2 of this law by ch. 446,
L. 1904, as follows: “If meetings of the board of directors are to be

‘held only within the State the certificate or by-laws must so provide.”

Correction of Informalities.

Ip case of any informality in the certificate of incorporation, or in a
supplemental certificate, the same may be corrected by an- amended
certificate. (General Corporation Law, section 7.)

Power of Promoter to Bind Corporation.

When a promoter’s contract has been adopted, or its benefits, with
knowledge of such contract, have been accepted by the corporation, the
latter becomes Liable.’ (Seymour v. Spring Forest Cem. Assn., 144 N. Y.,
333; Rogers v. N. Y. & Texas Land Co., 134 N. Y., 197; Oakes v. Cat-
taraugus Water Co., 143 N. Y., 430; Hall v. Herter Bros., 83 Hun, 19;
Bommer v. American Spiral Spring Co., 81 N. Y., 468; Burden v. Burden,
.

190 IncorPoRraTION.

 

The Business Corporations Law, § 2.

 

159 N. Y., 287; Harrison v. Vermont Manganese Co., 1 Misc., 402; Mesinger
v. Mesinger Bicycle Saddle Co., 44 App. Div., 26; King v. Barnes, 109
N. Y., 267.)

An agreement made by a promoter of a corporation about to be formed,
with a person who was to enter its employ, is binding on the corporation,
where the promoter, who afterwards became its president, failed to give
notice of any disavowal of the agreement, and the employe began work
for the corporation. (Mesinger v. Mesinger Bicycle Saddle Co., 44 App.
Div., 26.) :

A corporation is liable for services rendered before organization under
an agreement with the promoter who became its president and controlled
the corporation. (Oakes v. Cattaraugus Water Co., 143 N. Y., 430.)

A preliminary agreement is binding when made by promoters ant the
incorporators who’ thereafter become stockholders and directors of the
corporation. (Burden v. Burden, 159 N. Y., 287, aff’g 8 App. Div.,:160.)

After accepting the benefits under a plan adopted by its promoters, the
corporation becomes subject to the terms of the plan. (Rogers v. N. Y.
& Texas Land Co., 134 N. Y., 197.)

Promoters of a corporation may agree as to the management thereof
‘before incorporation. (King v. Barnes, 109 N. Y., 267.)

Promises made by the main promoter of a corporation, without its
-authority, in relation to stock, are not binding upon it. (Dillon v. Com’l
Cable Co., 87 Hun, 444.) -

While a corporation is not bound by engagements made on its behalf
by its promoters before its organization, it may, after it is organized,
make such engagements its own by adopting them, and less evidence is
required to show such adoption where the officers of the corporation were
.also its promoters than where its officers and promoters were different
persons. (Hall v. Herter Bros., 83 Hun, 19.)

An agreement made with parties carrying on a business which after-
wards becomes a corporation by the same name that the corporation will
pay royalties on a patent is enforcible against the corporation when
it has acted on the contract. (Bommer vy. American Spiral ‘Spring Co.,
81 N. Y., 468.)

Where incorporators accept the services of a promoter for the benefit
of a corporation formed by them the corporation is liable. (Harrison v.
Vermont Manganese Co., 1 Misc., 402.)

Where a corporation consists of a small number of persons, it may
transact ordinary business without the formality of resolutions; it may
be transacted by conversation, without formal votes. (Hall v. Herter
Bros., 83 Hun, 19.)

Where the president of a private corporation has full personal charge
of its business, he represents the corporation, and prima facie has power
to do any act which its directors could authorize or ratify. (Oakes v.
Cattaraugus Water Co., 143 N. Y., 430.)

‘Liability of Promoters.
If a promoter owns property at the time of forming a corporation, and
-sells it to the corporation at a profit, and then induces persons to subscribe
IncorpPoraTIon. 191

 

The Business Corporations Law, § 2.

 

-for stock by stating that he made no profit thereby, he is liable for the
injury they have sustained. (Getty v. Devlin, 54 N. Y., 403, 70 N. Y., 504.)
Promoters of a corporation occupy, before its organization, a position
of trust and confidence and are liable for damages if they make material
misrepresentations, or conceal material facts, tothe injury of those whom
they induce to invest in an enterprise, and this liability also extends to
all those who are induced by their agents to subscribe for shares. (Brews-
ter vy. Hatch, 122 N. Y., 349; Walker v. Anglo-Am. M. & T. Co., 72 Hun,
334; Sage v. Culver, 147 N: Y., 247; Smith v. Ogilvie, 127 N. Y., 148; Colton
Impmt. Co. v. Richter, 26 Misc., 26; Morgan v. Skiddy, 62 N. Y., 319;
Getty v. Devlin, 54 N. Y., 403, 70 N. Y., 504; Benedict v. Guardian Trust
Co., 58 N. Y., 302.) If the parties stand merely in the relation of vendor
_and vendee of stock after incorporation and there is no fiduciary relation
between them no liability would exist. (Brewster v. Hatch, supra;
Walker v. Anglo-Am. M. & T. Co., supra.) :

Promoters are individually liable for work and materials furnished
on their order for a corporation that was never organized. (Hub Pubg.
Co. v. Richardson, 37 St. Rep., 541, 13 N. Y. Supp., 665.)

Each member of a firm, engaged under the firm name in organizing
a corporation, is liable for the misrepresentations and concealments of the
others committed in promoting an enterprise. (Walker v. Anglo-Am. M.
& T. Co., 72 Hun, 334.) A purchaser of shares from a stockholder in an
existing corporation has no interest in the. application of fhe money
‘paid therefor, but it is different with one who agrees to subscribe for
‘shares in a proposed corporation. (Id.)

Subscriptions to Stock.

The law is fairly well settled that where parties propose to form a cor-
poration and become shareholders therein, and such parties intend to
become such shareholders without further act upon their part, upon the
incorporation of the company, and the agreement remains open and is
unrevoked, and the corporation is formed in pursuance of if, and there- .
after acts upon it, by accepting the same, such agreement is valid and
‘binding as a subscription to the capital stock of such corporation. (Buf-
falo & Jamestown RB. R. Co. v. Clark, 22 Hun, 359; S. C., sub nom. Buf-
falo & Jamestown R. R. Co. v. Gifford, 87 N. Y. 294.) These decisions
Tecognize that such an agreement is not valid and binding when made,
as there is then in existence no party representing the company who is
eapable of contracting. But when the company is organized and acts
upon the contract by an acceptance of what is regarded as an open
continuing proposal, it becomes a valid binding agreement, to be enforced
according to its terms. In the Clark and Gifford cases there was the ele-
ment of ratification by the subscribers by payment of calls upon the
‘stock after the corporation was organized. We do not understand, how-
ever, that-the doctrine of these cases makes recognition by the subscriber
an essential prerequisite. The contract becomes of force when the pro-
posal remains open and the corporation accepts the same. (Athol Music
192 IncorporaTION.

 

The Business Corporations Law, § 2.

 

Hall Co. v. Carey, 116 Mass., 473; The Buffalo & Pittsburgh R. R. Co. v.
Hatch, 20 N. Y., 161; Non-Electric Fibre Mfg. Co. v. Peabody, 21 App.
Div., 247; Morawetz Corp., section 47; Yonkers Gazette Co. v. Taylor, 30
App. Div., 334.)

There are agreements of a somewhat similar character which do not
admit of enforcement, and are not binding as a common-law agreement.
It is quite easy to confuse the two classes, although there is a clear dis-
tinction between them. In the first class it is to be noticed that the
agreement is to form a corporation and subscribe to its stock. The
latter class are mutual agreements to subscribe for stock in a corporation
thereafter to be formed. In the first the agreement is unconditional and
absolute to form the corporation and take the stock, and when acted
upon by the corporation is binding, as that is all that is needful to
make the contract of force. Such contracts contemplate no further act
upon the part of the person making such agreement. In the second class
the agreement is to subscribe for shares when the company shall be
organized. This clearly contemplates something more to be done, i. e.,
the actual subscription. There exists no agreement in such case to become
stockholders. When the corporation is formed such agreement is to take
shares, which involves a subsequent act, that of formally subscribing for
the stock. Illustrations of such contracts are found in Lake Ontario
Shore R. R. Co. v. Curtiss, 80 N. Y. 219; 1 Morawetz on Corporations,
section 49. (Yonkers Gazette Co. v. Taylor, 30 App. Div., 334.)

Decisions Generally.

Where the certificate of incorporation of a business corporation con-
tains no limitations upon the powers of its executive officers, the right
of a person employed by the president to recover from the corporation
for services, cannot be defeated by any limitations upon the president’s
powers contained in the by-laws, unless such person had express notice
of such limitations. (Powers v. Schlicht Heat, Light & Power Co., 23
App. Div., 380.)

An agreement of one party to sell to another shares of stock in a cor-
poration, to be thereafter incorporated, is a sufficient consideration for
the latter’s promise to purchase stock. (Van Dam vy. Tapscott, 40 App.
Div., 36.)

The Secretary of State will not be compelled to file the certificate of
incorporation of a company to be formed as a social organization, when
its purposes are in reality those of a business corporation. (People ex
rel. Davenport v. Rice, 22 N. Y. Supp., 631; id., 68 Hun, 24.) ;

Where there was a colorable compliance with the requirements of a
statute under which a company might lawfully have been incorporated,
and a defect existed in the omission to comply with some one particular
requirement, and there had been for many years user by the company of
the corporate rights and franchises which were claimed to have been con-
ferred upon it, and which it assumed to exercise, the company became, by
réason of such organization with color of law and such exercise of cor-
IncoRPoRaTION. 193

 

* The Business Corporations Law, § 2.

 

porate franchises, a corporation de facto. (Lamming -v. Galusha, 81 Hun,
247; aff’d, 151 N. Y., 648.) '

When, on its face, the organization of a corporation is for objects not
necessarily of an illegal nature, it must be presumed that they were
within that legitimate class of objects for which corporations may be
formed, (U. 8. Vinegar Co. v. Foehrenbach, 148 N. Y., 58.)

The transfer by an insolvent firm of all their tangible property to a cor-
poration, formed by the members of a partnership, made without any
consideration except the stock of the corporation, and without the assump-
tion by the corporation of any of the debts of the firm, is a transaction
which clearly indicates an intent to hinder the firm creditors, and, before
it will be sustained, requires a satisfactory explanation. (Buell v. Rope
& Co., 6 App. Div., 113, distinguishing First Nat. Bk. of Champlain v.
Wood, 86 Hun, 491.)

When an authorized transfer by the president of a corporation of the
corporate property is made in payment of his individual indebtedness, it
will be upheld. (Quee Drug Co. v. Plaut, 55 App. Div., 87.)

There is nothing malum in se or malum prohibitum in the act of a cor- -
poration in lending its credit to its president, or in mortgaging its prop-
erty for his debt. . If the stockholders do not assail its validity, and no
rights of creditors intervene, there can be no legal objection to the mort-
gage. (Osborn v. Montelac Park, 89 Hun, 167; aff’d, 153 N. ¥., 672.)

Unless the complaint in an action to dissolve a corporation shows the
jurisdictional facts, the court has no power to act, its decree is void and
the corporation still exists. (Osborn v. Montelae Park, 89 Hun, 167; aff’d,
153 N. Y., 672.)

Evidence that a New York corporation, without intent to defraud its
creditors, organized a corporation in another State under a different
name, to which corporation its assets were transferred, and which was
managed in the same way as the former company and by the same
persons in the same place, and that the new company proposed to con-
tinue a contract made by the former company, but reached no agreement
in respect thereto, is insufficient to render ‘the new company liable under
such contract. (Goldmark vy. Magnolia Metal Ca., 44 App. Diy., 35.)

An instrument which, after referring to a plan to form a corporation,
states that “the undersigned hereby subscribe for the number of shares
set opposite our names,” is absolute and unconditional, and is binding
when it is acted upon by the corporation then in contemplation of for-
mation, and the fact that the corporation was incorporated under a differ-
ent name because of the decision of the Secretary of State that the name
first selected violated section 6 of the General Corporation Law, is imma-
terial. (Yonkers Gazette Co. y. Taylor, 30 App. Div., 334.)

The payment of ten per cent. when the agreement to incorporate is
made is not essential to its validity, as such payment is required only
of those who subscribe after the organization of the corporation.
(Yonkers Gazette Co. v. Taylor, 30 App, Div., 334.) And, by the terms
of section 41 of the Stock Corporation Law, it is only the subscribers

13 )
194. Resrricrioy vvon ComMMENCEMENT oF BUSINESS.
The Business Corporations Law, § 3.

whose subscriptions are payable in money who are required to pay ten
per cent. in cash. (Editor.)

Where a resolution of a corporation recites and accepts an offer by
certain parties to transfer to the corporation a manufacturing business,
tools, machinery, ete., and a patent, for a specified amount of the cor-
porate stock, parol evidence establishing an oral agreement between the
vendor and vendee, by which, as part of the consideration, two persons
were to be employed by the corporation, is competent, when the resolu-
tion contains no provision as to such employment, and the evidence shows
that the whole agreement was by parol, and the resolution was merely
a step in carrying out in part such parol agreement. (Rochester Folding
Box Co. v. Browne, 55 App. Div., 444.)

A corporation organized under a statute, which authorizes the forma-
tion of business companies, exceeds its corporate power if it accepts funds
in special account on deposit; such statute contains none of the safe-
guards required of corporations authorized to do a banking business or
the receiving of the money of others on deposit for safe-keeping or invest-
ment. (Chapman v. Lynch, 156 N. Y., 551.)

The disqualification of a director to vote a resolution which provides
for the assumption of a contract of another director to purchase property
from the former as an individual, though it may make the resolution
voidable, at the election of the corporation, will not make it invalid as to
these directors, so as to give either of them a right of action against the
other. (Munson v. Magee, 161 N. Y., 182, aff’g 22 App. Div., 333.)

The inability of the president, because of his fiduciary relation, to en-
force against the company a contract by which it assumes the obligations
of a contract of a third person to purchase property from him as an indi-
vidual, after he has accepted, by novation, a substitution of the corpora-
tion in lieu of the original purchaser, will not entitle him to hold the
latter liable on the original agreement. (Munson v. Magee, 161 N. Y., 182,
aff’'g 22 App. Div., 333.)

§ 3. Restrictions upon commencement of business.
—wNo such corporation shall incur any debts until the amount of
capital specified in its certificate of incorporation, as the amount of
capital with which it will begin business, shall have been paid in in
money or property.

(Section 3, L. 1890, ch. 567, as amended by L. 1892, ch. 691, and L. 1895,
ch. 671.) :

The last amendment took effect May 14, 1895. Prior thereto this sec-
tion prohibited a corporation from transacting business until it had filed
a certificate to the effect that half the capital stock had been subscribed.
As now amended, the section does not provide for the filing of any certifi-
cate, but prohibits the corporation from incurring debts until the amount
of capital with which it intends to begin business, as stated in its certifi-
cate of incorporation, shall have been paid in in money or property.
ReEorcanizatTion oF Existina CorroraTions. 195

 

The Business Corporations Law, § 4.

 

By-laws of corporations now formed under this law are not required to
‘be filed in any public office.

One-half of the capital stock of a corporation organized under this law
must be paid in within one year from its incorporation. (See section 5,
‘and notes thereunder.)

§ 4. Reorganization of existing corporations.—Any stock
‘corporation heretofore organized, except a moneyed or transporta-
tion corporation, or a corporation the business. of which partakes
of the nature of banking or insurance, may reincorporate under
this chapter in the following manner: The directors of the cor-
poration shall call a meeting of the stockholders thereof by pub-
lishing a notice, stating the time, place and object of the meeting,
‘signed by at least a majority of them, in a newspaper of the county
‘in which its principal business office is situated, once a week, for, at
least, three successive weeks, and by serving upon each stockholder,
-at least three weeks before the meeting, a copy of such notice either
personally or by depositing it in the post-office, postage prepaid,
addressed to him at his last-known post-office address. The stock-
holders shall meet at the time and place specified in the notice and
organize by choosing one of the directors chairman, and a suitable
secretary, and shall then take a vote of those present in person or
by proxy upon the proposition to reincorporate under this chapter,
-and if votes representing a majority of all the stock of the corpora-
tion shall be cast in favor of the proposition, the officers of the meet-
ing shall execute and acknowledge a certificate of the proceedings,
which certificate shall also contain the statements required by sec-
tron two of this chapter, and shall be filed in the offices where cer-
tificates of incorporation under this chapter are required to be filed.
From the time of such filing such corporation shall be deemed to
be a corporation organized under this chapter, and if originally
-organized or incorporated under a general law of this State it shall
‘have and exercise all such rights and franchises as it has heretofore
‘had and exercised under the laws pursuant to which it was origi-
‘nally incorporated, and such reorganization shall not in any way
saffect, change or diminish the existing liabilities of the corporation.

(Former section 5, L. 1890, ch. 567, as amended by L. 1892, ch. 691, and
-L, 1895, ch. 671.)

- For form’ of certificate, see post, form No. 57.

Slight verbal changes were made in this section by the amendment of
‘1895, and a provision requiring the filing of by-laws was stricken out.

The business corporation act of 1875, ch. 611, now repealed, contained
, {provisions substantially the same as the foregoing.
196 Payment or Capitan Stock.
The Business Corporations Law, § 5.

For the mode of procedure in reorganizing when the property and fran-
chises of a domestic stock corporation have been sold by virtue of a mort-
gage or judgment, see the Stock Corporation Law, sections 3, 4, 5, 6.

It became necessary by the amendatory legislation of 1892, ch. 691, to
re-number all the sections of this law, except the first three, either by
reason of the elimination of the provisions of the then existing sections.
or their transfer to other laws. For example, the former section 4 of
this law as enacted in 1890, ch. 567, regulated the manner of adopting
by-laws and to a certain extent the terms of the same. These regula-
tions were eliminated by the amendments of 1892, so that now the only
provisions as to by-laws are embodied in the General Corporation Law,
sections 11 and 29.

A corporation reorganized under the provisions of this section is not.
required to pay an organization tax. (In re Consolidated Kansas City S..
& R. Co., 18 App. Div., 50.) The foregoing case overrules the special term
decision In re N. Y. & Sub. Inv. Co., 16 N. Y. Supp., 213; Id., 40 St. Rep.,.
189, in which latter case it was held that the tax is payable. ‘

It is difficult to conceive of a case where any advantage would accrue:
to any existing corporation by reorganization under this section. Corpo-
rations formed under laws now repealed are not compelled to reorganize,.
such corporations being governed by the new laws, into which the corpo--
ration laws repealed are merged. (Close y. Potter, 2 Misc, R., 1.) The
language of this section is merely permissive; it is, therefore, optional
with the stockholders whether they will reorganize or not. (Id.)

A corporation cannot accomplish an extension of the term of its exis-
tence, or an alteration or extension of its purposes or powers, or a change
in the number of its shares of stock, by reincorporation under the pro-
vision of this section. (People ex rel. Haberman v. James, 5 App. Div.,.
412.) It was not the purpose of such section to give to a corporation, upon:
its reincorporation thereunder, any rights or franchises other than those:
which it had, and which it had exercised, under the laws pursuant to.
which it was incorporated. (Id.) If a corporation desires to make any
changes it must do so under and pursuant to the provisions of the General
Corporation Law, and the Stock Corporation Law expressly providing:
therefor. (Id.)

§ 5. Payment of capital stock.—One-half of the capital
stock of every such corporation shall be paid in within one year:
from its incorporation, or the corporation shall be dissolved, and
the directors, within thirty days after such payment shall make a
certificate of the fact of such payment, which shall be signed and
acknowledged by a majority of the directors, and verified by the
president or vice-president and secretary or treasurer, and filed in
the offices where the certificates of incorporation are filed. The-
dissolution of any such corporation for any cause shall not take-
away or impair any remedy against it, its stockholders or officers,
for any liabilities incurred previous to its dissolution:

(Former section 6, L. 1890, ch. 567, as amended by L.-1892, ch. 691.)

For form of certificate, see post, form No. 58.
Four. Lianrmiry Corporations. ' 197

 

The Business Corporations Law, § 6.

 

This section provides that a certificate be filed when one-half the capital
stock has been paid in. The certificate of full payment of capital stock
heretofore required is no longer necessary, and no time is now prescribed
y statute within which the entire capital stock shall be paid in. (See
Stock Corporation Law, section 54, and notes thereunder.) The board of
directors may fix the time for the payment of subscriptions to the capital
stock. (Stock Corporation Law, section 43.)

The certificate of incorporation under section 2 of this law, and the
certificate required by the foregoing section are frequently presented |
simultaneously at the office of the Secretary of State for filing and record-
ing. In such cases the last mentioned certificate has been rejected upon
‘the ground that there could be no corporation, and consequently no presi-
dent, vice-president, treasurer or secretary of a corporation, to properly
execute said certificate until after the filing of the certificates of incor-
poration pursuant to said section 2.

Although the last sentence of the foregoing section was inserted in con-
nection with a provision made for the event of a failure to pay in capital
stock, yet it cannot be qualified by what precedes it and reaches beyond
the contingency of the particular dissolution previously referred to, and
applies to every case of corporate dissolution; therefore, a cause of action
against a business corporation for injuries caused by its negligence sur-
vives its dissolution, and an action thereon is maintainable against the
trustees holding the property for distribution. (Marstaller v. Mills, 143
N. Y., 398.) \

Failure to pay in half the capital stock within the statutory time merely
creates a liability for a forfeiture of corporate rights. Proceedings must
be taken to accomplish an actual dissolution. (People v. Buffalo Stone
-& Cement Co., 131 N. Y., 140; Id., 42 St. Rep., 753; People v. U. & D.
BR. R. Co., 128 N. Y., 240; Denike v. N. Y., etc., Lime Co., 80 N. Y., 599;
Matter Brooklyn El. R. R. Co., 125 N. Y., 434.)

The provision: declaring that the dissolution of a corporation shall not
take away or impair any remedy given against it, its stockholders or
officers, for any liability incurred previous to its dissolution, merely saves
or continues a liability established before and existing at the time of the
termination of the corporate existence of the company (Gold v. Clyne,
184 N. Y., 262.)

The certificate must be sworn to as well as acknowledged. An acknowl-
edgment without verification is not sufficient. (Hardman v. Sage, 124
N. Y., 25; Vedder v. Mudgett, 95 N.-¥., 295; Brown v. Smith, 13 Hun, 408;
aff'd 80 N. Y., 650.) :

§ 6. Full liability corporations.—Every corporation formed
under this chapter may be or become a full liability corporation by
inserting a statement in the certificate of incorporation, that the
‘corporation thereby formed is intended to be a full liability cor-
poration; and in case of an existing corporation, which is not a full
liability corporation, it may become such by filing in the offices
where certificates of incorporation are required to be filed, a supple-
mental certificate stating that thereafter the corporation intends to
198 Fourzi Lrapizity CorroRaTIons.

 

The Business Corporations Law, § 6.

be a full liability corporation, which certificate shall be executed
and acknowledged by the president and treasurer of the corpora-
tion or by the board of directors, and shall have annexed thereto a
copy of a resolution, adopted by a two-thirds vote of the board of
directors, and the written consent of all the stockholders of the
corporation authorizing and consenting to the change of the cor-
poration to a full liability corporation. If the corporation is
formed as or becomes a full liability corporation all the stgck-
holders of the corporation shall be severally individually liable to
its creditors for all its debts and liabilities, and may be joined as.
defendants in any action against it. No execution shall issue against
any stockholder individually until execution has been issued against
the corporation and returned unsatisfied, and all the stockholders
shall contribute a proportionate share, according to the number of
shares of stock owned by each, of the amount paid by any stock-
holder on a judgment recovered against him individually for a debt
of the corporation, and he may recover from the other stockholders
in the corporation in a joint or several action the proper portion due
by them and each of them, of the amount paid by him on any such.
judgment.
(Former section 7, L. 1890, ch. 567, as amended by L. 1892, ch. 691.)

For form of certificate of incorporation of full liability corporation, see post,.
form No. 55,

For form of supplemental certificate by an existing business corporation to
become a full liability corporation, see post, form No. 59.

It rarely happens that persons desire to enter into a corporate enter-
prise in which each stockholder becomes personally liable for the indebt-
edness of the corporation, therefore, very few full liability companies have
been incorporated in this State. 0

A judgment against a corporation is not conclusive against stockholders.
(Lawyer v. Rosebrook, 48 Hun, 453.)

An action may be commenced against a stockholder before the return
of an execution against the corporation unsatisfied. But execution can-
not issue until the return of an execution against the corporation unsatis-
fied. (Walton v. Coe, 110 N. Y., 109.) e"

The provision in this section that all the stockholders may be joined as.
defendants in any action against it, is permissive and not imperative.
(Walton v. Coe, 110 N. Y., 109.)

The liability imposed by this section is not penal but is in the nature
of a contract obligation. It survives the death of the stockholder and
may be continued against his personal representatives. (Coehran v.
Wiechers, 119 N. Y., 399; Baiiey v. Hollister, 26 N. Y., 112; Lowry v.
Inman, 46 N. Y., 119; Wiles v. Suydam, 64 N. Y., 178.)
a

ConsoLiDaTION OF CoRPORATIONS. 199

The Business Corporations Law, § 8..

 

Section 7. '

(Section 7 of this law, which contained provisions authorizing an exten-
sion of business, was repealed by chapter 671, Laws of 1895, taking effect
May 14, 1895. The repeal of the section was deemed desirable, because
provisions of like character are contained in section 32 of the Stock Cor-
poration Law, and it was unnecessary to duplicate them in this law.)

§ 8. Consolidation of corporations.—Any two or more
corporations organized under the laws of this State for the purpose
of carrying on any kind of business of the same or of a similar na-
ture, which a corporation organized under this chapter might carry
on, may consolidate such corporations into a single corporation, as
follows: The respective corporations may enter into and make an
agreement signed by a majority of their respective boards of direct-
ors and under their respective corporate seals, for the consolida-
tion of such corporations, prescribing the terms and conditions
thereof, the mode of carrying the same into effect, the name of the
new corporation, the number of directors who shall manage its
affairs, not less than three,* the names and post-office addresses of
tke directors for the first year, the term of its existence, not ex-
ceeding fifty years, the name of the town or towns, county or
counties, in which its operations are to be carried on, the name of
the town or city and county in this State in which its principal place
oi business is to be situated, the amount of its capital stock, which
shall not be larger in amount than the fair aggregate value of the
property, franchises and rights of such corporations, and the num-
ber of shares into which the same is to be divided, the manner of
distributing such capital stock among the holders thereof, and if
such corporations, or either of them, shall have been organized for
the purpose of carrying on any part of its business in any place out
of this State, the agreement shall so state, with such other par-
ticulars as they may deem necessary.

(Former section 13, L. 1890, ch. 567, as amended by L. 1892, ch. 691; L.
1895, ch. 671, and L. ‘1901, ch. 520.)

For form of papers, see post, form No. 61.

As to organization tax and amount of fees payable upon filing and
recording the consolidation papers, see the notes to form No. 61, above
referred to.

For method of proving consolidation in court, see Miscellaneous Statutes,
post, page

Consolidations under these provisions can only be effected by corpora-

 

* By the amendment of 1901 the words ‘nor more than thirteen’ were
stricken out.
200 ConsoLmpaTIon oF CoRPORATIONS.
The Business Corporations Law, § 8.

tions organized under the laws of this State for the purpose of carrying
on business of the same or a similar nature, and such business must be
of a kind that corporations are authorized to carry on under the Business
Corporations Law. (See Cameron v. N. Y. & Mt. Vernon Water Co., 133
N. Y., 336, 62 Hun, 269; Young v. Rondout & Kingston Gas Lt. Co., 129
N. Y., 57; id., 39 St. Rep., 602. See, also, People v. North River Sugar
Ref’g Co., 121 N. Y., 582; Cole v. Millerton I. Co., 133 N. Y., 164.)

An injunction: pendente lite will be granted to restrain a corporation
from consolidation where such consolidation may be unlawful, and render
final judgment ineffectual. (Young v. Rondout, etc., above.)

Proceedings for consolidation, begun under a law which was repealed
during the pendency of such proceedings, are not affected by such repeal
and may be perfected under the law repealed. (Cameron v. N. ¥. & Me.
Vv. W. Co., above.)

A contract made by the directors of one corporation with anqther
corporation, of which they are also directors, is voidable by the corpora-
tion, but a contract entered into between two corporations, voidable
because of their having common directors, cannot be disaffirmed by a
minority of the stockholders of either corporation. (Hart v. Ogdensburg
& Lake Champlain R. R. Co., 89 Hun, 316.)

A contract between two corporations is not vitiated by the fact that
some of the officers were directors in both corporations, in the absence
of fraud or bad faith on their part. (Genesee Valley & Wyoming Ry. Co.
v. Retsof Mining Co., 15 Misc., 187.)

A transfer by a consolidated corporation of all its assets, not made in
the ordinary course of business, effecting a termination of its regular
business, accepted as such by the corporation with which it was consoli-
dated, and followed by a division of the stock of the latter among the
stockholders of the former in payment of the assets transferred, is void
as against creditors of the corporation making the transfer, (Hurd v.
N. Y. & Commercial Steam Laundry Co., 29 Misc., 183.)

A provision in a consolidation agreement, under the statute, signed by
the stockholders, that the consolidated corporation shall owe no debts
on account of the constituent corporations cannot affect the rights of
outside creditors, but is a bar to the claim of a signing stockholder to
payment from the assets of the consolidated corporation, in case of its
insolvency, of an obligation of a constituent corporation held by him.
(Matter of Utica Nat. Brewing Co., 154 N. Y., 268, aff’g 19 App. Div., 627.)

Where a corporation hat entered into a consolidation the pursuit, by
creditor, of a remedy against his original debtor, a constituent corpora-
tion, presents no obstacle to a collection of his debt from the consolidated
corporation. (Matter of Utica Nat. Brewing Co., 154 N. Y., 268, aff’g 19
App. Div., 627.) :

The statutory liability of a consolidated corporation for the debts and
liabilities of its constituent corporations is not impaired by an agree-
ment between the corporations as to creditors who have neither joined
in nor assented to the agreement. (Matter of Utica Nat. Brewing Co.,
154 N. Y., 268, aff’g 19 App. Div., 627.) )
ConsoLipaTION AGREEMENT. 201

 

The Business Corporations Law, § 9. .

 

§ 9. Submission of consolidation agreement to stock-
holders. —Such agreement shall be submitted to the stockholders
of each of such corporations, at a meeting thereof to be called upon
notice of at least two weeks, specifying the time, place and object
thereof, and addressed to each at his last known post-office address,
and deposited in the post-office, postage prepaid, and published for
at least two successive weeks in one of the newspapers in each of
the counties of this State in which either of such corporations shall
have its place of business, and if such agreement shall be approved
at each of such meetings of the respective stockholders separately,
by the vote by ballot of the stockholders owning at least two-thirds .
-of the stock, the same shall be the agreement of such corporations,
and a sworn copy of the proceedings of such meetings, made by the
secretaries thereof, respectively, and attached thereto, shall be pre-
suimptive evidence of the holding and action of such. meetings.
Such agreement and verified copy of proceedings of such meetings
shall be made in duplicate, one of which shall be filed in the office
of the secretary of state, and the other in the office of the clerk
of the county where the principal business office of the new cor-
‘poration is to be situated in this state, and thereupon such corpora-
‘tions shall be merged into the new corporation specified in such
agreements, to be known by the corporate name therein mentioned,
and the provisions of such agreement shall be carried into effect
as therein provided. If any stockholder, not voting in favor of
such agreement to consolidate, shall at such meeting, or within
twenty days thereafter, object.to such consolidation and demand
payment for his stock, such stockholder or such new corporation,
if the consolidation takes effect at any time thereafter, may at any
time within sixty days after such meeting apply to the supreme.
‘court at any special term thereof held in the district in which any
‘county is situated in which such new corporation may have its place
of business, upon at least eight days notice to the new corporation,
for the appointment of three persons to appraise the value of such
stock, and the court shall appoint three such appraisers and desig-
nate the time and place of their first meeting, with such directions
in regard to their proceedings as shall be deemed proper, and also
‘direct the manner in which payment for such stock shall be made
to such stockholder. The court may fill any vacancy in the board
of appraisers occurring by refusal or neglect to serve or otherwise.
The appraisers shall meet at the time and place designated, and
, they or any two of them, after being duly sworn honestly and faith-

e
i
202 Powers or CoNnsolipaTED CORPORATIONS.
The Business Corporations La#, §§ 10, 11.

fully to discharge their duties, shall estimate and certify the value
of such stock at the time of such dissent, and deliver one copy . to
such new corporation, and another to such stockholder if demanded
the charges and expenses of the appraisers shall be paid by the new
corporation. When the new corporation shall have paid the amount.
of such appraisal, as directed by the court, such stockholder shall
cease to have any interest in such stock and in the corporate prop-
erty of such corporation, and such stock may be held or disposed of
by such new corporation.* Where any consolidation has been here-.
tofore or shall be hereafter effected pursuant to the laws of this state,
and the holders of ninety per centum of the capital stock of each of
such corporations have voted in favor of such agreement to consoli-
date, if any stockholder not voting in favor of such consolidation shall
fail to exchange his stock for stock of such new corporation within
sixty days after this act shall go into effect, or, in case of a consoli-
dation hereafter effected, within sixty days after he shall have become
entitled to make such exchange, such new corporation may, at any
time thereafter, upon at least eight days’ notice to such stockholder,
to be given personally, within the state, if possible, and if not, then in.
such manner as the court shall direct, apply to the court, as herein-
before provided, for the appointment of three persons to appraise the:
value of such stock at the time of the expiration of such sixty days.
Upon the completion of the appraisal in the manner hereinbefore
provided for, and the payment by such new corporation of the amount.
of such appraisal, as directed by the court, such stockholder shall
cease to have any interest in such stock, and in the corporate prop-
erty of such corporation, and such stock may be held or disposed of by
such new corporation. ,

(Former section 14, L. 1890, ch. 567, as amended by L. 1892, ch. 691, and’
L. 1902, ch. 438.)

The provisions followihg the asterisk (*) are new, having been added
by the last amendment.

The claim of an objecting stockholder partakes of the nature of an
unliquidated account, and he is not entitled to interest until the ap-
praisers’ report establishes the value of the stock. (Trask v. Peekskill
‘Plow Works, 6 Hun, 236.)

An action can be maintained against the old corporation for debts exist-
ing at the time of consolidation. (Gale v. T. & B. R. R. Co., 51 Hun, 470.)

§ 10. Powers of consolidated corporations.— Such new
corporation in addition to the general powers of corporations shall.
enjoy the rights, franchises and privileges possessed by each of the
corporations so consolidated, subject to the restrictions, liabilities,
duties and provisions contained in this chapter, so far as the same:
may be applicable to the purposes for which it shall have been organ-
ized and expressed in the agreement for consolidation, and may prose-
cute and carry on any kind of business.which each of the consolidating:
corporations was authorized by law to conduct.

(Former section 15, L. 1890, ch. 567, as amended by L. 1892, ch. 691.)

Consult People ex rel. N. Y. Phonograph Co. v. Rice, 128 N. Y., 591, 57
Hun, 486, .
Ricguts oF CrEepirors or OLD CoRPOoRATIONS. 203

 

The Business Corporations Law, §§ 11, 12.

 

§ 11. Transfer of property of old corporations to con-
solidated corporations.— Upon the consummation of such
act of consolidation, all the rights, privileges, franchises and interests
of each of the corporations, parties to the same, and all the prop-
erty, real, personal and mixed, and all the debts due on whatever
account to either of them, as well as all stock subscriptions and other
things in action belonging to either of them, shall be taken and
deemed to be transferred to and vested in such new corporation, with-
out further act or deed; and all claims, demands, property and every
other interest shall be as effectually the property of the new corpo-
ration as they were of the former corporations, parties to such agree-
ment and act; and the title to all real estate, taken by deed or other-
wise, under the laws of this state, vested in either of such corporations,
parties to such agreement and act, shall not be deemed to revert or be
in any way impaired by reason of this act, or anything done by virtue
thereof, but shall be vested in the new corporation by virtue of such
act of consolidation; and all the rights, privileges, franchises and prop-
-erty of the corporations, parties to any consolidation heretofore made
under this act, shall vest as fully in the new corporation thereby
created as they were vested in the corporations, parties to such con-
solidations.

(Former section 16, L. 1890, ch. 567, as amended by L. 1892, ch. 691, and
L. 1902, ch. 457.) .

By the last amendment it is provided that upon consolidation the prop- °

erties of the constituent corporations are vested in the new corporation
without being mentioned in the agreement of consolidation, and the title
of properties of corporations consolidated previous to this amendment are
also vested in the new corporation the same as though this provision
were then in force.

§ 12. Rights of creditors of old corporations. — The
rights of creditors of any corporation that shall so be consolidated
shall not in any manner be impaired, nor any liability or obligation
for the payment of any money due or to become due to any person
or persons, or any claim or demand for any cause existing against
any such corporation or against any stockholder thereof, be released
or impaired by any such consolidation; but such new corporation
shall succeed to and be held liable to pay and discharge all such debts
and liabilities of each of the corporations consolidated in the same
manner as if such new corporation had itself incurred the obligation
or liability to pay such debt or damages, and the stockholders of the
respective corporations consolidated shall continue, subject to all the
liabilities, claims and demands existing against them as such, at or
before the consolidation; and no action or proceeding then pending
before any court. or tribunal in which any corporation that may be
so consolidated is a party, or in which any such stockholder is a party,
shall abate or be discontinued by reason of such consolidation, but
may be prosecuted to final judgment, as though no consolidation had,
been entered into; or such new corporation may be substituted as a
party in place of any corporation so consolidated, by order of the court
in which such action or proceeding may be pending.

(Former section 17, L. 1890, ch. 567, as amended by L. 1892, ch. 691.)
204 District Steam CoRPoRATIONS.
The Business Corporations Law, § 13.

The former provisions of section 12 of this law, as enacted by Laws of
1890, chapter 567, giving corporations authority to hold stock in other
corporations under certain conditions, were transferred, by the amend-
ments of 1892, to the Stock Corporation Law, section 40.

§ 13. District steam corporations.—Any corporation now
or hereafter incorporated for the purpose of supplying steam to
consumers from a central station or stations through pipes laid in
the public streets, shall be known as a district steam corporation,
and upon the application, in writing, of the owner or occupant of
any building or premises, within one hundred feet of any street
main laid down by any such corporation, and payment by him of
all money due from him to it, such corporation shall supply steam
as may be required for heating such building or premises, notwith- -
standing there may be rent or compensation in arrears for steam
supplied, or for meter, pipe or fittings furnished to a former occu-_
pant thereof, unless such owner or occupant shall have undertaken
or agreed with the former occupant to pay or to exonerate him
from the payment of such arrears, and shall refuse or neglect to
pay the same; and if, for the space of twenty days after such appli-
eation, and the deposit, if required, of a reasonable sum to cover
the cost of connection and two months’ steam supply, the corpora-
tion shall refuse or neglect to supply steam as required, it shall —
forfeit to such applicant the sum of ten dollars and the further sum
of five dollars for every day thereafter during which such refusal
or neglect shall continue; but no such corporation shall be required
to lay a service pipe for the purpose of supplying steam to any
applicant where the ground in which such pipe is required to be
laid shall be frozen, or otherwise present serious obstacles to laying
the same, nor unless the applicant, if required, shall deposit in
advance with the corporation a sum of money sufficient to pay for
two months’ steam supply and the cost of the necessary connec-
tions and of the erection of a meter and such other speciah appara-
tus as are required for use in connection with such steam supply,
nor unless the applicant shall provide the space and right of way:
necessary for the erection, maintenance and use of such connec-
tions and apparatus, and signify his assent in writing to the reason-
able regulations of the corporation with reference to the supply of
steam .to consumers.

(Former section 18, L. 1890, ch. 567, as amended by L. 1892, ch. 691.)

The former section 13 of this law, as enacted by Laws of 1890, chapter
567, providing for consolidations, is now section 8; former section 14
renumbered as section 9; former section 15 renumbered as section 10; for-
District Steam CorroRaTIONsS. ' 205

 

The Business Corporations Law, §§ 14, 15.

 

mer section 16 renumbered as section 11, and former section 17 renum-
bered as section 12, such section numbers having been changed by Laws.
of 1892, chapter 691.

§ 14. Examination of meters by agent of dis-
trict steam corporations.— Any such corporation may make an
agreement with any of its customers, by which any of its officers or

agents shall be authorized, at all reasonable times to enter any
dwelling, store, building, room or place, supplied with steam by
such corporation and occupied by such customer, for the purpose:
of inspecting and examining the meters, devices, pipes, fittings and
appliances for supplying or regulating the supply of steam, and for
ascertaining the quantity of steam.consumed, or the quantity of
water resulting from the condensation of steam consumed. Every
such agreement shall further provide that such officer or agent
shall exhibit his written authority if requested by the occupant of
such dwelling, store, building, room or place. Any person who
shall directly or indirectly prevent or hinder such officer or agent.
from entering. such dwelling, store, building, room or place, or:
from making such inspection or examination, in violation of such
agreement, shall forfeit to the corporation the sum of twenty-five:
dollars for each offense.

(Former section 19, L. 1890, ch. 567, as amended by L. 1892, ch. 691.)

See note ta preceding section,

-The logical place for the provisions of sections 13, 14 and 15 would’

seem to be in the Transportation Corporations Law, where corporations.
similar in character are grouped. :

§ 15. Entry by agent of district steam corporation.
to cut off steam.— If any person or persons, corporation or-
association supplied with steam by any such corporation, shall neg-
lect or refuse to pay the rent or remuneration for such steam, or:
for the meter, device, pipes, fittings or appliances, let by: such
corporation for supplying steam, or for ascertaining the quantity
of steam consumed, or the quantity of water resulting from the.
condensation of the steam consumed, agreed upon or due for the
same, as required by his, their or its contract with such corpora-
tion, the latter may thereupon stop and prevent the steam from

entering the premises of such person, persons, corporation or asso--

ciation, so neglecting or refusing to pay such rent or remuneration,
and may also in any ease, in which a person is liable to pay a for-
feiture, or to a fine or imprisonment, by reason of any act to or
towards such corporation or its property for which such forfeiture,.

y

‘
 

206 ' Water CoMPANIES.

 

 

The Business Corporations Law, § 16.

fine or penalty is imposed by law, stop and prevent the steam from
entering the premises of the person so liable, or if such person be
an officer or agent of any corporation or association, stop and pre-
vent the steam from entering the premises of such corporation or
association. In all cases in which such corporation is authorized
to stop and prevent the steam from entering any premises, it may,
by its officers, agents,.or workmen, enter into or on such premises
between the hours of eight o’clock in the forenoon and six o’clock
in the afternoon and cut off, disconnect, separate and carry away
any meter, device, pipe, fitting or other property of the corpora-
tion; and may cut off, disconnect and separate any meter, device,
pipe or fitting, whether the property of the corporation or not,
from the mains or pipes of such corporation.

(Former section 20, L. 1890, ch. 567, as amended by L. 1892, ch. 691.)

See notes to sections 13 and 14.

§ 16. Water companies.— No corporation shall be formed
under this chapter for the purpose of accumulating, storing, con-
ducting, furnishing or supplying water for domestic, manufactur-
ing or municipal purposes in the city of New York.

Any corporation formed for the purpose of supplying any other
city of the State with water, if unable to agree with the owners
of any real property required for the purpose of the corporation for
the purchase thereof, may acquire title thereto by condemnation.

(New, added by L. 1892, ch. 691.)

For provisions of the Condemnation Law, see post.

In the foregoing section, implied authority appears to be given for
forming corporations under this law ‘‘for the purpose of accumulating,
storing, conducting, furnishing or supplying water for domestic, manufac-
turing or municipal purposes,” except in the city of New York. It should
be observed, however, that the second section of this law, page 184, pro-
hibits the formation, under the Business Corporations Law, of any kind of
corporation that may be formed under any other general law of the State,
and that this prohibition would apply to a certain class of water corpo-
rations specially provided for in the Transportation Corporations Law,
section 80, to wit: Corporations “for the purpose of supplying water to
any of the cities, towns or villages, and the inhabitants thereof in this
State.” It would seem, therefore, that water companies for other pur-
poses may incorporate under the Business Corporations Law, provided
their operations are not to be cenducted in New York city. In the Matter
of the New York & White Plains Suburban Water Company, a certifi-
eate of incorporation drawn under the Business Corporations Law,
stated the objects of the proposed corporation to be “to acquire water by
purchase, development or otherwise; to construct reservoirs or water
Reat Estate Corporations; ConpDEMNATION. 207

 

The Business Corporations Law, § 17.

 

towers, erect pumping machinery, ‘laying of water mains, pipes, gates,
valves and hydrants; to furnish and sell water to manufactories, private
corporations and individuals for fire protection, manufacturing and domes-
tic use, and collect payment or rentals for the same.” ‘The certificate was
referred to the Attorney-General. In his. opinion, given April 17, 1893,
‘that official held as follows: “ * * * It (the Transportation Corpo-
rations Law) makes no provision for furnishing water for manufacturing
or hydraulic purposes. I am of the opinion that under said Business
‘Corporations Law, corporations may be formed for such purpose and the
purposes set forth in this certificate. This opinion is strengthened by the
implied authority given in section 16 of the Business Corporations Law.”

§ 17. Real Stats corporations; condemnation. —Any
corporation formed'for the purpose of developing or improving
real property, which lays out for public use roads, streets, avenues
or highways, upon or through its lands, if unable to agree ‘with
tthe owners of any real property required for the purpose of ex-
tending, continuing or connecting such roads, streets, avenues or
highways, for the purchase thereof, may acquire title thereto by
condemnation in the manner prescribed by law; provided such cor-
poration has the consents of the owners of not less than one-half
of all of the land which adjoins or abuts upon, or which will adjoin
or abut upon, such roads, streets, avenues or highways, or their
extensions, continuations or connections, when completed; and
such corporation may lay out and establish such roads, streets,
avenues or highways, and the extensions, continuations or con-
nections thereof, and may construct drains or sewers, and such .
bridges or culverts as may be necessary to maintain the grades of,
or for the extension, continuation or connection of, the roads,
streets, avenues or highways, so laid out; and may connect such
roads, streets, avenues or highways, with or across roads, streets,
avenues or highways, belonging to any other corporation or person,
‘but may not disturb, the established grades thereof. All lands so
taken by condemnation shall be deemed to be acquired for a public
“use.

(New section, added by L. 1900, ch. 518.)
 

 

 
TRANSPORTATION CORPORATIONS LAW.

Laws or 1890, CnaptTer 566, as AMENDED,

Berna, “An Acr ix Renation to TRANSPORTATION CoRPoRs-
tions, Excepting Rai.Roaps, ConstiruTing Cuarter Forry
oF THE GreneRAL Laws,” as AMENDED TO THE COMMENCEMENT
or THE LzaistatTive Session or 1907.

Tue Transportation Corporations Law.

ABTICLE 1. FERRY CORPORATIONS (§§ 1-6).

NAVIGATION CORPORATIONS (§§ 10-13).

STAGE-COACH CORPORATIONS (8§ 20-22).

TRAMWAY CORPORATIONS (§§ 30-33).

PIPE-LINE CORPORATIONS (§§ 40-54).

GAS AND ELECTRIC LIGHT CORPORATIONS (8§ 60-70). ‘
WATER-WORKS CORPORATIONS (§§ 80-85).

TELEGRAPH AND TELEPHONE CORPORATIONS (§8§ 100-109).
TURNPIKE, PLANK-ROAD AND BRIDGE CORPORATIONS (§§ 120-151).
MISCELLANEOUS PROVISIONS (§§ 160-163).

2 OS ww gp pe

ry
o
§

ARTICLE I.

Ferry Corporations.

Section 1. Short title of chapter.

Incorporation of ferry corporations.
Payment of capital stock.

Powers.

Effect of failure to pay in capital stock.
Posting schedule of rates.

.

Pom wb

Sxorton 1. Short title of chapter.—This chapter shall be
known as the transportation corporations law.

In addition to the provisions of the Transportation Corporations Law,
which particularly relate to corporations formed thereunder, other pro-
visions applicable to such corporations are contained in the General
Corporation Law and the Stock Corporation Law, respectively, pages 1
to 182,

§ 2. Incorporation of ferry corporations.—Three or more
persons may become a corporation for conducting and managing @
14
210 Ferry CoRPoRATIONS.

The Transportation Corporations Law, § 2.

ferry, by executing, acknowledging and filing a certificate, stating
the name of the corporation, the places from and to which the ferry
established or to be established shall run; the term not exceeding
fifty years for which the corporation is to exist, the amount and
number of shares of its capital stock; the number of directors
thereof, not less than three nor more than fifteen, and the names
of the directors for the first year.

For form of certificate of incorporation, see post, form No. 62.

INcoRPORATORS.—AIl the incorporators must be of full age, and at least
two-thirds of them must be citizens of the United States, and at least
one of them must be a resident of the State of New York. (General Corpo-
ration Law, section 4.) Only natural persons can become incorpo-
rators. (Id.) Corporations, co-partnerships and persons acting in a repre-
sentative capacity, are, therefore, excluded from acting as incorporators.
However, after the formation of the corporation, co-partnerships may
become stockholders, so also may persons-acting as executors, adminis-
trators, guardians or trustees. (Stock Corporation Law, section 54.)
Any stock corporation may likewise acquire, hold and dispose of the stock
of any corporation in conformity with the provisions of the Stock Corpora-
tion Law, section 40.) .

CorPoRATE NamEe.— The name of the corporation must not be the same
nor similar to that of any other domestic corporation. (General Corpo-
ration Law, section 6.) At any time after incorporation the name
may be changed by proper proceedings. (See Code of Civil Procedure,
sections 2410-17, pages 12-16.) In the formation of corporations under this
law the word “limited’’ should not be used as a part of the corporate
title, as it can serve no good purpose and, if used, would create a mis-
leading impression that the corporation had been organized under chap-
ter 611, Laws of 1875, which was repealed in 1890. See, also, comments
under “ Liability of Stockholders,” page ‘188.

OxssEctTs.— The objects stated in the certificate must be within the scope
of this article of the law.

TERM OF EXISTENCE.— The duration of the corporation cannot be fixed
for a longer term than fifty years. The corporate existence may, however,
be extended prior to the expiration thereof. (General Corporation Law,
section 32.)

CapiTaL Stocx.— The amount of capital stock must be definitely stated.
The statutes contain express provisions permitting stock corporations to
have preferred as well as common stock, and different classes of pre-
ferred stock, if the certificate of incorporation so provides, or to make
preferred issues after organization. (Stock Corp. Law, § 47.) The amount
of capital stock may be increased or reduced after incorporation, whenever
necessary. (Stock Corp. Law, §§ 44, 45 and 46.) Partly paid stock may
be issued if provided for in the certificate of incorporation. (Stock Corp.
Law, § 62.)

SHAREs OF STocKk.— Under the foregoing provisions of section 2 there is
no maximum or minimum limit as to the par value of shares, therefore
the capital stock may be divided into such number of shares as the
Ferry CorporaTIons. 211

The Transportation Corporations Law, § 2.

incorporators may elect, but the number of shares must be stated in the
certificate of incorporation. The par value of the shares may be increased
or reduced after incorporation, if deemed desirable, without changing the
‘amount of the capital stock. (Stock Corporation Law, section 56.)

DrrEctors.— The number of directors is required to be definitely stated
in the certificate of incorporation, and the number so stated must be
within the maximum and minimum limits fixed by law. Whenever desir-
able after incorporation, the number of directors may be changed. (Stock
Corporation Law, section 21.) Vacancies in the board of directors are to
be filled in the manner prescribed in the by-laws. (Stock Corporation
Law, section 20.) At least one of the directors must be a resident of the
State of New York. (General Corporation Law, section 29.) Directors
need not be stockholders, if the certificate of incorporation. or a by-law
of stockholders so provides. (Stock Corporation Law, section 20.)

ADDITIONAL PoweErs.— If desired, the certificate of incorporation may
provide for cumulative voting at elections of directors (General Corpora-
‘tion Law, section 20); and may reserve the right to acquire, hold and dis-
‘pose of the stocks and bonds of any other corporation. (Stock Corpora-
tion Law, section 40.)

LIABILITY OF STOCKHOLDERS.— The liability of stockholders of corpora-
tions formed under this article is regulated by the Stock Corporation Law;
sections 54 and 55. It will thus be seen that such corporations are what
have been popularly termed “ limited liability companies,” without mak-
ing any statement to that effect in the certificate, and without using the
‘word “limited” as a part of the corporate title.

Finine anp Recorpine.— The certificate of incorporation must be filed
‘and recorded in the office of the Secretary of State, and a copy thereof
-duly certified by the Secretary of State, or a duplicate original certificate,
must be filed and recorded in the office of the clerk of the county in which
the office of the corporation is to be located. (General Corporation Law,
section 5.) If a certificate is to be recorded in a county other than the
one where it is executed, the county clerk’s certificate should be attached,
authenticating the act of the notary, justice of the peace, or commissioner
of deeds taking the acknowledgment. The Secretary of State does not
require such county clerk’s certificate as to an acknowledgment taken
within the State before a person duly authorized to take the same, but an
acknowledgment or affidavit taken by a notary public in another State
must be authenticated by the county clerk. .

Frrs.—In the office of the Secretary of State: Filing, ten dollars;
recording, fifteen cents a folio. In the county clerk’s office: Filing, six
cents; recording, ten cents a folio. In addition to such payments, an
organization tax of one-twentieth of one per cent. upon the capital stock
‘must be paid to the State Treasurer before the certificate can be filed.
For text of statutes regulating these payments, and information relative
‘to remittances, see pages 73-79.

In the absence of proof of bad faith, a sale of ferry franchise by munici-
pal officers is not necessarily illegal by reason of the fact that a mini-
mum rate of ferriage is not fixed by the terms of sale, and that thereby a
eonnecting railroad may, because of its powers to prorate a joint charge

’
219 Ferry Corporations.

 

The Transportation Corporations Law, §§ 3, 4, 5, 6.

 

of: ferriage and railroad fare, obtain an advantage over other bidders.
(Robinson v. Gilroy, 10 Mise. R., 205.)

§ 3. Half of capital to be paid in before commencing
business.—No ferry corporation shall be authorized to com-
mence business until at least one-half its capital shall have been
actually paid in, nor until affidavits of such payment, sworn to by
a majority of the directors, shal! have been filed, in each of the
offices in which the certificate of incorporation is required to be
filed.

For form of affidavit, see post, form No. 63.

§ 4. Powers —In addition to the powers conferred by the
general and stock corporation laws, any such corporation shall have
power to take by grant from any authority entitled by the laws of
this state to make such grant, or by assignment, the franchise or
right to establish and maintain ferries, at the place specified in the:
certificate of incorporation, and to hold and exercise such franchise
or right and carry on the business appertaining thereto, subject to
the rights of the mayor, aldermen and commonalty of the city of
New York, or any other municipal corporation, or of the owner or
owners of any legally existing ferry, or the vested rights of any
other corporation whatever.

For the provisions of the Highway Law relative to obtaining licenses.
for keeping ferries, see page 182. j

If a ferry company conducts its business with such care and skill as
will make entrance upon its boats safe for persons of ordinary prudence,
it meets the requirements of the law. (Race v. Union Ferry Co. 188
N. Y., 644.)

§ 5. Effect of failure to pay in capital stock.—The capital
stock of every such corporation shall all be paid in, one-half thereof
within one year and the other half thereof within two years from
its incorporation, or such corporation shall be dissolved.

The mere failure to pay in the capital stock within the statutory time
does not work a dissolution ipso facto ; when the words of forfeiture are
“such corporation shall be dissolved,” a liability for a forfeiture of cor-
porate rights is created, but proceedings are necessary to accomplish an
actual dissolution. (People v. Buffalo Stone & Cement Co., 131 N. Y., 140;
People v. U. & D. R. R. Co., 128 N. Y., 240; Denike v. N. Y., ete., Lime:
Co., 80 N. Y., 599; Matter of Brooklyn El. R. R. Co., 125 N. Y., 484;
Matter of N. Y. & L. I. Bridge Co. v. Smith, 148 N. Y., 540.)

§ 6. Must post schedule of rates.—Every corporation
operating any ferry in this state, or between this state and any
other state, and from or to a city of five hundred thousand inhabi-
Ferry Corporations. 913

 

The Transportation Corporations Law.

 

tants or over, shall post in a conspicuous and accessible place in each
of its ferry-houses, in plain view of the passengers, a schedule
plainly printed in the English language, of the rates of ferriage
charged thereon and authorized by law to be charged for. ferriage
over such ferry.

See, also, in reference to posting schedule rates, section 174 of the
Highway Law, post, page 214,

ADDITIONAL PROVISIONS. —In addition to the foregoing article of the
Transportation Corporations Law, other provisions in relation to ferries
are as follows, to wit:

Licenses.—The County Court in each of the counties of this
State, or the City Court of.a city, may grant licenses for keeping
ferries in their respective counties and cities, to such persons as the
‘court may deem proper, for a term not exceeding five years. No
license shall be granted to a person, other than the owner of the
land through which that part of the highway adjoining to the ferry
shall run, unless the owner is not a suitable person or shall feglect
to apply after being served with eight days written notice from
such other person of the time and place at which he shall apply for
such license, or having obtained such license, shall neglect to com-
ply with the conditions of the license, or maintain the ferry. Every
license shall be entered in the book of minutes of the court by the
‘clerk; and a certified copy thereof shall be delivered to the person
licensed. When the waters over which any ferry may be used,
shall divide two counties or cities, or a county and city, a license
obtained in either of the counties or cities shall be sufficient to
authorize transportation of persons, goods, wares and merchandise,
to and from either side of such waters. (The Highway Law. L.
1890, ch. 568, section 170.)

For forms of application, notice, proof of service of notice, license and clerk’s
wertificate, see post, forms Nos. 64, 65, 66, 67, 68 and 69.

Undertaking.—Every person applying for such license shall,
before the same is granted, execute and file with the clerk of the
court his undertaking, with one or more sureties, approved by the
court, to the effect that he will attend such ferry with sufficient

 

Srcrion 1. The rate of ferriage to be charged for foot passengers by
any ferry now or hereafter in operation between the city of New York
‘and any point or points on the shores of the county of Richmond in the
State of New York, shall not exceed five cents for the first six miles
traversed and one cent in addition thereto for each mile or fraction thereot
in ‘excess of six. (Laws of 1897, ch. 328.)
214 Ferry Corporations.

The Transportation Corporations Law.

and safe boats and other implements, and so many men to work
the same as shall be necessary during the several hours in each day,
and at such rates as the court shall direct. (The Highway Law, L.
1890, ch. 568, section 171.)

For form of undertaking, see post, forms Nos. 70, 71 and 72.

Appendages for rope ferries.—Any person licensed to keep
a ferry may, with the written consent of the commissioners of high-
ways of the town where such ferry may be, erect and maintain
within the limits of the highway, at such point as shall be desig-
nated in such consent, a post or posts, with all necessary braces and
appendages, for a rope ferry. (The Highway Law, L. 1890, ch.
568, section 172.) ,

Superintendent of public works may lease right of
passage.—The superintendent of public works may, where
ferries are now maintained at tide-water, lease the right of passage
for foot passengers across State lands adjoining tide-water for a
periodmot exceeding ten years, on such conditions as he may deem
advantageous to the State. (The Highway Law, L. 1890, ch. 568,
section 173.) :

When schedules to be posted.—Every person licensed to
operate or control any ferry in this State, or between this State and
any other State, operating from or to a city of fifty thousand inhabi-
tants or over, shall post in a conspicuous and accessible position out-
side and adjacent to each entrance to such ferry, and in at least four
accessible places, in plain view of the passengers upon each of the
boats used on such ferry, a schedule plainly printed in the English
language, of the rates of ferriage charged thereon, and authorized
by law to be charged for ferriage over such ferry. If any such
person shall fail to comply with the provisions of this section, or
shall post a false schedule, he shall be guilty of a misdemeanor.
(The Highway Law, L. 1890, ch. 568, section 174, as amended
by L. 1900, ch. 313.)

See, also, the provision as to posting schedule of rates contained in the
Transportation Corporations Law, section 6.

 

For explanation of interval in numbering between section ‘6, supra, and
section 10, infra, see page 106.
Navigation Corporations. 215

 

The Transportation Corporations Law, § 10.

ARTICLE II.

Navication Corporation.*

Srcrion 10. Formation of corporation.
11. Navigation between additional ports.
12. Payment of capital stock.’
ie 13. Ferries unauthorized.

§ 10. Formation of corporation.—Seven or more persons
may become a corporation, for the purpose of building for their
own use, equipping, furnishing, fitting, purchasing, chartering,
navigating or owning steam, sail or other boats, ships, vessels or
other property to be used in any lawful business, trade, commerce
or navigation upon the ocean, or any seas, sounds, lakes, rivers,
canals or other waterways, and for the carriage, transportation or

storing of lading, freight, mails, property or passengers thereon |

by making, signing, acknowledging and filing a certificate, stating
the name of the corporation, the specific objects for which it is
formed, the waters to be navigated, and in case of ocean steamers,
the ports between which such vessels are intended to be navigated,
the amount of its capital stock, which shall not be less than five
thousand, nor more than four million dollars, the term of
its existence; not to exceed fifty years, the number of shares of
which the capital stock shall consist, the number of directors
thereof, riot less than five nor more than thirteen, the names of the
directors for the first year, and the name of the city, village or town
and county in which its principal office is to be situated, the number
of shares of stock which each subscriber of the certificate agrees to
take, which must in the aggregate equal ten per centum of the
capital and at least ten per centum of which must be paid in cash.
Such certificate shall have attached thereto, as a part thereof, the
affidavit of at least three of such directors, to the effect that ten per
centum of such capital stock has been in good faith subscribed, and
at least ten per centum of such subscription has been paid in cash.
No railroad corporation shall have, own or hold any stock in any
such corporation:
(Thus amended by L. 1896, ch. 935, and L. 1901, ch. 483.)

By chapter 483, Laws of 1901, the foregoing section was amended by,
striking out a provision which read as follows: ‘‘ No corporation organ-

 

*So in the original.
216 NavieaTion CoRPoRATIONS.

 

The Transportation Corporations Law, §§ 11, 12.

ized under this act, and designed to navigate any of the canals of the
state, shall have a capital stock exceeding fifty thousand dollars.”

For form of certificate of incorporation, see post, form No. 738.

For provisions exempting certain navigation companies from taxation
for State and local purposes, see the Tax Law.

See comments under “ Incorporators,” ‘Corporate Name,” “ Objects,’
“ Capital Stock,” “Shares of Stock,” ‘‘ Directors,’ ‘ Additional Powers,”
“Liability of Stockholders,’ “ Filing and Recording,” and “ Fees,’ on
pages 210, 211, all of which are applicable to corporations organized under
this article.

The rigid rule of the common law, which applies between innkeeper
and guest as to responsibility for the guest’s personal effects, is properly
applicable between a passenger steamboat company and passengers to
whom it furnishes rooms and entertainment. (Adams v. New Jersey
Steamboat Co., 151 N. Y., 163, aff’g 9 Misc., 25.)

Where a carrier sells tickets over a connecting line, and assumes to
secure accommodations over that line, it is liable for the. failure of such
other line to furnish proper accommodations, even when the ficket states
‘that the company acts as agent and is not responsible beyond its own
line. (Bussman v. Western Transit Co., 9 Misc., 410, and cases therein
cited.)

§ 11. Navigation between additional ports.—Any
such corporation desiring or intending to navigate boats, ships or
vessels, upon any other waters, or in case of ocean steamers be-
tween any other or additional ports than those named in its original
certificate, may from time to time, file a further certificate, in the
same manner as is prescribed by law for. the filing of the original
certificate, in which shall be stated such additional waters or ports
upon or between which such corporation desires to navigate vessels,
and thereafter such corporation may navigate its vessels upon such
waters and between such ports, with the like effect as if they had
been named in the original certificate.

§ 12. Payment of capital stock.—The capital stock of
such corporation shall be paid in, at least one-half thereof, within
one year, and the remainder within two years from its incorpora-
tion, or the corporation shall be dissolved. Within thirty days after
the payment of the last installment, a certificate stating that the
whole amount of such capital stock has been paid in shall be made,
signed and sworn to by the president and a majority of the diree-
tors of the corporation, and filed and recorded in the offices where
the original certificates of incorporation were filed.

For form of certificate, see post, form No. 74.
Srace Coacn Corporations. 217

The Transportation Corporations Law, §§ 13, 20, 21.

 

The provision imposing the penalty of dissolution in case of failure to
pay in the capital stock within the statutory time merely creates a lia-
bility for a forfeiture of corporate rights. Proceedings must be taken
to accomplish an actual dissolution. (People v. U. & D. R. R. Co., 128
N. Y., 240; In re Brooklyn Blevated R. R. Co., 125 N. Y., 434; Denike v.
N. Y., ete., Lime Co., 80 N. Y., 599.) °

§ 13. Ferries unauthorized.—This article shall not author-
ize the formation of any ferry corporation to ply between the city
of New York and any other point.

For explanation of interval in numbering between section 18, supra,
and section 20, infra, see page 99.

ARTICLE III.

Stacr Coacn CorPoRATIONS.

Section 20. Incorporation.
21. Alteration or extension of route.
22. Powers.

§ 20. Incorporation.—Five, or more persons, may become
a corporation for the purpose of establishing, maintaining and oper-
ating any stage or omnibus route or routes for public use in the
conveyance of persons and property elsewhere than in. the city of
New York, or any stage route or routes already established for a
like public use, by making, signing, acknowledging and filing a
certificate which shall state the name of the corporation, the num-
ber of years it is to continue, the route or routes upon which it is
intended to run as near as practicable, the number of the directors
thereof, not less than three nor more than five, the names of the
directors for the first year, the amount of its capital stock, the place
of residence of each subscriber thereto, and the number of shares
of stock he agrees to take in such corporation.

For form of certificate of incorporation, see post, form No. 75.

See comments under “Incorporators,” ‘Corporate Name,” “ Objects,”
“Capital Stock,” “Shares of Stock,” ‘“ Directors,” “ Additional Powers,”
“Liability of Stockholders,” “Filing and Recording,” and “Fees,” on
pages 210, 211, all of which are applicable to corporations under
this article. No maximum limit is prescribed within which the term of
existence of stage coach corporations is to be fixed.

§ 21. Alteration or extension of route —The directors may,
by a vote of two-thirds of their number, at any time alter or extend
218 Stace -Coacn CoRrPoRaTIONS.

 

The Transportation Corporations Law, §§ 22, 23.

 

the route or routes designated in the certificate of incorporation,
upon making, acknowledging, and filing a certificate to that effect,
in the offices where the original certificates of incorporation were
filed.

For form of certificate, see post, form No. 76.

§ 22. Powers.—In addition to the powers conferred by the
general and stock corporation laws, every such corporation shall
have power:

1. To take and convey persons and property in stages and
omnibuses, and to provide and run the necessary stages and omni-
buses upon their route or routes for the public use and to receive
compensation: therefor.

2. To erect and maintain all necessary and convenient build-
ings, fixtures and machinery for the use and accommodation of
their passengers and business.

§ 23. Existing routes and extensions.—Any corpora-
tion incorporated under any law of this state heretofore enacted
which owns and operates a lawfully established stage route which
has been continuously operated by such company or its prede-
cessors in title to such route for five years last past in any city of
the first-class, is hereby authorized and empowered to extend its
existing routes at any time or times and to operate the same as
extended with stages and omnibuses propelled by electricity or
any other motive power, in and upon any streets and highways
of such city, without further or other authority, proceeding, or
consent required under any act, general, public, private or local;
provided, however, that such extensions shall not become valid
until they shall have been first approved by the state board of
railroad commissioners, who, on giving their appraval, shall make
a certificate of such extension or extensions of route as approved,
which certificate shall be filed in the office of the secretary of state,
and in the office of the clerk of the county in which such extension
is located. Such company, on filing in said offices an acceptance
of the extensions specified in such certificate and on operating
such extensions, shall have the right to charge a fare not ex-
ceeding ten cents per passenger for a continuous ride over the
whole or any part of the routes owned or operated by it, and shall
pay a license fee to the city in which it operates equal to the charge
a
Tramway CoRPORATIONS. 219

 

The Transportation Corporations Law, § 30.

 

now in force for licensing similar stages and omnibuses, and shall
also pay to the comptroller or other chief fiscal officer of said city
five per centum per annum of its gross receipts from the operation.
of said routes. .

(New, added by L. 1900, ch. 657.)

For explanation of interval in numbering between section 22, supra,
and section 30, infra, see page 106.

f

ARTICLE Iv.

Tramway CoRPORATIONS.

Section 30. Incorporation.
31. Powers.
22. Condemnation of real property.
33. Crossings.

§ 30, Incorporation.—Thirteen or more persons may become.
a corporation for constructing, maintaining and operating an ele-
vated tramway, constructed of poles, piers, wires, rods, ropes, bars.
or chains, for the transportation of freight in suspended buckets,
cars or other receptacles, for hire, by making, signing, acknowledg-
ing and filing a certificate stating the name of the corporation, the.
number of years it is to continue, the places from and to which
such, tramway is to be constructed, maintained and operated, its.
length as near as may be, the name of each county through or in
which it is made or intended to be made, the amount of its capital
stock and the number of shares into which it is to be divided, the
number of the directors thereof, not less than three, the names and
places of residence of the directors for the first year, the place of
residence of each subscriber thereto and the number of shares he:
agrees to take in such corporation.

For form of certificate of incorporation, see post, form No. 77,

See comments-under “ Incorporators,” “ Corporate Name,” “ Objects,”
“ Qapital Stock,” “Shares of Stock,” “ Directors,” “ Additional Powers,”
 

 

 

220 Tramway CoRPORATIONS.

 

The Transportation Corporations Law, §§ 31, 32, 33.

 

“Liability of Stockholders,” ‘“ Filing and Recording,” and ‘“ Fees,” on
pages 210, 211, all of which are applicable to corporations under this
article. No maximum limit is prescribed within which the duration of

tramway corporations is to be fixed.

§ 31. Powers.—Every such corporation, in addition to the
powers conferred by the general and stock corporation laws, shall
have power:

1. To cause such examination and surveys for its proposed
tramway to be made as may be necessary to the selection of the
most advantageous route, and for such purpose by its officers and
servants, to enter upon the lands or waters of any person, but sub-
ject to responsibility for all damages done thereto.

2. To lay out its tramway and to construct the same as hereby
provided.

3. To erect and maintain all necessary and convenient build-
ings, stations, fixtures and machinery for the accommodation and
transaction of its business.

§ 32. May acquire land by condemnation.—In case
any such corporation is unable to agree for the purchase, use or
lease of any real property required for the purposes of its incorpo-
ration, it shall have the right to acquire title to the same by con-
-demnation.

See the provisions of the Condemnation Law, post.

§ 33. Crossings.— Whenever any tramway, constructed by
any such corporation, shall cross a railroad, highway, turnpike,
plankroad or canal, such tramway shall be so constructed as not to
interfere with the free use of such railroad, highway, turnpike,
plankroad or canal for the purposes for which they were intended.

For explanation of interval in numbering between section 33, supra, and
section 40, infra, see page 106.
Prez Line Corporations. Q2T

The Transportation Corporations Law, § 40.

 

ARTICLE V.

Pier Linz Corporations.

Section 40. Incorporation.

41. Location of line.

42. Condemnation of real property.

48. Railroad, turnpike, plank-road and highway crossings.

44. Crossings of canals, rivers and creeks.

45. Consent of local authorities.

46. Construction through villages and cities.

47. Over Indian reservations.

48. Over State lands.

49. Additional powers.

50. Use of line to be public; storage; liable as common carriers;
rates and charges.

61. Receipts for property; cancellation of vouchers.

52. Monthly statements.

58. Fences, farm crossings and use of line not inclosed.

54. Taxation of property.

§ 40. Incorporation.—Twelve or more persons may become a
corporation for constructing and operating for public use, except in
the city of New York, lines of pipe for conveying or transporting
therein petroieum, gas, liquids or any products or property, or for
maintaining and operating any line of pipe already constructed and
owned by any corporation, person or persons, except in such city,
for the public use, by making, signing, acknowledging and filing a
certificate stating the name of the corporation, the number of years
it is to continue, the places from and to which it is to be constructed
or maintained and operated, its length as near as may be, the name
of each county through or into which it is to be constructed; the
amount of its capital stock, which shall not be less than fifteen hun-
dred dollars for every mile of pipe constructed or proposed to be
constructed, and the number of shares of which it shall consist; the
number of directors not less than seven, and the names and places
of residence of the directors for the first year, and the place of
residence of each subscriber and the number of shares he agrees to

take in such corporation, which must in the aggregate equal ten
hundred and fifty dollars for every mile of pipe constructed or pro-
posed to be constructed, and twenty-five per cent of which must be
paid in cash. Such certificate shall have indorsed thereon or
appended thereto and as a part thereof, an affidavit made by at least
three of the directors named therein that at least ten hundred and
fifty dollars of stock for every mile of line proposed to be con-
292 Piez Ling Corporations.

 

—z

The Transportation Corporations Law, § 41.

 

structed or maintained and operated has been in good faith sub-.
scribed, and twenty-five per cent paid in money thereon, and that
it is intended in good faith to construct or to maintain and operate
the line of pipe mentioned in such certificate, and that such cor-
poration was not projected or formed with the intent er for the pur-
pose of injuring any person or corporation, nor for the purpose of
selling or conveying its franchise to any person or corporation, nor
for any fraudulent purpose.

For form of certificate of incorporation, see post, form No. 78.

See comments under “ Incorporators,” “Corporate Name,” “ Objects,”
“Capital Stock,” “Shares of Stock,” “ Directors,” “ Additional Powers,”
“Liability of Stockholders,” “Filing and Recording,” and “Fees,” on
‘pages 210, 211, all of which are applicable to pipe line corporations, but
it should be carefully noted that the capital stock of pipe line corporations
“shall not be less than $1,500 for every mile of pipe constructed or pro-
posed to be constructed.” There is no maximum limit for the duration
of these corporations.

§ 41. Location of line.—Every such corporation shall before
commencing the construction of its pipe line in any county, or any
proceeding for the condemnation of real property, plainly and dis-
tinctly mark and designate the line adopted and located by them by
‘a line of stakes consecutively numbered and equally distant, and
not more than twenty rods from each other, so that each line can
be definitely known and ascertained in all places, and make a map
-and survey of the route so located and staked out, and shall indicate
thereon plainly the points where such route crosses each parcel of
land to which they have not acquired title by agreement, and shall
cause such map and survey to be certified by the president and engi-
neer, and filed in the office of the clerk of the county into or through
which the line so located and mapped passes, and shall give to the
owner or occupant, if he is known or can be ascertained, of every
parcel of land through which such route passes, the title to which
has not been acquired by purchase, written notice of the filing of
such map and survey, stating that such route passes over or across
such owner’s or occupant’s lands, and that the route thereof is
indicated thereon by such line of stakes. Any occupant or pwner
of such lands feeling aggrieved by the proposed location, may,
within fifteen days after the service of such notice, give ten days
written notice to the corporation, by service upon the president,
engineer, or any director thereof, and to the owner or occupant of
any lands to be affected by the alteration to be proposed by hin,
of the time and place of an application to be made by him to a
Pree Linz Corporations. 923

 

The Transportation Corporations Law, § 42.

 

apaaial term of the Supreme Court in the judicial district in which
the lands are situated for the appointment of commissioners to
relocate such line. If upon the hearing the court shall consider
that sufficient cause exists therefor, it shall appoint three disin-
terested persons commissioners to examine the route located and the
proposed alteration thereof, and direct the mode of proceeding,
who shall report to the court the facts relating thereto and their
opinion as to the proposed alteration, and what, if any, alteration
should be made in such line, and the court shall thereupon make
such order as it shall deem proper in relation to such alteration,
and determine the location of such line, and fix and adjust the costs,
fees and charges of the commissioners, and the costs and charges of
the proceedings, and direct by which party the same shall be paid,
and may enforce payment thereof by proceedings as for a'contempt
of court, for refusal to pay costs directed to be paid by an order of
the court, and such order shall be final as to the location of the
line upon the lands embraced therein. Such corporation shall not
commence the work of constructing or laying its line of pipe, or
institute proceedings for the condemnation of real property, in any
county, until after the expiration of fifteen days from the service
by it of the notice herein required, nor until all applications for a
relocation of its line in such county if any are made, have heen
finally determined. :
For forms under this section, see post, forms Nos. 79, 80, 81, 82, 83 and 84.

§ 42. Condemnation of real property.—In case such cor-
poration is unable to agree for the purchase of any real estate
required for the purposes of its incorporation, and its line of pipe
in the county in which such real estate is situated has been finally
located, it shall have the right to acquire title thereto by condemna-
tion, but such corporation shall not locate or construct any line of
pipe through or under any building, dooryard, lawn, garden or
orchard, except by the consent of the owner thereof in writing
duly acknowledged, nor through any cemetery or burial ground,
nor within one hundred feet of any building, except where such
line is authorized by public officers to be laid across or upon any.
public highway, or where the same is laid across or upon any turn-
pike or plank-road. No pipes shall be laid for the purpose of carry-
ing petroleum, gas or other products or property through or under
any of the streets in the cities of this State, unless such corporation
shall first obtain the consent of a majority of the property owners
on the streets which may be selected for the laying of pipes, and
«

224 Prez Line Corporations.

 

The Transportation Corporations Law, §§ 43, 44, 45.

such pipe-line shall be located with all reasonable care and prudence
so as to avoid danger from the bursting of the pipes.
For provisions of condemnation law, see post.

§ 43. Railroad, turnpike, plank- road and highway cross-
ings.—Whenever any line of pipe of any such corporation shall
necessarily cross any railroad, highway, turnpike or plank-road,
such line of pipe shall be made to cross under such railroad, high-
way, turnpike or plank-road and with the least injury thereto prac-
ticable, and unless the right to cross the same shall be acquired by
agreement, compensation shall be ascertained and made to the
owners thereof, or to the public in case of highways, in the manner
prescribed in the condemnation law, but no exclusive title or use
shall be so acquired as against any railroad, turnpike or plank-road
corporation, nor as against the rights of the people of’ this State in
any public highway, but the rights acquired shall be a common use
of the lands in such manner as to be of the least practical injury
to such railroad, turnpike or plank-road, consistent with the use
thereof by such pipe-line corporation, nor shall any such corporation
take or use any lands, fixtures or erections of any railroad corpora-
tion, or have the right to acquire by condemnation the title or use,
or right to run along or upon the lands of any such corporation,
except for the purpose of directly crossing the same when necessary.

§ 44. Construction across and along canals, rivers and
creeks.—No pipe line shall be constructed upon or across any
of the canals of this State, except by the consent of and in the
manner and upon the terms prescribed by the superintendent of
public works, unless constructed upon a fixed bridge across such
canal, and with the consent of the person for whose benefit such
bridge is constructed and maintained, or upon such a bridge over
the canal, at the crossing of a publie highway or street, with the
consent a the public officers having the supervision dheréot. or of
the municipal authorities of any village or city within whose limits
such bridge may be, nor shall the pipes of any such corporation be
laid through or along the banks of any of the canals of this State,
nor through or under any of its rivers or creeks, unless such pipes
shall be encased so as to prevent leakage, in such manner as shall
be approved by the superintendent of public works.

§ 45. Consent of local authorities.—No pipe line shall be
constructed across, along or upon any public highway without the
consent of the commissioners of highways of the town in which
such highway is located, upon such terms as may be agreed upon

\
Pree Line Corporations. 925

 

The Transportation Corporations Law, §3 46, 47.

 

with such commissioners. If such consent or the consent of the
commissioners or municipal authorities required by the preceding
section can not be obtained, application may be made to the general
term of the Supreme Court of the department in which such high-
way or bridge is situated for an order permitting the corporation to
construct its line across, along or upon such highway, or across or
upon such bridge. The application shall be by duly verified peti-
tion and notice which shall'be served upon the commissioners of
highways of the town in which the highway is situated, or the
municipal authorities of the village or city where such bridge is
located, according to the practice or order of the court, or an order
to show cause, and the court upon the hearing of the application
may grant an order permitting the line to be so constructed in such
manner and upon such terms as it may direct. ’

For forms under this section, see post, forms Nos. 85, 86 and 87.

§ 46. Construction through villages and cities.—No pipe
line shall be constructed into or through any incorporated village or
city in this state, unless authorized by a resolution prescribing the
route, manner of construction and terms upon which granted,
adopted at a regular meeting of the board of trustees of the village
or the common council of the city by a two-thirds vote of such board
or council, but such resolution shall not affect any private right.
No pavement shall be removed in any city under the provisions
of this article, unless done under the direction of the common coun-
cil, nor until such corporation shall give a: bond in such sum as the
common council may require, for the replacing of any pavements
which shall have been removed. In case any pavement shall have
been removed and not properly relaid, the common council may
bring suit in any court of record, for the cost of relaying such
pavement, against any. such corporation. No gas-houses shall be
erected in any city under the provisions of this article, for supply-
ing gas to the inhabitants, unless consent is first given by the cor-

porate authorities of the city.

§ 47. Over Indian reservations.—Such corporation may
contract with the chiefs of any nations of Indians over whose lands
it may be necessary to construct their pipe line for the right to
construct such pipe line upon such lands, but no such contract shall
vest in the corporation the fee of such lands, nor the. right to occupy
the same for any purpose other than for the construction, operation
and maintenance of such pipe line, nor shall such contract be valid

15
226 Pier Line Corporations. —

 

The Transportation Corporations Law, §§ 48, 49.

 

or effectual until the same has been ratified by the county court of
the county in which the lands are situated.

§ 48. Over state lands.—The commissioners of the land office
shall have power to grant to any pipe line corporation any lands
belonging to the people of this state which may be required for the
purposes of its incorporation on such terms as may be agreed on
by them or such corporation may acquire title thereto by condemna-
tion, and if any lands owned by any county, city or town as required
by such corporation for such purposes, the county, city or town
officers having charge of such lands may grant them to such corpo-
ration upon such terms and for such compensation as may be
agreed upon.

For provisions of the condemnation law, see post.

§ 49. Additional powers.—Every corporation formed under
this article shall in addition to the powers conferred by the general
and stock corporation law have power:

1. To cause such examinations and surveys of its proposed line
of pipe to be made as may be necessary to the selection of the most
advantageous route, and for such purpose by its officers, agents or
servants may enter upon the lands or waters of any person, upon,
through or across which such corporation can construct its line of
pipe, under the provisions of this article, subject however to lia-
bility for all actual damage which shall be done thereto.

2. To take and hold such voluntary grants of real estate and *
other property, as shall be made to it to aid in the construction,
maintenance, operation and accommodation of its pipe line.

3. To lay out its pipe line route not exceeding twelve feet in
width, but at the terminations of such line and at all receiving and
discharging points and at all places where machinery may properly
or must necessarily be set up for the operation of such pipe line it
may take such additional width, and for such length as may be
necessary.

4. To take and convey through pipes any property, substance
or product capable of transportation therein by any force, power or
mechanical agency, and to erect and maintain all necessary and con-
venient buildings, stations, fixtures and machinery for the purposes
of its incorporation.

5. To regulate the time and manner in which property shall be
transported over its pipe lines, and the compensation to. be paid
therefor, but such compensation shall not exceed the sum or be
above the rate of twenty-five cents per one hundred miles for the
Pree Line Corporations. 227

 

The Transportation Corporations Law, §§ 50, 51.

 

transportation of forty-two gallons of any product transported on
lines of one hundred miles in length or over, which shall be
reckoned and adjusted upon the quantity or number of gallons ©
delivered by such corporation at the point to which it shall have
undertaken to deliver the same.

§ 50. Use of line to be public; storage ; liable as common
earriers; rates and charges.—The pipe lines of every such
corporation shall be open for transportation to the public use, and
all persons desiring to transport products through such pipe line
shall have the absolute right upon equal terms to such transporta-
tion in the order of application therefor, on complying with the
general requirements of such corporation, as to delivery for and
payment of such transportation, but no application for sch trans-
portation shall be valid beyond or for a greater quantity of pro-
-ducts than the applicant shall then own and have ready for delivery
for transportation to such corporation, and every such corporation
shall provide suitable and necessary receptacles for receiving all
such products for transportation, and for storage at the place of
delivery until the same can reasonably be moved by the con-
signee, and shall be liable as common carriers therefor, from the
time the same is delivered for transportation until a reasonable time
after the same has been transported to the place of consignment
and ready for delivery to the consignee, which time shall be fixed
by general regulation by the corporation, and shall not be less than
two days from and after the same shall be ready for delivery and
notice thereof given to such consignee, and all rates and charges of
every description, for or on account of or in any manner connected
with the transportation of any products, shall be fixed by such cor-
poration by general rules and regulations, which shall be applicable
to all parties who shall transport any products through such pipe
line; or deliver or contract to deliver products for transportation
and shall be written or printed and exposed to public view and at
all times open to public examination.

§ 51. Receipts for property ; cancellation of vouchers;
delivery of property.—No receipt, certificate or order of any
kind shall be made, accepted or issued by any pipe line corporation
for any commodity unless the commodity represented by them is
actually in- possession of the corporation at the time of making,
issuing or acceptance thereof. Whenever any such corporation
shall have parted with the possession of any commodity and received
therefor any order, voucher, receipt or certificate, such order,

x
998 Pree Line Corporations.

 

The Transportation Corporations Law, §§ 52, 53.

voucher, receipt or certificate shall not be issued or used again, but
shall be canceled with the word “canceled” stamped or printed.
legibly across the face thereof, and such canceled order, youcher,
receipt or certificate shall be filed and preserved by such corpora-
tion and a record of the same kept by the secretary thereof. No
petroleum or other commodity received for transportation by such
corporation shall be delivered to any person without the presenta-
tion and surrender of all vouchers, receipts, orders or certificates.
that have been issued or accepted for the same.

§ 52. Monthly statements.—Every pipe line corporation
shall make monthly a specific statement showing the amount of all
commodities received, fhe amount delivered during the month, and
the stock on hand on the last day of each month of the year, and
how much of such stock is represented by outstanding certificates,,
vouchers, receipts, or orders, and how much in credit balances on
the books of the corporation. Such statement shall be made on or
before the tenth day of the succeeding month and verified by the
oath of the president and secretary that it is in all respects true and
correct, and shall be filed within three days thereafter in the county
clerk’s office in the county where the principal office of the
corporation is located, and a true copy of the same posted in a
conspicuous place in its principal office for at least thirty days
thereafter.

For form of statement, see post, form No. 88.

§ 53. Fences; farm crossing and use of line not inclosed.-—
It shall not be necessary for any such corporation to fence the
lands acquired by them for the purposes of its incorporation. But,
if not enclosed by a substantial fence, the owner of the adjoining:
lands from whom such lands were obtained, his heirs or assigns,.
may occupy and use such lands in any manner not injurious to the
interests of the corporation and shall not be liable therefor, or for
any trespass upon any such lands except for willful or negligent.
injuries to the pipes, fixtures, machinery or personal property of the
corporation. If the corporation shall keep such lands inclosed it
shall construct and provide all suitable and necessary crossings with
gates for the use and convenience of any owners of lands adjoining
the portion of its lands so inclosed, and no claim shall be made by
it against any owner of adjoining lands to make or contribute to
the making or maintaining of any division fence between such
adjoining lands and its lands, and if it shall neglect to keep and
maintain substantial fences along its lands the owners of adjoining:
Gas anp Exzorric Lignr Corporations. 229

The Transportation Corporations Law, §§ 54, 60.

Jands may construct and maintain all farm or division fences, and
all line fences crossed by sich pipe line in the same manner as
though it had not acquired such lands for such pipe line, and it
shall be liable for all injuries to such fences caused or done by any
of its officers or agents, or any persons acting in their or its behalf,
‘or by any laborer in its or their employ or in the employ of any of
its contractors.

§ 54. Taxation of. property.—The real estate and personal

‘property belonging to any pipe line corporation in this State, shall
‘ be assessed and taxed in the several towns, villages and cities in
the same manner as the real estate and personal property of rail-
road corporations are assessed and taxed, and such corporation may
pay such taxes or commute therefor in the same manner as railroad
corporations. ,

For taxation laws, see post.

For explanation of interval in numbering between section 54, supra, and
section 60, infra, see page 99.

~

‘

ARTICLE VI.

Gas anp Exzctric Ligut CorPoratIons,

SxEcTION 60. Incorporation.
61. Powers.
62. Inspector of gas meters.
63. Deputy inspectors.
64. Inspection of gas meters. ;
65. Gas or electric light must be supplied on application.
; 66. Deposit of money may be required.
67. Entry of ‘puildings to meters or lights.
68. Refusal or neglect to pay rent,
69. No rent for meters to be charged. ‘
70. Price of gas.

: § 60. Incorporation.—Three or more persons may become a
corporation for manufacturing and supplying gas for lighting
the streets and public and private buildings of cities, villages and
towns in this state, or for manufacturing and using electricity for
producing light, heat or power, and in lighting streets, avenues,
public parks and places, and public and private buildings of cities, —
villages and towns within this state, or for two or more of such
purposes, by making, signing, acknowledging and filing a certificate
stating the name of the corporation, its objects, the amount of its
230 Gas anp Exectric Licur Corporations.

 

The Transportation Corporations Law, § 60.

 

eapital stock, the term of its existence not to exceed fifty years, the
number of shares of which the stock'shall consist, the number of
directors not less than three nor more than thirteen, the names |
and places of residence of the directors for the first year, and the
names of the towns, villages, cities and counties in which the opera-
tions of the corporation are to be carried on, and thereupon the
persons who shall have signed the same, their associates and suc-
cessors shall be a corporation by the name stated in the certificate.
(Thus amended by L. 1900, ch. 575.)

For form of certificate of incorporation, see post, form No. 89.

See comments under “ Incorporators,’ “Corporate Name,’ ‘“ Objects,’”
“Term of Existence,” “ Capital Stock,” “Shares of Stock,” ‘“ Directors,”
“ Additional Powers,” “ Liability of Stockholders,” “ Filing and Record-
ing” and “ Fees,” on pages 210, 211, all of which are applicable to gas.
and electric light corporations.

By the amendment of 1900, corporations may be formed for one or more:
of the purposes set forth therein. This change conforms the section to.
the decision in People ex rel. Municipal Gas Co. v. Rice, 138 N. Y., 151.
And a corporation heretofore organized for gas lighting may extend its
objects so as to include electric lighting by filing an amended certificate
pursuant to section 32 of the Stock Corporation Law. It may also
acquire the right to exchange its stock for that of an electric light com-
pany. (People ex rel. Municipal Gas Co. v. Rice, 138 N. Y., 151.)

A gas company, lawfully occupying a street with its mains and pipes, is.
bound to use its rights and to conduct its operations so as not to inflict
injury upon neighboring property. (Evans v. Keystone Gas Co., 148 N. Y.,.
112.)

A gas company is not an insurer against explosions of gas carried into.
buildings by its pipes, but is simply bound to exercise that degree of care
which the nature of the article it deals in and the consequences to be
apprehended from an accident reasonably call for. (Schmeer vy. Gas Light
Co. of Syracuse, 147 N. Y., 529.)

A lease by a gas company of all its property and franchises is ultra
vires; but where the lessee has used the property under such a lease a
recovery for the amount due for rent may be had. (Bath Gas Light Co. v.
Claffy, 26 N. Y. Supp., 287, 56 St. Rep., 426, 74 Hun, 638; aff'd, 151 N. Y., 24.)

An electric company, having a contract with the town authorities to:
light a public highway, is not authorized to erect poles or wires upon the
highway without the consent of the abutting owner; and the rule of law
is the same whether the poles are to carry telephone, telegraph or electric
light wires. (Palmer v. Larchmont Electric Co., 6 App. Div., 12.) The
more extensive easements, which exist in the streets of cities and incor-
porated villages, do not extend to, nor have they any existence in unin-
corporated villages and on country pespaen this is irrespective of the:
density of the population. (Id.)

There is an important physical difference, attedting the legal rights of
the public and of abutting owners, between the burden of an underground
easement, in the nature of a gas or water pipe, and an easement which
permits the erection of electric light, telephone or telegraph structures.
Gas anp Exectric Ligut Corporations. 931

 

The Transportation Corporations Law, § 61.

above the surface on a public highway. (Palmer v. Larchmont Electric
ae 6 ae Div., 12, distinguishing Bloomfield Gas Co. v. Calkins, 62

. Yay 886,

A corporation formed for the purpose of boring natural gas wells and
conveying and furnishing gas in pipes to consumers for hire may be
organized under the Business Corporations Law, and is not required to
be formed under this act. (Wilson v. Tennent, 61 App. Div., 100.)

A town may in a proper case grant a franchise authorizing a corpora-
tion to carry poles in its highways and string wires thereon for the pur-
pose of conveying electricity for lighting purposes. (Van Siclen v. Jamaica
Electric Light Co., 45 App. Div., 1; aff'd 168 N. Y., 680; Palmer v. Larch-
mont Electric Co., 158 N. Y., 231.)

In stringing its wires, an electric company has no right to cut branches
of trees belonging to abutting owners, unless such course is demanded
by a necessity which cannot be avoided by insulating the wires. (Van
Siclen v. Jamaica Electric Light Co., 45 App. Div., 1.)

An application of a stockholder in a gas corporation, to the extent of
only one-thirtieth of one per cent. of the preferred stock, to examine its
books in order to determine whether it is selling gas below cost, will not
be granted except in the furtherance of essential justice. (Matter of
Pierson, 28 Misc., 726.) .

It is the duty of employes of a gas company, in remedying a defective
flow of gas through a house, to use proper care to see that occupants of
the house have an opportunity to protect themselves against the results
which flow from interfering with the flow of gas. (Beyer v. Consolidated
Gas Co., 44 App. Div., 158.) ‘

§ 61. Powers.— Every such corporation shall have the following
additional powers: ‘i

1. If incorporated for the purpose of supplying gas for light, to
manufacture gas, and to acquire by purchase or otherwise natural gas
and to sell and furnish such quantities of gas as may be required in
each city, town and village named in its certificate of incorporation,
for lighting the streets, and public or private buildings or for other
purposes ; and to lay conductors for conducting gas through the streets,
lanes, alleys, squares and highways, in each such city, village and
town, with the consent of the municipal authorities thereof, and un-
der such reasonable regulations as they may prescribe; and such
municipal authorities shall have power to exempt any such corporation
from taxation on their personal property for a period not exceeding
three years from the organization of the corporation. Any corpora-
tion authorized under any general or special law of this state to manu-
facture and supply gas shall have the like powers and privileges.

(Thus amended by L. 1900, ch. 575; L. 1902, ch. 596.)

By the amendment of 1900 the restriction as to gas lighting in places
not over five miles distant from each other was stricken out. .

The provision relative to natural’gas and the last sentence in the fore-
going subdivision were added by the amendment of 1902. Natural gas
companies may be organized under the Business Corporations Law. (Wil-
son v. Tennent, 61 App. Div., 100.)
232 Gas anp Exectric Liaut Corporations.

The Transportation Corporations Law, § 61.

2. If incorporated for the purpose of using electricity for light,
heat or power, to carry on the business of lighting by electricity or
using it for heat or power in cities, towns and villages within this
State, and the streets, avenues, public parks and places thereof, and
public and private buildings therein; and for the purposes of such
business to generate and supply electricity; and to make, sell or
lease all machines, instruments, apparatus and other equipments
therefor, and to lay, erect and construct suitable wires or other con-
ductors, with the necessary poles, pipes or other fixtures in, on,
over and under the streets, avenues, public parks and places of such
cities, towns or villages, for conducting and distributing elec-
tricity, with the consent of the municipal authorities thereof, and in
such manner and under such reasonable regulations, as they may
prescribe.

3. Any two or more corporations organized under this article,
or under any general or special law of the state, for the purpose
of carrying on any business which a corporation organized under
this article might carry on, may consolidate such corporations into
a single corporation by complying with the provisions of the busi-
ness corporations law relating to the consolidation of business cor-
porations.

4. Any corporation organized under this article or under any
general or special law of this State for the purpose of using elec-
tricity for light, heat or power in cities, other than of the first class,
towns or villages within this State, may have and acquire the fol-
lowing additional powers, to wit: the power of supplying steam to
consumers from a central station or stations through pipes laid in
the public streets of the cities, towns and villages within this State,
and for that purpose to lay, construct and maintain suitable pipes
and conduits or other fixtures in, on and under the streets, avenues,
public parks and places of such cities, towns or villages, with the
consent of the municipal authorities thereof, and under such
reasonable regulations as they may prescribe. For the purpose
of acquiring the powers above specified any such corporation may
make, sign, acknowledge and file in the same manner as an original
or amended certificate of incorporation, a certificate stating that
such corporation desires and intends to exercise the powers herein-
above specified. Upon the making, signing, acknowledging and
filing such certificate, such corporation shall have and acquire for
the. purposes specified in such certificate all the rights, privileges
and powers, and be sthject to all the restrictions of district steam
corporations, specified in sections thirteen, fourteen and fifteen of
Gas anp Exxotric Ligut Corporations. 233

 

The Transportation ‘Corporations Law, § 61.

 

° 2 . ' . :
the business corporations. law, being chapter six hundred and
ninety-one of the laws of eighteen hundred and ninety-two.
(Thus amended by L. 1899, ch. 565.)

By the amendment of 1899, subdivision 4 was added.

For provisions empowering town authorities to contract for lighting
streets, see post, page 274.

A grant by town authorities to lay conductors for conducting gas
through the public. streets and highways of said town, without any
expressed limitation, is not restricted to existing streets and highways.
(People ex rel. Woodhaven Gas Lt. Co. v. Deehan, 153 N. Y., 528.) Such
consent by the authorities confers upon the gas light company a fran-
chise which is property and of which the gas light company cannot be
divested except for cause and by due legal process. (Id.) If a portion
of the town for which such consent was granted is thereafter incorpo-
rated into a village, such change does not alter the rights of the gas
light company. (Id.) 2

The fact that a franchise to manufacture gas was conferred upon a
corporation by chapter 248 of the Laws of 1886, does not relieve it from
liability for creating a nuisance. (Rosenheimer v. Standard Gas Light
Co., 36 App. Div., 2.)

In a taxpayer’s action to prevent waste, an injunction will not lie to
restrain an electric company from excavating in a public park in order
to set poles where there is a failure to allege that city officials intend
to do an unlawful act. (Sheehy v. McMillan, 26 App. Div., 140.)

Injury done to plants in a greenhouse, by gas escaping from street
mains, entitles the owner to damages from the gas company. (Arm-
bruster vy. Auburn Gas Lt. Co., 18 App. Div., 447.)

A taxpayer’s action to prevent the erection of poles and the stringing
of wires by a gas and electric company, in a public park, must fail, unless
it is shown that such acts will result in injury to or waste of the prop-
erty of the city. (Sheehy v. Clausen, 26 Misc., 269.)

Semble, that where a taxpayer sues to set aside, upon the ground of
fraud and illegality, a gas-lighting contract made by officials and a cor-
poration, it is erroneous to set up each instance of illegality or fraud as
an independent cause of action. (Van Allen v. Dunton, 24 Misc., 230.)

An action cannot be maintained, under section 1948 of the Code of
Civil Procedure, against a gas corporation, to restrain laying of gas pipes
in a city street, based upon the ground that its corporate power had ceased
because of its failure to commence business within the period prescribed
by law, and that the work would be an injury to the highway and a
nuisance. (People v. Equity Gas Lt. Co., 141 N. Y., 232.)

A contract between a town board and a gas company is not illegal
because it provides that the gas company shall be reimbursed for any
expenses in making changes in gas mains, rendered necessary by changes
in street grades after the gas company has entered upon the performance
of its contract. (Parfitt v. Ferguson, 3 App. Div., 176.) A provision in
such contract that no other lighting company shall have the consent of
the town board to lay its pines within the town during the term of the
agreement is void, as tending to create a monopoly. (Id.)
234 Gas anp Exrcotric Lieut Corporations.
The Transportation Corporations Law, § 62.

Where a corporation maintains lines of electric wires, over which it.
furnishes power to customers for the movement of machinery, although
such business is carried on without authority, it affords no excuse for the
destruction of its property, and conceding that a telephone and telegraph
company has the right to remove the wires from certain fixtures, yet by
thereafter carrying those wires away it makes itself liable for conversion.
(Electric Power Co. v. Metropolitan Telephone & Teleg. Co,, 75 Hun, 68.).

A gas light corporation has no right to lay its pipes in a country high-
way without first securing the consent of the adjoining owners. (Bloom-
field Gas Co. v. Calkins, 62 N. Y., 386.)

A gas company may be prosecuted for damages caused by. nuisance.
(Bohan v. Port Jervis Gas Lt. Co., 122 N. Y., 18, and cases there cited.)

§ 62. Inspector of gas meters.—The governor shall
nominate and by and with the consent of the senate appoint an in-
spector of gas meters, who shall have an office in The City of New
York, whose duty it shall be, when required, to inspect, examine,
prove and ascertain the accuracy of any and all gas meters used or
intended to be used for measuring or ascertaining the quantity of
illuminating or fuel gas furnished by any gas corporation in this
state, including a corporation engaged in supplying natural gas to
consumers, to or for the use of any person or persons, and, when
found to be or made correct, to seal, stamp or mark all such meters,
and each of them, with some suitable device, which device shall be
recorded in the office of the secretary of state. Such inspector
shall hold his office for the term of five years and until the appoint-
ment of his successor, but may be removed by the governor for
sufficient cause. He shall receive an annual salary of five thousand
dollars, to be paid in the first instance out of the state treasury on
the warrant of-the comptroller, which shall be charged to and paid
into the state treasury by the several gas corporations in this state,
in amounts proportionate to the amount of the capital stock of such
corporations respectively, to be ascertained and assessed by the
comptroller of the state. If any such corporation shall refuse or
neglect to pay into the state treasury the amount or portion of such
salary required of them respectively, for the space of thirty days
after written notice given it by the comptroller to make such pay- -
ment, then the comptroller may maintain an action, in his name of
office, against any such delinquent corporation for its portion or
amount of such salary, with interest thereon at the rate of ten per
centum per annum from the time when such notice was given and
the costs of the action.

(Thus amended by L. 1893, ch. 385; L. 1895, ch. 972; L. 1897, ch. 486; L.
1898, ch. 364.)

In an action by trustees of a village to compel the removal of the poles.
Gas anp Exxectric Ligut Corporations. 935.
The Transportation Corporations Law, §§ 63, 64.

wires and electric lamps of an electric light company, upon the ground
that they constitute an unlawful obstruction in the highway, it appeared
that the defendant had agreed to furnish electric light for five years,
but had ceased to furnish light, before the expiration of that time, under’
a claim that such agreement was void, and that it had neglected to.
remove its poles, wires and lamps, although requested to do so; held,
that, under the circumstances, the disused poles, wires and lamps con-
stituted unlawful obstructions; that the action was maintainable under
section 15 of the Highway Law, chapter 568, Laws of 1890. (Village of
Hempstead v. Ball Electric Light Co., 9 App. Div., 48.)

§ 63. Deputy inspectors, employment of mechanics:
and expenditures.— The inspector of gas meters shall appoint
four deputy inspectors of gas meters to reside in the borough of
Brooklyn, in the city of New York, Albany, Buffalo and James-
town, respectively, to hold office during his pleasure, and who shall
in their respective places of residence discharge such duties as
are required of them by the inspector. Said inspector is hereby
authorized to employ not exceeding ten mechanics to assist him and.
his deputies in his and their work, said mechanics to be paid a
sum not exceeding three and one-half dollars for each working
day. Such deputies shall receive an annual salary of fifteen hun-
dred dollars and such deputies and mechanics shall be paid in the
same manner as the salary of ‘the inspector. Said ‘inspector is.
hereby authorized to incur such office and other expenditures as
are necessary for the performance of his duties imposed by law and.
for the purpose of providing the seals tobe affixed upon meters.
as required by law; and the said office and other expenditures, as.
herein authorized excepting the salaries of deputy inspectors and
pay for mechanics shall be subject 'to the audit and approval of
the comptroller and shall not exceed the sum of two thousand dol-
lars per annum, and be paid in the same manner as the salary of
the inspector.

(Thus amended by L. 1893, ch. 385; L. 1898, ch. 364; L. 1899, ch. 732.)

§ 64. Inspection of gas meters.—No corporation or
person shall furnish or put in use any gas meter, which shall not
-have been inspected, proved and sealed by the inspector, except
during such time as the office of inspector may be vacant, or such
inspector after request made, shall refuse or neglect to prove and
seal the meters furnished for that purpose, and every gas-light cor-
poration shall provide and keep in and upon their premises a suit-
able and proper apparatus, to be approved and sealed by the in-
spector of meters, for testing and proving the accuracy of the gas
meters furnished for use by it, and by which apparatus every meter
236 Gas anp Exectric Ligur CorporaTIons.

The Transportation Corporations Law, § 65.

may and shall be tested, on the written request of the consumer, to
whom the same shall be furnished, and in his presence if he desire
it. If any such meter, on being so tested, shall be found defective
or incorrect to the prejudice or injury of the consumer, the neces-
sary removal, inspection, correction and replacing of such meter
shall be without expense to the consumer, but in all other cases he
shall pay the reasonable expenses of such removal, inspection and
replacing; and in case any consumer shall not be satisfied with
such inspection of the meter furnished to him, and shall give to the
corporation written notice to that effect, he may have such meter.
reinspected by the state inspector, if he require it, upon the same
terms and conditions as herein provided for the original inspection
thereof.

§ 65. Gas and electric light must be supplied on
application. — Upon the application, in writing, of the owner or
occupant of any building or premises within one hundred feet of any
main laid down by any gas-light corporation, or the wires of any
electric-light corporation, and payment by him of all money due
from him to the corporation, the corporation shall supply gas or
electric light as may be required for lighting such building or
premises, notwithstanding there he rent or compensation in arrear,
for gas or electric light supplied, or for meter, wire, pipe or fittings,
furnished to a former occupant thereof, unless such owner or occu-
pant-shall have undertaken or agreed with the former occupant
to pay or to exonerate him from the payment of such arrears, and
shall refuse or neglect to pay the same; and if for the space of ten
days after such application, and the deposit of a reasonable sum as
provided in the next section, if required, the corporation shall re-
' fuse or neglect to supply gas or electric light as required, such cor-
poration shall forfeit and pay to the applicant the sum of ten dol-
lars, and the further sum of five dollars for every day thereafter
‘during which such refusal or neglect shall continue; provided that
no such corporation shall be required to lay service pipes or wires
for the purpose of supplying gas or electric light to any applicant
where the ground in which such pipe or wire is required to be laid
shall be frozen, or shall otherwise present serious obstacles to lay-
ing the same; nor unless the applicant, if required, shall deposit in
advance with the corporation a sum of money sufficient to pay the
cost of his portion of the pipe or wire required to be laid, and the
expense of laying such portion.

The foregoing section applies where any part of a building is within 100
feet of the gas mains, and it is immaterial that the office of the person
Gas anp Exxzorric Ligut Corporations. 237

 

The Transportation Corporations Law, § 66.

 

applying for gas in such building is not within 100 feet of the main.
(Jones v. Rochester Gas & Hlectric Co., 7 App. Div., 465.) ,

Where a lighting company has specifically based its refusal to furnish
gas upon the ground that the applicant owed for gas which had escaped,
it is not in a position to claim that there existed any other indebtedness
in its favor from him. (Jones v.’ Rochester Gas & Electric Co., 7 App.
Div., 465.)

The provision imposing a penalty for a refusal to supply gas or electric
light does not limit an owner or occupant of a building in his recovery to
one penalty, but he may récover ten dollars for the first day of the refusal,
and five dollars for each day of its continuance thereafter; nor dces the
fact that the same applicant for light has brought an action to recover
penalties for one building bar his action to recover penalties for a refusal
to furnish light to another, building, although the refusal of the company
in each case arose from the fact that the applicant declined to pay the
same bill. (Jones v. Rochester Gas & Electric Co., 7.App. Div., 474, modi-
fied by 168 N. Y., 65.)

The fact that an applicant for light has at one time consented to the
removal of gas meters will not estop him from making, at a subsequent
time, a demand, under the statute, for a return of the supply of gas.
(Jones v. Rochester Gas & Electric Co., 7 App. Div., 474.)

The sufficiency of a demand to be supplied with gas considered. (Ben-
nett v. East Chester Gas Light Co., 54 App. Div., 74.)

The penalty prescribed by this section for a failure to supply gas, after
a demand has been made, does not apply to a natural gas company organ-
ized under the Business Corporations Law. (Wilson v. Tennent, 61 App.
Diy., 100.) ’

In an action against a gas company to recover the penalty imposed
by this section for a failure to supply the plaintiff with gas, the burden
of proof that a deposit required by the corporation, in pursuance of sec-
tion 66 of this act, is unreasonable in amount, is upon the plaintiff. (Ben-
nett v. Hast Chester Gas Light Co., 40 App. Div., 169.)

A written requisition upon an electric light and power company that
it supply an applicant, at his office, with electric light and power at once,
which was replied to by a written inquiry asking “ how much power and
how many lights do you want,” but not answered by the applicant in
writing, does not subject the company, to the penalties imposed by stat-
ute. (Andrews v. North River Electric Light & Power Co., 24 Misc., 671,
aff’?g 23 Misc., 512.) :

A requirement of an electric lighting company that its customers shall
pay a certain rate, based upon meter measurement, with the proviso that
there should be a fixed minimum payment of $1.50 per month, is not
unreasonable nor violative of the duties of the corporation. (Goold v.
Edison Elec. Illg. Co., 29 Misc., 241,) ‘

8 66. Deposit of money may be required.—Every
gas-light and electric-light corporation may require every person
to which such corporation shall supply gas or electric light. for
lighting any building, room or premises to deposit with such cor-

.
938 Gas anp Exzctzic Lieut CorporaTIons.

 

The Transportation Corporations Law, §§ 67, 68.

poration a reasonable sum of money according to the number and
size of lights used or required, or proposed to be used for two
-ealendar months, by such person, and the quantity of gas and elec-
tric light necessary to supply the same as security for the payment
of the gas and electric light rent or compensation for gas. con-
sumed, or rent of pipe or wire and fixtures, to become due to the
‘corporation, but every corporation shall allow and pay to every.
‘such depositor legal interest on the sum deposited for the time his
-deposit shall remain with the corporation.

§ 67. Buildings may bé entered for the examina-
tion of meters, lights, and-so-forth.— Any officer or
other agent of any gas-light or electric-light corporation, for that
purpose duly appointed and authorized by the corporation, may, at
all reasonable times, upon exhibiting a written authority, signed by
the president and secretary of the corporation, enter any dwelling,
store, building, room or place lighted with gas or electric light sup-
plied by such corporation, for the purpose of inspecting and ex-
amining the meters, pipes, fittings, wires'and works for supplying
or regulating the supply of gas or electric light and of ascertaining
the quantity of gas or electric-light consumed or supplied, and if
-any person shall, at any time, directly or indirectly, prevent or hin-
‘der any such officer or agent from so entering any such premises,
or from making such inspection or examination at any reasonable
time, he shall, for every such offense, forfeit to the corporation
‘twenty-five dollars.

§ 68. Refusal or neglect to pay rent.— If any person
supplied with gas or electric light by any such corporation shall
neglect or refuse to pay the rent or remuneration due for the same
or for the wires, pipes or fittings let by the corporation, for supply-
ing or using such gas or electric light or for ascertaining the
quantity consumed or used as required by his contract with the
corporation, or shall refuse or neglect, after being required so to
do, to make the deposit required, such corporation may prevent
the gas or electric light from entering the premises of such person;
and their officers, agents or workmen may enter into or upon any
‘such premises between the hours of eight o’clock in the forenoon
and six o’clock in the afternoon, and separate and carry away any
meter, pipe, fittings, wires or other property of the corporation,
and may disconnect any meter, pipe, fittings, wires or other works
whether the property of the corporation or not, from the mains,
‘pipes or wires of the corporation.
Water-works CorPoRATIoNs. 239:

 

The Transportation Corporations Law, §§ 69, 70, 80.

 

§ 69. No rent for meters to be charged.— No gas-light cor-
poration in this state shall charge or collect rent on its gas meters,
either in a direct or indirect manner, and any person, party or cor-
poration violating this provision shall be liable to a penalty of fifty
dollars for each offense, to be sued for and recovered in the cor-
porate name of the city or village where the violation occurs, in
any court having jurisdiction, and when collected to be paid into
the treasury of such city or village and to constitute a part of the
contingent or general fund thereof.

§ 70. Price of gas.—In any city in this state having a popula-
tion of eight hundred thousand or over, no corporation or person
shall charge for illuminating gas a sum to exceed one dollar and
twenty-five cents per thousand feet, and such gas shall have an.
illuminating power of not less than twenty sperm candles, or six to
the pound, and burning at the rate of one hundred and twenty
grains of spermaceti per hour, tested at a distance of not less than
one mile from the place of manufacture, by a burner consuming
five cubic feet of gas per hour, and shall comply with the standard
of purity now or hereafter established by law; but in any district
or ward of any city containing over one million inhabitants, which
district or ward is separated from the main portion thereof by a
stream or other natural boundary, any gas-light corporation may
charge a price not to exceed one dollar and sixty cents per thousand
cubic feet, but such corporation shall not charge a greater price in
the city where its main works shall be situated than in such district,
or ward.

See L. 1897, ch. 385, regulating price of gas in Greater New York.

For explanation of interval in numbering between section 70, supra, and
section 80, infra, see page 99.

ARTICLE VIL
Warter-works CorRporaATIONs.
§Sxcr10n 80. Incorporation. P
’ $1. Must supply water; contracts with municiyalities,

82. Powers.

83. Survey and map.

84, Condemnation of real property.

85. Corporation may contract with other cities, towns or vil-

lages; amended certificate.

§ 80. Incorporation.—Seven or more persons may become a
corporation for the purpose of supplying water to any of the cities,
240 Wartrr-works CorPoRATIONs.

The Transportation Corporations Law, § 80.

towns or villages and the inhabitants thereof in this state, by exe-
cuting, acknowledging and filing a certificate stating the name of
the corporation, the amount of its capital stock, the number of
shares into which it is to be divided, the location of its principal
office, the number of its directors, not less than seven, the names.
and places of residence of the directors for the first year, the name
of the cities, towns and villages which it is proposed to supply with
water; that the permit of the authorities of such cities, towns and.
villages herein required has been granted; the post-office address of
each subscriber, and the number of shares he agrees to take in such
dorporation, the aggregate of whith shall be at ledst one-tenth of
the capital stock, and ten per centum of which shall be paid in cash
to the directors. At the time of filing there shall be annexed to the
certificate and as a part thereof, a permit, signed and acknowledged
by a majority of the board of trustees of the village, in case an
incorporated village is to be supplied with water, and in case a
town, or any part thereof, not within an incorporated village, is to be
so supplied, by the supervisor, justice of the peace, town clerk and
highway commissioners thereof or a majority of them, and in case
a city is to be supplied with water by the board of water commis-
sioners of said city, or by such other board or set of officials as per-
form the duties of water commissioners and have charge of the
water supply for said city, authorizing the formation of such cor-
poration for the purpose of supplying such city, village or town
with water, and an affidavit of at least three of the directors that
the amount of capital stock herein required has been subscribed
and paid in cash.

(Thus amended by L. 1892, ch. 617.)

For form of certificate of incorporation, see post, form No. 90.

See comments under “ Incorporators,” “Corporate Name,” “ Objects,”
“ Capital Stock,” “Shares of Stock,” “ Directors,” “ Additional Powers,”
“Liability of Stockholders,” “Filing and Recording” and “Fees,” on
pages 210, 211.. all of which are applicable to corporations under this.
article.

An incorporated village, by availing itself of the permissive power con-
ferred by the general acts to construct water-works, does not thereby sus-
tain such an implied contractual relation to the public with respect to
the construction of such public work, as to be responsible for reasonable
eare and diligence in respect to its maintenance. (Springfield Fire &
Marine Ins. Co. v. Village of Keeseville, 148 N. Y., 46; revsg. 80 Hun, 162.)

When a municipality takes steps to create water-works of its own,
and, without making any compensation therefor, damages the water-
works system of a private corporation or of an individual, an action for
Water-works Corporations. 241

 

The Transportation Corporations Law, § 81.

 

damages is maintainable against such municipality. (Boyer v. Village of
Little Falls, 5 App Div., 1.)

Failure to maintain water-works system in proper condition does not
afford a cause of action against a village. (Springfield Fire & M. Ins. Co.
v. Keeseville, 6 Misc. R., 233.)

See 66 Hun, 619, aff’d 142 N. Y., 626.

§ 81. Must supply water ; contracts with municipalities—
Every such corporation shall supply the authorities or any of the
inhabitants of any city, town or village through which the con-
duits or mains of such corporation may pass, or wherein such cor-
porations may have organized, with pure and wholesome water
at reasonable rates and cost, and the board of trustees of any
incorporated village and the water commissioners or other board
or officials performing the duties of water commissioners, and hav-,
ing charge of the water supplies of any city of this state, shall have
the power to contract in the name and behalf of the municipal cor-
poration of which they are officers, for the term of one year or more
for the delivery by such company to the village or city, of water
through hydrants or otherwise, for the extinguishment of fires and
for sanitary and other public purposes; and the amount of such con-
tract agreed to be paid shall be annually raised as a part of the
expenses of such village or city, and shall be levied, assessed and
collected in the same manner as other ‘expenses of the village or
city are raised, and when colletted shall be kept separate from
other funds of ‘the village or city, and be paid over to such corpo-
ration by such trustees or city officials, according to the terms and
conditions of any such contract; and any such contract enteréd into:
by the board of trustees of any village, or by water commissioners
or othe: board performing the duties of water commissioners and
having charge of the water supply of any city, shall be valid and
binding upon such village or city, but no such contract shall be
made for a longer period than ten years nor for a sum exceeding in
the aggregate, two and one-half mills for every dollar of the taxable
property of such village or city, per annum, except upon a petition
of a majority of the taxable inhabitants of any such village or city,
or portion thereof, which it is proposed to supply with pure and
wholesome water, unless a resolution authorizing ‘the same has
been submitted to a vote of the electors of the village or city, .
in the manner provided by the village law or city charter, and
approved by a majority of the voters entitled to vote and voting on
such question at any annual election or special election duly called;
and any board of trustees or board of water. commissioners or other
city officials, when so authorized, may make’ such contract for a
16
249 Water-works CoRPORATIONS.

 

The Transportation Corporations Law, § 81.

term not exceeding thirty years, and the amount of such contract
shall be paid in semi-annual installments. The town board of any
town may establish a water supply district in such town outside
of a city or incorporated village therein, by filing a certificate
_ describing the bounds thereof, in the office of the town clerk; and
may contract in the name of the town for the delivery, by a cor-
' poration, subject to the provisions of this article, of a supply of
water for fire, sanitary or other public purposes, to such districts,
and the whole town shall be bound by such contract, but the rental
or expense thereof shall annually, in the same manner as other
expenses of the town are raised, be assessed, levied upon and col-
lected only from the taxable property within such water supply
district. Such money, when collected, shall be kept as a separate.
fund and be paid over to such corporation by the supervisor of the
' town, according to.the terms and conditions of any such contract.
No such contract shall be made for a longer period than five years,
nor for an annual expense exceeding three mills upon each dollar
of the taxable property within such water supply district.

(Thus amended by L. 1892, ch. 617; L. 1893, ch. 549; L. 1894, ch. 230; L.
1896, ch. 678.)

The right of a millowner to use the waters of a stream as a propelling
power is an incorporeal hereditament connected with the land, and may
be acquired by a water-works company. (Stamford Water Co. v. Stanley,
39 Hun, 424.) ‘

A water company derives no exclusive right from the permit of the
town authorities to lay and maintain water pipes and hydrants and to
supply the town and its inhabitants with water. (Syracuse Water Co.-v.
Syracuse, 116 N. Y., 167; Matter of Brooklyn, etc., 73 Hun, 499, and cases
therein cited.)

Where village trustees granted a franchise to install a system of water
works to persons who assigned their interest to a corporation, which
availed itself thereof, but has neglected to connect the village hydrant
with its water-supply system, such corporation cannot repudiate its la-
bility by asserting want of authority in the trustees who granted the
franchise. (Village of Bolivar v. Bolivar Water Co., 62 App. Div., 484.)
Amendment of 1907.

(Insert facing page 241, White on Corporations, 6th editidn.)

Laws of 1907, chapter 629, amends the Transportation Corporations Law,
section 81, so that the last sentence thereof reads as follows:

* * “ “No such contract shall be made for a longer period than five

years, nor for an annual expense exceeding three mills upon each dollar of
the taxable property within such water supply district, provided however
that where the population of the water supply district does not exceed one

thousand inhabitants such contract may be made .for a period not longer
than ten years.

The clause begining ‘* provided however ” is new, added in 1907.
4
WatTER-woRKS CoRPORATIONS. 243

 

The Transportation Corporations Law, §§ 82, 83.

 

§ 82. Powers.— Every such corporation shall have the follow-
ing additional powers: is Saelgpaee

1. To lay and maintain their pipes and hydrants for delivering
and distributing water in any street, highway or ‘public place of
any city, town or village in which it has obtained the permit
required by section eighty of this article.

2. To lay their water pipes in any streets or avenues or public
places of an adjoining city, town or village, to the city, town or
village where such permit has been obtained, provided that such
right in an adjoining city or village having a population of more
than twelve thousand inhabitants, shall be subject to the per-
mission of the local authorities thereof and upon such conditions
as they may prescribe.

3. To cause such examination and surveys for its proposed.’
water-works to be made as may be necessary to determine the
proper location thereof, and for such purpose by its officers, agents
or servants to enter upon any lands or waters in the city, town or
village where organized, or in any adjoining city, town’ or village |
for the purpose of making such examinations or surveys, subject to
liability for all damages done. :

(Thus amended by L. 1892, ch. 617; -L. 1905, ch. 210; L. 1906, ch. 455.)

-The words “or village having 2 population of more than twelve thou-
‘sand inhabitants” were inserted in subdivision 2 by the amendment of
1906. By the amendment of 1905, ch. 210, the provision was inserted
making the right to lay water pipes in ah adjoining municipality sub-
ject to the permission of the local authorities.

§ 83, Survey and map.— Before entering upon, taking or using
“any land, for the purposes of its incorporation such corporation:
shall cause a survey and map to be made of the lands intended to
be taken or ‘entered upon, by and on which the land of each owner
or occupant shall be designated, which map shall be signed by the
president and secretary, and filed in the office of the county clerk
of the county in which such lands are situated.

For provisions as to permission of highway commissioners to lay and

maintain water pipes under highways in towns, see post, page 276.
. In a proceeding to aequire land under this section, the failure of the
corporation to file the survey and map entitles the landowner to the
dismissal of such proceeding. (Matter of Citizens’ Water-Works Co.; 32
App. Div., 54.) :

The act of 1875, chapter 181, authorizing villages to supply themselves
-with water and permitting the acquisition of the works of any private
corporation that may be supplying the municipality with water, does not
‘make it the duty of local authorities to acquire the property of an exist-
‘ing water-supply corporation. (Skaneateles Water-Works Co. v. Vil. of
‘Skaneateles, 161 N. Y., 154, aff’g 33 App. Div., 642.)
944. Watrr-worxks CorPoRaTIONs.

 

The Transportation Corporations Law, §§ 84, 85.

 

The provisions of chapter 284, Laws of 1894, supplementary to the act.
of 1875, chapter 181, which, by authorizing local authorities to lay and
assess water rates upon property not using water from-the municipal.
system, disclose an intent to assist the local authorities in obtaining cus-
tomers from an existing private water-works company, are invalid and
not enforcible. (Warsaw Water-Works Co. v. Vil. of Warsaw, 161 N. Y.,.
176, modifying 16 App. Div., 502.)

§ 84. Condemnation of real property. — Any corpora-
tion organized under this article, shall have the right to acquire
real estate, or any interest therein necessary for the purposes of its
incorporation, ard the right to lay, relay, repair and maintain con-
duits and water pipes with connections and fixtures, in, through or
over the lands of others; the right to intercept and divert the flow
of waters from the lands of riparian owners, and from persons own-
ing or interested in any waters, and the right to prevent the flow
of drainage of noxious or impure matters from the lands of others
into its reservoirs or sources of supply. If any such corporation,,
which has made a contract with any city, town or village or with
any of the inhabitants thereof for the supply of pure and whole-
‘some water as authorized by section eighty-one of this article, shall
be unable to agree upon the terms of purchase of any such property
or rights, it may acquire the same by condemnation. But no such
corporation shall have power to take or use water from any of the
canals of this state, or any canal reservoirs as feeders, or any
streams which have been taken by the state for the purpose of
supplying the canals with water.

e

(Thus amended by L. 1892, ch. 617; L. 1894, ch. 230.)

For provisions as to acquisition of property by condemnation, see the
Condemnation Law, post. :

§ 85. Corporation may contract with. other cities,
towns or villages;, amended certificate.— When any such.
corporation has entered into a contract with the authorities of any
city, town or village not mentioned i in its certificate of incorpora-
tion, but situated in the same county as the city, towns or villages
TELEGRAPH aND TELEPHONE CORPORATIONS. 245

 

The Transportation Corporations Law, § 100.

 

mentioned therein or an adjoining county, to supply it with pure
and wholesome water, it may file an amended certificate, stating
the name of such other city, town or village to be so supplied with
water, and it may thereupon supply any such city, town or village
with water in the same manner and with the same rights and sub-
ject to the same requirements as if it had been named in the original
«certificate of incorporation.

‘(Thus amended by L. 1892, ch. 617.)

For explanation of interval in numbering between section 85, supra, and
éection 100, infra, see page 106.

ARTICLE VIII.

TELEGRAPH AND TELEPHONE CoRPORATIONS.

SxctTion 100. Incorporation.
101. Extension of lines.
102. Construction of lines. |
103. Transmission of dispatches.
104. Consolidation of corporations.
105. Special policemen.

Sxotton 100. Incorporation.—Seven or more persons may
‘become a corporation. for the purpose of constructing, owning,
using and maintaining a line or lines of electric telegraph or tele-
phone, wholly within or partly beyond the limits of this state, or
‘for the purpose of owning any interest in any such line or lines,
or any grants therefor by executing, acknowledging and filing a
certificate, stating the name of the corporation; its general route
and the points to be connected; its capital stock; the number of
‘shares into which it is.to be divided; the term of its existence; the
number of its directors not less than seven; the names and resi-
-dence of the directors for the first year, and the post-office address
of the subscribers and the number of shares which each agrees to
take in such corporation. ’

6

For form of certificate of incorporation, see post, form No. 91.

See comments under “Incorporators,” “Corporate Name,” “ Objects,”
“* Capital Stock,” “Shares of Stock,” ‘“ Directors,” ‘ Additional Powers,”
“ Liability of Stockholders,” “Filing and Recording” and “Fees,” on
‘pages 210,211, all of which are applicable to corporations under this
article. No maximum limit, within which the term of existence is to be
xed, has been prescribed in the foregoing section.
»
246 TELEGRAPH AND TELEPHONE CoRPORATIONS.

 

The Transportation Corporations Law, § 100.

A telephone company, invested with the power of eminent domain, and
authorized by law to erect poles and string wires through the streets,
removed its poles and wires from a street to the adjoining sidewalk to
comply with a city ordinance. In so doing trees were necessarily trimmed
by servants of the company, but under the direction of a city officer.
Held, that the company was not liable in an action for trespass brought
by the owner of the trees, as the act was done under lawful authority.
(Southern Bell Telephone & Telegraph Co. v. Constantine, 61 Fed Rep., 61.)

Where a telephone and telegraph company had the right to remove
the wires of another company from certain fixtures, by thereafter carry-
ing those wires away, it made itself liable for their conversion. (Hlectric
Power Co. v. Met. Telephone & Telegraph Co., 75 Hun, 68.) :

The United States statutes authorizing the construction and mainte-
nance by telegraph companies of their lines over and along any of its.
military or post-roads, and making all letter carrier routes in cities post-
roads (U. S. Rev. St., sections 3964-52638, 5668, act passed March 1, 1884),.
confer no rights upon such corporations which can divest the State of
control over its public highways, or to interfere with their use as such.
(Am. Rapid Tel Co. v Hess, 125 N. Y., 641.)

The term “ public roads,” as used in the laws of this State, permitting.
telegraph companies to erect fixtures upon them, does not include the
roadway of a railroad company. (N. Y. City & North. R. R. Co. v. Cen-
tral Union Tel. Co., 21 Hun, 261.) :

As to the statute of this State requiring wires in large cities to be
underground and the effect of the United States statutes authorizing tele-
graph companies to use post-roads, see West. U. Tel. Co. v. New York,
38 Fed. Rep., 552.

As to the liability of a telegraph company for delay in delivery of mes-
sage, see Pearsall v. West. U. Tel. Co., 124 N. Y., 256; Kiley v. Same,
109 N. Y., 231; Riley v. Same, 8 Misc. R., 217; see, also, Riley ‘v. Same,.
6 Misc. R., 221, and cases therein cited.

In an actiop by a telephone company to restrain a street railroad com-
pany from operating its road by the single trolley system of electric pro-
pulsion, it was held, that as the railroad company was occupying the
streets in such manner as to expedite public travel and promote the public
use to which they were originally devoted, the telephone company’s fran-
chise was of a subordinate character and it could not complain that the
single trolley system interfered with the operation of its lines. (Hudson.
River Tel. Co. v. Watervliet Turnpike & Ry. Co., 185 N. Y., 393, revers’g.
61 Hun, 140, and dist’g Story v. N. Y. & E. R. R. Co., 90 N. Y., 122; Lahr
v. M. T. R. R. Co., 104 N. Y., 268, and People ex rel v. Newton, 112 N. Y.,
396; see, also, Hudson River Tel. Co. v. Watervliet T. & Ry. Co., 121
N. Y., 397.)

When the statute, under which a eorperatien is organized, does not
fix its residence or require the location of its place of business or prin-
cipal office to be stated in its certificate of incorporation, a statement
in such certificate of a place at which its principal office shall be located
is binding neither upon the corporation nor the taxing officers for the
purpose of fixing the place where the corporation shall be assessed for
personal taxation, but its residence is deemed to be where its principal
TELEGRAPH AND TELEPHONE CoRPORATIONS. 247

 

The Transportation Corporations Law, §§ 101, 102.

 

place of business is actually situated. (Austen v. Westchester Telephone
©o., 8 Misc. R., 11; Same v. Hudson R. T. Co., 73 Hun, 96.)

A telephone company may change its principal office or place of busi-
ness from the place at which it was first established to any place within
the State where it is actually engaged in carrying on its. business pur-
suant to authority conferred by its certificate of incorporation. (Austen
v. Hudson R, T. Co., 73 Hun, 96, and cases therein cited.)

§ 101. Extension of lines.—Any such corporation may con-
struct, own, use and maintain any line of electric telegraph or tele-
phone, not described in its original certificate of incorporation,
whether wholly within or wholly or partly beyond the limits of this
state, and may join with any other corporation in constructing,
leasing, owning, using and maintaining such lint, or hold or own
any interest therein, or become lessees thereof, upon filing in the
same manner as the original certificate is qui to be filed an
amended certificate, executed and acknowledged by at least two-
thirds of the directors of such corporation, describing the general
route of such line or lines, and designating the extreme points con-
nected thereby, and upon procuring the written consent of the per-
sops owning at least two-thirds of the capital stock of such corpora-
tion, and such amended certificate shall not be filed until there is
indorsed thereon or annexed thereto an affidavit made by at least
three of the directors of the corporation that such consent has been
obtained, which affidavit shall be filed ‘with and be a part of such
certificate.

For form of certificate of extension, see post, form No, @.

§ 102. Construction of lines.—Such corporation may erect,
construct and maintain the necessary fixtures for its lines upon,
over or under any of the public roads, streets and highways; and
through, across or under any of the waters within the limits of this
state, and upon, through or over any other land, subject to the right
of the owners thereof to full compensation for the same. If any
such corporation can not agree with such owner or owners upon the
compensation to be paid therefor, such compensation shall be ascer-
tained in the manner provided in the condemnation law.

As to provisions for acquisition of property by condemnation proceed-
ings, see the Condemnation: Law, post.

_The placing, pursuant to a resolution of the common council of a city,
beneath the surface of a street, the fee of which is in the abutting owners,
of a conduit for telephone wires owned by a private corporation, which
have previously been maintained on poles erected in the street, does not
constitute an additional burden upon the street which will entitle the
abutting owners to additional compensation. (Castle-v. Bell Telephone
Co., 49 App. Div., 437.)
248 TELEGRAPH AND TELEPHONE CORPORATIONS.

 

The Transportation Corporations Law, § 102.

 

The State can neither itself appropriate to its own special use, nor can
it authorize a corporation to so appropriate, eny portion of a rural public
highway, by setting up telegraph or telephone poles therein, and the ques-
tion as to the legality of such a use is not affected by the fact that the
Legislature by statutory enactments has manifested its belief in the exist-
ence of such a right, or by the fact that adjoining owners have generally
acquiesced in such a use; therefore, where a telegraph and telephone com-
pany, organized under the laws of this State, had, without the consent o1
au adjoining owner, who owned the fee of a highway, and without having
acquired the right by condemnation proceedings, erected its poles in the
highway and strung wires thereon for the purposes of its business; held,
that such a use of the highway was unlawful, and that an action of eject-
ment was maintainable. (Hels v. American Telephone & Telegraph Co.,
143 N. Y., 133, aff’g 65 Hun, 516.)

The fact that one man or set of men, of doubtful or unknown financial
credit, offer to bid more for the franchise to install a telephone system
in the streets of a city than a competing corporation of known financial
strength does not require the common council to accept such offer or to
sell the franchise at public auction, where the latter course is not made
obligatory by the city charter. (Barhite v. Home Telephone Co., 50 App.
Div., 25.)

By this section the right of telegraph and telephone corporations to use
the public streets and highways for the construction and maintenance of
its lines is given in unmistakable language and the consent of the local
body is not required. Its franchise comes directly from the Legislature
to the corporation. (Barhite v. Home Telephone Co., 50 App. Div., 25;
Rochester v. Bell Telephone Co., 52 App. Div., 6.) When a corporation
of this kind avails itself of the legislative grant, the manner of its exer-
cise, the location of the poles, the stringing of its wires, etc., are within
the scope and regulation of the local legislative body. This right of regu-
lation is, however, entirely distinct from the original granting of the
privilege, and is subordinate thereto. (Id.)

Relating to resolutions passed by the common council of a city, requir-
ing a telephone company to permit other telephone companies to occupy
its poles and conduits with their wires, see Bell Telephone Co. v. Home
Telephone Co., 52 App. Div., 13.

The right conferred upon a telephone company to maintain its wires
and appliances in the public streets of a city, is subject to the reasonable
control, supervision and regulation of the city authorities, as a part of
the general police power. (Rochester v. Bell Telephone Co., 52 App. Div.,
6.) The city may require the telephone company to place its wires in a
conduit beneath the street unless it would be impossible or impracticable
for the telephone company to obey the requirement. (Id.)

This section does not authorize a corporation to erect poles in the streets
of a city without the consent of the latter and in violation of an ordinance
to prevent the obstruction of its streets, which provides that all telegraph
and telephone wires shall be placed beneath the fire-alarm telegraph of
the city. (Utica v. Utica Telephone Oo., 24 App. Div., 361.)
TELEGRAPH AND TELEPHONE CoRPORATIONS. 249

 

Transportation -Corporations Law, § 103.

 

§ 103. Transmission of despatches.— Every such corpo-
ration shall receive despatches from and for other telegraph or tele-
phone lines or corporations, and from and for any individual, and
on payment of the usual charges by individuals for transmitting
despatches as established by the rules and regulations of such cor-
poration, transmit the same with impartiality and good faith and
in the order in which they are received, and if it neglects or refuses
so to do, it-shall pay one hundred dollars for every such refusal or
neglect to the person or persons sending or desiring to send any
such despatch and entitled to have the same so transmitted, but
arrangements may be made with the proprietors or publishers of
newspapers for the transmission for publication of intelligence of
general and public interest out of its regular order.

This section, in providing that every telephone corporation shall receive
despatches for and from other telephone lines or corporations and trans-
mit the same upon payment of the usual charges, does not authorize the
‘court, upon the refusal of a telephone corporation operating a line in the
village and extensively outside thereof, to place a telephone in the office
of the village telephone company and establish connections therewith, to
eompel such action by a writ of peremptory mandamus. The remedy of
an aggrieved party is either by an action for the penalty or for damages.
(Matter of Baldwinsville Telephone Co., 24 Misc., 221.)

The exclusive remedy for the refusal of a telephone or telegraph com-
pany to transmit or receive messages for any corporation or individual
is by an action at law to recover the penalty imposed, and a writ of
mandamus will not lie to compel the performance of that duty. (People
ex rel. Oneida Telephone Co. v. Central N. Y. Telephone & Telegraph Co.,
41 App. Div., 17.) ;

Where an action is brought against a telephone company to compel
it to furnish telephone services at a reasonable rate and such company
subsequently assigns to another corporation all its property, the grantee
assuming all its debts, contracts and liabilities, and is subsequently dis-
solved, the plaintiff is not entitled to an order substituting such grantee
in the place of the original defendant, especially where there is no allega-
tion that the grantee has ever refused telephone service at reasonable
rates. (Sterne v. Metropolitan Telephone & Telegraph Co., 33 App. Div.,

164.)
250 TELEGRAPH AND TELEPHONE CORPORATIONS.

The Transportation Corporations Law, § 104.

A telephone company’s refusal to furnish service at reasonable rates
is in the nature of a tort, and does not create any contract liability.
(Sterne v. Metropolitan Telephone & Telegraph Co., 33 App. Div., 164,
53 N. Y. Supp., 467. See, also, 19 App. Div., 316.)

A telephone company may be compelled to furnish telephone service
upon the payment of a reasonable compensation therefor. (Sterne v.
Metropolitan Telephone & Telegraph Co., 19 App. Div., 316.)

The unintentional omission, by a receiving telegraph operator, of the
word “express” in his transmission of the message, ‘“ Ship quick express
20 cases pop corn,” is not a violation of the statute requiring telegraph
companies to transmit dispatches with impartiality and good faith.
(Wichelman vy. Western Union Telegraph Co., 30 Misc., 450.)

When the manager of a telegraph ‘office sends a dispatch to a person,
telling the messenger to wait for an answer, and the answer is received
by such messenger but remains in his pocket until accidentally discovered
the next day, the telegraph company is liable for the omission of the
messenger, notwithstanding that the company’s blank provides that when
4& message is sent to its office by one of its messengers, the latter should
be deemed the agent of the sender. (Will v. Postal Teleg. Cable Co., 3
App. Div., 22.)

A stipulation in a telegraph company’s blank does not limit its liability
when its negligence is gross or its conduct willful. (Dixon v. Western
Union Teleg. Co., 3 App. Div., 60.)

§ 104. Consolidation of corporations.— Any corporation
organized under this article may lease, sell or convey its property,
rights, privileges and franchises, or any interest therein, or any
part thereof to any telegraph or telephone corporation organized.
under or created by the laws of this or any other state, and may
acquire by purchase, lease or conveyance the property rights, privi-
leges and franchises, or any interest therein or part thereof of any
such corporation, and may make payments therefor in its own stock,
money or property, or receive payment therefor in the stock, money
or property of the corporation to which the same may be so sold,
leased or conveyed, but no such lease, sale, purchase or conveyance
shall be valid until it shall have been ratified and approved by a
Amendment of 1907.

(Insert facing page 251, White on Corporations, 6th edition.)

Laws of 1907, chapter 310, amends the Transportation Corporations Law
by adding a new section, to read as follows:

| § 106. The provisions of this article shall apply to corporations for the
generation and distribution of music electrically; and such corporations shall
possess the powers and be subject to all the duties granted to or imposed
upon telegraph and telephone companies thereby except that such corpora-
tion shall not have or exercise the right of condemnation.

a

5
 

‘TELEGRAPH AND TELEPHONE CoRPorRaTIONS. 251

The Transportation Corporations Law, § 105.

 

three-fifths vote of its board of directors or trustees, and by the
vote or written consent of stockholders owning at least three-fifths.
of the capital stock given at a meeting of all the stockholders duly
called for that purpose. .

§ 105. Special policemen.—The police department or board
of police of any city may, in addition to the police force now au-
thorized by law, appoint a number of persons, not exceeding two.
hundred, who may be designated by any corporation operating a
system of signaling by telegraph to a central office for police assist-
ance, to act as special patrolmen in connection with such telegraphic
system. And the person so appointed shall, in and about such ser-
vice, have all the powers possessed by the members of the regular
force, except as may be limited by and subject to the supervision
and control of the police department or board of police of such
city. No person shall be appointed such special policeman who does
not possess the qualifications required by such police department or
board of police for such special service; and persons so appointed
shall be subject, in case of emergency, to do duty as part of the
regular police force of the city. The police department or board.
of police shall have power to revoke any such appointment at any
time, and every person appointed shall wear a badge and uniform,
to be furnished by such corporation and approved by the police
department or board of police, such uniform shall be designated at
the time of the first appointment and shall be the permanent uni-
form to be worn by such special police, and the pay of such special
patrolmen and all expenses connected with their service shall be
wholly paid by such corporation, and no expense or liability shall
at any time be incurred or paid by the police department or board
of police of any city, for or by reason of the services of such
persons so appointed.

No prescriptive right acquired by attachment of wires.—
Whenever any wire or cable used for any telegraph, telephone,
electric light or other electric purpose, or for the purpose of com-
munication otherwise than by the aid of electricity, is or shall be
attached to, or does or shall extend upon or over any building or
land, no lapse of time whatever shall raise a presumption of any
grant of, or justify a prescription of any perpetual right, to such
attachment or extension.

(Laws of 1886, ch. 40.)

For explanation of interval in numbering between section 105, supra,
and section 120, infra, see page 106.
252 Tornrrke, PLANK-ROAD AND Bripece CoRPoratTIONs.

 

The Transportation Corporations Law, § 120.

ARTICLE IX.

Turnerke, Puanx-roap AND Brrocz CorPorations.

Sxcrion 120. Incorporation.
121. Restriction upon location of road.
122. Agreement for use of highway.
128. Application to board of supervisors.
124. Commissioners’ to lay out road.
125. Possession of and title to real estate.
126. Use of turnpike road by plank-road.
127. Width and construction of road.
4128. Construction of bridges; obstruction of rafts prohibited.
129. Certificate of completion of road or bridge.
130. Toll-gates and rates of toll, and exemptions.
131. Toll gatherers.
182. Penalty for running a gata.
133. Location of gates and change thereof.
134, Inspectors, their powers and duties.
135. Change of route, extensions and branches.
136. Mile stones, guide-posts and hoist-gates.
187. Location of office of corporation. :
188. Consolidation of corporations, sale of franchise.
189. Surrender of road.
140. Taxation and exemption.
141. Hauling logs and timber.
142. Encroachment of fences.
148. Penalty for fast driving over bridges.
144. Acts of directors prohibited.
145. Actions for penalties.
146. Proof of incorporation.
147. When stockholders to be directors.
148. Dissolution of corporation, road to be a highway.
149. Town must pay for lands not originally a highway.
150. Highway labor upon line of plank-road or turnpike.
151. Extension of corporate existence.

Szorton 120. Incorporation.—Five or more persons may
‘become a corporation for the purpose of constructing, maintaining
and owning a turnpike, plank-road or a bridge, or causeway across
any stream or channel of water, or adjoining bay, swamp, marsh,
or water to form in connection with such bridge or causeway a
continuous roadway across the same, by signing, acknowledging
and filing a certificate containing the name of the corporation, its
duration, not exceeding fifty years, the amount and number of
shares of its capital stock, the number of its directors, and their
names and post-office address for the first year, the termini of the
proposed road, its length, and each town, cjty or village into or
through which it is to pass, or of a bridge, the location and plan
f

Turnpike, PLanx-RoAp AnD Bringe Corrorations. 253

 

The Transportation Corporations Law, §§ 121, 122.

 

thereof, and the post-office address of each subscriber, and the num-
ber of shares of stock which he agrees to take, the aggregate of
which subscriptions shall not be less than five hundred dollars for
every mile oferoad, or if a bridge corporation not less than one-
fourth of the amount of the capital stock, and five per cent of which |
must be actually paid in cash. There shall be indorsed on and
annexed to the certificate and made a part thereof the affidavit of at
least three of the directors named therein, that the required amount.
of capital stock has been subscribed and the prescribed percentage
paid in cash.

For forms of certificates of incorporation, see post, forms Nos. 93 and 94.

See the comments under “Incorporators,’”’ “Corporate Name,” “Objects,”
“Capital Stock,” “Shares of Stock,” “ Directors,” ‘“ Additional Powers,”
“Liability of Stockholders,” ‘ Filing and Recording” and “Fees,” on
pages 210, 211, all of ‘which are applicable to corporations under this
article. It should be noted, however, that there is neither a maximum
nor a minimum limit as to directors in the foregoing section.

For provisions regulating extension of corporate existence, see page 231.

The power is extended to certain corporations maintaining bridges to
operate a railway thereon. See post, page 289.

As to the right of a corporation to maintain toll gates under the fran-
chise of another company after expiration of its own charter, see People
vy. De Grauw, 133 N. Y., 254, and cases therein cited.

§ 121. Restrictions upon location of road.—No such road
shall be laid out through any orchard of the growth of four years
or more to the injury or destruction of fruit trees, or through any
garden cultivated for four years or more before the laying out of
che road, or through any dwelling-house or building connected
therewith, or any yards or inclosures necessary for its use or enjoy-
ment without the consent of the owner thereof, nor shall any such

_eorporation bridge any stream in’ any manner that will prevent or
endanger the passage of any raft of twenty-five feet in width, or
where the same is navigable by vessels or steamboats.

§ 122. Agreement for use of highways.—The supervisor
and commissioner of highways, or a majority if there be more than
one of any town, may agree in writing with any such corporation
for the use of any part of a public highway therein required for the
construction of any such road, and the compensation to be paid
by the corporation for taking and using such highway for such
purpose on first obtaining consent of at least two-thirds of all the
owners of land bounded on or along such highway, which agree-
ment shall be filed and recorded in the town clerk’s office of the
254 Tuornprcy, Pranx-roap AND Bripgr Corporations.

 

The Transportation Corporations Law, § 123.

 

town. If such agreement can not be made the corporation may
acquire the right to take such highway for such purpose by con-
‘demnation. The compensation therefor shall be paid to the com-
missioners of highways, to be expended by them in improving the
highways of the town.

§ 123. Application to board of supervisors.—If the lands
necessary for the construction of the road or bridge of any such
corporation in any county have not been procured by gift or pur-
chase, and the right to take and use any part of any highway therein
required by such corporation shall not have been procured by agree-
ment with the supervisor and commissioners of highways of the
town in which such highway is situated, the corporation may make
application to the board of supervisors of each county in which such
bridge or road, or any part thereof, is to be located, for authority
to build, lay out and construct the same, and take the necessary
real estate for such purpose. Notice of the application shall be
published in at least one public newspaper in each county for six
successive weeks, specifying the time and place where it will be
made, the location, length and breadth of any such bridge, and the
length and route of any such proposed road, its character, and each
town, city and village in or through which it is to be constructed.
‘The application may be made at any annual or special meeting of
the board, and if the corporation desires a special meeting therefor
any three members of the board may fix a time when the same shall
be held, and notice thereof shall be served upon each of the other ,
supervisors by delivering the same to him personally or leaving it
at his place of residence at least twenty days before the minutes,*
and the expenses of the special meeting and of notifying the mem-
bers of the board thereof shall be paid by the corporation. All per-
sons interested therein or owning real estate in any of the towns
through which it is proposed to construct the road may appear and
be heard upon the hearing of the application. The board may take
testimony in respect thereto, or authorize it to be taken by a com-
_ mittee of the board and may adjourn the hearing from time to time.
After hearing the application the board may, by an order entered
in its minutes, authorize the corporation to construct such bridge
or road and to take the real estate necessary for that purpose, and
a copy of the order certified by the clerk of the board shall be
recorded by the corporation in the office of the clerk of the county

 

* So in the original.
TurnPike, PLanK-roaD AND Bringer Corporations. 255

 

The Transportation Corporations Law, §§ 124, 125, 126.

 

in which such bridge or road or any part thereof is to be located
‘before any act shall be done under it.

§ 124. Commissioners to lay out road.—If the application
for the construction of any such road is granted, the board shall
appoint three disinterested persons, not owners of real estate in any
town, through which the road is to be constructed or in any adjoin-
ing town, commissioners to lay out the road. They shall take the
constitutional oath of office, and without unnecessary delay lay out
the route of such road in such manner as in their opinion will best
promote the public interests; they shall hear all persons interested
who shall apply to. be heard and may take testimony in relation
thereto, and shall cause an accurate survey and description of the
road and the necessary buildings and gates, signed and acknowl-
edged by them to be recorded in the clerk’s office of the county.
If the road is situated in more than one county, such survey and
description shall be separate as to that portion in each county and
filed in the office of the clerk of the county in* which it relates.
‘The corporation shall pay each commissioner three dollars for every -
day spent by him in the performance of his duties and his neces-
‘sary expenses.

§ 125. Possession of and title to real estate.—The route so
laid out and surveyed by the commissioners shall be the route of
the road, and the corporation may enter upon, take and hold for
the purposes of its incorporation, the lands described in such survey
as necessary for the construction of its road, and requisite buildings
and gates. If for any cause the owner of any such lands shall be
incapable of selling the same or his name or residence can not, with
teasonable diligence be ascertained or the corporation is unable to
agree with the owner for the purchase thereof, it may acquire title
thereto by condemnation.

For provisions as to acquisition of property by condemnation proceed-
ings, see the condemnation law, post.

§ 126. Use of turnpike road by plank-road.—No plank-
‘road shall be made on the roadway of any turnpike corporation
without its consent, except for the purpose of crossing the same.
Any plank-road corporation may contract with any connecting
turnpike corporation for the purchase of its roadway or a part
thereof, or of its stock, on such terms as may be mutually agreed
upon, and such stock, if purchased, shall be held by the plank-road
corporation for the benefit of its stockholders in proportion to the

 

* So in the original.
256 Turnpike, PLanK-RoaD AND Bripge Corporations.

 

The Transportation Corporations Law, § 127.

 

amount of stock held by each, and a transfer of stock in the plank-
road corporation shall carry with it its proportional amount of the
turnpike stock, and entitle the holder thereof to his share of the
dividends derived therefrom. After the purchase of the whole of
the stock of any such turnpike corporation by such plank-road cor-
poration the directors of the plank-road corporation shall be the
directors of the turnpike corporation, and shall manage its affairs
and render an account of the same annually to the stockholders of
the plank-road corporation. If the plank-road corporation is dis-
solved, its stockholders at the time of dissolution shall'be the stock-
holders of the turnpike corporation in proportion to the amount of
stock held by each, and the stock of the turnpike corporation shall
thereafter be deemed tc be divided into shares equal in number to
the shares of stock of the late plank-road corporation, and scrip
therefor shall be issued accordingly to each of the last stockholders
of the plank-road corporation, and the officers of the turnpike cor-
poration shall be the same in number’‘as provided for in its charter
or certificate of incorporation, and shall be chosen by such former
‘stockholders of the plank-road corporation or their assigns. A cor-
poration owning a.turnpike road on or adjoining which a plank-
road shal] have been constructed may abandon that portion of its
road on or adjoining the route of which a plank-road is actually
constructed and used.

§ 127. Width and construction of road.—Every such plank-
road shail be so constructed as to make, secure and maintain a
smooth and permanent road, the track of which shall be made of
timber, plank or other hard material forming a hard and even sur- —
face, and every such turnpike road shall be bedded with stone,
gravel or such other material as may be found on the line thereof,
and faced with broken stone or gravel, forming a hard and even
surface with good and sufficient ditches on each side wherever
practicable, and ali such roads shall be laid out at least four rods
wide and the arch or bed at least eighteen feet wide, and shall be
so constructed as to permit carriages and other vehicles conveniently
to pass each other, and to pass on and off such road where inter-
sected with other roads. Any corporation which shall have once
laid its road with plank may relay the same, or any part thereof,
with broken stone, gravel, shells or other hard materials, forming
a good and substantial road. Any plank-road or turnpike corpora-
tion may lay iron rails on its road suitable for the use of wagons
and vehicles drawn by horses or animals over its road, but no other
motive power shall be used thereon.
TURNPIKE, PuanK-roaD AND Brroce Corporations. 257

 

The Transportation Corporations Law, §§ 128, 129.

 

§ 128. Construction of bridges; obstruction. of rafts
prohibited.— Every bridge constructed by any such corporation

shall be built with a good and substantial railing or siding at least
_four and one-half feet high, and over any stream navigable by rafts
the corporation shall keep the channel of the stream above and’
below the bridge free and clear from all deposits, formed or occa-
sioned by the erection of the bridge, which shall in any wise ob-
struct the navigation thereof, and shall be liable to all persons
unreasonably or unnecessarily delayed or hindered in passing the
same for all damages sustained thereby. Nothing in this act shall
be construed to authorize the bridging of any river or water-course
where the tide ebbs and flows, or any waters over which the federal
authorities have any control, unless the consent of such federal
authorities be first obtained; nor the construction of any bridge -
within the limits prescribed by any existing law for the erection

or maintenance of any other bridge.

.

\
(Thus amended by L. 1895, ch. 722; L. 1896, ch. 778.)

§ 129. Certificate of completion of road or bridge.—
When any such corporation shall have completed its bridge or road
or any five consecutive miles thereof, it may apply to the commis-

-sioners of highways of each town in which the completed road or
bridge is situated to inspect the same, and if a majority of the com-
missioners are satisfied that the road or bridge is made and com-
pleted as required by law and in a manner safe and convenient for
the public use, they shall make a certificate to that effect, which
shall be filed'in the office of the county clerk. Each commissioner
shall be paid by the corporation two dollars per day for his ser-
vices and necessary expenses. _

For provisions in relation to unsafe toli-bridges, see post, page 276.

17
258 Turnpike, PLanx-roaD aND Bripck CorporaTIoNs.

 

The Transportation Corporations Law, § 130.

 

§ 130. Gates, rates of toll; “and exemption. — Upon
filing such certificate such corporation may erect a toll-gate at such
bridge or one or more toll-gates upon the road so inspected, and may

demand and receive, the following rates of toll, a printed list of
which. shall be conspicuously posted at or over each gate: If a
bridge corporation, such sum as shall be from time to time pre-
scribed by the board of supervisors of thé county or counties in
which the bridge is located. If a turnpike or plank-road, for every
vehicle drawn by one animal, one cent per mile, and one cent per
mile for each additional animal; for every vehicle used chiefly for
carrying passengers, three cents per mile, and one cent per mile for
each additional animal; for every horse rode, led or driven, three-
quarters of a cent per mile; for every score of sheep or swine, one
and one-half cents per mile, and for every score of neat cattle, two
cents per mile. When diverging roads strike any plank-road or
turnpike at or near any toll-gate, the board of supervisors of the
county may direct that the toll charge shall commence from the
point of such divergence, and only for the distance traveled on
such turnpike or plank-road, but fractions of cents may be made
units of cents in favor of the plank-road or turnpike corporation.
The corporation may from time to time commute, but not for a
longer period than one year at any one time, with any person whose
place of abode shall adjoin or be near to the road for the toll pay-
able at the nearest gate on each side thereof, and the commutation
may be renewed from year to year. No tolls shall be cliarged or
collected at any gate, from any person going to or from public wor-
ship, a funeral, school, town meeting or election at which he is
a voter to cast his vote, a military parade which he is required by
law to attend, any court which he shall be required to attend as a
juror or witness, nor when going to or from his required work upon
any public highway, nor when transporting troops in the actual
service of the United States; and no toll from persons living within
TURNPIKE, PLanK-RoaD AND Brince Corporations. 259

 

The Transportation Corporations Law, § 131.

 

one-half mile of the gate by the most usual traveled road when not

engaged in the transportation of other persons or property except

that persons living within one mile of the gate, by the most usually

traveled road, in an incorporated village of over six thousand in-

habitants, when not engaged in the transportation of the persons

or property shall be exempt from the payment of toll.
(Thus amended by L. 1893, ch.'538.)

The exemptions in this section apply only to toll-gates upon roads
organized under the general law, and will not apply to a company incor-
porated by a special act, in which other and less liberal exemptions were
provided for. (Aurora & Buffalo Plank Road Co. v. Schrot, 90 Hun, 56;
Great Western Turnpike Co. v. Shafer, 57 App. Div., 331.)

Where a person claims exemption from toll under this section, he must
‘establish the fact that he “lived within one mile of the gate by the most
usually traveled road,” and, also, that when toll was exacted he was “ not
engaged in the transportation of other persons or property.” (Conly v.
Clay, 90 Hun, 20.)

An oral agreement that on closing a private road the occupants of a
certain farm should be forever free from tolls at a particular gate was
not within the statute of frauds, as granting an interest in lands. (Great
Western Turnpike Co. v. Shafer, 57 App. Div., 331.) After recognizing
tthe agreement for forty years the corporation cannot question the author-
ity of the person who made it on behalf of the corporation. (Id.)

Laws of 1898, chapter 151, amending Laws of 1882, chapter 92, by strik-
ing therefrom the provision permitting a turnpike corporation to charge
toll for bicycles, thereby reducing the earning capacity of the corporation
twenty-five per cent., is unconstitutional. (Rochester & Charlotte T. Road
Go. v. Joel, 41 App. Div., 43.)

§ 131. Toll gatherers,— Every such corporation may ap-
point toll gatherers to collect toll at each gate, who may detain and
prevent from passing through the gate, any person riding, leading
or driving animals or vehicles, subject to the payment of toll, until
the toll is paid, but if he shall unreasonably hinder or delay any

‘
260 ‘Tournrrkz, PLanc-roaD AND Briper Corporations.

 

The Transportation Corporations Law, §§ 132, 133.

traveler or passenger liable to the payment of toll, or shall deniand
or receive from any person more toll than he is authorized by law
to collect, he shall forfeit to such person the sum of five dollars for
every offense, and the corporation employing him shall be liable for
the payment thereof, and for any damages sustained by any person
for acts done or omitted to be done by him in his capacity of toll
gatherer, if, on recovery of judgment against the toll gatherer
therefor, execution thereon shall be returned nulla bona.

§ 132. Penalty for running a gate.—Any person who, with
intent to avoid the payment of toll, shall pass any gate, without
paying the toll required by law, or shall, with his team, carriage:
or horse, turn out of a turnpike or plank-road and pass any gate:
thereon on ground adjacent thereto, shall forfeit for each offense
the sum of ten dollars to the corporation injured.

§ 133. Location of gates and change thereof.—No such
corporation shall erect any toll-gate, house, or other building within
ten rods of the front of any dwelling house, barn or other out-house,.
without the written consent of the owner, and the county judge of
the county in which, the same is located shall, on application, order-
any building so erected to be removed, and if a majority of the
_ commissioners of highways of any town, in which a toll-gate shall
be located, or in an adjoining town, shall deem the location of any
gate unjust to the public interests by reason of the proximity of
diverging roads or otherwise, they may, on fifteen days’ written
notice to the president or secretary of the corporation, apply to the-
county court of the county in which the gate is located, for an order:
to alter or change its location. On hearing such application, and
viewing the premises, if deemed necessary, the court may make.
such order in the matter as may be just and proper. Either party
may, within fifteen days thereafter, appeal to the general term of
the supreme court from such order, on giving such security as the
county judge, making the order, may prescribe. Upon such appeal
the supreme court, on motion of either party and on due notice,
shall appoint three disinterested persons who are not residents of
any town through or into which such road shall run, or to or from
which it is the principal thoroughfare, or any adjoining town, as
referees to hear, try and determine the appeal. Such referees shall
view the premises and the location of the gate, and hear the parties.
in the same manner as on the trial of an issue of fact by a referee.
in a civil action in the supreme court, and report their decision
thereon and the reasons therefor, and the evidence taken thereon

x
TURNPIKE, PLaNK-RoaD aND Bripgr Corporations. 261

 

The Transportation Corporations Law, § 134.

 

to the supreme court, and such court shall review the report and
render judgment thereon as justice and equity shall require, which
shall be final and conclusive. The referee shall be entitled to the~
same fees as referees in civil actions in the supreme court, to be paid
in the first instance by the party in whose favor their report or deci-
sion shall be, and the supreme court shall award judgment therefor,
with such costs and expenses as it may deem reasonable, to the suc-
-cessful party on the appeal, which judgment shall be entered with
the order affirming or reversing the order appealed from, and may
‘be enforced by execution as a judgment of a court of record. If the
- order of the county court is not appealed from, it may be enforced,
as the court may direct, and the court may allow such costs as may
be deemed just and equitable.

§ 134. Inspectors; their powers and duties.— The com-
‘missioners of highways of the several towns and the trustees or other
-officers in the incorporated cities and villages of the state, who per-
‘form the duties of commissioners of highways in such cities and vil-
lages, shall be inspectors of plank-roads and turnpikes, in their
respective towns, cities and villages. They shall inspect or cause to
be inspected by one or more of them the whole of such turnpike or
plank-roads as lies in their respective towns, villages or cities, at least
“once in each month, and whenever written complaint shall be made
to any inspector, that any part of such road lying in the town, city
-or village of such inspector is out of repair he shall, without delay,
view and examine the part complained of. If such turnpike or plank-
road shall be found to be out of repair or in condition ‘not to be
-conveniently used by the public, such inspectors or either of them,
-or the one to whom such complaint shall have been made, shall give
written notice to the toll-gatherer, or person attending the gate
“nearest the place out of repair or in bad condition to cause the same to
be put in good condition before a time therein designated not less
‘than forty-eight hours after the service of such notice, or to appear
before the county court of the cqunty in which that part of the road
-is situated, at a time in said notice designated, and show cause why such
turnpike or plank-road should not be repaired or put in good condi-
‘tion as in said notice directed. If such road shall not have been there-
tofore repaired or put in good condition as in said notice directed
‘then the county court shall, upon the return of such notice hear the
allegations and proofs of the parties, and it shall always be open for
that purpose; and if the court shall find such road to be out of repair
-or in bad condition it may give additional time for the repair thereof,
-or it may order the gate nearest the place out of repair or in bad
condition to be immediately upon the service of the order, or at a
time therein specified, thrown open and to remain open until the
‘road shall be fully repaired at the place directed to be repaired as
262 Turnpike, Pranx-roap AND Bripce CoRPORATIONS.

 

The Transportation Corporations Law, §§ 135, 136.

 

aforesaid. Such order shall be served in the manner therein specified.
upon the keeper of the gate so ordered to be thrown open. Any in-
spector within the town, city or village where such road has been
repaired pursuant to notice or order as aforesaid, may certify that
such road has been duly repaired. The fees of the inspector for the
services above mentioned shall be two dollars for each day actually
employed, together with necessary witnesses fees, to be paid by the
corporation or person whose road is so inspected, if the gates are
ordered to be thrown open, but otherwise to be charged, audited and
paid in the same manner as other fees of commissioners of highways.
Any inspector who neglects to perform his duties shall forfeit to the ;
party aggrieved the sum of twenty-five dollars for each offense.
Every keeper of a gate ordered to be thrown open, not immediately
obeying such order or not keeping such gate open until such road
shall be fully repaired or until a certificate that such road has been:
duly repaired is granted, or hindering or delaying any person in pass-
ing, or taking any tolls from any person passing such gate during
the time it ought to be open, shall forfeit to the party aggrieved the
sum of ten dollars for each offense, and the corporation or person
owning the road, who shall refuse or neglect to obey the requirements
of any such order shall forfeit to the people of the state the sum of
two hundred dollars for each offense. 2

(Thus amended by L. 1896, ch. 343.)

§ 135. Change of route; extension of branches.— Any
such corporation may, with the written consent of the owners of two-
thirds of its capital stock and of a majority of the commissioners of
highways of the town or towns, in which any change or extension is
proposed to be made, construct branches to its main line or extend
the same, or change the route of its road or any part thereof, and
acquire the right of way for the same in the same manner as for the
original or main line, and may, by any of its officers, agents or ser-
vants, enter upon lands for the purpose of making an examination,
survey or map, doing no unnecessary damage; but before entering
upon, taking or using such lands, the corporation shall make a survey
and map thereof, designating thereon the lands of each owner or
occupant intended to be taken or used, which shall be signed and ac-
knowledged by the engineer making the same and the president of the
corporation and filed in the office of the clerk of the county in which
the land is situated. :

§ 136. Mile stones, guide posts and hoist-gates.—A mile
stone or post shall be erected and maintained by every such cor-
poration on each mile of its road, on which shall be fairly and
legibly marked or inscribed the distance of such stone or post from
the place of commencement of the road, and when the road ghalt
commence at the end of any other road having mile-stones. or posts.
on which the distance from any city or town is marked, a con-
Turnpike, PLank-RoaD AND Burpex Corporations. 268

 

The Transportation Corporations Law, §§ 187, 138.

 

tinuation of that distance shall in like manner be inscribed. A
guide-post shall also be erected at the intersection of every public
road leading into or from every turnpike or plank-road, on which
shall be inscribed the name of the place to which such intersecting
road leads in the direction to which the’ name on the guide-post
shall point. No plank road or turnpike corporation shall erect or
put up any hoist-gate on its road. Any person who shall willfully
break, cut down, deface or injure any mile-stone, post or gate on
such road, or dig up, or injure any part of the road, or anything
belonging thereto, shall forfeit to the corporation twenty-five dol-
lars for every offense, in addition -to the damnages resulting fiom
the act.

§ 137. Location of office of corporation. —Within two weeks
after the formation of any such corporation its directors shall desig-
nate some place within a county in which its road or bridge, or
some part thereof shall be constructed as its office, and shall give
public notice thereof by publishing the same once in each week for
three successive weeks in a public newspaper in the county, and
shall file a copy of the notice in the office of the county clerk of
every county in which any part of the road or bridge is, or is to be
constructed, and if the location of such office shall be changed, like
notice of the change shall be published and filed, in which shall be
specified the time of making the change, before it shall take effect.
Every notice, summons or other paper required by law to be served
on the corporation may be served by leaving the same at such office
with any person having charge thereof, at any time between nine
o’clock in the forenoon, and five o’clock in the afternoon of any
day except Sunday or a legal holiday.

§ 188. Consolidation of corporations and sale of fran-
chise.—Any two or. more of such corporations nmay consolidate
into one corporation on such terms as the persons owning two-thirds
of the stock of each corporation may agree upon, and may change
the name of the road on filing in the office where the original cer-
tificates of incorporation were filed, a certificate containing the
names of the roads so consolidated, and the name by which such
road shall thereafter be known. Any plank-road or turnpike corpo-
ration may, with the consent of the owners of sixty per cent of its
stock, sell, and convey the whole or any part of its rights, property
and franchises to any other domestic plank-road or turnpike corpo-
ration, and such sale and conveyance shall vest the rights, property

\
264 . Turnrixs, PrianK-Roap AND Bripar Corporations.

The Transportation Corporations Law, §§ 139, 140.

and franchises thereby transferred in the corporation to which they
are conveyed for the term of its corporate existence.

§ 139. Surrender of road.—The directors of any plank-road
or turnpike corporation may abandon the whole or any part of its
road at either or both ends thereof, upon obtaining the written
consent of the stockholders, owning two-thirds of the stock of the
corporation, which surrender shall be by a declaration in writing
to that effect, attested by the seal of the corporation and acknowl-
edged by the president and secretary. Such declaration and: con-
sent shall be filed and recorded in the clerk’s office of the county in
which any part of the road abandoned shall be situated, and the
road so abandoned shall cease to be the road or the property of the
corporation, and shall revert and belong to the several towns, cities
and villages through which it was constructed, and the corporation
shall no longer be liable to maintain it or to be assessed thereon, or
permitted to collect tolls for traveling over the same, but without
impairing its right to take toll on the remaining part of its road at
the rate prescribed by law. And whenever any turnpike or plank-
xoad company, now existing or hereafter created, shall abandon all
or any part of its road within this state, in the manner above pro-
vided, or whenever its charter or franchise of such company shall be
annulled or revoked, the road of such turnpike or plankroad com-
pany shall revert to and belong to the’ several towns, cities and vil-
lages through which such road shall pass. And’it shall be the duty
of the several towns, cities and villages acquiring any road under
this act to immediately lay out and declare the same a free public
highway. And it shall be the duty of the several towns, citics and
villages, to maintain and work every road acquired under the pro-
visions of this act in the samé manner as the other roads of such
towns, cit'2s and villages are maintained and worked. And any
town, city or village may borrow money in the manner provided by
law for the purpose of improving or repairing the same.

(Thus amended by L. 1896, ch. 964.) a

The policy of the State is that public roads, constructed by turnpike or
other corporations under special charters or general statutes, shall, on
dissolution of the companies which constructed them, or their abandon-
ment by such companies, become and be thereafter treated as public

highways. (People ex rel. Keene v. Supervisors of Queens Co., 151 N. Y¥,,
190; aff’g 91 Hun, 241.) 3

§ 140. Taxation and exemption.—So much of any bridge or
toll-house of any bridge corporation as may be within any town,
city or village, shall be liable to taxation therein as real estate. Toll-
Turnpike, PLanx-roap AND Bripge CorPoRATIONs. 265

 

The Transportation Corporations Law, §§ 141, 142.

 

houses and other fixtures and all pro,‘erty belonging to any plank-
road or turnpike corporation shall be exempt from assessment and
taxation for eny purpose until the surplus annual receipts of tolls
on its road over necessary repairs and a suitable reserve fund for
repairs or relaying of plank, shall exceed seven per cent per annum
on the first cost of the road. If the assessors of any town, village
or city and the corporation disagree concerning any exemption
claim, the corporation may appeal to the county judge of the
county in which such assessment is proposed to be made, who shall,
after due notice to both parties, examine the books and vouchers of
the corporation, and take such further proof as he shall deem ,
proper, and decide whether such corporation is liable to taxation
under this section, and his decision shall be final.

§ 141. Hauling logs and timber.—Any person who shall
‘draw or haul or cause to-be drawn or hauled, any logs, timber or
other material upon the bed of any plank or turnpike road, unless
the same shall be entirely elevated above the surface of the road on
wheels or runners, and the road-bed shall be injured thereby, or
who shall do or cause to be done any act by which the road-bed, or
any ditch, sluice, culvert or drain appertaining to any turnpike or
plank-road shall be injured or obstructed, or shall divert or cause to
be diverted, any stream of water so as to injure or endanger any part
of such road, shall forfeit to the corporation the sum of five dollars
for every offense in addition to the damages resulting from the
wrongful act.

§ 142. Encroachment of fences.—Whenever the president or
secretary of any turnpike or plank-road corporation shall notify any
inspector of such roads in the county where situated that any person
is erecting or has erected any fence or other structure upon any part
of the premises lawfully set apart for any such turnpike or plank-
road, the inspector shall examine into the facts and order the fence
or other structure .to be removed if it shall appear to be upon any
part of any such road, and any person neglecting or refusing to
remove the same within twenty days or such further time not
exceeding three months, as may be fixed by the inspector, shall for-
feit to the corporation the sum of five dollars for every day, during
which the fence or other structure shall remain upon such road, but
no such order shall require the removal of any fence, previously
erected, between the first day of December and the first day of
April. .
266 Tornprke, Pranx-roap anp Bringe Corporations.

 

The Transportation Corporations Law, §§ 143, 144, 145, 146, 147.‘

§ 143. Penalty for fast driving over bridges.—Any plank-
road, turnpike or bridge corporation may put up and maintain at.
conspicuous places at each end of any bridge, owned or maintained
by it, the length of whose span is not less than twenty-five feet, a
notice with the following words in large characters : “ One dollar
fine for riding or driving over this bridge faster than a walk.”
Whoever shall ride or drive faster than a walk, over any bridge,
upon which such notice shall have been placed, and shall then be,
shall forfeit to the corporation the sum of one dollar for every such
offense.

§ 144. Acts of directors prohibited.—No director of any
such corporation shall be concerned, ‘directly or indirectly, in any
contract for making or working any road belonging to it during
the time he shall be a director. No contractor for the making of
such road, or any part thereof, shall make a new contract for the
performance of his work, or any part of it, other than by hiring
hands, teams, carriages or utensils, to be superintended and paid by
himself, unless such new contract and its terms be laid before the
board of directors and be approved by them.

§ 145. Actions for penalties.—No action to recover any
penalty against any turnpike or plank-road corporation, shall be
commenced or maintained against it, or any of its officers or agents,
unless commenced within thirty days after the penalty was
incurred. ,

§ 146. Proof of incorporation.—In any action brought by or
against any domestic turnpike or plank-road corporation, which
shall have been in actual operation, and in possession of a road upon
which it has taken toll for five consecutive years, next preceding
the commencement of the action, parol proof of such corporate
existence and use shall be sufficient to establish the incorporation of
the corporation, for all the purposes of the action, unless the oppos-
ing party shall set up a claim in his complaint or answer duly veri-
fied of title in himself to the road, or some part thereof stating the
nature of his title, and right to the immediate possession and use-

thereof.

§ 147. When stockholders to be directors.—When the
whole number of stockholders in any turnpike or plank-road corpo-
ration shall not exceed the number of the directors specified in the
certificate of incorporation, ‘each stockholder shall be a director of
such corporation, and the stockholders shall constitute the board of
Tournrike, PLank-roap AND Bringz Corporations. 267

 

The Transportation Corporations Law, § 148.

 

directors, whatever may be their number, and a majority thereof

shall be a quorum for the transaction of business.

§ 148. Dissolution of corporation.—Every turnpike, plank

road or bridge corporation may be dissolved by the legislature when,.
by the income arising from tolls, it shall have been compensated for
all moneys expended in purchasing, making, repairing and taking.

care of its road, and have received in addition thereto an average
annual interest at the rate of ten per cent, and on such dissolution

all the rights and property of the corporation shall vest in the people-

of the state. Any such corporation, which shall not within two
years from the filing of its certificate of incorporation, have com-

menced the construction of its road or bridge and actually expended.

thereon ten per cent of its capital, or which shall not within five
years from such filing have completed its road or bridge, or in case
such bridge is destroyed, shall not rebuild the same within five years,
or which, for a period of five consecutive years shall have neglected
or omitted to exercise its corporate functions shall be deemed dis-
solved. Where the corporation has neglected or omitted for five

years to exercise its corporate functions, and its road-bed or right of
way shall-have been used as a public highway for that period, or

where any such corporation shall have become dissolved, or where:
the road or any part of it of a turnpike or plank-road corporation, or
the bridge of any bridge corporation, shall have been discontinued,.
such road-bed or right of way, and such discontinued road or bridge,
and the road or bridge of any such dissolved corporation, shall
thereafter be a public highway, with the same effect as if laid out
by the commissioners of highways of the town, and be subject to the:
laws relating to highways and the erection, repairing and preserva-
tion of bridges thereou.

The question whether a forfeiture clause is or is not self-executing,.
depends wholly upon the language employed by the Legislature. (Matter
of New York & Long Island Bridge Co. v. Smith, 148 N. Y., 540.) It
requires, however, strong and unmistakable language tu authorize the
court to hold that it was the intention of the Legislature to dispense with
judicial proceedings on the intervention of the attorney-general. (Id.).
Where the words of forfeiture were, “the corporation shali be dissolved,”
the default did not work a dissolution ipso facto, but proceedings were
necessary to accomplish an actual dissolution. (People v. Buffalo Stone
& Cement Co., 131 N. Y., 140.) A forfeiture clause which provides that,
inl case of default by the corporation, “ its corporate existence and powers
shall cease,” is self-executing, and the corporate powers cease without
judicial proceedings. (In re Brooklyn, Winfield & Newtown R. R. Co., q2
N. ¥., 245.) And the corporate existence ceased by the mere fact of failure
of a corporation to perform certain acts imposed by the charter, in which
268 TurNPIKE, PLanx-RoaD AND Briper Corporations.
The Transportation Corporations Law, §§ 149, 150.

the words of forfeiture were, “this act and all the powers, rights and
franchises herein and hereby granted shall be deemed forfeited and
terminated.” (Brooklyn Steam T. Co. v. Brooklyn, 78 N. Y., 524.) But,
where it was provided that in case of default, the company should “ for-
feit the rights acquired by it” under the act of incorporation, it was held
that the ‘provision did not ex proprio vigore put an end to the corporate
life in case of default, but simply exposed the company to proceedings on
behalf of the State to establish and enforce the forfeiture. (In re Brook-
lyn Elevated R. R. Co., 125 N. Y., 484.) The words, “all rights and privi-
leges granted hereby shall be null and void,” do not render a forfeiture
clause self-executing. (148 N. Y., 540, supra.)

§ 149. Town must pay for lands not originally a high-
‘way.—When the corporate existence of any plank-road or turn-
pike corporation shall have ceased by limitation of time, or where
any judgment of ouster or dissolution, or restraining the exercise
of its franchises has been rendered in any action against it, such
portion of the line of its road as was built over lands which were
originally purchased by it and not previously a public highway shall
not be used as a public highway, nor be taken possession or control
ot by the town in which the same may be, or by any of the author-
ities thereof or be claimed or worked or used as a public highway
until the town shall pay over to the treasurer, receiver or other legal
representatives of the corporation, or its assigns, the principal sum
of the amounts paid by it for such lands, as shown by the deeds of
conveyance thereof to it, and every such judgment shall provide
accordingly. Such payments shall be made within three months
after the expiration of the corporate existence of the corporation,
or if any such judgment has been or shall be rendered within three
months after service of written notice of the entry thereof on the
supervisor of the town, and the person receiving such payment shall
execute a proper discharge therefor and a conveyance to the town
of all the title and interest which the corporation had in such lands
at the expiration of its corporate existence.

§ 150. Highway labor upon line of plank-road or turn-
pike.—Every person liable for highway labor living or owning
property on the line of any plank-road or turnpike may, on written
application to the commissioners of highways of the town, on any
day previous to making out the highway warrant by the commis-
ssioners, be assessed for the highway labor upon his property upon
the line of such road, in the discretion of the commissioners to be
worked out upon the line of such road as a separate road district,
and the commissioners shall make a separate list of the persons and
property so assessed, as for a separate road district, and deliver the
TURNPIKE, PLANK-kOAD AND Bripae Corporations. 269

 

The Transportation Conporations Law, § 151.

 

same to one of the directors of the corporation owning such road,
who shall cause such highway labor to be worked out on such road
in the same manner that oversees* of highways are required to do,
and such directors shall possess the powers and have the authority
to campel the performance of such highway labor or the payment
of the tax therefor as such oversees* now have by law, and shall
make like returns to the commissioner of highways, and any person
so assessed may commute for the highway labor assessed upon him
or his property by paying the sum now fixed by law as the commu-
tation for such highway labor.

§ 151. Extension of corporate existence.—No turnpike
plank-road or bridge corporation shall extend its corporate existence,
.pursuant to the provisions of the general corporation law, without
the written consent of the persons owning at least two-thirds ofits
capital stock, nor without the consent of the board of supervisors of
each county in which any part of its road or bridge is situated,
which consent shall be given by a resolution of the board adopted
at any regular or special meeting, and a copy of such resolution,
certified by the clerk of the board, or verified by the affidavit of
some member thereof, together with such consent of the stock-.
holders, and a statement verified by the affidavit of the president
and treasurer of the corporation, showing the actual capital
expended upon the construction of the road, exclusive of repairs,
the name of each town or ward through or int& which the road
passes, and, if any part of the road shall have been abandoned, the
actual cost of the remaining part, exclusive of repairs, shall be filed
with the certificate of the continuance of the corporate existence.
No further abandonment of any road belonging to a corporation
whose corporate. existence has been so extended shall be made,
except with the consent of a majority of the board of supervisors of
the county in which the abandoned portion of the road may lie,
which consent shall be filed in the office of the clerk of the county.

For form of certificate of extension, see post, form No. 95.

. For explanation of interval in numbering between section 151, supra,
and section 160, infra, see page 106.

 

* So in the original.
‘970 MisceLitaneous Provisions.

 

The Transportation Corporations Law, §§ 160, 161, 162, 163.

 

ARTICLE X.

MisceLLaneous Provisions.

Section 160. Laws repealed.
161, Saving clause.
162. Construction.
163. When to take effect.

Section 160. Laws repealed.—Of the laws enumerated in the
schedule hereto annexed, that portion specified in the last column is
‘repealed. Such repeal shall not revive a law repealed by any law
hereby repealed, but shall include all laws amendatory of the laws.
hereby repealed.

See the note on page 72.

§ 161. Saving clause.—The repeal of a law or any part of it .
:specified in the annexed schedule shall not affect or impair any act
-done, or right accruing, accrued or acquired, or liability, penalty,
forfeiture or punishment incurred prior to May first, eighteen hun-
-dred and ninety-one, under or by virtue of any law so repealed, but
the same may be asserted, enforced, prosecuted or inflicted, as fully
-and to the same extent, as if such law had not been repealed ; and
-all actions and proceedings civil or criminal, commenced under or
’ by virtue of the laws so repealed and pending on April thirtieth,
eighteen hundred and ninety-one, may be prosecuted and defended
to final effect, in the same manner as they might under the laws
‘then existing, unless it shall be otherwise specially provided by law.

‘See the General Corporation Law, section 35, and notes thereunder.

§ 162. Construction.—The provisions of this chapter, so far
.as they are substantially the same as those of laws existing on April
thirtieth, eighteen hundred and ninety-one, shall be construed as a
continuation of such laws, modified or amended according to the
language employed in this chapter, and not as new enactments ; and
references in laws not repealed to provisions of laws incorporated
into this chapter and repealed shall be construed as applying to the
provisions so incorporated, and nothing in this chapter shall be
construed to amend or repeal any provision of the Criminal or
Penal Code.

See the General Corporation Law, section 36, and notes thereunder.

¢
§ 163. When to take effect.—This chapter shall take effect on
-May first, eighteen hundred and ninety-one.
SonepuLe or Laws ReEprracep. OT1

 

The Transportation Corporations Law.

 

ScuEpuLe or Laws REpraren.

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DGD 4 o's ea ocora ee a es DBD eras sla ac stlacs metered ies All

ASSS viswsts hewws se waee BOO wie. Se5 eee eos All.*

WEDD Adis rekon te Gia perone ABS oben cae eee aes All

ABDD wince ashe ee areas BA Giese aves eave All

TSbd wii nee dase 559 soc ce anwar All

ABB. cues cae cae ees Soir eer heen All

IBD oa eevee Seon D0 ccwaw area ye oe All

ABST: eS arataeade sere ae GAS odie saie stents All

ABDS tex cwwdten sive nes 10 escdaweeceeee oes All

BSD isco asec scene Bacal ecb D0 9 ssn ere wares eisai aie All

 

* This law, inadvertently repealed in the foregoing schedule jn 1890, has been revived by L. 1892,
‘ch. 687. See the Gereral Corporation Law, section 37.
ts
272 ScurepuLe or Laws ReprEeaep.

 

The Transportation Corporations Law.

Laws of Chapter * Sections.
1859 ee iaecaicen ev eeen oi kG wie negara aes All.
V860 isso acca wees AUG och sseeiserar ated Wiscae way All
USO) i528 i ssentesie ee ae QD wean sep ese Hors All
WS61Liv sweats eddieess DBD ioe Bei Faso aca Sree All
ABO 2 6 we saad en ew'n os DOD is Acc sdottiewara/e svereae All
PSO sass Seatnteaa waes DAES soit gate ie fadal uh an ela to All
LS OZ. co naomi wes WDD swt sew aba neeas All
ESOS gcse dotned Geeta w wee GOL eeewis's eae tele eile All
1GO5s cacsgawwisa sees Pelis putiuie yeaa All
AS OG\s oe rawewiiewusiese AO ctwwi Sawin eee ‘All
AG aia sie tar Sarena Sg UD ite se othe gh oh ak Soares All
IBOT vote cweuesean ee Qs eee warn wea tae All
1868 esate dine wae DOO ossehiate vin oeieelee oS All
1969 oes oo te waow ae s DBE ostais fi sliletele- eis es eel
IB enue reiae ee deea BAD aio bs alese ss we SS All
LEO asi Ged Re ana lurate a DOS wikis asi weeea aaa All
DEG eta lete avi a teen Qe eosisisa weet nae ee All
LS a ehadinds sone we I 28s seh a awale ee is All
LO ss AGaceeeeneews DS Oi 5a dot oie NO aerens tee All
LE oy Haw Sue Kena OA ee ek ee eRe Rien All
i ee er INU cerrinedon Keene All
LS iccniee cpeeass 10s games yee ods All
ABTS. 5ie vee ecunvike ey 440s yersasra e Utd ose All
US Se cevanaeenchece. TR paehsia want omni All
LOT De isieie ueear ens Dic tiaeneeeevewss All
STS ctewieeiwaeaes 1205 oe atte eee Ke All
VAT Slew ase eee ee we BID ei wawe wastes All
ISTO, soosneevewae ds POs tae eee Ge ead ee All
EON ekvanes Greeraes DOD eaieioine Barca ess All
LEO scseuaeuve wean DUG achamuaac mina All
LET Ge acsanv enews eens 1G pod omee Ghee All
LBTGs csewewneee eaves ee All.
ih ly eee ee ee ee eee All
ISTO cae yaseune een BUD gies eo pura Sess ox All.
LTS ecewsa'ain ge eeKe LL eee ee er eee All
1878 pow eedseaveeetas 2p ae ee ee All.
LOT eerie oe a Sige 2DOv ee edie ess Sea ae All.
TOTS scaenereceanes we ilies bicaautacnhs All.
Wo saxduswes ela sate tas Se Seyeeuau ed hee All.
ISTO. ce vccadeweiad es OLD is. iia aie wie ae eee All.
.ScoHEDULE or Laws REPsALED. 273

 

 

The Transportation Corporations Law. '

Laws of 7 Chapter Sections.
1880 6s wisiace cs si eiwasseowe ABA og etdcansisteaiers eee All
DBS Loess enale Wiaravesendie los ML aa Ssevanguetetele a eteseie.s All
DB Besse cuy aise esa es hol odacin 28'S DOL a S.recatyertd ite ig abrantscene'se All
BSS Le vesicienerevre.s wisiarerde's DA Bia sa iain ate Weis wit allavieote All
1881s asses wed oeeaea OU eie cae ares sisieeien All
EBB s asi eubodieie-eierbnere secu GLB is oS aitilerenere Re ecaue ere All
LBS Vio veocienscose esas alowed LOOM sesatas abi oiats wieratayauakecs All
PBB 6 org eiiesesdiee rarer ete AGB os teins hecars nisi evenereus All
DBS Dies aseieiare ee ew eewe OTA carci asendta winnaar All
1882 eed lew ewwewwes 28D io esace ieerewe a eneias All.
1883........ Sie bieenereia DAG isso wiledel tans dreiecerene All.
DSBS aioe: arisiile.se've.o:s)/s)'oises GLO sis lorie sy etesavaiataaranehe All.
VB 8S 2. seo:a) 0: peinre corer 6 e0'e AO sib e-aiiureneyeiena saree All.
1883...... eileen sheila te BBD siaccc re saives atie ore a al alloc All
1883...... seas letereracaue se ABS cae ewe ewes wees All
DSSS oases oysseisie eas sores ADT Biotece we eatie All
DB SA eis: ehishelieiie ince: svoheiaes BS Bier assa%e few sstanongia tae) ete All.
DB BD. os 6: sierene eee epereie TI Boy ahiesieiiasevins oiioviares Mover) hie All.
VS85 sss aiewe aan ancien DAD savin ie vat iorejosesio ens i seis All ‘
1885 ...6.c¢saweaeeu wan AD swine cieamem ene All
1885....200. bie aie vecavexe ADB icc een Meetereeees All.
1886..... ath siasanea PAB... 006 smenaeons aL,
1886.......000. aiaveltairets . OD seve fava “oaitenene eeeess All.
1886...... able te cde eves BD ciate ree srwtereiers cra sae: CALL
1887..... srseiereste SW oteecee sevvenes All,
LSS Sistine aie eicveieie se sloieis ABZ... cceee seseeons ALL
TSS Dic ors wiciesescuaserdieldcexeds (OOO orate pieieceibioieis a's wee VAL,

18
\
274 Misce~tanerous Acts.

The Transportation Corporations Law.

Miscellaneous Acts Applicable to Transportation
Corporations.

Towns May Contract ror Licutine.
L. 1892, ch. 255, as amended by L. 1893, ch. 79; L. 1896, ch. 309; L. 1898,
ch. 669, and L. 1899, ch. 492.

An act to authorize the several towns in this state to establish lamp or
lighting districts outside the limits of any incorporated village or villages
therein, and to provide for the lighting of the public buildings, streets,
avenues, highways and public places in said districts.

Section 1. It shall be lawful for the town board of any town in
this state to contract for the lighting of the streets, avenues, high-
ways, public places and public buildings therein, outside of the cor-
porate limits of any incorporated village in said town, upon such
terms, and for such time or period not exceeding ten years, as the
town board may deem proper or expedient, and for the payment of
the expenses thereof may establish one or more lamps or lighting
districts therein. It shall be lawful for the town boards of two or
more adjoining towns in this state wheuever a petition for the estab-
lishment of a lamp or lighting district shall cover territory lying in
two or more adjoining towns in this state, to contract for the light-
ing of the streets, avenues, highways, public places and public build-
ings therein, outside of the corporate limits of any incorporated: vil-
lage in said town upon such terms and for such time, or period not
exceeding ten years, as the town boards of two or more adjoining
towns in joint session assembled may deem’proper or expedient and
for the payment of the expenses thereof.

§ 2. No such contract shall be made unless a petition for such

lighting, signed by a majority of the taxpayers of such lamp or
lighting district shall be filed with the town clerk of said town
thirty days before the contract is made.

§ 3. The town board, or if such district shall lie in two or more
adjoining towns, then the town boards of each such town shall cause
notice of the same to be published for one week in one or more of
the newspapers published in such town or towns, or if no newspaper
be published in such town or towns, then by posting said notice in at
least six public and conspicuous places in said district of the filing
Miscettangous Acts. O75.

 

‘The Transportation Corporations Law.

 

of said petition, and the time and place when the same will be acted
upon by said town board, or if such lighting district lies in two or
more adjoining towns, then when the same will be acted upon at a
joint meeting of the town boards of such towns, to be held in the
territory where such district is to be created.

§ 4. The amount of any contract that may be entered into pur-
suant to the provisions of this act, shall be assessed, levied and col-
lected upon the taxable property in said town or district in the same
amanner, at the same time, and by the same officers as the town taxes,
charges or expenses of said town are now assessed, levied and col-
lected, and the same shall be paid over by the supervisor to the cor-
poration, company, person or persons furnishing or supplying said
light. If the town boards of two or more adjoining towns shall, in
joint session, establish a lamp or lighting district in two or more
adjoining towns, they shall determine the relative proportion of
the expense of such lighting which shall be borne by each of said
towns, and the amount of such expense shall be assessed and levied
on the taxable property in such lighting district in each of said
towns, and collected in the same manner and at,the same time, and
by the same officers as the town taxes or charges or expenses of the
town in which said district is located, are now assessed, levied and
collected, and such relative expense shall be paid over by the super-
visor of each of said towns to the corporation, company, person or
persons furnishing or supplying said light.

Execrric Lignt Companies ; Rieur or Conpemnarion.
‘
L. 1896, ch. 446.

An act to authorize electric light companies in towns or villages of this
state to acquire real estate.

Szorton 1. Any electric light company in any town or village
in this state having a contract with any town or incorporated village
for the lighting of streets, parks, squares or public buildings in any
town or village, shall have the right and is hereby vested with the
power and authority to acquire such real estate as may be necessary
for the purposes of its incorporation, or acquire the right of way
through any property in the same manner as is now vested by law
in water-works companies. Such real estate or right of way to be
acquired in the manner and form prescribed by the general condem-
nation law of this state.
276 Miscettangeous Acts.

 

-The Transportation Corporations Law.

‘

IncorporaTep VituacEes May Contract Witn Exvectric Lieut
AND WaTeR CoMPANIES.

‘An act to authorize and empower the board of trustees of incorporated
villages in this state to contract with electric light companies organized
under the laws of this state for lighting the streets and public grounds
of said villages. 4 uy

[The foregoing entitled act, being L. 1888, ch. 452, as amended by I.
1895, ch. 113, and L. 1896, ch. 166, has been repealed by the Village Law,
L. 1897, ch. 414, section 240 of which contains like provisions. ]

[For text of act entitled “An act to regulate the price of illuminating
gas in cities of fifteen hundred thousand inhabitants,” see L. 1897, ch.385.]

[The act entitled “ An act to authorize and empower the board of trus-
tees of incorporated villages of this state to contract with water-works.
companies, organized under the laws of this state, or with the owner or
owners of water-works for supplying water for extinguishing fires in said
villages,” L. 1896, ch. 978, has been repealed Ly the Village Law, L. 1897,.
ch. 414, section 220 of which contains like provisions.]

[For the text of an act entitled “ An act to authorize the acquisition. of
turnpikes and plank-roads by counties adjoining cli‘cs of more than
eight hundred thousand and less than fifteen hundred thousand inhabit-
ants, and by villages in such counties,” see L. 1897, ch. 596.]

/

: Water Pirrs in Hienways.
The Highway Law, L. 1890, ch. 586, § 14, as amended by L. 1897, ch. 204.

§ 14. Drainage, sewer and water pipes in highways.— The commis-
sioners of highways may upon written application of any resident of
their town, grant permission to lay and maintain drainage, sewer and
water pipes and hydrants under ground, within the portion therein
described, of any highway within the town, but not under the traveled
part of the highway, except to cross the same, for the purposes of sewer-
age, draining swamps or other lands, and supplying premises with water,
upon condition that such pipes and hydrants shall be so laid as not to.
interrupt or interfere with public travel upon the highway. The consent
of the commissioner shall be executed in duplicate, signed by him and
indorsed with the written approval of the supervisor and the acceptance
of the applicant, and one of such duplicates shall be delivered to the
applicant and the other filed witk the town clerk. The consent shall also.
contain a provision to the effect that it is granted on the condition that
the applicant will replace all earth removed, and leave the highway in
all respects in as good condition as before the laying of said pipes; that
the applicant will keep such pipes and hydrants in repair and save the
town harmless from all damages which may accrue by reason of their
location in the highway; that upon notice by the commissioner, the appli-
cant will make any repairs required for the protection or preservation of
the highway; that upon his default such repairs may be made by the
commissioner at the expense of the applicant, and that such expense
shall be a lien prior to any other lien upon the land benefited by the use
of the highway for such pipes or hydrants; and that the commissioner
may also, upon the applicant’s default, revoke the permsision for the use
of the highway, and remove therefrom such pipes or hydrants.

Unsare Toru-Brrveer.
The Highway Law, L. 1890, ch. 568, § 13.

Whenever complaint in writing, on oath, shall be made to the
commissioners of highways of any town in which shall be, in whole
or in part, any toll-bridge belonging to any person or corporation,
representing that such toll-bridge has from any cause become, and
is unsafe for the public use, such commissioners of highways shall
forthwith ‘make a careful and ‘thorough examination of ‘such toll-
Miscetianeous Acts. Q77

 

The Transportation Corporations Law.

 

bridge, and if upon the examination thereof, they shall be of the
opinion that the same has from any cause become dangerous or
tunsafe for public use, they shall thereupon give immediate notice
to the owners of such toll-bridge, or to any agent of such owners,
acting as such agent, in respect to such bridge, that they have on
complaint made, carefully and thoroughly examined the bridge,
and found it to be unsafe for the public use. Such owners shall
thereupon immediately commence repairing the same, and cause
‘such repairs to be made within one week from the day of such
notice given, or such reasonable time thereafter as may be neces-
sary to thoroughly repair the bridge, so as to make it in all respects,
safe and convenient for public use; and for neglect to take prompt
and effective measures so to repair the bridge, its owners shall for-
feit twenty-five dollars; and shall not demand or receive any toll
for using the bridge, until the same shall be fully repaired; and the
commissioners of highways shall cause such repairs to be made,
and the owners of the bridge shall be liable for the expense thereof,
and for the services of the commissioners at two dollars per day;
and upon the neglect or refusal to pay the same upon presentation
of an account thereof, the commissioners of highways may recover
the same by action, in the name of the town.

Crgrain Bripee Compantes May Operate a Ratiway.
L. 1893, ch. 225.
An act to authorize bridge companies to lay tracks and operate a rail-

"way upon any bridge connecting any city in the State of New York, of
more than one million inhabitants, with any other city in said State.*

Srction 1. Any company incorporated for the purpose of con-
structing and maintaining a bridge or bridges over any river, bay,
arm of the sea or ‘other body of water, connecting any city in the
state of New York, containing more than one million inhabitants,
with any other city in said state, is hereby empowered to lay tracks
and operate a railway upon said bridge or bridges.

‘Powers or County Boarps or Supervisors RELAtiveE to ToLt-
Briers, -Tott-Roaps anD FERRIES.

The County Law, L. 1892, ch. 686.

§ 62. Location and construction of bridges.— The board
‘may authorize the location, change of location and construction of

 

*This act is applicable to the New York and Long Island Bridge Company. (Matter of
278 MiscELLanEous -AcTs. ,

 

The Transportation Corporations Law.

any bridge, applied for by any town or towns, jointly, or by other than
a municipal corporation, created under a general law, or by any corpora-
tion or individual for private purposes; and if a public bridge, erected
other than by a municipal corporation, establish the rates of toll for
crossing such bridge; but if such bridge is to cross a navigable stream,
provision shall be made in the resolution or permission authorizing the
same, for the erection and maintenance of a suitable draw, ‘to’ prevent
any obstruction of the navigation of such stream; and if a private bridge,
provision shall be made that the draw shall be kept open as may be
required to permit all vessels to pass without loss of headway. When
such bridge shall be intersected by the line of counties, the action of the
board of supervisors of each county shall be necessary to give the juris-
diction herein permitted. But this section shall not apply to a pier bridge
erected or to be erected over the Mohawk river above the state dam
by a corporation organized under the transportation. corporations law,
provided such corporation shall comply with all the provisions of said
transportation corporations law applicable thereto; such a corporation,
without further proceeding, shall have the right to erect and maintian.
piers in said river for the purposes of such a bridge.

(Thus amended by L. 1898, ch. 225.)
* * * * * * * *

§ 64. Construction by county of destroyed bridges.—If
any bridge within a county, or intersected by any boundary line of
a county, shall be destroyed by the elements, and the board of
supervisors of the county shall deem that the expenses of the con-
struction of a new bridge at or near the site of the bridge so
destroyed would be too burdensome upon the town or towns within
such county, which would otherwise be liable therefor, the board
of supervisors of any such county may provide for the construction
and completion of a bridge and all the necessary approaches thereto,
at or near the site of the bridge so destroyed. If the bridge so
destroyed shall have been constructed by a corporation created
under a general law, and the site thereof, and of the approaches
thereto, or either, shall be the property of such corporation, such
board of supervisors may purchase the interest of such corporation,
or any other person, in such site or approaches, if such purchase:
can be accomplished upon reasonable térms; but if such site or
approaches cannot be lawfully acquired by such purchase, or other-
wise, upon reusonable terms, such board may acquire title to prem-
ises on either side of such site. and provide for the construction of
a bridge and approaches thereto, at such place, at the expense of the
county, or of the two counties jointly, as the case may be, provided
such bridge shall be so located as not to increase the distance to‘
be traveled upon the highway to reach each end ‘of such bridge
more than five rods. Any board of supervisors providing for the
construction of any such bridge may determine by resolution
whether the expenses of the maintenance and repair thereof shall
MiscettanrEous Acts. 279.

 

The Transportation Corperations Law.

 

thereafter be a county charge, or a charge upon such town or
towns.
* * * x * * * *

§ 69. Authorize towns to borrow money.—The board may,
upon the application of any town or towns liable to taxation for con-
structing, building or repairing any highway or bridge therein, or
upon its borders pursuant to a vote of a majority of the electors
thereof at an annual town meeting, or special town meeting called
for that purpose, or upon the written request of the commissioners
of highways and the town board of such town or towns, authorize
such town or towns to construct, build and repair such highway or
bridge, and to borrow such sums of money for and on the credit
of the town as may be necessary for that purpose, and to lay out,
widen, grade or macadamize such highway, or to purchase for
public use any plank-road, turn-pike, toll-road or toll-bridge in
such town or towns, and may authorize the company owning the
same to sell the same, or any part thereof or the franchises thereof,
or to pay any debt incurred in good faith by or in behalf of such
town or towns for such purpose. If such highway or bridge shall
be situated in two or more towns in the same county, the board
shall apportion the expenses among such towns in such proportion
as shall be just.

§ 73. Regulation of toll rates.—Such boards shall have
power by a vote of two-thirds of all the members elected to author-
ize an alteration, reduction or change of the rates of toll charged
or received by any turnpike, plank or gravel road, or other toll-road
within such county, or by any bridge company or ferry within such
county, or, if within more than one county,. then by joint action
with the supervisors of such counties, provided such alteration shall
be asked for by the directors, trustees or owners of such road, bridge
or ferry; but that no increase of.toll shall be so authorized unless
notice of intention to apply for such increase shall have been pub-
lished in each of the newspapers published in such county, once in
each week for six successive weeks next before the annual election
of supervisors in such county; and any alteration in rates of toll
authorized by any board of supervisors may be changed or modified
by any subsequent board, on their own motion, by a like vote of

two-thirds of all the mien bees elected to such board; but nothing
herein contained shall affect or abridge the powers of any city.

® ® # * * ® *

§ 78. Further powers.—The board may make such other

local and private laws and regulations concerning highways, alleys,
280 Misou.Langous Aors.

 

The Transportation Corporations Law.

bridges and ferries within the county, and the assessment and appor-
tionment of highway labor or taxes therefor, not inconsistent with
law, as it may deem necessary and proper, when the purposes of
such laws and regulations cannot be accomplished under the fore-
going provisions, or the general laws of the state.

Transporration oF Derr, Woopcock, Grouse anD Crrtain Fisa

Reévuxations.
The Game Law, L. 1892, ch. 488.
* * * * * * *% *

§ 46. Transportation.—Deer or venison killed in this State
shall not be transported to any point within or without the State
from or through any of the counties thereof or possessed for that
purpose, except as follows: One carcass or a part thereof may be
transported from the county where killed when accompanied by
the owner. No individual shall transport or accompany more than
two deer in any one year under the above provision. The posses-
sion of deer or venison by a common carrier or by any person in its
employ then actually engaged in the business of such common ear-
rier, unaccompanied by the owner, shall constitute a violation of
this section by such common carrier. This section does not apply
to the head and feet or skin of deer severed from the body. Who-
ever shall violate or attempt to violate the provisions of this section
shall be deemed guilty of misdemeanor, and in addition thereto shall
be liable to a penalty of one hundred dollars for each wild deer or
part thereof, had in possession in violation of this section.

(Thus amended by L.'1895, ch. 974.)

§ 76. Woodcock, quail and grouse, when not to be transported.—
Woodcock, ruffed grouse, commonly knowh as partridge, or any member
of the grouse family, or quail shall not be transported from any one
point to another point within or without the state from or through any
of the counties thereof, or possessed for that purpose, nor from a less
distance than twenty-five miles from the state line outside of this state
to be transported into this state in the open season for transportation,
except that such birds may be transported from the county where killed
or through any of the counties of this state from one point to another
point when accompanied by ‘he actual owner thereof. ‘Provided, how-
ever, that no person, association or comp:ny shall transport or accom-
pany more than thirty-six of wood:ovk or thirty-six grouse under the
above provisions in any calendar yeer, nor more than twelve of either
kind at any one time. Poss_ssion of the birds named by any person
or by a common carrier or by any pcrson in its employ then actually
Amendment of 1907.

(Insert facing page 280, White on Corporations, 6th edition.)

Laws of 1907, chapter 666, amends the Forest, Fish and Game Law, -
section 8, to read as follows:

* § 8. Transportation.— Deer vor venison killed in this state shall not be
transported from or through any county, or possessed for that purpose, except
as follows: One carcass or a part thereof may be transported from the
county where killed when accompanied by the owner. No person shall trans-
port or accompany more than two deer in any year under this section.
Deer or venison killed in this state shall not be accepted by a common
earrier for transportation from November fourth to September fifteenth.
both inclusive, but if possession is obtained for transportation after Sep-
tember fifteenth and before midnight of November third, it may when accom-
panied by the owner lawfully remain in the possession of such common
carrier the additional time necessary to deliver the same to its destination.
Possession of deer or venison by a common carrier, or by any person in its
employ while engaged in the business of such common carrier, unaccompanied
by the owner shall constitute a violation of this section by such common
carrier. This section does not apply to the head, feet or skin of deer if
tarried separately.
6
Misceitaneous Acts. 281

 

The Transportation Corporations Law.

‘engaged in the business of such common carrier, corporation or company
unaccompanied by the actual owner thereof, shall constitute a violation
«of this section by such person, common - carrier, corporation, association
or company. And while such birds are being transported, no common
carrier or person in the employ of a common catrier transporting such
birds shall be the owners thereof. Whoever shall violate or attempt to
violate the provisions of this section shall be deemed guilty of misde-
ameanor, and in addition thereto shall be liable to a penalty of twenty-five
‘dollars for each and every bird caught, killed, trapped, snared, or pos-
‘sessed, transported or had in possession for transportation contrary to
‘the provisions of this section.

(Thus amended by L. 1895, ch. 974; L. 1899, ch. 536.)

$109. Certain fish not to be transported.— Trout of any kind, salmon

‘trout or land locked salmon, caught in any ‘of the inland waters of this
state, shall not be transported to any point within or without the state
from or through any of the counties théreof, or possessed for that purpose,
except when accompanied by the actual owner, and such owner shall not -
accompany, carry or transport at any time more than twelve pounds of
brook, brown, and rainbow trout. Possession thereof by any: person,
‘common carrier, or by any person in its employ then actually engaged in
‘the business of such common carrier, unaccompanied by the actual owner,
shall constitute a-violation of this section by such person or common
carrier. Whoever shall violate or attempt to violate the provisions of
this section shall be deemed guilty ‘of a misdemeanor and in addition
thereto shall be liable to a penalty of sixty dollars for each violation
thereof.

(Thus amended by L. 1895, ch. 974; L. 1899, ch. 325.)

>. Tyaeuor Tax Law Provisions Arrectine Common Carnriers.
L. 1896, ch. 112, as amended by L. 1897, ch. 312.

§ 11. Excise taxes upon the business of trafficking in
liquors; enumeration.—Excise taxes upon the business of

trafficking in liquors shall be of six grades, and assessed as follows:
* * * ' % * * * *

Subdivision 4. Upon the business of trafficking in liquors upon
‘any car, steamboat or vessel within this state, to be drunk on such
ear or on any car connected therewith, or on such steamboat or
vessel, or upon any boat or barge-attached thereto, or connected:
therewith, there is assessed an excise tax, to be paid by every cor-
poration, association, copartnership or person engaged in such
traffic, and for each car, steamboat or vessel, boat or barge, upon
-which such traffic is carried on, the sum of two hundred dollars.

The foregoing, subd. 4, section 11 of the. Liquor Tax Law, supersedes
L. 1892, ch. 401, § 30 (now repealed), relative to licenses to common
carriers.

-§ 23. Persons who shall not traffic in liquors, and per-

gons to whom a liquor tax certificate shall not be granted.
* * * * * *&
282 MisceLtutangous Acts.

 

The Transportation Corporations Law, § 41.

 

4. No corporation or association incorporated or organized under the laws of
another state or country; provided, however, that if such corporation or
association be acting‘as a common carrier or be operating dining, buffet, parlor
or sleeping cars in this state, it may be gramceé a iiquor tax certificate under
subdivision four of section eleven of this act.

(Thus amended by L. 1900, ch. 80.)

§ 41. Employment of persons addicted to intoxication by common.
carriers.—Any person or officer of an association or corporation engaged in
the business of conveying passengers or property for hire, who shall employ in
the conduct of such business, as an engineer, fireman, conductor, switch-tender,
train dispatcher, telegrapher, commander, pilot, mate, fireman or in other like
capacity, so that by his neglect of duty the safety and security of life, person or
property so conveyed might be imperiled, any person who habitually indulges
in the intemperate use of liquors, after notice that such person has been intoxi-
cated, while in the active service of such person, association or corporation,
shall be guilty of a misdemeanor.

The foregoing, section 41 of the Liquor Tax Law, supersedes %. 1892, ch. 401
§ 39 (now repealed).

An Act to afford the same facilities to passengers for the transportation of
bicycles by steamboats as is afforded by railroads.

Laws of 1903, ch. 121; became a law April 3, 1903, to take effect immediately.

Section 1. It is hereby made the duty of the owners or lessees of any steam-
boaf, or line of steamboats, except ferry boats navigating the Hudson river, or
any other waters within the jurisdiction of this state, to receive and transport
the bicycle of any passenger as ordinary baggage. A check, of convenient.
size and form, plainly stamped with numbers, and furnished with a convenient
strap, shall be affixed to such bicycle when so taken for transportation for a
passenger by the agent or employe of such owners or lessees and a duplicate
thereof given to the passenger or person delivering the same to him. Such
bicycle shall be transported as baggage and subject to the same liabilities, and
no such passenger shall be required to crate, cover or otherwise protect any such
bicycle. Such bicycle shall be delivered without unnecessary delay, to the
passenger, or any person acting in his behalf, at' the place to which it was to
be transported, or at a regular intermediate stopping place, upon notice to
such agent or employe of such owners or lessees, in whose charge such bicycle:
shall have been given by such passenger, of not less than ten minutes, upon
presentation of such duplicate check to such agent or employe of such owners.
or lessees. :

§ 2. The object and intent of this act being to compel the owners or lessees
of any steamboat, or line of steamboats, navigating the waters of this state to-
furnish, without further charges other than the customary fare generally paid
such owners or lessees as compensation for transporting any passenger and his
ordinary baggage, the same facilities to passengers going by boat, to or from
any point or points in this state, as is afforded those who go by railroad.

3. Any person or persons, partnership or corporation violating the pro-
visions of this act shall be guilty of a misdemeanor, and upon conviction
thereof, shall be punished by a fine of not less than two hundred and fifty
dollars, or by imprisonment in a county jail for a period of not less than thirty
days, or by both such fine and imprisonment. :
THE RAILROAD LAW.

Laws or 1890, Cuaprer 565, as AMENDED.

Bemve “ Aw Act in Rezation to Rairroaps, ConstituTine

‘
Cuarter Tuirry-nine of THE GeneraL Laws,” as AMENDED
ro THE CoMMENCEMENT oF THE Lra@IsLaTIvE Session or 190%.

Tue Ratrroap Law.
ARTICLE 1. ORGANIZATION; GENERAL POWERS; LOCATION (§§ 1-23).
2. CONSTRUCTION; OPERATION; MANAGEMENT (§§ 30-69).
3. CONSOLIDATION; LEASE; SALE; REORGANIZATION (§§ 70-84). “
4. STREET SURFACE RAILROADS (8§ 90-110).
5, OTHER RAILROADS IN CITIES AND COUNTIES (§§ 120-142).
6. BoaARD OF RAILROAD COMMISSIONERS (§§ 150-172).

ARTICLE I.

Organization ; GeneraL Powers; Location.

SECTION 1. Short title.
"2, Incorporation.
3. Supplemental certificate.
4. Additional powers conferred:
1. Entry upon lands for purpose of survey.
2. Acquisition of real property.
. 8, Construction of road. :
4, Intersection of streams, highways, plank-roads,
turnpikes and canals, ;
5. Intersection of other railroads.
6. Buildings and stations.
%. Transportation of persons and property.
8. Time and manner of transportation.
9. Purchase of lands and stock in other States,
5. When corporate powers to cease.
6. Location of route.
%. Acquisition of title to real property.
8. Railroads through public lands.
9. Railroads through Indian lands.
10. Railroads through Chautauqua assembly grounds.
11. Intersection of highways, additional lands for.
12, Intersection of other railroads.
13, Change of route, grade or terminus.
284 Snort Tirtz; [xcorporation.

 

The Railroad Law, §§ 1, 2.

 

Section 14. Construction of part of line in another State.

15. Two roads having the same location.

16. Tunnel railroads.

.17. Railroads in foreign countries.

18. Additional corporate powers of such road.

19. Location of principal office of such road.

20. Individual, joint-stock association, or other corporation may
lay down and maintain railroad tracks in certain cases.

21. When an electric light and power corporation may become
a railroad corpors tion.

21. Certain* railroads nced operate in summer only; rate of fare.

22. Substituted lines In cases of eminent domain,

23. Unauthorized debts and overissue of bonds.

SECTION 1. Short title— This chapter shall be known as the railroad
daw.

§ 2. Incorporation.— Fifteen or more persons may become a corpora-
tion, for the purpose (1) of building, maintaining and operating a rail-
Toad, or (2) of maintaining and operating a railroad already built, not
owned by a railroad corporation, or for both purposes, or (3)f of build-
ing, maintaining and operating a railroad for use by way of extension or
branch or cut-off of any railroad then existing, or for shortening or ~
straightening or improving the line or grade of such railroad or of any
part thereof, by executing, acknowledging and filing a certificate, in
which shall be stated:

1. The name of the corporation.

2 The number of years it is to continue. 5

3. The kind of road to be built or operated, :

4, Its length and termini.

5. The name of each county in which any part of it is to be located.

6. The amount of capital stock, which shall not be less than ten thou-
sand dollars for every mile of road built, or proposed to be built, except
& narrow-gauge road, when it shall not be less than three thousand
dollars for every such mile,

7% The number of shares into which the capital stock is to be divided.

8 If the capital stock is to consist of common and preferred stock,
the amount of each class and the rights and privileges of the latter
aver the former.

9. The names and post-office addresses of the directors of the corpo-
ration, not less than nine, who shall manage its affairs for the first year.

10. The place where its principal office is to be located.

11. If a street surface railroad, the names and description of the
streets, avenues and highways in which the road is to be constructed.

*There are two sections numbered 21 in this law, the Legislature having
apparently overlooked the first section bearing that number when the second
one was added to the law in 1892.

{Clause numbered 3 in the introductory paragraph is new matter, added by
L, 1905, ch. 727. ,
INCORPORATION. __ 285.

 

The Railroad Law, § 2. ‘

 

12. If it is to be a railway corporation, specified in article five
of this chapter, the statements required by that article to be inserted.
in the certificate of incorporation.

18. The name and post-office address of each subscriber to the:
certificate and the number of shares of stock he agrees to take.

Such certificate shall have indorsed thereon, or annexed thereto,.
to be taken as a part thereof, an affidavit of at least three of such.
directors, that at least ten per cent of the minimum amount of capi-
tal stock authorized by law has been subscribed thereto, and paid
in good faith and in cash to the directors named in the certificate,
and that it is intended in good faith to build, maintain and operate
the road mentioned therein. In case of a railway corporation speci-
fied in article five of this chapter, the affidavit of the directors.
shall show that the full amount of such capital stock has been in
good faith subscribed, and there shall be annexed to the certificate
of incorporation and as a part thereof the certificate of the railroad
commissioners showing the organization of the corporation for the
purposes mentioned in the certificate.

The filing of every certificate, where the amount of stock.

required by this section has not been in good faith subscribed and
paid in cash, shall be void.
(Thus amended by Is 1892, ch. 676; L. 1905, ch. 727.)

For forms of certificates of incorporation, see post, forms Nos. 96 and 97.

A corporation formed under this law cannot exercise the powers con-
ferred by law upon such corporations nor begin the construction of its
road until the requisites of section 59 of this law have been complied with.

INcorPoraToRS.—Prior to the enactment of the revision (L. 1890, ch.
565), twenty-five was the minimum number of persons for the formation.
of a steam railroad corporation (L. 1850, ch. 140, now repealed), and
thirteen for a street surface railroad (L. 1884, ch. 252, now repealed).
The present statute fixes the minimum number of persons for the forma-
tion of any kind of railroad corporation uniformly at fifteen. All the
incorporators must be persons of full age, of whom at least two-thirds.
must be citizens of the United States, and at least one of them must be
a resident of the State of New York. (General Corporation Law, sec. 4.)
Only natural persons can become incorporators. Corporations, co-part-
nerships, and persons acting in a representative capacity, are, therefore,
excluded from acting as incorporators. (Id.) In the matter of N. Y., L.
& W. R. R. Co., 99 N. Y., 12, a-case arising under the General Railroad
Act of 1850, ch. 140, now repealed, it was held that the signing of articles.
of association by duly authorized agents of the incorporators is sufficient;.
and, also, in Ogdensburg, Rome, etc., R. R. Co. v. Frost, 21 Barb., 541,
under the same act, that the subscription to incorporation papers by a
partner in a partnership name, if authorized, was a compliance with
said act of 1850, but the rule laid down in these two cases can no longer be:
 

286 IncorPoRATION.

 

The Railroad Law, § 2.

 

followed in view of the repeal of said act of 1850 and the enactment of |
the new provisions above referred to, which require a certificate of incor-
poration to be executed by natural persons. (General Corporation Law,
sec. 4.) However, after the formation of the corporation, other corpora-
tions, as well as persons acting in a representative capacity, may become
stockholders. (Stock Corporation Law, secs. 40 and 54.)

CoRPORATE NaME.— The name of the corporation must neither be the
same nor similar to that of any other domestic corporation. (General
Corporation Law, sec. 6.) At any time after incorporation the corporate
title may be changed by proper proceedings. (See secs. 2410-17 of the
Code of Civil Procedure.) *

DvuratTion.— The term of existence must be definitely stated in the cer-
tificate, but no maximum period, within which such term shall be limited,
seems to be fixed by statute. Prior to the expiration of the period of
existence so fixed, it may be extended. (General Corporation Law, sec.
32.) The corporation ceases to exist, however, if the construction of its
road shall not be commenced within five, and finished within ten, years
from the time of filing its certificate of incorporation. (See sec. 5 of this
law.) Street surface railroads. (§§ 93, 99.) .

DESCRIPTION oF Roap.—The kind of road to be built or operated
must be set forth as either a street surface railroad operated by horse
power, cable or electricity; or a steam railroad of standard gauge; or a
steam railway in the streets, avenues and public places of the city of

or county of , for the transportation of passengers,
mails or freight, pursuant to article V of the Railroad Law; or, a steam
railroad of the gauge of feet and inches; or, as the

case may be.

LENGTH, AND TERMINI.— A statement in the certificate of a steam rail-
road as to the termini, and that the length was about 300 miles was held
sufficient. (In re N. Y., L. & W. R. R. Co., 35 Hun, 220; affd. 99 N. Y.,
12.) An approximate estimate, in good faith, of the length of the pro-
posed road, without an actual survey and location, satisfies the statute.
(Buf. & Pitts. R. R. Co., v. Hatch, 20 N. Y., 157.) In an action upon the
subscription of an incorporator, it is no defense that the certificate failed
to state definitely the termini, or the counties through which the road
passed, after it has been in operation and recognized by the Legislature.
(Cayuga L. R. R. Co. v. Kyle, 64 N. Y., 185.) When a particular location
has been adhered to for some years the corporation is concluded by its
acts. (Bklyn. Cent. R. R. v. Bklyn. City R. R. Co., 32 Barb, 358; see,
also H. & D. Canal Co. v. N. Y. & E. R. R. Co., 9 Paige, 323.)

CapiTaL Stock.— There is no limitation as to the amount of capital
stock, except that it shall not be less than $10,000 for every mile of a
standard gauge railroad, and not less than $3,000 for each mile of a nar-
row gauge road. The corporation may have preferred and common stock,
and different classes of preferred stock, if the certificate of incorporation
so provides, or it may so classify its stock after organization by the
unanimous consent of the stockholders. (Stock Corporation Law, see.
47.) If so classified, the amount of each class and the rights and
privileges of the preferred over the common must be stated. (Railroad
INCORPORATION. 287

 

“The Railroad Law, § 2.

 

.Law, sec 2, subd. 8.) The amount of capital stock may be increased or

reduced. (Stock Corporation Law, secs. 44-46.)

SHARES OF Srock.— The amount of capital stock stated in the certifi-
ate of incorporation may be divided into such number of shares as the
‘incorporators may elect. The par value of the shares may be changed
after organization, if deemed desirable, without changing the amount of
capital stock. (Stock Corporation Law, sec. 56.)

Drrectors.— The board of directors of a railroad corporation must con-
sist of at least nine persons. The names and post-office addresses of
the directors who shall manage its affairs for the first year are to be
tated in the certificate of incorporation. (Railroad Law, sec. 2, subd. 9.)
‘The street and number should be given, if in a city. At least one of the
directors must be a resident of the State of New York. (General Corpo-
ration Law, sec. 29.) Directors must be stockholders, unless otherwise
provided. (Stock Corporation Law, sec. 20.) The number of directors
may be increased or reduced. (Stock Corporation Law, sec. 21.) No
maximum number is fixed by the act, but in reducing the number of
‘directors, the minimum is nine. (See subd. 9 of this law.)

PrRIncIPAL Orrice.— The name of the city, village or town, and of the
county, in which the principal office of the corporation is to be located,
must be stated in the certificate. The location of the principal office.
named in the certificate of incorporation may be changed by proceedings
-under the Stock Corporation Law, sec. 59.

DESCRIPTION OF RouTE.— It should be noted that in case of the incor-
voration of a street surface railroad company, the names and description
of the streets, avenues and highways in which the road is to be con-
structed, must be set forth in the certificate. :

SuBscRIBERS.— The post-office addresses of the subscribers to the cer-
tificate of incorporation, includirg the street and number if in a city,
must be given, and a statement of the number of shares of stock each
agrees to take. The aggregate of such subscriptions must at least equal
$1,000 for every mile of road to be built, except in case of a narrow gauge
road, and at least $1,000 for every mile of road to be built must be paid
in good faith and in cash to the directors named in the certificate.

AFFIDAVIT.— The affidavit to be attached to the certificate is required
‘to be sworn to by three directors, and care should be taken that the
three persons who make such aflidavit are named in the certificate of
incorporation as directors.

ADDITIONAL PoweErs.— If desired, the certificate of incorporation may
provide for cumulative voting at elections of directors. (General Corpora.
tion Law, sec. 20.) The corporation may reserve the right to acquire,
hold and dispose of the stocks and bonds of any other corporation.
Stock Corporation Law, sec. 40.)

LIABILITY OF STOCKHOLDERS.— The liability of stockholders of corpora-
‘tions formed under this law is regulated by the Stock Corporation Law,
wsections 54, 55.

Street surface railroads are included in all the provisions of article
one of the Railroad Law, except those from which they are expressly
288 Incoxporation.

 

The Railroad Law, § 2:

 

excluded. (Buffalo, Bellevue & Lancaster R. R. Co. v. N. Y., L. BE. & We
R. R. Co., 72 Hun, 583.)

A failure on the part of the persons who seek to become a railroad
corporation to pay in in cash to the directors named in the certificate
of incorporation at least ten per cent of the minimum amount of the capital.
stock, as required by subdivision 18 of section 2 of the Railroad Law, ren-
ders the filing of the certificate void, irrespective of whether the failure was.
the result of inadvertence or otherwise, and the mere fact that a check
had been drawn by the company, payable to the order of three of its.
directors, in the amount required by the statute, is immaterial and is.
without force where it appears that such check had not been indorsed
by the payees, that no money had been paid thereon, and that it was
in the possession of the president of the company. (Matter of Kings,
Queens & Suffolk R. R. Co., 6 App. Div., 241.)

Where an alleged railroad corporation has failed to make the required
statutory payment of ten per cent it has no existence whatever, and is-
in no sense a de facto corporation. (Matter of Kings, Queens & Suffolk
R. R. Co., 6 App. Div., 241.) In such case the filing of the certificate of
incorporation is absolutely void, the statute being self-executing; there-
fore it is not necessary that the people, through the attorney-general,
should bring an action to dissolve the alleged corporation in order that
this defect may be taken advantage of. (Id.)

Corporations may be formed under this act for carrying freight or
passengers by horse power in the streets of cities in this State, except
New York city. :(In re Washn. St. A. & P. R. R. Co. v. S. B. & N.Y.
R. R. Co., 115 N. Y., 442.)

The act of 1850, chapter 140, did not authorize an elevated railroad in

‘the streets of a city. (People’s Rapid Transit Co. v. Dash, 125, N. Y.,
93; Schaper v. Bklyn. & L. I. C. Ry. Co., 124 N. Y¥., 630.) i

A signature to an incomplete paper, with no delegation of authority to.
supply the omission, will not bind the signer. (D. & C. R. R. Co. v.
Mabbett, 58 N. Y., 397.) :

When the incorporation papers filed consist of separate instruments,
exact counterparts of each other, and each signed by different incorpora-
tors, they are to be regarded as one instrument. (Lake Ontario A. & N.
Y. R. R. Co. v. Mason, 16 N. Y., 451; Sodus Bay & Corning R. R. Co. v.
Hamlin, 24 Hun, 390.)

The corporation is not formed until all statutory requirements have
been complied with, and the incorporation papers filed. (Burt, Receiver,
ete., v. Farrar, 24 Barb., 518.)

Filing of the certificate of incorporation is necessary in order to bind a
subscriber. (Erie & N. Y. City R. R. Co. v. Owen, 82 Barb., 616.)

Irregularities in organization may be cured by special legislation recog-
nizing existence of the corporation. (Black River & Utica R. R. Co. v.
Barnard, 31 Barb., 258.) But informalities may now be corrected by
filing an amended certificate. (General Corporation Law, sec. 7.)

It is not necessary that the required percentage be paid on each sub-
scription. Cash payments amounting in the aggregate to ten per cent,.
comply with the statute. (Lake Ontario, A. & N. Y..R. R. Co. v. Mason,
vA

SuPPLEMENTAL CERTIFICATE. 289

 

The Railroad Law, § 3.

 

16 N. Y., 451; Beattys v. Town of Solon, 64 Hun, 120; 0., R. & C. R. R. Co.
v. Frost, 21 Barb., 542.)

Payment by a duly certified check is a payment in cash. (Matter of Staten
I. R. T. R. R. Co. v. Starin, 37 Hun, 422; 38 Hun, 381; aff’d 101 N. Y., 636.)

An unauthorized agreement made by a person soliciting stock subscriptions,
that the cash payment need not be made, is void and does not affect the valid-
ity of the incorporation. (Beattys v. Town of Solon, 6 Hun, 120.)

A check for the required cash payment given, on an assurance not authorized

. by the directors, that it need not be paid, is a valid payment and may be en-

forced after incorporation. (Syracuse, P. & O. R. R. Co. v. Gere, 4 Hun, 392.)

The mere filing of the certificate does not create a corporation de jure. Per-
uae of the conditions precedent is necessary. (Farnham v. Benedict, 107
N. Y., 159.) :

A street railway company formed under this law may condemn private prop-
erty for the purpose of its organization. (In re Roch. El. Ry. Co., 123 N. Y.,
351.)

This law does not repeal any Jaw prohibiting street railroads upon particular
streets. (Harlem B. M. & F. R. R. Co. v. Southern B. R. R. Co., 41 Hun, 553.
See, also, 43 St. Rep., 611; 17 N. Y. Supp., 828; 128 N. Y., 93; 58 Hun, 479.)

The fact that a railroad company has shortened its line and reduced its capi-
tal stock will not release a subscriber to stock from payment of his subscrip-
tion. (T. & R. R. R. Co. v. Kerr, 17 Barb., 581.)

§ 3. Supplemental certificate*.— If the names and places of residence of
the directors of the corporation have been omitted from the certificate, when
executed and acknowledged, and thereafter the requisite number of directors
has been chosen at a meeting of the subscribers to the certificate, a supple-
mental certificate, containing their names and places of residence, may be ‘filed

 

*A separate act has been passed, relative to amended affidavits, entitled
“An act in relation to filing amended affidavits to certificates of incorporation
of railroad companies,” the text of which is as follows, to wit:

‘Section 1. Where it does not appear by the affidavit endorsed on or annexed.
to any certificate of incorporation, or articles of association of any railroad
company, filed-under the laws of this state, that the amount of capital stock
required by the provisions of said laws to be paid in good faith and in cash to
the directors named in such certificate has been so paid, or where the affidavit
required by law is omitted and where such payment has been made to the
directors named in said certificate or articles, or any of them, for the use of the
company prior to the passage of this act, an affidavit of at least three of the
directors named in said certificate, stating that at least the amount of capital
stock of such corporation required by the law in force at the time of filing said
certificate or articles to be subscribed thereto, has been heretofore subscribed
for in good faith and that the amount required by the law in force at the
time of filing said certificate to bé paid on subscriptions in good faith and in
cash to the directors named in the certificate of incorporation has been paid
heretofore in cash and in good faith to the directors named in said articles of
association, or any of them, for the use of said corporation and that it is
intended in good faith to build, construct, maintain and operate the road
mentioned in said certificate ‘may be filed in the office of the secretary of
state, which affidavit shall be annexed ‘to said certificate of incorporation and

‘upon such filing said certificate, or articles shall for all purposes have the same

force and effect as if an affidavit in all respects regular and in conformity with
law had been annexed to said certificate or articles when said certificate was
filed and as if a subscription and payment in all respects sufficient and in
conformity with law had been made to the directors named in the articles of
association or certificate, prior to the original filing of sad articles or certifi-
cate, and said certificate of incorporation and the original filing thereof shall
be and be deemed valid from the time of such original filing and such corpora-
tion shall be and be deemed a valid corporation from said time of original filing
and shall now and hereafter have all the rights, privileges, powers and fran-

19
290 Grant or ApprtionaL Powers.

 

The Railroad Law, § 4.

 

with such certificate with the same force and effect as if the names and places
of residence of the directors had been originally inserted therein.

For form of supplemental certificate, see post, form No. 98.

§ 4, Additional powers conferred.— Subject to the limitations and require-
‘ments of this chapter, every railroad corporation, in addition to the powers
given by the general and stock corporation laws, shall have power:

1, Entry upon lands for purpose of survey.—To cause the necessary
examination and survey for its proposed railroad to be made for the selection
of the most advantageous route; and for such purpose, by its officers, agents
or servants, to enter upon any lands or waters subject to liability to the owner
for all damages done. ‘

See section 59 of this law.

The foregoing provision is constitutional. (Polly v. Saratoga & Washington
R. R. Co., 9 Barb., 449; Bloodgood v. M. & H. R. R. Co., 18 Wend., 16.)

2. Acquisition of real property.— To take and hold such voluntary grants
of real estate and other property as shall be made to it to aid in the construc-
tion, maintenance and accommodation of its railroad; and to acquire, by con-
demnation such real estate and property as may be necessary for such
construction, maintenance and accommodation in the manner provided by law,
but the real property acquired by condemnation shall be held and used only
for the purposes of the corporation during the continuance of the corporate
existence. 3 ! ‘

(Thus amended by L. 1892, ch. 676.)

For provisions as to acquisition of property by condemnation, see the Con-
demnation Law, post. e

A railroad company cannot exercise the power of eminent domain for the
purpose of constructing an additional main line a half mile distant from its
existing line. (Erie R. R. Co. v. Steward, 61 App. Div., 480.)

A foreign railroad corporation, lawfully operating its road in this State,
may acquire by condemnation additional real estate, when needed for the
aaa of its road. (N. Y., N. H. & Hartford R. R. Co. v. Welsh, 143 N. Y.,
4ll.

Where an abutting owner, on a street on which a railroad is operated,
releases all the easements appurtenant to premises taken for use of such road,
and releases it from all causes of action because of such operation, and con-
sents to perpetual maintenance of the railroad in front of such premises, the

 

chises to which if a valid corporation it would have been entitled by law at the
time of such original filing together with such other rights, privileges, powers
and franchises as have been since or may hereafter be granted by law to such
valid corporations, provided that nothing herein contained shall affect or im-
pair any vested right; and provided that the word “ heretofore ” and the werds
“prior to the passage of this act ” shall be taken to refer to the time of pas-
sage of the amendatory act under which this section as herein framed is
enacted. A copy of said certificate or articles of association with a copy
of said affidavit hereinabove authorized, certified to be a copy by the secretary
of state or his deputy shall in all courts and places and for all purposes be
presumptive evidence of the incorporation of such corporation and of the facts
stated in said certificate and affidavit. This act as here amended shall not
apply to nor affect any street surface railroad company the route of which in
whole or in part lies within any city of the first or second class in this state,
and shall not apply to nor affect any railroad corporation incorporated under
ore or local bill or act. (L. 1893, ch. 238, as amended by L. 1903,
ch. 5 :

é
Grant or ADDITIONAL PowERs. 291

 

The Railroad Law, § 4.

railroad acquires thereby title to nhe easements. (Ward v. Met. El. Ry. Co..
“82 Hun, 545.)

A conveyance absolute in form, first granting all the estate therein
described, together with the appurtenances, and then containing a reser-
vation to the grantor of the easements taken by reason of the operation
and maintenace of an elevated railroad, does not reserve to the grantor
vany right of action, nor can he enforce an action as to future damages
against such railroad. (Shepard v. Met. El. Ry. Co., 82 Hun, 527.)

The interest acquired by a railroad corporation in land by condemna-
‘tion proceedings is a permanent easement. (Roby v. N. Y. C. & H. R. R.
R. Co., 142 N. Y., 176.)

Real property once acquired by condemnation cannot be appropriated
for another public use without special authority. (In re B’d of Street
Opening v. St. John Cem. Assn., 133 N. Y., 329; see, also, In re Mayor,
ete., of N. Y., v. N. Y. C. & H. R. R. R. Co., 135 N. Y., 253, and matter
-of B. & A. R. R. Co., 53 N. Y., 574.)

Lands under waters of a navigable river, though owned by private
individuals, may be condemned. (Kerr v. W. 8S. R. R. Co., 127 N. Y., 269.)

Leasing of a railroad pending condemnation proceedings will not
-affect such proceedings. (Kip v. N. Y¥. & H. R. R. Co., 67 N. Y., 227.)
The proceedings are not affected even when the company has leased its
road for the entire term of its existence to a foreign corporation. (In
re N. Y., L. & W. Ry. Co., 99 N. ¥., 12.)

To exercise the right of eminent domain it must be a corporation de
jure. (N. Y. Cable Co. v. Mayor, etc., 104 N. Y., 143.) ¢

Land may be acquired for prospective use if the necessity for such use
-in the immediate future be properly established. (In re Staten Isl. R. T.

Co., 108 N. ¥., 251.) The fact that the land to be taken will largely
‘benefit a foreign corporation makes no difference. (Id.)

The corporation cannot be divested of the right to appropriate land
except by some unequivocal expression of legislative intent. (Suburban
Rapid Transit Co. v. Mayor, etc., of N. ¥., 128 N. Y., 510.)

Lands may not be condemned for a place to store boats of passengers
visiting a pleasure resort on the line of the railroad, nor for more con-
-yenient drainage of lands, or for opening a highway from the railroad
‘10 a neighboring, hotel. (In re Roch. & G. H. R. R. Co., 12 N. Y. Supp.,
666 ; appeal dismissed 128 N. Y., 611.)

Lands of private corporations may be acquired. (In re N. Y¥. C. & H.
R. R. R. Co. v. Met. Gas Lt. Co., 63 N. Y., 326.)

A railroad corporation cannot condemn lands in New York city for
an elevated structure passing through blocks of buildings upon which
_passenger trains may be run at high speed. (In re Peo. Rap. Tr. Co. v.
Dash, 125 N. Y., 98; see, also, Schaper v. B. & L. I. C. Ry. Co., 124
'N. Y., 630.)

Lands necessary to restore a street or highway may be taken. (Peo.
ex rel. Green .v. Dutchess & Col. R. R. Co., 58 N. Y., 152; Post v. W. 8S. R.
_R. Co., 123 N. Y., 580.)

It is not what the corporation does or may choose to do, but what,
‘ander the law, it must do, that constitutes the test whether a public
«trust is impressed upon it. (In re N. Y., L. & W. Ry. Co., 99 N. Y., 12.)

 
292 Grant or ApprtionaL Powers.
The Railroad Law, § 4.

Lands may be condemned ‘for the purpose of laying a branch track for
the benefit of a private individual. (In re Roch., Horn. & Lack. R. R.
Co. v. Babcock, 110 N. Y., 119.)

Title acquired in fee by deed may be conveyed. (Yates v. Van De

Bogert, 56 N. Y., 526; see, also, Kenney v. Wallace, 24 Hun, 478; Nicolt
v. N. ¥. & E.R. R. Co,, 12 N. Y., 121.)

3. Construction of road.—To lay out its road not exceed-
ing six rods in width, and to construct the same; and, for the pur-:
pose of cuttings and embankments, to ‘take such additional lands.
as may be necessary for the proper construction and security of the
road; and to cut down any standing trees that may be in danger
of falling on the road, upon making compensation therefor.

See section 59 of this law.

When a corporation excavating upon its land for lawful purposes is-
compelled to resort to blasting, the fact that the blasting caused injury
to a building on adjoining land does not render it liable, unless the cor-
poration failed to exercise due care. The degree of care must be com-
mensurate with the danger. (Booth v. Rome, W. & O. T. R. R. Go., 140:
N. Y., 267. revers’g 17 N. Y. Supp., 336; 44 St. Rep., 9.)

4, Intersection of streams, highways, plank-roads, turn-
pikes and canals.—To construct its road across, along or
upon any stream, water-course, highway,* plank-road, turnpike, or
across any of the canals} of the state, which the route of its road
shall intersect or touch.

 

*The Highway Law, L. 1890, ch. 568, provides as follows, to wit :

§ 15. ACTIONS FOR INJURIES TO HIGHWAYS.— The commissioners of high-
Ways may bring an action, in the name of the town, against any person
or corporation, to sustain the rights of the public in and to any highway
in the town, and to enforce the performance of any duty enjoined upon
any person or corporation in relation thereto, and to recover any damages.
sustained or suffered or expenses incurred by such town, in consequence
of any act or omission of any such person or corporation, in violation of
any law or contract in relation to such highway.

+The Canal Law, L. 1894, ch. 338, section 25, provides as follows,
to wit:

§ 25. POWERS WITH REFERENCE TO RAILROAD NEAR THE CANALS.— The
superintendent of public works shall have a general supervisory power
over so much of any railroad as passes over any canal or feeder belonging
to the state, or approaches within ten rods thereof, so far as may be
necessary to preserve the free and perfect use of such canals or feeders,
or for making any repairs, improvements or alterations thereupon. Xo
railroad corporation shall construct its railroad over or at any place
within ten rods of any canal or feeder belonging to the’state, unless it
submits to the superintendent of public works a map, plan and profile
Grant or AppiTronaL Powers. 293
a

 

The Railroad Law, § 4.

 

A street railroad company operating its cars over the canal by means
of a bridge owned by the State does not make such bridge an appliance
-of its own. (Birmingham y. R.‘C. & B. R. R. Co., 137 N. Y., 13.)

This provision removes the prohibition in the similar provision of the
-act of 1850, chapter 140, of the right to obstruct any, navigable stream or
lake, but does not divest a patentee of any rights previously acquired
from the State. (Rumsey et al. v. N. Y. & N. E. BR. R. Co., 130 N. Y., 88;
‘pee, algo, 133 N. Y., 79; 125 N. Y., 681; 114 N. Y., 423.)

Provisions in a city charter declaring it unlawful to grant the right to
‘construct a street railroad, except to the person who will agree to carry
passengers at the lowest rate of fare, were superseded by the foregoing
‘subdivision. (Adamson v. Nassau Electric R. R. Co., 89 Hun, 261.)

A railroad easement and franchise are not necessarily inconsistent with
the easement of a public highway. (Telford v. Coney Island & Brooklyn
R. R. Co., 6 App. Div., 204.)

Where a railroad company has constructed its road.so as to cut off the
owner’s access to.the navigable part of a river, he is entitled to recover
the diminished rental value of his land. (Rumsey v. N. Y¥. & N. E. R. R.
-Co., 186 N. Y., 543, dist’g 133 N. Y., 79, above.)

This statute does not attempt to grant any right to violate private prup-
erty without consent of the owner. (BH. 'Plank Rd. Co. v. Buf. & P. R.
R. Co., 20 Barb., 644; Williams v. N. Y. C. R. R. Co., 16 N. Y., 97.)

Construction of the words “upon and along” considered in Baxter v.
Spuyten Duyvil & P. M. R. R. Co., 61 Barb., 428; Osborne v. J. C. & Alb.
Ry. Co., 27 Hun, 589.)

The company must obtain an order of the Supreme Court before it may
-construct its road upon the surface of a highway. (Osborne v. J. C. &
Alb. Ry. Co., 27 Hun, 589; see, also, section 11, of this law.)

This subdivision does not mean that the highway should be rendered
useless. The duty of restoring carries with it the power so to do. (Peo.
ex rel. Green v. D. & C. R. R. Co., 58 N. Y¥., 152; Bell v. N. ¥. O. & H.
R. R. Co., 29 Hun, 560; Richardson v. N. Y. C. R. R. Co., 45 N. Y., 848.)

5. Intersection of other railroads.— To cross, intersect,
join, or unite its railroad with any other railroad before con-
structed, at any point on its route and upon the ground of such
-other railroad corporation, with the necessary turn-outs, sidings,

 

of such canal or feeder and of the route designated for its railroad, ex-
hibiting distinctly and accurately the relation of each to the other at au
the places within the limits of ten rods thereof, and obtain the written
permission of the superintendent of public works and of the canal board
for the construction of such railroad, with such conditions, directions and
instructions as in his judgment the free and perfect use of any such canal
or feeder may require. * Whenever any street railway shall cross over
any bridge spanning a canal, or canal feeder, the company owning, main-
‘taining and operating the same shall be deemed liable for and shall pay
all damages that may occur or arise, either to the state or fo individuals,
‘by reason of its laying and maintaining its tracks or rails over, upon
and across any such bridge, or by reason of the operation of its cars over
‘the same; and any such company shall upon demand of the superintend-
ent of. public works, make any repairs to such structure to insure the
continued safety thereof as shall have been rendered necessary by rea-
son of such use of said structure by said company. Any company so
maintaining or operating a street railroad over, upon and across any such
bridge shall indemnify the state against any and all loss, damages or
claims for damage, for injuries to person or property of passengers which
-shall be incurred by or made against such state by reason of the opera-
tion of such railway over any such bridge, and the superintendent of

 

By the amendment of 1902 the matter following the asterisk (*) was
cadded.
f

994 Grant or ApprrtionaL Powers.

 

The Railroad Law, § 4.

switches, and other conveniences in furtherance of the objects of
its connections.

(Thus amended by L. 1892, ch. 676:)

In connection with the foregoing provisions, see, also, section 12 of
this law. :
us connection between a street surface and an elevated railroad by an.
inclined plane is not a joining or union within this subdivision. (Bldert
v. L. L. Elec. ky. Co., 28 App. Div., 451.) : es

A mere taxpayer, who alleges neither fraud, collusion nor dishonesty,
cannot procure a temporary injunction to restrain railroads from connect-
ing tracks, and the commissioner of ‘highways in the city of New York
from permitting it to be done. (Gallagher v. Keating, 27 Misc., 131.)

The right provided for is an interest in Jands, and, therefore, can only
be granted by one corporauion to another by a written instrument. (P. J.,.
M. & N. Y.R. R. Co. v.N. Y¥., L. E. & W. R. R. Co., 132 N. ¥., 439.)

A proceeding by one railroad corporation to secure a crossing over the
track of another is a special proceeding (Code Civ. Pro., secs. 3333, 3334),
- and the costs are in the discretion of the court. (Matter of Cortland, ete.,
R. BR. Co., 98 N. Y., 336.) When no evidence is given upon the question
of damages, an allowance of a nominal sum may not, as matter of
law, be deemed inadequate. (Id. See, also, Matter of Lockport & Buffalo.
R. R. Oo., 77 N. Y., 557.) ;

Lands or buildings already appropriated for railroad uses, which in
their nature require an exclusive occupation, cannot be invaded. (In re-
B. H. T. & W. Ry. Co. v. T. & B. R. Uo., 79 N. ¥., 64.)

Railroads may acquire real estate to make the connection between
them. (In re Union El. R. R. Co., 113 N. Y., 275; In re B’klyn El. R. R..
Co., 32 St. Rep., 1065; aff'd, 125 N. Y., 434.)

6. Buildings and stations.— To erect and maintain all.
necessary and convenient buildings, stations, fixtures and ma-.
chinery for the accommodation and use of its passengers, freight.
and business.

(Thus amended by L. 1892, ch. 676.)

A statute authorizing the creation and operation of a railroad does not
authorize it to so maintain and operate a turntable situate upon its
premises as to make the same a nuisance. (Garvey v. Long Island R.
R. Co., 9 App. Div., 254.)

At common law a carrier of passengers and freight is not obliged to
provide warehouses for freight offered or depots for passengers awaiting
transportation. The Legislature has power, however, to impose such an
obligation. (People v. N. Y., L. E. & W. R. R. Co., 104 N Y., 58.)s

Specific performance of a. contract to provide a station at a particular
place considered in Conger v. N. Y., W. S. & B. R. R. Co., 120 N. "Y., 29,
aff’g 45 Hun, 296.

public works may, in his discretion, require any company so maintaining
or operating a street railway to furnish a bond, with sureties to be ap-
proved by him, to indemnify the state from all such loss, damage or’
claims. All such permits heretofore or hereafter granted shall be revo-
cable whenever the free and perfect use of any such canal or feeder may
so require, or if such railway company shall fail to make any such re-
pairs when required by the superintendent of public works and the rail-
road company using or occupying any bridge over the same shall, within
a reasonable time after the service upon it of written notice of such revo-
eation, or to make such repairs by the superintendent of public works,
remove at its own cost and expense its railroad from such bridge and
from the limits of ten rods of said canal or feeder.

‘(Thus amended by L. 1902, ch. 340.)
Grant or ADDITIONAL Powers. 295

The Railroad Law, § 4.

7. Transportation of persons and property. —To take
and convey persons and property on its railroad by the power or
force of steam or of animals, or by any mechanical power, except
where such power is specially prescribed in this chapter and to
receive compensation therefor.

As to motive power of street surface railroads, see section 100 of
this law. ;

8. Time and manner of transportation. — To regulate
the time and manner in which passengers and property shall be
transported, and the compensation to be paid therefor.

Relative to rate of fare for immigrants, see Penal Code, section 626,
subd. 1. ‘ -

A regulation that no person should enter a particular place unless he
had a ticket and his train was about to leave is reasonable; also one
that articles committed to the care of the company shall be checked is
reasonable. (Avery v. N. Y. C. & H. R. R. R. Co., 121 N. Y., 31.) As is
also a regulation’ requiring passengers to show their tickets when
requested and directing their ejection from the cars in case of refusal.
(Hibbard v. N. Y. & E. R. R. Co., 15 N. Y., 455; Vedder v. Fellows, 20
N. Y., 126.)

The courts have power to compel a railroad corporation to furnish rea-
sonable traveling facilities for residents of places along its route. (People
ex rel. Wheeler v. Long-Isl. R. R. Co., 31 Hun, 125; People v. N. Y. C. &
H. R. R. R. Co., 28 Hun, 543.)

When freight has been carried for several years at the schedule price,
without objection thereto, the shipper must be deemed to have assented
to the price as reasonable. (Killmer v. N. Y. C. & H. R. R. R. Co., 100
N. Y., 395.)

As to unjust discrimination in charges. (Root v.. L. I. R. R. Co., 114
‘N. Y., 300; Langdon v. N. Y., L. E. & W. R. R. Co., 58 Hun, 122.) Relief
by mandamus under the Inter-State Commerce Act considered. (U.S. v.
D. L. & W. R. R. Co., 40 Fed. Rep., 101.)

A railroad corporation has a dual relation; a public relation to the
people of the State, and a private one to its stockholders; its public
obligation to run its cars and carry passengers transcends its obligation
to its stockholders; it may not stop its cars for any length of time to
beat or coerce the price or conditions ,of labor down to those conditions
it offers. (In re Loader v. Brooklyn Heights R. R. Co., 14 Misc., 208.)~

9. Purchase of lands and stock in other states.— To
acquire and dispose of any real property in any other state through
which any part of its railroad is operated, and stock in any foreign
corporation owning lands in another state for the purpose of se-
296 Wuen Corporate Powers To CEASE.

 

The Railroad Law, § 5.

curing for such railroad corporation in this state a permanent supply
of fuel for its use, and stock of corporations in this state, formed for
the purpose of erecting union railway depots.

10. Power to borrow money, issue bonds and mortgage
property. — From time to time to borrow such sums of money as
may be necessary for completing and finishing or operating or im-
proving its railroad, or for any other of its lawful purposes and to issue
and dispose of its bonds for any amount so borrowed, and to mort-
gage its property and franchises to secure the payment of any debts
contracted by the company for the purposes aforesaid, notwithstand-
ing any limitation on such power contained in any general or special
law. But no mortgage, except purchase-money mortgages, shall be
issued by any railroad corporation under this or any other law without
the consent of the board of railroad commissioners, and the consent of
the stockholders owning at least. two-thirds of the stock of the corpo-
ration, which consent shall be in writing, and shall be given and cer-
tified and be filed and recorded in the office of the clerk or register
of the county where it has its principal place of business, as provided
in section two of the stock corporation law; or else the consent of the
board of railroad commissioners and. the consent by their votes of
stockholders owning at least two-thirds of the stock of the corpora-
tion which is represented and voted upon in person or by proxy at a
meeting called for that purpose upon a notice stating the time, place
and object of the meeting, served at least three weeks previously upon
each stockholder,personally, or mailed to him at his post-office address,
and also published at least once a week for three weeks successively in
some newspaper printed in the city, town or county where such cor-
poration has its principal office, and a certificate of the vote at such
meeting shall be signed and sworn to and shall be filed and recorded
as provided by section two of the stock corporation law. When au-
thorized by the stockholders consent to any bonds made or issued
tinder this section, the directors, under such regulations as they may
adopt, may confer on the holder of any such bonds the right to con-
vert the principal thereof, after two and not more than twelve years
from the date of the bond, into stock of the corporation at a price
fixed by the board of directors, which may be either par or a price
not less than the market value thereof at the date of such consent to
such bonds; and if the capital stock shall not be sufficient to meet
the conversion when made, the board of directors shall authorize an
increase of capital stock sufficient for that purpose.

(Added by L. 1890, ch. 676, and thus amended by L. 1897, ch. 377; L.
1899, ch. 583; L. 1900, ch. 482; L. 1902, ch. 504.)

Section 2 of the Stock Corporation Law regulated mortgages executed
by railroad corporations prior to the amendment of 1897, ch. 377.

For decisions applicable under the foregoing subdivision see the Stock
Corporation Law, section 2. . \

§ 5. When corporate powers to cease. —If any domestic
railroad corporation shall not, within five years after its certificate
of incorporation is filed, begin the construction of .its road and
*

Wuen Corporate Powers To Crass. 297

 

.

The Railroad Law, § 5.

 

expend thereon ten per centum of the amount of its capital, or shall
not finish its road and put it in operation in ten years from the time
of filing such certificate, its corporate existence and powers shall
cease. But if any such steam railroad corporation whose certificate
of incorporation was filed since the year eighteen hundred and eighty,
and whose road_as designated in such certificate is wholly within one
county and not more than ten miles in length, has acquired the
real property necessary for its road-bed by purchase, its corporate
existence and powers shall not be deemed to have ceased because of.
its failure to comply with the provisions of this article; and the time
for beginning the construction of its road and expending thereon ten
per centum of its capital, is'extended until thirteen years from the
‘date of the filing of such certificate and the time for finishing its road
and putting it in operation, is extended until eighteen years from the
‘date of such filing. This section shall not apply to any street surface
railroad company incorporated prior to July first, eighteen hundred
and ninety-five, which has obtained or become the owner of the con~
sents of the local authorities, of any city of the first or second class,
given under article four of the railroad law to the use of public
‘streets, avenues or highways for the construction and operation of
the railroad thereon.
(Thus amended by L. 1893, ch. 433; L. 1901, ch. 508.)

The State may, by subsequent legislation, waive forfeitures which other-
‘wise would have resulted from the failure of a railroad corporation to
‘complete its road within the time fixed by law. (Bohmer v. Haffen, 22
Misc., 565; Matter of N. Y. El. R. R. Co., 70 N. Y., 327.) ;

A preliminary injunction, sought by a railroad corporation to restrain
a similar. corporation from constructing roads in the same county, is
‘properly refused where it appears that the plaintiff has failed to expend
at least ten per cent. of its capital stock within five years after its incor-
‘poration and has not constructed its road and is. not ready to construct it.
(N. ¥. City & Westchester” Ry. Co. v. Portchester St. Ry. Co., 23 App.
Div., 407.) .

 

The time for the construction of certain railroads was extended by
chapter 700, Laws of 1895, entitled “An act to extend the time for the
commencement of construction or completion’ of railroads other than
street surface roads,” which reads as follows, to wit:

Section 1. The time or times prescribed for the commencement of the con-

‘struction or the completion of its railroads,* or any other portions thereof, by

any railroad company existing at the time herein mentioned, which has at
said time acquired at least one-third of its right of way or begun the construc-
tion of any portion of its railroads or. shall have heretofore obtained a cer-
tificate from the board of railroad commissioners that public convenience
required the construction of said railroads, is hereby extended three years from
the first day of January, nineteen hundred and four. (Thus amended by L.
1899, ch. 647; L. 1901, ch. 617; L. 1902, ch. 487; L. 1903, ch. 597.)

 

* So in the original.
298 Wuen Corporate Powrrs to CEASE.

 

The Railroad Law, § 6.

 

The fact that a railroad corporation removes its tracks from and
abandons for a certain period a part of its road does not determine or,
forfeit its franchise, so as to prevent it from relaying its tracks upon
that part of its road. (Trelford v. Coney Island & Brooklyn R. R. Co., 6
App. Div., 204.)

The cases, In re Brooklyn, Winfield & Newtown R. R. Co., 72 N. Y.,
245, and B’klyn Steam T. Co. v. Brooklyn, 78 N. Y., 524, respectively, were
discussed, but the principle established was not disturbed by the’ court.
in the Matter of New York & Long Island Bridge Co. v. Smith, 148 N. Y.,.
540. In the latter case it was held that the question as to whether a
forfeiture clause is or is not self-executing, depends wholly upon the
language employed by the Legislature. The bridge company was incor-
porated by a special act (Laws of 1867, ch. 395) which provided that the
bridge shall be commenced within two years, or “this act and all rights
and privileges granted hereby shall be null and void.” The words quoted
do not constitute a self-executing forfeiture clause, but the meaning of
“null and void” in such connection is that the corporate existence shall
be “ voidable,” i. e., that in case of default the corporation may be ‘dis-
solved through appropriate legal proceedings by the Attorney-General.
(In re N. Y. & Long Island Bridge Co., supra.)

No action or judicial proceeding is needed to declare and complete «
forfeiture of corporate existence and powers under this section. (In re
Brooklyn, Winfield & Newtown R. R. Co., 72 N. Y., 245.) The Legislature
cannot waive this forfeiture by a special act without violating the Con-
stitution, article 3, section 18. (Id. 75 N. Y., 335. See, also, Farnham v.
Benedict, 107 N. Y., 159; Day v. Ogd. & L. C. R. R. Co., 107 N. Y., 129;
In re Kings Co. El. R. R. Co., 105 N. Y¥., 97; Troy & Boston R. R. Co. v.
B. H. T. & W. R. Co., 86 N. Y., 107; In re B’klyn, Winfield & N. R. R.
Co., 81 N. Y., 69; B’klyn Steam T. Co. v. Brooklyn, 78 N. Y., 524; In re
N. Y. El. R. R. Co., 70 N. Y., 327.)

In the case of a corporation created by a special act which provided
that the road should be commenced and completed within times specified,
and in default thereof that it should “ forfeit the rights acquired by” it
under the act, the corporation is not by non-performance, ipso facto,
dissolved or deprived of its corporate existence or corporate rights. It
is simply exposed to proceedings, on behalf of the State, to establish and
enforce the forfeiture. (In re Brooklyn El. R. R. Co., 125 N. Y., 434, dis-
tinguishing B.. W. & N. R. R. Co., 72 N. Y¥., 245, and B. S. T. Co. v.
Brooklyn, 78 N. Y., 524, above.)

A foreclosure and sale of the road works a forfeiture of its right to
construct and operate a road thereafter, except as such right vests in a
purchaser. (Sodus B. & C. R. R. Co. v. Lapham, 43 Hun, 314.)

A corporation cannot avoid the expenditure required by leasing a por-
tion of its route to another company and granting the latter the privilege
of laying tracks thereon. (In re Brooklyn, W. & N. R. R. Co. v. Grand
St. & N. R. BR. Co. of Brooklyn, 81 N. Y., 69.) _

This statute is not applicable to a corporation willfully and intentionally
neglecting construction of its road. (People v. Broadway R. R. Co. of.
Location or Rovurs. 299.

 

The Railroad Law, § 6.

 

Brooklyn, 126 N. Y., 29.) Or to one whose rights had become extinct by -

omitting to begin construction within the period limited by the statute.

(Farnham v. Benedict, 107 N. Y., 159.) Nor to any road which was not in.
default at the time the statute took effect. (In re Brooklyn, W. & N. BR. R..

Co. v. Broadway R. R. Co. of Brooklyn, 72 N. Y., 245; Brooklyn S. T. Co. v.
Brooklyn, 78 N. Y., 524.) /

Charters of. railroad corporations are not forfeited or annulled as dam-
ages for the violation of private contracts. (Matter of Long Island ,R. R.
Co., 143 N. Y., 67.)

§ 6. Location of route.—, Every railroad corporation, ex-

cept a street surface railroad corporation and an elevated railway
corporation, before constructing any part of its road in any county
named in its certificate of incorporation, or instituting any pro--

ceedings for the condemnation of real property therein, shall make
a map and profile of the route adopted by it in such county, certified

by the president and engineer of the corporation, or a majority of |
the directors, and file it in the office of the clerk of the county in.
which the road is to be made. The corporation shall give written.
notice to all actual occupants of the lands over which the route of.

the road is so designated, and which has not been purchased by or
given to it, of the time and place such map or profile were filed, and

that such route passes over the lands of such occupants. Any such.
occupant or the owner of the land aggrieved by the proposed loca--
tion, may, within fifteen days after receiving such notice, give ten.

days’ written notice to such corporation and to the owners or oc-

cupauts of lands to be affected by any proposed alteration, of the-

time and place of an application to a justice of the supreme court,
in the judicial district where the lands are situated, by petition duly

verified, for the appointment of commissioners to examine the-

route.
The petition shall state the objections to the route designated,

shall désignate the route to,which it is proposed to alter the same, .
and shall be accompanied with a survey, map and profile of the-

route designated by the corporation, and of the proposed alteration
thereof, and copies thereof shall be served upon the corporation and
such owners or occupants with the notice of the application. The
justice may, upon the hearing of the application, appoint three dis-
interested persons, one of whom must be a practical civil engineer,
commissioners to examine the route proposed by the corporation,

and the route to which it is proposed to alter the same, and after:
300 Location or Route.

 

The Railroad Law, § 6.

 

hearing the parties, to affirm the route originally designated, or
adopt the proposed alteration thereof, as may be consistent with the
just rights of all parties and the public, including the owners or
occupants of lands upon the proposed alterations; but no alteration
of the route shall be made except by the concurrence of ‘the com-
missioner who is a practical civil engineer, nor which will cause
greater damage or injury to lands or materially greater length of
road than the route designated by the corporation, nor which shall
substantially change the general line adopted by the corporation.

The commissioners shall, within thirty days after their appoint-
ment, make and certify their written determination, which with the
petition, map, survey and profile, and any testimony taken before
them shall be immediately filed in the office of the county clerk of
the county. Within twenty days after such filing, any party may,
by written notice to the other, appeal to the general term of the
supreme court from the decision of the commissioners, which
appeal shall be heard and decided at the next term held in the de-
partment in which the lands of the petitioners or any of them are
situated, for which the same can be noticed, according to the rules
and practice of the court. On the hearing of such appeal, the court
may affirm the route proposed by the corporation or may adopt
that proposed by the petitioner.

The commissioners shall each be entitled to six dollars per day
for their services, and to their reasonable and necessary expenses,
to be paid by the persons who applied for their appointment. If
the route of the road, as designated by the corporation, is altered
by the commissioners, or by the order of the court, the corporation
shall refund to the petitioner the amount so paid, unless the decision
of the commissioners is reversed upon appeal taken by the corpora-
tion. No such corporation shall institute any proceedings for the
condemnation of real property in any county until after the expira-
tion of fifteen days from the service by it of the notice required by
this section. Every such corporation shall transmit to the board of
Location or Rovre. 301

 

The Railroad Law, § 6.

railroad commissioners the following maps, profiles and drawings
exhibiting the characteristics of their road, to wit:

A map or maps showing the length and direction of each straight
line; the length and radius of each curve; the point of crossing of
each town and county line, and the length of line of each town and
county accurately determined by measurements to be taken after
the completion of the road.

‘Whenever any part of the road is completed and used, such maps
and profiles of such completed part shall be filed with such board
within three months after the completion of any such portion and
the commencement of its operation; and when any additional por-
tion of the road shall be completed and used, other’maps shall be
filed within the same period of time, showing the additional parts so.
completed. If the route, as located upon the map and profile filed in
the office of any county clerk, shall have been changed, it shall also
cause a copy of the map and profile filed in the office of the railroad
commissioners, so far as it may relate to the location in such county,
to be filed in the office of the county clerk.

(Thus amended by L. 1892, ch. 676.)
For forms in proceedings under this section, see post, forms Nos. 99 to 107.

The amendment of 1892 exempts street surface railroads and elevated
railways from the requirements that maps and profiles be filed, and omits
the prohibition against beginning condemnation proceedings * until after
the final determination of all applications that may be made for a change
of route in such county.”

The directors of a railroad corporation are not as such liable, individu-
ally, if in the operation of the road the rights of a property owner are
violated; the responsibility, is that of the company, whether it be a ccr-
poration de facto or de jure. (Lamming v. Galusha, 81 Hun, 247.)

The preliminary survey (sec. 4, subd. 1) must be made, and notice
(under sec. 6) must be given prior to the application for commissioners of
appraisal. (In re N. Y. & B. R. R. Co. v. Godwin, 62 Barb., 85; 12 Abb.
N. S., 21.) Commissioners of appraisal can not be appointed until the
expiration of fifteen days after the service of notice. (Id.) Such notice
must be served on all occupants affected. (In re N. F. & W. Ry. Co. v.
De V. College, 46 Hun, 94; aff’d 108 N. Y., 375.) It need not, however,
be served upon occupants of land, no part of which is covered by the
route designated, but which may be required for the corporate purposes
of the company. (In re N. Y., L. & W. Ry. Co. v. Scheu, 33 Hun, 148;
aff'd 98 N. Y. 664.) Due service of the notice is a prerequisite to the
appointment of commissioners. (People ex rel. E. & G. V. R. R. Co. v.
Tubbs, 49 N. Y., 356; In re L. I. R. R. Co., 45 N. ¥., 364; In re Norton v.
WwW. V. R. R. Co., 63 Barb., 77.) The statute contemplates but one com-
mission in a county, which should complete its work by affirming the
voute proposed by the company or making all necessary, alterations, and
-302 Acquisrrion oF TrrLz To Rea, PRopesrry.
The Railroad’ Law, § 7.

‘when this is done the route through the county Is established. (Id.)
’ The justice of the supreme court merely determines whether or not there
is sufficient cause for appointment of commissioners. He can not try
-the matter on its merits. (Norton v. W. V. R. R. Co., 61 Barb., 476.)

A notice subscribed ‘“‘James M. Milne, secretary of the Cortland and
-Homer Horse Railroad Company,” is properly signed by the company.
(In re C. & H. R. R. Co. v. S., B. & N. Y. R. R. Co., 31 Hun, 72; aff’d 95
N. Y., 663.) The notice by an aggrieved occupant or owner must be
. served personally. (Peo. ex rel. N. B. & C. R. R. Co. v. L. & B. R. R. Co.,
13 Hun, 211.) ;

Where error has been committed by commissioners the courts will send
the report back. (In re L. S. & M.S. Ry. Co. v. N.'Y., L. & W. Ry. Co.,
- 89 N. Y., 442.) Whether the order by the general term upon an appeal
from the decision of the commissioners is appealable, quaere. (In re
N. Y., L. E. & W. R. R. Co., v. N. Y., L. & W. Ry. Co., 99 N. Y., 338.)

The court of appeals will not review questions of fact passed upon by
the commissioners (Id.)

A map which shows the alignment and profile is sufficient, without
~showing all the connections, turnouts and switches. (People v. Brooklyn
F. & C. I. R. R. Co., 89 N. Y., 75.) It seems that filing a map is not neces-
- sary by a company purchasing, after foreclosure, a railroad already con-
structed. (Id.)

A law designating the streets through which a company may construct
- and operates its road is a practical location. (In re Coney Isl. & B. R. R.
- Co. v. Ridley, 12 Hun, 451.)

A map showing the general course of the road, not indicating whether
it is an exterior, a center, or any other certain line, is insufficient. (N. Y.
-& B. R. R. Co. v. Godwin, 12 Abb., N. S., 21; 62 Barb., 85; N. Y. & A. BR.
R. Co. v. N. Y., W. S. & B. Ry. Co., 11 Abb. N. C., 386; In re B., H. T. &
W. Ry. Co., 10 Abb. N. C., 104.) Additional land required for cuttings
and embankments need not be shown. (In re S. B. R. R. & T. Co. v.
Gates, 50 Hun, 405.) A map of part of the road only could not work an
-abandonment of another portion. (Mason v. B’klyn City & N. R. R. Co,
+85 Barb.,, 373.) .

This section is not applicable to the matter of crossing existing
road tracks. (See R. R. L., sec. 12, post; In re N. Y., L. E.
Co. v. P., L. & N. E. R. R. Co., 110 N. Y., 374; In re L. 8.
Co. v. N. Y., L. & W. R. Co., 89 N. Y¥., 442; In re B., H. T.

ow. T. & B. R. R. Co., 79 N. Y., 64; see, also, N. Y., L. BE. & W.
N. Y., L. & W. Ry. Co., 99 N. Y., 338; L. & B. R. R. Co. v. N. Y. C. & HL
R. RB. R. Co., 77 N. Y., 557.) ;

When a map and survey has been made and filed and the required
‘notice given the corporation has acquired the right to construct and
operate a railroad upon such line. (R., H. & L. R- R. Co. v. N. Y., L. E.
& W. R. : ‘Co., 110 N. Y., 128; S. R. T. R. RB. Co. v. New York, 128
N. Y., 510.

§ 7. Acquisition of title to real property: additions, better-
ments and facilities — All real property, required by any railroad
- corporation for the purpose of its incorporation or for any purpose
stated in the railroad law, shall be deemed to be required for a
public use, and may be acquired by’ such corporation. If the
corporation is unable to agree for the purchase of any such real
_property, or of any right, interest or easement therein, required for
.

Acquisition or TirLz ro Rea Properry. 303

 

The Railroad Law, § 7.

 

any such purpose, or if the owner thereof shall be incapable of
selling the same, or if after diligént search and inquiry the name
and residence of any such owner cannot be ascertained, it shall
have the right to acquire title thereto by condemnation. Every
railroad corporation shall have the power from time to time to
make and use upon or in connection with any railroad either owned
or operated by it, such additions, betterments and facilities as may
be necessary or convenient for the better management, mainte-
nance or operation of any such railroad, and shall have the right
by purchase or by condemnation, to acquire any real property:
required therefor, and it shall also have the right of condemnation
in the following additional cases:

1. Where title. to real property has been acquired, or attempted to be
acquired, and has been found to be invalid or defective.

2. Where its railroad shall be lawfully in possession of a lessee,
mortgagee, trustee or receiver, and additional real property shall, be
required for the purpose of running or operating such railroad.

8. Where it shall require for any railroad owned or operated by it any
further rights to lands or the use of lands for additional main tracks or
for branches, sidings, switches, or turn-outs or for connections or for
cut-offs or for shortening or straightening or improving the line or
grade of its road or any, part thereof. Also where it shall require any
further rights to lands or the use of lands for filling any structures of
‘its road, or for constructing, widening or completing any of its embank-
ments or roadbeds, by means of which greater safety or permanency
may be secured, and such lands shall be contiguous to such railroad and
‘reasonably accessible.

4. Where it shall require any further rights to lands or to the use
of lands for the flow of water occasioned by railroad embankments or
structures now in use, or hereafter rendered necessary, or for any other
purpose necessary for the operation of such railroad, or for any right
‘to take and convey water from any spring, pond, creek or river to such
railroad, for the uses and purposes thereof, together with the right to
build or lay aqueducts or pipes for the purpose cf conveying such water,
and to take up, relay and repair the same, or for any right of way
required for carrying away or diverting any water, stream or floods
from such railroad for the purpose of protecting its road or for the pur-
pose of preventing any embankment, excavation or structure of such
railroad from injuring the property of any person who may be rendered
liable to injury thereby. :

Waters commonly used for domestic, agricultural or manufactur-
ing purpose, shall not be taken by condemnation to such an extent
as to injuriously interfere with such use in future. No railroad.
corporation shall have the right to acquire by condemnation any
right or easement in or to any real property owned or occupied by
any other railroad corporation, except the right to intersect or cross
the tracks and lands owned or held for right of way by suth other
corporation, without appropriating or affecting any lands owned or
held for depots or gravel-beds.

(Thus amended by L. 1892, ch. 676; L. 1905, ch. 727.)
x

304 Raitroaps THROUGH Pusiio Lanps.

 

The Railroad Law, § 8.

 

The grant to a corporation by an abutting owner, who owns the fee
of the street, of the right to construct a railroad thereon includes the
right to operate such railroad, and precludes a recovery by such owner
or his grantee of damages to the abutting premises arising from such
operation, unless it is shown that the road is improperly constructed or
negligently operated (Conabeer v. N. Y. C. & H. R. R. R. Co., 84 Hun, 34.)

See the condemnation law, post; see, also, section 4, subd. 2 of this law.

The fourth word in the second line of the section was changed from
“acquired” to “required” by amendment of 1892.

Where the lease of property abutting upon a street on which is erected
an elevated railroad was made subsequent to the construction of such
road the exclusive right of action fbr rental damages is in the land-
owner. (Crimmins v. Metropolitan El. Ry. R. R. Co., 87 Hun, 187.)

Under this section lands may be acquired for passenger and freight
depots; for places for keeping cars and engines not in use; lands for
proper tracks and curves to enable trains with safety, dispatch and con-
venience to approach the station, cattle yards, elevator and water front
structures of the company; also land under water for piers, etc. (In re
N. Y. GC. & H. B. RB. R. Co., 77 N. Y., 248; Same v. Met. Gas Lt. Co., 63 N.
Y., 326.) It is no objection that other lands in the same vicinity equally
well adapted may be acquired by purchase. (Same v. Kip, 46 N. Y., 546.)
Land for prospective uses may also be acquired. (In re Staten Isl. R. T.
Co., 103 N. Y., 251.) Lands cannot be taken for speculation or to obstruct
competing lines. (In re R. & S. R. R. Co. v. Davis, 43 N. Y., 187.) Lands
under water may be condemned by proceedings for that purpose. (In re’
N. Y. C.& H.R. R. BR. Co., 77 N. Y., 249; 29 Hun, 269.)

A foreign corporation is entitled to the benefits of this provision. (In re
Marks, 25 St. Rep., 502; 6 N. Y. Supp., 105.)

A railroad corporation may perfect a defective title io its lands. (In re
Prospect Pk. & C. I. R. R. Co., 67 N. Y., 871; In re N. Y. C. R. R. Co.,
20 Barb., 419, 428.) The act does not imply that an outstanding judg-
ment affecting the interest of an owner who had been compensated is
recognized as a defect in the title. (Watson v. N. Y. C. R. R. Co., 47
N. Y., 157.)

This section only confers the right to proceed in invitum when an
attempt to purchase of the owner has proven a failure. (N. Y. & B. R.
R. Co. v. Godwin, 12 Abb. N. S., 21.) And when such failure is caused
either by the owner’s unwillingness to sell it all, or only at an excessive
price. (In re Prospect Pk. & C. I. R. R. Co., above.)

Pending an action to restrain a railroad company from operating its
road in a certain street, it entered into a stipulation not to prosecute pro-
ceedings to condemn property pending a stay. Held, when the stay
ceased to operate by reason of reversal, the company was free to act.
(In re Met. El Ry. Co., 186 N. Y., 500.)

§ 8. Railroads through public lands. — The commissioner
of the land office may grant to any domestic railroad corporation
land belonging to the people of the state, except the reservation
at. Niagara and the Concourse lands on Coney Island, which may
be required for the purposes of its road, on such terms as may be
ew
Oo
Oo

Rartroaps THROUGH Inp1an Lanps.

 

The Railroad Law, §§ 9, 10.

 

agreed upon by them; or such corporation may acquire title thereto
by condemnation; and the county or town officers having charge
of any land belonging to any county or town, required for such
corporation for the purpose of its road, may grant such land to the
corporation for such compensation as may be agreed upon. In
case the land or any right, interest or easement therein, required
by such railroad corporation is used for prison purposes the com-
missioners of the land office may grant such land, or any right,
interest or easement therein, provided the plans of such railroad
corporation for the use of such prison lands, or such right, interest
or easement therein, have the approval of the superintendent of
state prisons.

(Thus amended by L. 1904, ch. 313.)

Lands under water may be taken by a railroad corporation under this
section; no notice need be served upon the owner of the adjoining upland.
(Matter of the N. Y., West Shore and Buffalo R. R. Co., 29 Hun, 269;
103 N. Y., 251.) e

A patent granted by the commissioners of the land office for State lands
under navigable waters, which is not void on its face, can only be
assailed in a direct proceeding to review the action of the commissioners,
or by an action in equity to set aside the grant. (N. Y. C. & H.R. R. R.
Co. v. Aldridge, 135 N. Y., 83; dist’g Rumsey v. N. Y. & N. E. R. R. Co.,
114 N. Y., 423.) . Where the owner of land bounded by,a navigable river
conveys a strip of the land along the water front to a railroad company
for the use of its road he does not lose, nor does the company gain the
character of riparian owner. The company can only use the land for the
purposes of its road. (Id.)

The authority conferred by law upon the commissioners of the land
office to be deemed modified by this section. (In re N. Y., W. S. & B. Ry.
Co. v. Swain, 29 Hun, 269; see, also, Gould v. Hudson R. R. R. Co., 6
N. Y., 522, held to have been overruled in Rumsey v. N. Y. & N. E. R. R.
Co., 133 N. Y., 79.)

Notice to the owner of the upland need not. be given when land under
water is condemned pursuant to this section. ‘(29 Hun, 269, above.)

Land under water granted to New York city by the legislature is held
in trust for the uses prescribed, but may be appropriated for railroad
purposes. (In re N. Y., W. 8. & B. Ry. Co. v. Walsh, 89 N. Y., 453, aff'g
27 Hun, 57; In re N. Y. C. & H. R. RB. R. Co., 77 N. Y., 248.) This pro-
vision confers power to grant lands under water for necessary docks.
(77 N. Y., 248, above; see, also, Kerr v. W. 8. R. RB. Co., 127 N. Y., 269;
Rumsey v. N. Y. & N. E. BR. R. Co., 114 N. Y., 423; 130 N. Y., 88; 133
N. Y., 79; 136 N. Y., 543.)

§ 9. Railroads through Indian lands.— Any railroad cor-
poration may contract with the chiefs of any nation of Indians,
over whose lands it may be necessary to construct its railroad, for
the right to make such road upon such lands, but such contract shall
not vest in the corporation the fee to the land, nor the right to
occupy the same for any purposes other than may be necessary for
the construction, occupancy and maintenance of such railroad, and
such contract shall not be valid or effectual until it shall be ratified
by the county court of the county where the land shall be situated.

810 Railroads through Chautauqua assembly grounds,—
No railroad corporation shall build, construct or operate any
railroad in, upon, over or through the grounds, lands or premises

L
306 Intersxorion or Higuways.

 

The Railroad Law, § 11.

 

owned by the Chautauqua assembly corporation in the town and
county of Chautauqua, without the written consent of a majority
of the board of trustees of such assembly corporation.

§ 11. Intersection of highways, additional lands for.—
No railroad corporation shall erect any bridge or other obstruction
across, in or over any stream or lake, navigated by steam or sail
boats at the place where it may be proposed to be erected, nor shall
it construct its road in, upon or across any street of any city without
the assent of the corporation of such city, nor across, upon or along
any highway in any town or street in any incorporated village,
without the order of the supreme court of the district in which such
highway or street is situated, made at a special term thereof, after
at least ten days written notice of the intention to make application
for such order shall have been given to the commissioners of high-
ways of such town, or board of trustees of the village in which such
highway or street is situated. Every railroad corporation which
shall build its road along, across or upon any stream, watercourse,
street, highway, plankroad or turnpike, which the route of its road
shall intersect or touch, shall restore the stream or watercourse,
street, highway, plankroad and turnpike, thus intersected or
touched, to its former state, or to such state as not to have unneces-
sarily impaired its usefulness, and any such highway, turnpike or
plankroad may be carried by it, under or over its track, as may be
found most expedient. Where an embankment or cutting. shall
make a change in the line of such highway, turnpike or plankroad
desirable, with a view to a more easy ascent or descent, it may con-
atruct such highway, turnpike or plankroad, on such new line as
its directors may select, and may take additional lands therefor by
condemnation if necessary. Such lands so taken shall become part
of such ‘intersecting highway, turnpike or plankroad, and shall be
held in the same manner and by the same tenure as the adjacent
parts of the highway, turnpike or plankroad are held for highway
purposes. Every railroad corporation shall pay all damages sus-
tained by any turnpike or plankroad corporation in consequence of
its crossing or occupation of any turnpike or plank-road, and in
case of inability to agree upon the amount of such damages, it may
acquire the right to such crossing or occupation by condemnaticn.

See provisions of section 15 of the highway law on page 292.

The legislature has power to authorize the laying of a street across
the tracks of a railroad company, and to require the company t¢ carry

such street across its tracks without compensation. (People ex rel. City
of Ithaca v. D., L. & W. R. R. Co., 11 App. Diy., 280.)
INTERSECTION oF Higuways. 807

 

The Railroad Law, § 11.

 

The municipal corporation in determining whether a street should be
laid out is the sole judge as to the necessity therefor. (People ex rel.
City of Ithaca v. D., L. & W. R. R. Co., 11 App. Div., 280.)

A resolution of a municipal corporation which lays out a street from a
given point, south ‘‘to the track” of a railroad company, “and thence
to the south line of said city” carries the street across, and does not
omit therefrom the space between the tracks of the railroad company.
(People ex rel. City of Ithaca v. D., L. & W. R. R. Co., 11 App. Div., 280.)

Where the primary purpose of an improvement in the manner of con-
structing railroad crossings in city streets is not for the benefit of a
railroad company or its patrons, but is an exercise of the police power
of the State for the protection of the lives and limbs of its inhabitants,
‘the court will leave an abutting owner, claiming damages, to his remedy
by action. (Pratt v. N. Y. C. & H. R. R. R. Co., 90 Hun, 83.)

The right to change the line of a highway “‘ where an embankment or
cutting shall make a change in the line of such highway desirable, with
a view to a more easy ascent or descent,” has no application to the case
of the discontinuance of a highway at a grade crossing, the removal of the
grade crossing, and the change of the line of travel by a new way to a
bridge crossing, when no embankment or cutting existed at the grade
crossing. (Buckholz v. N. Y., Lake Hrie & W. R. R. Co., 148 N. Y., 640,
revsg. 66 Hun, 377, and distg. 58 N. Y., 152.)

A ease for equitable interposition and for the recovery of damages
arises when an unlawful. change in and obstruction of a highway diverts
travel from the premises of an abutting property-owner, and seriously
interrupts his business. (Buckholz v. N. Y., Lake Erie & W. R. R. Co.,
148 N. Y., 640, revsg. 66 Hun, 377, and distg. 58 N. Y., 152.)

Where the appropriation of a street by a railroad corporation was
‘legal, no merely consequential damage to an abutting owner, having no
title to the street, affords a ground of action against the railroad com-
pany. (Conabeer v. N. Y. C. & H. R. R. R. Co., 156 N. Y., 474, aff’g 84
Hun, 34.)

A release or abandonment of easements of light, air and access which
are appurtenant to property abutting upon a public street may be estab-
lished by any evidence which clearly indicates an intention upon the
part of the abutting owner to abandon the right. (Conabeer v. N. ¥. C.
.& H. R. R. BR. Co., 156 N. Y., 474, aff’g 84 Hun, 34.)

Where the public use authorized by law takes no land of an individual,
but merely affects him by its proximity, the necessary annoyance of
that use furnishes no basis for damage. (Conabeer v. N. Y. C.& H.R. R.
R. Co., 156 N. Y., 474, aff’g 84 Hun, 34.)

* The duty imposed upon a railroad company of restoring a highway was
not expressly or impliedly repealed by the Highway Law. (Bush v.
D. L. & W. RB. R. Co., 166 N. Y., 210, aff’g 54 App. Div., 616.) :

Street cars have no right of way over other vehicles at the inter-
section of streets, but the right of each to cross should be exercised
in a reasonable and careful manner, so as not to unreasonably abridge
-or interfere with the rights of the other. (Reilly v. ‘Third Ave. R. R. Co.,
16 Misc., 11.) \

A railroad company, which has constructed its track upon a highway,
308 , INTERSECTION oF HicHways.

 

The Railroad Law, § 11.

 

does not fulfill its duty of restoration by merely laying out a new
highway of the same width and grade and in the same general direction,
but must take all reasonable precautions to make the new highway
safe with reference to all the new surroundings. (Allen v. Buffalo, Roch-
ester & Pittsburg Ry. Co., 151 N. Y., 434, aff’g 81 Hun, 615.)

The duty of restoring and maintaining a highway appropriated by a.
railroad company is a continuing obligation incident to the franchise,
which passes and attaches to the successors of the corporation. (Allen.
v. Buffalo, Rochester & Pittsburg Ry. Co., 151 N. Y., 434, aff’g 81 Hun,
615.)

Municipal authorities are not authorized to surrender to a railroad.
-exclusive use of a considerable portion of the street- for the erection of
abutments and piers to sustain an elevated structure. (D., L. & W. R. RY
Co. v. Buffalo, 158 N. Y., 266 and 478, aff’g 4 App. Div., 562.)

The provision of a city charter permitting the common council to con-
sent to the construction of a railroad across a street is not independent
of the General Railroad Act, but the two statutes may be read together,
and when so read they simply authorize a railroad to cross a street, but
not necessarily in such a way as to obstruct its use. (D., L. & W. R. R..
Co. v. Buffalo, 158 N. Y., 478.)

A railroad company in constructing a bridge over a stream of water
must provide an opening sufficient for all ordinary exigencies of the
climate and situation of the stream, and also such extraordinary emer-
gencies as may occur. (Higgins v. N. Y., L. E. & W. R. R. Co.; 78 Hun..
567.) :

A corporation in constructing a dam or culvert should construct it in
such a manner as to resist such extraordinary floods as may be reason-
ably expected to occur occasionally. (Mundy v.:N. Y., L. HE. & W. R. R.
Co., 75 Hun, 479.) So, also, in the construction of a bridge. (Van Duzer
v. Elmira, C. & N. R. R. Co., 75 Hun, 487.)

The provision for restoration of streams, water-courses, etc., was
designed to protect public rights, not private interests, and applies only
to navigable streams. (Kerr v. W. S. R. R. Co., 127 N. Y., 269; dist’g
Langdon v. Mayor, etc., 93 N. Y¥., 129 ; Williams v. Mayor, etc., 105 N. Y..,.
420; Kingsland v. Mayor, etc., 110 N. Y., 569.) It does not entitle am
owner of upland, where access to his dock is cut off, to have a draw-
bridge constructed. (127 N. Y., 269, above.) A stream diverted must be
restored to its former usefulness as nearly as practicable. (Cott v. Lewis-
ton R. R. Co., 36 N. Y., 214.)

Changing a street grade, thereby cutting off an abutting owner’s access.
to his premises, entitles the latter to damages, although that portion of
the street had been discontinued by the municipal authorities. (Hgerer
v. N. ¥. C. & H. R. R. R. Co., 130 N. Y., 108.) Where a grade is changed
and the abutting owner’s fee to the center of the highway is not sub-
jected to a new or different use he suffers no damage. - (Conklin v. N. Y¥., |
O. & W. Ry. Co., 102 N. Y., 107; Rauenstein v. N. Y., L. & W. RB. R.
Co., 136 N. Y., 528; 31 St. Rep., 911; 19 N. Y. Supp., 833; 47 St. Rep.,
139 ; 120 N. Y., 661; Ottenot v. Same, 119 N. Y., 603; Fobes v. Rome,
W. & O. R. R. Co., 121 N. Y., 505; but see, also, Reining v. N. Y¥., L. & W.,
Ry. Co., and Jeaume v. Same, 128 N. Y., 157, 623.)

A railroad company, for the purpose of crossing a turnpike road, may
Intersection or OrpEr Rvaps. 309

 

The Railroad Law, § 12.

 

anake a new road to connect with the undisturbed portions. (In re N. Y.,
W.S. & B. Ry. Co. v. N. & N. W. T. R. Co., 28 Hun, 472.)

Damages fhust be appraised and paid before the land is entered upon.
(J. & B. R. R. Co. v. N. Y¥. & M. B. Ry. Co., 25 Hun, 585; E. & G. V.
.P. R. Co. v. Buf. & P. R. R. Co., 20 Barb., 644.)

As a general rule the eléction as to the mode of crossing is with the
‘company, and is not reviewable, if exercised in good faith. (People v.
N. Y. C. & H. R. R. R. Co., 74 N. Y., 302; see, also, People v. N. Y., N.
H. & H. R. R. Co., 89 N. Y., 266.)

If a ‘highway is removed lands for restoration may be acquired by pur-
-chase or condemnation. (Post v. West S. R. R. Co., 123 N. Y¥., 580; see,
-also, People ex rel. Schaghticoke v. T. & B. R. R. Co., 37 How., 427;
-aff’d, 6 Alb. L. J., 174.)

As to repaving streets, see Gilmore v. Utica, 121 N. Y., 561; 131 N. Y.,
26 ; Masterson v. N. Y. C. & H. R. R. R. Co., 84 N. Y., 247.

Whether the duty to restore has been performed may be for a jury
to determine. (Payne v. T. & B. R. R. Co., ‘83 N. Y., 572; Wasmer v.

D. L. & W. R. R. Co., 80 N. Y., 212.) The remedy of the public for a
failure to restore is by indictment or mandamus, L. 1890, ch. 568, sec. 15.
«(Bryant v. Town of Randolph, 133 N. Y., 70; People v. N. Y. C. & H. R.
R. R. Co., 74 N. Y., 302 ; see, also, People ex rel. Green v. D. & C. R. R.
-Co., 58 N. Y., 152; Peaple v. N. Y., N. H. & H. R. R Co., 89 N. Y., 266.)

The duty to restore is a continuous one. If, after restoration of a high-
way, increased travel require changes to be made, the company must
‘make them. (Hatch v. 8., B. & N. Y. R. R. Co., 50 Hun, 64.) When the
‘railroad company is in default-in restoring a highway, a highway com- ,
missioner may do the necessary work and maintain an action against
"the company for the expense. (Bryant v. Town of Randolph, 183 N.

¥., 70.)

§ 12. Intersection of other railroads.— Every railroad cor-
‘poration, whose road is or shall be intersected by any new railroad,
-shall unite with the corporation owning such new railroad in form-
‘ing the necessary intersections and connections, and grant the
requisite facilities therefor. If the two corporations can not agree
‘upon the amount of compensation to be made therefor or upon the.
‘line or lines, grade or grades, points or manner of such intersections
and connections, the same shall be ascertained and determined by
commissioners, one of whom must be a practical civil engineer and
‘surveyor, to be appointed by the court, as is provided in the con-
‘demnation law. Such commissioners may determine whether the
erossing or crossings of any railroad before constructed shall be
beneath, at, or above the existing grade of such railroad, and upon
the route desicuatad upon the map of the corporation seeking the
crossing or otherwise. All railroad corporations whose roads are or
shall hereafter be so crossed, intersected or joined; shall receive
from each other and forward to their destination all goods, mer-
310 InTERSECTION oF Hiauways.

 

The Railroad Law, § 12.

 

’ chandise and other property intended for points on their respective
roads, with the same dispatch as, and at a rate of freightynot exceed-
ing the local tariff rate charged for similar goods, merchandise and
other property, received at or forwarded from the same point for
individuals and other corporations.

(Thus amended by L. 1892, ch. 676.)

See section 4, subd. 5. See, also, ch. 239, L. 1893, post, and cases cited
thereunder.

The provisions of this section authorizing the crossing or intersection
of one railroad by another, are applicable to street surface railroads.
(Buffalo, Bellevue & Lancaster R. R. Co. v. N. Y., L. E. & W. R. R. Co.,
72 Hun, 583.)

Under this section the Supreme Court has power to appoint commis-
sioners to determine the point and the manner at which a connectiom
shall be made and under section 35 a limited power is granted to the
railroad commissioners to determine the terms upon which a crossing
shall be made from one railroad over the tracks of an intervening road
to the tracks of a third road. (N. Y., L. & w. R. R. Co. v. Erie R. R,.
Co., 31 App. Div., 378.)

An injunction will not lie in behalf of a municipal corporation to pre-
vent a street railroad company from removing a crossing over its tracks
which has been constructed by a steam railroad without authority. (City
of Kingston v. Colonial City Traction Co., 17 App. Div., 274.)

A railroad corporation which has contracted with two other companies
to construct a curve to connect their tracks, in consideration of a right
to operate its cars thereon, has the same right to construct the curve
which the two companies themselves would have had, under this section.
(Kunz v. Brooklyn Heights R. R. Co., 25 Mise., 334.)

The commissioners are the tribunal by which all questions in regard
to the place and manner of the crossing of one railroad by another are to
be determined, and that determination must necessarily be made in, view,
among other things, of the motive power employed and the mode of its
application. (Buffalo, Bellevue & Lancaster R. R. Co. v. N. Y., L. D. &
W. R. R. Ce., 72 Hun, 583.)

An agreement for a crossing will bar proceedings for appointment of
‘Cuance or Rours, Grape or TERMINUS. 311

 

The Railroad Law, § 13.

 

commissioners under this section. (In re Rome, W. & O. R. R. Co. v. Ont.
8. R. RB. Co., 16 Hun, 445.)

A petition for appointment of commissioners must allege an attempt
and failure to agree. (In re B., H. T. & W. Ry. Co. v. T. & B. R. R. Co.,
79 N. Y. 64.) It must be proved if denied. (In re L. & B. R. R. Co. v.
N. Y. C. & H. R. R. BR. Co., 77 N. Y., 557.) Otherwise it need not be.
(79 N. Y¥., 64, above. See, also, Matter of Cortland & H. H. R. R. Co. v. S.,
B. & N. Y. R. R. Co., 31 Hun, 72; aff’d, 95 N. Y., 663:) <As to defective
verification, see 79 N. Y., 64, above. =

The petition of a street surface railroad must show that it hag secured
the consents of the property-owners and local authorities. (See section 91,
R. R. L.; In re Saratoga Eléc. R. R. Co., 58 Hun, 287. See, also, 22 Abb.
N. C., 427.) In case commissioners are appointed, their determination
should include all particulars relative to the manner of crossing. (In re
L. & B. RB. R. Co. v. N. Y. C, & H. R. BR. R. Co., 19 Hun, 38; In re N. Y.,,
L. & W. Ry. Co. v. N. ¥. & E. R. R. Co., 35 Hun, 275.) Review of their
determination considered. (In re L. V. Ry. Co. v. N. Y. C. & H. R. R. R.
Co., 93 N. Y., 639.) Nominal damages are not inadequate when no evi-
dence is given on that point. (In re C. & H. H. BR. R. Co. v. S. B. & N.
Y. R. R. Co., 98 N. Y., 336.) Costs are in discretion of the court. ({d.)
The report is not to be appealed from in fragments. (N. Y., L. & W. Ry.
Co. v. N. ¥., L. E. & W. R. BR. Co., 44 Hun, 275.)

§ 138. Change of route, grade or terminus..— Every railroad
corporation, except elevated railway corporations, may, by a vote
of two-thirds of all its directors, alter or change the route or any
part of the route of its road or itg termini, or locate such route, cr
any part thereof, or its termini, in a county adjoining any county
named in its certificate of incorporation, if it shall appear to them
that the line can be improved ‘thereby, upon making and filing
in the clerk’s office of the proper county a survey, map and certifi-
eate of such alteration or change. If the same is made after the
corporation has commenced grading the original route, compensa-
tion shall be made to all persons for injury done by such grading
to any lands donated to the corporation. But neither terminus
can be changed, under this section, to any other county than one
312 Cuance or Router, Grape or TERMINUS.

The Railroad Law, § 13.

 

adjoining that in. which it was previously located; nor can the
route or terminus of any railroad be so changed in any town,
county or municipal corporation, which has issued bonds and
taken any stock or bonds in aid of the construction of such rail-
road without the written consent of a majority of the taxpayers
appearing upon the last assessment roll of such town, county or
municipal corporation, unless such terminus, after the change,
will remain in the same village or city as theretofore. No altera-
tion of the route of any railroad after its construction shall be
made, or new line or route of road laid out or established, as
. provided in this section, in any city or village, unless approved
by a vote of two-thirds of the common council of the city or trus-
tees of the village. Any railroad corporation whose road as lo-
cated terminates at any railroad previously constructed or located,
whereby communication might be had, with any incorporated city
of the state, ‘may amend its certificate of incorporation so as to
terminate its road at the point of its intersection with any rail-
road subsequently located to intersect it, and thereby, by itself
or its connection, afford communication with such city, with the
consent of the stockholders owning two-thirds of the stock of the
corporation. Any railroad corporation may, by a vote of its di-
rectors, change the grade ofeany part of its road, except that in the
city of Buffalo such change must conform to the general plan here-
tofore adopted and filed by the grade crossing commissioners of
said city, or any modification thereof, within the territory covered
by said general plan, in such manner as it may deem necessary to
avoid accidents and facilitate the use of such road; and it may by
such vote alter the grade of its road, for such distance and in such
manner as it may deem necessary, on each or either side of the
place where the grade of its road has been changed by direction
of the superintendent of public works, at any point where its road
crosses any canal or canal feeder, except that in the city of Buffalo
Part or Linz 1x Anoturr Strats. 313

 

The Railroad Law, § 14.

 

such change must conform to the general plan heretofore adopted
and filed by the grade crossing commissioners of said city, or any
modification thereof, within the territory covered by said general
plan. The superintendent of public works shall have a general and
‘supervisory power over that part of any railroad which passes over,
or approaches within ten rods of any canal or canal feeder belong-
ing to the state so far as may be necessary to preserve the free and
‘perfect use of such canals or feeders, or to make any repairs,
improvements or alterations, in the same. Any railroad corporation
‘whose tracks cross any of the canals of the state, and the grade of
which may be raised by direction of the superintendent of public
works, with the assent of such superintendent, may lay out a new
line of road to cross such canal at a more favorable grade, and may.
extend such new line and connect the same with any other line of
road owned by such corporation upon making: and filing in the
clerk’s office of the proper county a* survey map and certificate of
such new or altered line. No portion of the track of any railroad,
‘as described in its certificate of incorporation, shall be abandoned
‘under this section.

(Thus amended by L. 1892, ch. 676, and L. 1897, ch. 235.)

For form of certificate of change of route, see post, form No. 108.

A change of route cannot be effected by filing an amended certificate
‘pursuant to General Corporation Law, section 7. (Matter of Riverhead,
Q. & S. R. RB. Co., 36 App. Div., 514.)

The only ‘prerequisite to change the route is a vote of two-thirds of
the directors, sanctioning the new location, followed by filing of a survey
and map. (Matter of N. Y., L. & W. R. Co., 88 N. Y., 279.)

‘Exercise by the board of directors of the authority conferred by this
Section considered. (In re N. Y. C. & H. R. R. R. Co., 77 N. Y., 248; N. ¥.,
L. & W. R. Co. v. N. ¥., L. E. & W. R. R. Co., 88 N. Y., 279; B. ©. & N.
Y. R. R. Co. v. Pottle, 23 Barb., 21.)

A street railroad company operating its cars over the canal by means
of a bridge owned by the State, does not make such bridge an appliance
of its own, and its liability while on the bridge is no different than when
traversing the street. (Birmingham v. R. C. & B. R. R. Co., 187 N. ¥., 13.)

§ 14. Construction of part of line in another state.—
Any railroad corporation, whose proposed railroad is to be built
between any two points in this state, may, by a vote of two-thirds
of all its directors, locate and construct a part of its road in an ad-.
joining state; and the sections of its road within this state shall be
deemed a connected line, according to the certificate of incorpora-
tion, and the directors may reduce the capital stock of the corpora-
tion to such amount as may be deemed proper, but not less than
ten thousand dollars per mile for the number of miles of road to be
actually constructed in this state.

 

serted after the word “ survey.”
314 Roaps Havine Same Location; Tunnev Rartroaps.
The Railroad Law, §§ 15, 16.

§ 15. Two roads having the same location.—If two rail-
road corporations for a portion of their respective lines embrace the
same location of line, or if their lines connect, or are tributary to
each other, such corporations may by agreement provide for the
construction by one of them of so much of such line as is common.
to both, or connects with its own line, and for the manner and terms.
upon which the business thereon shall be performed, and the corpo-
ration that is not to construct the part of the line which is common
to both, may amend its certificate of incorporation, and terminate its
line at the point of intersection, and may reduce its capital to &
sum not less than ten thousand dollars for each mile of road pro.
posed to be constructed in such amended certificate.

When a company shortens its line and reduces its capital stock under
this provision, a subscriber to stock will not thereby be released from pay-
ment of his subscription. (Troy & Rut. R. R. Co. v. Kerr, 17 Barb., 581.):

§ 16. Tunnel. railroads.—When, according to the route and
plan for the building of its road, adopted by any railroad corpora-
tion, including corporations organized under chapter one hundred:
and forty of the laws of eighteen hundred and fifty, and the acts
amendatory thereof, and supplementary thereto, it shall be neces-
sary or proper to build it or any part of it under ground, or to-
tunnel or bridge any river or waters, such corporation may enter
upon, acquire title to and use such lands under water and uplands,
except on or along any canals of the state, as shall be necessary for
the purpose herein mentioned, and may construct, erect and secure
the necessary foundations and other structures which may be
required for operating and maintaining such road, or connecting
the same with another, and to acquire, in the manner provided by
\aw, such lands or rights or easements in lands along its route, upon,.
over or beneath the surface thereof as may be necessary for the:
construction of its road and making such connections. Where such
road,runs underneath the ground, at such depth as to enable the
corporation to tunnel the same, such tunnel shall be so built and at
all times kept in such condition as to make the surface of the
ground above the same and in the neighborhood thereof firm and
safe for buildings and other erections thereon, and if surface exca-
vations are made the surface shall be restored to its former condition
as soon as can be done, except so far as may be actually required for
ventilation of the tunnel beneath the same or access thereto. Such
road or any part of it may be built within the limits of any city or
incorporated village of this state, and run by means of a tunnel
underneath any of the streets, roads or public places thereof, pro-
Tounnet Rariroaps. 315

 

The Railroad Law, § 16.

 

vided such corporation shall before constructing the same under-
neath any such street, road or public place, have obtained the con-
sent of the owners of one-half in value of the property bounded on
the line of such street, road or public place, and the consent of the
board of trustees of the village, by a resolution adopted at a regular
meeting and entered on the records of the board, or of the proper
authorities of the city having control of such streets, roads or public
places. If the consent of such property owners can not be obtained,
the general term of the gupreme court in the district in which said
city or village or any part thereof is situated, may upon application
appoint three commissioners, who shall determine, after.a hearing
of all parties interested, whether such railroad ought to be built
underneath such streets, roads or public places, or any of them, and
in what manner the same may be so built with the least damage
to the surfaee and to the use of the surface by the public and the
determination of the commissioners confirmed by the court may be
taken in lieu of the consent of the property owners. All railroad
corporations constructing their road under this section shall be sub-
ject to all the provisions of this chapter applicable thereto. Any
‘other railroad corporation may connect its road therewith, at such
points or places as it may elect, and where such connections shall
be made by connecting roads, the railroad corporations owning such
roads shall build, at their joint expense, and for their joint use,
such passenger and freight depots, and other accommodations for
handling passengers and freight, as may be required for the con-
venience of the public. All railroad corporations, constructing any
tunnel under this section shall be liable to any person or corporation
for all damages which may be sustained by reason of the construc-
tion of such tunnel. Whenever it shall be necessary in construct-
ing any railroad authorized by this section through any city or
incorporated village, to alter the position or course of any sewer,
or water or gas pipes, it shall be done at the expense of the railroad
corporation under the direction of the department or corporation
having charge thereof, so as not to interfere with such work. In
all cases the uses of streets, docks and lands beneath which such
railroad is constructed, and on the route thereof and the right of
way beneath the same, for the purpose of such railroad shall be con-
sidered, and is hereby declared, a public use, consistent with and
one of the uses for which streets and docks are publicly held. No
public park or square in any city or village of this state shall be
used or occupied by any corporation for any of the purposes of this
section, and every road constructed hereunder in or through any
316 Rariroaps In Foreign Countries.

 

The Railroad Law, §§ 17, 18.

such street or public place shall be wholly under ground and con-
structed in a tunnel and not otherwise, but nothing in this section
shall operate to revive any charter or franchise heretofore granted by
or in the city of Brooklyn. This act does not authorize the construc-
tion of any bridge over or across the East or North rivers.

(Thus amended by L. 1892, ch. 676; L. 1892, ch. 702; L. 1893, ch. 316.)

A railroad proposed to be built and confined exclusively within the
limits of a city and under the surface of a street thereof is a street rail-
way within the meaning of the State Constigution, article 3, section 18.
(In re N. Y¥. Dist. R. Co., 107 N. Y., 42.) AS applied to such ‘a railroad a
provision that the determination of commissioners may be taken in lieu
of the consent of city authorities is unconstitutional. (Id.; see, also,
In re Broadway Underg’d Ry. Co., 23 Hun, 693.)

§ 17. ‘Railroads in other countries. — A railroad corpora-
tion may be formed under this chapter for the purpose of constructing,
maintaining and operating in any foreign country a railroad for pub-
lic use in the transportation of persons and property, or for the pur-
pose of maintaining and operating therein any railroad already
constructed, in whole or in part, for the like public use, and of con-
structing, maintaining and operating, in connection therewith, tele-
graph lines and lines of steamboats or sailing vessels. Any corporation
formed for the construction and operation of a railroad by stationary
power, may construct, operate and maintain a railroad in any other
state or country, if not in conflict with the laws thereof, but the
assent of the inventors or patentees of the method of propulsion used
must be first obtained in the same manner and to the same extent
as would be necessary within the United States. The term “ foreign ”
in this and the next two sections of this law shall include Porto Rico.

(Thus amended by L. 1892, ch. 676; L. 1902, ch. 225.)

For form of certificate of incorporation, see post, form No. 109.

ae last sentence, relating to Porto Rico, was added by the amendment
of 1902. A

Section 59 of.this law, requiring the consent of the railroad commission-
ers for the construction of railroads, was Pe. not intended to apply
to railroads contemplated by the foregoing section.

Such #. corporation is not liable in this State for an injury occurring
in another State. (Whitford v. Panama R. R. Co., 23 N. Y., 465; see, also,
30 Barb., 99; 126 N. Y., 10; 112 N. Y., 315; 77 N. Y., 546.)

§ 18. Additional corporate powers ofsuch road. —: The cor-
poration specified in the preceding section shall have the following
additional powers:

1. To expend money in making preliminary examinations and
surveys for its proposed railroad, telegraph lines, and lines of steam-
Ramroaps in Foreign Countrizs. 817

 

The Railroad Law, § 18.

 

boats and sailing vessels, and in acquiring from foreign countries,
nations or governments, the grants, concessions and privileges
herein authorized. ‘ k

2. To take and receive from foreign countries, nations and gov-
ernments, such grants, concessions ‘or privileges, for the construc-
tion, acquisition, maintenance and operation of railroads, telegraph
lines and vessels, as may be consistent with the purposes of the
corporation, and as may be granted and conceded to it, and to hold
the same under such restrictions and with such duties and liabili-

‘ties as may be fixed by the laws of such foreign country, nation
or government, or as may be annexed to such grants or concessions.

3. To construct, acquire, maintain and operate the lines of rail-
road, telegraph and shipping provided for by its certificate of incor-
poration, and to take and hold by purchase or by voluntary grant.
such real estate and other property in foreign countries as may be
necessary and convenient for the construction, maintenance and
accommodation of such lines, and to sell, convey, mortgage or lease
such real estate or other property; and to acquire by purchase or
otherwise any railroad or lines of telegraph constructed or in pro-
cess of construction in any foreign country, and any grants, conces-
sions, franchises, rights, privileges and immunities relating thereto,
and to issue therefor the capital stock of the company or any part
thereof at such valuation or valuations and on such terms as may be
agreed upon, and to mortgage or sell and ‘convey such railroad or
lines of telegraph constructed or in process of construction in any
foreign country, and any grants, concessions, franchises, rights,.
privileges and immunities relating thereto, or any part of its prop-
erty to any person or corporation created by this or any other state
or foreign government, subject to the laws of the country or coun-
tries where such property may be, and the power of sale hereby
granted shall be exercised only by a majority of the entire board
of directors of the corporation, with the written concurrence of the
holders of two-thirds in amount of its capital stock.

4, To take and convey persons and property on its transporta-
tion lines by the power or force of steam or of animals, or by
mechanical or other power, and receive compensation therefor sub-
ject to the laws of the place or country where the same are situated.

5. To acquire and use such real estate and other property in this
state as may be necessary in the conduct of its business, but the
value of such real estate held at any one time shall not exceed the
sum of one million dollars.

(Thus amended by L. 1897, ch. 504.)
318 RaiiRoaps oF INDIVIDUALS, ETC.

The Railroad Law, §§ 19, 20, 21.

 

§ 19. Location of principal office of such road.—Every
such corporation shall maintain its principal office within this state
and shall have during business hours, an officer or agent upon whom
service of process may be made, and shall hold in this state at least
one meeting of the stockholders in each year for the choice of direc-
tors, which shall be known as the annual meeting and be held at the
time and place fixed by the by-laws of the corporation.

(Thus amended by L. 1892, ch. 676.)

§ 20. Individual, joint-stock association, or other cor-
poration may lay down and maintain railroad tracks in
certain cases.—Any individual, joint-stovk association or corpo-
ration, engaged in any lawful business in this state, may, except
in any city of the state, lay down and maintain such railroad tracks
on or across any street or highway, not exceeding three miles in
length, as shall be necessary for the transaction of its business, and
to connect any place of business owned by them with the track of
any railroad corporation, and render such place of business more
accessible to the public, upon obtaining the written consent of the
owners of all the lands bounded on and of the local authorities
having control of that portion of the street or highway, upon which
it is proposed to construct or operate such railroad. If the consent
of such property owners cannot be obtained, the general term of
the supreme court of the department in which such railroad is to
be constructed, may upon application, appoint three commissioners,
who shall determine, after a hearing of all parties interested,
whether such railroad ought to be constructed or operated, and the
amount of damages, if any, to be paid to such property owners, and
their determination confirmed by the court may be taken in lieu
of the consent of the property owners. But no such railroad shall’
be so located, graded, built or operated as to interfere with or
obstruct the traveled part of any highway, or its use as a highway,
or the use of any street or highway intersecting the same.

§ 21. Powers of electric light and power corporations,—
Whenever all of the stockholders of any domestic electric light and
power company, incorporated under a general or special law, hav-
ing not less than five stockholders, and actually engaged in carry-
ing on business in this state, shall execute and file, in the offices
in which its original certificates of incorporation are filed, an
amended certificate of incorporation, complying in every other
xX
Powers or Exzorero Lignt Corporations. 319

, The Railroad Law, § 21,

respect than as to the number of signers and directors, who shall
not be less than five, with the provisions of the railroad law, and in
which certificate the corporate name of such corporation shall be
amended by adding before the word “company,” in its corporate
name, the words, “and railroad,” or the words, “railroad and
land,” such corporation shall have the right to build, maintain
and operate by electricity as a motive power, a railroad or rail-
roads, not exceeding twenty-five miles in length, and within that
distance from the power station, and shall also have the right to
acquire the property and franchises of a railroad company or com-
panies owning such a railroad or railroads, already constructed,
and so operated, and te maintain and operate the same, provided
that the directors of such railroad company or companies and all
of its or their stockholders shall first have assented in writing to
the transfer of the property and franchises of such railroad com-
pany or companies, to such corporation; in which event and by the
filmg of such assent of directors and stockholders in the offices
where the certificates of incorporation of the railroad company or
‘companies were required to be filed, the rights, property and fran-
hises of such railroad company or companies shall be transferred
to, and shall vest in such corporation, and such corporation so
‘acquiring such railroad or railroads shall be subject to all the pro-
visions of chapter thirty-nine of the general laws with respect to
the railroad property or properties and franchises, and shall have
-all the powers, rights and privileges conferred by said chapter
upon railroad corporations; provided that no such corporation
shall construet any railroad which is in whole or in part a street
‘surface railroad without complying with the provisions of article
four of the railroad law. Upon filing such certificate, such cor-
poration shall also have the right to acquire by gift or by volun-

‘tary purchase and sale, land not exceeding two thousand acres
along the line of, or contiguous to, said railroad, and to hold
‘improve, lease or sell same. ‘Whenever any such corporation shall
‘furnish power to any water-works corporation carrying on its busi-
ness in the county, or in a county adjoining that in which the opera-
tions of such corporation are carried on, it may acquire the shares
of the capital stock of said water-works corporation, and, if such:
corporation shall become the owner of all the stock of said water-
works corporation, it may, on executing and filing a certificate in
-aceordance with the requirements of section fifty-eight of the stock

Z
320 : Summer Roaps.

 

The Railroad Law, §§ 21, 22.

 

corporations law, become possessed of all the estate, rights, prop-
erty, privileges aoa franchises of such waterworks corporation,.
with the effect provided in said section fifty-eight. This section.
shall not confer any powers upon any corporation located in, or
authorize the construction, maintenance or operation of a railroad.
in a city of the first or second class, except in that part of any city
of the Frat class which is or may be situate in a county of less than
-one hundred thousand inhabitants, according to the last preceding
enumeration for the national census.

(Thus amended by L. 1892, ch. 676; L. 1894, ch. 648; L. 1898, ch. 170; Ly
1901, ch. 731.)

§ 21. Certain railroads need operate in summer only;.
rate of fare.— Any corporation, whose railroad is or shall be.
not longer than sixteen miles and is. or shall be m large part in-
tended for or used in summer travel for the convenience of sum-
mer sojourners, need not operate its road beyond the months’ of’
June, July, August and September, inclusive. The motive power
may be electricity. If the road be not longer than ten miles, such.
corporation may fix and collect fare for transporting each pas-
senger, together with ordinary baggage, if any, not to exceed
fifteen cents for each mile and fraction thereof.

(New, added by L. 1892, ch. 700.)

The foregoing section was enacted with the same number as the section
next preceding it. .

See section 55 of this law, which also relates to the operation of certain
roads in the summer.

§ 22. Substituted lines in cases of eminent domain.—
Where a portion of a steam surface railroad, or branch thereof,
shall be specifically authorized by statute to be taken for any other
public use, and such portion lies wholly outside of any city, any
corporation owning or operating such portion may locate, as pro-
vided in section six of-this article, and may construct and operate,.
in substitution for such portion, and with proper connections with
the former line, a new line of steam surface railroad, wholly or-
partly in the same or any adjoining county, and wholly outside
of any city, and not exceeding twenty-five miles in length, in the-
manner, with the powers and subject to the limitations and require-
ments provided in this chapter with respect to steam surface rail-
roads.

New section added by L. 1898, ch. 656.
; Unavruorizep Drsts. i 321

 

The Railroad Law, § 23.

_ § 23. Unauthorized debts and overissue of bonds.— Sec-

tion twenty-four of the stock corporation law does not apply to a
railroad corporation.

(New section, added by L. 1898, ch. 80.) -

Article 1 of this law terminates with section 23 above, and the next
article begins with section 30. The gap in section numbering between
articles was provided for so as to allow for internal enlargement of each
law by adding new provisions with new section numbers, but the legis-
lature has not paid close attention to this excellent arrangement, as is
evidenced by the numerous independent statutes in relation te railroads.
See miscellaneous railroad laws, post.

21
322 Construction, OPERATION AND MaNaGEMENT.

The Railroad Law.

ARTICLE I.

Construction, OPERATION AND MaNnaGEMENT.

SEcTiIon 30.
31.
32.
33.
34:
35.
36.
37.
38,
39.
40.
41,
42.

43,
44,
45.
46.
47.
48,
49.

50.
51.
52.
53.
54,
55.

56.
57,
58.
59.

59a.

59b.

60.

Liability of corporation to employes of contractor.

Weight of rail.

Fences, farm-crossings and cattle-guards.

Sign-boards and flagmen at crossings.

Notice of starting trains ; no preferences.

Accommodation of connecting roads.

Locomotives must stop at grade crossings.

Rates of fare.

Legislature may alter or reduce fare.

Penalty for excessive fare.

Passengers refusing to pay fare may be ejected.

Extra fare for sleeping car.

Persons employed as drivers, conductors, motormen or
gripmen.

Conductors and employes must wear badges.

Checks for baggage.

Penalties for injury to baggage.

Unclaimed freight and baggage.

Tickets and checks for connecting steamboats,

Rights and liabilities as common carriers.

Duties imposed.

. Switches.
Warning signals.

’ Guard posts.
Automatic couplers.
Automatic or other safety brake.

+ Tools in passenger cars.
7. Water.

Railroad Commissioners may approve other safeguards,

Use of stoves or furnaces prohibited.

Canada thistles to be cut.

Riding on platform ; walking along track,

Corporations may establish ferries.

Certain railroads may cease operations in winter,

Mails.

Corporations must make annual report.

When conductors and brakemen may. be policemen.:

Requisites to exercise of powers of future railroad corpo-
rations. é

Railroad commissioners may certify part of route of a
street surface railroad. Power to revoke certificates,
Street surface railroad extension.

Roads in Saratoga and Washington counties.

(Public crossings at grade to be avoided.)*

Ame wre

 

*Tn all the statntes prenared by the commissioners of statutory revision » head-note has been
. prized to each section. but the legislature in adding sections 60 to 69, both inclusive, to the

Iroad Law by L. 1897, ch. 754. neglected to follow

is practice, therefore, the author of this

work has inserted head-notes to said new sections for the purpose of symmetry and the com
venience of lawyers. ‘
Iianiwrry to Emptoyes or Contractors. 323

 

The Railroad Law, § 30.

 

SEcTion 61. (Manner of constructing new streets, highways, ete.,

across steam surface railroads.)

62, (Alteration in manner of crossing highways; hearing
before Railroad Commissioners.)

63. (Acquisition of property for new highway crossing.)

64. (Highway bridges over railroads ; maintenance therecf.)

65. (Expense of railroad and highway crossings.)

66. (Proceedings by Railroad Commissioners for alteration
of grade crossings.)

67. (Compliance with recommendations of Railroad Commis-
sioners; how, enforced.)

67a. (Expense; how paid.)

68. (Street surface railroads crossing steam railroads.)

69. (Application of sections 60-68.)

§ 30. Liability of corporation to employes of contract-
ors.—An action may be maintained against any railroad corporation
by any laborer for the amount due him from any contractor for
the construction of any part of its road, for ninety or any less num-
ber of days’ labor performed by him in constructing such road, if
within twenty days thereafter a written notice shall have been
served upon the corporation, and the action shall have been com-
menced after the expiration of ten days and within six months
after the service of such notice, which shall contain a statement of
the month and particular days upon which the labor was performed
and for which it was unpaid, the price per day, the amount due,
the name of the contractor from whom due, and the section upon
which performed, and shall be signed by the laborer or his attorney
and verified by him to the effect that of his own knowledge the
statements contained in it are true. The notice shall be served by
delivering the same to an engineer, agent or superintendent having
charge of the section of the road upon which the labor was per-
formed, personally, or by leaving it at his office or usual place of
business with some person of suitable age or discretion; and if the
corporation has no such agent, engineer or superintendent, or in
case he can not be found and has no place of business open, service
may in like manner be made on any officer or director of the
corporation. .

The words “laborer and labor” are used .in the ordinary and usual
‘sense, and imply the personal service and work of the individual designed
to be protected. One who contracts for and furnishes the labor and
services of others is not included, nor is one who contracts for and fur-
nishes a team or teams for work, whether with or without his own
‘services. (Balch v. N. ¥. & O. M. R. R. Co., 46 N. Y., 521; Cummings v.
Same, 1 Lans., 68; see, also, More v. Taylor, 42 Hun, 45.)

The term “ contractor” also includes a sub-contractor. (Kent v. N. Y.
C. BR. BR. €o., 12 N. Y¥., 628.)

 
324 Weicat or Rat; Fences, FarM-onossines, ETO.
The Railroad Law, §§ 31, 32.

 

A notice served within twenty days after the completion of the number
of days for which pay is claimed is in time. (Chapman v. U. & B. R. R.
R. Co., 4 Lans., 96.)

§ 31. Weight of rail_—The rail used in the construction or
the relaying of the track of every railroad hereafter built or relaid
in whole or in part shall be of iron or steel, weighing not less than
twenty-five pounds to the lineal yard on narrow-gauge roads, and
on afl other roads not less than fifty-six pounds to the lineal yard.
on grades of one hundred and ten feet to the mile or under, and not
less than seventy pounds to the lineal yard on grades of over one
hundred and ten feet to the mile, except for turnouts, sidings and.
switches.

§ 32. Fence8,* farm crossings and cattle-guards.—Every
railroad corporation, and any lessee or other person in possession
of its road, shall, before the lines of its road are opened for use,.
and so soon as it has acquired the right of way for its roadway erect.
and thereafter maintain fences on the sides of its road of height
and strength sufficient to prevent cattle, horses, sheep and hogs from
going upon.its road from the adjacent lands with farm crossings and
openings with gates therein at such farm crossings whenever and
wherever reasonably necessary for the use of the owners and occu-:
pants of the adjoining lands, and shall construct where not already
done, and hereafter maintain, cattle-guards at all road crossings,.

 

*Chapter 755, Laws of 1894, regulating the use of barbed wire fences,
has been repealed by Laws of 1896, chapter 524, which adds a new section
to the Town Law, the text of which is as follows, to wit:

§ 109. UsE OF BARBED WIRE IN THE CONSTRUCTION OF DIVISION FENCES.—
Barbed wire may be used in the construction of any division fence, pro--
vided, however, that the person or corporation desiring to use such mate-
rial shall first obtain from the owner of the adjoining property his written:
. consent that it may be so used. If the owner of the adjoining property
refuses to consent to the building of such a fence, it may nevertheless be
built in the following manner: The fence shall be of four strands of
wire with a sufficient bar of wood at the top ; and the size of such top bars:
and of the posts and supports of such fence, and their distances apart,
shall be such as the fence viewers of the town may prescribe. Whenever:
such fence shall become so out of repair as to be unsafe, it shall be the-
duty of the owner or owners to immediately repair the same. But any
person building such a fence without the written consent of the owner of
the adjoining property, shall be liable to all damages that may be occa-
sioned by reason of such fence. But this section shall not be so construed
as to permit railroad corporations to use barbed wire in the construction
of fences along their lines contrary to the provisions of section thirty-two-
of the railroad law.
Fences, Farm-orossines aND CaTTLE-GUARDS. 325

 

The Railroad Law, § 32.

suitable and sufficient to prevent cattle, horses, sheep and hogs from
going upon its railroad. So long as such fences are not made, or are
not in good repair, the corporation, its lessee or other person in
possession of its road, shall be liable for all damages done by their
agents or engines or cars to any-domestic animals thereon. When
made and in good repair, they shall not be liable for any such dam-
ages, unless negligently or willfully done. A sufficient post and
‘wire fence of requisite height shall:be deemed a lawful fence
within the provisions of this section, but barbed wire shall not be
used in its construction.

No railroad need be fenced, when not necessary to prevent horses,
cattle, sheep and hogs from going upon its tracks from the adjoin-
ing lands. Every adjoining land owner, whe, or whose: grantor,
has received compensation for fencing the line of land taken for a
railroad, and has agreed to build and maintain a lawful fence along’
such line, shall build and maintain such fence. If such owner, his
heir or assign shall not build such fence, or if built, shall neglect
to maintain the same during the period of thirty days after he has
been notified so to do by the railroad corporation, such corporation,
shall thereafter build and maintain such fence, and may recover of
the person neglecting to build and maintain it the expense thereof.
And when such railroad shall cross timbered or forest lands, the
company shall construct and maintain suitable and sufficient cross-
ings, whenever and wherever reasonably necessary to enable the
respective owners of said lands, to transport logs, timber and lumber
‘for manufacture or sale, or for banking on any stream, to be floated
or driven down the same. In case of any neglect or dispute the
supreme court may by mandamus or other appropriate proceedings,
compel the same, and also fix the point or location of any such
crossing.

(Thus amended by L. 1891, ch. 367 ; L. 1892, ch. 676.)

Where a railroad corporation has once constructed a proper gate at a
farm crossing, and the gate, by lapse of time, has become, to the knowl-
edge of the abutting land owner, difficult to fasten, it is a question for the
jury whether the owner should not have readjusted the fastenings to pre-
vent his horse escaping upon the track. (Magilton v. N. Y. C. & H. R. R.
R. Co., 11 App. Div., 373.)

In an action for damages against a railroad for injuries to a horse,
resulting from a failure to maintain fences, the plaintiff cannot recover
amerely upon proof that the defendant ran a train over the road, it appear-
ing that the railroad belonged to another company, and there being no
proof that the defendant was a lessee, or authorized to hold possession.
(Edwards v. Buffalo, Rochester & Pittsburg Ry. Co., 8 App. Div., 390;
Thome v. Lehigh Valley Ry. Co., 88 Hun, 141.)
326 Fences, Farm-crossines aNp CaTTLE-GUARDS.

 

The Railroad Law, § 32.

A railroad company does not maintain a fence if it knowingly permits a
barway in it to remain open for a long period. (Connolly v. Central Ver-
mont R. R. Co., 4 App. Div., 221.)

After rendition of a judgment requiring a railroad company to construct
a farm crossing it came into possession of a receiver. Held, that it was
no defense that the receiver had no means with which to comply with
the requirements of the judgment. (Peckham v. Dutchess County R. R.
Co., 81 Hun, 399; J. K. O. Sherwood, as Receiver, 145 N. Y., 385.)

A wire riven fence having a tooth edge is not a barbed wire fence.
(Stisser v. N. Y. C. & H. R. R. R. Co., 32 App. Div., 98.)

Trains may pass over a country railroad crossing at any speed, but
must give adequate signals of their approach. (Hunt v. Fitchburg R. R.
Co., 22 App. Div., 212.)

Experts cannot give opinions as to whether a wire fence was sufficient.
when-a complete description of the construction and condition of such
fence has been given upon the trial. (Green v. Hornellsville & Canisteo
Ry. Co., 24 App. Div., 434.) .

A railroad company is not required to give any warning of the approach
of its trains at a private crossing. (Burk v. D. & H. C. Co., 86 Hun, 519,
distg. Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y., 362.)

An award, in proceedings to condemn lands for railroad purposes, to
the owner of a farm crossed by the track of the railroad, does not extin-
guish the owner’s right to compel the railroad company to construct
proper crossings. (Beardsley v. Lehigh Valley Ry. Co., 142 N. Y., 173,
aff’g 62 Hun, 502.) .

The owner of lands crossed by a railroad is not confined to an action
for damages for a failure on the part of the corposation, to erect and.
maintain fences. He may enforce the performance of this duty by an
equitable action. (Jones v. Seligman, 81 N. Y., 190; Wademan v. A. & S.
R. R. Co., 51 N. Y., 568; Haynes v. B., N. Y. & P. R. R. Co., 38 Hun, 17;
Leggett v. Rome, W. & O. R. R. Co., 41 Hun, 80; Thomas v. Utica & B. R.
R. R. Co., 97 N. Y., 245; Smith v. N. Y. & O. M. R. R. Co., 63 N. Y., 58.)
Vacant lots fronting upon tracks through village streets must be fenced.
(Crawford v. N. Y. C. & H. R. R. R. Co., 18 Hun, 108.)

The defendant is not relieved because the land on both sides of its
track is occupied by tracks of other companies. (Kelver vy N.Y. OC. &
St. L. R. R. Co., 126 N. Y., 365. See, also, Buf. Stone & Cement Co. v. D.
L. & W. R. Co., 130 N. Y., 152.)

These provisions apply to a foreign corporation, even if it be a lessee.
(130 N. Y., 152, supra; Purdy v. N. Y. & N. H. R. R. Co., 61 N. ¥., 353.)

A conveyance in fee of a right of way, without a reservation, is not a
release of the obligation to erect and maintain fences. (63 N. Y., 58,
above; 51 N. Y., 568, above; Clarke v. R. L. & N. F. B. R. Co., 18 Barb.,
350.)

Companies for whose use a railroad has been built by another corpora-
tion are liable. (Tracy v. T. & B. R. R. Co., 38 N. Y., 433.) A defendant
is not relieved where the train itself was operated by another company.
(Dolan v. N. D. & C. R. R. Co., 120 N. ¥., 571.) The opening gates or
SIGNBOARDS AND FLaqGMEN. 327 -

The Railroad Law, § 33.

 

bars are for the use of the adjoining land owner. (Spinner vy. N. Y. C. &
H. R. R. R. Co., 67 N..Y., 153.) He must close the gate after using it.
(Diamond Brick Co. v. N. Y. C. & H. R. R. R. Co., 58 Hun, 396; 28 St.
Rep., 95.)

The corporation may determine the location of the crossing, which
should .be convenient and suitable. (130 N. Y., 152, above; 51 N. Y.,
568, above.)

As to cattle guards, see Bradley v. Buf., N. Y. & E. R. R. Co., 34 N. Y.,
427; Hyatt v. N. Y., L. E. & W. R. R. Co., 64 Hun, 542; 38 N. Y., supra;
Brooks v. N. Y. & E. R. R. Co., 18 Barb., 594; Brace v. N. Y. C. R. RB.
\Do., 27 N. Y., 269; Clarke v. R. L. & N. F. R. BR. Co., 18 Barb., 350. A
Virginia rail fence is a proper one. (Ferris v. Van Buskirk, 18 Barb., 397.)
As to barbed wire. (Rehler v. West. N. Y. & P. R. R. Co., 28 St. Rep.,
$11 ;8N. Y., Supp., 286.) Height of fence. (Leyden v. N. Y. C. & H. R. R.
R. Co., 55 Hun, 114.)

After fences and guards are duly made and maintained the liability for
damages ceases unless negligently or willfully done. (Boyle v. N. Y., L.
EB. & W. BR. R. Co., 39 Hun, 171; Corwin v. N. Y. & BE. BR. R. Co., 13 N. ¥,,
42; Hance v. C. & S. R. R. Co., 26 N. Y., 428; White v. U. & B. R. R.
R. Co., 15 Hun, 333; Brady v. R. & S. R. R. Co., 1 Hun, 378.) The lia-
bility extends to cattle of others than adjoining owners. (13 N. Y., 42
above.) But not to injuries which the cattle cause to themselves by stay-
ing on the track. (Knight v. N. Y., L. E. & W. R. RB. Co., 99 N. Y., 25;
18 Barb., 594, above.) This section not applicable to fences to protect
persons traveling on a highway. (Ditchett v. Spuy. Duyv. & P. M. R. R.
Co., 67 N. Y., 425; Prendegast v. N. Y. C. & H. R. R. R. Co., 58 N.
Y., 652.)

Liability for injuries when the fence is out of repair. (Hodge v. N. Y.
C. & H. R. R. R. Co., 27 Hun, 394; Murray v. N. Y. C. R. R. Co., 4 Keyes,
274; Wheeler v. B. Ry. Co., 2 T. & C., 634; Morrison v. N. Y. & N. H.
R. R. Co., 32 Barb., 568; Munch v. N. Y. ©. R. R. Co., 29 Barb., 647;
McGuire v. O. & L. C. R. R. Co., 44 St. Rep., 348; Polly v. N. Y. ©. R. R.
Co., 16 N. Y., 476; Potter v. N. Y. C. & H. R. R. R. Co., 60 Hun, 318;
Klock v. Same, 62 Hun, 291.)

The corporation is liable for injuries to passengers and employes upon
a failure to comply. (Donnegan v. Erhardt, 119 N. Y., 468; see, also,
Dolan v. N., D. & C. R. R. Co., 120 N. Y., 571; Langlois v. B., R. & P. R.
R. Co., 19:Barb., 364.) An adjoining land owner who has covenanted to
maintain fences cannot recover from the company for his own failure.
(Talmadge v. R. & S. R. BR. Co., 13 Barb., 498; Duffy v. N. Y¥. & H. R.
R. Co., 2 Hilt., 496; Tombs v. Roch. & S. R. R. Co., 18 Barb., 588; Terry
‘ve N. Y. C. RB. R. Co., 22 Barb., 574; see, also, Shepard v. N. Y. & E. R.
R. Co., 35 N. Y., 641.)

§ 33. Signboards and flagmen at crossings.— Every rail-
road corporation shall cause a sign board to be placed, well sup-
ported and constantly maintained, at every crossing where its road
is crossed by a public highway at grade. Such sign board shall be
of a shape and design to be approved by the boarc. of railroad con.-
328 SIGNBOARDS AND F'LAGMEN.

 

The Railroad Law, § 33.

 

missioners, and shall have suitable words painted thereon to warn
travelers of the existence of such grade crossing. The board of
railroad commissioners shall have power to prescribe the location
and elevation of such sign and the words of warning thereon. The
commission may dispense with the use of such sign boards at-such
crossings as they may designate in cities and villages. At any
point where a railroad crosses a street, highway, turnpike, plank-
road, or traveled way at grade, or where a steam railroad crosses
a horse railroad at grade, and the corporation owning or operating
such railroad, refuses, upon request of the local authorities, to
station a flagman or erect gates, to be opened and closed when an
engine or train passes, the supreme court or the county court, may,
upon the application of the local authorities and upon ten days’
notice to the corporation, order that a flagman be stationed at such
point, or that gates shall be erected thereat, and that a person, be
stationed to open and close them when an engine or train passes,
or may make such other order respecting the same as it deems
proper. Whenever the crossing by a railroad at grade of the
streets, highways, turnpike, plank-roads, or traveled ways of any
village or city, having a population by’'the last state or federal
enumeration of less than fifty thousand, shall be protected by gates
with persons to open and close the same, when an engine or train
passes, the local authorities of the city or village shall not impose
any limitation, less than forty miles an hour, on the rate of speed
at which such engine or train shall be run, or enforce any existing
limitation upon such rate of speed, less than forty miles an hour.

(Thus amended by L. 1892, ch. 676; L. 1901, ch. 301.)

While there is no longer any statutory requirement that railroad com-
panies shall give notice of the approach of a train to a highway crossing
by the ringing of a bell or the blowing of a whistle, yet such companies
are not absolved from the obligations to give such a warning as will afford
reasonable notice to one approaching the crossing. (Durkee v. D. & H. C.
Co., 88 Hun, 471.)

The negligence of a railway company does not relieve 4 traveler on a
highway from the exercise of care in looking and listening before crossing
the tracks in order to escape the danger of moving trains. (Miller v. N.
Y. C. & H.R. R. R. Co., 82 Hun, 164.)

Provision not unconstitutional as a delegation of legislative power to
the judges. (People v. L. I. R. R. Co., 58 Hun, 412; aff’d, 134 N. Y., 506.)
Before negligence to erect gates can be imputed, an order must be
obtained. (Daniels v. Staten I. R. T. Co., 125 N. Y., 407.)

For other cases construing section, see Kane v. N. Y., N. H. & H. R. R.
Co., 132 N. Y., 160; Rodrian v. Same, 125 N. Y., 526; Oldenburg v. N. Y.
C..& H. R. R. R. Co., 124 N. Y., 414; Palmer v. Same, 112 N. Y., 234;
Notice or Srarting or Trains. 329

 

The Railroad Law, § 34.

 

Haywood v. Same, 35 St. Rep., 145; aff’d, 128 N. Y., 596; Glushing v.
Sharp, 96 N. Y., 676.

»
See, also, Edgerley v. L. I. R. R. Co., 46 App. Div., 284; Henn v. L.
I. R. R. Co., 51 App. Div., 292.

§ 84. Notice of starting trains; no preferences.— Every
railroad corporation shall start and run its cars for the transporta-
tion of passengers and property at regular times, to be fixed by
public notice, and shall furnish sufficient accommodations for the
transportation of all passengers and property which shall be offered
for transportation at the place of starting, within a reasonable time
previously thereto, and at the junctions of other railroads, and at.
the usual stopping places established for receiving and discharging
‘way passengers and freight for that train; and shall take, transport
and discharge such passengers and property at, from and to, such
places, on the due payment of the fare or freight legally authorized.
therefor. No station established by any railroad corporation for
the reception or delivery of passengers or property, or both, shall
‘be discontinued without the consent of the board of railroad com-
missioners first had and obtained. No preference for the transac-
tion of the business of a common carrier upon its cars, or in its
‘depots or buildings, or upon its grounds, shall be granted by any
railroad corporation to any one of two or more persons, associations
or corporations competing in the same business, or in the business
of transporting property for themselves or others. Any such sta-
tion in an incorporated village shall have the same name as the
village; if any road shall have more than one such station in any
such village the station nearest the geographical center thereof
shall have such name.

(Thus amended by L. 1892, ch. 676.) :

The railroad commissioners have no power to enforce or set aside con-
tracts, but may receive in evidence, in a contested proceeding for discon- -
tinuance of a station, a contract between citizens and the railroad com-
“pany under which subscriptions for a station were paid in consideration of
4 company’s stopping its trains there. (People ex rel. Loughran v. Rail-
road Commissioners, 158 N. Y., 421, aff’g 32 App. Div., 158.)

Proceedings of the railroad commissioners in consenting to the discon-
+tinuance of a station, are subject to review by certiorari. (People ex rel.
Loughran v. Railroad Commissioners, 158 N. Y., 421, aff’g 32 App. Div.,
158.)

Where a passenger is carried past the station and the train is stopped
on a steep embankment and the passenger, in alighting, slides down the
embankment and is injured, a proper case is presented for a jury. (Minor
-v. Lehigh Valley R. R. Co., 21 App. Div., 307.) :

The provisions of this section do not authorize a rival steamboat com-
330 Connectine Roaps.

 

The Railroad Law, § 35.

 

pany to occupy the terminal facilities of a railroad company upon the
same terms as those enjoyed by another steamboat company, with which.
the railroad company has contractual relations. (Alexandria Bay Steam-
boat Co. v. N. Y. C..& H. R. R. R. Co., 18 App. Div., 527.)

A contract, by Which for a valuable consideration a railroad company
gives to a hackman the exclusive privilege of carrying away from its.
station incoming passengers, is valid. (N. Y. C. & H. R. R. R. Co. v. War-
ren, 31 Misc., 571.)

It is the duty of railroads to have announced on board a train its arrival
at a station and to keep it at a station until passengers have sufficient.
time to alight. (Mahar v. N. Y. C. & H. R. R. R. Co., 5 App. Div., 22.)

A railroad company receiving perishable property for transportation is.
bound to forward it immediately to its destination. (Cartwright v. Rome,.
W.& O. R. R. Co., 85 Hun, 517.)

Assuming that the business of a common hackman comes under the
general definition of a common carrier, it does not come within the pro-
tection of this section. (Brown v. N. Y. C. & H. R. R. R. Co., 75 Hun, 355.)
A contract between a railroad company and a coach company whereby
the latter, for a valuable consideration, was given the exclusive right to
have agents upon trains of the former was not against public policy. (Id.)

Neglect to run trains at regular intervals for five days not sufficient to
forfeit corporate rights. Under Code of Civil Procedure, section 1785,
non-user for a year is mecessary. (People v. Atl. Ave. R. R. Co., 125 N.
Y., 513; People v. B’dway R. R. Co. of Brooklyn, 126 N. Y., 29.)

A company may be compelled by mandamus to perform its duty as a
common carrier. (People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543.)
But damages for a wrongful refusal to receive and transport goods are
recoverable by an action at law. (People ex rel. Ohlen v. N. Y., L. E. &
W. R. R. Co., 22 Hun, 533; People ex rel. Walker v. Babcock, 16 Hun, 313.)

As to reasonable stops at stations, see Flanagan v. N. Y., N. H. & H.-
R. R. Co., 8 N. Y. Supp., 744, 29 St. Rep., 543; aff’d, 125 N. Y¥., 773; Me-
Donald v. Long Isl. R. R. Co., 116 N. Y., 546; Hickenbottom v. D., L.
& W. R. R. Co., 122 N. Y., 312; Paulitsch v. N. Y. C. & H. R. R. R. Co,
102 N. Y., 280.

See, also, Tierney v. N. Y. C. &H. R. R. R. Co., 76 N. Y., 305; Wibert v.
N. Y. & E. R. R. Co., 12 N. Y., 245; Barney v. Oyster Bay, etc., Co., 67 N.
Y., 301; Cary v. C. & T. R. R. Co., 29 Barb., 57; Bissell v. N. Y. C BR. R.
Co., 25 N. Y., 442. e

-§ 35. Accommodation of connecting roads. —Every rail-
road corporation whose road, at or near the same place, connects.
with or is intersected by two or more railroads competing for its
business, shall fairly and impartially afford to each of such connect-
ing or intersecting roads equal terms of accommodation, privileges.
and facilities in the transportation of cars, passengers, baggage and.
freight over and upon its roads, and over and upon their roads, and
equal facilities in the interchange and use of passenger, baggage,
freight and other cars required to accommodate the business of each
GrapE CRrossiInGs. 3831

 

The Railroad Law, § 36.

road, and in furnishing passage tickets to passengers who may
desire to make a continuous trip over any part of its roads and either
of such connecting roads. The board of railroad, commissioners
may, upon application of the corporation owning or operating either,
of the connecting or intersecting roads, and upon fourteen days’
notice to the corporation owning or operating the other road, pre-
scribe such regulations as will secure, in their judgment, the enjoy-
ment of equal privileges, accommodations and facilities to such con-
necting or intersecting roads as may be required to accommodate
the business of each road, and the terms and conditions upon which
the same shall be afforded to each road. The decision of the com-
missioners shall be binding on the parties for two years, and the
supreme court shall have power to compel the performance thereof
by attachment, mandamus or otherwise.

(See 29 Barb., 36-57.) ,

‘See section 12 of this law.

Three railroads extending through a village, whose rights of way are
contiguous for a considerable distance, are intersecting or connecting
roads within the meaning of sectons 4, 12 and 35 of this act, as the pro-
visions of these sections are not exclusively applicable to cases where
the roads cross or intersect each other, it being the intention of the
statute to embrace roads whose lines are contiguous or so near each '
other in villages and cities, that the public interests require that the
roads should grant facilities for the interchange of cars, freight and
passengers. (N. Y., L. & W. R. R. Co. v. Erie R. R. Co., 31 App. Div., $78.)

§ 36. Locomotives must stop at grade crossings. — All}
trains and locomotives on railroads crossing each other at grade
shall come to a full stop before crossing, not less than two hun-
dred or more than eight hundred feet from the crossing, and shall
then cross only when the way is clear and upon a signal from a
watchman stationed at the crossing. If the corporations cannot
agree as to the expense of the watchman, it shall be determined
by the supreme court, upon motion thereto by either of them. If
the corporations disagree as to the precedence of trains, the board
of railroad commissioners may, after hearing, upon the applica-
tion of either corporation, prescribe rules in relation thereto. The
full stop and crossing on signal may be discontinued if the board
‘of railroad commissioners shall decide it to be impracticable, or i,
with the approval of the commissioners, an interlocking switch and
signal apparatus is adopted and put in operation as* such a cross-
ing. The full stop and crossing on signal shall not be required in

 

* So in the original.
332 Rates or Fare.

 

The Railroad Law, § 37.

 

depot yards, or the approaches thereto, if the crossing roads are
under lease or subject to the same management or control in the
use of tracks. An éngineer, violating the foregoing provisions of
this section, or any such rule of the railroad commissioners shall
be liable to a penalty of one hundred dollars; and any corporation
or person operating the railroad, violating any of such provisions
or rules shall be liable to a penalty of five hundred dollars. The
board of railroad commissioners may, whenever in its judgment
the public safety requires the erection of interlocking switch and
signal devices at points where steam and street surface railroads
intersect at grade, direct the erection of such devices and appor-
tion the expense of construction, operation and maintenance
thereof between the companies affected thereby. No railroad cor-
poration, or any officer, agent or employe thereof, shall stop its
cars, horses, or locomotives upon a grade crossing of a railroad of
another corporation, for the purpose of receiving or delivering pas-
sengers or freight, or other purpose, and any person or corpora-
tion violating this provision, shall be liable to a penalty of two
hundred and fifty dollars.
(Thus amended by L. 1898, ch. 466.)

On the trial of an action for damages for personal injuries when it is
shown that the injury was caused by the failure of the railroad company
to comply with section 36, requiring trains to stop at grade crossings, if
no negligence is shown to have existed on the part of the plaintiff, it will
be assumed that he was free from contributory negligence. (Rowe v.
N. ¥. OC. & H. R. R. R. Co., 82 Hun, 153.) ,

§ 37. Rates’ of fare.— Every railway corporation may fix
and collect the following rates of fare as compensation to be paid
for transporting any passenger and his baggage, not exceeding one
hundred and fifty pounds in weight, for each mile or fraction of a
mile.

1. Where the motive power is rope or cable, propelled by
stationary power, five cents, with right to a minimum fare of ten
cents; but if the railroad is less than two miles in length, and over-
comes an elevation of five hundred feet or more to the mile, five
cents for each one hundred feet of elevation so overcome, and the
same rates of fare if the motive power is locomotives, furnished
with cogs working into cogs on the railway, and the length of road
does not exceed four miles.

2. Ifa road, not incorporated prior to May 15, 1879, and not
located in the counties of New York and Kings, or within the limits
of any incorporated city, and not more than twenty-five miles in
Rates oF Fare. 333.
The Railroad Law, § 37.

 

length, five cents; if over twenty-five and not more than forty miles,.
four cents; and if over forty miles, three cents. . Where by the lay-
ing down of a third rail upon a railroad of the ordinary gauge, a
narrow-gauge track is created and used for the transportation of
- passengers, and the length of road does not exceed six miles, includ-
-ing any connecting road of the same gauge, such railroad, for the
purpose of fare, shall be deemed a narrow gauge road.

3. If its- railroad overcomes an elevation of two hundred feet.
to the mile, for at least two consecutive miles, and does not exceed
twenty miles in length, ten cents; if it overcomes an elevation
exceeding three hundred feet to the mile, within a distance of two
miles, five cents for each one hundred feet of elevation; and where
it overcomes an elevation of more than one thousand feet, within
a distance of two miles, seven cents for each one hundred feet of
elevation in a mile.

4, If the line of its road does not exceed fifteen miles in length;
and does not enter or traverse the limits of any incorporated city,
and the distance traveled thereon by the passenger does not exceed
one mile, five cents.

5. In all other cases three cents for every such mile or fraction
thereof, with a right to a minimum single fare of not less than
five cents.

This chapter shall not be construed to allow any rate of fare for
way passengers greater than two cents per mile to be charged or
taken over the track or tracks of the railroad known as the New
York Central Railroad Company, and the rate of fare for way pas-
sengers over the track or tracks of such company shall continue
to be two cents. per mile and no more, wherever it is restricted to-
that rate of fare,. nor shall any consolidated railroad corporation
charge a higher rate of fare for way passengers over the track or
tracks of the consolidated line than was allowed by law to be
charged by each existing corporation thereon previously to such
consolidation.

(Thus amended by L. 1892, ch. 676.)

A special law authorizing a railroad company to charge fare at the rate.
of four cents per mile is not affected by this section. (Parker v. Elmira,
Cc. & N. RB. R. Co., 165 N. Y., 274, aff’g 27 App. Div., 383.)

The right of a tailroad to charge fare at a specified rate, secured to it.
by special act, 1s a privilege or franchise in the nature of property, alien-
able ur transferable by mortgage, and not lost by a transfer of the road.
(Parker v. Elmira, C.&N.E. R. Co., 165 N. Y., 274, aff’g 27 App. Div., 383.
See, also, Dillon v. Erie R. R. Co., 19 Misc., 116; Johnson v. Hudson R..
R. R. Co., 49 N. Y., 455.)

x

x
334. Fare; REDUCTION OF.

 

The Railroad Law, § 38.

 

§ 38. Legislature may alter or reduce fare.— The
legislature may, when any such railroad shall be opened for use,
from time to time, alter or reduce the rate of freight, fare or other
profits upon such road; but the same shall not, without the con-
sent of the corporation, be so reduced as to produce with such
profits less than ten per centum per annum on the capital actually
expended; nor unless on an examination of the amounts received
and expended, to be made by the board of railroad commissioners
they shall ascertain that the net income derived by the corporation
fzom all sources, for the year then last past, shall have exceeded

 

The provisions of section 37, supra, have been modified by an act enti-
tled “An act in relation to the issue of mileage books by railroad corpora-
tions,” which reads as follows, to-wit:

SEcTION 1. Every railroad corporation operating a railroad in this state,
the line or lines of which are more than one hundred miles in length,
4nd which is authorized by law to charge a maximum fare of more th
two cents per mile, and not more than three cents per mile, and which
does charge a maximum fare of more than two cents per mile, shall issue
mnileage books having either five hundred or one thousand coupons at-
tached thereto, entitling the holder thereof, upon complying with the
conditions hereof, to travel either five hundred or one thousand miles on
the line or lines of such railroad, for which the corporation may charge
a sum not.to exceed two cents per mile. Such mileage books shall be
kept for sale by such corporation at every ticket office of such corporation
in an incorporated village or city, and any of such books shall be issued
immediately upon application therefor. Upon presentation of such mile-
age book to a conductor on any train on any line of railroad owned or
operated by said railroad corporation, the holder thereof, or any member
of his family or firm, or any salesman of his firm, shall be entitled to
travel for a number of miles equal to the number of coupons detached
by such conductor. Such mileage book shall entitle the holder thereof to
the same rights and privileges in respect to the transportation of person
and property to which the highest-class ticket issued by such corporation
would entitle him. Such mileage books shall be good until all coupons
attached thereto have been used. Any railroad corporation which shall
refuse to issue a mileage book, as provided by this section, or in violation
hereof, to accept such mileage book for transportation, shall forfeit fifty
dollars, to be recovered by the party.to whom such refusal is made; but
no action can be maintained therefor unless commenced within one year
after the cause of action accrues.

(L. 1895, ch. 1027, as amended by L. 1896, ch. 835, and L. 1897, ch. 484;
L. 1898, ch. 577.) :

This act is unconstitutional as to corporations existing at the time of
its enactment, since the statute is an illegal invasion of the property
rights of such corporations. (Beardsley v. N. Y., L. E. & W. R. R. Co.,
162 N. Y., 230, revsg. 15 App. Div., 251; Lake Shore & M. S. Ry.
Fart; Repuction or. 335
The Railroad Law, § 38.

an annual income of ten per centum upon the capital of the corpo-
ration actually expended. No person shall issue or sell, or offer to
sell any passage ticket or instrument giving or purporting to give
any right, either absolute or upon any condition or contingency
to a passage or conveyance upon any vessel or railway train, or
for a berth or stateroom in any vessel unless he is an authorized
agent of the owners or consignees of such vessel or of the com-
pany running such trains, excepting as allowed by sections six hun-
dred and twenty-two and six hundred and twenty-three of the
penal code; and no person is deemed an authorized agent of such
owners, consignees or company unless he has received a certificate
of authority in writing therefor, specifying the name of the com-
pany, line, vessel or railway for which he is authorized to act as
agent, and the city, town or village, together with the street and
street number in which his office is kept for the sale of tickets; and
no general passenger agent or other officer of a common carrier
whose duty it may be to supply tickets to the agents of said com-
mon carrier for sale to the public shall supply tickets for sale to
any persons other than such regularly authorized agents or per-
sons specified in sections six hundred and twenty-two and six hun-
dred and twenty-three of the penal code.

(Thus amended by LE. 1901, ch. 639.)

See, also, Penal Code, §§ 615, 616, 617, 626, post.

The provisions of the Penal Code, sections 615, 616, which prohibit and
subject to punishment the selling of passage tickets, by any person ex-
cept common carriers and their specially authorized agents, are uncon-
stitutional in so far as they undertake to prohibit citizens of the State
from engaging in the business of brokerage in passage tickets. (People
ex rel. Tyroler v. Warden, etc., 157 N. Y., 116, revsg. 26 App. Div., 228:)

The foregoing section, prohibiting the sale of railroad tickets by any
person except authorized agents, is substantially the same in this par-

 

Co. v. Smith, 173 Us S., 684.) This statute is, however, constitu-
tional as to railroad corporations formed subsequent to its en-
actment. (Purdy v. Erie R. R. Co. 162 N. Y., 42, aff’g 33 App.
Div., 643.) The amendment of 1896, ch. 835, did not increase the bur-
-dens of railroad corporations, and hence the amendment is constitutional
in all cases where the original act would be upheld. (Id.)

Statutes relative to mileage books, when limited to railroad transporta-
tion wholly within the state, are a valid exercise of the power of the
‘state and are not regulations of interstate commerce. (Purdy v. Erie R.
R. Co., 162 N. Y., 42, aff’g 33 App. Div., 643.)

See, also, Trolan v. N. Y. C. & H. R. R. R. Co., 31 App. Div., 320; Wat-
son v. N. Y., O. & W. Ry. Co., 24 Misc., 628; Corcoran v. N. Y. C. & H. R.
R. R. Co., 25 App. Div.. 479.)
336 Farr; Excessive; RerusaL ro Pay.

 

The Railroad Law, §§ 39, 40.

 

ticular as sections 615 and 616 of the Penal Code, and therefore a convic--
tion under this section cannot be sustained. (Weil v. Hagan, 35 Misc.,.
155.) :

A ticket issued by a railroad company as a family ticket cannot be-
used by a neighbor under the claim that she is a visitor, even though the
ticket permits of its use by visitors of the family. (Odell v. N. Y. C. &
H. R. R. R. Co., 18 App. Div., 12.) See Buffalo East Side R. R. Co. v.
Buffalo Street R. R. Co., 111 N. Y., 132. ‘

§ 39. Penalty for excessive fare — Any railroad corpora-
tion, which shall ask or receive more than the lawful rate of fare
unless such overcharge was made through inadvertence or mis-
take, not amounting to gross negligence, shall forfeit fifty dollars,
to be recovered with the excess so received by the party paying the:
same; but no action can be maintained therefor, unless com-
menced within one year after the cause of action accrued.

The provisions that any railroad corporation, which shall ask or receive:
more than the lawful rate of fare, shall forfeit fifty dollars, are penal
in their nature and are not extended to cases which were not within.
the legislative intent. (Stewart v. Metropolitan St. Ry. Co., 20 Misc., 605.)

Only one penalty of fifty dollars can be recovered for all acts com-
mitted prior to the commencement of the action. (Fisher v. N. Y. C. &
H. R. R. R. Co., 46 N. Y., 644; for other cases under this section, see 49
N. Y., 455; 30 N. Y., 505; 26 N. Y., 523; 49 Barb., 330.)

A recovery may be had by one paying excessive’ fare while riding, sim-
ply for the purpose of obtaining the penalty. (Fisher v. N. Y. C. & H. R.
R. R. Co., 46 N. Y., 645.) The penalty is incurred if a condu¢ton exacts a
greater fare than is allowed by law, because the passenger had no ticket,
unless its ticket office were open at the time of starting, though at mid--
night. (Nellis v. N. Y. C. R. R. Co., 30 N. Y., 505; Chase v. Same, 26 N.
Y., 523; Porter v. Same, 34 Barb., 353.) An extra fare is permissible on a
spur built on land owned by the company and used only during races.
(Palm v. N. Y., N. H. & H. R. R. Co., 42 St. Rep., 219, 17 N. Y. Supp., 471.):

§ 40. Passenger refusing to pay fare may be ejected.
— If any passenger shall refuse to pay his fare the conductor of
the train, and the servants of the corporation, may put him and his
baggage out of the cars, using no unnecessary force, on stopping”
the train, at any usual stopping place, or near any dwelling house,.
as the conductor may elect.

See Penal Code, sec. 223, subd. 5.

A passenger, who, through the mistake of a station agent, ‘boards 4
train which is not scheduled to stop at the place indicated by his ticket,
may be ordered to leave the train at an intermediate stopping place and
Farr; Rerusau to Pay. 3387

 

The Railroad Law, § 40.

 

the company does not thereby render itself liable to him as for a tortious
ejection. (Miller v. King, as Receiver of N. Y., L. B. & W. R. R. Co., 21
App. Div., 192.) A corporation is liable to him for breach of its contract
to carry him to his destination, and his recovery is not necessarily limited
to nominal damages. (Id.)

Where a commuter mutilates his monthly railroad ticket to such an
extent that a collector connected with the railroad inadvertently punches
more trips than have actually been made, such commuter, where all the
trips have apparently been used and he is ejected from the company’s
premises, is not entitled to any recovery against the railroad for an assault
or anything except the price of the ticket which he had to buy. (Henly
v. D, L. & W. R. R. Co., 28 Mise., 499, aft’g 27 Misc., 811.)

A common carrier is bound by the unauthorized act of a conductor in
improperly issuing stopover tickets. (Ray v. Cortland & Homer Trac-
tion Co., 19 App. Div., 530.)

A railroad company has a right to refuse to allow a person, who is
without a ticket, and who is so intoxicated as to be helpless, to enter
its passenger car. (Freedon v. N. Y. C. & H. R. R. R. Co., 24 App. Div.,
306.)

Upon the ejection of a person from a car it is not essential that he
should have been violently assaulted to warrant a recovery. (Miller v.
.King, as Receiver of N. Y., L. E. & W. R. R. Co., 84 Hun, 308.)

A rule of a street car company in a large city, requiring its conductors
to furnish change to passengers to the amount of two dollars, is reason-
able; and a tender, by a passenger, of five dollars to be changed for a five-
cent fare is unreasonable and need not be accepted. (Barker v. Central
Park, North & East R. R. Co., 151 N. Y., 237.)

The fact that the conductor of the first train took up the wrong coupon
of an excursion ticket does nut render the carrier liable for a refusal by
the conductor of the return train to accept the other coupon and his ejec-
tion of the passenger unless the latter started on the return trip in ignor-
ance of the other conductor’s mistake and such mistake could not have
been discovered by the use of ordinary diligence. (Wiggins v. King, as
Receiver, 91 Hun, 340.)

The fact that a person is a t7espasser upon a street car does not law-
fully expose him to the use of excessive force or means of ejecting him
which are necessarily menacing to his life and limb. (Barber v. Broad-
way & Seventh Ave. R. R. Co., 10 Misc., 109.)

While it is the duty of a street car conductor to keep the car free of
trespassers, and he has the right to put one off, he must do so in a proper
manner. (Ansteth v. Buffalo Ry. Co., 9 Misc., 419.)

It is a general rule that a carrier of passengers is answerable for all
the consequences which may result to a passenger from the willful mis-
conduct or negligence of employes, and where a railroad company has”
undertaken, for a consideration paid, to carry a person to his destination,
such person has the right of passage, and as between him and such com-
pany he is at liberty co refuse to repay his fare and to insist upon having
his continuous passage. (Muckle v. Roch. Ry. Co. 79 Hun, 32, ard
numerous cases therein cited.)

22
338 Fare; Rerusat To Pay.

 

The Railroad Law, § 40.

 

Where, in consequence of the refusal of a passenger to pay his fare,
the train is stopped for the sole purpose of putting him off, he is not
entitled to insist on continuing his trip on paying the fare, but may be
removed from the train; but where the train stops' at a regular stopping
place and the passenger, before being ejected, or others in his behalf,
offer to pay the full fare, it is the duty of the conductor to accept it, and
if he refuses and ejects the passenger the company is liable. (O’Brien v.
N. ¥. C. & H. R. R. R. Co., 80 N. Y., 236. See, also, 35 Hun, 313; 14 Barb.,.
590; 31 Barb., 558.)

A passenger for a way station who boards an express train not stop-
ping at such station, may be ejected upon refusing to pay fare to the next
regular stopping place. (Fink v. A. & S. R. R. Co., 4 Lans., 147.) The
passenger must produce a ticket or pay fare although another conductor
has wrongfully taken up his ticket. (Townsend v. N. Y. C. & H. R. R.
R. Co., 56 N. Y., 295.) There is no question for the jury when a passenger
was ejected six rods from a dwelling-house for non-payment of fare.
When the question whether or not a dwelling-house is “near” should be
submitted to the jury. (Loomis v. Jewett, 35 Hur, 313; Johnson v. N. Y.,
Q. & W. Ry. Co., 14 W. D., 495.) Payment of fare to a ticket agent pre

fous to entering the cars does not excuse non-production of a ticket
(Weaver v. Rome, W. & O. R. R. Co., 3 T. & C., 270.) A passenger having,
a ticket “ good for this date only’’ may be ejected upon refusing to pay
fare. (Elmore v. Sands, 54 N. Y., 512; Gale v. D., L. & W. R. R. Co, 7
Hun, 670; Boice v. H. R. R. R. Co., 61 Barb., 611; Barker v. Coffin, 31
Barb., 556. See, also, Hill v. S., B. & N. Y. R. R. Co., 63 N. Y., 101; Beebe
v. Ayres, 28 Barb., 275; Eliott v. N. Y. C. & H. R. R. R. Co., 53 Hun, 78.)
Tickets must be produced or surrendered when required by the conductor.
(Hibbard v. N. Y. & E. R. R. Co., 15 N. Y., 455; N. R. R. Co. v. Page, 22
Barb., 130.)

The company may limit the trains on which a ticket shall be used.
(Nolan v. N. Y., N. H. & H. R. R. Co., 41 N. Y. Super. (J. & S.), 541. But
see Martin v. N. Y. C. & H. R. R. R. Co., 1 St. Rep., 738.) It may also
prescribe the route. (Bennett v. Same, 69 N. Y., 594; Adwin v. Same, 60
Barb., 590.) A ticket “ good this trip only ” is not limited to any particular
day or train. (Pier v. Finch, 24 Barb., 514.) A ticket without limitation
as to continuity of trip does not give the holder a right to leave the train
and finish his journey on another. (Hamilton v. N. Y. C. R. R. Co., 51 N.
Y¥., 100; Kelsey v. M. C. R. R. Co., 28 Hun, 460; Denny v. N. Y. C. & H.
Rk. R. R. Co., 5 Daly, 50; Terry v. F., N. S. & C. R. R. Co., 13 Hun, 359;
Ward v..N. Y. C. & H. R. R. R. Co., 56 Hun, 268.) A passenger may stop
over on the conductor’s assurance. (Tarbell v. N. ©. Ry. Co., 24 Hun,
51.) A ticket for a continuous trip, within a time specified, may be used
if the journey begins before the expiration of the time. (Auerbach v. N.
Y. C. & H.R. R. R. Co., 89 N. Y., 281. See, also, Wentz v. Erie R. R. Co,
3 Hun, 241.) Where a train is stopped solely to eject a passenger he is
not entitled to continue his trip on offering to pay fare. (O’Brien v. N. Y.
c. & H. R. R. R. Co., 80 N. Y., 236; Hibbard v. N. Y. & E. R. R. Co., 15
N. Y., 455. See, also, Guy v. N. Y., O. & W. Ry. Co., 30 Hun, 399; Nelson
SLEEPING AND Partor Cars. 339

 

The Railroad Law, § 41.

 

v. L. Isl. R. R. Co., 7 Hun, 140.) But if the stop is at a regular station,
gee same cases; also, Pease v. D., L. & W. R. R. Co,, 101 N. Y., 367. A
passenger lawfully on a train may protect himself against removal.
(Sanford v. Highth Ave. R. R. Co., 23 N. Y,, 343; English v. D. & H. C.
Co., 66 N. Y., 454.) A trespasser must not be removed in a reckless and
illegal manner. (Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N. Y., 25, See
Peck v. Same, 70 N. Y., 587; Rounds v. D., L. & W. R. R. Co., 64 N. Y.,
129; Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; Bartlett v. N. Y.
& 8S. B. F. & S. T. Co., 57 Super. Ct., 348.) When all the seats in the ordi-
nary cars are occupied, a passenger is justified in using a drawing-room
seat until another is provided. (Thorpe v. N. Y. C. & H. R. R. R. Co., 76
N. Y., 402.) See, also, Yates v. N. ¥. C. & H. R. R. R. Co., 67 N. Y., 100;
Townsend v. Same, 56 N. Y., 295; Hamilton v. Third Ave. R. R. Co., 53
N. ¥., 25; Fink v. A. & S. R. R. Co., 4 Lans., 147; Barker v. N. Y. C.
R. R. Co., 24 N. Y., 599,

§ 41. Sleeping and parlor cars.— Any railroad corpora-
tion may contract with any person, association or corporation for
the hauling by the special or regular trains of said railroad corpo-
ration, the parlor, drawing-room or sleeping car or cars of such
person, association or corporation, in which extra accommodations
shall be furnished, for which said person, association or corpora-
tion furnishing such parlor, drawing-room or sleeping car or cars,
may charge for the carriage and transportation of persons and
property therein, a reasonable compensation for such extra accom-
modation, in addition to the fare and charges now allowed by law
for the carriage and transportation of passengers and property in
the ordinary cars of said railroad corporation. But said railroad
‘corporation so contracting shall be liable in the same way and to
the same extent as if the said car or cars were owned by it, and
shall furnish sufficient ordinary cars for the reasonable accommo-
dation of the traveling public.

(Thus amended by L. 1892, ch. 676.)

For provisions of the Tax Law relative to licenses for the sale of liquors
‘or cars, see Tax Law provisions, post.

A distinction exists betwecn the degree of responsibility resting upon
a steamboat company for the personal effects of a passenger occupying a
stateroom, and that resting upon a railroad company in respect to a pas-
senger occupying a berth in a sleeping car. (Adams vy. New Jersey Steam-
boat Co., 151 N. ¥., 163, aff’g 9 Misc., 25.)

A verdict of seven hundred and fifty dollars is not excessive in the case
of a sleeping car passenger, who after paying for his berth, was excluded
therefrom and compelled to sit up during a cold night in a day coach,
because the company by mistake bad sold the same berth to another
person. (Braun v. Wagner Palace Car Co., 32 Misc., 243.)
340 Drivers anp ConpbucToRS.
The Railroad Law, § 42.

A sleeping car company is not an insurer of the effects of passengers,
but is bound to maintain a reasonable watch during the night while the
passenger is asleep or is using the necessary conveniences of the car,
and must so manage the car as not to expose unreasonably the prop-
erty of the passenger to unusual risk or loss by thieves or otherwise.
(Williams v. Wagner Palace Car Co., 27 Misc., 508, mod’g and aff’g 22
Misc., 513.)

The measure of liability is the same as that of a carrier for the loss
of a passenger’s baggage and, while the latter may recover the reason-
able amount of the expenses of his trip, he cannot recover for a sum of
money which he was carrying separately in a fob-pocket for deposit in
a bank when he reached his destination. (Williams v. Wagner Palace Car
Co., 27 Misc., 508, mod’g and aff’g 22 Misc., 513.)

While the law does not make a sleeping car company the insurer of
the effects of the occupants of its berths, it does not absolve it from
all liability. But the ground of this liability rests simply and solely
in negligence. (Carpenter v. N..Y., N. H. & H. R. R. Co., 124 N. Y., 53;
Sessions v. N. Y., L. E. & W. R. R. Co., 78 Hun, 541; Pullman Palace Car
Co. v. Gardner, 3 Pennyp., 78; Dawley v. Wagner Palace Car Co., 16S
Mass., 315.)

Right of passenger to take a drawing-room seat until a seat in the
ordinary car is vacated. (Thorpe v. N. Y. C. & H. R. R. R. Co., 76 N.
Y., 402; De Long v. D., L. & W. R. R. Co., 37 Hun, 282.) Purchase of a
drawing-room seat ticket by the holder of a free pass does make the
company liable for injuries. (Ulrich v. N. Y. C. & H. R. R. R. Co., 108 N.
Y., 80.) Servants in drawing-room cars to be regarded as employes of the
railroad company. (76 N. Y., 402, supra; Palmieri v. Man. Ry. Co., 133 N.
Y., 261; Dwinelle v. N. ¥. C. & H. R. R. R. Co., 120 N. Y., 117.) Loss of
baggage, money and parcels in such cars. (Welch vy. Pullman P. ©. Co.,
1 Sheld., 457, 16 Abb. Pr., N. S., 352; Tracy v. Same, 67 How., 154; Car-
penter v. N. Y., N. H. & H. R. R. Co., 124 N. Y., 53, and cases there cited.)

A person who is a passenger on a sleeping car has a right to expect to.
find the conveniences which are furnished by such cars and for which he
has paid. (Piper v. N. Y. C. & H. R. R. R. Co., 76 Hun, 44.)

§ 42. Persons employed as drivers, conductors, motor-
men or gripmen.— Any railroad corporation may employ any
inhabitant of the State, of the age of twenty-one years, not addicted
to the use of intoxicating liquors, as a car driver, conductor, motor-
man or gripman, or in any other capacity, if fit and competent
therefor. All applicants for positions as motormen or gripmen on
any street surface railroad in this State shall be subjected to a
thorough examination by the officers of the corporation as to their
habits, physical ability and intelligence. If this examination is
satisfactory, the applicant shall be placed in the shop or power
house where he can be made familiar with the power and machinery
Actions ror NEGLIGENCE. 341

Ra

The Railroad Law, § 42-a.

 

he is about to control. He shall then be placed on a car with an
. instructor, and when the latter is satisfied as to the applicant’s capa-
bility for the position of motorman or gripman, he shall so certify
to the officers of the company, and, if appointed, the applicant shall
first serve on the lines of least travel. Any violation of the pro-
visions of this section shall be a misdemeanor.

(Thus amended by L. 1895, ch. 513.)

Persons unable to read not to act as engineer. (Penal Code, § 418.)
Intoxication while on duty a misdemeanor. (Penal Code, § 420.) Hours
of labor. (Labor Law, §§ 5, 7.) Regulation of payment of wages.
(Labor Law, §§ 9, 10.)

§ 42-a, Actions for negligence.—In all actions against a rail-
road corporation, foreign or domestic, doing business in this state,
or against a receiver thereof, for personal injury to, or death result-
ing from personal injury of any person, while in the employment
of such corporation, or receiver, arising from the negligence of
such corporation or receiver or of any of its or his officers or
employees, every employee, or his legal representatives, shall have
the same rights and remedies for an injury, or for death, suffered
by him, from the act or omission of such corporation or receiver
or of its or his officers or employees, as are now allowed by law,
and, in addition to the liability now existing by law, it shall be
held in such actions that persons engaged in the service of any rail-
road corporation, foreign or domestic, doing business in this state,
or in the service of a receiver thereof, who are entrusted by such
corporation or receiver, with the authority of superintendence, con-
trol or command of other persons in the employment of such cor-
poration or receiver, or with the authority to direct or control any
other employee in the performance of the duty of such employee,
or who have, as a part of their duty, for the time being, physical
control or direction of the movement of a signal, switch, locomotive

engine, car, train or telegraph office, are vice-principals of such
o41-a = BAbDGEs.

The Railroad Law, § 43.

corporation or receiver, and are not fellow-servants of such injured
or deceased employee. If an employee, engaged in the service of
any such railroad corporation, or of a receiver thereof, shall receive
any injury by reason of any defect in the condition of the ways,
works, machinery, plant, tools or implements, or of any car, train,
locomotive or attachment thereto belonging, owned or operated, or
being run and operated by such corporation or receiver, when such
defect could have been discovered by such corporation or receiver,
by reasonable and proper care, tests or inspection, such corporation
or receiver, shall be deemed to have had knowledge of such defect.
before and at the time such injury is sustained; and when the fact
of such defect shall be proved upon the trial of any action in the
courts of this state, brought by such employee or his legal repre-
sentatives, against any such railroad corporation or receiver, on
account of such injuries so received, the same shall be prima facie
evidence of negligence on the part of such corporation or receiver.
This section shall not affect actions or causes of action now exist-
ing; and no contract, receipt, rule or regulation, between an em-
ployee and a railroad corporation or receiver, shall exempt or limit
the liability of such corporation or receiver from the provisions of
this section.
(New, added by L. 1906, ch. 657.)

§ 43. Conductors and employes must wear badges.— Every
conductor and employe of a railroad corporation employed in a
passenger train, or at stations for passengers, shall wear upon his
hat or cap a badge, which shall indicate his office or employment,
and the initial letters of the corporation employing him. : No con-
ductor or collector without such badge shall demand or receive
from any passenger any fare or ticket or exercise any of the powers
of his employment. No officer or employe without such badge shall
meddle or interfere with any passenger, his baggage or property.

(Thus amended by L. 1892, ch. 676.)

See Thorpe v. N. Y. C. & H. R. R. R. Co., 76 N. Y., 402.

Wearing uniform without authority. (Penal Code, § 425.)

Personating railroad officer or employee is a misdemeanor. (Penal
Code, § 565.)

 
CurEcks FoR BacaacE. 341-b

 

The Railroad Law, § 44.

 

§ 44, Checks for baggage-——A check, made of some proper
substance of convenient size and form, plainly stamped with num-
bers, and furnished with a convenient strap or other appendage
for attaching to baggage, shall be ‘affixed to every piece or parcel
of baggage when taken for transportation for a passenger by the
agent or employe of such corporation, if there is a handle, loop or
fixture therefor upon the piece or parcel of baggage, and a dupli-
cate thereof given to the passenger or person delivering the same
to him. If such check be refused on demand the corporation shall
pay to the passenger the sum of ten dollars, and no fare shall be
collected or received from him; and if he shall have paid his fare
it shall be refunded to him by the conductor in charge of the train.
Such baggage shall be delivered, without unnecessary delay, to the
passenger or any person acting in his behalf, at the place to which
it was to be transported, where the cars usually stop, or at any
other regular intermediate stopping place upon notice to the bag-
gage-master in charge of baggage on the train of not less than
thirty minutes, upon presentation of such duplicate check to the
officer or agent of the railroad corporation, or of any corporation,
over any portion of whose road it was transported. Bicycles are
hereby declared to be and be deemed baggage for the purposes of
this article and shall be transported as baggage for passengers by
railroad corporations and subject to the same liabilities, and no
such passenger shall be required to crate, cover or otherwise pro-
tect any such bicycle; provided, however, that a railroad corpora-
tion shall not be required to transport, under the provisions of this
act, more than one bicycle for a single person. ,

(Thus amended by L. 1892, ch. 676; L. 1896, ch. 333; L. 1902, ch. 388.)

The last amendment eliminated the word “ metallic,” thereby permit.
ting checks to be made of cardboard or other material.

By the amendment of 1896 bicycles were declared to be baggage.

A provision in a passage ticket issued by a steamship company limit-
ing its liability for loss of luggage or personal effects of passengers to
$100, “unless the value of the same in excess of that sum be declared

at or before the issue of this contract, or at or before the delivery of
said luggage to the ship, and freight at current rates is paid thereon,”
342 CHECKS FoR BaGGaGE.

The Railroad Law, § 44.

cannot be held to apply to hand baggage intended to be taken by the
passenger to the stateroom for use during the voyage, but only to
such as might be delivered to the defendant to remain in its possession
until delivery at the termination of the voyage, and where hand bag-
gage delivered to the company’s baggagemaster, at his direction and
upon his statement that it would be sent to the passenger’s room, is
never delivered, the loss, if unexplained, establishes a prima facie case
of negligence, and the company is-liable for the full value of the lost
articles notwithstanding the failure of the passenger to declare the
value thereof or to pay excess freight thereon. (Holmes v. North Ger-
man Lloyd S. S. Co., 184 N. Y., 280.)

A railroad company is liable for the loss of a trunk, containing mer-
chandise in charge of a traveling salesman, and which is checked as
baggage upon one of its passenger trains. (Trimble v. N. ¥.C. & H. R. R.
R. Co., 162 N. Y., 84, aff’g 39 App. Div., 403.)

Where a contract for through transportation has been sold by one
railroad over its own and a connecting line, the company selling the
ticket will not be liable for personal baggage of a passenger which was
destroyed on the connecting line. (Talcott v. Wabash R. R. Co., 159
N. Y., 461, mod’g 89 Hun, 492.)

Where a passenger includes in his baggage the goods of his employer,
without the knowledge of the railroad company, the latter is only
liable for loss resulting from gross negligence or wilful misconduct.
(Cattaraugus Cutlery Co. v. Buff., Roch. & Pitts. R. R. Co., 24 App. Div.,
267; Gurney v. Grand Trunk Ry. Co., 138 N. Y., 638.)

In an action against a baggage express company for damages to a
trunk which said company obtained from a railroad company, the pre-
sumption is that the railroad company delivered the trunk to the
express company in the same condition in which it was when checked.
(Springer v. Westcott Exp. Co., 19 App. Div., 366.)

Where a trunk is carried merely as a passenger’s baggage, or for his
personal use, without charge, the carrier is not liable, in case of its
loss, for the merchandise or samples contained therein intended to effect
sales. (Simpson v. N. Y., N. H. & H. R. R. Co., 16 Misc., 613.)

Where passenger baggage is checked through to any point over
several connecting lines of railroad and is delivered in a damaged condi-
tion, that company only is liable upon whose road the baggage is
injured; however, the owner may sue the company in whose custody
he finds it damaged and may recover without proving that the com-
pany received it uninjured; the original good condition being presumed
to continue; but the presumption may be rebutted by proof on the
part of the company that the property was damaged when received
by it; in which case defendant is exonerated. (Fox v. Wabash Ry.
Co., 16 Mise., 370.)

.
Baaeace; Invugizes to; Uncuaimen. 343

 

The Railroad Law, §§ 45, 46.

 

A rule of a railroad company, which provides that baggage can only
tbe checked to the place for which the passenger holds a ticket, is a reason-
able one. (Howell v. Grand Trunk Ry. Co., 92 Hun, 423.) A stopover
privilege does not include baggage. (Id.)

For other cases in relation to a common carrier’s liability for a passen-
ger’s baggage, see Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y., 278;
Matteson v. Same, 76 id., 381; Fairfax v. Same, 73 id., 167; Perley v.
Same, 65 id., 374; Burnell v. Same, 45 id., 184; Curtis v. D., L. & W. R.
R. Co., 74 id., 116; Dininny v. N. Y., N. H. & H. R. R. Co., 49 id., 546;
Rawson v. Penn. R. R. Co., 48 id., 212; Merrill v. Grinnell, 30 id., 594;
Dexter v. S., B. & N. Y. R. R. Co., 42 id., 326; Sloman v. Gt. W. Ry. Co.,
67 id., 208; Stoneman v. Erie Ry. Co., 52 id. 429; Roth v. Buff. & S. L.
R. R. Co., 34 id., 548; Millard v. M., K. & T. R. R. Co., 86 id., 441; Estes
v. St. P., M. & M. R. R. Co., 27 St. Rep., 594; Holdridge v. U. & B. R. R.
R. Co., 56 Barb., 191; Jones v. Nor. & N. Y. T. Co., 50 id., 193; Curtis v.
Avon, G. & Mt. M. R. R. Co., 49 id., 148; Powell v. Myers, 26 Wend., 591,
Pardee v. Drew, 25 id., 459; Green v. N. Y. ©. R. R. Co., 12 Abb, N. &,
473; N. Y¥. C. & H. R. R. R. Co. v. Fraloff, 100 U. S., 24.

§ 45. Penalties for injuries to baggage.— Any person,
whose duty it is for or on behalf of the common carrier to handle,
remove or care for the baggage of passengers, who shall recklessly
or willfully injure or destroy any trunk, valise, box, bag, package
or parcel, while loading, unloading, transporting, delivering or
storing the same, or any railroad corporation, which shall know-
ingly keep in its employment any such willful or reckless person,
or which shall permit any injury or destruction of such property,
through failure to provide sufficient help and facilities for the
handling thereof, shall pay to the party injured thereby the sum
of fifty dollars, in addition to such damages.

§ 46. Unclaimed freight and baggage.— Every railroad
or other transportation corporation, doing business in this state,
which shall have unclaimed freight or baggage, not live stock or
perishable, in its possession for the period of sixty days, may de-
liver the same to any warehouse company, or person or persons
engaged in the warehouse business, within this state, and take a
warehouse receipt for the storage thereof. Upon such delivery
and upon taking such warehouse receipt, every such railroad or
other transportation corporation shall be discharged of all liability
in respect to any such unclaimed freight or baggage from and
after such delivery. At any time within two years after such de-
livery, such railroad or other transportation corporation shall sur-
render and transfer such warehouse receipt to the owner of any
‘such unclaimed freight or baggage upon demand, and upon pay-
344 UnciammeD FreigoHt anp Baaa@aGe.

 

The Railroad Law, § 46.

 

ment of all charges and expenses for transportation and storage
then due, if any, to any such railroad or other transportation cor-
poration. In case any such railroad or other transportation com-
pany shall have had unclaimed freight or baggage, not live stock
or perishable, in its possession for a period of one year and shall
not have delivered the same to a warehouse company or person or
persons engaged in the warehouse business as above provided,
then such railroad or other transportation company may proceed
to sell the same at public auction, and out of the proceeds may
retain the charges of transportation, handling and storage of such
unclaimed freight or baggage, and the expenses of advertising
and sale thereof; but no such sale shall be made until the expira-
tion of four weeks from the first publication of notice of such sale,
to be published weekly in a newspaper published in or nearest the
town or city to which such unclaimed freight or baggage was con-
signed, or at which it was directed to be left, and also at the town
or city where such sale is to take place; and said notice shall con-
tain a general description of such unclaimed freight or baggage,
the name of the shipper thereof, if known, and a statement of the
consignment thereof, whether to a designated consignee or to or-
der, if known, or the place, at which the same was to be left, as
near as may be; and the expenses incurred for advertising shall be
a lien upon such unclaimed freight or baggage in a ratable pro-
portion, according to the value of each article, package or parcel,
if more than one. Such railroad or other transportation company
shall make an entry of the balance of the proceeds of the sale, if
any, of the unclaimed freight or baggage consigned to the same
consignee or covered by each consignment, as near as can be as-
certained, and at any time within five years thereafter, shall re-
fund any surplus so retained to the owners of such unclaimed
freight or baggage, his personal representatives or assigns, on satis-
factory proof of such ownership. In case such balance shall: not
be claimed by the rightful owner within five years after the sale
as above specified, then it shall be paid to the county treasurer,
for the use of the county poor of the county where the sale is made.

Unclaimed live stock and perishable freight or baggage may be
sold by any such railroad or other transportation corporation with-
out notice, as soon as it can be, upon the best terms that can be
obtained. All moneys arising from the sale of any such unclaimed
live stock, perishable freight or baggage, after deducting there-
from all charges and expenses for transportation, storage, keep-
Tickets anp Cyrecxs ror Connectina Sreampoats. 345

 

The Railroad Law, § 47.

‘+ ing, commissions for selling the property, and any amount pre-
viously paid for its loss or non-delivery, shall be deposited by the
corporation making such sale with a report thereof, and proof that
the property was live stock or perishable freight, with the comp-
troller for the benefit of the general fund of the state, and shall
be held by him in trust for reclamation by the person or persons
entitled to receive the same.

(Thus amended by L. 1892, ch. 676; L. 1896, ch. 974; L. 1899, ch. 582.)

A common carrier discharges its duty as such when it tenders the goods
to the consignee, and its subsequent liability is only that of a warehouse-
man. (Manhattan Rubber Shoe Co. v. Chicago, B. & Q. R. R. Co., 9 App.
Div., 172.)

§ 47. Tickets and checks for connecting steamboats.—
The proprietors of any line of steamboats, terminating or stopping
for passengers at any place where a railroad corporation has a
depot or station, may furnish tickets and baggage checks to such
corporation for the use of passengers, traveling over its road, who
desire to connect with such line of boats at any such place, and the
railroad corporation shall sell such tickets and deliver a duplicate
of one of such checks to any such passenger applying therefor,
and shall account for and pay over to the proprietor of such line
of boats all moneys received by it for the sale of such tickets; and
any such railroad corporation may furnish tickets and checks for
baggage to the proprietors of any such line of steamboats for the
use of passengers traveling over any part of such line of boats, who
desire to connect with the railroad of any such corporation at any
such place, and such proprietors shall sell such tickets and deliver
a duplicate of one of such checks to any such passenger applying
therefor, and shall account for and pay over to such corporation
all moneys received by them for the sale of such tickets. No
greater rate of fare shall be charged by any railroad corporation
to any such passenger for the distance traveled over its road than
is charged to travelers for the saine distance whose trip ends at
the place where connection is made with any such line of boats,
and no greater rate of fare shall be charged by the proprietors of
any such steamboat line to any such passenger for the distance
traveled over its line, than is charged to travelers for the same dis-
tance whose trip ends at the place where connection is made with
any such railroad. Any additional cost of transfer of a passenger
or his baggage from the railroad depot or station to steamboat
346 Tickets anp Curcks ror ConnecTine STEAMBOATS.

 

The Railroad Law, § 4%.

 

landing, or from steamboat landing to depot or station, shall be
borne by the passenger or the proprietors of the steamboat line or
the railroad corporation at whose instance or for whose benefit such
transfer is made. Every railroad corporation and the proprietors
of any line of steamboats, their agents or servants, who shall neg-
lect or refuse to sell tickets or furnish a check to any passenger ap-
plying for the same, when the same shall have been furnished to
them, shall pay to such passenger the sum of ten dollars, and no
fare or toll shall be collected from him for riding over such road
or upon such boats, as the case may be; and in addition thereto any
railroad corporation so neglecting or refusing, shall pay the pro-
prietors of such line of boats two hundred and fifty dollars for each
day it shall so neglect or refuse; and the proprietors of any such
line of boats so neglecting or refusing, shall pay to such railroad cor-
poration a like sum for each day they shall so neglect or refuse.
Every such railroad corporation shall also receive any freight
which shall be delivered at any station on the line of its road,
marked to go by way of boat or any particular line of boats from
any station on its road at which such boat or line of boats termi-
nates or stops for freight, and shall transport such freight with all
convenient speed to such station, and on its arrival there cause the
proprietors of the steamboat line by which it is directed to be sent,
or their agent, to be notified of such arrival, and shall deliver such
freight to such proprietors or their agent with the bill of charges
thereon due such railroad corporation, for the payment of which
charges the proprietor or proprietors of such steamboat line shall
be responsible, and shall account for and pay the same to such rail-
road corporation on demand. The railroad corporation shall not
charge for the transportation of such freight over its road any
greater sum pro rata than it charges for carrying the same kind of
freight the same distance over its road, if it was to be transported
by such corporation by rail to its final destination, or to the termi-
nus of the road of such corporation in case it terminates before
such final destination is reached. Any freight delivered by the
proprietors of any steamboat or steamboat line, or their authorized
agent, at any station, at a place where such steamboat or steam-
boats have a landing, to any such railroad corporation, for trans-
portation over its road, or any part thereof, shall be transported
by such corporation to its place of destination for the same price
pro rata which would be charged for the same kind of freight the
same distance over its road, if the same had been taken on at the
point of first shipment by boat, or at the terminus of the road otf
Rieurs anp Liasititres as Common Carriers. 347

 

The Railroad Law, § 48.

such corporation, in case it does not extend to the point of first
shipment.

Where a carrier sells tickets over a connecting line and assumes to
secure accommodations over that line, it is liable for the failure of the
other line to furnish proper accommodations. (Bussman v. Western
Transit Co., 9 Misc., 410, and cases therein cited.)

Pxclusion of rival steamboat company from terminal facilities. (Alex-
andria Bay S. Co. v. N. Y. C. & H. R. RB. R. Co., 18 App. Div., 527.)

§ 48. Rights and liabilities as common carriers.—Every
railroad corporation doing business in this state shall be a common
carrier. Any one of two or more corporations owning or operating
connecting roads, within this state, or partly within or partly with-
out the state, shall be liable as a common carrier, for the transpor-
tation of passengers or delivery of freight received by it to be
transported by it to.any place on the line of a connecting road; and
if it shall become liable to pay any sum by reason of neglect or mis-
conduct of any other corporation it may collect the same of the

corporation by reason of whose neglect or misconduct it became
liable.
(Thus amended by L. 1892, ch. 676.)

A common carrier has a right to limit its liability, and may, by a con-
tract, fix the sum beyond which it will not be liable for a loss upon 2
earload of animals. (Jones v. N. Y., L. BE. & W. BR. R. Co., 3 App.
Div., 341.)

While railroad companies are, in a certain sense, to be regarded as
trading corporations, they are, at the same time, clothed with useful pub-
lic functions ; their franchises are sovereign and their uses are public ;
they are compellable to use their property in the interests of the entire
community, and it is their duty to furnish accommodations for the trans-
portation of persons and property. (Bouker v. Long Island R. R. Co., 89
Hun, 202.)

Railroad corporations have the right to prescribe the times for the recep-
tion of freight for transportation ; due care and diligence is all that can be
required of them in an emergency, and if they are careful to make pro-
vision for traffic in ordinary times and under ordinary circumstances, no
more can be required of them, and they are excused for delays when
large and unusual quantities of freight are offered for shipment, and
they have utilized all their facilities for the purpose of transporting the
property offered to them for that purpose. (Bouker v. Long Island R. R.
€o., 89 Hun, 202.)

A delivery of goods by a common carrier to a person other than the
consignee, without the consent of the latter, constitutes a conversion and
venders the carrier liable for the value of the goods, unless the consignee
subsequently ratifies such delivery. (McSwegan v. Penn. R. R. Co., 16
Misc., 157.)

An employer does not undertake, absolutely, with an employe for the
348 Riess anp Liasriirres as Common Carriers.
The Railroad Law, § 48.

sufficiency or safety of implements and facilities furnished for their work,
but only for the exercise of reasonable care, and when injury to ap
employe results from defective implements, knowledge of the defect must
be brought home to the employer, or proof given of omission of proper
care to discover it. (Doing v. N. ¥., O. & W. R. Co., 73 Hun, 270, and cases
there cited ; see, also, Fannessey v. W. U. Tel. Co., 6 Misc., 322.)

A railroad company is bound to use reasonable care to protect its
employes by using suitable machinery and keeping it in repair. (Bailey v.
R., W. & O. R. R. Co., 139 N. ¥., 302.)

The company is not liable to employes for negligence of co-servant-
(Potter v. N. Y. C. & H. R. R. R. Co., 1386 N. ¥., 77.)

A condition in a shipping bill that the earrier will not be responsible for
loss, unless a memorandum, in writing, is delivered with the property
describing the articles and their value, or that such property will only be
taken at the owner’s risk, does not exempt the carrier from Hability for
his own negligent acts. (Ruthbone v. N. Y. C. & H. R. R. R. Co., 140-N.
Y., 48.) Where the property is of extraordinary value, a condition that
the carrier will not be responsible for loss if the character and value of
the articles are not stated and extra freight paid, will exempt the carrie.
from liability, unless he was informed of such special and unusual
value. (Id.)

Carrier liable for a willful assault by its servant on a passenger.
(Stewart v. Brooklyn, etc., R. R. Co., 90 N. Y., 588.) Vigilance in protect-
ing passengers from violence must be observed. (Weeks v. N. Y., N. H.
& H. BR. R. Co., 72 N. Y., 80; Putnam v. Broadway & 7th Av. R. R. Co.,
55 N. Y., 108.) The company may limit its lfability by contract. (Kenney
v. N. ¥. C. & H. R. R. R. Co., 125 N. Y., 422; Poucher v. N. Y. C. R. R.
Co., 49 N. Y., 263; see, also, Perkins v. Same, 24 N. Y., 196; Bissell v.
Same, 25 N. Y., 442 ; McElwain v. E. Ry. Co., 21 W. D., 21; Brewer v. N.
Y., L. E. & W. R. R. Co., 124 N. Y., 59; Porter v. Same 59 Hun, 177, aff’d
129 N. Y., 624; Elliott v. N. Y. C. & H. R. R. R. Co., 33 St. Rep., 861.)

Although a railroad company is uot an insurer of the safety of its pas-
sengers, yet it is bound to use a high degree of skill and vigilance to
guard against accidents, and this duty is not discharged without the
utmost care and diligence which human prudence and foresight will sug-
gest to secure the safety of its passengers. (Palmer v. D. & H. C. Co.,
120 N. Y., 170 ; see, also, Merwin v. Man. Ry. Co., 48 Hun, 608, aff'd 113
N. Y., 659 ; Taber v. D., L. & W. R. R. Co., 71 N. Y., 489 ; Wynn v. Cent.
Pk., N. & E. R. R. R. Co., 183 N. Y., 575 ; Palmer v. Penn. Co., 111 N. Y.,
488 ; Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 297; Birmingham v.
R. C. & B. R. R. Co., 137 N. Y., 13; Brown v. N. Y. C. R. R. Co., 34 N.
Y., 404; Carroll v. Staten I. R. R. Co., 58 N. Y., 126; "Alden v. N. Y. ©.
R. R. Co., 26 N. ¥., 102.) No liability attaches when the accident was an
extraordinary one that could not reasonably have been anticipated.
(Cleveland v. N. J. S. Co., 125 N. Y., 299; McPadden v. N. Y. GC. R. R.
Oo., 44 N. Y., 478 ; 133 N. Y., 575, above ; see, also, Morris v. N. Y. C. & H.
R. R. R. Co., 106 N. Y., 678.) An employe paying fare has the rights of a
passenger. (Ross v. N. Y. C., etc., 5 Hun, 488, aff'd 74 N. Y., 617: but see
Vick v. Same, 95 N. Y., 267.)

For other cases as to actions by passengers and others: Goldberg vy.
Swircuus, WaRNine |SIGNALS, ETO. 349

The Railroad Law, § 49.

N. Y. C. & H. R. RB. R. Co., 183 N. Y., 561 ; Akersloot v. 2d Av. R. R. Co.,
131 N. Y., 599 ; Schneider v. Same, 133 N. Y., 583; Moylan v. Same, 128
N. Y., 583 ; Morrison v. 7th Av. R. R. Co., 130 N. Y., 166; Kenney v. N.
Y. C. & H. R. R. R. Co., 125 N. Y., 422; Brewer v. N. Y., L. E. & W.,
124 N. Y., 59; Wiwirowski v. L. S. & M.S. R. R. Co., 124 N. Y., 420;
Medler v. Atl Av. R. R. Co. 126 N. Y., 669, aff’g 36 St. Rep., 89;
Craigshead v. B. R. R. Co. 128 N. Y., 391; Hickenbottom v.
D, L. & W. R. R. Co, 122 N. Y., 91; Lent v. N. ¥. © & HL
R. R. R. Co., 120 N. Y., 467 ; Baker v. Man. Ry. Co., 118 N. Y., 533 ; Boyce
v. Same, 118 N. Y., 314; Lehr v. Steinway & H. P. R. R. Co., 118 N. Y.,
556; Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y., 77; McClain v-
B’klyn C. R. R. Co., 116 N. Y., 459; Webster v. R., W. & O. R. R. Co.,
115 N. Y., 112; Coleman v. 2d Av. R. R. Co.. 114 N. Y., 609; Parsons v.
N. Y. C. & H. R. R. BR. Co., 118 N. Y., 355 ; Lafflin v. B. & S. W. R. R.
Co., 106 N. Y., 186 ; Archer v. N. Y., N. H. & H. R. R. Co., 106 N. Y., 589;
Bucher v. N. ¥. C. & H. R. R. R. Co., 98 N. Y., 128 ; Burrows v. E. Ky.
Co., 68 N. Y., 556 ; Carpenter v. B. & A. R. R. Co., 97 N. Y., 494.

Safe stations must be maintained and stops must be of sufficient dura-
tion. (Onderdonk v. N. Y. & Sea Beach Ry. Co., 74 Hun, 42.)

Where a passenger has been left at a wrong station, a recovery may
be had for all damages naturally resulting from the ecorporation’s fault.
(Childs v. N. ¥., O. & W. Ry. Co., 77 Hun, 539.)

§ 49. Switches; warning signals; guard-posts; auto-
matic couplers; automatic or other safety brake ; tools in
passenger car; water.—It shall be the duty of every railroad
corporation operating its road by steam:

1. To lay, in.the construction of new and in the renewal of
existing switches, upon freight or passenger main-line tracks,
switches on the principal of either the so-called Tyler, Wharton,
Lorenze, or split-point switch, or some other kind of safety switch,
which shall prevent the derailment of a train, when such switch is
misplaced or a switch interlocked with distant signals.

2. To erect and thereafter maintain such suitable warning sig-
nals at every road, bridge, or structure which crosses the railroad
above the tracks, where such warning signals may be necessary, for
the protection of employes on top of cars from injury.

3. (This subdivision repealed by L. 1900, ch. 740.)

4, To use upon every new freight car, built or purchased for
use, couplers which ean be coupled and uncoupled automatically,
without the necessity of having a person guide the link, lift the
pin by hand, or go between the ends of the cars.

5. To attach to every car used for passenger transportation an
automatic air-brake or other form of safety-power brake, applied
350 Switcues, Warnine Sienazs, Erc.

 

The Railroad Law, § 49.

from the locomotive, excepting cars attached to freight trains, the
schedule rate of speed of which does not exceed twenty miles an
hour.

6. To provide each closed car in use in every passenger train

owned or regularly used upon a railroad, with one set of tools,

“eonsisting of an axe, sledge hammer, crowbar and hand saw and

Si emaes

such other or additional tools as the board of railroad commis-
sioners may require, to be placed where directed by the board of
railroad commissioners,

7. To provide, in each passenger car, where the line of road
shall exceed forty continuous miles in length, a suitable receptacle :
for water, with a cup or drinking utensil attached upon or near
such receptacle, and to keep such receptacle, while the car is in use,
constantly supplied with cool water.

Every corporation, person or persons, operating such railroad,
and violating any of the provisions of this section, except subdi-

‘vision seven, shall be liable to a penalty of one hundred dollars for

each offense, and the further penalty of ten dollars for each day
that it shall omit or neglect to comply with any of such provisions. .
For every violation of the provisions of the seventh subdivision
of this section every such corporation shall be liable to a penalty
of twenty-five dollars for each offense.

(Thus amended by L. 1898, ch. 521, and L. 1900, ch. 740.)

The duty of a railroad company to use reasonable care to protect

employes from injury, embraces the obligation to use such care both in

. furnishing suitable machinery and in keeping it in repair. (Bailey v.

Rome, W. & O. R. R. Co., 139 N. Y., 302.)

A company is not necessarily liable for injuries to a brakeman who
knew the location of « bridge, had passed under it at other times, and
had been cautioned regarding it. (Fitzgerald v. N. Y. C. & H. RB. BR. R.
Co., 59 Hun, 225; Ryan v. L. Isl. R. R. Co., 51 Hun, 607, aff’d 124 N. Y., 654;
but see Wallace v. Cent. Vermont R. R. Co., 138 N. Y., 302.) ‘
Amendment of 1907.

(Insert facing page 350-a, White on Corporations, 6th edition.)
1 :
Laws of 1907, chapter 208, amends the Railroad Law, section 49-a, to read

as follows:

§ 49-a. Inspection of locomotive boilers.—1t shall be the duty of every
railroad corporation operated by steam power, within this state, and of the
directors,‘managers or ‘superintendents of such railroad to cause thorough
inspections to be made of the boilers and their appurtenances of all the
steam locomotives which shall be used by such corporation or corporations,
on said railroads. Said inspections shall be made, at least every three months
under the direction and superintendence of said corporations, or the directors,
managers or superintendents thereof, by persons of suitable qualifications
and attainments to perform the services required of inspectors of boilers,
and who from their knowledge of the construction and use of boilers and
the appurtenances therewith connected, are able to form a reliable opinion
of the strength, form, workmanship and suitableness of boilers, to be em-
ployed without hazard of life, from imperfections in material, workman-
ship or arrangement of any part of such boiler. and appurtenances. All
such boilers so used shall comply with the following requirements: The
boilers must be made of good and suitable materials; the openings for the
passage of water and steam respectively, and all pipes and tubes exposed
to heat shall be of proper dimensions; the safety valves, fusible plugs, low
water glass indicator, gauge cocks and steam gauges, shall be of such con-
struction, condition and arrangement that the same may be safely employed
in the active service of the railroad corporation without peril to life; and
each inspector shall satisfy himself by thorough examination that said re-
quirements have been fully complied with. No boiler, nor any connection
therewith shall be approved which is unsafe in its form, or dangerous from
defects, workmanship or other cause. ‘The person or persons who shall
make the said inspections if he or they approve of the boiler or boilers and
“the appurtenances throughout, shall make and subscribe his or their name
to a written or printed certificate which shall contain the number of each
boiler inspected, the date of its inspection, the condition of the boiler
inspected, and such details as may be required by the forms and regulations
which shall be prescribed by the railroad commissioners. Every certificate
'shall be verified by the oath of the inspector, and he shall cause said certifi-
cate or certificates to be filed in the’ office of the railroad commissioners, ,
within ten days after-each inspection shall be made, and also a copy thereof
with the chief operating officer or employee of such railroad having charge

7
Inspection or Locomotive Boruers. 350-a

The Railroad Law, § 49-a.

§ 49-a, Inspection of locomotive boilers.—TIt shall be the duty
of every railroad corporation operated by steam power, within this ;
state, and of the directors, managers or superintendents of such
railroad to cause thorough inspections to be made of the boilers of
all the locomotives which shall be used by such corporation or cor-
porations, on said railroads. Said inspections shall be made, at
least once every three months, by competent and qualified inspect-
ors of boilers under the direction and superintendence of said cor-
poration or corporations, or the directors, managers or superin-"
tendents thereof. The person or persons who shall make said
inspections, shall make and subscribe his name to a written or
printed certificate which shall contain the number of each boiler
inspected, the date of its inspection, the condition of the boiler
inspected, and shall cause said certificate or certificates to be filed .
in the office of the railroad commissioners, within ten days after
each inspection shall be made, and also with the officer or employe
of such railroad having immediate charge of the operation of such:

: locomotive. If it shall be ascertained by such inspection and test,
or otherwise, that any locomotive boiler is unsafe for use, the same
shall not again be used until it shall be repaired, and made safe.
A certificate on a boiler inspector to the effect that the same is in
a safe condition for use shall be made and filed in the office of the

“vailroad commissioners. Every corporation, director, manager or.
superintendent operating such railroad and violating any of the
provisions of this section shall be liable to a penalty, to be paid

‘to the people of the state of New York, of one hundred dollars for
each offense, and the further penalty of one hundred dollars for
each day it or they shall omit or neglect to comply with said pro-
visions, and the making or filing of a false certificate shall be a

.misdemeanor. Any person, upon application to the secretary of

said board of railroad commissioners and on the payment of such
350-b Inspection, Sarecuarps, Stoves, Etc.
The Railroad Law, §§ 49-b, 50, 51.

_ reasonable fee as said board may by rule fix, shall be furnished

with a copy of any such certificate.
(New, added by L. 1905, ch. 611.)

§ 49-b. State inspector of locomotive boilers.— Within twenty
days after this section takes effect, the state railroad commission
shall appoint a competent person as inspector of locomotive boilers,
who shall receive a compensation to be fixed by the commission,
not exceeding three thousand dollars per year. Such inspector
shall, under the direction of the commission, inspect boilers or loco-
motives used by railroad corporations operating steam railroads
within the state, and may cause the same to be tested by hydrostatic
test and shall perform such other duties in connection with the
inspection and test of locomotive boilers as the commission shall
direct. But this section shall not relieve any railroad corporation
from the duties imposed by the preceding section.

(New, added by L. 1905, ch. 611.)

§ 50. Railroad commissioners may approve other safeguards.
—The board of railroad commissioners may, on the application
of any railroad corporation, authorize it to use any other safeguard
or device approved by the board, in place of any safeguard or

_ device required by this article, which shall thereafter be used in
lieu thereof, and the same penalties for neglect or refusal to use
the same shall be incurred and imposed as for a failure to use the
safeguard or device hereinbefore required, in lieu of which the
same is to be used.

The duty of a master to furnish his servants safe and proper appli-
ances for their work cannot be evaded by delegating that duty to others.
(Redington v. N. Y. & O. W. Ry. Co., 84 Hun, 231.)

§ 51. Use of stoves or furnaces prohibited—It shall not

be lawful for any railroad corporation, operating a steam rail-
Railroad Law, section 49-a, continued.

of the operation of such locomotive boiler; a copy shall also be placed by such
officer or employee in a conspicuous place in the cab connected with the
locomotive boiler inspected, and there kept framed under glass. The railroad
commissioners shall have power, from time to time, to formulate rules and
regulations for the inspection and testing of boilers as aforesaid, and may
Tequire the removal of incompetent inspectors of boilers under the provisions
of this act. Copies of sucli rules and regulations shall be mailed to every
corporation operating a railroad by steam in this state. If it shall be ascer-
tained by such inspection and test or otherwise, that any locomotive boiler is
unsafe for use, the same shall not again be used until it shall be repaired,
and made safe, so as to comply with the requirements of this section. Every
corporation, director, manager or superintendent operating such railroad and
violating any of the provisions of this section shall be ‘liable to a penalty,
to be paid to the people of the state of New York, of one hundred dollars
for each offense, and the further penalty of one hundred dollars for each
day it or they shall omit or neglect to comply with said provisions, and the
making or filing of «a false certificate shall be « misdemeanor, and every
inspector who wilfully certifies falsely touching any steam boiler, or any
appurtenance thereto belonging, or any matter or thing contained or required
to be contained in any certificate, signed and sworn to by him, shall be guilty
of a misdemeanor. .\ny person, upon application to the secretary of said
board of railroad commissioners, and on the payment of such reasonable fee
as said board may by rule fix, shall be furnished with a copy of any such
wertificate.

The amendment took effect September 1, 1907.
8
Amendment of 1907. , a

é \
7 (Insert facing . page 350-b, White on Corporations, 6th edition.)

Laws of 1907, shiapter 208, amends. the Railroad Law, by adding’ a new
‘section thereto, which reads, as follows: ;

§. '49-¢. Care of steam locomotives? steam and water cocks; penalty.— kt
‘shall bé the duty of every corporation operating a steam railroad, within
this state, and of. its directors, managers or superintendents, to cause the.
boiler of every lozomotive used on such railroad to be washed, out as often as ;
‘once every thirty days, and'to equip each boiler with, and maintain thereon
‘at all times, a water glass, showing the height of water in the boiler, having ©
two valves or shut-off cocks, one at each end of such ‘glass, which valves |
or shut-off cocks shall, be so constructed that they’ can be easily opened and
closed by hand; also to cause such valves or shut-off cocks and all gauge
igoeks*or try-cocks attached to the boiler to be removed and cleaned whenever ”
‘the boiler is washed ‘out purguant to the foregoing requirements of this
section ; also, to-keep all steam valves, cocks and joints, studs, bolts arid
seams in such repair that they will not at.any time emit steam in front’ of
the enginéer, so as to.cbscure -his’ vision. No locomotive shall hereafter be
driven in this state unless the same is equipped and cared for in con:
formity with the provisions of this section ; but nothing here contained shall,
be construed to excuse the observance of any other requirement. ‘imposed.
by. this chapter upon railroad ‘¢orporations, their directors, officerb, managers |
and superintendents. Every corporation; person or persons operating a steam |
‘railroad and violating any of the ‘provisions of this section, shall be liable
to a penalty of one hundred dollars for each offense, and the further penalty
of ten dollars’ for éach day that such violation shall continue. The board
of railroad commissioners shall enforce the provisions of this act.

. The amendment took effect September 1, 1907.
tg tit . De 9:
TuisrLes To BE Cut; Ripine on PiatrorM, ETC. 351
The Railroad Law, §§ 52, 53.

 

 

road in this state, of the length of fifty miles or more, excepting
foreign railroad corporations, incorporated without the jurisdiction
of the United States, running cars upon tracks in this state for a dis-
tance of less than thirty miles, to heat its passenger cars, on other
than mixed trains, excepting dining-room cars, by any stove or fur-
nace kept inside the car, or suspended therefrom, unless in case of
accident or other emergency, when it may temporarily use such
stove or furnace with necessary fuel, in cars which have been
equipped with apparatus to heat by steam, hot water or hot air
from the locomotive, or from a special car, the present stove may
be retained to be used only when the car is standing still, and no
stove or furnace shall be used in a dining-room car, except for cook-
ing purposes, and of pattern and kind to be approved by the railroad
' commissioners. This section shall not be held to affect or interfere:
with the use by the commissioners of fisheries of this or other states,
or of the United States, of stoves for heating or cooking or boilers
_ for hatching operations in their fish car or cars. Any person or cor-
poration, violating any of the provisions of this section, shall be
liable to a penalty of one thousand dollars, and to the further
‘penalty of one hundred dollars for each and every day during which
such violation shall continue.
(Thus amended by L. 1896, ch. 299.)
This provision is not in conflict with any Federal statute. (People v.N.

Y., N. oH. & H.R. R. Co., 55 Wun, 409, aff'd 128 N. Y., 635; see, also,
Peo. v.-Clark, 14 N. Y. Supp., 642; 8 N. Y. Crim. R., 169.)

§ 52. Canada thistles to be cut.— Every railroad corpora-
tion doing business within this state, shall cause all Canada thistles,
white and ydllow daisies and other noxious weeds growing on any
lands owned or occupied by it; to be cut down twice in each and
every year, once between the fifteenth day of June and the twenty-
fifth day of June, and once between the fifteenth day of August
and the twenty-fifth day of August. If any such corporation shall
- neglect to cause the same to be so cut down, any person may cut

the same between the twenty-fifth day of June and the fifth day of
July inclusive, and between the twenty-fifth day of August and the
fifth day of September inclusive in each year, at the expense of the
corporation on whose lands the same shall be so cut, at the rate of
three dollars per day for the time occupied in cutting.

8 53. Riding on platform ; walking along track.— Ne
railroad corporation shall be liable for any injury to any passenger
while on the platform of a car, or in any baggage, wood or freight
352 Rinine on PuarrorM, Eve.

 

The Railroad Law, § 53.

 

car, in violation of the printed regulations of the corporation, posted
up at the time in a conspicuous place inside of the passenger cars,
then in the train, if there shall be at the time sufficient room for the
proper accommodation of the passenger inside such passenger cars.
No person other than those connected with or employed upon the
railroad shall walk upon or along its track or tracks, except where
the same shall be laid across or along streets or highways, in which
case he shall not walk upon the track unless necessary to cross the
same. Any person riding, leading or driving any horse or other
animal upon any railroad, or within the fences and guards thereof,
other than at a farm or street or forest crossing, without the. con-
sent of the corporation, shall forfeit to the people of the state the
sum of ten dollars, and pav all damages sustained thereby to the
party aggrieved.

(Thus amended by L. 1892, ch. 676.)
See section 21 of this law.

An unnecessarily sudden stoppage, by the use of air brakes of a train
while entering a station, whereby persons standing in the aisles and upon
the platforms of the cars preparatory to alighting are thrown down and
one passenger is thrown under the car and injured, constitutes negligence
on the part of the railway company. (Schreiner v. N. Y. C. & H. R. R.
R. Co., 12 App. Div., 551.)

As any riding upen the front platform of a car, on proof that it was
eontrary to the general rules of the road, might, under the statute, relieve
the railroad company from liability, it was proper for the plaintiff in an
actior to allege a rule of the company which permitted passengers who
were smoking to stand upon the front platform, although it was not.
alleged that the plaintiff was smoking. (Lynch v. Second Ave. R. R. Co.,
7 App Div., 164.)

It has been held that section 46, chapter 140, Laws of 1850, now repealed
and superseded by the foregoing section, relieving railroad companies.
from liability for injuries to a passenger while riding on a car platform,
did not apply to a street railroad. (Wood v. Brooklyn City R. R. Co.,
5 App. Div., 492 ; Vail v. Broadway R. R. Co. of Brooklyn, 147 N. Y., 377.)

The failure of an elevated railroad company to keep the gates of a
ear platform closed while the car is in motion is evidence of its negli-
gence towards a passenger who is injured while trying to save himself
from being pushed from the platform by a movement of a crowd occa-
sioned by acts of the company’s employe. (Grahain v. Manhattan Ry. Co.,.
149 N. Y., 336, revers’g 8 Misc., 305.)

When a passenger has, by invitation of the company, boarded an ele-
vated railroad train, and been compellea to ride upon a car platform:
because of the crowded condition of the car, his relation of a passenger
upon that train js not changed by his momentarily stepping off to permit
another to alight at a station; and his return to the car platform to con-
tinue his journey, although he then knows his position upon the platform
to he dangerous, does not, of itself, render him guilty of contributory neg-
Ferris; Summer Roaps. 353
The Railroad Law, §§ 54, 55.

 

ligence as matter of law. (Graham v. Manhattan Ry. Co., 149 N. Y., 336,
revers’g 8 Misc., 305.)

It is the duty of a corporation to light clearly and distinctly the space
between the car and the platform in order that passengers may know
exactly what care is required of them at that point. (Fox v. Mayor, ete.,
of New York, 5 App. Div., 349 ; Boyce v. Manhattan Ry. Co., 118 N. Y.,
314; Ryan v. Manhattan Ry. Co., 121 N. Y., 126.)

When a passenger, without any necessity for so doing, leaves an abso-
lutely safe place in a car to go to a more hazardous one upon the front
platform, upon a dark and stormy night, when the tracks are slippery and
sudden stoppages of the car are likely to occur, he is not free from con-
tributory negligence. (Bradley v. Second Ave. R. R. Co., 90 Hun, 419.)

The fact that a person was riding as a passenger upon the front plat-
form of a street car where he was directed to go by the driver because
he was smoking, does not constitute negligence in him as ad of law.
(Seelig v. Met. St. Ry. Co., 18 Misce., 383.)

It is not negligence, per se, for a passenger to stand on the platform of
a moving car when a seat is provided within the car. (Hastings v. Cen-
tral Crosstown R. R. Co., 7 App. Div., 312 ; distg. Bradley v. Second Av.
R. R. Co., 90 Hun, 419 ; Nolan v. Brooklyn City & N. R. R. Co., 87 N. Y.,
63 ; see, also, Hayes v. 42d St. R. R. Co., 97 N. Y., 259; Werle v. L. I. R.
R. Co., 98 N. Y., 650 ; Ginna v. 2d Av. R. R. Co., 67 N. Y., 596.) The ques-
tion whether the street railroad company is chargeable with negligence in
permitting overcrowding of a car platform is one of fact for the jury. (Gra-
ham vy. Man. Ry. Co., 149 N. Y., 336 ; Lehr v. Steinway & H. P. R. R. Co.,
118 N. Y., 556, and cases therein cited.) A person stepping upon the track
to save young children is not a trespasser. (Costikyan v. R., W. & O. R.
R. Co., 58 Hun, 590, aff’d 128 N. Y., 633.)

§ 54. Corporations may establish ferries Any steam
railroad corporation, incorporated under the laws of this state, with
a terminus in the harbor of New York, may purchase or lease beats.
propelled by steam or otherwise, and operate the same as a ferry
or otherwise, over the waters of the harbor of New York, but this
section shall not be construed to affect. the rights of the cities.of
New York and Brooklyn.

(Thus amended by L..1892, ch. 676.)

This section does not authorize the leasing of a ferry distinct and inde-
pendent from the terminus of the railroad. (Starin v. Mayor, etc., 42
Hun, 549, reversed on other grounds, 112 N. Y., 206.).

§ 55. Certain railroads may cease operation in winter.—
The directors of any railroad corporation operating a railroad, con-
structed and used principally for transporting lumber or ores, dur-
ing the summer months, or for summer travel, may, by a resolution
duly passed at a meeting thereof, apply to the board of railroad
commissioners for permission to cease the operation of their road

23

a4
354 Marts; Corporations Must Mage Annuat Report.

 

The Railroad Law, §§ 56, 57.

 

during the winter season, for a period not exceeding seven months
in any one year, specifying the date of such suspension, and the
date of the reopening thereof; and such board may, in their dis-
cretion, make an order granting the application wholly or in part,
and thereupon such railroad corporation shall be relieved of the
duty of operating its road during the period specified in the order.
A copy of such order shall be posted in all.the depots and at the
termini of such railroad, and published in every newspaper in each
town in any part of suhich such road shall be constructed at least
four weeks prior to the date of such suspension.
See section 21 of this law.

§ 56. Mails—— Any railroad corporation shall, when applied’
to by the postmaster-general, convey the mails of the United States
on its road, and in case such corporation and the postmaster-general
shall not agree as to the rate of transportation therefor, and as to the
time, rate of speed, manner and condition of carrying the same, the
board of railroad commissioners shall fix the prices, terms and con-
ditions therefor, after giving the corporation reasonable oppor-
tunity to be heard. Such price shall not be less for carrying such
mails in the regular passenger trains than the amount which such

‘corporation would receive as freight on a like weight of mer-
chandise transported in their merchandise trains, and a fair com-
pensation for the post-office car. If the postmaster-general shall
require the mail to be carried at other hours, or at higher speed
than the passenger trains are run, the corporation shall furnish an
extra train for the mail, and be allowed an extra compensation for
the expenses and wear dad tear thereof, and for the service to be
fixed as herein provided.

Every railroad corporation refusing or neglecting to comply with
any provision of this section shall forfeit to the people of the state
one hundred dollars for every day such neglect or refusal continues.

(Thus amended by L. 1892, ch. 676.)

Employes of a postal car are entitled to the same degree of care from
a railroad company as passengers riding on the train. (Seybolt v. N. Y.,

L. BE. & W. R. R. Co., 95 N. Y., 562; Nolton v. Westn. Ry. Co., 15 N. Y.,
444.) A mail agent Is a passenger. (Id.)

§ 5%. Corporations must make annual report.— Every
person or corporation owning, leasing, operating or in possession of
a railroad, wholly or partly, in this state, shall make an annual
report to the board of railroad commissioners of its operations for
the year ending with June thirtieth, and of its condition on that
Wuen Conpucturs np BrakeMEN MAY BE PoLiceMEN. 355,

 

The Railroad Law, § 58.

 

day which shall be verified ‘by the oaths of the president, or treas-
urer, and the general manager, or acting superintendent, and shall
be filed in the office of such board on or before September. first in
each year. Every such person or corporation shall make quarterly
and further reports to such board in the form and within the time
‘prescribed by it. Such board may in its discretion change the date
of the annual report and of filing the same, but the length of time
between the date of the annual report and the filing of the same
shall not be less than herein prescribed. Any person or railroad
corporation which shall neglect to make any such report, or which
shall fail to correct any such report within ten days after notice by
’ the board of railroad commissioners, shall be liable to a penalty of
two hundred and fifty dollars, and an additional penalty of twenty-
five dollars for each day after September first on which it shall neg-
lect to file the same, to be sued for in the name of the people of the
state of New York, for their use.

The board of railroad commissioners may extend the time herein
limited for cause shown.

(Thus amended by L. 1892, ch. 676.)

No form for the annual report of a railroad corporation is published in
‘this volume for the reason that the statute provides that the Board of
Railroad Commissioners shall prescribe the form of such report, and
vesting them with authority to make changes therein, and requiring
that blanks for such reports be furnished by said board. (See article
6, section 158, post.) : :

§ 58. When conductors and brakemen may be policemen.—
The governor may appoint any conductor or brakemen on any train
conveying passengers on any steam railroad in this state, a police-
man, with all the powers of a policeman in cities and villages, for
the preservation of order and of the public peace, and the arrest
of all persons committing offenses upon the land or property of the
corporation owning or operating such railroad ; and he may also
appoint, on the application of any such corporation, or of any
steamboat company, such additional policemen, designated by it,
as he may deem proper, who shall have the same powers. Every
such policeman shall within fifteen days after receiving his com-
mission, and before entering upon the duties of his office, take and
subscribe the constitutional oath of office, and file it with his com-
mission in the office of the secretary of state. Every such police-
356 Furure Raitroaps; REQUISITES FOR.

 

The Railroad Law, § 59.

 

man shall when on duty wear a metallic shield, with the words:
“railroad police” or ‘“ steamboat police” as the case may be, and
the name of the corporation for which appointed inscribed thereon,
which shall always be worn in plain view, except when employed
as a detective. The compensation of every such policeman shall be
such as may be agreed upon between him and the corporation, for
which he is appointed, and shall be paid by the corporation. When
any corporation shall no longer require the services of any such
policeman they may file notice to that effect in the office in which
notice of his appointment was originally filed, and thereupon such
appointment shall cease and be at an end.

(Thus amended by L. 1899, ch. 539; TL. 1906, ch. 380.)

A railroad policeman appointed pursuant to section 58 of the Railroad
Law is a public ‘officer, and, therefore, prohibited from receiving for his
own use and benefit a pass from any corporation. (Dempsey v. N. Y. C.
& H. R. R. R. Co., 146 N. Y., 290.) But where a person made a contract
with a railroad corporation whereby he agreed to render police services.
for it and to receive for such services a fixed salary and also an annual
pass for transportation over its road and that of another corporation,
which could be used by him when engaged in the business of the corpora-
tion or his own private affairs, it was held, that the pass under the con-
tract was not a “free pass”? within the meaning of the Constitution ; and
that action was maintainable to compel specific performance of the con-
tract. (Id.)

A conductor or brakeman upon a passenger train has implied authority,
incident to his position, to remove, in a lawful manner, a trespasser upon
the platform of a car. (Hoffman v. N. Y. C. & H. R. R. Co., 87 N. Y., 25.):
But the company is liable for an abuse of such authority. (Id.)

§ 59. Requisites to exercise of powers of future railroad
corporations.— No railroad corporation hereafter formed under
the laws of this State shall exercise the powers conferred by law
upon such corporation or begin the construction of its road until
the directors shall cause a copy of the articles of association to, be
published in one or more newspapers in each county in which the
road is proposed to be located, at leest once a week for three suc:
cessive weeks, and shall file satisfactory proof thereof with the
board of railroad commissioners; nor until the board of railroad
commissioners shall certify that the foregoing conditions have seen
complied with, and also that public convenience and a* necessity
require the construction of said railroad 28 proposed in said articles
of association. The foregoing certificate shall be applied for within

 

*So in the original,
Forure Rartroaps; Requisires For. 3857
The Railroad Law, § 59.

 

six months after the completion of the three weeks’ publication
hereinbefore provided for. If certificate is refused no further
proceedings shall be had before the said board, but the application
may be renewed after one year from the date of such refusal.

Prior to granting or refusing said certificate the board shall have a.

right to permit errors, omissions or defects to be supplied and cor-
rected. After a refusal to grant such certificate the board shall

certify a copy of all maps and papers on file in its office and of the:

‘findings of the board when so requested by the directors aforesaid.
Such directors may thereupon present the same to a General Term
‘of the Supreme Court of ~he department within which said road is
proposed in whole or in part to be constructed, and said General
‘Term shall have power, in its discretion, to order said board, for
reasons stated, to issue said certificate, and it shall be issued accord-
ingly. Such certificate shall be filed in the office of the secretary
of state, and a copy thereof, certified to be a copy by the.secretary
of state, or.his deputy, shall be evidence of the fact therein stated.
Nothing in this section shall prevent any such railroad corporation
from causing such examinations and surveys for its proposed rail-
road to be made as may be necessary, to the selection of the most
advantageous route; aud for such purpose by its officers or agents
and servants, to enter upon the lands or water of any person, but
subject to the responsibility for all damages which shall be done
thereto.

(New section, added by L. 1892, ch. 676, as amended by LL. 1895, ch, 545.)

By the amendment of 1895 the provisions of this section were extended

‘to street railroads.
The fact that the building of a railroad through a certain tract of the

 

_An act to. validate and confirm certain consents heretofore given by
tthe local authorities of cities of the first and second class in the con-
struction, operation and maintenance of street surface railroads therein.
(Became a law May 14, 1896.)

Srcrion 1. All. consents given since December first, eighteen hundred
cand ninety-five, and prior to February first, eighteen hundred and ninety-
six, by the local authorities of any city of the first or second class, to ‘the
-construction, operation and maintenace of a street surface railroad in
any such city by a railroad corporation which has not complied with the
provisions of section fifty-nine of the railroad law or has failed to obtain
the certificate therein provided for, are hereby validated and confirmed,
and any such corporation may construct, operate and maintain a street
surface railroad over, along and upon the streets, avenues, highways and
public places described in such consent upon obtaining the consent of
the owners of property bounded on such streets, avenues, highways or
public places as provided by law. (Chapter 649, Laws of 1896.)
358 Fourvure Raitroaps; RequisiITEs FoR.

 

The Railroad Law, § 59.

 

Adirondack wilderness will so enhance the value of lands in that locality
as to increase the expense of their addition hereafter to the State Park,
is not a valid reason for refusal to grant a certificate. (In re Long Lake
R. R. Oo., 11 App. Div., 233.)

If the convenience and necessity of the public in a certain locality
require the road, the certificate of necessity should be granted, where
no public interests are prejudiced. (In re Long Lake R. R. Co., 11 App.
Div., 233.) ,

It is not against the policy of the State to allow railroads to be built
in the Adirondack forests. (In re Long Lake R. R. Co., 11 App. Div., 233.)

The mere fact that two railroads, professing to extend in opposite
directions from the same point, each having a length of ten miles, are
incorporated upon the same day and with the same directors, is not a
sufficient ground for refusing the certificate of convenience and necessity.
(In re Long Lake R. R. Co., 11 App. Div., 233.)

Where a proposed road for all practical purposes parallels existing
roads, and its construction would have a tendency to destroy and impair
vested property rights without any material benefit resulting therefrom,
the railroad commissioners are justified in denying the application.
(Matter of Kings, Queens & Suffolk R. R. Co., 6 App. Div., 241.)

It is the duty of the commissioners upon an application for a certificate
to inquire into all the prior proceedings of the alleged corporation, and
if the commissioners find that ten per cent. of the minimum amount or
its capital stock has not been paid in in cash to the directors as required.
by subdivision 13 of section 2 of the Railroad Law, it is the duty of the
board to refuse to grant the certificate. (Matter of Kings, Queens &
Suffolk R. R. Co., 6 App. Div., 241.)

‘Some of the considerations which should not influence the board of
railroad commissioners in its decision are the following: The parties:
in interest (both concededly acting in good faith); the lines of railroad
that were to furnish business to the new company, whether they are
corporations organized in New York or other States, and the capital stock.
was owned by residents or non-residents. (People ex rel. Depew & South-
western R. R. Co. v. Railroad Commissioners, 4 App. Div., 259.)

The determination by the railcoad commissioners that a certificate shall
issue is a final determination of the rights of owners of land through
which the railroad wili pass, if constructed, as to the question of public
convenience and necessity and hence they are not affected by the limita-
tion upon the issuance of the writ of certiorari imposed by the Code
of Civil Procedure, section 2122, subdivision 1. (Stewart v. Railroad Com-
missioners, 160 N. Y., 202, aff’g 40 App. Div., 559.)

The general rule, that a court or board exercising judicial functions by
permission of a statute has no interest in maintaining its determina-
tion and, therefore, cannot be heard on appeal, applies to the railroad
commissioners on a review of their determination that a certificate of
public convenience and necessity shall issue. (Stewart v. Railroad Com-
missioners, 160 N. Y., 202, aff’g 40 App. Div., 559.)
Forurs Rairoaps; Requisrres For. 359
The Railroad Law, § 59. ~

 

Among the things to be taken into consideration is the route that the
proposed road is to take between the named termini; it is evident that
the act contemplates the filing of maps of the proposed route, for it
speaks of their certifying copies of all maps filed with them, in order

that the same may be presented to the Supreme Court, indicating that.

the route or line of road, as shown upon the map, is a proper subject for
consideration in reaching their decision, thus further indicating that the
question for them to decide is whether public convenience and necessity
require the construction of the proposed rodd, not any road. If they
were only to determine whether a road was required between any given
termini, there would be no occasion for maps and profiles, or any con-
fideration of its character, steam or electric, its route or gauge. (People
‘x rel. Depew & Southwestern R. R. Co. v. Railroad Commissioners,
‘{ App. Div., 259.) As the statute makes no provision for an appeal
rom or a review of the determination of the railroad commissioners in
‘yranting a certificate to a rival applicant, its review in that pean may
be effected under a writ of certiorari. (Id.)

Until a certificate has been issued by the railroad commissioners to
the corporation it has no right to ‘‘ exercise the powers conferred by law
upon such corporations,” and is not complete as a corporation; until it
can exercise its statutory powers it is an inchoate thing, having no
vested rights. (People ex rel. Depew & Southwestern “R. BR. Co. v.
Board of Railroad Commissioners, 4 App. Div., 259; see, also, dissent-
ing opinion.)

The railroad commissioners have jurisdiction to determine, in a case
of rival applicants, whether certificates of consent shall be issued to both,
or a certificate should issue to one only, and if only to one, to which one.
(People ex rel. Depew & Southwestern R. R. Co. v. Board of Railroad
Commissioners, 4 App. Div., 259.)

An application to the Appellate Division to review the proceedings of
the railroad commissioners is a proceeding in the nature of an appeal
from the decision of the board, and for that reason a writ of certiorari
should not be granted while an appeal is pending in the same matter ;
furthermore the action of the commissioners in refusing to grant a
certificate does not finally determine the rights of the parties, as a
proceeding to review it is given by the foregoing section, and, therefore,
a writ of certiorari would not lie to review the determination of the
board. (People ex rel. Depew & Southwestern R. R. Co. v. Board of
Railroad Commissioners, 4 App. Div., 259.)

The fact that the railroad commissioners refuse a proposed street
railroad company a certificate of public convenience and necessity,
does not prevent such railroad company from becoming a bid-
der at a sale in New York city under section 93 of the Railroad Law.
(Matter of Empire City Traction Co., 4 App. Div., 103.)

The intention of ‘this section is to prevent the paralleling of routes and
the filing of certificates of incorporation by different companies for the
same routes, and the holding of franchises by the filing of such cer-
tificates, thereby preventing others willing so to do from proceeding
with the improvement without making terms with the corporation first
360 Future Rarmzoaps; ReqvisiTEs FoR.

 

The Railroad Law, § 59.

 

filing its certificate. (Matter of Empire City Traction Co., 4 App. Div.,
103.)

Where two rival companies make application for a certificate of
necessity, the mere fact that one completed its incorporation first does
not necessarily give it a prior right to the certificate. (In re Depew &
Southwestern R. R. Co., 92 Hun, 406.)

The railroad commissioners, in passing upon an application for a cer-
tificate, act judicially, and the burden is upon the defeated company to
show that the board erred in its determination; the decision of the board
is entitled to support, so far as it is fairly justified by the facts, to the
Same extent as that of any other judicial tribunal whose judgments are
subject to review. (In re Depew & Southwestern R. R. Co., 92 Hun, 406.)

Even if the board of railroad commissioners refuse to grant the requisite
certificate, the corporation does not thereby become functus officio; it has
the privilege, after the expiration of one year, to renew its application.

. (McWilliams v. Jewett, 14 Misc., 491.)

x

The prohibition against the exercise of ‘the powers conferred by law
upon such corporations ” until such certificate is obtained, has reference
solely to the additional powers specially conferred by the chapter, relating
to the survey, acquisition of land, construction, etc., and does not apply
to the initial proceedings peculiar to street railroads, such as the obtain-
ing of the consents of property-owners and the local authorities.
(McWilliams vy. Jewett, 14 Misc., 491.)

A railroad corporation, notwithstanding that no certificate has been
issued to it by the railroad commissioners and that it has not paid its
organization tax, is estopped from resisting payment for services ren-
dered to it at its request. (Muehlenbeck v. Babylon, North Shore R. R.
Co., 26 Misc., 136.)

The Appellate Division will not reverse a determination of the railroad
commissioners that public convenience and necessity require the con-
struction of a railroad unless it clearly appears that the decision was
founded upon erroneous legal principles or was contrary to the weight
of evidence. (People ex rel. Terminal Railway v. R. R. Commrs., 53 App.
Div., 61; aff’d, 164 N. Y., 572.) The fact that a proposed railroad will
divert a large amount of traffic from the streets of a populous city and
will effect a considerable saving in time and cost of transporting freight,
affords a sufficient basis for the determination that the construction of
such railroad is required. (Id.)

The foregoing section grants the General Term of the Supreme Court
power to review the action of .the railroad commissioners in refusing
to grant the certificate therein provided for, but the act plainly indicates
that the court is to treat the application as in the nature of a review of
the decision of a subordinate tribunal, and not as it would an original
application made to it in the first instance. (Matter, of New Hamburg
R. R. Co., 76 Hun, 76; Matter of Amsterdam, Johnstown & Gloversville
R. R. Co., 86 Hun, 578.) The burden rests upon the petitioner to show
affirmatively that the commissioners erred in their determination. (Matter
of Amsterdam. Johnstown & Gloversville R. R. Co., 86 Hun, 578.)° The
Forvrz Rariroaps; RequisttEs FoR. 361

 

The Railroad Law, § 59.

 

¢ertificate does not Issue as a- matter of right in the event of no one
appearing to oppose the application, and if any one does appear in oppo-
sition he is not obliged to prove the negative and convince the board
that publie convenience and necessity do not require the construction
of the road; the burden of proof is upon the corporation to establish the
performance by it of the requirements of the law and to establish the
existence of that condition of affairs which will authorize the issue of a
‘certificate. (Id.) The fact that a railroad company charged exorbitant
fates for-freight and passengers does not make out a case for the building
of a practically parallel road; such charges may indicate Insufficient
business to support the road at lower rates, or bad management and a
grasping disposition on the part of the operators of the road. The
remedy in the latter case is to apply to the commissioners for a reduction
of the rates, pursuant to section 161 of the Railroad Law. (Id.)

Where an application to the Railroad Commissioners for a certificate
under the foregoing section was refused, an application to the General
Term for a review of such decision must be treated as a review of the
decision of a subordinate tribunal and not as an original application to
the court in the first instance. (Matter of the New Hamburgh & Pough-
keepsie C. R. R. Co., 76 Hun, 76.) The petitioner must show affirmatively
that the commissioners erred in their determination. (Id.)

On the hearing upon the return to a writ of certiorari, issued to review
the action of the Railroad Commissioners in granting a certificate for
the construction of a proposed railroad, it appeared that such railroad
‘would be less than three miles in length, and would extend between two
points on another line of railroad, in the interest of which it was to be
constructed; that as the ‘proposed road would be practically a switch of
the old railroad, the Commissioners improperly exercised their discretion
dn granting the certificate. (Peo. ex rel. Stewart v. Railroad Commis-
sioners, 40 App. Div., 559.)

The fact that, owing to the refusal of local authorities to permit the
construction of a street surface railway in certain places, it is necessary
to make changes in the route stated in the certificate of incorporation,
ldoes not require the Railroad Commissioners to refuse a certificate; where
‘ft appears that the changes are not substantial, and that whatever con-
venience would be subserved by the original route, would be subserved
y building on the route as changed. (Peo. ex rel. Long Island R. R. Co.
‘v. Railroad Com’rs, 42 App. Div., 366.)

An application to reverse, as against the weight of evidence, the deter-
gnination of the Railroad Commissioners upon an application for a cer-
tificate is governed, as to the preponderance of evidence, by the same
tule which is applicable to a motion to set aside a verdict in an action
\in the Supreme Court. (People ex rel. Long Island R. R. Co. v. Railroad
‘Oom’rs, 42 App. Div., 366.)

A certificate, under section 59 of the Railroad Law, is not requisite
where a street surface railroad is about to make only a bona fide extension
362 Consext to Coxsrruct Parr or Route.

 

The Railroad Law, § 59a.

 

of its route. (D., L. & W. R. R. Co. v. Syracuse, Lakeside & B. R. R. Co.,.
28 Misc., 456.) ‘i

Chapter 649, Laws of 1896 (see said act, page 357, ante), is available to
a corporation which, being unable to secure conserts of abutting owners,
under section 91 of the Railroad Law, obtains the confirmation by the
Appellate Division of a report of Commissioners, favoring the construc-
tion of the railroad, pursuant to section 94 of said law. (Matter of Buf-
falo Traction Co., 25 App. Div., 447.) The fact that but one city and one-
railroad corporation in the State will be affected or benefited by the act
does not constitute the act, which is general in its terms, a local or pri-
vate bill within the meaning of the Constitution, article 3, section 18; nor
is the act offensive to article 3, section 16, that no local or private bill
shall embrace more than one subject, which must be expressed in its
title. (Id.)

§ 59-a. Railroad commissioners may certify part of
the route of a street surface railroad; power to re-
voke certificates; street surface railroad extension.—
Whenever application i is made by a street surface railroad company for
a certificate of public convenience and a necessity as required by the
provisions of the foregoing section, and it shall appear to the board of
railroad commissioners, after examination of the proposed route of the
applicant company that public convenience and a necessity do not.
require the construction of said railroad as proposed in its articles.
of association but do require the construction of a part of the said
railroad, the board of railroad commissioners may issue its certificate
for the construction of such part of the said railroad as seems to it
to be required by public convenience and a necessity. In case any
railroad company which shall hereafter obtain the certificate of the
board of railroad commissioners that public convenience and a neces-
sity require the construction of the whole or a part of the said rail-
road shall fail to begin such construction within two years from the
date of the issuing of said certificate, the board of railroad commis-
sioners may inquire into the reason for such failure and the said board’
may revoke said certificate if it shall appear to it to be in the public
interest so to do. Any street surface railroad company which proposes.
to extend its road beyond the limits of any city or incorporated vil-
_ lage by a route which will be practically parallel with a street surface
railroad already, constructed and in operation shall first obtain the
certificate of the board of railroad commissioners that public con-
venience and a necessity require the construction of such extension:
as provided in the case of a railroad corporation newly formed. Be-
fore making application for such certificate the corporation shall
cause to be advertised the route of the proposed extension in one or
more newspapers in each county in which such extension is to be
constructed, at least once a week for three successive weeks, and shall
file satisfactory proof of such publication with the board of railroad.
commissioners. Nothing in this section shall prevent street railroad
companies from making extensions within the limits of cities or in-

«» corporated villages upon compliance with the provisions of law now
applicable thereto.

(New section, added by L. 1898, ch. 643, as amended by I. 1902, ch. 226.)

The provisions regulating extensions which parallel existing railroads
were added by the amendment of 1902.

o
GraprE Crossincs TO BE AVOIDED. 363

 

The Railroad Law, §§ &9b, 60.

 

§ 59b. Roads in Saratoga and Washington counties. —
Whenever it shall be made to appear to the board of. railroad
commissioners that any steam railroad corporation, which has
‘obtained from it a certificate under section fifty-nine of the rail-
road law since eighteen hundred and ninety-four and whose road
is less than ten miles in length, and was to be built in the counties
of Saratoga and Washington, shall not have completed its con-
struction and put it in operation within three years after obtaining
‘such certificates, the said board, on notice to such corporation,
‘shall have the power to revoke the said certificate and consent and
thereupon the corporate existence and power of such railroad cor-

‘poration shall cease and determine.
(New section, added by L. 1899, ch. 597.)

§ 60. (Public crossings at grade to be avoided. )— All steam
surface railroads, hereafter built except additional switches and
sidings, must be so constructed as to avoid all public crossings at.
grade, whenever practicable so to do. “Whenever application is
made to the board of railroad commissioners, under section fifty-
nine of the railroad law, there shall be filed with said board a map
showing the streets, avenues and highways proposed to be crossed
by the new construction, and the said board shall determine
whether such crossings shall be under or over the proposed railroad,
,except where said board shall determine such method of crossing
to be impracticable. Whenever an application is made under this
section to determine the manner of crossing, the said board shall
designate a time and place when and where a hearing will be given
to such railroad company, and shall notify the municipal corpore-
tion having jurisdiction over such streets, avenues or highways
proposed to be crossed by the new railroad. The said board shall
‘also give public notice of such hearing in at least two newspapers,
published in the locality affected by the application, and all persons
owning land in the vicinity of the proposed crossings shall have
the right to be heard. The decision of the said board rendered in
any proceedings under this section shall be communicated, within
‘twenty days after final hearing, to all parties to whom notice of the
364 Streets Across Steam Surrace RarLRoabDs.

 

The Railroad Law, § 61.

 

hearing in said proceedings was given, or who appeared at said
hearing by counsel or in person.

(New, added by L. 1897, ch. 754.)

Sections 60 to 69, inclusive. constitute what is known as the Grade
Crossing Law. For cases applicable thereto, see pages 371-,373 post.

§ 61. (Manner of constructing new streets, highways,
etc., across steam surface railroads.)—-When a new street,
avenue or highway, or new portion of a street, avenue or highway
shall hereafter be constructed across a steam surface railroad, other
than pursuant to the provisions of section sixty-two of this act,
such street, avenue or highway or portion of such street, avenue
or highway, shall pass over or under such railroad or at grade as
the board of railroad commissioners shall direct. Notice of inten-
tion to lay out such street, avenue or highway, or new portion of
a street, avenue or highway, across a steam surface railroad, shall
be given to such railroad company by the municipal corporation
at least fifteen: days prior to the making of the order laying out
such street, avenue or highway by service personally on the presi-
dent or vice-president of the railroad corporation, or any general
officer thereof. Such notice shall designate the time and place
and when and where a hearing will be given to such railroad
company, and such railroad company shall have the right to be
heard before the authorities of such municipal corporation upon
the question of the necessity of such street, avenue or highway.
If the municipal corporation determines such street, avenue or
highway to be necessary, it shall then apply to the board of rail-
road commissioners before any further proceedings are taken, to
determine whether such street, avenue or highway shall pass over
er under such railroad, or at grade, whereupon the said board of
railroad commissioners shall appoint a time and place for hearing
such application, and shall give such notice thereof, as they judge
reasonable, not, however, less than ten days, to the railroad com-

 

—

None of the provisions of sections 60 to 69, both inclusive, apply to
crossings in the city of Buffalo, under the jurisdiction of the grade
crossing commissioners of that city, nor shall they apply to the Univer-
sity avenue or Brown street crossing, in the city of Rochester. (lL. 1897,
ch. 754.)
Czossine Hieuways, ETC. 865

 

The Railroad Law, § 62.

pany whose railroad is to be crossed by such new street, avenue or
‘highway, or new portion of a street, avenue or highway, to the
municipal corporation and to the owners of land adjoining the
railroad and that part of the street, avenue or highway to be
opened or extended. The said board of railroad commissioners
‘shall determine whether such street, avenue or highway, .or new
portion of a street, avenue or highway, shall be constructed
over or. under such railroad’ or at grade; and if said
board determine that such street, avenue or highway shall be
carried across such railroad above grade, then said board shall
determine the height, the length and the material of the bridge or
structure by means of which such street, avenue or highway shall
be carried across such railroad, and the length, character and
grades of the approaches thereto; and if said board shall determine
that such street, avenue or hieliway shall be constructed or
extended below the grade, said board shall determine the manner
and method in which the same shall be so carried under, and the
grade or grades thereof, and if said board shall determine that said
street, avenue or highway shall be constructed or extended at
grade, said board shall determine the manner and method in which.
the same shall be carried over said railroad at grade and what
safeguards shall be maintained. The decision of the said board
as to the manner and method of carrying such new street, avenue
or highway, or new portion of a street, avenue or highway, across
such railroad, shall be final, subject, however, to the right of
appeal herainafter given. The decision of said board rendered in.
any proceeding under this section shall be communicated within.
twenty days after final hearing to all parties to whom notice of
the hearing in such proceeding was given or who appeared at such:
hearing by counsel or in person. ;

(New, added by 1. 1897, ch. 754, and thus amended by L. 1898, ch. 520.)

Ԥ 62. (Alteration in manner of crossing highways;
hearing before railroad commissioners.)— The mayor and.
common council of any city, the president and trustees of any
village, the town board of any town within which a street, avenue
or highway crosses or is crossed by a steam surface railroad at
grade, or any steam surface railroad company, whose road crosses
or is crossed by a street, avenue or highway at grade, may bring
their petition, in writing, to the board of railroad commissioners,
therein alleging that public safety requires an alteration in the
manner of such crossing, its approaches, the method of crossing,
366 Hicuway Orosstnc; Bripezs over RarRoaps,

 

The Railroad Law, § 63.

 

the location of the highway or crossing, the closing and discontinu-
ance of a highway crossing and the diversion of the travel thereon
to another highway or crossing, or if not practicable to change
such crossing from grade or to close and discontinue the same,
the opening of an additional crossing for the partial diversion of
travel from the grade crossing, and praying that the same may be
ordered; whereupon the said board of railroad commissioners shall
appoint a time and place for hearing the petition, and shall give
such personal notice thereof as they shall judge reasonable, of not
less than ten days, however, to said petitioner, the railroad com-
pany, the municipality in which such crossing is situated, and to
the owners of the lands adjoining such crossing and adjoining |
that part of the highway to be changed in grade or location, or'
the land to be opened for a new crossing, and shall cause notice;
of said hearing to be advertised in at least two newspapers pub-|
lished in the locality affected by the application; and after such!
notice of hearing the said board of railroad commissioners shall!
determine what alterations or changes, if any, shall be made. The!
decision of said board of railroad commissioners rendered in any’
proceeding under this section, shall be communicated within
twenty days after final hearing to all parties to whom notice of
the hearing in said proceeding was given, or who appeared at said
hearing by counsel or in person. Any person aggrieved by such
decision, or by a decision made pursuant to sections sixty and
sixty-one hereof, and who was a party to said proceeding, may.
within sixty days appeal therefrom to the appellate division of the
supreme court in the department in which such grade crossing is’
situated and to the court of appeals, in the same manner and with'
like effect as is provided in the case of appeals from an order of
the supreme court.

(New, added by L. 1897, ch. 754, and thus amended by L. 1898, ch. 620,
and L. 1899, ch. 359.)

§ 63. (Acquisition of property for new highway cross-
ing.) — The municipal corporation in which the highway cross-
ing is located, may, with the approval of the railroad company,
acquire by purcliase any lands, rights or easements necessary or
required for the purpose of carrying out the provisions of section
sixty, sixty-one and sixty-two of this act, but if unable'to do so
shall acquire such lands, rights or easements by condemnation
either under the condemnation law, or under the provisions of the
charter of such municipal corporation. The railroad company
Expense oF *RalLRoap AND HigHway Orossines. 3867

 

The Railroad Law, §§ 64, 65.

 

shall have notice of any such proceedings and the right to be heard
therein.
(New, added by L. 1897, ch. 754, and thus amended by L. 1899, ch. 226.)

§ 64. (Highway bridges over railroads; maintenance
thereof.)— When a highway crosses a railroad by an overhead bridge,
the frame work of the bridge and its abutments, shall be maintained
and kept in repair by the railroad company, and the roadway there-
over and the approaches thereto shall be maintained and kept in
repair by the municipality in which the same are situated; except
that in the case of any overhead bridge constructed prior to the enact-
‘ment of sections sixty-one and sixty-two of this act, the roadway
-over and. the approaches to which the railroad company was under
-obligation ta maintain and repair, such obligations shall continue,
provided the railroad company shall have at least ten days’ notice
-of any defect in the roadway thereover and the approaches thereto,
which notice must be given in writing by the commissioner of high-
‘ways or other duly constituted authorities, and the railroad company
shall not be liable by reason of any such defect unless it shall have
failed to make repairs within ten days after the service of such notice
upon it. When a highway passes under a railroad, the bridge and its
abutments shall be maintained and kept in repair by the railroad
company, and the subway and its approaches shall be maintained and
kept in repair by the municipality in which the same are situated.

(New, added by L. 1897, ch. 754, as amended by L. 1902, ch. 140.)

‘§ 65. (Expense of railroad and highway crossings.)—
“Whenever, under the provisions of section sixty of this act, new rail-
Toads are constructed across existing highways, the expense of cross-
ing above or below the grade of the highway shall be paid entirely by

* the railroad corporations. Whenever under the provisions of section
sixty-one of this act a new street, avenue or highway is constructed
across an existing railroad, the railroad corporation shall pay one-half
and the municipal corporation wherein such street, avenue or high-
way is located, shall pay the remaining one-half of the expense of
making such crossing above or below grade; and whenever a change
is made as to an existing crossing in accordance with the provisions
of section sixty-two of this act, fifty per centum of the expense thereof
shall be borne by the railroad corporation, twenty-five per centum, by
‘the municipal corporation, and twenty-five per centum by the state.
Whenever, in carrying out the provisions of sections sixty-one or
sixty-two of this act, two or more lines of steam surface railroad,
‘owned and operated by different corporations, cross a highway at a
point where a change in grade is made, each corporation shall pay
such proportion of fifty per centum of the expense thereof as shall be
determined by the board of railroad commissioners. In carrying
out the provisions of sections sixty, sixty-one and sixty-two of this
act the work shall be done by the railroad corporation or corpora-
tions affected thereby, subject to the supervision of and approval
of the board of railroad commissioners, and in all cases, except
where the entire expense is paid by the railroad corporation, the
‘expense of construction shall be paid primarily by the railroad
368 Expense or Rarroap anp Highway Crossings.

 

The Railroad Law, § 65.

 

company, and the expense of acquiring additional lands, rights or
easements, shall be paid primarily by the municipal corporation
wherein such highway crossings are located. Plans and specifica-
tions of all changes proposed under sections sixty-one and sixty-two-
of this act, and an estimate of the expense thereof shall be sub-
mitted to the board of railroad commissioners for their approval
before the letting of any contract. In case the work is done by
contract the proposals of contractors shall be submitted to the
‘board of railroad commissioners, and if the board shall determine-
that the bids are excessive it shall have the power to require the
submission of new proposals. The board of railroad commission-
ers may employ temporarily such experts and engineers as may be
necessary to properly supervise any work that may be undertaken
under sections sixty, sixty-one or sixty-two of this act, the expense
thereof to be paid by the comptroller upon the requisition and
certificate of the said board, said expense to be included in the
cost of the particular change in grade on account of which it is
incurred and finally apportioned in the manner provided in this.
section. Upon the completion of the work and its approval by
the board of railroad commissioners an accounting shall be had
between the railroad corporation and the municipal corporation,
of the amounts expended by each with interest, and if it shall
appear that the railroad corporation or the municipal corporation
have expended more than their proportion of the expense of the
crossing as herein provided, a settlement shall be forthwith made
in accordance with the provisions of this section. All items of
expenditure shall be verified under oath, and, in case of a dispute
between the railroad corporation and the municipal corporation
as to the amount expended, any judge of the supreme court in the-
judicial district in which the municipality is situated, may appoint
a referee to take testimony as to the amount expended, and the
confirmation of the report of the referee shall be final. In the
event of the failure or refusal of the railroad corporation to pay
its proportion of the expense, the same, with interest from the
date of such accounting, may be levied and assessed upon the
railroad corporation and collected in the same manner that taxes
and assessments are now collected by the municipal corporation
within which the work is done; and in the event of the failure or
refusal of the municipal corporation to pay its proportion of the
expense, suit may be instituted by the railroad corporation for the
collection of the same with interest from the date of such account-
ing, or the railroad corporation may offset such amount with.
:
co
ALTERATION OF GrapE CRossINeGs. 369

 

The Railroad Law, § 65.

‘

interest against any taxes levied or assessed against it or its prop-
‘erty by such municipal corporation. The legislature shall annu-
ally appropriate out of any moneys not otherwise appropriated,
the sum of one hundred thousand dollars forthe purpose of paying
the state’s proportion of the expense of a change in an existing
grade crossing. If, in any year, any less sum than one hundred
thousand dollars is expended by the state for the purpose afore-
said the balance remaining unexpended shall be applied to reduce
the amount appropriated by the state in the next succeeding year,
except that no such deduction shall be made in case there are
outstanding and unadjusted obligations on account of a change in
an existing grade crossing fora proportion of which the state is
liable under the provisions of this section. In the event of the
appropriation made by the state in any one year being insufficient
to pay the state’s proportion of the expense of any change that may
be ordered the first paynient from the appropriation of the suc-
ceeding year shall be on account of said change, and no payment
shall be made on account of any subsequent change that may be
ordered, nor shall any subsequent change be ordered until the obli-
gation of the state on account of the first-named change in grade
has been fully discharged, unless the same shall be provided for by
an additional appropriation to be made by the legislature. The
state’s proportion of the expense of changing any existing grade
crossing shall be paid by the state treasurer on the warrant of the
comptroller, to which shall be appended the certificate of the board
of railroad commissioners to the effect that the work has been
properly performed and a statement showing the situation of the
crossing that has been changed, the total cost and the proportionate
expense thereof, and the money shall be paid in whole or in part
to the railroad corporation or to the municipal corporation as the
board of railroad commissioners may direct, subject, however, to
the rights of the respective parties as they appear from the account-
ing to be had as hereinbefore provided for. No claim for dam-
ages to property on account of the change or abolishment of any
crossing under the provisions of this act shall be allowed unless
notice of such claim is filed with the board of railroad commission-
ers within six months after completion of the work necessary for
such change or abolishment.

(Added by L. 1897, ch..754, amended by L. 1898, ch. 520; L. 1900, ch.
517.)

24
cf
370 Street Rartroaps Crossing Steam RatLRoabs.

 

The Railroad Law, §§ 66, 67, 67a.

 

§ 66. (Proceedings by railroad commissioners for al-
teration of grade crossings.) — The railroad commissioners
may, in the absence of any application therefor, when, in their
opinion, public safety requires an alteration in an existing grade
crossing, institute proceedings on their own motion for an altera-
tion in such grade crossing, upon such notice as they shall deem
reasonable, of not less than ten days, however, to the railroad com-
pany, the municipal corporation and the person or persons inter-"
ested, and proceedings shall be conducted as provided in section
sixty-two of this act. The changes in existing grade crossings au-
thorized or required by the board of railroad commissioners in any
one year shall be so distributed and apportioned over and among
the railroads and the muricipalities of the state as to produce such
equality of burden upon them for their proportionate part of the
expenses as herein provided for as the nature and circumstances
of the cases before them will permit.

(New, added by L. 1897, ch. 754.)

§ 67. (Compliance with recommendations of railroad
commissioners; how enforced.)— It shall be the duty of the
corporation, municipality or person or persons to whom the de-
cisions or recommendations of the board of railroad commissioners
are directed, as‘provided in sections sixty, sixty-one, sixty-two and
sixty-six of this act to comply with such decisions and recom-
mendations, and in case of their failure so to do, the board shall
present the facts in the case to the attorney-general, who shall
thereupon take proceedings to compel obedience to the decisions
and recommendations of the board of railroad commissioners. The
supreme court at a special term shall have the power in all cases
of such decisions and recommendations by the board of railroad
commissioners to compel compliance therewith by mandamus, sub-
ject to appeal to the appellate division of the supreme court and the
court of appeals, in the same manner, and with like effect, as is
provided in case of appeals from any order of the supreme court.

(New, added by L. 1897, ch. 754.)

§ 67-2. (Expense; how paid.) — Whenever in carrying out
any of the provisions of sections sixty, sixty-one, sixty-two, sixty-
three, sixty-four, sixty-five, sixty-six or sixty-seven of this act, any
municipality shall incur any expense or become liable for the pay-
Grape Crossine Act. 371

 

The Railroad Law, §§ 68, 69.

 

ment of any moneys, it shall be lawful for such municipality. to tem-
‘porarily borrow such moneys on the notes or certificates of such
municipality, and to include the amount of outstanding notes or cer-
tificates, or any part thereof, in its next annual tax levy for municipal
purposes, or in the discretion of the common council in case of a
city, the board of trustees in case of a village or the town board in
case of a town, to borrow the same, or any part thereof, on the credit
of the municipality, and to issue bonds therefor, which bonds shall
be signed by the mayor and clerk in case of a city, the president and
‘clerk in case of a village and the town board in case of a town, and
shall be in such form and for such sums and be payable at such times
and places with interest not exceeding four per centum per annum,
as the common council in case of a city, the board of trustees in case
of a village, and the town board in case of a town, shall direct.
(New, added by L.. 1899, ch. 541, amended by L. 1902, ch. 198.)

§ 68. (Street surface railroads crossing steam railroads.)
— All ‘steam railroads hereafter constructed across the tracks of any
other railroad and any street surface railroad hereafter constructed
across‘a steam railroad shall be above, below, or at grade of such exist-
ing railroad as the board of railroad commissioners shall determine,
and such board shall in such determination fix the proportion of
expense of such crossing to be paid by each railroad.

(New, added by L. 1897, ch. 754, and amended by L. 1900, ch. 739.)

§ 69. (Application of sections 60-68.)— The provisions
of this* act shall also apply to all existing or future steam surface rail-
roads, on which, after the passage of this act, electricity or some other
agency than steam shall be substituted as a motive power.

(New, added by L. 1897, ch. 754.) ‘

None of the provisions of: sections 60-69, supra, as added by Laws of
1897, chapter 754, are applicable to crossings in the city of Buffalo under
the jurisdiction of the grade crossing commissioners of that city, nor are
they applicable to the University avenue or Brown street crossing, in the
city of Rochester. (L. 1897, ch. 754, section 2.)

Section 61, requiring notice of an intention to lay out a street, avenue
or highway across a steam surface railroad to. be given to the railroad
company by the municipal corporation, and giving the railroad company
the right to be heard before the authorities of the municipal corporation
upon the question of the necessity. of such street, avenue or highway, is
not rendered inapplicable to a proceeding, begun under the charter of
the city of Yonkers, Laws of 1895, ch. 635, before the act was passed,

 

* The act referred to is chapter 754, Laws of 1897, and includes sections
60 to 68.
372 Grapr Crossine Act.

 

Cases Applicable.

by section 31 of the Statutory Construction Law relating to the effect
of the repeal of a statute, as the act of 1897 only affects the procedure and
is not retrospective. (Matter of Ludlow Street,,59 App. Div., 180. See,
also, 47 App. Div., 317.) :

In a review of the determination of the common council, in reference
to an extension under section 61, a referee will not be appointed to take
proof of the facts and circumstances under which the common council
passed the ordinance. (Matter of North Third Ave., 30 App. Div., 256.)

Objection that proper notice of the hearing before the railroad com-
missioners, interposed by a party represented thereat, cannot be raised
for the first time upon an appeal from the order granting the application.
(Town Board vy. Fitchburg R. R. Co., 53 App. Div., 16.)

The act of 1853, chapter 62, was repealed by the act of 1897, chapter 754,
relating to grade crossings, and since July 1, 1897, the day on which the.
latter act took effect, the procedure provided by that act must be resorted
to in all attempts to take a street across the tracks of a steam railroad,
unless proceedings under the act of 1853 were commenced prior to July
1, 1897, in which case the right to prosecute the proceeding to the end
in the courts is preserved by section 31 of the Statutory Construction
Law. (People ex rel. City of Niagara Falls v. N. Y. C. & H. R. R. R. Co.,
158 N. Y., 410.)

By this section a railroad company is given an appeal to the Appellate-
Division from the determination of a municipal corporation to lay out
a highway across its railroad. (Matter of Mount Vernon & N. Y., N. H.
& H. R. R. Co., 32 App. Div., 394, citing 30 App. Div., 256.)

The regularity of a proceeding by which a street railroad company
seeks a right to cross the tracks of a steam railroad company at a point
where the latter tracks intersect the highway on which the street rail-
road is constructed, must be determined by the Railroad Law as it stood
when the application was made, and a subsequent amendatory act,
prospective in its operation and precluded from retroactive effect by
section 31 of the Statutory Construction Law, has no pertinency. (Geneva
& Waterloo Ry. Co. v. N. ¥. C. & H. R. R. R. Co., 163 N. Y., 228, revsg.
24 App. Div., 335, 24 App. Divs, 631.) .

When grade crossing commissioners have determined that a change
of grade pursuant to their plans may injure a single parcel of land, the:
commissioners of appraisal are not restricted by such determination, but
may award damages for injury done to the land as an entirety. (Matter
of Grade Crossing Comrs., 59 App. Div., 498.)

By the foregoing law it was intended that the railroad commissioners:
should be consulted and should determine the manner in which streets.
should cross steam surface railroads, and in the absence of such deter-
mination a mandamus will not be granted requiring a railroad company
to cause a street to be taken across its tracks. (People ex rel. Niagara
Falls v. N. Y. C. & H. R. R. R. Co., 31 App. Div., 334.)

The act of 1853, chapter 62, which permits municipalities to lay out.
streets across railroad tracks without compensation, does not apply when
the railroad property to be used for a street is held and used by the-
Grape Crossine Act. 3873

 

Cases Applicable.

 

‘railroad corporation for storage, yard and depot purposes. (People ex
rel: City of Buffalo v. N.Y.C.&H.R.B.R. Co., 156 N. Y., 570.)

Where a village began proceedings June 21, 1897, to have a highway
taken across the tracks of a railroad, under chapter 62, Laws of 1853,
the court refused to grant a mandamus compelling action by the railroad,
under said act, and left the village to the remedy afforded by section 61
-of the Railroad Law, which was passed May 22, 1897; took effect July 1,.
1897. (Matter of Village of Waverly, 35 App. Div., 38.)

An ‘incorporated village may extend a street at grade over lands of
a railroad company. used by it as a yard where the street will not inter-
fere with any structure of the company. (Matter of Folts St., 18 App.
Div., 568.)

A railroad cannot be compelled to take a street across land acquired
‘py: it for its railroad and termihal facilities. (Rochester & Honeoye Val-
ley R. R. Co. v. Rochester, 17 App. Div., 257.)

Where the subject-matter of a controversy is over the right of a city
‘to compel a railroad corporation to carry a highway across land occupied
‘by it, the cost of a grade crossing is a proper basis for an extra allow-
ance. (Rochester & Honeoye Valley R. R. Co. v. Rochester, 17 App.
-Div., 257.)

The stringers constitute part of the framework of a bridge, and as
ssuch are within the requirements of this section, that when a highway
-erosses a railroad by-an overhead bridge the framework of the bridge
is to be kept in repair by the railroad company. (Bush vy. D., L. & W.
R. R. Co., 166 N. Y., 210, aff’g 54 App. Div., 616.)

This section in providing that when a highway crosses a railroad by
an overhead bridge, the framework of the bridge and its abutments shall
be maintained and kept in repair by the railroad, is not limited in its
application fo railroads constructed subsequent to its enactment or to
bridges over crossings thereafter constructed before or after the law
went into effect. (Yonkers v. N. Y. C. & H. RB. R. R. Co., 165 N. Y., 142,
-aff’g 32 App. Div., 474. See, also, 163 N. Y., 228.) ,

* The railroad commissioners now have power, under section 68, to deter-
mine what proportion of the expense of a crossing should be paid by a
street railroad company over the tracks of a steam railroad, and where
that power has been exercised, if the railroad crossed is entitled to fur-
‘ther compensation, under section 12 of this law, the street surface rail-
road will be allowed to provide for that item by a bond. (D., L. & W.
R. R. Co. v. Syracuse, Lakeside & Baldwinsville R. R..Co., 28 Misc., 456.)

A special act is not rendered unconstitutional because it authorizes the
consolidation of two or more railroads, nor because it dissolves the
original corporation and creates a new one with a new name. (Bohmer
y. Haffen, 161 N. Y., 390, aff’g 35 App. Div., 381.)

Where individuals owning and controlling certain railroads devised a
fraudulent scheme of consolidation, and issued bonds of the consolidated
company upon false representations as to lands to be furnished as added
-security to make the bonds secure, render them, as well as the corpora-
tion, liable for relief to the bondholders. (O’Beirne v. Bullis, 158 N. Y.,
-466.)
374 ConsoLipation oF CoRPORATIONS.
The Railroad Law, § 70.

, ARTICLE III.

Consotipation, Lease, SaLe aND REORGANIZATION.

Section 70. Consolidation of corporations owning continuous lines.

71. Conditions.
1. Joint agreement ; amount of capital stock.
2. Agreement to be submitted to meeting of stock-

holders.

92. New corporation.

73, Oreditors’ rights not to be impaired.

74, Assessment of property of new corporation.

915. Stock of municipal corporation, how represented.

%6. Foreclosure of mortgages made by (consolidated) ‘rail-.
roads partly in the state.

97. Powers of corporations organized to acquire and operate
railroads partly in the state.

78. Lease of road.

79. Lessees of railroad may acquire stock therein.

80. Consolidation and lease of parallel lines prohibited.

81. Mortgagee may purchase at foreclosure sale.

82. Certificates of stock may be issued after ‘foreclosure it
certain cases.

83. Liabilities of reorganized railroad corporations.

84, Application of this article to certain corporations.

. § 70. Consolidation of corporations owning continuous
lines. —Any railroad or other corporation, organized under the
laws of this state, or of this state and any other state, and owning
or operating a railroad, bridge or tunnel, either wholly within
or partly within and partly without the state, or whose lines.
or routes of road have been located but not constructed, may
merge and consolidate its capital stock, franchises, and prop-
erty with the capital stock, franchises and property of any
other railroad, tunnel or bridge corporation or corporations
organized under the laws of this state or of this state and
any other state, or under the laws of any other state or
states, whenever the two or more railroads of the companies or cor-
porations so to be consolidated, tunnels, bridges or branches or any
part thereof, or the line or routes of their road, if not constructed,.
shall or may form a continuous or connected ine of railroad with
each other or by means of any intervening railroad bridge, tunnel.
or ferry and any such consolidated corporation may thereupon con-
struct or finish the construction of such continuous line of railroad,.
if not previously constructed, and operate the same, subject to all
provisions of law applicable to such railroad corporations. Where:
the road to be operated is in whole or in part a tunnel or sub-surface
* ConsoLiparion uF CuorPoRAtiuNns; ConDITIONS. 375

 

The Railroad Law, § 71.

road, authorized by section 16 of this chapter, its consolidation with
another road or roads under the provisions of this section shall not
prevent any connecting railroad from having equal rights of transit
for its passengers and freight through or over the tunnel or bridge
of any such road, upon the same equitable terms, nor shall such
consolidation be made where such tunnel or sub-surface road
exceeds five miles in length.

(Thus amended by L. 1892, ch. 676.)

For forms in consolidation proceedings, see post, forms Nos. 110, 111, 112.

The corporation formed by consolidation, is not required to pay the tax
of one-twentieth of one per cent for the privilege of organization; see the organi-
zation tax law, pages 73, 74, and cases cited thereunder.

Upon the consolidation of domestic and foreign railroad corporations the
resulting entity is a domestic corporation. (In re Sage v. L. 8. & M.S. R. R.
Co., 70 N. Y., 220; Boardman v. Same, 84 N. Y., 157.) But the sanction of
the legislatures of the other states is necessary. (People v. N. Y., C. & St. L.
R. R. Co., 129 N. Y., 474; People v. Fitchburg R. R. Co., 129 N. Y., 654.)
Whether the result would be a new corporation de jure is a mooted question.
(Id.)

The language “ form a continuous line of railroad with each other ” means
a line or route extending and continuing in substantially the same general
direction connecting two principal points. (People v. B. H. T. & West. Ry.
Co., 12 Abb. N. C., 230.) The provision also applies to lines located but not
constructed. (Id.)

Companies may consolidate only under the permission and safeguards of
the statute. (Cole v. Millerton Iron Co., 133 N. Y., 164.)

Proceedings for consolidation lawfully begun represent « right accruing
(see General Corporation Law, section 35), and may be lawfully completed,
notwithstanding the enactment of a new statute. (Cameron v. N. Y. & Mt.
V. W. Co., 183 N. Y., 336.)

§ 71, Conditions.— Such consolidation shall be made in the fol-
lowing manner:

1. Joint agreement; amount of capital stock.— The
directors of the corporations proposing to consolidate may enter

 

Two separate laws in relation to the consolidation of domestic and foreign
railroad corporations have been enacted as follows:

Section 1. The consolidation heretofore effected of « domestic railroad cor-
poration with a foreign railroad corporation, shall not be deemed invalid
because such roads at the time of the consolidation did not form a connected
and continuous line, if, when the consolidation was effected, an intermediate
line, by purchase or by a lease, of not less than ninety-nine years became, with
the consolidated roads, a continuous and connecting line of railroad, and such
consolidation is hereby ratified and confirmed. (L. 1897, ch. 193.)

Section 1. The consolidation heretofore effected of a domestic railroad cor-
poration with a foreign railroad corporation, shal] not be deemed invalid
because such roads at the time of the consolidation did not form a -connected
and continuous line, if, when the consolidation was effected, or -thereafter, an
intermediate line, by purchase or by a lease, of not less than ninety-nine years
‘hecame, with the consolidated roads, a continuous and connecting line of
railroad. (L. 1903, ch. 30.) :
376 ConsoLipaTION oF CorporaTions ; CoNnDITIONS.

 

The Railroad Law, § 71.

 

into a joint agreement, under the corporate seal of each corpora-
tion, for the consolidation of sueh corporations, and prescribing the
terms and conditions thereof, the mode of carrying the same into
effect, the name of the new corporation, the number and names of
the directors and other officers thereof, and who shall be the first
directors and officers and their places of residence, the number of
shares of the capital stock, the amount or par value of each share,
and the manner of converting the capital stock of each corpora-
tion into that of the new corporation, and how and when the
directors and officers shall be chosen, with such other details as
they shall deem necessary to perfect such new organization and
the consolidation of such corporations. But in no case shall the
capital stook of the corporation formed by such consolidation’
exceed the sum of the capital stock of the corporations so consoli-
dated, at the par value thereof. Nor shall any bonds or other evi-
dences of debt be issued as a consideration for, or in connection
with, such consolidation. If either of the corporations so to be
consolidated is a corporation organized under the laws of any other |
state the joint agreement herein provided for may fix the location
of the principal office of the new corporation in either state.

9, Agreement to be submitted to meeting of stock-
holders.—If stockholders owning two-thirds of all the stock of
each of such corporations shall by a consent in writing, acknowl-
edged as are deeds entitled to be recorded and endorsed upon said
lease or agreement, signify their assent thereto, it shall be deemed
and taken as the adoption of such agreement by and on behalf of
such ‘corporation, and the original or certified copy thereof shall
be filed as hereinafter provided. If such agreement shall not be
consented to in writing by holders of two-thirds of the stock of
either of such corporations as hereinbefore provided, such agree-
ment shall be submitted to the stockholders of each of such corpo-
rations at a meeting thereof called separately for the purpose of
taking the same into consideration. Due notice of the time and
place of holding such meeting, and the object thereof, shall be
’ given by each corporation to its stockholders by written or printed
notices addressed to each of the persons in whose names the capital
stock of such corporation stands on the books thereof, and delivered
to such persons respectively, or sent to them by. mail, when their
post-office address is known to the corporation, at least thirty days
before the time of holding such meeting, and also by a general
notice published at least once a week for four weeks successively
in some newspaper printed in the city, town or county where such
corporation has its principal office or place of business. At such
meeting of stockholders such agreement shall be considered, and a
vote by ballot taken for the adoption or rejection of the same, and
Rieguts or New Corporation. 377

 

The Railroad Law, § 72.

 

if the votes of the stockholders owning at least two-thirds of the
stock of each corporation present and voting in person or by proxy
shall be for the adoption of such agreement, then that fact shall
“be certified thereon by the secretaries of the respective corpora-
tions, under the seal thereof, and the agreement so adopted, or a
certified copy thereof, shall be filed in the office of the secretary of °
state, and in the office of the clerk of the county where the new
‘corporation is to have its principal place of busincss, and shall from
thence be deemed and taken to be the agreement and act of con-
solidation of such corporations, and thereafter such corporations,
parties thereto, shall be one corporation by the name provided in
such agreement, but such act of consolidation shall not release such
new corporation from any of the restrictions, licbilities or duties

ot the several corporations so consolidated.
(Thus amended by L. 1892, ch. 676; L. 1904, ch. 228.)
The last sentence of subdivision 1 was added in 1904.
For forms in consolidation proceedings, see post, forms Nos. 110, 111 and 112.

The provision permitting a consent in writing properly acknowledged
was added to this section by the amendment of 1892. The section as
amended also provides that the consolidation agreement may be approved
at a meeting of the stockholders by ‘the votes of the stockholders own-
ing at least two-thirds of the stock of each corporation present and voting
in person or by proxy.”

The provision limiting the capitalization of the new corporation to an
amount not exceeding the aggregate capital stock of the constituent cor-
porations must be strictly construed. (People v. B., H. T. & W. Ry. Co.,
12 Abb. N. C., 230.) As to illegal attempt to consolidate, see Latham v.
Same, 38 Hun, 265.

A contract made by the directors of on> corporation with another cor-
poration of which. they are also directors is voidable by the corporation,
but a contract entered into between two corporations, voidable because
of their having common directors, cannot be disaffirmed by a minority
of the stockholders of either corporation. (Hart v. Ogdensburg & Lake
Champlain R. R. Co., 89 Hun, 316.)

§ 72. New corporation—-Upon the consummation of such
act of consolidation all the rights, privileges, exemptions and fran-
ehises of each of the corporations, parties to the same, and all the
property, veal, personal and mixed, and all the debts due on what-
ever account to either of them, as well as all stock subscriptions and
other things in action belonging to either of them shall be taken
and deemed to be transferred to and vested in such new corpora-
tion, without further act or deed; and all claims, demands, property,
rights of way, and every other interest shall be as effectually the
property of the new corporation as they were of the former cor-
porations, parties to such agreement and act; and the title to all
378 Creprror’s Ricguts Not To BE [MparRED.

 

The Railroad Law, § 73.

real estate, taken by deed or otherwise, under the Jaws of this state,
vested in either of such corporations, parties to such agreement and
act, shall not be deemed to revert or be in any way impaired by
reason of this act, or anything done by virtue thereof, but shall be
vested in the new cerporation by virtue of such act of consolida-
tion. And it shall be lawful for any railroad company or corpo-
ration, now or hereafter formed by the consolidation of one or
more railroad companies or corporations organized under the laws
of this state, or under the laws of this state and other states, with
one or more railroad companies or corporations organized under the
laws of any other state, or of the laws of this state and other states,
to issue its bonds for the purpose of paying or retiring any bonds
theretofore issued by either of said companies or corporations so
consolidated, or for any purpose and to the amount authorized by
the laws of the state under which either of said companies or cor-
porations so consolidated was organized, and secure the same by a
mortgage upon its real or personal property, franchises, rights and
privileges, whether within or without this state, and subject to the
remedies for the enforcement of the same under the laws of either
of said states. Nothing in this act contained shall authorize the
execution of any such mortgage without the consent of the stock-
holders as now required by the laws of this state, nor compel any
bondholder to accept payment in whole or in part of any bond or
bonds held by him or to surrender the same before they shalt
become due.

(Thus amended by L. 1891, ch. 362.)

§ 73. Creditor’s rights not to be impaired.—The rights of all
creditors of, and all liens upon the property of, either of such cor-
porations, parties to such agreement and act, shall be preserved
unimpaired, and the respective corporations shall be deemed to
continue in existence to preserve the same, and all debts and liabili-

‘ties incurred by either of such corporations shall thenceforth attach

to such new corporation, and be enforced against it and its prop-
erty to the same extent as if incurred or contracted by it. No
actions or proceedings in which either of such corporations is a
party shall abate or be discontinued by such agreement and act
of’ consolidation, but may be conducted to final judgment in the
names of such corporations, or such new corporation may be, by
order of the court, on motion substituted as a party.

Rights of creditors and bondholders of the constituent corporations are
not disturbed by the consolidation. (Polhemus v. Fitchburg R. R. Co.
AssEssMENT oF Property; Foruciosure or Morteacss. 379:

 

The Railroad Law, §§ 74, 75, 76.

 

123 'N. Y., 502; Janes v. Same, 50 Hun, 310; Vilas v. Page, 106 N. Y., 489;
Gale v.. Troy & Boston R. R. Co., 51 Hun, 470.)

§ 74. Assessment of property of new corporation.—The:
real estate of such new corporations, situate within this state, shall
be assessed and taxed in the several towns and cities where the same:
shall be situated in like manner as the real estate of other railroa’
corporations is or may be taxed and assessed, and such proportion

of the capital stock and personal proverty of such new corporation.
shall in like manner be assessed and taxed in this state, as the num-
ber of miles of its railroad situate in this state bears to the number:
of miles of its railroad situate in the other state or states.

§ 75. Stocks of municipal corporations, how repre-
sented.—At any meeting of the stockholders of any railroad cor-
poration to consider any agreement or proposition to consolidate:
or lease, the commissioners or other officers of any municipal cor-
poration holding or having charge of any of the capital stock of'
such railroad corporation shall represent such municipal corpora-
tion, and may act and vote in person or by proxy on all matters.
relating to such consolidation or lease in the same manner as indi-
vidual stockholders.

(Thus amended by L. 1893 ch. 546.)

§ 76. Foreclosure of mortgages made by (consolidated):~
railroads partly in the State.—Whenever a railroad corpo-
ration of this or of any other state or states whose line of road lies.
partly in this state and partly in another state or states, shall have-
executed a mortgage upon its entire line of railroad, and a sale
of the entire line of road under such mortgage shall have been
or may hereafter be ordered, adjudged and decreed by a court of
competent jurisdiction of the state or states, or by a court of the
United States sitting within the state or states in which the greater
part of such line of railroad may be situated, upon the confirmation:
of such judgment or decree, and of the sale made thereunder, by
the supreme court of this state or by the circuit court of the United
States in the judicial district in which some part of such line. of
road is situated, such sale shall operate to pass title to the pur-
chaser, of that part of the line of railroad lying in this state,
together with its appurtenances and franchises, with the same force:
and effect as if the judgment or decree under which such sale is
had, had been made by a court of competent jurisdiction of this
state. Such judgment or decree and sale may be so ordered,
adjudged, decreed or confirmed in any action or proceeding hereto-
380 Powers or Rartroaps or OTHER STATES.

 

The Railroad Law, § 77.

 

fore or hereafter brought in the supreme court, or in a court of the
United States sitting in this state, for the foreclosure of such mort-
gage, or in aid of an action for that purpose in such other state or
states, if it shall appear that such confirmation is for the interest
of the public and of the parties, due and lawful provision being
made for and in respect of any liens upon that part of the line of
road or other property sold situate in this state, and for such costs,
expenses, and charges which may appear to be just and lawful. If
a receiver of the entire line of such railroad shall have been, or
may hereafter be appointed by such court of competent jurisdiction
of the state in which the greater part of the line of railroad is situ-
ated, or by a court of the United States sitting in such other state,
such receiver may perform, within this state, the duties of his-office
not inconsistent with the laws of this state, and may sue and be
suec in the courts of this state.

(Thus amended by L. 1896, ch. 356.)

§ 77. Powers of corporations organized to acquire and
operate railroads partly in the State.—A railroad corpo-
ration created undcr the laws of the state or states in which the
greater part of the line of its railroad may be situated, or a railroad
corporation created under the railroad iaw, or under article one
ot the stock corporation law in this state, for the purpose of taking
title to, and operating, the line of road as so sold, under a judg-
ment or decree of a court of this state, or of a court of the United
Sates sitting in this state, for the foreclosure of a mortgage, with
its franchises and appurtenances, may hold, possess and operate
not only those parts of the railroad lying in other states, but also
that part of the line of such railroad lying in this state, and shall
be snbject to the duties and liabilities to which such corporation
was, by the laws of this state, subject, and to such further or other

i “duties ard liabilities as are now or may hereafter be imposed b:
law upon railroad corporations of this state, and the provisions of
the stock corporation law concerning reorganization of corpora-
tions shall apply to, and in respect of, every such successor railroad
corporation. An exemplified copy of the certificate or certificates
of incorporation, under and by virtue of which any such corpora: |
tion is created in any other state, and a certified copy, of the judg-
ment or decree of any court sitting in any other state, under which
said railroad shall have been sold, and a certified copy of the order
‘or judgment or decree of confirmation and approval required by
the preceding section, or of the order, judgment or decree of tha
v

Lease OF Roap. 3881

 

The Railroad Law, § 78.

 

court of this state, or of the United States in this state, which decreed
the sale, confirming the same, shall be filed in the office of the secretary
of state for this state,,and in the office of the county clerk of the
county where its principal business office in this state is or shall be
located.

(Thus amended by L. 1895, ch. 454, and L. 1896, ch. 356.)*

§ 78. Lease of road.—Any railroad corporation or any corporation
owning or operating any railroad or railroad route within this state
may contract with any other such corporation for the use of their
respective roads or routes, or any part thereof, and thereafter use the
same in such manner and for such time as may be prescribed in such
contract. Such contract may provide for the exchange or guaranty
of the stock and bonds of either of such corporations by the other and
shall be executed by the contracting corporations under the corporate
seal of each corporation, and if such contract shall be a lease of any
such road and for a longer period than one year, such contract shall
not be binding or valid unless approved by the votes of stockholders
owning at least two-thirds of the stock of each corporation which is
represented and voted upon in persop or by proxy at an annual meet-
ing of the stockholders for the purpose of electing directors, called in
the manner prescribed by law, provided that the notice of such meeting
shall state that one of the purposes thereof will be the approval of
such lease, or at a meeting, called separately for that purpose upon a
notice stating the time, Place and object of the meeting, served at least
thirty days previously upon each stockholder personally, or mailed to
him at his post-office address and also published at ‘least once a week,
for four weeks successively, in some newspaper printed in the city,
town or county where such corporation has its principal office, and there
shall be indorsed upon the contract the certificate of the secretaries of
the respective corporations under the seals thereof, to the effect that
the same has been approved by such votes of the stockholders, and the \
contract shall be executed in duplicate and filed in the offices where the
certificates of incorporation of the contracting corporations are filed.
The road of a corporation cannot be used under any such contract in
a manner inconsistent with the provisions of law applicable to its use
by the corporation owning the same at the time of the execution of the
contract. Such contracts shall be executed by the corporations, parties

 

*Chapter 356, Laws of 1896, amending sections 76 and 77, contained also
the following provisions, to wit:

§ 3. This act shall take effect immediately, and shall apply in respect
of decrees, foreclosures, sales, confirmations, reorganizations and incor-
Pporations, whether heretofore or hereafter made, provided, however, that
nothing in this act shall affect any action or proceeding pending in any
court, on or before the first day of April, eighteen hundred and ninety-
six, to establish the invalidity of any foreclosure or reorganization
theretofore had, or to enforce any judgment or claim arising before such
foreclosure or reorganization.
382 Least or Roap..

 

The Railroad Law, § 78.

 

thereto, and proved and acknowledged in such manner as to entitle the
same to be recorded in the office of the clerk or register of each county
through or into which the road so to be used shall run. If any contract
so recorded shall be or has been terminated by the contracting corpo-
rations in pursuance of resolutions of their respective boards of direct-
ors prior to the time specified in ‘such contract for the termination
- thereof, then the contracting corporations shall execute, acknowledge
and procure to be recorded in each office where such contract is recorded
-a certificate to the effect that such contract has been terminated, stating
the date of the termination thereof,.and said certificates so recorded
shall be presumptive evidence of the termination of such contract
accordingly. Nothing in this section shall apply to any lease in exist-
-ence prior to May first, eighteen hundred and ninety-one.

(Thus amended by L, 1892,.ch. 676; L. 1893, ch. 433; L. 1905, ch. 695.)

For forms of notice of meeting and certificate of adoption of lease, see post,
Forms 113, 114, 115.

The provision permitting the lease to be appréved at an annual
meeting as well as at a special meeting and also the last sentence but
one, were inserted in 1905,

Where a stockholder of a street railroad corporation, claims in his
‘complaint that he has been defrauded of a portion of his interest in the
assets by means of a lease made by the directors and seeks to set it
aside, the action is representative in character, and for the benefit of
the plaintiff and all other stockholders similarly situated. (Flynn v.
Brooklyn City R. R. Co., 158 N. Y., 493, aff’g 9 App. Div., 269.) In such
-an action, an averment of a demand upon the corporation to sue, and
its refusal or unreasonable neglect so to do, is essential to enable the
stockholder to sue in his own name. (Id. See, also, Sage v. Culver, 147
N. Y., 241.)

A contract made by the directors of one corporation with another cor-
poration, of which they are also directors, is voidable by the corporation,
but a contract entered into between two corporations, voidable because
of their having common directors, cannot be disaffirmed by a minority
of the stockholders of either corporation. (Hart v. Ogdensburg & Lake
Champlain R. R. Co., 89 Hun, 316.)

As the statutes permit a railroad corporation to lease itself to another
corporation, a court may not consider any reasons which public policy
may seem to suggest against it. (Connor v. Long Island Traction Co.,
15 Misc., 501.) No relief will be granted in an equitable action when the
main object of the action is to coerce the defendants, or others inter-

ested, into yielding to demands which are not embraced in the relief
prayed for. (Id.)

When the officers of a corporation lease the property of another corpo-
ration, control a majority of the latter’s stock, and conspire to compel
the minority to sell its stock by refusing to pay the rent due, a court
of equity, on the application of the minority, will compel the payment of
the rent. (Barr v. N. Y., L. E. & W. R. BR. Co., 96 N. Y., 444. See, also,
cases cited in Farmers’ Loan & Trust Co. v. N. Y. & Northern Ry. Co.,
150 N. Y., 410.)
Lzast or Roap. 383

 

The Railroad Law, § 78.

 

The provision of chapter 218 of Laws of 1839, that it shall be lawful
for any railroad corporation to contract with any other railroad corpora-
tion for the use of their respective roads has been in full force and
effect from the time of its enactment to the present time, and applies to
street surface railroad corporations. (Ingersoll v. Nassau Electric R. R.
Co.; 157 N. Y., 453, aff’g 89 Hun, 213.)

It has never been the intention of the general railroad legislation to
require consents of local authorities or property-owners to the operation
by one railroad company of its cars over the tracks of another by virtue
of a traffic contract. (Ingersoll v. Nassau Electric R. R. Co., 157 N. Y.,
453, affg 89 Hun, 213.)

Where two railroad companies, by agreement, construct a road for
joint use, either company is entitled to operate cars of the railroad com-
pany leased by it over the tracks so constructed. (Coney Isl. & Graves-
end Ry. Co..v. Coney Isl. & Brooklyn R. R. Co., 38 App. Div., 494.)

An agreement between two street railroads by which one grants the
other the right to use for the passage of its cars the tracks of the
grantor in order that the grantee may connect’ one of' its tracks with
another part of ‘its system, not naming any definite period for such
use, is not, within section 78 of the Railroad Law, a lease for a longer
period than one year requiring approval by the stockholders of the
contracting corporations; the same is to be deemed only a traffic contract,
as the grantee corporation might, under section 102, have secured the
-same rights as those which the contract gave it. (Chapman y. Syracuse
Rapid Transit Ry. Co., 25 Misc., 626.)

A railroad corporation which has made a traffic contract with two
-other roads,-for operation over their tracks, may operate under such con-
tract without first obtaining the consents of the property-owners and of
the municipal authorities. (Kunz v. Brooklyn Heights R. R. Co., 25
Mise., 334.) ”

An action for damages for injuries sustained at a highway crossing,
through the negligence of a foreign railroad corporation running its
frains over a railroad under contract made by it with a domestic rail-
road corporation owning the road, is not maintainable against the latter
‘corporation, the contract allowing such use of the road being authorized
by this section. (Cain v. Syracuse, Binghamton & N. Y. R. R. Co., 27
App. Div., 376.) ‘

Where two corporations are co-tenants-of railroad tracks, one co-tenant
eannot, without the consent of the other, make a traffic contract with a
third railroad company, giving it a permanent easement over the tracks.
(Chapman y. Syracuse Rapid Transit Ry. Co., 25 Misc., 626.)

A railroad corporation which, while not actively operating its road,
‘because of leases made thereof, still maintains its organization, may,
by its board of' directors, lawfully agree to compensate its president for
services rendered on behalf of the corporation. (Bagley v. Carthage,
W. & S. H.R. R. Co., 25 App. Div., 475.) ‘
iG . \
384 Lussrrs or Rarrroap May Acquire Stock THEREIN.

 

The Railroad Law, § 79.

 

Where a railroad corporation is authorized to lease the roads of other
similar corporations,’ it may, in the absence of any statutory limitation,
lease a road operated in and. under the laws of another State unless the
law of that other State forbids it. (Day v. O. & L. C. R. R. Co., 107
N. Y., 129. See, also, 89 N. Y., 75; 86 N. Y¥., 11%; 35 Hun, 227; 34 Hun,
435; 93 N. Y., 616, revsg. 25 Hun, 246; 77 N. Y., 234; 46 N. Y., 653; 16
Abb. Pr., N. S., 262.)

A lease which imposes no obligation upon the lessee to use the road,
but which contemplates an abandonment of its use, is not a contract for
“use,” and is void. (Troy & Boston R. R. Co. v. Boston, H. T. & W.
Ry. Co., 86 N. Y., 107.)

The lessor company can not be held liable for injuries to a passenger
caused by the negligence or wrongful acts of the lessee’s servants.
(Fisher v. Met. El. R. R. Co., 34 Hun, 488; see, also, Mayor of N. Y. vy.
23d St. Ry. Co., 1138 N. Y., 811; Miller v. N. Y., L. & W. R. R. Co., 125
N. Y., 118.) The lessor is liable, however, if the lease is unauthorized.
(Abbott v. Johnstown, G.& K. Horse R. R. Co., 80 N. Y., 27.) A lease
of a street railroad to an individual to be operated as private property
will not be sustained. (Fanning v. Osborne, 102 N. Y., 441.) An individ.
ual, to whom a road has been leased, is estopped from questioning the
validity of the lease in an action to recover the stipulated rent. (80 N. Y.,
27, above; Woodruff v. E. Ry. Co., 93 N. Y., 609.)

When a railroad company has acquired the right and has constructed
and operated its railroad in the streets of a city, its railroad in such
streets may be used under contract by another corporation without the
latter obtaining the prescribed consents. The Constitution, art. 3, sec.
18, does not forbid such contract. (People v. Brooklyn, F. & C. I. R. BR.
Co., 89 N. Y., 75.)

A foreign corporation may be the lessor unless the foreign state for-
bids. (Day v. Ogdensb. & L. C. R. R. Co., 107 N. Y., 129.) The fact that
a railroad company has leased and transferred for the term of its cor-
porate existence its road and business to a foreign railroad corporation,
and that the latter has taken the management aud possession thereof
does not deprive the former of the right to acquire title to lands neces-
sary in carrying on the business. (In re N. Y., Lacka. & W. Ry. Co., 99
N. Y., 12; see, also, Kip v. N. Y. & H. R. R. Co., 67 N. Y., 227.)

When the lessor and lessee companies have directors in common the
lease is voidable, not void. (Barr v. N. Y., L. E. & W. R. R. Co., 125
N. Y., 263.)

A lease of a railroad for 999 years or during the existence of the lessee
company, does not terminate by appointment of receivers of the lessee’s
property under the Code of Civ. Pro., section 1788, pending an action
for dissolution of the lessee company upon the ground of insolvency. (N.
Y. El. R. R. Co. v. Man. Ry. Co., 63 How., 14.)

§ 79. Lessees of railroad may acquire stock therein.--
Any railroad corporation created by the laws of this state, or its
successors, being the lessee of the. road of any other railroad cor-
poration, may take a surrender or transfer of the capital stock of
the stockholders, or any of them in the corporation whose road is
held under lease, and issue in exchange therefor the like additional
ConsoLiDaTION AND Lease or Paratue. Lines. 385
The Railroad Law, § 80.

 

 

amount of its own capital stock at par, or on such other terms and
conditions as may be agreed upon between the two corporations;
and whenever the greater part of the capital stock of any such cor-
poration shall have been so surrendered or transferred, the directors
of the corporation taking such surrender or transfer shall thereafter,
on a resolution electing so to do, to be ‘entered on their minutes,
become ex-officio the directors of the corporation whose road is so
held under lease, and shall manage and conduct the affairs thereof,
as provided by law; and whenever the whole of such capital stock
shall have been so surrendered or transferred, and a certificate
thereof filed in the office of the secretary of state, under the common
seal of the corporation to whom such surrender or transfer shall
have been made, the estate, property, rights, privileges and fran-
chises of the corporation whose stock shall have been so surrendered
or transferred, shall thereupon vest in and be held and enjoyed by
the corporation, to whom such surrender or transfer shall have been
made, as fully and entirely, and without change or diminution, as
the same were before held and enjoyed, and be managed and con-
trolled by the board of directors of the corporation, to whom such
surrender or transfer of such stock shall have been made, and in
the co1porate name of such corporation. Where stock shall have
been so surrendered or transferred, the existing liabilities of the
corporation, and the rights of the creditors and of any stockholder
not surrendering or transferring his stock, shall not be affected
thereby. ’

The transfer of stock does not abate. condemnation proceedings insti-
tuted before the transfer. (In re Met. El. Ry. Co., 12 N. Y. Supp., 506.)
The transferring company neither loses its corporate existence, nor its

right to continue or to authorize continuance of condemnation proceed-
ings. (In re N. Y. El. R. R. Co., 43 St. Rep., 651, aff’d 133 N. Y., 690.)

§ 80. Consolidation and lease of parallel lines pro.
hibited.—No railroad corporation or corporations owning or
operating railroads whose roads run on parallel or competing lines,
except street surface railroad corporations, shall merge or consoli-
date, or enter into any contract for the use of their respective roads,
or lease the same, the one to the other, unless the board of railroad
commissioners of the state, or a majority of such board, shall con-
sent thereto. ’

(Thus ‘amended by L. 1892 ch. 676.)

By this section the leasing of parallel or competing steam railroads,
the one to the other, heretofore allowed by chap. 218, Laws of 1839, ice
forbidden.
386 Forectosvre Cate; Certiricates or Stoo.
The Railroad Law, §§ 81, 82, 83.

This section does not prohibit traffic contracts beyond the line of par-
allelism between companies whose lines are parallel for only a portion
of their respective routes. (People v. O’Brien, 111 N. Y., 1.) Competing
lines are those which are rivals for traffic. The prohibition may include
lines not mathematically parallel and roads not constructed. (People v.
Boston, H. T. & W. R. R. Cq, 12 Abb. N. C., 280.)

§ 81. Mortgagee may purchase at foreclosure sale.—Any
mortgagee of the property and franchises of any railroad corpora-
tion may become the purchaser of the same at any sale thereof
under the mortgage, upon foreclosure by advertisement, or under a
judgment, or decree, or otherwise, and hold and use the same, with
all the rights and privileges belonging thereto or connected there-
with, for the period of six months, and convey the same to any
railroad corporation.

; See the Stock Corporation Law, section 3.

§ 82. Certificates of stock, may be issued after fore-
closure in certain cases.—If any person or corporation shall be
entitled to éertificates of stock subscribed to and paid for in any
railroad corporation whose property and franchises have been sold
under mortgage foreclosure, and such certificates have not been
issued before foreclosure, the officers of the corporation shall, at any
time within six months after the foreclosure sale issue and deliver
to the person or corporation entitled thereto, upon demand, such
certificates of stock, which shall have all the force and effect and
confer upon the holder all the rights which he would have had if
such certificates of stock had been issued at the time of the pay-
ment of the subscription thereto.

§ 83. Liabilities of reorganized railroad corporations.—A
railroad corporation, reorganized under the provisions of law, relat-
ing to the formation of new or reorganized corporations upon the
sale of their property or franchise, shall not be compelled or
required to extend its road beyond the portion thereof constructed,
at the time the new or reorganized corporation acquired title to
such railroad property and franchise, provided the board of rail-

road commissioners of the state shall certify that in their opinion,

the public interests under all the circumstances do not require such
extension. If such board shall so certify and shall file in their
office such certificate, which certificate shall be irreversible by such
board, such corporation shall not be deemed to have incurred any
obligation so to extend its road and such certificate shall be a bar
to any proceedings to compel it to make such extension or to annul

 

Batis
LIABILITIES OF Reoreanizep RaiLRoAD Corporations. 387

 

The Railroad Law, 8 84,

 

its existence for failure sc to do, and shall be final and conclusive
in all courts and proceedings whatever. “his séction shall not
authorize the abandonment of any portion of a railroad which has
been constructed and operated, or.apply to Kings county.

The certificate of the railroad commissioners, duly filed, to the effect
that no public interest required the extension of the road of a reorganized
corporation, is a bar to an action brought by the attorney-general under
the Code of Civil Procedure, section 1798, to annul the existence of the
corporation. (People v. Ulster & Del. R. R. Co., 128 N. Y., 240, aff’'g 58
Hun, 266, and 8 N. Y. Supp., 149.) This provision is constitutional. (Id.)

§ 84. All the provisions contained in the several sections of
this act shall oxtend, apply to and cover the consolidation, Jeace,
sale or reorganization of any railroad or other corporation hereto-
fore,or hereafter organized, under the laws of this State, and any
other State or country, to build, lease, buy, sell, maintain or operate
any of the lines or routes of railvouds, toinela, bridges, ferries or
branches or any part thereof mentioned in this article, and any
similar lines or routes of railroads, tunnels, bridges, ferries or any
part thereof, constructed or to be located and constructed in any
foreign country.

(New section, added by L. 1895, ch. 921.)

x
For explanation of interval in numbering between section 84, supra.

and section 90, infra, see note on page 321.

1
%
388  Srreer Surrace Raitroaps; Genera Provisions.

The Railroad Law, § 90.

ARTICLE IV.
Street Surrace RarLroaps.

Section 90. Street surface railroads; general provisions.

91. Consent of property owners and local authorities.

92. Consent of local authorities; how procured.

93. Condition upon which consent shall be given; sale of
franchise at public auction.

94. Proceedings if property owners do not consent.

95. Percentage of gross receipts to be paid in cities or vil-.
lages ; report of officers.

96. Extension of route over rivers; terminus in other counties;
when property owners withhold consent ; supreme court
may appoint commissioners.

97. Use of tracks of other roads.

98. Repair of streets ; rate of speed ; removal of ice and show..

99. Within what time road to be built.

100. Motive power.

101. Rate of fare. ;

102. Construction of road in streets where other road is built..

108. Abandonment of part of route.

104. Contracting corporations to carry for one fare; penalty.

105. Effect of dissolution of charter as to consents.

106. Corporate rights saved in case of failure to complete road;
right to operate branches ; conditions ; former consent
ratified ; limitations

107. When sand may be used on tracks.

108. Road not to be constructed upon ground occupied by pul--
lic buildings or in public parks.

109. Center-bearing rails prohibited.

110. Right to cross bridge substituted for bridge crossed for:
five years.

111. Protection of employees.

1lla. Protection to employes.

§ 90 Street surface railroads; general provisions.—The
provisions of this article shall apply to every corporation whieh,
under the provisions thereof, or of any other law, has constructed
or shall construct or operate, or has been or shall be organized
to construct or operate, a street surface railroad, or any exten-
sion or extensions, branch or branghes thereof, for public use in the:
conveyance of persons and property for compensation, upon and
along any street, avenue, road, highway, or private property, in any
city, town or village, or in any two or more civil divisions of the-
State, and every such corporation must comply with the provisious
of this article. Any street surface railroad corporation, at any time:
proposing to extend its road or to construct branches thereof, may,
from time to time, make and file in each of the offices in which its
Srreeer Sugrace Rattroaps; Genera Provisions. 389

 

The Railroad Law, § 90.

4

certificate of incorporation is filed, a statement of the names and
description of the streets, roads, avenues, highways and private
property in or upon which it is proposed to construct, maintain or
operate such extensions or branches. Upon filing any such state-
ment and upon complying with the conditions set forth in section
ninety-one of the railroad law, every such corporation shall have
the power and privilege to construct, extend, operate and maintain
such road, extensions or branches, upon and along the streets, ave-
nues, roads, highways and private property named and described in
its certificate of incorporation or in such statement. Every such
corporation, before constructing any part of its road upon or
through any private property described in its articles of association
or certificate of incorporation or statement, and before instituting
any proceeding for the condemnation of any real property, shall
make a map and profile of the route adopted by it upon or through
any private property, which map and profile shall be certified ‘by
the president and engineer of the company, or a majority of its
directors, and shall be filed in the office of the clerk of the county
in which the road is to be constructed, and all provisions of section
‘six of the act hereby amended so far as applicable shall apply to
the route so located. If any such street surface railroad company
is unable to agree for the purchase of any such real property, or
-of any right or easement therein required for the purpose of its
railroad, or if the owner thereof shall be incapable of selling the
‘same, or if, after diligent search and inquiry, the name and resi-
dence of such owner can not be ascertained, it shall have the right.
to acquire title thereto by condemnation in the manner and by the
proceedings provided by the condemnation law. Nothing in this
section shall be deemed to authorize a street railroad corporation to
acquire real property within a city by condemnation.
(Thus amended by L. 1892, ch. 676 ; L. 1893, ch. 434 ; L. 1895, ch. 933.)
For forms of statement of extensions, see post, forms Nos. 143 and 144.

The last three sentences were added to the foregoing. section by the
amendment of 1895.

The provision for extension of roads was added in .1892.

A city ordinance requiring all railroads operating lines of cars in the
‘streets of the city to run their cars during certain hours of the day not
less than twenty minutes apart is operative. (Mayor, etc., v. N. Y. &
Harlem R. BR. Co., 10 Mise. R., 417; see, also, Mayor v. Dry Docks, etc.,
R. Co., 183 N. Y., 104.)

A street railway company may condemn private property for the pur-
‘pose of its organization. (In re Rochester Elec. Ry. Co., 123 N. Y., 351;
‘zee, also, the earlier case on this subject, to wit: In re South Beach R.
R. Co., 119 N. Y., 141.)
390 Street Surrack Rarrroaps; GENERAL PROVISIONS.
The Railroad Law, § 90.

Where a street railway company files a map and profile of land which
it desires to acquire for an extension of its road, and a land-owner affected
thereby, having fifteen days after the service upon him of notice of such
filing, fails to institute proceedings to review such location, he cannot.
oppose the location in a proceeding by the railroad for condemnation of
the property, the only question before the referee, to whom the issues.
raised by the land-owner’s answer are referred, being whether it is neces-
sary for the public use that the corporation should take the land. (Still-~
water & Mechanicville St. Ry. Co. v. Slade, 36 App. Div., 587.)

Where an adult owns an undivided three-fourths of land sought to be
condemned, but claims to own it all, and there are five infants claiming
an interest in the land, in support of whose claims judgment has been

. rendered, and there are liens thereon, the railroad company may institute
proceedings for condemnation upon the ground that it is unable to agree
with the owners for the purchase of the land. (Stillwater & Mechanic-
ville St. Ry. Co. v. Slade, 36 App. Div., 587.)

Street surface railroad corporations may operate cars designed and
used exclusively for carrying express matter, freight or property. The
use of the word, “fare,” in section 101 of the Railroad Law, does not indi-
eate that the carriage of passengers alone is within the contemplation.
of the act. (DeGrauw v. Long Island Elec. Ry. Co., 43 App. Div., 502.)

The railroad commissioners have power, under section 68 of this law,
to determine what proportion of the expense of a crossing should be:
paid by a street railroad company over the tracks of a steam railroad,
and where that power has been exercised, if the railroad crossed is.
entitled to further compensation under section 12, the street surface rail-
road will be allowed to provide for that item by a bond. (D., L. & W..
R. R. Co. v. 8., L. & B. R. BR. Co., 28 Misc., 456.)

The requirement that a railroad, before constructing any part of its
road upon or through any private property, shall file a map or profile
of its proposed route, applies to a proposed crossing of the right of way
of another railroad. ‘ (D., L. & W. R. R. Co. v. S., L. & B. R. R. Co., 28:
Misc., 456.)

The word “ extend,” was not intended to be used in its restricted sense
of prolongation in a given direction, but was intended to enable railroad
companies to acquire a right of construction of additional routes which
might be operated in connection with existing lines. (Bohmer v. Haffen,
35 App, Div., 381; aff'd, 161 N. Y., 390.)

The amendment of 1892, chapter 676, that a street surface railroad cor-
poration, “ organized since May 6, 1884,” must comply with the provisions
of this article, must be deemed equivalent to a provision that such. a
corporation, if organized prior to May 6, 1884, need not comply with the
provisions of the article. (Wood v. Common Council of Binghamton, 26
Misc., 208.)

A passenger who has signaled to stop at a point which is at that
moment rendered dangerous is entitled to a reasonable time in which to
alight. (Norton v. Third Ave. R. R. Co., 26 App. Div., 60.)

The cars of a street railroad corporation have a paramount right to:
the use of that portion of the street occupied by their tracks, which lies
.
th,

j , Amendment of 1907.

¢

ATnsert, facing page 391, White on Corporations, 6th edition. }

Laws of 1907, chapter 156, amending the Railroad Law, section 91, changes’
the last ientonce on page 391 so that the first ‘clause thereof shall read as
follows:

. *. * * In cities the common council, actinig subject to the power now
‘possassed by the mayor to veto ordinances ; in villages the board of trustees,
and in towns the commissioner or commissioners of highways and the town
board shal be the local authorities referred to; * *
‘ The words “and the town board ® were inserted by the amendment of 1907.
t 4a
Consent oF Property Owners. 391

 

The Railroad Law, § 91.

 

between intersecting streets. (Rosenblatt v. Brooklyn Heights R. R. Co.,
26 App. Div., 600.)

The Legislature may grant the right to build an elevated road directly
over a street surface railroad. (Ninth Ave. R. R. Co. v. N. Y.-El. RB. R.
Co., 3 Abb. N. C., 347.) :

Rights of street surface railroad companies organized prior to May 6,
1884, considered in N. Y. Cable Co. v. Mayor, ete., 104 N. Y., 1.

§ 91. Consent of property owners and local authorities.—A street sur-
face railroad, or extensions or branches thereof, shall not be built,
extended or operated unless the consent in writing acknowledged or

_ Proved as are deeds entitled to be recorded, of the owners in cities and
_Villages, of one-half in value, and in towns, not within the corporate
limits of a city or village, of the owners of two-thirds in value, of the
property bounded on and also the consent of the local authorities having
control of that portion of a street or highway upon which it is proposed
to build or operate such railroad, extension or branch shall have been,
first obtained. Such consents of property owners in the county of
Kings which shall be hereafter executed, may be forfeited unless within
sixty days after the execution thereof, the.same shall be recorded in
the office of the register of such county, Such register is hereby
directed upon the payment of the proper fees to record all consents
left with him for that purpose in books tq be provided by him and paid
for out of the funds provided to meet the expenses of said office. Such
books shall be indexed according to the names of the consenting prop-
erty owners and also according to the names of the streets, roads or
other highways upon which the property to which the consent relates
shall be bounded on. In case the recording -of such consents shall be
hindered, delayed or prevented by legal proceedings in any court or
from any other or different cause not within the control of the carpard-:
tion upon which such requirement is imposed, the time for the perform-.
ance of such act is hereby and shall be deemed to be extended for the’
period covered by such hindrance, delay or prevention. The consents of
property owners in one city, village or town, or in any other civil
division of the state, shall not be of any effect in any other city, village
or town, or other civil divisions of the state. Consents of property
owners heretofore obtained to the building, extending, operating or
change of motive power shall be effectual for the purposes herein men-
tioned and may be deemed to be sufficiently proved and shall be entitled
to be recorded, whenever such consents shall have been signed, executed
or acknowledged before an officer authorized bylaw to take acknawledg-
ments of deeds, or before cr in the presence of a subscribing witness,
and without regard to whether or not the subscribing witness shall have
affixed his signature in the presence of the subscriber, provided that the
proof of such signing, execution or ackngwledgment shall have been
made by such subseribing witness in the manner prescribed by chapter
three, part. two of the revised statutes. In cities the common council,
acting subject to the power now possessed by the mayor to veto ordi-
nances; in villages the board of trustees, and in towns the commissioner
or commissioners of highways shall be the local authorities referred to;
except that in villages where the control of the streets is vested in any
other board or authorities, such other board or authorities shall be
the local authorities referred to, and the consent of such other board
or authorities hereafter or heretofore obtained shall be sufficient; if in
any city or county the exclusive control of any street, avenue or other
property, which is to be used or, occupied by any such railroad,
extension or branch, is vested in any other authority, the consent of

   
 
392 Consent or Property OWNERS.

 

The Railroad Law, § 91.

such authority shall also be first obtained. The value of the property
above specified shall be ascertained and determined by the assessment
roll of the city, village or town in which it is situated, completed last
before the local authorities shall have given their consent, except
property owned by such city, village or town, or by the state of New
York, or the United States of America, the value of which shall be
ascertained and determined by making the value thereof to be the
same as is shown by such assessment roll to be the value of the
equivalent in size and frontage of the adjacent property on the same
street or highway; and the consent of the local authorities shall
operate as the consent of such city, village or town as the owners of
such property. Whenever heretofore or hereafter a railroad has been
or shall be constructed and put in operation for one year or the
motive power thereon has been or shall be changed and put in opera-
tion for a similar length’ of time, such facts shall be presumptive
evidence that the requisite consents of local authorities, property
owners and other authority to the construction, maintenance and
operation of such railroad or change of motive power have been duly
obtained. No consent of local authorities heretofore given shall be
deemed invalid because of any portion of the road or route consented
to not being connected with an existing road or route of the corpora-
tion obtaining or acquiring such consent and all statements of ex-
tension filed under section ninety of this article in reference to the
route or part thereof described in any consent of local authorities
are hereby ratified and confirmed, whether the same were filed before
or after the obtaining or acquiring of such consents, provided how-
ever that nothing herein contained shall be construed to affect any
portion of a street surface railroad which is now in or upon any por-
tion of a street which is under the jurisdiction of a park department
in any city containing a population of over twelve hundred thousand

inhabitants.

(Thus amended by L. 1892, ch. 676; L, 1893, ch. 434; L. 1894, ch. 723; L.
1895, ch. 545; L. 1896, ch. 855; L. 1901, ch. 638; L. 1903, ch. 537; L. 1905,
ch. 650.) ;

For forms of consent of property owners, see post, forms Nos. 116, 117.

The second, third and fourth sentences of this section were inserted
in 1905.

Where a street railroad company running for seven miles through two
separately constituted villages and a town where a crossing is located, obtains
the consent of the highway commissioners of the town to the construction of
‘the street railroad on the town highway, the consent is sufficient and the
failure to obtain the consents of the village authority is immaterial since they
could have no force. (Geneva & Waterloo Ry. Co. v.N. Y. C. & H. BR. R. EB.
Co., 163 N. Y., 228, revsg. 24 App. Div., 631, 24 App. Div., 335.)

Consents to the construction of a street railroad given by abutting
owners to its promoters, running to their legal representatives and assigns,
and by the promoters assigned to the street railroad company after its
ConsenT oF Property Owners. » 393

 

The Railroad Law, § 91.

 

incorporation, are valid consents in the hands of the latter and cannot be
attacked by a steam railroad company in order to prevent the crossing.
(Geneva & Waterloo Ry. Co. v. N. Y. C. & H. R. R. R. Co., 163 N. Y., 228,
revsg. 24 App. Div., 335, 24 App. Div., 631.)

The commissioner of street improvements of certain wards of the city
-of New York has not such exclusive control_of the streets as to require
this consent’ in addition to that of the common council for the construction
of street railroads therein. (Bohmer v. Haffen, 161 N. Y., 390, aff’g 35 App.
Div., 381.)

The highway commissioners are, under the Railroad Law, section 91,
‘the legal authorities who must consent to the use of a bridge by a street
railroad corporation, and, where the company has obtained only the con-
sent of the village trustees, a motion to vacate a temporary injunction
restraining the use of the bridge must be denied. (Town of Lysander
-v. Syracuse, Lakeside & B. Ry. Co., 31 Misc., 330.) :

A street surface railroad company operating upon its own right of way
‘through a town is forbidden by section 18, article 3, of the State Constitu-
tion, from building its line across the highway of the town without obtain-
ing the consent of the local authorities. (Matter of Syracuse & South Bay
Ry. Co., 33 Misc., 510.) The corporation cannot and need not obtain the
consent of the Supreme Court as provided in section 11 of the Railroad
Law. for that section has no application to such case. (Id.)

It is not the intention of the general railroad legislation to require con-
sents of local authorities or property owners to the operation by one rail-
road company of its cars over the tracks of another by virtue of a traffic
-contract, but the intention has been to require such consents only to the
construction, maintenance or operation of new railroad tracks. (Ingersoll
-y. Nassau Electric R. R. Co., 157 N. Y., 453, aff’g 89 Hun, 213.)

Chapter 649, Laws of 1896, validating and confirming certain consents
‘theretofore given by the local authorities of cities of the first and second
class, in the construction, operation and maintenance of street surface
railroads therein, is a general bill within the meaning of fhat term as
‘used in the Constitution, and therefore a valid act. (Kittinger v. Buffalo
“Traction Co., 160 N. Y., 377, aff’g 25 App. Div., 329.)

In ‘the absence of facts showing that the consent of the municipal
authorities was procured by fraud and corruption, an action will not lie
‘to set aside a consent granted for the construction of a street surface.
‘railroad. (Kittinger v. Buffalo Traction Co., 160 N. Y., 377, aff’'g 25 App.
Div., 329.) '

A condition imposed ‘by highway commissioners of a town, on granting
consent to the construction of a railroad, which requires passengers to be
transported for a prescribed fare, is not void as conflicting with the
rights of the highway authorities in. the other towns or villages to pre-
scribe conditions. (Gaedeke v. Staten Island Midland R. R. Co., 46 App.
Div., 219.)

Commissioners of highways of a town, whose consent to the construc-
‘tion of a road is necessary, : may, as a condition, require the railroad com-
pany to execute an agreement to carry passengers for one fare between
certain points and to issue transfers to connecting lines, and where the
railroad disregards such agreement, a passenger, who is charged two
394 Consent oF PRopERTY OWNERS.

 

The Railroad Law, § 91.

 

fares, may maintain an action to recover the additional fare. The consent
of highway commissioners was not made unnecessary by the Highway
Law, chapter 568, Laws of 1890. (Gaedeke v. Staten Island Midland R. R.
Co., 43 App. Div., 515.)

The foregoing: section, compelling a street surface railroad company to
obtain the consents of the local authorities and abutting owners before
it can apply to acquire the right to use the connecting track of another
company by a proceeding in invitum, under section 102 of the Railroad
Law, is absolute and does not depend upon what the defendant company
might have power to agree to voluntarily. (Colonial City Traction Co. v.
Kingston City R. R. Co., 154 N. Y., 493, aff’g 15 App. Div., 195.)

Sections 91 and 102, relating to the obtaining of the consents of the
local authorities and abutting property owners, are not in conflict with
section 78. (Ingersoll v. Nassau Electric R. R. Co.; 157 N. Y., 453, aff’g 89
Hun, 213.)

The provision of section 73 of the Greater New York Charter (L. 1897,
ch. 378), that after the approval of the act no franchise or right to use
the streets of the city shall be granted for a longer period than twenty-
five years, operated to restrict the power of the city authorities within the
territory of the new city thereby created, from the date of the approval
of the act May 4, 1897, and from that date, deprived the local authorities
of Brooklyn of power to grant a consent to operate a railroad in the
streets for a period beyond twenty-five years. (Blaschko v. Wurster, 156
N. Y., 437, aff’g 23 App. Div., 625.)

From the date of passage of the charter of Greater New York, chapter
378, Laws of 1897, the granting of a franchise to operate a street railroad
within the new city for a longer term than twenty-five years, is forbidden.
(Norris v. Wurster, 23 App. Div., 124.)

A street railroad must obtain the consent of both the lawful authori-
ties and the property owners before it can apply to the courts to condemn
the right to use the tracks of another company. (Colonial City Traction
Co. v. Kingston City R. R. Co., 153 N. Y., 540, aff’g 15 App. Div., 195.)

The department of public parks of the city of New York did not have
that exclusive control of the streets contemplated by sections 91 and 92
of the Railroad Law, which made the consent of the commissioner of
street improvements necessary to the construction of a railroad. (Bohmer-
vy. Haffen, 35 App. Div., 381; aff’d, 161 N. Y., 390.)

A resolution of the New York city dock department, granting a license
to a street railway company to lay tracks over property reclaimed from:
the river, cannot be attacked by a taxpayer on the ground that it con-
stitutes a grant of a franchise. (Hart v. New York, 16 App. Div., 227. See,
also, Central Crosstown R. R. Co. v. Met. St. Ry. Co., 16 App. Div., 229.)

A railroad corporation which has made a traffic contract with two other:
roads, for operation over their tracks, may operate under such contract
without first obtaining the consents of the property owners and of the
municipal authorities. (Kunz v. Brooklyn Heights R. R. Co., 25 Misc.,
334.)

Consents given .by property owners to the construction and operation
of a street railroad do not include the use of its tracks by another com-
pany. (Colonial City Traction Co. v. Kingston City R. R. Co., 153 N. Y.,
540, aff’g 15 App. Div., 195.)
Consent or Property Owners. 395.

 

The Railroad Law, § 91.

 

The use of a street, not named in its articles of association, by a rail-
road company, merely for hauling cars to and from a car storehouse,
is impliedly, if not expressly, sanctioned by the law when a majority of
abutting owners consent and the storehouse is located upon the only
vacant land available, which was not within the restrictions imposed by
the city authorizing the company to make necessary connections in the
street named in the articles and “in such parts of those adjacent thereto
as may be necessary.” (Bklyn. Heights R. R. Co. v. City of Brooklyn,
152 N. Y., 244.)

In estimating whether a street railroad corporation has obtained the
requisite consents of property owners along its route, a corner lot situ-
ated opposite the outer curve of the proposed route must be counted.
(Sea Beach Ry. Co. v. Coney Island & Gravesend Elec. Ry. Co., 22 App.
Div., 477.)

The provision in a contract entered into by a street railroad corpora-
tion and the trustees of a village, to the effect that, in consideration
of a franchise granted to the railroad corporation, the latter would con-
struct a railroad within a year, and that upon its failure so to do, the
sum of ten thousand dollars would be paid “as liquidated damages for
said failure and not by way of penalty,” will not be regarded as a penalty.
(Peekskill State Camp & Mohegan R. R. Co. v. Peekskill, 21 App. Div., 94.):

In determining whether the requisite consents to the construction of a
street railroad have been obtained, property bounded on the route, but.
fronting on adjoining streets, is to be considered. (Tiedemann v. Staten
Island M. R. R. Co., 18 App. Div., 368.)

When a street railroad corporation has not, either by its certificate of
incorporation or by valid extension proceedings, located a route upon
an avenue, it has no capacity to receive the consent of the local authori-
ties as to such avenue. (McClean v. Westchester Electric Ry. Co., 25
Misc., 383.)

An abutting property owner may maintain an action to restrain a rail-
road corporation from unlawfully maintaining and operating a railroad
along the street. (McClean v. Westchester Electric Ry. Co., 25 Misc., 383.)

The statute requires the consents of the owners of one-half of the
property, measured in lineal feet, bounded upon the route where the
change in motive power is proposed to be made. (St. Michael’s P. E.
Church v. Forty-second St., Manhattanville & St. Nicholas Ave. Ry. Co.,
26 Misc., 601.)

Although the unauthorized maintenance of a railroad in a city street
constitutes it a public nuisance, an owner of property bounded by the
exterior line of the street, not owning the fee thereof, is not entitled
to enjoin such maintenance and operation of the railroad, in the absence
of proof that he has suffered special damages therefrom, and, even where
it appears that special damage has resulted to the owner, and that the
railroad was constructed without the necessary consents, it rests within /
the discretion of the court to grant an injunction or to give the railroad
company a reasonable time within which to obtain such consents. (Black
y. Brooklyn Heights R. R. Co., 32 App. Div., 468.)

As to the effect of a voluntary temporary change in a part of a route
396 Consent oF Property OWNERS.

 

The Railroad Law, § 91.

 

upon consents previously granted, see Trelford v. Coney Island & Brooklyn
R. R. Co., 5 App. Div., 464.

Where the issue was whether a street railroad had procured the con-
sent of one-half in value of the property bounded on that portion of a
street upon which it was proposed to operate the road, and the proposed
line extended only 125 feet along a piece of property having a frontage
of 273 feet, the railroad company could not avail itself of the consent
as to the whole value of the premises, but only in the proportion of 125
to 273. (Merriman v. Utica Belt Line St. R. R. Co., 18 Misc., 269.) An
abutting owner, who has no rights in the fee of a street, has sufficient
interest to restrain by injunction the construction, in the street, of a
railroad upon the trolley system, where the company is attempting to
construct the road without having procured the consent of half of the
property in value bounded on the proposed line. (Id.)

An attempt to build a street railroad on a public highway without any
authority is a public nuisance. (Fanning v. Osborne, 102 N. Y., 441.)

As enacted in 1890 (chapter 565), the foregoing section contained the
following in relation to street surface railroads, to-wit: ‘‘ But where such
railroad runs through a street or avenue bounded on one side by a public
square or park, the consent of one-half of the property owners on the
opposite side of such square or park shall also be first obtained.” The
section as above amended in 1894, chapter 723, omitted the provision quoted
and it was thereby repealed. (McDermott v. Nassau Electric R. R. Co.,
85 Hun, 422.) 5

Where an owner of premises on a highway signed the following instru-
ment: “For value received, I hereby grant to the Rochester Railway
Company the right to construct, maintain and operate a double-track rail-
road upon Plymouth avenue, from the bridge over the abandoned Genesee
Valley canal to the southerly end of Plymouth avenue, such railroad to
consist of a single track upon each side.of the roadway, and to be operated
by electricity as motive power,’’ held, that such instrument gave no right
to the railroad company to lay and operate a railroad beyond the limits
of the street therein named. (Curvin v. Rochester Ry. Co., 78 Hun, 555.)
Such instrument must have such practical operation as the case permits,
and, if two tracks could not be laid in front of the premises of the owner
ccnsenting, the company must be content with one, and that one should
be laid on the traveled track of the highway, if necessary. (Id.) Such
instrument was the grant of an easement in addition to that involved in
ity use as a highway. (Id.)

An action to prevent the construction of the road does not lie in favor
of a resident and taxpayer not owning real property on the street where
the road is to be laid, and to whom it will not be 8pecially injurious.
(Davis v. Mayor, ete., 14 N. Y., 506.) :

The term “local authorities ” is discussed in the Matter of Rochester
Elec. Ry. Co., 123 N. Y., 351, but the words have since been defined by
amending the section as above. :

The consent of the owners of one-half of the property bounded on that
portion of each street upon which the proposed railroad is to be built is
necessary. (Hilton v. 34th St. R. R. Co., 1 How., N. S., 453.)
Consent or Locan AuTHorITIEs, 3897

 

The Railroad Law, § 92.

 

The interest in the street obtained from municipal authorities is in per-
petuity to the extent required for a street railroad. (People v. O’Brien,
111 N. Y., 1.)

Conditions imposed by municipal authorities which were void when
imposed, may be ratified and confirmed by act of the Legislature. (City
of N. Y. v. Highth Ave. R. R. Co., 118 N. Y., 389.):

Under the act which this section superseded no power was conferred.
upon a street railroad company to build the necessary structure for a.
cable road, nor to operate the same. (People ex rel. Third Ave. R. R. Co.
v. Newton, 112 N. Y., 396. See, also, Schaper v. Brooklyn & L. Isl. Cable
Ry. Co., 4 St. Rep., 860; aff’d, 124 N. Y., 630.)

As to whether the Legislature has power to authorize construction of a.
railroad upon a street or highway, where the fee of the street remains.
in the original owner, without granting compensation to the abutting lot
owner, see Fanning v. Osborne, 102 N. Y., 441.

§ 92. Consent of local authorities; how procured.—
The application for the consent of the local authorities shall be in-
writing and before acting thereon such authorities shall give pub--
lic notice thereof and of the time and place when it will first be con--
sidered, which notice shall be published daily in any city for at
least fourteen, days in two of its daily newspapers if there be two,.
if not, in one, to be designated by the mayor, and in any village
or town for at least fourteen days in a newspaper published therein,,
if any there shall be, and if none, then daily in two daily news-
papers if there be two, if not, one published i in the city nearest such.
village or town. Such consent must be upon the expressed* con-
dition that the provisions of this article pertinent thereto shall be.
complied’ with, and shall be filed in the office of the clerk of the
county in which such railroad is located. Whenever the consent
of the common council of a city is applied for, the first considera-
tion, of which notice is hereby required, may be by committee of
such common council. _ Any such notice, publication or considera-
tion heretofore or hereafter given, made or had in substantial con-
formity with the requirements of this section, is and shall be suffi-
cient notice, publication and consideration for all the purposes.
hereof notwithstanding any conflicting provision of any local or
special act or charter.

(Thus amended by I. 1892, ch. 676; L. 1893, ch. 434.)

For form of notice of application, petition to authorities and. consent of
latter, see post, forms Nos. 118, 119 and 120.

A consent of the local ‘authorities of a city to the construction of a
railroad upon its streets, obtained in proceedings in compliance with the.
city charter, is valid. (Matter of Buffalo Traction Co., 25 App. Div., 447.)

 

* So in the original.
398 Consent or Locat AUTHORITIES.

 

The Railroad Law, § 92.

 

In a taxpayer’s action to restrain the building of a street railroad, a
complaint setting forth that a resolution of the common council was cor-
ruptly passed to the injury of the property of the city, and confirmed by
an act of the Legislature, does not state a cause of action. (Kittinger v.
Buffalo Traction Co., 25 App. Div., 329.)

When a railroad company becomes incorporated under an act of the
Legislature, it holds a charter from the State and is responsible only to
the State for the fulfillment of the duty to operate its franchise during
the term or period specified; it is not to be supposed that the Legislature
conferred a franchise which could, at some time, at the option of the
municipal corporation, be surrendered to it. (Patter v. Collis, 156 N. Y., 16.)

The terms of a license to lay tracks do not attach to a subsequent
license to extend the railroad, not stating any terms. (Mayor, etc., of
New York v. Highth Ave. R. R. Co., 7 App. Div., 84.)

Where a railroad corporation has made application to the board of
trustees of a village for permission to lay its tracks in the village the
requirement as to public notice was satisfied by a publication of such
notice once a week for four consecutive weeks in a newspaper, which,
although not printed in the village, is circulated and given to the public
at the village, and whose publishers have their place of business and
mailing list there. (Secor v. Village of Pelham Manor, 6 App. Div., 236,
39 N. Y. Supp., 993.)

‘From the date of the passage of the Greater New York charter, Laws
of 1897, chapter 378, the granting of a franchise to operate a railroad
within the territory of the new city for a longer term than twenty-five
years, with certain privileges of renewal, is forbidden. (Norris v.. Wurster,
23 App. Div., 124.)

The provision of the Greater New York charter, Laws of 189%, chapter
378, section 73, that ‘‘ after the approval of this act no franchise or right
to use the streets, avenues, parkways or highways of the city shall be
granted by the municipal assembly to any person or corporation for a
longer period than twenty-five years,” restricted’ the power of the alder-
men or city authorities within the limits of the new city thereby created,
from the date of the approval of the act, and from that date deprived the
local authorities of Brooklyn of power to grant a consent to operate a
railroad in the streets for a period beyond twenty-five years. (Blaschko
y. Wurster, 156 N. Y., 437, aff’g 23 App. Div., 625.) 1

The method of procedure upon the hearing of an application by a rail-
road corporation for the consent of the local authorities of a village to
the laying of its tracks in such village, is not defined in the statute, but
rests largely in the discretion of the village board, and while the courts
would not tolerate an abuse of discretion which arbitrarily excluded a
fair and reasonable hearing, by the board, of interested parties, yet when
it appears that parties have had a hearing and that a reasonable oppor-
tunity has been given for the hearing of all, the court will not interfere
and restrain action by the board unless it be clearly shown that this right
has been unnecessarily denied and that actual prejudice and damage has
resulted or will result to the party seeking redress. (Secor v. Village of
Pelham Manor, 6 App. Div., 236, 39 N. Y. Supp., 993.) The statute does
ConpiTIon oF Consent; Sate or FRANcHIsE. 399

 

The Railroad Law, § 93.

1

not provide that the board should continue to adjourn for the purpose of
hearing interested parties, or that such parties acquired the right to be
heard because the board adjourned without taking formal action upon the
‘application. (Id.) / :

When a street railroad seeks to cross a bridge, one-half of which lies
in a village in one town and the other half in a village in an adjdining
town, the bridge having been built by the two towns, both of which are
ehargeable with its repair and maintenance, the consent of the highway
‘commissioners of the two towns is a prerequisite, under section 18 of
article 3 of the Constitution, to the construction and operation of the
railroad. (Town of Wheatfield v. Tonawanda Street R. R. Co., 92 Hun,
-460.) A consent obtained from the trustees of the two villages will not,
in such a Case, satisfy the constitutional requirement. (Id.)

The procurement of 4 certificate of necéssity from the railroad commis-
sioners under section 59 is not a condition precedent to an application by a
street surface railroad corporation for municipal consent to use the streets
and the publication of notice of a public hearing in relation to such
application. (McWilliams v. Jewett, 14 Misc., 491.)

The prohibition in section 59 against the exercise of the powers of a
railroad corporation until a certificate under said section has been
-obtained, has reference solely to the additional powers specially con-
ferred relating to the survey, acquisition of land, construction, ete., and
-does not apply to the initial proceedings peculiar to street railroads, such
.as the obtaining of the consents of property owners and the local author-
‘ities. (McWilliams v. Jewett, 14 Misc., 491.)

Where a turnpike company, which was maintaining a highway as a
turnpike road, has acquired from adjoining land owners the right to a
strip of land on each side of the highway for a bridle-path, and has
given consent to a railroad company to use a portion of said bridle-
path for its railroad, such consent is not sufficient under the statute; the
‘consent, so given, has no effect save as it regarded the rights and inter-
-ests of the turnpike company; the highway had not ceased to be such
because used as a turnpike, and the administrative duty of the town
highway commissioners remained unimpaired, so far as its exercise was
required for the preservation of the rights and interests of the public;
therefore, their consent was requisite. (In re Rochester Elec. Ry. Co.,
123 N. Y., 351; dist’g 77°N. Y., 248.)'

The municipal authorities may impose any condition which seems to
‘them to be proper, as the terms for their consent. (People ex rel. West
‘Side St. Ry. Co. v. Barnard, 110 N. Y., 548.)

§ 93. Condition upon which consent shall be given ; sale
of franchise at public auction.—The consent of the local
authorities in cities containing twelve hundred and fifty thousand
inhabitants or more, according to the last federal census or state
enumeration, must contain the condition that the right, franchise
and privilege of using any street, road, highway, avenue, park or
public place shall be sold at public auction to the bidder who will
«agree to give the city the largest percentage per annum of the gross
400 ConpiTion or Consent; Sate or FRANCHISE.

 

The Railroad Law, § 93.

 

receipts of such corporation, with a bond or undertaking in such
form and amount and with such conditions and sureties as may
be required and approved by the comptroller or other chief fiscal
officer of the city, for the fulfillment of such agreement and for
the commencement and completion of its railroad within the time
designated by law and for the performance of such additional con-
ditions as the local authorities in their discretion may prescribe.
Whenever such consent shall provide for the sale at public auction.
of the right to construct and operate a branch or extension of an
existing railroad, such consent shall provide that but one fare-
shall be exacted for passage over such branch or extension and
over the line of road which shall have applied therefor; and fur-
ther, that if such right shall be purchased by any corporation other
than the applicant, that the gross receipts from joint business shall
be divided in the proportion that the length of such extension or-
branch so sold shall bear to the entire length of the road whether
owned or leased which shall have applied therefor and of such
branch or extension, and that if such right shall be purchased by
the applicant, the percentage to be paid shall be calculated on such.
portion of its gross receipts as shall bear the same proportion to.
the whole value thereof as the length of such extension or branch
shall bear to the entire length of its road, whether owned or leased.
The bidder to whom such right, franchise and privilege may be-
sold -must be a duly incorporated railroad corporation of this state,.
organized to construct, maintain and operate a street railroad in
the city for which such consent may be given; but no such corpo-
ration shall be entitled to bid at such sale unless at least five days.
prior to the day fixed for such sale, or five days prior to the day to:
which such sale shall have been duly adjourned, the corporation.
shall have filed with the comptroller or other chief fiscal officer
of the city, a bond in writing and under seal, with sufficient sure-
ties, to be approved by such comptroller or officer, conditioned.
that if such right, franchise and privilege shall be sold to suck
ecrporation, to pay to the city where such railroad is situated the
sum of fifty thousand dollars as liquidated damages and not by
way of penalty in the event of the failure of such bidder to fulfill
the terms of sale, comply with the provisions of this article perti-
nent thereto, and complete and operate its railroad according
to the plan or plans and upon the route or routes fixed for its.
construction within the time hereinafter designated for the con-
struction and completion of its railroad, and also conditioned to
pay to the corporation first applying for the consent, if it shall
i

 

ConpiTIon oF ConsENT; SALE oF FRANCHISE. 401

The Railroad Law, § 93.

t

not be the successful bidder, the necessary expenses incurred by
such corporation prior to the sale pursuant to the requirements
and direction of the local authorities, within twenty days after
such sale and upon the certificate of the comptroller or other
officer conducting the same as to the sum or amount to be paid.
Notice of the time and place and terms of sale, and of the route
or routes to be sold, and of the conditions upon which the con-
sent of the local authorities ‘to the construction, operation and
extension of such street railroad will be given, musf be published
by such authorities for at least three successive weeks, and in
any city having two'or more daily newspapers, at least three
times a week in two of such papers to be designated by the mayor,
and in any city where two daily papers are not published, at
least once a week in a newspaper published therein to be des-
ignated by the mayor. The comptroller or other chief fiscal
officer of the city shall. attend and conduct such sale and may
adjourn the same, but not more than four weeks in all, un-
less further adjournments should, in: his discretion, be neces-
sary by reason.of the pendency of legal proceedings, and shall
cancel any bid if in excess of the gross receipts, leaving in force
the highest bid not in excess, or if the bidder shall not have fur-
nished adequate security entitling such bidder to bid, or shall
otherwise fail to comply with the terms and apuditend
of sale, and shall resell the consent and license in the same man-
ner as hereinbefore provided for the first sale. The bidder who
may build and operate such railroad shall at all times keep
accurate books of account of the business and earnings of such
railroad, which books shall at all times be subject to the in-
spection of the local authorities. In the event of the failure or
refusal of the corporation operating or using such railroad to
pay the rental or percentages of gross earnings agreed upon, and
after notice of not less than sixty days to pay the same, the local
authorities interested therein may apply to any court having
jurisdiction upon at least twenty days notice to such corporation,
and after it shall have had an opportunity to be heard in its
defense, for judgment declaring the consent and right to
operate and use such railroad forfeited and authorizing the sale
again of the same in the manner hereinbefore prescribed, pro-
vided, however, that no such resale of any such consent and
right heretofore granted shall. be authorized except upon the
condition that the same shall-be subject to all liens and incum-
brances existing on said railroads at the time such forfeiture
26
402 ConpiTion oF Consent; Sate or FRANCHISE.

 

The Railroad Law, § 93.

 

may have been declared. All consents hereafter given by the
local authorities, unless it be otherwise provided in such consent
or in some renewal thereof may ‘be forfeited at the expiration
of two years thereafter, and every consent by the local author-
ities of any city of the first class or of any city, town or vil-
lage now embraced within the corporate limits of any city of
the first class heretofore given to or acquired-or owned by
any street surface railroad corporation, since January first,
eighteen hundred and ninety, is hereby ratified and confirmed,
and shall be deemed to be in full force and effect, and shall
continue until: and including December thirty-first, nineteen
hundred and three when it may be forfeited unless prior thereto
the required consent of property owners, or determinations by
the appellate division of the supreme court, in lieu thereof, shall
have been first obtained. The board of sinking fund com-
missioners of any city shall have power to reduce, compromise
or release any obligation or liability to the mayor, aldermen
and commonalty of such city under the provisions of chapter six
hundred and forty-two of the laws of eighteen hundred and
‘eighty-six, or of this chapter whenever, in the opinion of such
board, such release or compromise shall be just or equitable,
or for the public interest, the reason for any such release or-com-
promise to be stated in the recorded proceedings of such board.
No lease by any company organized under section two of the rail-
road law and owning a right, privilege or franchise of using any
street, avenue, highway or public place for railroad purposes,
which has heretofore been sold under the provisions of this sec-
tion, hereafter made to any street surface railroad company
which is not subject to the payment of any percentage pursuant
to this section, and which is not organized for the purpose of
operating a railroad in a city of the first class, shall be valid
until the leased company shall have filed in the office of the
secretary of state and in the office of the clerk of the county
where its certificate of incorporation is filed, its acceptance in
writing and under its corporate seal of the provisions of this
section as now amended; and upon such acceptance being filed,
the total percentage amount thereafter to be paid annually
under this section and under section ninety-five of this act, shall
be at the rate of five per centum of the gross receipts derived
from the operation of the roads of the lessor and lessee com-
panies considered as one system.* The lessee company, at the
time of filing its acceptance aforesaid, shall also file in the same
Conpition oF Consent; Satz or FRANCHISE. 403

 

The Railroad Law, § 93.

 

offices a bond to the people of the state, executed in duplicate
by it and a surety company authorized by law to act as surety
on bonds and undertakings, in the penal sum of fifty thousand
‘dollars, and conditioned for the faithful payment annually of
the total percentage aforesaid, and such bond shall be deemed
to be a full compliance with the condition for a bond or under-
taking required by this section to be provided for in the con-
-ditions of the consent of the local authorities and shall supersede
any such bond or undertaking ‘theretofore given. Whenever
it shall be desired to unite two street surface railroad routes
at some point not over one-half mile from such respective lines
or routes, and establish by the construction of such connection
a new route for public travel, and the corporation or corporations
owning or using such railroads shall consent to operate . such
‘connection as a part of a continuous route for one fare, and it
shall appear to the local authorities that such connection cannot
be operated as an independent railroad without inconveniénce
to the public, but that it is to the public advantage that the
same should be operated as a continuous line or route with
existing railroads, or whenever for the purpose of connecting
with any ferry or railroad depot, it shall be desired to construct
.an extension or branch not more than one-half mile in length,

‘of any street surface railroad corporation, no sale of such fran-
-chise shall’ be made as provided in this section, but any consent
-of the local authorities for the construction and operation of
‘such connection, extension or branch shall provide that the cor-
‘poration or corporations operating such connection, extension or |
‘branch shall pay into the treasury of said city annually the per-
‘centage provided for extensions or branches in section ninety-
five of this chapter, for the purposes, at the times, in the manner
and upon the conditions set forth in such section. The provisions
of this section as now amended shall apply to all cities of the
‘first class, but nothing herein contained shall be construed as
-superseding, repealing or modifying any provision of the
-charter of any city, village or town, nor as modify-
‘ing or affecting the terms of a certain contract bearing
-date January first, eighteen hundred and: ninety-two, entered
‘into by and between the city of Buffalo and the various street
surface railroad corporations therein named in such contract,

-except that the provisions of this act as amended, which con-
‘tinue and confirm the consents of local authorities shall apply
‘to street surface railroads in the city of Buffalo, as well as in
404 ConpiTion oF Consent; Sate oF FRANCHISE.

 

The Railroad Law, § 93.

other cities of the first-class. This section shall not modify or
affect any contract heretofore entered into between a street sur
face railroad corporation and any city of the third class, town
or village regulating the payment of percentages or paving of
streets, and any city of the third class, town or village, is hereby
authorized to enter into any such form of contract with any
street surface railroad corporation, and any such contract here-
tofore entered into is hereby ratified and confirmed. The local
authorities may, in their discretion, make their consent to de-
pend upon any further conditions respecting other or further
security, or deposit, suitable to secure the construction, com-
pletion and operation of the railroad within any time not exceed:
ing the period prescribed in this article and respecting the char-
acter, quality or motive power of the road to be completed and
respecting the grouping of streets, avenues and highways into.
one route, or into several routes, for the purpose of a single sale
of the franchise, right or privilege for all the routes collectively,
or of the separate sale for each route or street, as said local
authorities may think expedient and respecting the payment of
the percentage agreed to be paid at the sale upon all the lines
operated by the successful bidder within the city and respecting:
any matter involved in or affecting the computation of percentage
payments and respecting the use of the railroads to be con-
structed under the consent by any other company and respecting
the interchange of traffic and division of fares between the com-
pany operating such railroads and any other company, and
respecting the application of any provision herein contained as.
to carriage of passengers for single fare and the division of gross
receipts and the payment of percentages to the line leased or
operated under contract by the applicant for an extension, and
also respecting any other matter concerning which, in their
judgment, further conditions would be for the public interest.
Any and all consents, sales and proceedings heretofore granted,
made or taken in substantial compliance with the provisions of
this section, as now last amended, are hereby approved, ratified
and confirmed, and any mea nies or successor to or transferee:
of the rights of the purchaser of any right or privilege heretofore.

‘sold substantially in accordance with the provisions of this sec-

tion as now amended, is authorized to acquire the requisite con-
sents of property owners, or, in lieu thereof, determinations

by the appellate division of the supreme court, and to proceed’
ConpiTion oF Consent; Satz or Francuise. 405

 

The Railroad Law, § 93. .

 

with the construction of its road, at any time within three years
hereafter.

(Thus amended by L. 1892, ch. 306 and ch. 676; L, 1893, ch, 434; L. 1901,
ch. 494.)

A city cannot make a valid sale of more than one extension of an exist-
ing street surface railroad at the same sale when the extensions are
separated from each other in such a way that they can only be operated
together over the line of the existing railroad. (Beekman v. Third Ave.
R. R. Co., 153 N, Y., 144, atf’g 13 App. Div., 279.)

The common council has no power to impose as-a condition of the sale
-of an extension or extensions of an existing street surface railroad, that
‘such railroad, if a purchaser, shall pay into the city treasury a sum of
‘money in cash, within 4 certain time after the right to build the extension
has been struck ‘off to it, in addition to the percentage of gross receipts
‘bid by it upon such sale. (Beekman v. Third Ave. R. R. ©o., 153 N. Y.,
144, aff’g 13 App. Div., 279.)

Two extensions of an existing street surface railroad are not to ba
‘deemed to constitute one extension and franchise, because they are to
be connected by an intermediate section of the main line of the appli-
‘cant. (Beekman v. Third Ave. R. R. Co., 153 N. Y., 144, aff’g 13 App.
Div., 279.)

An act exempting a railroad company from the provisions of sections
‘93, 95 and 98 does not confer upon it any exclusive immunity or privilege,
but simply operates to relieve the corporation from the conditions which
‘had been imposed by the Legislature. (Bohmer v. Haffen, 35 App. Div.,
‘361; aff’d, 161 N. Y., 390.)

As to constitutionality of this section and the confirmation of pending
‘contracts. (Davidge v. Binghamton, 62 App. Div., 525.)

Under this section and three years after consents have been obtained,
a commissioner of highways of.a town may, as a condition of granting
on May 12, 1896, a consent to the construction of a railroad, provide that
‘if the road is not completed by January 1, 1897, “‘ then this franchise shall
‘be forfeited, and the rights and privileges granted by it shall cease and
«determine without any action or proceeding in law or otherwise.” (Dusen-
berry v. N. Y., W! & C. Traction Co., 46 App. Div., 267.) The consent,
although broad enough to work a forfeiture without legal proceedings,
will not be given that effect, and, in an action to establish the forfeiture,
‘because of a non-compliance with such condition, the corporation may
‘show facts constituting a legal excuse for its non-compliance or a waiver
‘thereof or an estoppel. (Id.) Where affidavits, used upon a motion for
‘an injunction restraining operation of a railroad, specify details wherein
‘the company has failed to obtain consent of the owners of two-thirds in
value of thé property bounded upon the street in which it is constructing
‘its road, the burden is upon the railroad company to make clear proof
‘that it has the necessary consents. (Id.) Where the Legislature has
Tegulated the subject-matter, it is not competent for persons charged with
‘the duty of giving their consent to the performance of a particular act
to impose different conditions. (Id.)

4
406 Procrrepines 1r Property Owners po noT CoNsENT.

 

The Railroad Law, § 94.

 

The State has no power to interpose as a party in suits in which it is:
not interested to prevent multiplicity of suits between adverse claimants.
Chapter 310, Laws of 1886, is not retroactive in its operation. Said chap-
ter is unconstitutional. (People v. O’Brien, 111 N. Y., 1, revsg. 45 Hun,
519.)

A court of equity will not entertain an action brought by a municipab
corporation to have it adjudged, in respect to an auction sale of a street.
railroad franchise, whether the bidding has passed beyond all reasonable-
and valid bids, and which is the highest legal and valid bid, and to have
the municipality directed to award the franchise accordingly, or whether
the biddings should be -canceled and a resale ordered, and that the court
protect the city’s interest in the franchise, and instruct its comptroller
as to his official duty in the premises. (City of New York v. Fitch;
North N. Y. City Traction Co. et al., 9 App. Div., 452.)

In a case under section 59 of the Railroad Law, in which the Railroad
Commissioners refused to issue a certificate of public convenience and
necessity, but without prejudice to a renewal of the application, on the
ground that the company should have first obtained the consent of the
local authorities as required by section 93, it was held that the fact that
the Railroad Commissioners had refused such certificate does not prevent
the railroad company from becoming a bidder at a sale in the city of
.New York. (Matter of Empire City Traction Co., 4 App. Div., 103.)

§ 94. Proceedings if property owners do not consent.
—If the consent of property owners required by any pro-
vision of this article can not be obtained, the corporation failing
to obtain such consents may apply to any general term of the
supreme court held in the department in which it is proposed to
construct its road for the appointment of three commissioners to
determine whether such railroad ought to be constructed and
operated. Notice of such application must, at least ten days prior
thereto, be served, personally, upon each non-consenting property
owner by delivering the same to the person to whom such prop-
erty is assessed upon such assessment-roll or by duly mailing the
same, properly folded and directed, to such property owner at his
post-office address with the postage prepaid thereon. If the person
upon whom service is to be made is unknown, or his residence and
post-office address are unknown and cannot by reasonable dili-
gence be ascertained, service of such notice may be made by pub-
lishing the same in such newspaper of the county as the court
may direct, at least once a week for two successive weeks. Upon
due proof of service of such notice the court to which the appli-
cation is made shall appoint three disinterested persons, who shall
act as commissioners, and who shall, within ten days after their
appointment, cause public notice to be given of their first meet-
Procrepines 1F Property Owners po not Consent. 407

 

The Railroad Law, § 94.

 

ing in the manner directed by the court, and may adjourn from
time to time, until all their business is completed. Vacancies
may be filled by the court after such notice to parties interested
as it may deem proper to be given; and the evidence taken before
as well as after the happening of the vacancy shall be deemed to
be properly before such commissioners. After a public hearing
of all parties interested, the commissioners shall determine
whether such railroad ought to be constructed and operated, and
shall make a report thereon, together with the evidence taken, to
the general term, within sixty days after appointment, unless the
court, or a judge thereof, for good cause shown, shall.extend such
time; and their determination that such road ought to be con-
structed and operated, confirmed by such court, shall be taken in
lieu of the consent of the property owners hereinbefore required.
The commissioners shall each receive ten dollars for each day
spent in the performance of their duties and their necessary ex-
penses and disbursements, which shall be paid by the corporation
applying for their appointment.

(Thus amended by L. 1892, ch. 676.)

The provisions of article 3, section 18 of the State Constitution, that the
determination of commissioners, confirmed by the court, may be taken
in lieu of the consent of the property owners, does not give to the Appel-
late Division any power in the matter where the report of the commis-
sioners is unfavorable to the construction of the road. (Matter of Nassau
Electric R. R. Co., 6 App. Div., 141; Matter of East River Bridge Co., 143
N. Y., 249.) It is only a favorable report, confirmed by the court, which
can be taken in lieu of the consent of the property owners. (Id.)

The only prerequisite to the appointment of commissioners to determine
whether such railroad ought to be constructed and operated is the fact
that the consent of the property owners cannot be obtained. The consent
of the municipal authorities is a prerequisite to the construction, extension
or operation of the railroad, but, as such consent is not necessary to the
appointment of commissioners, the question whether it has been given
does not necessarily arise upon a motion to confirm their report. (Matter
of Auburn City Ry. Co., 88 Hun, 603.)

The determination of the commissioners is not operative until their
report is confirmed by an order of the general term. Such order is dis-
cretionary and not reviewable by the Court of Appeals. (In re Kings Co.
El. R. R. Co., 82 N. Y., 95.) When commissioners report that the road
should not be built, the court, in the absence of proof of fraud or mani-
fest irregularity, has no power to order a further hearing nor to appoint
new commissioners. (In re Nassau Cable Co., 36 Hun, 272.)

A petition showing the total valuation of the property on the portion
of each street upon which the road is to be built, is sufficient when it
appears therefrom that refusals to consent represented more than one-
408 ProcrErpines 1r Property Owners po NoT CoNsENT.

 

The Railroad Law, § 94.

 

half of the total valuation. (In re People’s R. R. Co., 112 N. ne 584.)
The reasons for the refusals of property owners to consent need not be
given. (In re B’dway Surface R. R. Co., 34 Hun, 414.)

The court is not yested with any discretion to grant or deny the motion
upon a consideration of the utility or necessity of the proposed road, nor
has it the power to deny the application because of failure of the applicant
to procure the requisite consent of another company. Inability to obtain
the consent of property holders is the only prerequisite to the application.
(In re Thirty-fourth St. R. R. Co., 102 N. Y., 343.) The court primarily
possesses the mere naked power of appointment, and has no power to
pass upon the merits of the application until the commissioners have
made their report. (1d.)

The consent of local authorities may be procured either before or after
that of the property owners. (In re Broadway Surface R. R. Co., 34
Hun, 414.) :

Only owners whose names appear on the assessment-roll are entitled to
notice. (34 Hun, 414, above.) Notice enables property-owners to appear
and oppose the application. (102 N. Y¥., 343, above.)

Where it is sought to take the property of an individual under powers
granted to a corporation to be formed in a particular manner, the con-
stitutional protection of the rights of private property requires that the
powers granted be strictly pursued, and all the prescribed conditions per-
formed. (N. Y. Cable Co. v. Mayor, etc., of N. ¥., 104 N. Y¥., 3.) It must
be a corporation de jure. (Id.) When the power is conferred upon a
corporation duly formed, it will not be defeated simply because the cor-
poration has done or omitted some act which may cause a forfeiture of
its rights and franchises, as it rests with the State to determine whether
such forfeiture will be enforced. (Id.)

The Appellate Division has power to confirm a report made by a major-
ity of the commissioners appointed under this section to determine whether
the proposed railroad shall be built, as the Constitution, article III, sec-
tion 18, contemplates that the determination to be réached in the matter

shall be that of the court as well as that of the commissioners. The com-

missioners may properly consider whether there are other routes equally
available and calculated to accommodate the public. (Matter of Port
Chester St. Ry. Co., 43 App. Div., 536.)

A proceeding by a street surface railroad corporation to obtain the
consent of the Appellate Division in lieu of the consent of property
owners, which has been refused, is entirely independent of proceedings
to procure the cqnsent of local authorities or of the board of railroad com-
missioners; therefore, it is no defense to a motion to confirm the report
of commissioners, that the other consent will have to be obtained before
the road can be constructed. (Matter of Buffalo Traction Co., 25 App.
Div., 447.) *

Chapter 649, Laws of 1896 (see said act, page 357, ante), validating and
confirming all consents given since December 1, 1895, and prior to Febru-
ary 1, 1896, by the local authorities of any city of the first or second class
to any construction, operation and maintenance of a street surface rail-
toad by a railroad corporation, which has not complied with the provisions
/

Percentage or Gross Reczrprs, Erc. 409

 

The Railroad Law, § 95.

 

‘of section 59 of the Railroad Law, and authorizing such corporation to
construct -its road, upon obtaining the consent of abutting owners, “as
provided by law,” is available to a corporation, which, being unable to
‘gecure consents of abutting owners, under section 91 of the Railroad Law,
obtains the confirmation by the Appellate Division of a report of com-
missioners, favoring the construction of the railroad, pursuant to section
94 of said law. (Matter of Buffalo Traction Co., 25 App. Div., 447.)

A special act exempting a consolidated company from the provisions
of sections 93, 95 and 98 of this law did not confer upon it any exclusive
immunity or privilege, but simply operated to relieve the corporation from
conditions which had been imposed by the Legislature. (Bohmer-y. Haf-
fen, 35 App. Div., 381; aff’d, 161 N. Y., 390.)

§ 95. Percentage of gross receipts to be paid in cities or
villages ; report of officers.— Every corporation building or
operating a railroad or branch or extension thereof, under the pro-
visions of this article, or of chapter 252 of the laws of 1884, within
any city of the state having a population of 1,200,000 or more,
shall, for and during the first five years after the commencement
of the operation of any portion of its railroad annually, on Novem-
ber first, pay into the treasury of the city in which its road is
located, to the credit of the sinking fund thereof, three per cent.
of its gross receipts for and during the year ending September

 

Laws of 1901, chapter 637, entitled “‘An Act relating to the payment
of a percentage of the gross receipts due to a city or village from a cor-
poration building or operating a street surface railroad, or a branch or
extension thereof,” reads as follows:

Section 1. Every corporation building or operating a street surface
railroad, or a branch or extension thereof, under the provisions of article
four of the railroad law, or chapter two hundred and fifty-two of the
laws of eighteen hundred and eighty-four, which, at any time during the
period of six years prior to January first, nineteen hundred and one,
became liable to pay any percentage based upon the gross receipts of
said corporation, under the provisions of section ninety-five of. the rail-
road law, and which heretofore has paid or hereafter shall pay, separately |
or together, the amount of such percentage and, in addition thereto, inter-
est thereon at the rate of seven percentum per annum, computed from
the time such percentage became due by such section ninety-five up to
the time such percentage was or shall be paid, by virtue of such payment
or payments, shall be discharged of liability with the same force and
effect as if the amount of such percentage bad been paid upon the date
when it first became due under the provisions of the said section of the
said railroad law.

§ 2. All acts and parts of acts inconsistent herewith are hereby
repealed.
410 Prrcentace or Gross Receiets, Ere.

 

The Railroad Law, § 95.

 

thirtieth next preceding; and after the expiration of such five
years, make a like annual payment into the treasury of the city to
the credit of the same fund, of five per cent of its gross receipts. If
a street surface railroad corporation existing and operating any
such railroad in any such city on May 6, 1884, shall have thereafter
extended its tracks or constructed branches therefrom, and shall
operate such branches or extensions under the provisions of chap-
ter 252 of the laws of 1884, or of this article, such corporation shall
pay such percentages only upon such portion of its gross receipts as.
shall bear the same proportion to its whole gross receipts as the
length of such extension or branches shall bear to the entire length
of its line. In any other incorporated city or village the local
authorities shall have the right to require, as a condition to their
consent to the construction, operation or extension of a railroad
under the provisions of this article, the payment annually of such
percentage of gross receipts, not exceeding three per cent, into the
treasury of the city or village as they may deem proper. In case
of extension the amount to be paid shall be ascertained in the man-
ner heretofore provided. The corporation failing to pay such per-
centage of its gross earnings shall, after November first, pay in
addition thereto five per cent a month on such percentage until
paid. The president and treasurer of any corporation required by
the provisions of this article to make a payment annually upon
its gross receipts shall, on or before November first in each year
make a verified report to the comptroller or chief fiscal’ officer of
the city of the gross amount of its receipts for the year ending Sep-
tember thirtieth, next preceding, and the books of such corporation
shall be open to inspection and examination by such comptroller
or officer, or his duly appointed agent, for the purpose of ascertain-
ing the correctness of its report as to its gross receipts. The cor-
porate rights, privileges and franchises acquired under this article
or such chapter by any corporation, which shall fail to comply
with all the provisions of this section, shall be forfeited to the
people of the state, and upon judgment of forfeiture rendered in
an action brought in the name of the people by the attorney-gen-
eral, shall cease and determine.
(Thus amended by L. 1892, ch. 676.)

Under the present law it is entirely discretionary with the local authori-
ties, except in the city of New York, whether they will require, as a con-
dition precedent to the granting of the consent, the payment into the
treasury of any portion of the gross receipts of the railroad to be con-
structed and operated. (Adamson v. Nassau Electric R. R. Co., 89 Hun,.
Extensions or Rovure Over Rivers, Erc. 411

 

The Railroad Law, § 96.

 

261. See Southern Boulevard R. R. Co. v. People’s Traction Co., 5 App..
Div., 330; Same v. North N. Y. City Traction Co., 16 Misc., 263.)

§ 96. Extension of route over rivers ; terminus in other
counties; when property owners withhold consent; su-
preme court may appoint commissioners.— Any street rail-
road in operation in this state, which shall, by a two-thirds vote of
its directors, decide to extend the route of its road, so as to cross a
river over and by any bridge now or hereafter constructed under:
the provisions of any law of this state, may so extend their route
ever and across such bridge upon such terms as may be mutually
agreed upon between it and such bridge company, and may locate.
the terminus of their road in the county adjoining the one in which
their road is now located and in operation, upon first obtaining:
the consent of such bridge company or its lessees, and the con-
sent of the owners of one-half in value of the property bounded.
‘on, and the consent also of the local authorities having the con-
trol of that portion of a street or highway upon which it is pro-
posed to construct or operate such railroad, or in case the con-
sent of such property owners cannot be obtained the appellate:
division of the supreme court in the district’ in which it is pro-
posed to be constructed may, upon application, appoint three:
commissioners, who shall determine after a hearing of all parties
interested, whether such railroad ought to be constructed, or
operated, and their determination, confirmed by the court, may
be taken in lieu of the consent of the property owners. -When-
ever a terminus of any public viaduct, bridge or bridges, or pub-
lic viaduct connected with any bridge or bridges, heretofore or
hereafter constructed in and owned and maintained by any city
of the first class, or town adjoining the same, is or shall be located
at or adjacent to or within one-half mile of the route of any
existing street surface railroad, the corporation owning or
operating such railroad may, irrespective of any provisions other-
wise applicable thereto contained in any general or local act,.
upon obtaining the consent of the local authorities and prop-
erty owners as above provided, and upon complying with the
provisions of the railroad law applicable thereto, extend its road
or route and construct and operate its railroad, to, upon and
across such viaduct, bridge or bridges and approaches thereto:
for the purpose of connecting with another railroad route not
more than one-half mile distant from such bridge or viaduct so
as to afford a continuous ride for one fare, subject to the pro-
412 Tracxs or Orner Roaps; Repairs or Streets, Ere.

 

The Railroad Law, §§ 97, 98.

 

visions of the railroad law, or for the purpose of -reaching the
depot, station or terminus of another railroad not more. than
one-half mile distant from such bridge or viaduct. This section
shall not apply to any bridge over the Hudson or East rivers
in the counties of New York and Kings, nor to any bridge or
viaduct constructed under the provisions of any so-called grade
crossing law.

(Thus amended by L. 1898, ch. 590, and L. 1901, ch. 419.)

t

§ 97. Use of tracks of other roads.— Any railroad corpora-
tion in this state, whose cars are run and operated by horses or
-other motive power, authorized by this article, upon the surface of
the street, excepting in the city and county of New York, may, for
the purpose of enabling it to connect with and run and operate its
ears between its tracks, and a depot or car-house owned by it, run
upon, intersect, and use, for not exceeding five hundred feet, the
tracks of any other railroad corporation, the cars of which are run
and operated in like manner with the necessary connections and
switches for the proper working and accommodation of the cars
upon such tracks, and in connection with such depot or car-house,
upon paying therefor such compensation as it may agree upon with
the corporation owning the tracks to be so run upon, intersected,
and used; and in case such corporations can not agree upon the
amount of such compensation, the same shall be ascertained and
determined in the manner prescribed in the condemnation law.

For text of the Condemnation Law, see post.

§ 98. Repair of streets; rate of speed; removal of ice
and snow.— Every street surface railroad corporation so long
as it shall continue to use any of its tracks in any street, avenue
or public place in any city or village shall have and keep in perma-
nent repair that portion of such street, avenue or public place
between its tracks, the rails of its tracks, and two feet in width
outside of its tracks, under the supervision of the proper local
authorities, and whenever required by them to do so, and in such
manner as they may prescribe. In case of the neglect of any cor-
poration to make pavements or repairs after the expiration of thirty |
days notice to do so, the local authorities may make the same at the
‘expense of such corporation, and such authorities may make such
reasonable regulations and ordinances as to the rate of speed, mode
of use of tracks, and removal of ice and snow, as the interests or
‘convenience of the public may require. A corporation whose
agents or servants willfully or negligently violate such an ordi-
Repair oF Streets; Ratz or Srezp, Erc. 413.

 

The Railroad Law, § 98.

 

nance or regulation, shall be liable to such city or village for a
penalty not exceeding five hundred dollars to be specified i in such
ordinance or regulation.

(Thus amended by L. 1892, ch. 676.)

When the city authorities have determined that a street occupied by
a railway company shall be entirely repaved, this section imposes upon the
city the mandatory duty of notifying fhe company to repave, in the man-
ner ‘determined, that portion of the street which the statute requires it to
keep in permanent repair. If, after such notice, the company neglects to
repave, as directed, beyond the time prescribed by: statute, the city can
proceed with the work, at the expense of the company. (Conway. v.
Rochester, 157 N. Y., 33, revsg. 24 App. Div., 489.)

The obligation upon a street railroad corporation to pave certain por-
tions of the street applies to all such railroads, whether incorporated
before or after the passage of the act, and a city common council has
_ no power to exempt a railroad company from the full statutory liability.
imposed. (Wood v. Common Council of Binghamton, 26 Misc., 208.)

Where there is no law regulating the rate of speed of electric ¢ars on
a city street, the mere fact that a car was running at a rate of twelve
or fifteen miles an hour does not constitute negligence. (Bittner v. Cross-
town St. Ry. Co., 153 N. Y., 76, revsg. 12 Misc., 514.)

A street car has no paramount right of way at a street crossing.
(Huber v. Nassau Electric R. R. Co., 22 App. Div., 426; Dise v. Metropoli-
tan St. Ry. Co., 22 Misc., 97.)

The case of Gilmore v. City of Utica, 131 N. Y., 26, arose under Laws of
1884, chapter 252, section 9, the language of which is very different from
that of section 98 of the present Railroad Law, which now makes it the
duty of railroad companies to keep that portion of the street described
in the statute in permanent repair, and commands that it shall make
such repairs whenever required by the local authorities, and in such man-
ner as they shall prescribe. (Conway v. Rochester, 157 N. Y., 33, revsg.
24 App. Div., 489.)

Cases involving paving, repairs and assessments therefor: Gilmore v.
City of Utica, 131 N. Y., 26; id., 121 N. Y., 561; People ex rel. Davidson v.
Gilon, 126 N. Y., 147; Mayor, etc., of N. Y. v. Second Ave. R. R. Co., 102
N. Y., 572; Same v. N. Y. & H. R. R. Co., 46 St. Rep., 349, 19 N. Y..Supp.,
67; Snell v. Roch. Ry. Co., 64 Hun, 476.

Removal of snow and ice:from tracks: Silberstein v. Houston, W. St.
& P. F. R. BR. Co., 117 N. Y., 293; Dixon v. Bklyn. City & N. R. R. Co.,
100 N. Y., 170; Mayor of Troy v. Troy & Lansgbgh. R. R. Co., 49 N. Y.,,
657; Somerville v. City R. Co. of Po’keepsie, 43 St. Rep., 425.

It is error to exclude evidence showing that a city ordinance requiring
ears to be run at stated intervals during the night was unreasonable.
(Mayor, etc., of N. Y. v. Dry Dock, East B’dway & B. R. R. Co., 133 N.
Y., 104.)

When a railroad corporation refuses to pave, the municipality may do so
at expense of the railroad. (Mechanicville v. S. & M. St. Ry. Co., 35
Misc., 513.)
414 Time Roap To BE Burtt; Motive Power.

 

The Railroad Law, §§ 99, 100.

§ 99. Within what time road to be built.— In case any
such corporation shall not commence the construction of its road, or
of any extension or branch thereof, within one year after the consent
of the local authorities and property owners or the determination of
‘the appellate division of the supreme court as herein required, shall
have been given or renewed, and shall not complete the same within
three years after such consents, or determination shall have been: ob-
tained, its rights, privileges and franchises in respect of such railroad
or extension, or branch, as the case may be, may be forfeited. If the
“performance of any act required by the railroad law or any prior acts
within the times therein prescribed, is hindered, delayed or prevented
by legal proceedings in any court, such court may also extend such
time for such period as the court shall deem proper or if the perform-
ance of any act required by said article within the times therein pre-
scribed is hindered, delayed or prevented by works of public improve-
ment, or from any other or different cause, not within the control of
the corporation upon which such requirement is imposed, the time for
the performance of such act is hereby and shall be deemed to be ex- -
tended for the period covered by such hindrance, delay or prevention.
‘The time for compliance with any requirement in this or any former
act, by a street surface railroad corporation: incorporated for the pur-
pose of constructing a street surface railroad and which has prior to
the passage of this act obtained or shall prior to June thirtieth, nine-
teen hundred and three obtain such consents or determination is
hereby extended until June.thirtieth, nineteen hundred and four.

(Thus amended by L. 1892, ch. 676; L. 1893, ch. 434; L. 1902, ch. 209.)
See section 5 of this law, and cases cited thereunder.

The objection that a franchise had become extinct because of failure
‘to construct within three years is not tenable, in a collateral attack
-against the company, as, under the amendment of 1893, noncompliance

 

with that requirement does not ipso facto dissolve the corporation, but
.is a ground of forfeiture which can only be urged in a direct proceeding
‘instituted by the State. (Coney Island, Ft. Hamilton & Bklyn. R. R. Co.
v. Kennedy, 15 App. Div., 588.) _

§ 100. Motive power.—Any street surface railroad may operate
‘any portion of its road by animal or horse power, or by cable,
electricity, or any power other than locomotive steam power,
which said locomotive steam power is primarily generated by the
locomotive propelling the cars, and in the use of which either
escaping smoke or steam or smoke is visible, which may be ap-
proved by the state board of railroad commissioners, and consented
to by the owners of one-half of the property bounded on that por-
tion of the railroad with respect to which a change of motive power
is proposed; and if the consent of such property owners cannot be
obtained, the determination of three disinterested commissioners,
appointed by the appellate division of the supreme court of the
department in which such railroad is located, in favor of such
‘motive power, confirmed by the court, shall be taken in lieu of the
Morive Power. 415

 

The Railroad Law, § 100.

 

consent of the property owners. The consent of the property
owners shall be obtained and the proceedings for the appointment
and the determination of the commissioners and the confirmation
of their report shall be conducted in the manner prescribed in sec-
tions ninety-one and ninety-four of this article, so far as the same
can properly be made applicable thereto. Any railroad corpora-

_ tion making a change i in its motive power under this section, may
make any changes in the construction of its road or roadbed or
other property rendered necessary by the change in its motive
power. Where a street surface railroad in the counties of Herki-
mer and Hamilton is located wholly outside the limits of an incor-
porated city or village, such railroad may, ‘with the approval of
the state board of railroad commissioners be operated by locomo-
tive steam power, provided that such steam power is generated
by oil from and including April’fifteenth.to and including Novem;
ber thirtieth, and by either oil or coal from and including Decem-
‘ber first to and including April fourteenth.

(Thus amended by L. 1892, ch. 676; L. 1899, ch. 584; L. 1900, ch. 679; L.
1901, ch. 553.) :

The amendment of 1901 added the iast sentence, which appears to be
intended to meet a special case.

When the board of railroad commissioners has, upon due notice,
granted an. application for a change of motive power, the privilege
‘thereby acquired by the corporation is in the nature of a franchise, and,
in the absence of statutory authority conferring it, the board has no
power to subsequently reconsider or review its action. (People ex rel.
Luckings v. Board of Railroad Commissioners, 30 App. Div., 69.)

On an application to the railroad commissioners by a street surface
railroad company for permission to change its motive power from horses
to kinetic stored steam power, it is not a valid objection that such last-
mentioned power is a locomotive steam power, the use of which is pro-
hibited by section 100, nor is the board required to withhold its approval
“because the motor to be used is in its experimental stages, or because the
‘corporation applying to use it is controlled by persons interested’ in such
motor system. (People ex rel. Babylon R. R. Co. v. Railroad Commis-
sioners, 32: App. Div., 1'79.)

A corporation which has adopted horse power cannot change to electric
power, except upon compliance with this section, requiring the consents
-of abutting owners, and, failing such necessary consents, will be enjoined
from proceeding with the work. (St. Michael’s P. E. Church v. Forty-
‘second St., M. & St. Nicholas Ave. Ry. Co., 26 Misc., 601.)

Consents of abutting owners, executed by attorneys in fact or by.
executors or by holders of a naked power of sale, cannot be declared
‘valid, unless the instruments, which conferred authority, are- produced
cand examined. (St. Michael’s P. E. Church v. Forty-second St. M. &
‘St. Nicholas Ave. Ry. Co., 26 Misc., 601.)
416 Rate or Fare.
The Railroad Law, § 101.

 

 

A railroad company, in the city of New York, thaving obtained the con-
sent of a majority of owners of property upon the road for a change of
its motive power, and, having obtained the authority of the railroad com-
missioners, as provided by this section, is entitled to a permit from the
commissioner of public works to open the streets for the purpose of mak-
ing the change in construction of its road, rendered necessary by the
change in motive power. (Potter v. Collis, 19 App. Div., 392.) : \

The fact that an applicant to a city commissioner of public works for a
permit to excavate streets to change motive power, also needs a permit
from the board of electrical control, does not make illegal the act of the
commissioner of public works in granting the permit. (Potter v. Collis,
19 App. Div., 392.)

The power vested in the State board of railroad commissioners to
authorize a change of motive power was intended to be used in a way
which could not contravene the established policy of the State as: to
overhead electrical wires. (Potter v. Collis, 19 App. Div., 392.)

The Legislature, in revising the raioad laws, did not, by the omission
of the words “in value” after the word “ property,” provide for the con-
sent of the owners of one-half of the property bounded on that portion of
the railroad with respect to which a change of motive power is proposed,
intend to alter the law as it then existed so as to require the consent of
the owners of one-half the lineal foot frontage of the property. (Matter
of Rochester & Lake Ontario Ry. Co., 51 App. Div., 65.)

A street railroad corporation cannot use electric power to operate its
railroad, except with the consent of the board of railroad commissioners.
(Trelford v. Coney Island & Bklyn. R. R. Co., 6 App. Div., 204.)

A street surface railroad company lawfully using a cable for motive
power in the city of New York may construct upon its roadbed and use
an iron pipe containing electrical wires for use in signalling its power
house in cases of accident. (Empire City Subway Co., Ltd., v. Broadway
& Seventh Ave. R. R. Co., 87 Hun, 279.)

In an action brought by a telephone company to restrain a street rail-
road company from operating its road by the single-trolley system of
electric propulsion, held, that as the plaintiff had accepted its franchise,
which authorizes it to construct and operate its lines upon streets and
highways upon the express condition that they shall not be so constructed
as to incommode the public use, and as the railroad company was occupy-
ing the streets in such a manner as to expedite public travel and promote
the public use to which they were originally devoted, the telephone com-
pany’s franchise was of a subordinate character, and it could not complain
that the single-trolley system interfered with the operation of its lines.
(Hudson River Tel. Co. v. Watervliet Turnpike & Ry. Co., 135 N. Y., 393,
revsg. 61 Hun, 140, and distinguishing Story v. N. Y. & E. R. R. Co., 90
N. Y., 122; Lahr v. M. BE. R. Co., 104 N. Y., 268, and People ex rel. v. New-
ton, 112 N. Y., 396. See, also, Hudson R. T. Co. v. W. T. & Ry. Co., 121
N. Y., 397.)

§ 101. Rate of fare.— No corporation constructing and
operating a railroad under the provisions of this article, or of chap-
ter two hundred and fifty-two of the laws of eighteen hundred and’
Rate or Fare. 417

 

The Railroad Law, § 101.

 

eighty-four, shall charge any passenger more than five cents for
one continuous ride from any point on its road, or on any road, line
or branch operated by it, or under its control, or any other point
thereof, or any connecting branch thereof, within the limits of
any incorporated city or village. Not more than one fare shall be
charged within the limits of any such city or village, for passage
over the main line of road and any branch or extension thereof if
the right to construct such branch or extension shall have been
acquired under the provisions of such chapter or of this article;
except that in any city of the third class, or incorporated village,
it shall be lawful for such corporation to charge and collect as a
maximum rate of fare for each passenger, ten'cents, where such
passenger is carried in a car which overcomes an elevation of at
least four hundred and fifty feet within a distance of one and a
half miles. This section shall not apply to any part of any road
constructed prior to May six, eighteen hundred and .eighty-fouz,
and then in operation, unless the corporation owning the same
shall have acquired the right to extend such road, or to construct
branches thereof under such chapter, or shall acquire such right
under the provisions of this article, in which event its rate of fare
shall not exceed its authorized rate prior to such extension. The
legislature expressly reserves the right to regulate and reduce the
rate of fare on any railroad constructed and operated wholly or in
part under such chapter or under the provisions of this article.

(Thus amended by L. 1892, ch. 676, and L. 1897, ch. 688.)

The provisions of sections 101, 103, 104, in substance enacting that, in
cities having a population of 800,000 or more, street surface railroad
corporations may make an intertraffic contract to carry a passenger for
a continuous trip and for a single fare not exceeding five cents, nor
exceeding the lawful fare, does not apply to such a contract made in 1895,
‘in a city not shown to have then had such a population, by a corporation
organized in 1885, operating as a street surface railroad prior to April,
1889, a considerable portion of which was not, in 1895, in the city, being
the successor of a similar railroad which had been operated for twenty
years; and it or its lessee may charge, for a continuous trip, a fare in
excess of five cents. (Brooklyn Elevated R. R. Co. v. Brooklyn, Bath &
W. E. R. R. Co., 23 App. Div., 29.)

- An agreement between two connecting railroads that one of them shall
make no discrimination in the rate of fare over its road in favor of any
other railroad and against the other party of the contract, there being no
requirement that the rate of fare, in the absence of any discrimination,
should not be as low as the former company may choose to make it, is
not in violation of public policy. (Brooklyn Elevated R. R. Co. v. Brook-
lyn, Bath & West End R. R. Co., 23 App. Div., 29.)

27
418 Construction or Roap 1n Srreet, Erc.

 

The Railroad Law, § 102.

 

An individual cannot maintain an action to restrain a street surface
railroad corporation from charging fare in excess of the legal rate, and
the proper remedy is for the Attorney-General to vacate or annul the
charter of the corporation. (McNulty v. Brooklyn Heights R. R. Co.,
"31 Mise., 674.) 7

This section has no reference to a steam railroad constructed prior to
the passage of the Railroad Law of 1884, nor was section 104 of this law
applicable to such case. (Barnett v. Brooklyn Heights R. R. Co., 53 App.
Div., 432.)

When a passenger who has paid his fare is ejected by a conductor who
acted in good faith, only compensatory damages will be awarded. (Ham-
ilton v. Third Ave. R. R. Co., 53 N. Y., 25.) Other cases involving payment
of fare: Rown y. Christopher & Tenth St. R. R. Co., 34 Hun, 471; Corbett
v. Twenty-third St. Ry. Co., 114 N. Y., 579, 42 Hun, 587. See, also, cases
cited under section 40 of the Railroad Law, ante, several of which are
applicable to the foregoing section.

§ 102. Construction of road in street where other road
is built.— No street surface railroad corporation shall construct,
extend or operate its road or tracks in that portion of any street,
avenue, road or highway, in which a street surface railroad is or
shall be lawfully constructed, except for necessary crossings, or, in
cities, villages and towns of less than one million two hundred and
fifty thousand inhabitants over ahy bridges, without first obtaining
the consent of the corporation owning and maintaining the same,
except that any street surface railroad company may use the tracks
of another street surface railroad company for a distance not ex-
‘ceeding one thousand feet, and if in a city having a population of
less than thirty-five thousand inhabitants, except Long Island City,
for a distance not exceeding fifteen hundred feet, and in cities, vil-
lages and towns of less than one million two hundred and fifty thou-
sand inhabitants, shall have the right to lay its tracks upon, and run
over and use any bridges used wholly or in part as a foot-bridge,
whenever the court upon an application for commissioners shall
be satisfied that such use is actually necessary to connect main por-
tions of a line to be constructed or operated as. an independent rail-
road, or to connect said railroad with a ferry, or-with another exist-
ing meilnoads and that the public convenience requires the same, in
which event the right to use shall only be given for a compensation —
to an extent and in a manner to be ascertained and determined by
commissioners to be appointed by the courts as is provided i in the
condemnation law, or by. the board of railroad commissioners in
cases where the corporations interested shall unite in a request for
such board to act. Such commissioners in determining the com-
pensation to be paid for the use by one corporation of the tracks of
Amendment of 1907.

(Insert facing page 418, White on Corporations, 6th edition.)

* Laws of 1907, chapter 229, amends the Railroad Law, by adding thereto a
new section, numbered 10l-a, to read as follows:

§ 10l-a. Collection of fare-—It shall be unlawful for any corporation, or
an employee thereof, operating a street surface railroad, or a branch thereof,
on which the motive power is electricity, which road or branch is operated
wholly or im part in a city having at least one million inhabitants and
which trosses the boundaries of a city of the first class, to collect fare of a
passenger more than once for and during one continuous ride on a single car
or train; excepting that fare may be once collected separately outside the
‘eity limits for passenger service to or from such limits, and once separately
within the city for the service therein. A person or corporation violating
the provisions of this section shall be liable to a penalty of twenty-five
dollars for each violation, recoverable by the passenger aggrieved thereby.

ll
Construction oF Roap in Street, Etc. 419

 

The Railroad Law, § 102.

 

-another shall consider and allow for the use of the tracks for all
injury and damage to the corporation whose tracks may be so used.
Any street surface railroad corporation may, in pursuance of a
unanimous vote of the stockholders voting at a special meeting
-ealled for that purpose by notice in writing, signed by a majority
-of the directors of such corporation, stating the time, place and
object of the meeting, and serving upon each stockholder appear-
‘Ing as such upon the books of the corporation, personally or by
mail, at his last known post-office address, at least sixty days prior
‘to such meeting, guarantee the bonds of any other street surface

‘railroad corporation whose road is fully or partly in the same city
-or town or adjacent cities or towns.

(Thus amended by L. 1892, ch. 306, and ch. 676; L. 1893, ch. 434; L. 1894,
ch. 693.)

For form of guarantee of bonds, see form No, 149.

The provision that any street surface railroad company may acquire the
right to use the tracks of another company, without its consent, to con-
nect main portions of a line to be operated as an independent railroad, by
‘condemnation proceedings, does not provide an alternative right, but con-
:stitutes an addition to the provision of section 91, requiring the prior con-
:sent of the local authorities and abutting owners. (Colonial City Traction
‘Co. v. Kingston City R. R. Co., 153 N. Y., 540, aff’g 15 App. Div., 195.)

The use by a street surface railroad company of a few hundred feet
-of the intervening tracks of ‘another company, to form a connection
between the main portions of its own track over which to run its own
-ears and transport its own passengers, is an “operation” of its road,
within the meaning of the provisions of the Constitution, article 3, section
18, and of the Railroad Law, section 91, which forbid the operation of a
street railroad without the prior consent of the local authorities and
abutting owners. (Colonial.City Traction Co. v. Kingston City R. R. Co.,
153 N. Y., 540, aff’g 15 App. Div., 195.)

The fact that one street surface railroad company has the consent of
both local authorities and abutting property owners to build and operate
.a railroad through a street does not relieve a second company from the
necessity of obtaining further consents from both of those sources to
-enable it to use the tracks of the first company. (Colonial City Traction
Co. v. Kingston City R. R. Co., 153 N. Y., 540, aff’g 15 App. Div., 195.)

The consents of the local authorities and of the abutting owners to
the use or operation of the intervening track of another company are, by
force of the Constitution and of section 91 of the Railroad Law, conditions
precedent to a proceeding to acquire such use under section 102 of the
Railroad Law. (Colonial City Traction Co. v. Kingston City R. R. Co.,
153 N. Y., 540, aff’g 15 App. Div., 195.)

A railroad company, accepting a franchise to construct and operate its
railroad in a city street upon the condition that any other street surface
railroad operating ‘outside the district should have the right to use its
tracks, cannot deny another railroad company the right to use its tracks,
420 Construction or Roap in Street, Erc.
The Railroad Law, § 102.

on the ground that the last-mentioned corporation has not obtained the:
requisite consent from the municipal authorities, particularly when the-
latter has begun proceedings under section 102 of the Railroad Law to
have commissioners appointed to determine what it should pay to the
first-mentioned company for the use of the tracks in question and has
given a bond to secure the payment of whatever compensation should be-
awarded. (Staten Island Midland R. R. Co. v. Staten Island Electric R..
R. Co., 34 App. Div., 181.)

A street railroad company, which has constructed its railroad in a.
street, has a right, under the foregoing section, to exclude another com-
pany from constructing a road there, and, upon showing any special'
damage to it, may restrain, as a public nuisance, the proposed construc--
tion of such other road. (Central Crosstown R. R. Co. v. Metropolitan:

‘St. Ry. Co., 16 App. Div., 229.)

A resolution of the New York city dock department, granting permis-
sion to a street railroad company to construct tracks over property under
its charge, by its terms, a mere revocable license, cannot authorize the
construction of a street railroad over the premises, as against the rights
of another corporation affected thereby. (Central Crosstown R. R. Co. v..
Metropolitan St. Ry. Co., 16 App. Div., 229.)

The effect of the foregoing section and of section 91 of the Railroad’
Law is that before a street surface railroad may operate its road through -
any street in a city it must procure the consent of the local authorities,
although another company is already operating its road through such
street, and that it must procure the right to the use of such street as a
part of its route before it can commence proceedings to secure tlie right
to use the property of another company upon and as a part of such route..
(Colonial City Traction Co. v. Kingston City R. R. Co., 15 App. Div., 195.):

A street railroad company may operate its road in any legal manner-
consonant with the purposes for which it was organized; it may hire out
its line, or it may permit other railroad companies to run their cars over:
its tracks, by authority of the foregoing section. (Ingersoll v. Nassau
Electric R. R. Co., 89 Hun, 213.)

A prolongafion and divergence of a railroad company’s line into another’
street so as to run for 250 feet parallel to the road of another corporation
is a violation of section 102 of the Railroad Law, and may be restrained:
by injunction. (Central Crosstown R. R. Co. v. Metropolitan St. Ry. Co.,
17 Misc., 716.)

Where a horse railroad company’s track is crossed by the track of
another company, the former cannot complain unless it is impeded in
running cars. (Brooklyn Cent. & J. R. R. Co. v. Brooklyn City R. R. Co.,.
33 Barb., 420.)

The provision in this section imposing as a condition to the construc-
tion or operation of a street railroad in a street in which another street.
railway has been lawfully constructed, that the consent of the company
owning and maintaining such other road shall be obtained, is not a dele--
gatior of legislative power to the company whose consent is required,
and is constitutional and valid. (Matter of Thirty-fourth Street R. R..
Co., 102 N. Y., 343. See, also, Forty-second & Grand St. R. R. Co. v. Same,
~

ABANDONMENT oF Part oF Route; One Fars, Ero. 421

 

The Railroad Law, §§ 103, 104.

 

102 N. Y¥., 691; N. ¥. Cable Ry. Co. v. Chambers St. & Grand St. F. R. R.
Co., 40 Hun, 29.)

§ 103. Abandonment of part of route.— Any street sur-
face railroad corporation may declare any portion of its route which
‘it may deem no longer necessary for the successful operation of its
road and convenience of the public to be relinquished or abandoned.
Such declaration-of abandonment must be adopted by the board of
-directors of the corporation under its seal, which shall be submitted
‘to the stockholders thereof at a meeting called and conducted
in the same manner as required by law for meetings .of stock-
holders for the approval of leases by railroad corporations for the
use of their respective roads. If the stockholders shall, at such
meeting, ratify and adopt such declaration of abandonment, the
‘secretary of the company shall so certify under the seal of the
‘corporation, upon such declaration. Such declaration shall then
be submitted to the board of railroad commissioners for its ap-
proval, and if approved by such board, such approval shall be
indorsed therein or annexed thereto and ‘hie declaration so certified
and indorsed shall be filed and recorded in the office of the secre-
‘tary of state, and from the time of such filing, such portion of the
route designated in the declaration shall be deemed to be aban-
-doned.

(Thus amended by L. 1892, ch. 676, and L. 1900, ch. 478.)

This section was originally revised from Laws of 1885, chapter 305,
ssection 3, relative to leases. The amendment of 1892 substituted the,
above provisions in lieu of provisions as to leases now covered by sec-
‘tion 78.

A railroad company is authorized to contract with another for the use
-of its road, although the effect of such contract is to cause the abandon-
ment of a portion of the road of one company. (Prospect Pk. & Coney
‘Island R. R. Co. v. Bklyn., Bath & West End R. R. Co., 84 Hun, 516.)

§ 104. Contracting corporations to carry for one fare ;
“penalty.— Every such corporation entering into such contract
shall carry or permit any other party thereto to carry between any
two points on the railroads or portions thereof embraced in such
contract any passenger desiring to make one continuous trip
‘between such points for one single fare, not higher than the fare
lawfully chargeable by either of such corporations for an adult pas-
‘senger. Every such corporation shall upon demand, and without
extra charge, give to each passenger paying one gael fare a trans-
_ 422 One Fart ror Continuous Trip.

 

‘ The Railroad Law, § 104.

fer, entitling such passenger to one continuous trip to any point or
portion of any railroad embraced in such contract, to the end that
the public convenience may be promoted by the operation of the
railroads embraced in such contract substantially as a single rail-
road with a single rate of fare. For every refusal to comply with
the requirements of this section the corporation so refusing shall.
forfeit fifty dollars to the aggrieved party. The provisions of this.
section shall only apply to railroads wholly within the limits of any
one incorporated city or village.

(Former section 105, as amended by L. 1892, ch. 676.)

The term * embraced in such contract,” as used in this section, relating
to contracts between street railroad corporations for the use of their
respective roads, and providing for a continuous trip for a single fare
between any two points on railroads “embraced in such contract,”
includes only those roads operated by the contracting companies at the
time the contract was made. (Mendoza v. Met. St. Ry. Co., 51 App. Div.,
430. See, also, 48 App. Div., 62.)

A complaint in an action to recover the penalty prescribed for a viola-
tion of section 104 is demurrable, where it does not allege that the line:
upon which the plaintiff sought to.ride without an additional fare was.
owned, controlled or operated by the defendant at the time, it leased the
line on which he originally took passage, or that it was embraced in the-
lease. (Mendoza v. Met. St. Ry. Co., 48 App. Div., 62.)

This section confers on a passenger who has taken passage on a leased
road the right to a continuous trip for a single fare along not only the-
line of the leased road, but also along other lines which were owned,
controlled or operated by the lessee at the time the lease was executed;
such right does not, however, extend to roads subsequently built or
acquired by the lessee, as the latter roads cannot be said to be embraced:
in such contract, within the meaning of this section. (Mendoza vy. Met..
St. Ry. Co., 48 App. Div., 62.)

A rule of a street railway company, which is required by this section
to carry any passenger so desiring between any two points'on lines.
controlled by it, for a single fare, and which issues a transfer ticket to a.
passenger, with a limitation that it shall be void if not used within ten
minutes, regardless of whether the condition of the cars which the com-
pany supplies during that time is such as to afford suitable accommoda-
tion, is arbitrary and illegal. (Jenkins v. Brooklyn Heights R. R. Co., 29°
App. Div., 8.)

The provisions of sections 101, 103, 104, enacting in substance that, in
cities having a population of 800,000 or more, street surface railroad''
corporations may make an intertraffic contract to carry a passenger for’
a continuous trip and for a single fare, not exceeding five cents, nor’
exceeding the lawful fare, does not apply to such a contract made in 1895,
in a city not shown to have then had such a population, by a corporation
organized in 1885, operating as a street surface railroad prior to April,
Errect or DissoLurion. 493

 

The Railroad Law, § 105.

 

1889. (Brooklyn Elevated R. R. Co. v. Brooklyn, Bath & West End R. R.
Co., 23 App. Div., 29.)

The requirement that contracting corporations shall carry passengers
for one fare, between any two points, applies only to corporations between
whom a traffic agreement exists and is not applicable to a corporation
which has leased and is operating exclusively the line of another corpo-
ration. (Roosa v. Brooklyn Heights R. R. Co., 28 Misc., 387.)

A person who has no intention of making a through trip, but demands
a transfer ticket over a connecting line merely in order to have the
demand refused, intending thereupon to bring an action to recover a statu-
tory penalty for the refusal, cannot be considered a passenger within the
meaning of the foregoing section, and his action for the penalty cannot be
‘sustained. (Myers v. Brooklyn Heights R. R. Co., 10 App. Div., 335.)

§ 105. Effect of dissolution of charter as to consents.—
Whenever any street surface railroad corporation shall have been
dissolved or annulled, or its charter repealed by an act of the legis-
lature, the consent of owners of property bounded on, and the con-
sent of the local authorities having the control of that portion of a
street or highway upon which the railroad of such corporation shall
have been theretofore constructed and operated, and the order of
the general term confirming the report of any commissioner that
such railroad ought to be constructed or operated, shall not, nor
shall either thereof, be deemed to be in any way impaired, revoked,
terminated or otherwise affected by such act of dissolution, annul-
ment or repeal, but the same and each thereof shall continue in full
force, efficacy and being. The right to the former enjoyment and:
to the use thereof, subsequent to such act of dissolution, annulment
or repeal, and of all the powers, privileges and benefits therein or
thereby created, shall be sold at public auction by the local authori-
ties within whose jurisdiction such railroads shall be, in the same
manner as is provided in section ninety-three of this article. When
such sale shall. have been so made, the purchaser thereat shall have
the right to the further enjoyment and use of such consents and
orders, and of each thereof, and of all the powers, privileges and
benefits therein or thereby created, in like manner as if such pur-
chaser had been originally named in such consents, reports and
orders; if such purchaser shall be otherwise authorized by law to
construct, maintain and operate a street surface railroad within the
municipality within which such railroad shall be.

(Former section 106, as amended by L. 1892, ch. 676.)
See People v. O’Brien, 111 N. Y., L
404 Corporate Ricuts Savep, Etc.

 

The Railroad Law, § 106.

 

§ 106. Corporate rights saved in case of failure to com-
plete road; right to operate branches; conditions; former
consents ratified; limitations.- The corporate existence of
and powers of every street surface railroad corporation, which has
completed a railroad upon the greater portion of the route desig-
nated in its certificate of incorporation, within ten years from the
date of filing such certificate in the office of the secretary of state,
and which has operated such completed portion of its railroad con-
tinuously for a period of five years last past, and is now operating
the same, shall continue with like force and effect, as though it
had in all respects complied with the provisions of law with ref-
erence to the time when it should have fully completed its road.
Every such corporation shall have the right to operate any
extensions and branches of its railroad, now constructed
and operated by it, which have been so constructed and
operated by it, for a period of ten years last past, with
like force and effect, as though the route of such exten-
sions and branches were designated in its certificate of incorpo-
ration. But every such street railroad corporation is
authorized to operate such railroad and any extensions or branches
thereof, upon condition that it has heretofore, or shall hereafter,
obtain the consent of the local authorities having the
control of that portion of the streets, avenues or highways in-
cluded in such railroad, or any extension or branch thereof, to
the construction and operation of the same, and also upon the
condition that it has heretofore or shall hereafter first obtain the
consent of the owners of one-half in value of the property bounded’
on the portion of the streets, avenues or highways included in
the route of such railroad, or any extensions or branches thereof,
to the construction and operation of the same, or in case the
consent of such property owners cannot be obtained, the appel-
late division of the supreme court of the department in which
such railroad or any extension or branch thereof is located, may,
upon application, appoint three commissioners who shall deter-
mine, after a hearing of all the parties interested, whether such
railroad ought to be constructed or operated, and. their deter-
mination, confirmed by the court, may be taken in lieu of the
- consent of the property owners. If any street surface railroad
corporation shall have made and filed a statement or state-
ments of proposed extensions or branches embracing a line
Corporate Rieuts Savep, Etc. 425

 

The Railroad Law, § 106.

 

from the boundary of a city or village to the boundary of
another city or village generally parallel with the route speci-
fied in its certificate of incorporation and generally’ distant
not more than one-half mile therefrom, and shall have made and
filed an agreement of consolidation with some other street surface ,
railroad corporation formed tg build a street railroad upon a
route continuous or connecting with one or more of the routes de-
scribed in such statement or statements of proposed extensions
or branches, and thereafter there shall have been constructed and
operated for a period of four years a street surface railroad from
such city or village to such other city or village upon a line em-
braced in any such proposed extensions or branches, such con-
solidated corporation may relinquish and abandon any uncon-
structed route or unconstructed portions of route specified in the
certificate of incorporation or in any statements of proposed
extensions or branches of such first-mentioned corporation by fil-
ing in the office of the secretary of state a copy of a resolution of
the board of directors of such consolidated corporation certified .
‘by its president and secretary, declaring such unconstructed
route or unconstructed portions of route relinquished and aban-
‘doned, and thereupon the corporate rights, powers and franchises
of such consolidated corporation shall be and continue the same
as though the certificate of incorporation of such constituent cor-
poration had specified the constructed and not the unconstructed
portions of such route and proposed extensions and branches. All
consents heretofore given, or grants made by local authorities
having the control of the portion of any street, avenue, or high-
‘way included in the route of such railroad, or any extensions or
branches thereof, to any such street surface railroad corporation,
are hereby ratified and confirmed and declared valid. This section
shall be applicable to any corporations whose lines are wholly
within any towns, cities or villages having less than twenty
thousand inhabitants. This section shall not apply to or affect
any railroad corporation in the city of New York; nor any special
grant made ‘to or authority conferred upon any street surface
railroad corporation by any law of this state; nor any pending
litigation; nor shall it impair existing rights, privileges or fran-
chises of any street surface railroad corporation.

(Former section 107, as amended by L. 1892, ch. 676, and L. 1900, ch. 198.)
426 Sanp Usep, Etc.; How Roap ConstRucTeEn.

 

The Railroad Law, §§ 107, 108.

 

§ 107. When sand may be used on tracks. — The owner or
operator of any street surface railroad in cities of this state, may
place upon the space between the rails, and upon the rails of such
road sand in sufficient quantities to prevent the horses traveling
thereon from slipping, and to enable cars operated by mechanical,
or electrical appliances to be safely and properly operated. The
owner or operator of any street surface railroad in cities of this
state may use salt in necessary quantities, upon the rails of all
the switches, curves, turnouts and crossovers, between the first.
day of November of each‘year and the first day of May following,
for the removal of snow and ice therefrom and to prevent. the
same from freezing. The quantity of salt to be used and the man-
ner of applying salt to the rails, to be under the direction of the
city officials having charge of the streets of said cities.

(Former section 108, as amended by L. 1892, ch. 676, and L. 1899, ch. 491.)

§ 108. Road not to be constructed upon ground occu-
pied by public buildings or in public parks.—No street.
surface railroad shall be constructed or extended upon ground
occupied by buildings belonging to any town, city, county or to
the state, or to the United States, or in public parks, except in
tunnels to be approved by the local authorities having control of
such parks. Provided however that the commissioners of the
state reservation at Niagara, by and with the consent of the com-
missioners of the land office, may construct, without expense to
the state, street railroad tracks upon and along that part of the
riverway, so called, between Falls and Niagara streets in the city
of Niagara Falls, and in their discretion may grant revokable
licenses to street surface railroad companies to use such tracks.
upon such terms as said commissioners may prescribe.

(Amended and number changed from 109 to 108 by L. 1892, ch. 676; fur-
ther amended, by adding the last sentence, by L. 1899, ch. 710.)

When a street railroad corporation has obtained the consents from the
local authorities and abutting owners to construct its railroad, and the
approval of the railroad commissioners, the adoption, thereafter, for a
“parkway,” authorized by Laws of 1894, chapter 758, of a street upon
which such railroad has acquired a franchise to build its road, will not
divest it of the right to construct its road. (Coney Island, Ft. Hamilton &
Bklyn. R. R. Co. v. Kennedy, 15 App. Div., 588.) The railroad franchise
was property, of which it could not be deprived, except under the power
of eminent domain. (Id.)

The company did not become extinct because it had not built its road
within three years, as required by section 99 of the Railroad Law, as non--
Ratzs, Etc.; Crossine Bringss. 407

 

The Railroad Law, §§ 109, 110.

 

compliance with that requirement does not, ipso facto, dissolve the corpo-
ration, but is a ground of forfeiture which can only be urged in a direct’
proceeding by the State. (Id.) A “driveway” or “parkway” does not
constitute a park. (Id.) The foregoing section applies only to existing
parks. (Id.)

§ 109. Cente.-bearing rails prohibited.— No street surface
railroad corporation shall hereafter lay down in the sireols OF any
anbonpor tied city or village of this state what are known as “ cen-
ter-bearing ” rails; but in all cases, whether in laying new track or-
in replacing old oe shall lay down “ grooved” or some other:
kind of rail not “center-bearing ” approved by the local authori-
ties. Such grooved or other rail shall, be of such shape and so-
laid as to permit the paving-stones to come in close contact with the
projection which serves to guide the flange to the car wheel.
Where in any city, the duty of repairing and repaving streets, as
distinguished from the authorization of such paving, tepairing and
repaving, is by law vested in any local authority other than the
common council of such city, such other local authority: shall be.
the local authority referred to in this section.

(New, added by L. 1892, ch. 676.)

§ 110. Right to cross bridge substituted for a bridge.
crossed for five years.- Should any street surface railroad

‘company have crossed any bridge as a part of its route for a period

of more than five years and should any other bridge be substituted
therefor at any time, such company shall have the right to cross.
such substituted bridge and to lay and use railway tracks thereon
for the transit of its cars and to make all changes and extensions.
of its route subject to all the provisions of this act, as the con-
venient operation of its cars and public convenience may require..

(New, added by L. 1892, ch. 676.)

§ 111. Protection of employees.—Every corporation operat:
ing a street surface railroad in this state, except such as operate-
a railroad or railroads either in the borough of Manhattan or
Brooklyn, in the city of New York, shall cause the front and rear
platforms of every passenger car ‘propelled by electricity, cable

or compressed ait, operated on any division of such railroad which
/

extends in or Ganvecn towns or outside of city limits, during the-
months of December, January, February and March, except cars.
attached to the rear of other cars, to be enclosed froin the fronts.
427a Protection to EmPLOoYEEs.

 

.

The Railroad, Law, § 111.

 

of the platforms-to the fronts of the hoods, so as to afford pro-
tection to any person stationed by such corporation on such plat-
forms to perform duties in connection with the operation of such
ears. Every corporation or person using and operating a car in
violation of this section shall be liable to a penalty of twenty-
five dollars per day for each car so used and operated, to be col-
lected in an action brought by the attorney-general and to be paid
to the treasurer of the state of New York, or in a suit by the at-
torney of the municipality in which the violation of the provision
of this act occurs, to be paid in the treasury of such municipality.

§ 2. All street surface railroad passenger cars hereafter pur-
chased, built or rebuilt and operated in the state of New York on
and after the passage of this act, except those owned by any com-
pany operating either in the borough of Manhattan or Brooklyn,
in the city of New York shall be constructed in accordance with
the provisions of section one of this act. ‘

§ 3. This act shall take effect December first, nineteen hun-
dred and four. Except that where the cars of any corporation
affected by section one of this act are operated wholly in cities
other than the boroughs of Manhattan or Brooklyn in the city
of New York, the cars belonging to the corporations so operated
shall be equipped with the enclosures provided for in section one
of this act as follows, viz.: One-third thereof before December
first, nineteen hundred and four, one-third thereof after Decem-
ber first, nineteen hundred and four and before December first,
nineteen hundred and five, and the remaining one-third thereof
after December first, nineteen hundred and five, and before De-
ember first, nineteen hundred and six.

(New, added by L. 1903, ch. 325.)

§ 111a. Protection to employes.— Every corporation operat-
‘ing a street surface railroad in the counties of Albany and Rens-
selaer shall cause the front and rear platforms of every car pro-
pelled by electricity, cable or compressed air, during the months of

»
'

Car Licensrt Frss, Erc. 427-b
The Railroad Law, § 112.

 

 

December, January, February and March, except cars attached
to the rear of other cars, to be enclosed from the front and at least
one side of the platform to the hood, so as to afford protection to
any person stationed by such corporation or ‘person on such plat-
forms to perform duties in connection with the operation of such
cars. Platforms.on cars on such street surface railroads used
more than one mile outside the limits of a city shall be completely
enclosed from platform to hood. Every corporation using and
operating a car in violation of this section shall be liable to a
penalty of twenty-five dollars per day for each car so used and
operated to be collected by the people to the use of the poor of the _
county in*which such corporation has its principal office, in an
action brought by the attorney-general or the district attorney of.
such county. The supreme court may, on the application of a

citizen, direct the district attorney to bring such action.
(New, added by L. 1903, ch. 426, to take effect Sept. 1, 1904.)

§ 112. The board of estimate and apportionment, or if such
board do not exist, the local authorities which have power to make
appropriation of moneys to be raised by taxation, in any city of
the first class, shall have the power in their discretion, to enter into
a contract or contracts on behalf of the city with any railroad cor-
poration or corporations owning or operating street surface rail-
roads or other railroads in such city, for the purpose of adjusting
any or all differences now existing between such corporation or
corporations and such city. with respect to car license fees, percent-
ages upon gross earnings, rentals and any other payments, other
than taxes upon real and personal property and capital stock, pay-
able or claimed to be payable to the city under existing acts of the
legislature, municipal ordinances, grants by, or contracts with,
the municipal authorities or otherwise; and any such contract may
provide for the payment of an annual amount to be ascertained as
in such contract provided in lieu of any or all payments of any of
the classes hereinbefore mentioned, other than taxes. Any such con-
tract which shall be with a corporation operating lines of railroad
by lease may providerfor an annual payment, to be ascertained as
-497-¢ Protection oF EMPLOYES.
‘The Railroad Law, § 112.

-in such contract provided, which shall be in lieu of any or
all of the payments of any or all of said classes, other than taxes.
upon real and personal property and capital stock, which would
-otherwise be payable in respect of the leased lines so long as the
lease or leases thereof shall continue. The annual payments pro-
vided for in any contract made under the authority of this act
-shall, so long as such contract is in force, supersede the payments
‘which would otherwise be payable by the corporation or corpora-
-tions making such contract and in lieu of which the annual pay-
‘ments provided for in such contract are substituted. Any contract
made hereunder may, with the approval of the municipal authori-
ties by whom the contract was made or their successors in office be
modified from time to time by the parties thereto for the purpose

-of meeting changed conditions. No contract shall be made or modi-
~fied hereunder without the written consent and approval of the
‘mayor and of the comptroller or other chief financial officer of
the city.

(New, added by L. 1905, ch. 651.)

In the enactment of the foregoing provisions and the next succeeding
.section at the same session the legislature inadvertently duplicated the
section number.

§ 112. Protection of employes in the counties of Kings and

- Queens.— Every corporation operating a street surface railroad in
the counties of Kings or Queens, shall cause the front ‘and rear

‘platforms of every passenger car propelled by electricity, cable or
compressed air, operated on any division of such railroad during

the months of December, January, February and March, except

cars attached to the rear of other cars, to be enclosed from the

fronts of the platforms to the fronts of the hoods so as to afford

protection to any person stationed by such corporation on such

platforms to perform duties connected with the operation of such
Protection or Emptoyrs in Certain Countizs. 427d

 

The Railroad Law, § 112.

 

‘cars. very corporation or person using and operating a car in
violation of such section shall be liable to a penalty of twenty-five
-dollars per day for each car used and operated, to be collected in
-an action brought by the attorney-general and to be paid to the
treasurer of the city of New York, or in a suit by the district
attorney of the counties of Kings or Queens to be paid into the
treasury of the city of New York. One-third of the cars operated
‘hy any corporation in either of the above named counties shall be
equipped with the enclosures provided for in seetion one of this
act on or before December first, nineteen hundred and. five, one-
third thereof after December first, nineteen hundred and five, and:
before December first, nineteen hundred and six, and the remain-
ing one-third thereof after December first, nineteen hundred and
‘six, and before December first, nineteen hundred and seven.
(New, added by L. 1905; ch. 453.)

In the enactment of the above provisions and the next preceding
‘section at the same session the legislature inadvertently duplicated the
‘section number.

For explanation of interval in numbering between section 112, supra,
and section 120, infra, see note on page 321.
428 APPLICATION FoR Raitway. .

 

The Railroad Law, § 120.

ARTICLE V.
Orner Rarroaps in Citres anp CounrrEs.

SEcTion 120. Application for railway ; commissioners,

121. Oath and bond of commissioners:

122. First meeting of commissioners. ;

128. Determination of necessity of railroad and route.

124. Adoption of plans and terms upon which road shall be
built.

125. Appraisal of damages and deposit of money as security,

126. Shall prepare certificate of incorporation ; proviso as te
forfeiture.

127. Organization.

"128. Commissioners to deliver certificates; affidavit of:
: directors.

129. Powers.

130. Crossing of horse railroad track.

131. Where route coincides with another route.

132. Commissioners ; to transfer plans, et cetera.

133. Commissioners to file reports ; confirmation thereof.

134. Pay of commissioners.

135. Quorum ; term of office ; removal ; vacancies in board of
commissioners,

136. Abandonment or change of route; new commissioners 2
their power and proceedings.

137. Increased deposits ; when and how required.

1388. Trains to come to full stop, etc.

139. Gates. 7

140. Penalty for violation of this article.

141. Sections to be printed and posted.

142. Extension of time.

§ 120. Application for railway; commissioners.—Upon
the application of at least fifty reputable householders and tax-
payers of any county or city, verified upon oath before a justice
of the supreme court, that there is need in said county or city of a
steam railway in the streets, avenues and public places thereof for
the transportation of passengers, mails or freight, the board of
supervisors of such county may, within thirty days thereafter by
resolution, approve of the application, and authorize its presenta-
tion to the supreme court, and if the railway is to be built wholly
within the limits of a city, upon the application of a like number of
householders and taxpayers of the city to the mayor thereof, such
mayor may, within thirty days thereafter, indorse upon the appli-
cation his approval and direction that it may be presented to the
supreme court, and if the railway is to be built, partly within the
Commissioners; Oatu anp Bonp or; Mentine or, 429

 

The Railroad Law, §§ 121, 122, 123.

limits of a city and partly without, such application shall be
approved, both by the mayor of the city and the board of super-
visors of the county, and its presentation to the supreme court
authorized by them, and upon the presentation of such application
so approved and authorized to a special term of the supreme court,
held in the district where such railway is to be built, or some part
thereof, the court may appoint five commissioners, resident, of the
city if the railway is to be built wholly within the city, and of the
county if it is to be built wholly or partly outside of the limits of
a city, to determine the necessity of such railroad, the route thereof,
the time within which and the conditions upon which it shall be
constructed, the damages to the property owners along the line
thereof and all the matters lawfully submitted to them, and dis-
charge the duties imposed upon them by law.

As to railroads in cities having over 1,000,000 inhabitants, see L. 1891,
ch. 4, as amended, post.

An elevated railroad has no fee in the city streets over which it is con-
structed, in the sense in which the word fee is ordinarily used, but it has
a franchise which cannot be abrogated or destroyed by the public author-
ities without their making compensation therefor. (Brooklyn Elevated
R. R. Co. v. City of Brooklyn, 2 App. Div., 98.)

§ 121. Oath and bond of commissioners.— Within ten days
after his appointment and before entering upon the discharge of
any of the duties of his office, each commissioner shall take and sub-
scribe. the constitutional oath of .office, which shall be filed in the
office of the clerk of the county and shall execute a bond to the
people of the state in the penal sum of twenty-five thousand dol-
lars, with two or more sureties, to be approved by a justice of the
supreme court of the department in which the railway is to be
built and conditioned for the faithful performance of the duties
of the office, which bond shall be filed in the office of the clerk of
the county.

The oath was formerly also filed in the office of the Secretary of State.

§ 122. First meeting of commissioners.—Within fifteen
days after their appointment, the commissioners shall meet in some
convenient place in the county or city and organize themselves as a
board with appropriate officers.

§ 123. Determination ofnecessity of railroad and route.—
The commissioners shall, within thirty days after such organiza-
tion, determine upon the necessity of such steam railroad, and if

' they find it to be necessary, they shall, within sixty days after such
430 Necessity or Rartzoap anp Route.

 

The Railroad Law, § 123.

organization, fix and determine the route therefor, and shall have
the exclusive power to locate such route, over, under, through or
across the streets, avenues, places or lands in such county or city,
and te provide for the connection or junction with any other rail-
way or bridge, if the consent of the owners of one-half in value of
the property bounded on and the consent of the local authorities
having control of that portion of a street or highway, upon which
it is proposed to construct or operate such railway have been first
obtained. If the consent of such property owners can not be
obtained, the determination of three commissioners appointed by |
the general term of the supreme court of the department where
_ the railroad is to be constructed, made after due hearing of all par-
ties interested, and confirmed by the court, that such railway ought
to be constructed and operated, may be taken in lieu of the consent
of such property owners. No such railway shall be located in or
upon such portion of any street, avenue, place or lands in such
county as are now occupied by an elevated or underground railway
or in which such a railway has already been authorized by law to
be so located and constructed, or which are contained in public
parks, or occupied by buildings belonging to.the county or the state
or United States, or in or upon the following streets, avenues and
public places, viz.: Broadway, Fifth avenue, Fourth avenue above
Forty-second street, in the city of New York; Debevoise place,
Irving place, Lefferts place, those portions of Grand, Classon and
Franklin avenues and Dowling street lying between the southerly
line of Lexington avenue and the northerly line of Atlantic avenue,
that portion of Classon avenue lying between the northerly line of
Lexington avenue and the southerly. line of Park avenue, and that
portion of Washington avenue lying between Park and Atlantic
avenues in the city of Brooklyn; and that portion of the city of
Buffalo lying between Michigan and Main streets, but such railway
may be located and constructed across such excepted streets, ave-
nues and places at their intersection only with other streets, avenues
and places.

(Thus amended by L. 1892, ch. 676.)

The prohibition in the foregoing section against the construction of
railroads upon certain streets applies only to railroads incorporated under’
chapter 606, Laws of 1875, known as the Rapid Transit Railroad Law.
(Beekman v. Brooklyn & Brighton B. R. R. Co., 89 Hun, 14: McCullom
v. Same, 89 id., 14.) Chapter 606, Laws of 1875, above referred to, was
repealed in 1890 by the existing railroad laws, and the provisious thereof

were substantially re-enacted in sections 120 to 142, comprising article
five.
Commissioners to Apopr PLans, ETO. 431

 

The Railroad Law, § 124.

 

Where a property owner joins in a request to commissioners, appointea
ander section 120 of this law, that they determine that an elevated road
ought to be constructed and operated over the center of a street upon
‘which such property owner’s land abuts, he does not waive the right to
<laim the damages resulting to his property from the subsequent construc-
tion of the railroad on the street. (Koehler v. N. Y. Elevated R. R. Co.,
9 App. Div., 449, dist’g White v. Manhattan Ry. Co., 139 N. Y., 19.)

The direction that no such railway shall be located on certain streets
is plainly, as matter of context, limited to railroads incorporated under the
Rapid Transit Railroad Law. (Beekman v. Brooklyn & Brighton Beach
R. R. Co., 89 Hun, 14; McCullom v. Same, id., 14.)

§ 124. Adoption of plans, and terms upon which road
shall be built.—The commissioners by such public notice,
and under such conditions, and with such inducements as they may
prescribe, shall invite a submission of plans for the construction
:and operation of such railway, and shall meet at a time and place
in such notice named, not more than ninety days after their organi-
zation, and decide upon the plans for the construction thereof, with
tine necessary supports, turnouts, switches, sidings, connections,
landing-places, stations, buildings, platforms, stairways, elevators,
telegraph and signal devices, or other requisite appliances, upon
the route or location determined upon by them. They shall, upon
notice to the local authorities, and after hearing all parties inter-
ested, fix and determine what compensation, if any, in a gross sum,
or in a certain percentage of receipts, shall annually be paid to the
local authorities by the corporation formed for the purpose of con-
‘structing, maintaining and operating such railway for public use
in the conveyance of persons and property, for the use and occu-
pation by the corporation of the streets, avenues and highways in
and upon which its railway is to be constructed, and the time when
‘such railway, or a portioh thereof, shall be constructed and ready
for operation, and the maximum rates to be paid for transportation
and conveyance thereon, and the hours during which special cars
or trains shall be run at reduced rates of fare; and the amount of
the capital stock of such corporation, and the number of shares into
which it shall be divided, and tie percentage thereof to be paid in
-eash on subscribing for auch shares.

' The commissioners may select two or more routes, upon one of
which such railway may be constructed and operated; and the
‘local authorities may consent to the construction and operation of
such railway upon one or more of such routes, or parts thereof;
and the commissioners shall have power to change and readopt
gdutes and plans for the construction and operation of such railway,

i
432 Commissioners To AppraIsE DamacEs, ETO. .

 

The Railroad Law, § 125.

 

after they have been: submitted to the local authorities, in cases
where such authorities aay recommend such changes, or may not
be willing to consent to the construction or operation of the rail-
way, upon the routes and plans adopted, unless such changes are
made therein.

(Thus amended by L. 1892, ch. 676.)

Any grant to the elevated railroad company must necessarily be con-
strued assubject to the right of the public to enterupon the street for such
@ purpose as that of laying and constructing a sewer, and any interference
with the elevated railroad company in the proper construction of such.
work must be considered as a burden which the elevated railroad com-
pa.ay assumed to bear. (Brooklyn Elevated R. R: Co. v. City of Brooklyn,
2 App. Div., 98.)

§ 125. Appraisal of damages and deposit of money as
security.—The commissioners shall, within onc hundred and
ten days after their organization, ascertain and determine the
aggregate pecuniary damage arising from the diminution in the
value of the property bounded on that portion of such street or
streets, highway or highways, upon which it is proposed to construct:
and operate such railway to be caused by the construction and opera-
tion thereof. For that purpose they shall view the several parcels:
of real property so bounded, and shall appraise separately the pecu-
niary damages arising from such diminution in value of each parcel
thereof, and for the purposes of such appraisal they shall give
notice of the time and place, when and where they will meet to
hear the owners, or persons interested in such real property, which
notice shall be published for at least ten days consecutively in at
least two newspapers in the county where such railway is to be:
constructed, and shall take such material testimony upon the prob-
able diminution in value of any or all such parcels to be so caused!
as may be offered by or in behalf of any person or party interested:
therein, and the aggregate sum of the amounts so appraised and,
determined by them shall be the aggregate pecuniary damage
required to be ascertained and determined as above provided. No
corporation which shall hereafter be organized under this article.
shall enter upon any street, highway or lane therein, until it shall
first have deposited with some trust company, to be designated by
the mayor of the city within which it is proposed to construct the
railway or any part thereof, and by the board of supervisors, when
the road does not lie wholly within a city, a sum of money eqral
to the amount so ascertained and determined by the commissioners
to be the aggregate pecuniary damage to such property within the-
Commisstuners To Appraise Damages, ETC. ' 483
The Railroad Law, § 125.

 

 

city, or within the county outside of any city, or shall have secured
the payment of such amount by depositing with such trust company
negotiable securities, equivalent at their par and actual value to
such aggregate amount, and approved by the mayor of the city in
which such road is wholly or in part located, and by the county
treasurer of the county if the road is located wholly. or in part out-
side of the limits of such city. The court may accept in lieu of the
‘deposit of money or securities herein required the bond of the cor-
poration, with two or more sureties, to be approved by the court,
to the effect ‘that the corporation before constructing or operating
its railway in front of any premises, shall pay to the owner of the
real property all the damages sustained, or which will be sustained
by him, as fixed and determined by such commissioners, and the
costs allowed, if any. Such bond shall be in a sum double the
amount of sucli damages, and the sureties shall justify i in the aggre-
gate to an amount equal to the amount of such bond. ‘ Such cor-
poration shall also, at the same time, deposit with such trust
company or with the county treasurer, as the commissioners may
direct, the sum of five thousand dollars in cash, for the payment of
the expense of apportioning and distributing such fund. Unless
such moneys or securities shall be deposited by such corporation
within one year after it shall have obtained the consent of the local
authorities, and of the property owners, or the confirmation by the
general term of the supreme court, of the determination of three .
commissioners in lieu thereof, and in the case of a corporation here-
tofore organized within one year after it shall have obtained the con-
firmation by the general term of the supreme court of the report
of three commissioners in lieu of the consent of property owners, or
“within one year after the commissioners appointed to ascertain and
determine the aggregate pecuniary damages as provided in this
article, shall have made their report, then such corporation shall be
deemed not to have accepted thé franchises granted. Where the
commissioners shall fix and determine different periods of time
‘within which different sections of such railway shall be constructed
‘and ready for operation, they shall ascertain, determine, and report
separately the aggregate pecuniary damage to property bounded
upon that portion of such street or streets upon which each of such
sections is located. Upon the deposit by the corporation as above
provided of moneys or securities equivalent to the aggregate pecu-
niary damage to be sustained by any one of such sections, or of any
bond given in lieu thereof, it shall immediately be vested with the
right and privilege to construct its railway through such section.
(Thus amended by L. 1892, ch. 676.)
28
~

434 CrrtiricaTE oF LNCORPORATION ; ORGANIZATION.

The Railroad Law, §§ 126, 127. >

§ 126, Shall prepare certificate of incorporation ; proviso
as to forfeiture.—The commissioners shall prepare an appro-
priate certificate of incorporation for the corporation in the last
section mentioned in which shall be set forth and embodied, as
component parts thereof, the several conditions, requirements and
particulars by such commissioners determined pursuant to the pro-
visions of this article, and which shall also provide for the release
and forfeiture to the supervisors of the county, or if the road is to-
be constructed wholly or partly within a city, to such city, of all
rights and franchises acquired by such corporation in case such
railway or railways shall not be completed within the time and
upon the conditions therein provided; and the commissioners shall
thereupon within one hundred and twenty days after their organiz-
ation, cause a suitable book of subscription to the capital stock of
such corporation, to be opened pursuant to due public notice at a
banking office in such county or city. A failure by any corporation
heretofore or hereafter organized under this article to complete its
railway within the time limited in and by its certificate of incorpora-
tion shall only work a forfeiture of the franchises of such cor-
poration with respect to that portion of its route which such
corporation shall have failed to complete, and shall not affect the
rights anc franchises of such corporation to construct and operate
such part of its railway which it shall have completed within
the term prescribed by its certificate of incorporation, or as to which
the time for completion shall not have expired, notwithstanding
anything to the contrary in its certificate of incorporation.

§ 127. Organization.— Whenever the whole capital stock
of such corporation, or an amcunt oi such capital stock propor-
tioned to the part of such railway directed by the commissioners to
be constructed, shall have been subscribed by not less than fifteen:
persons, and the fixed percentage of such subscriptions shall have
been paid, in cash, the commissioners shall, by written or. printed
notice of ten days, served personally or by mail, call a meeting of
such subscribers for organization, and appoint the inspectors of
election to serve thereat. At such meeting, or at any subsequent
one to which the same may be adjourned, a majority in number
and amount of such subscribers may elect persons, of a number to-
be theretofore determined by the commissioners not less than nine,.
who shall be directors for one year of the corporation formed for
the purposes of constructing and operating such railway.
Crrriricats, ETc.; Powxrs. 435

 

The Railroad Law, §§ 128, 129.

 

§ 128. Commissioners to deliver certificate; affidavit of
directors.— Within ten days after the election of such direc-
tors the commissioners shall deliver to them a certificate in dupli-
cate, verified by the oath of three commissioners, before a justice
of the supreme court, setting forth the certificate of incorporation
and the organization of the corporation for the purposes therein
mentioned, and within five days after the reception by them of
such certificates, three of the directors so elected shall make affidavit
in duplicate that the full amount of stock has been subscribed in
good faith to construct, maintain and operate the railway or rail-
ways in such certificate of incorporation mentioned, and such
directors shall file such affidavits and certificate in the office of the
secretary of state, and a duplicate of the same in the office of the
élerk of the county wherein such railway shall be located; and
thereupon the persons who have so subscribed such cortifieate of
incorporation and all persons who shall become stockholders in such
corporation shall be a corporation by the name specified in such
certificate, and be subject to the duties, liabilities arid restrictions
of such corporations.

§ 129. Powers.—Every such! corporation shall have power,
in addition to the powers conferred by the general and stock cor-
poration laws and’ by subdivisions two, five and seven of section
eight of this chapter:

1. To take and convey persons and property on tHeir railroad
by the power or force of steam or by any motor other than animal
power, and to receive compensation therefor.

2. To enter upon and underneath the several streets, avenues
and public places and lands designated by the commissioners, and
enter into and upon the soil of the same, to construct, maintain,
operate and use in accordance with the plan adopted by the com-
missioners, a railway upon the route or routes and to tne points
decided upon and to secure the necessary foundations and erect
the columns, piers and other structures which may be required to
secure safety and stability in the construction and maintenance of
the railways constructed upon such plan and for operating the
same; and to make such excavations and opening: along the route
through which such railway shall be constructed as shall b2 neces-
sary from time to time. In all cases the surface of the streets
around such foundations, piers and columns shall be restored to the
condition in which they were before such excavations were made,
as near as may be, and any interference with or change in the water
mains, or in the sewers or lamp posts, except such changes as may
436 Crossina Horse Rartroap Track; Corncipine Route.

 

The Railroad Law, §§ 130, 131.

be made with the concurrence of the proper department or author-
ity shall be avoided; and the use of the streets, avenues, places and
lands designated by the commissioners and the right of way through
the same for the purpose of a railway, as herein authorized, shall be
considered and is hereby declared to be a public use, consistent with
the uses for which the roads, streets, avenues and public places are
publicly held. No such corporation shall have the right to acquire
the use or occupancy of public parks or squares in any such city
or county, or the use or occupancy of any of the streets or avenues,
except such as may have been designated for the route or routes of
such railway, and except such temporary privileges as the proper
authorities may grant to such corporations to facilitate such con-
struction, and no such railway shall be constructed across the track
of any steam railway now in actual operation at the grade thereof,
nor shall any piers or supports for any elevated railway be erected
upon a railway track now actually in use in any street or avenue;
and no such corporation shall construct a street surface railroad to
run in whole or in part upon the surface of any street or highway
under the provisions of this article.

The reference to section 8 of this law, in the first paragraph of-the
foregoing section, should have been to section 4,

§ 130, Crossing of horse railroad track.—Whenever the’
route selected by the commissioners for the construction of such
railway shall intersect, cross or coincide with any horse railway
track occupying the surface of the street or avenués, such railway
corporation is hereby authorized to remove, for the purpose of con-
structing its road, the tracks of such horse railway; but the same
shall be done in such manner as to interfere as little as possible with
their practical operation or working, and upon the construction of
such railway, where such removals or changes have been made, the
same shall be restored.as near as may be to the condition in which
they were previous to the construction of such railroad. All such
removals and restorations shall be made at the proper cost and
charges of such corporation, but no authority is herein given to any
such corporation to use the tracks of any horse railway.

§ 131. Where route coincides with another route.—When
ever the route or routes determined upon by the commissioners
coincide with the route or routes covered by the charter of an exist-
ing corporation, formed for the purpose of constructing and,
operating such a railway, and it has not forfeited its charter or
failed to comply with the provisions thereof; requiring the con-
Commissioners to TransFer Pians; To Fire Report. 437

The Railroad Law,’ §§ 132, 133.

 

 

struction of a road or roads within the time therein prescribed, such
corporation shall have the like power to construct and operate such
railway upon the fulfillment of the like requirements and condi-
tions imposed by the commissioners as a corporation specially
formed under this article, and the commissioners may fix and deter-
mine the route or routes by which any elevated steam railway now
in actual operation may connect with other steam railways or the
depots thereof, or with steam ferries, upon making compensation
therefor, and in case such corporations can not agree with the
owners. of such steam railways, depots or ferries upon the amount
of such compensation, and such owners may be entitled to com-
pensation therefor, the amount of such compensation shall be
ascertained and paid in the manner prescribed in the condemnation
law, and upon fulfillment by such elevated railway corporation,
so far as it relates to such connection, of the requirements and con-
ditions imposed by this article, it shall possess all the powers con-
ferred by section 129 of this article, and when any connecting route
or routes:shall be so designated, such elevated railway corporation
may construct such connection with all the rights and with like
effect as though the same had been part of the original rofite of
such railway. ;
(fhus amended by L. 1892, ch. 676.)

§ 132, Commissioners to transfer plans, etc.—Within one
month after such corporation shall have been formed and organ-
ized in the manner hereinbefore provided, the commissioners shall
transfer and deliver to the corporation all plans, specifications,
drawings, maps, books and papers in their possession, and they shall,
within the like period of one month after the organization of such
corporation, cause to be paid to the treasurer thereof all money”
collected under the provisions of this article, after deducting there-
from the necessary expenses incurred by the commissioners and the
amounts due to them for their salaries.

§ 183. Comrhissioners to file report; confirmation
thereof.—The commissioners shall within ‘one hundred and
forty days after their appointment, make a report to a special term
of the supreme court of the department in which such railway may
be located, of the amount of the pecuniary damage arising from the
diminution of value of each parcel of property bounded on that
portion of the street or streets, highway or highways, upon which
it is proposed to construct such railway or railways, which will be
caused by the construction, maintenance and operation thereof,
438 Pay or CoMMISSIONERS.

 

The Railroad Law, § 134.

 

The name and place of residence of the owner or owners of each
parcel shall be stated if the same are known, or can be ascertained,
and if not known the name of the person or persons appearing by
the certificate of the clerk or register of the county, to have the
title thereto from the records in his office, and a specific description.
of each parcel of property with reasonable certainty. The testi-
mony, if any, taken by the commissioners as to the amount of such
damage, shall accompany their report. Within thirty days after
filing and recording its certificate of incorporation, the corporation
authorized to construct and operate such railway or railways shall
move to confirm such report by giving notice of such motion to the
property owners in the manner in which notice of the time and
place of hearing before the commissioners is required by section
125 to be given, and if the corporation fails to so move, any prop-
erty owner may take the motion; and thereafter the proceedings.
shall be conducted in the manner prescribed in the condemnation
law. Before constructing and operating its railway in front of any
real property bounded upon any street, avenue or public place
wherein the corporation is authorized by the certificate and report.
of the commissioners to construct and operate its road, such cor-
poration shall pay to the owner of the real property the damages.
sustained, or which will be sustained by him in consequence thereof,
as finally fixed and ascertained, and the costs allowed him, if any,
and the court may direct that such damages be paid out of the
moneys deposited pursuant to the provisions of section 125, or in
case negotiable securities shall have been deposited in lieu of
money, that so much of such securities shall be sold as may be
necessary to raise the amount required to be paid to such owner
for damages and costs if any. Ifa bond shall have been executed
in lieu of such deposit, the court may order the securities in such
bond to pay the damages so fixed and ascertained, and in default
thereof may cause them to be proceeded against and punished as:
for a contempt of court.
(Thus amended by L. 1892, ch. 676.)

§ 134. Pay of “commissioners.—Each of the commissioners
shall be paid for his services at thé rate of ten dollars per day for
each day of actual service as such commissioner, and all expenses:
necessarily incurred by him in the discharge of his duties, to be
paid by such corporation, but if a sufficient amount of capital stock
shall not be subscribed within one year after the appointment of
such commissioners to authorize the formation of such corporation,
the commissioners shall receive no salary, and shall cause to be
Quorum; Cuanex or Rours, Etc. 439

 

The Railroad Law, §§ 135, 136.

 

returned to the subscribers for such stock the amounts paid in by
them, after deducting therefrom the necessary expenses incurred
by the commissioners, but the time, if any, unavoidably consumed
by the pendency of legal proceedings shall not be deemed a part.
of any period of time limited by this article.

§ 135. Quorum; term of office; removal; vacancies in
board of commissioners.—A majority of the members of any

board of commissioners appointed under this article shall be a
quorum for the transaction of any business or the performance of
any duty or function, or the exercise of any power, conferred or
enjoined upon them. Any commissioner may be removed for cause
at any time by the power appointing him, but no commissioner shall
be removed without due notice and an opportunity to be heard in
defense; and no commissioner thus removed is, or shall be eligible
to be again appointed to the office of commissioner. In case of the
death, resignation or removal from office of any commissioner the
vacancy shall be filled by the power appointing him, within thirty
days after such removal, or within thirty days after notice in writ-
ing to such appointing power given by some member of the board,
or by the corporation “hereinafter mentioned, of such death or
resignation, and a certificate of every such appointment shall be
filed as hereinbefore required. Except as otherwise provided by
law, the terms of office of the commissioners shall determine and
expire with the performance of their functions as herein: above
prescribed.

§ 136. Abandonment or change of route; new commis-
sioners; their powers and proceedings —Any corporation
heretofore organized or hereafter to be organized under this article,
its successors or assigns, which shall have constructed or put in
operation a railway upon a part and not upon the whole of the
route fixed, determined and located for such railway by a board of
commissioners, may at any time apply for authority to abandon any
portion of the route upon which the railway shall not have been
theretofore constructed or shall not then be in operation, with or
without a change and relocation of such portion, and with or with-
out extension of the portion not abandoned, or of any part thereof.
Such application shall be made by petition in writing, addressed
by such corporation to the board of supervisors of the county in
which such portion of the route so desired to be changed or
abandoned shall be situated, which is not within the limits of any
city, or if such route, or any part thereof, shall be within the limits
440 Cuance or Rovrts, ETc.

 

The Railroad Law, § 136.

 

of a city, to the mayor of the city, for the route or portion thereof
within such city. Five commissioners may be appointed pursuant
to such an application as hereinafter provided, who shall be residents
of the county or city and who shall have full power as herein pro-
vided. When such application is made by a corporation heretofore
organized such commissioners may be appointed within thirty days
after presentation of the same by such board of supervisors, or,
as the case may be, by such mayor. When such application is made
by a corporation heredfter to be organized under this article, such
board of supervisors, or, as the case may be, such mayor, may within
thirty days after presentation of such application, indorse thereon
their or his approval and direction that it may be presented to the
‘supreme court in the manner provided in section 120 of this article,
nd such court may thereupon appoint such commissioners.
Within ten days after his appointment each commissioner so
appointed shall take, subscribe and file the oath and give and file
the bond prescribed by section 121 of this article; and if any one so
appointed shall not comply with this requirement, he shall be
deemed to have declined to accept such appointment, and to have
made a vacancy which the appointing power shall fill by another
appointment as herin* provided. Within fifteen days after such
appointments shall have been so made, the commissioners shall
meet at some convenient place in such county and complete their -
organization as a board with appropriate officers. Such board shall
have all the authority conferred by law upon commissioners
appointed, or authorized to be appointed under this article. Before
proceeding to hear the application of the corporation, the board
shall give such public notice as it may deem most proper and effect-
ive of the time and place of the hearing. Within thirty days after
completing their organization such board shall hear the application
of the corporation, and all parties who may be interested therein,
and within sixty days after their organization they shall determine
whether any part of such route should be authorized to be
abandoned, or should be changed and relocated with or without
extension or extensions. If the board shall determine that no
abandonment of any part of the route should be allowed, and that
no change and relocation of any part thereof should be effected,
and that no extension should be made, the board shall dismiss the
application. If the board shall determine that an abandonment of
any portion of the route should be allowed; or that any change in
or extension thereof should be made, the board shall proceed to

 

* So in the original.
Cuanee or Rovre, Ere. 441

 

The Railroad Law, § 136.

authorize and require the same upon such conditions as to the board.
shall seem proper, and with or without extension of the remainder
of the route or any part thereof, by fixing, determining and locat-
ing the route or routes of the extension or extensions, if any, and
by directing the abandonment of the part of the route theretofore
located, but by the board allowed to be abandoned, and by fixing,
determining and relocating the part of the route theretofore
located, but by the board changed, if any; and the board shall
cause to be made in duplicate a survey and map of the route as so
changed and fixed, determined and located. Neither such corpora-
tion nor any assign or successor thereof shall thereafter have any
authority, by reason of any thing done under this article to operate:
or construct any railway upon any portion of the route
‘by the board so required to be abandoned. The board shall also
fix and determine the time within which the railway by it author-
ized and required upon any portion of the route so changed, shall
be reconstructed and ready for operation. If the railway on any
portion of the route not by the board changed or allowed to be
abandoned, shall not have been theretofore constructed and made-
ready for operation, the board may extend, and fix and determine:
anew the time within which such railway shall be completed, but
such extension of time shall not be for a longer period than that
originally allowed by law for the completion thereof. If the board
shall have determined that any portion of the route theretofore
located should be allowed to be abandoned, with or without a
change or relocation thereof or any part thereof, and with or with-
out extension, or if the board shall have extended the time within
which such railway shall be completed, the board shall make a
report in writing in accordance with the determination so made,
describing the portion of the route, if any there be, as so. fixed,
determined and located anew, and the part, if any there be, of the
route allowed to be abandoned, and stating the period of time, if
any, by the board fixed and determined within which such eorpora-
tion shall construct.and complete the railway theretofore authorized
or by it authorized to be constructed, and prescribing that
a failure by the corporation, its successors or assigns, to com-
plete it within the time, if any so limited, shall work a forfeiture
to the supervisors of the county if no part of the road is within
a city, or in any city, to such city, of the rights and franchises of
such corporation with respect to that portion of the route so fixed,
determined and located anew, and with respect to the then author-
ized extension or extensions, if any there be of said route, upon
442 Cuanes or Rovrs, ETC.

 

The Railroad Law, § 136.

which a railway shall not be constructed within the time so limited;
but the time, if any, unavoidably consumed by the pendency of
legal proceedings, shall not be deemed a part of any period of time
limited in this article, and any recital of any forfeiture of any of
the rights or franchises prescribed by any commissioners heretofore
appointed, to be to the mayor, aldermen and commonalty of the
city of New York, shall be as effectual for any and all purposes as
if such forfeiture had been in terms recited to be to the board of
supervisors of the eounty of New York. Such report shall be
signed in duplicate by at least a majority of the then members of
the board, and there shall be thereto annexed the survey and map
as hereinabove directed, showing the line and location of each
and all the routes, with or without the extension or extensions,
as fixed, determined And located, and showing also the parts or
part, if any there shall be, of the route or routes as theretofore
fixed, determined and located, but by the board allowed to be
abandoned. Within ten days after signing such report the board
shall cause the same to be filed in the office of the secretary of state,
and the duplicate thereof in the office of the clerk of the county
wherein such railway shall be located; and thereupon the corpora-
tion making such application, its successors or assigns, is and shall
be authorized to construct, maintain and operate a steam: railway
for the transportation of passengers, mail and freight, upon the
route or routes so fixed, determined and located, and in said report
described, but the construction or operation of a railway upon any
new location or selection of route is not and shall not be thus
authorized except upon the condition that the consent of the owners
of one-half in value of the property bounded on, and the consent
also of the local authorities having control of that portion of a street
or highway upon which it is proposed to construct or operate such
railway be first obtained, or in case the consent of such property
owners can not be obtained, that the determination of three com-
missioners, to be upon application appointed by the general term
of the supreme court, in the district in which such railroad is pro-
posed to be constructed, be given after a hearing of all parties inter-
ested that such railway ought to be constructed or operated, which
determination, confirmed by the court, may be taken in lieu of the
consent of the property owners. Such corporation is and the suc-
cessors and assigns thereof shall be authorized to maintain and
operate all the railroads and the appurtenances thereof by it or
them theretofore constructed upon any portion of a route or routes
which shall have been located by commissioners under this article,
Cuaner or Rovrs, Ere. 443

 

The Railroad Law, § 136.

 

and to complete within the time in and by such report so extended,
‘fixed and determined anew, and thereafter to maintain and operate,
the railway and appurtenances, upon so much of the route or routes
theretofore fixed, determined and located as shall not have been so
authorized and required to be abandoned, and with the same rights
and effect, in all respects, as if such extended period of time had
‘been originally fixed and determined, and in the original certificate
of incorporation of such corporation recited, for completing such
railway and putting it in operation. The other terms and con-
‘ditions in and by such certificate mentioned and prescribed, except
as the same are hereinbefore modified, or may be modified by the
board as hereinabove authorized, shall apply to the railway herein
-authorized to be constructed and operated upon the route or routes
as so changed, fixed, determined ‘and located, with the same force
and effect as if such route or routes, as finally so changed and
located, had been in and by such ‘articles or certificates themselves
prescribed. If a new location or extension of routes shall be
fixed and determined by commissioners who shall have been
appointed by the ‘court pursuant to this section, they shall also
ascertain and determine the aggregate pecuniary damages arising
from the diminution of value of the property bounded on that por-
tion of the street or highway upon the line of such new location or
extension and of each parcel of real property so bounded, and their.
proceedings thereupon shall be conducted in the same manner and
‘upon like notice as the proceedings for that purpose before the com-
missioners specified in section 125 and shall make to the supreme
-court the report required by section 133, and thereupon the same
proceedings shall be had as are provided for in such last named
‘section. Each commissioner shall be paid for his services at the
rate of ten dollars per day for each day of actual service as such
commissioner, and all reasonable expenses incurred by him in or
about any of the matters referred to such board, to be paid by the
corporation making the application so heard and determined. No
‘corporation shall be authorized under this section to extend,
abandon or change the location of its route, or any part thereof,
where the greater portion of the route or routes is or shall be in
that portion of the city of New York south or west of Harlem river,
or of ‘any route or part thereof in the city of Brooklyn or county
of Kings, or to construct, extend, abandon or change the location
of any railway or route for a railway over, under, through or across
any street, avenues, place or lands south of One Hundred and
"Twenty-eight street or west of Third avenue in that portion of the -
444 IncreaseD Dupysrr; Fut Stop or Trains.

The Railroad Law, §§ 137, 138.

city of New York south or west of Harlem river, or where a railway
might not by law be constructed, or was not by law authorized to
be by a board of commissioners located on the 5th day of June,
1888.

(Thus amended by L. 1892, ch. 676.)

See L. 1891, ch. 294, post.

A railroad corporation organized under the railroad law of 1850, chap-
ter 140, (now repealed), may extend its road by means of an elevated
track in a city, without acquiring the right to do so under the Rapid
Transit Act of 1875, where it does so solely for the purpose of connecting.
with an elevated road. (Beekman vy. Brooklyn & Brighton Beach R. R.
Co., 89 Hun, 14; McCullom v. Same, 89 id., 14.) The Rapid Transit Act.
of 1875, chapter 606, above referred to, was repealed in 1890 and its pro-
visions substantially re-enacted in sections 120 to 142 of the present Rail-
road Law.

§ 137. Increased deposit, when and how required.—In.
case any of the securities deposited in lieu of money as provided
in section one hundred and twenty-five, shall in the opinion of the
county treasurer or trust company with whom they may be
deposited, fall below their actual value at the time of deposit, the-
county treasurer or trust company shall call upon such railway
corporation to substitute therefor other securities equivalent at their
par or market value to the amount in lieu of which the securities.
for which they are to be substituted were deposited, and in case
such other securities shall not be furnished, the county treasurer
-or trust company shall call upon such corporation to furnish as a
substitute, and it shall so furnish an amount of money equal to the
amount in lieu of which the securities first above referred to were
deposited.

§ 138. Trains to come to full stop, etc.— All trains upon
elevated railroads shall come to a full stop before any passenger:
shall be permitted to leave such trains; and no train on such rail-
road shall be permitted to start until every passenger desiring to
depart therefrom shall have left the train, provided, such passenger
has manifested his or her intention to so depart by moving toward
er upon the platform of any car; nor until every passenger upon
the platform or station at which piel train has stopped, and desir-
ing to board or enter such cars, shall have actually boarded or-
entered the same, but no person shall be permitted to enter or
board any train after due notice from an authorized employe of such
corporation that such train is full and that no more passengers can.
be then received.
Gates; Penatry; Sxcrions 10 se Prinren, Evc. 445

The Railroad Law, §§ 189, 140, 141.

 

 

An elevated railroad company which, after its station platform is full,
continues to sell tickets and allows passengers to go ‘upon such platform
in numbers sufficient to crowd a passenger already there forward, and
off from the front edge of the platform, on which there is no protecting
rail, is liable for the injury thus occasioned to him. (McGearty v. Man-
hattan Ry. Co., 15 App. Div., 2.)

§ 189. Gates or vestibule doors.— Every car used for pas-
sengers upon elevated railroads shall have gates at the outer edge
of its platforms so constructed. that they shall, when opened, be
caught and held open by such catch or spring as will prevent their
swinging and obstructing passengers in their egress from or in-
gress to such cars, or vestibule doors so constructed as to slide
into the body of the car; and every such gate or door shall be
kept closed while the car is in motion; and when the car has
stopped and a gate or door has been opened, the car shall not start
until such gate or door is again firmly closed.

(Thus amended by L. 1908, ch. 273.)

§ 140. Penalty for violation of this article.—Any elevated
railroad corporation that shall fail or neglect to comply with or
enforce the provisions of this article, shall, upon the ‘petition of
any citizen to any court of record, and upon due notice to such
corporation, and proof of such failure or neglect, pay to the clerk
of the court wherein such petition was made, a sum not less than
two hundred and fifty nor more than one thousand dollars, as such
court may direct by its order. The sum so ordered to be paid shall
be paid by such clerk of the court to the county: treasurer, and shall
be distributed by such treasurer equally among the public hospitals
of the county in which the proceeding is had, at such time, as the
board of supervisors or board of aldermen in any such county shall
direct. Nothing in this section shall relieve elevated railroad cor-
porations from any liability under which they may now be held by
existing laws for damages to persons or property.

(Thus amended by L. 1892, ch. 676.)

§ 141. Sections to be printed and posted.—The officers and
board of directors of such railroad corporations shall cause copies
of sections one hundred and thirty-eight, one hundred and thirty-
nine and one hundred and forty to be printed conspicuously and
posted in the depots or stations and in each car belonging to them.
446 Exvension or Time; Term or Orrice or CoMMISsIONERs.

 

The Railroad Law, §§ 142, 150.

 

§ 142. Extension of time.—The time within which any act
is required to be done under this article may be extended by the
supreme court for good cause shown, for one year, and but one
extension will be granted. Any company that has heretofore con-
structed or is now operating an elevated railroad shall be deemed
to have been duly incorporated notwithstanding any failure on the
part of commissioners to insert in its articles of association provi-
sions complying with statutory requirements relative to such
articles.

(New section, added by L. 1892, ch. 676.)
)

For explanation of interval in numbering between section 142, supra,
and section 150, infra, see note on page 279.

ARTICLE VI.

.
Tue Boarp or Rartroap ComMISssIONERS.

Section 150. Appointment and term of office of railroad commissioners,
151. Suspension from office.
152. Secretary and marshal of board.
158. Additional officers; their duties.
154. Oath of office; eligibility of officers of board.
155. Principal officer and meetings of board.
156. Quorum of board.
157. General powers and duties of board.
158. Reports of railroad corporations.
159. Investigation of accidents.
160. Recommendations of board where law has been violated.
161. Recommendations of board when repairs or other
changes are necessary.
162. Legal effect of recommendation and action of the board.
168. Corporation must furnish necessary information.
164. Attendance of witnesses and their fees.
165. Fees to be charged and collected by the board.
166. Annual report of board.
167. Certified copies of papers filed to be evidence.
168. Acts prohibited.
169. Salaries and expenses of members and officers of the
board.
170. Total annual expense to be borne by railroads.
171. Application of this article.
172. Improvements in appliances, prizes for.

§ 150. Appointment and term of office of railroad com-
missioners.—There shall continue to be a board of railroad
Orricrers oF Boarp. 447
The Railroad Law, §§ 151, 152.

commissioners, consisting of five competent persons, one of whom
shall be experienced in railroad business, appointed by the gov-
ernor, by and with the advice and consent of the senate, each of
whom shall hold office for the term of five years, and until his suc-
cessor shall have been appointed and shall have qualified. A com-
missioner shall in like manner be appointed upon the expiration
of the term of any commissioner; and when any vacancy shall
occur in the office of any commissioner, a commissioner shall in
like manner be appointed for the residue of the term. If the
senate shall not be in session when the vacancy occurs, the governor
shall appoint a commissioner to fill the vacancy, subject to the
approval of the senate when convened. ?
(Thus amended by L. 1905, ch. 728.)

The only change made by the amendment of 1905 was an increase in
the number of commissioners from three to five.

§ 151. Suspension from office.—Any commissioner may be
‘suspended from office by the governor upon written charges pre-
ferred. The governor shall report such suspension and the reasons
therefor to the senate at the beginning of the next ensuing session,
and if a majority of the senate shall approve the action of the gover-
nor, such commissioner shall be removed from office and his office
‘become vacant.

§ 152. Secretary and marshal of board.—The board shall
have a secretary and a marshal who shall be appointed by it and
serve during its pleasure. The secretary shall keep a full and faith-
ful record of the proceedings of the board, and be the custodian of
its records, and file and preserve at its general office all books, maps,
documents and papers intrusted to his care, and be responsible: to
the board for the same. Under the direction of the board he shall
be its chief executive officer, shall have general charge of its office,
superintend its clerical business, conduct its correspondence, be
the medium of its decisions, recommendations, orders and bequests,
prepare for service such papers and notices as may be required of
him by the commissioners, and perform such other duties as the
board may prescribe, and he shall have. power to administer oaths
jn all cases pertaining to the duties of his office. He shall have the
power to-designate from time to time one of the clerks appointed
by the board to act as assistant secretary during his absence from

‘ the county of Albany, and the clerk so designated for the time
designated shall within the county of Albany only, possess the
powers conferred by this section upon the secretary of the board.

(Thus amended by L. 1892, ch. 534.)
The provision as to an assistant secretary was added {n 1892.
448 Orricers or Boarp; Oars; MEETINGS.

 

The Railroad Law, §§ 153, 154, 155.

§ 153. Additional officers; their duties.—The board may
also appoint, to serve during its pleasure, the following officers or
any of them: An accountant, who shall be thoroughly skilled in
railroad accounting, and who shall, under the direction of the board,
make examinations of the books and accounts of railroad and other
corporations, and supervise the quarterly and annual reports made:
by the railroad corporations to the board, and collect and compile
railroad statistics, and perform such other duties as the board may
prescribe.* An inspector, who shall be a civil engineer, skilled in
railroad affairs; also, an inspector, who shall be an expert in electri-
cal ‘railroad affairs, each of whom shall make such inspections of
railroads and other matters relating thereto, as directed by the
board, and report to it.* Such additional clerical force as may be
necessary for the transaction of its business. The board may also:
employ engineers, accountants and other experts whose services
they may deem to be of temporary importance in condncting, any
investigation authorized by law.

(Thus amended by L. 1892, ch. 534, and L. 1896, ch. 456.)

§ 154. Oath of office; eligibility of officers of board.——
Each commissioner, and every person appointed to office by the-
board, shall, before entering upon the duties of his office, take and
subscribe the constitutional oath of office. No person shall he
appointed to or hold the office of commissioner or be appointed
by the board to, or hold any office, place or position under it who.
holds any official relation to any railroad corporation, or owns stock
or bonds therein, or who is in any manner pecuniarily interested
in any firm or corporation having business relations with any such
corporation.

§ 155. Principal office and meetings of board.—The prin-
cipal office of the board shall be at the city of Albany, in rooms.
designated by the capitol commissioners, and it may have a branch
office at the city of New York, and one at the city of Buffalo; and.
the board, or a quorum thereof, shall meet at least once a month
during the year at the office in Albany. The board shall have an
official seal, to be prepared by the secretary of state in accordance:
with law, and its offices shall be supplied with necessary postage,
stationery, office furniture and appliances, to be paid for as other
expenses authorized by this article, and it shall have prepared for-
it by the state the necessary books, maps and statistics, incidentally
necessary for the discharge of its duties.

 

 

* So punctuated in the original law.
Quorum oF Boarp; Powers anp DutTI£s. 449

 

The Railroad Law, §§ 156, 157.

~

 

§ 156. Quorum of board.—Thrce of the commissioners shall
constitute a quorum for the transaction of any business, or the per-
formance of any duty of the board and may hold meetings thereof
at any time or place within the state. All examinations or investi-
gations made by the board may be held and taken by and before
any one of the commissioners or the secretary of the board, by the
order of the board, and the proceedings and decisions of such
single’ commissioner or secretary, shall be deemed to be the pro-
ceedings and decisions of the board, when approved and con-
firmed by it.

(Thus amended by L. 1892, ch. 534; L. 1905, ch. 728.)

The number to constitute a quorum was increased from two to three
in 1905. ‘This change was necessary by reason of the increase in the
number of commissioners from three to five effected by the same
amendment.

The provision authorizing the secretary to hold examinations and
investigations was added in 1892.

§ 157. General powers and duties of board.—The board
shall have power to administer oaths in all matters relating to its
duties, so far as necessary to enable it to discharge such duties, shall
have general supervision of all railroads and shall examine the same
and keep informed as to their condition, and the manner in which
they are operated for the security and accommodation of the public
and their compliance with the provisions of their charters and of
law. The commissioners or either of them in the performance of.
their official duties may enter and remain during business hours in
the cars, offices and depots, and upon the railroads of any railroad
corporation within the state, or doing business therein; and may
examine the books and affairs of any such corporation and compel
the production of books and papers or copies thereof, and the board
may cause to be subpoenaed witnesses, and if a person duly sub-
poenaed fails to obey such subpoena without reasonable cause, or
shall without such cause refuse to be examizied, or to answer a legal
or pertinent question, or to produce a book or paper which he is
directed by subpoena to bring, or to subscribe his deposition after it
has been correctly reduced to writing, the board may take such pro-
ceedings as are authorized by the Code of Civil Procedure upon
the like failure or refusal of a witness subpoenaed to attend the
trial of a civil action before a court of record or a referee appointed
by such court. The board shall also take testimony upon, and have
a hearing for and against any proposed change of the law relating
to any railroad, or of the general railroad law, if requested to do
so by the legislature, or by the committee on railroads of the senate
or the assembly, or by the governor, and may take such testimony
and have such a hearing when requested to do so by any railroad
450 Rerorts or RartRoaD CoRPORATIONS.

 

The Railroad Law, § 158.

 

corporation, or incorporated organization representing agricultural
or commercial interests in the state, and shall report their con-
clusions in writing to the legislature, committee, governor, corpo-
ration or organization making such request; and shall recom-
mend and draft such bills as will in its judgment protect the
people’s interest in and upon the railroads of this state.

See index under “ Railroad Commissioners” as to powers of the board.

See also, as to powers of board, as follows:
L. 1891, ch. 360. Lighting of tunnels.
The Stock Corporation Law, section 46. Increase or reduction of cap-
ital stock.
See also, as to powers of said board, The Railroad Law, as follows,
te wit:
Section 6. Maps to be filed.
35. Accommodation of connecting roads.
36. Locomotives must stop at grade crossings.
38. Reduction of fare.
50. Approval of safeguards.
51. Use of stoves.
55. Suspension of trains in winter.
56. Carrying mail.
57. Annual reports.
59. Certificate for new railroad.
80. Consolidation and lease of parallel lines.
83. Abandonment of part of route by reorganized corporation
100. Change of motive power.
102. Construction of road where other road is built,
103. Abandonment of part of route by street railroad,
172. Improved appliances, awarding prizes for.

See also sections 60-68.

§ 158. Reports of railroad corporations.—The board shalk
prescribe the form of the report required by the railroad law to be
made by railroad corporations, and may from time to time make-
such changes and additions in such form, giving to the corporation
six months notice before the expiration of any fiscal year, of any
changes or additions which would require any alteration in the
method or form of keeping their accounts, and on or before June
thirtieth in each year, shall furnish a blank form for such report.
When the report of any corporation is defective, or believed to be
erroneous, the board shall notify the corporation to amend the:
same within thirty days. The originals of the reports, subscribed
and sworn to as prescribed by law, shall be preserved in the office
of the board.

(Thus amended by L. 1904, ch. 158.)

The date contained in this section was changed from September
fifteenth to June thirtieth by the amenYment of 1904.
Investigation or AccipeNntTs; VioLaTion or Law. 451

 

The Railroad Law, §§ 159, 160, 161.

§ 159. Investigation of accidents.—The board shall inves
tigate the cause of any accident on any railroad resulting in loss
of life or injury to persons, which in their judgment shall require
inyestigation, and-include the result thereof in their annual report
to the legislature. Before making any such examination or investi-
gation, or any investigation or examination under this article,
reasonable notice’ shall be given to the corporation, person or per-
sons conducting and managing such railroad of the time and place
of commencing the same. The general superintendent or manager
of every railroad shall inform the board of any such accident imme-
diately after its occurrence. If the examination of the books and

‘affairs of the corporation, or of witnesses in its employ, shall be
necessary in the course of any examination or investigation into
its affairs, the board, or a commissioner thereof, shall sit for such
purpose in the city or town of this state where the principal busi-
ness office of the corporation is situated if requested so to do by
the corporation; but the board may require copies of books and
papers, or abstracts thereof, to be sent to them to any part of this
state.

§ 160. Recommendations of board, where law has been
~~ violated.—If, in the judgment of the board, it shall appear
that any railroad corporation has violated any constitutional pro-
vision or law, or neglects in any respect to comply with the terms
of the law by which it was created, or unjustly discriminates in “its
charges for services, or usurps any authority not granted by law,
or refuses to comply with the provisions of any law, or with any
recommendation of the board, it shall give notice thereof in writing
to the corporation, and if the violation, neglect or refusal is con-
tinued after such notice, the board may forthwith present the mat-
ter to the attorney-general, who shall take such proceedings thereon
as may be necessary for the protection of the public interests.
Powers of the board of railroad commissioners considered in ‘People

v. N. Y., L. BE. & W. BR. RB. Co., 104 N. Y., 58; People v. Rome, W. & O. RB.
R. Co., 103 N. ¥., 95. :

§ 161. Recommendations of board, when repairs or
other changes are necessary.—If in the judgment of the
board, after a careful personal examination of the same, it shall
_appear that repairs are necessary upon any railroad in the state,
or that any addition to the rolling stock, or any addition to or
change of the station or station-houses, or that additional terminal '
facilities shall be afforded, or that any change of the rates of fare

’
452 RECOMMENDATIONS OF BoarD.

 

The Railroad Law, § 162.

 

for transporting freight or passengers or in the mode of operating
the road or conducting its business, is reasonable and expedient in
order to promote the security, convenience and accommodation of
the public, the board shall give notice and information in writing
to the corporation of the improvements and changes which they deem
to be proper, and shall give such corporation an opportunity for a
full hearing thereof, and if the corporation refuses or neglects to make
such repairs, improvements and changes, within a reasonable time
after such information and hearing, and fails to satisfy the board
that no action is required to be taken by it, the board shall fix the
time within which the same shall be made, which time it may extend. _
It shall be the duty of the corporation, person or’ persons owning or
operating the railroad to comply with such decisions and recommenda-
tions of the board as are just and reasonable. If it fails to do so the
board shall present the facts in the case to the attorney-general for
his consideration and action, and shall also report them in its annual
or in a special report to the legislature. Elevated railroad corporations
are included in the application of this section.
(Thus amended by L. 1902, ch. 373.)

.The fact that a railroad company charged exorbitant rates for trans-
portation of freight and passengers does not make out a case for the
building of a practically parallel road. The remedy is an application fur
a reduction of rates, pursuant to this section. (Matter of Amsterdam,
Johnstown & Gloversville R. R. Co., 86 Hun, 578.) ‘

The provision empowering railroad commissioners to recommend repairs
and changes should not prevent the board from availing themselves of
expert services in the proceedings to compel the erection of a freight
depot. (People v. D. & H. Canal Co., 165 N. Y., 362, aff’g 32 App. Div., 120.)

§ 162. Legal effect of recommendations and action of
the board.-- No examination, request or advice of the board,
nor any investigation or report made by it, shall have the effect to
impair in any manner or degree the legal rights, duties or obliga-
tions of any railroad corporation, or its legal liabilities for the con-
sequence of its acts, or of the neglect or mismanagement of any of
its agents or employes. The supreme court at a special term shall
have power in its discretion, in all cases of decisions and recom-
mendations by the board which are just and reasonable to compel
compliance therewith by mandamus, subject to appeal to the gen-
eral term and the court of appeals, and upon such appeal, the gen-
eral term and the court of appeals may review and reverse upon the
facts as well as the law.

(Thus amended by L. 1892, ch. 676.)

Prior to the amendment of 1892, the foregoing section provided that,
findings of the commissioners should be presumptive evidence of the facts
Inrormation To Boarp; Witnesses, Frrs, Ero. 453

 

The Railroad Law, §§ 163, 164, 165.

in certain actions, and also provided that the recommendations of the
doard be deemed prima facie just and reasonable. |

See People ex rel. Loughran vy. Railroad Cemmissioners, 158 N. Y., 421.

§ 163. Corporations must furnish necessary informa-
tion.— Every railroad corporation shall, on request, furnish the
board any necessary information required by them concerning tlie
rates of fare for transporting freight and passengers upon its road
and other roads with which its business is connected, and the con-
dition, management and operation of its road, and shall, on request,
furnish to the board copies of all contracts and agreements, leases
or other engagements entered into by it with any person or. corpo-
ration. The commissioners shall not give publicity to such informa-
tion, contracts, agreements, leases or other engagements, if, in their
judgment, the public interests do not require it, or the welfare and
prosperity of railroad corporations of the state might be thereby
injuriously affected.

§ 164..Attendance of witnesses and their fees.— All
subpoenas shall be issued by the president of the board, or by any
two members thereof, and may be served by any person of full age
authorized by the board to serve the same. The fees of witnesses
before the board shall be two dollars for each days attendance, and
five cents for every mile of travel by the nearest generally traveled
route in going to and returning from the place where the attend-
ance of the witness is required, and the fees shall be audited and
paid by the comptroller on the certificate of the secretary of the
commission. .

§ 165. Fees to be charged and collected by the board.—
‘The board shall charge and collect the following fees: For copies
of papers and records not required to be certified, or otherwise
authenticated by the board, ten cents for each folio of one hundred
‘words; for certified copies of official documents filed in its office,
fifteen cents for each folio, and one dollar for every certificate
under seal affixed thereto; for each certified copy of the quarterly
report made by a railroad corporation to the board, fifty cents; for
each certified copy of the annual report of the board, one dollar
and fifty cents; for certified copies of evidence and proceedings
before the board, fifteen cents for each folio. No fees shall be
charged or collected for copies of papers, records or official docu-
ments, furnished to public officers for use in their official capacity,
or for the annual reports of the board in the ordinary course of
distribution. All fees charged and collected by the board belong
to the people of the state, and shall be paid quarterly, accompanied
454 Ruporr or Boarp; Papers Firep; Acts Prosrsrren.

 

The Railroad Law, §§ 166, 167, 168.

 

with a detailed statement thereof into the treasury of the state to
the credit of the general fund.

§ 166. Annual report of board.—The board shall make an
annual report on or before the second Monday i in January in each
year, which shall contain:

1. A record of their meetings and an abstract of their proceed—
ings during the preceding year.

2. The result of any examination or investigation conducted.
by them.

3. Such statements, facts and explanations as will disclose the-
actual workings of the system of railroad transportation in its bear-
ing upon the business and prosperity of the state, and such sugges-
tions as to the general railroad policy of the state, of the amend-
ment of its laws, or the condition, affairs or conduct of any railroad
corporation, as may seem to them appropriate.

4. Drafts of all bills submitted by them to the legislature and’
the reasons therefor.

5. Such tables and abstracts of all the reports of all the railroad’
corporations as they may deem expedient.

6. A statement in detail of the traveling expenses and disburse-
ments of the commissioners, their clerks, marshal and experts.

Five hundred copies of the report with the reports of the railroad
corporations ‘of the state, in addition to the regular number pre-
scribed by law, shall be printed as a public document of the state,.
bound in cloth for the use of the commissioners, and to be dis-
tributed by them in their discretion to railroad corporations and
other persons interested therein.

§ 167. Certified copies of papers filed to be evidence.—
Copies of all official documents filed or deposited. according to law
in the office of the board, certified by a member of the board or
the secretary thereof to be true copies of the originals under the
official seal of the board, shall be evidence in like manner as the
originals.

§ 168. Acts prohibited.— No railroad commissioner shall,
directly or indirectly, solicit or request from, or recommend to any
railroad corporation, or any officer, attorney or agent thereof, the
appointment of any person to any place or position nor shall any
railroad corporation, its attorney or agent, offer any place, appoint-
ment or position or other consideration to such commissioners, or
either of them, nor to any clerk or employe of the commissioners
Savakixs or Mempers; Exprensz Borne py Raiwroaps, 455

 

_ The Railroad Law, §§ 169, 170.

 

or of the board; neither shall the commissioners or either of them,
nor their secretary, clerks, agents, employes or experts, accept,
receive or request any pass from any railroad in this state, for them-
selves or for any other person, or any present, gift or gratuity of
any kind from any railroad corporation; and the request or accept-
ance by them, or either of them, of any such place or position, pass,
presents, gifts or other gratuity shall work a forfeiture of the office
of the commissioner or commissioners, secretary, clerk or clerks,
agent or agents, employe or employes, expert or experts, requesting
or accepting the same.

§ 169. Salaries and expenses of members and officers of
the board.— The annual salary of each commissioner shall be
eight thousand dollars; of the secretary six thousand dollars; of the
marshal fifteen hundred dollars; of the accountant and of the
.inspector such sum as the board may fix, not exceeding three thou-
sand dollars each; of the clerical force such sums respectively as
the board may fix. In the discharge of their official duties, the com-
missioners, their officers, clerks and all experts and agents whose-
services are deemed temporarily of importance, shall be transported:
over the railroads in this state free of charge upon passes signed by
the secretary of state and the commissioners shall have reimbursed
to them the necessary traveling expenses and disbursements of
themselves, their officers, clerks and experts, not exceeding in the
aggregate nine hundred dollars per month. All salaries and dis-
bursements shall be audited and allowed by the comptroller and
paid monthly by the state treasurer upon the order of the comp-:
troller out of the funds provided therefor. .

(Thus amended by L. 1892, ch. 534; L. 1905, ch. 728.)

The only change in this section by the act of 1905 was an increase in
the maximum sum permitted for expenses from $500 per month to $900:
per month. ;

Section 5 of article 13 of the Constitution does not prohibit the rail-
road commissioners, their clerks, agerits and experts from accepting and
using passes issued by the secretary of state for their transportation
while engaged in public business. (Matter of Railroad Comrs., 11
Mise., 103.) :

§ 170. Total annual expense to be borne by railroads.— The
total annual expense of the board authorized by law, excepting
only rent of offices and the cost of printing and binding the annual
reports of the board as provided by law, shall not exceed one hun-
dred thousand dollars; and shall be borne by the several corpora-
tions owning or operating railroads according to their means, to be
apportioned by the comptroller, who, on or before July first, in
each year, shall assess upon each of such corporations its propor-

.
456 APPLICATION OF ARTICLE; AWARD OF PRizEs.
The Railroad Law, §§ 171, 172.

 

 

tion of such expenses, one-half in proportion to its net income for
the fiscal year next preceding that in which the assessment is made,
and one-half in proportion to the length of its main road and
branches, except that each corporation whose line of road lies partly
within and partly without the state, shall in respect of its net
income be assessed on a part bearing the same proportion to its
whole net income that the line of its road within the state bears to
the whole length of road, and in respéct of its main road and
‘branches shall be assessed only on that part which lies within the
state. Such assessment shall be collected in the manner provided
by law for the collection of taxes upon corporations.

(Thus am’d by L. 1892, ch. 534; L. 1896, ch. 456; L. 1905, ch. 728.)

In 1905 the maximum allowed for the total annual expense of the
board was increased from $60,000 to $100,000.

This provision is not in violation of the State Constitution, art. 1, sec.
6. It does not “deprive any person of life, liberty or property without
due process of law; nor deny to any person * * * the equal protec
tion of the laws.” (Charlotte C. & A. R. R. Co. v. Gibbes, 142 U. S., 386.)

In computing the length of road all the parallel tracks between terminal
points must not be included. (In re N. Y., Ont. & Westn. R. R. Co. v.
Chapin, 106 N. Y., 265.)

§ 171. Application of this article.—The provisions of this
article shall apply to all railroads within the state, and the corpo-
rations, receivers, trustees, directors or others, owning or operating
the same or any of them, and to all sleeping and drawing-room car
corporations, and to all other associations, partnerships or corpora-
tions engaged in transporting passengers or freight upon any such
railroad as lessee or otherwise.

§ 172. The railroad commissioners may in their discretion act
as judges to award prizes which may be offered by any responsible
person for improvements in machinery or appliances for operating
railroads.

(New section, added by L. 1894, ch. 452.)

Sections 180, 181, 182 and 183, entitled, respectively, “ Laws Repealed,”
“Saving Clause,” ‘“ Construction” and “ When to Take Effect,” consti-
tuting all of article seven of the Railroad Law, as enacted by L. 1890,
ch. 565, were repealed by L. 1892, ch. 676, the provisions of such repealed
sections having been by L. 1892, ch. 687, embodied in the General Corpo-
ration Law, sections 34, 35 and 36; and the schedule of laws repealed
theretofore annexed to the Railroad Laws was likewise transferred to,
and combined with, the schedule of laws repealed appended to the
General Corporation Law. See pages 62-72.
MISCELLANEOUS RAILROAD LAWS.

‘A CrronotocioaL ARRANGEMENT oF Various Acts AND Parts.
or Aots Arrrecting Rartroaps.

L. 1835, Ox. 300.
An Act to enlarge the powers of commissioners of highways..

Consent to cross highways.

Szction 1. Whenever any association or individual shall con-
struct a railroad upon land purchased for that purpose, on a route
which shall cross any road or other public highway, it shall be
lawful for the commissioners of highways, having the supervision
thereof, to give a written ¢onsent that such railroad may be con--
structed across, or on such road or other public highway; and there-.
after such association or individual shall be authorized to construct:
and use such railroad across, or on such roads or other highways as-
the commissioners aforesaid shall have permitted; but, any public:
highway thus intersected or crossed by a railroad, shall be so.
restored to its former state as not to have impaired its usefulness.

Relative to highways and streets crossing tracks, see L. 1853, ch. 62,.
post.

L. 1887, On. 300.

An Act relative to unclaimed trunks and baggage.

[The foregoing entitled act appears to have been repealed by implica-
tion, so far as the same has been applicable to railroad and other trans-
portation corporations. See the Railroad Lavy, section 46.]

L. 1847, Ca. 183.

An Act authorizing the incorporation of rural cemetery
associations.
* * * * * * *
No street, road, avenue or thoroughfare to be laid out through a ceme-
tery.
Szotton 10. The cemetery lands and property of any associa-
tion formed pursuant to this act, and any property held in trust by
&
+458 Roaps anp Streets Across Rairroap TRACKS.

 

Miscellaneous Railroad Laws.

 

it for any of the purposes mentioned in section nine of this act,
shall be exempt from all public taxes, rates and assessment, and
shall not be liable to be sold on execution, or be applied in payment
of debts from any individual proprietor. But the proprietors of
lots or plots in such cemeteries, their heirs or devisees, may hold
the same exempt therefrom, sc long as the same shall remain dedi-
cated to the purposes of a cemetery, and during that time no street,
road, avenue or thoroughfare shall be laid out through such ceme-
tery, or any part of the lands held by such association for the pur-
poses aforesaid, without the consent of the trustees of such associa-
tion, except by special permission of the Legislature of the State.
(Thus amended by L. 1869, ch. 708; .L. 1877, ch. 31)

L. 1853, Cx. 62.

*An Act to regulate the construction of roads and streets across
railroad tracks.

Laying out streets or highways across railroad tracks.

‘Szotion 1. It shall be lawful for the authorities of any city,
village or town in this State, who are by law empowered to lay out
streets and highways, to lay out any street or highway across the
track of any railroad now laid or which may hereafter be laid, with-
out compensation to the corporation owning such railroad; but no
such street or highway shall be actually opened for use until thirty
days after notice of such laying out has been served personally
upon the president, vice-president, treasurer or a director of such
corporation,

Railroad corporations to cause street laid out across their track to be
taken at most convenient place for public travel.

§ 2. It shall be the duty of any railroad corporation, across
whose track a street or highway shall be laid out as aforesaid,
immediately after the service of said notice, to cause the said street
or highway to be taken across their track, as shall be most conven-
ient and useful for public travel, and to cause all necessary embank-
ments, excavations and other work to be done on their road for that
purpose; and all the provisions of the act, passed April 2, 1850, in
relation to crossing streets and highways, already laid out, by rail- »
roads, and in relation to cattle-guards and other securities and
facilities for crossing such roads, shall apply to streets and highe
ways hereafter laid out.

 

* See, also, sections 60-69 of the Railroad Law, which supersede this act.
(158 N. Y., 410.)

i
a

Protection or Immicranrs. 459

 

Miscellaneous Railroad Laws.

 

Penalty for neglect or refusal.

§ 3. If any railroad corporation shall neglect or refuse, for
thirty days after the service of the notice aforesaid, to cause the
necessary work to be done and completed, and improvements made
on such streets or highways across their road, they shall forfeit and
“pay the sum of $20 for every subsequent day’s neglect or refusal,
to be recovered by the officers laying out such street or highway,
to be expended on the same; but the time for doing said work may
‘be extended, not to exceed thirty days, by the county judge of the
county in which such street or highway, or any part thereof, may
“be situated, if, in his opinion, the said work cannot be performed
‘within the time limited by this act. ,

L. 1855, On. 474.

*An Act for the protection of immigrants, second class, steerage
and deck passengers.

Rates of fare, regulations concerning.

Szction 1. It shall be the duty of all companies, associations
and persons, hereafter undertaking to transport or convey, or
engaged in transporting or conveying by railroad, steamboat, canal
boat, or propeller, any immigrant, second class, steerage, or deck
passenger, from the city, bay or harbor of New York, to any point
or place, distant more than ten miles therefrom, or from the cities
of Albany, Troy and Buffalo, the town or harbor of Dunkirk, or
the Suspension Bridge, to any other place or places, to deliver to
the mayors of the city of New York, Albany, Troy and Buffalo,
-on or before the first day of April in each and every year, a written
or printed statement of the price or rates of fare, to be charged by
‘such company, association or person, for the conveyance of such
immigrant, second class, steerage and deck passengers respectively,
and the price per hundred pounds for the carriage of the luggage,
and the weight of luggage to be carried: free of such passengers
‘from and to each and every place, from and to which any such com-
pany, association or person, shall undertake to transport and con-
vey such passengers; and such prices or rates shall not exceed the
prices and rates charged by the company, association or person, after
the time of delivering such statement to the said mayors; and such
‘statement shall also contain a particular description of the mode
:and route by which such passengers are to be transported and con-

* See Penal Code, section 626.
460 Prortcrion OF TnmGRrants.

 

Miscellaneous Railroad Laws.

veyed, specifying whether it is to be by railroad, steamboat, canal
boat or propeller, and what part of the route is by each, and also the
class of passage, whether by immigrant trains, second class, steerage
or deck passage. In case such companies, association or person,
shall desire thereafter to make any change or alteration in the rates
or prices of such transportation and conveyance, they shall deliver.
to the said mayors respectively a similar statement of the prices
and rates as altered and changed by them; but the rates and prices
so changed and altered, shall not be charged or received until five
days after the delivery of the statement thereof, to the said mayors
respectively. 2

What passage tickets shall state.

§ 2. Every ticket, receipt or certificate which shall be made or
issued by any company, association or person, for the conveyance:
of any immigrant, second class, steerage or deck passengers, or as
evidence of their having paid for a passage, or being entitled to be
conveyed from either or any of the points or places in the first
section of this act mentioned to any other place or places, shall con-
tain or have indorsed thereon, a printed statement of the names of
the particular railroad or railroads, and of the line or lines of
steamboats, canal boats and propellers, or of the particular boats or
propellers, as the case may be, which are to be used in the trans-
portation and conveyance of such passengers, and also the price or
rate of fare charged or received for the transportation and convey-
ance of any such passenger or passengers with his or their luggage.

Higher rates of fare prohibited.

§ 3. Itshall not be lawful for any person or persons to demand
or receive, or bargain for the receipt of any greater or higher price
or rate of fare for the transportation and conveyance of any such
immigrant, second class, steerage, or deck passengers with their
luggage, or either, from either or any of the points or places in the
first section of this act mentioned, to any other point or place, than
the prices or rates contained ie the statements, which shall be
delivered to the mayors of the cities of New York, Albany, Troy
and Buffalo, and said commissioners respectively, as in the said
first section provided for, or the price or rates which shall be estab-
lished and fixed for the transportation and conveyance of such pas-
sengers and their luggage, or either by the proprieters or agents
of the line or lines, or means of conveyance by which such pas-
senger or passengers and their luggage are to be transported or
conveyed. In all cases each immigrant over four years of age con-
Prorecrion or Immicranrs 461 |

 

Miscellaneous Railroad Laws,

 

veyed by milion shall be furnished with a seat with permanent
back to the same, and when conveyed by steamboat, propeller or
canal boat, shall be allowed at least two and one-half feet square in
the clear on deck. Such deck shall be covered and made water-
tight over head, and shall be properly protected at the outsides
either by curtains or partitions, and shall be properly ventilated.

Penalty. ‘

§ 4. Any company, association, person or persons violating-or
neglecting to comply with any of the provisions of the first or
second sections of this act, shall be liable to a penalty of two hun-
dred and fifty dollars for each and every offense, to be sued for and
recovered in the name of the people of this state; and every person
violating any of the provisions of the third section. of this act shall
be deemed guilty of a misdemeanor, and on conviction thereof, the
person offending may be punished by a fine of two hundred and
fifty dollars, or by imprisonment not exceeding one year, or by
both fine and imprisonment, in the discretion of the court; one-half
of which fines when recovered shall be paid to the informer and the
other half into the county treasury where the action shall ke tried
or the conviction had.

Violations; duty, of magistrate.

§ 5. It shall be the duty of every magistrate who shall issue a
warrant for the apprehension of any person or persons for violating
the provisions of the third section of this act, within twenty-four
hours after such person or persons shall have been taken and
brought before him, to take the testimony of any witness who may
be offered to prove. the offense charged, in the presence of the
accused, who may, in person or by counsel, cross-examine such wit-
ness. The testimony so taken shall be signed by the witness, and
be certified by the magistrate, and in case such magistrate shall
commit the accused to answer the charge, he shall immediately
thereafter file the testimony so taken with the district attorney of
the county in which the offense was committed, to be used on the
trial of or any further proceedings against the accused; and the
testimony so taken shall be deemed valid and competent for that
purpose, and be read and used: with the like effect as if such witness '
were orally examined on such trial or proceedings. After the testi-
mony of any witness shall be so taken, he shall not be detained,
nor be imprisoned, or compelled to give any recognizance for his
future appearance as a witness on any trial or proceeding there-
after to be had in the premises.
. 462 Rarirvavs in New York Ciry; Parapss.

 

Miscellaneous Railroad Laws.

 

L. 1860, Ox. 10.
An Act relative to railroads in the city of New York.

Rights of certain railroads confirmed.

Secrion 1. It shall not be lawful hereafter to lay, construct or
operate any railroad in, upon or alorig any or either of the streets
or avenues of the city of New York, wherever such railroad may
commence or end, except under the authority and subject to the
regulations and restrictions which the legislature may hereafter
grant and provide. This section shall not be deemed to affect the
operation, as far as laid, of any railroad now constructed and duly
authorized. Nor shall it be held to impair, in any manner, any
valid grant for or relating to any railroad, in said city, existing on
the first day of January, 1860.

L. 1872, Cu. 590.

An Act to regulate processions and parades in the cities of the
State of New York. -

No procession or pataae to interfere with free passage of cars upon
street railways.

Section 1. No procession or parade shaH use any street upon
the surface of which is a railway track or tracks by marching upon
the said track or tracks, and a free passage of cars upon railway
tracks shall not be interfered with by the formation, halt or march
of any such procession or parade, or of the persons composing it.
Whenever any procession shall find it necessary to march across a
railway track, the portion of said procession which in so marching
is likely to stop the passage of any car or cars upon said track, shall
come to a halt in order to permit said car to proceed.

* * * * * * *
Penalty.

§ 4. Every person willfully violating any provision of this act

shall be guilty of a misdemeanor, punishable with a fine not exceed-

ing $20, or imprisonment not exceeding ten days, or both at the
‘discretion of the court.
_Execrion or Dirxcrors; Oanau Corporations. 463

Miscellaneous Railroad Laws.

e

L. 1881, Ou. 317.

An Act to authorize a change, in certain cases, of the time for
holding elections in railroad companies.

Companies may change time for holding elections.

Section 1, Any railroad company, the time for the annual
election of directors in which is now fixed for any day in the month
of June, may by a vote of a majority of the stock, either in person
or by proxy, thereof to that effect, and filing in the office of the
secretary of State a copy' of such proceedings, certified by the
secretary of the company under its corporate seal, change the time
for holding such annual election to any day in the month of April;
provided, however, that the first election held under such resolution
shall be held in the month of April which shall precede the time
at which such election would otherwise have been held.

L. 1881, On. 459.

" An Act to authorize corporations owning canals to construct and
operate railroads along side of or in lieu thereof.

‘Corporation owning canal may construct railroad.

Section 1. It shall be lawful for any corporation of this State
‘owning and operating a canal to construct and operate along or in
lieu of such canal a railroad, and the exercise of the authority
hereby conferred shall not be deemed to forfeit or impair its cor-
‘porate rights under its charter or act of incorporation.

Corporate powers.

§ 2. Such company, in the construction and maintenance of
.any such railroad under the authority of this act, shall have, possess
and enjoy all the powers and privileges contained in an act entitled
““ An act to authorize the formation of railroad corporations and to

regulate the same,” passed April 2, 1850, and the several acts
samending the same,-and be subject to all the duties, liabilities and
provisions.so far as relates to any powers or privileges by this act
upon said company conferred and hereafter exercised.

Not authorized to construct railroad in any other locality.

§ 3. Nothing in this act contained shall authorize the con-
‘struction of afy railroad except upon or along such canal owned
cand operated by any such company, and not in any other locality.
464 Burning O1rs 1x Cars anp Boats; Concernine Tramps.

Miscellaneous Railroad Laws.

L. 1882, Cu. 292
* * * * * * *
Oils that ignite below 300 degrees Fahrenheit not to be burned in cars. ‘

Sxcrion 2. No oil or burning fluid, whether composed wholly
or in part of coal oil and petroleum or their products, or other
substance or material, which will ignite at a temperature below
three hundred degrees by the Fahrenheit thermometer, shall be
burned in lamp, vessel, or other stationary fixture of any kind, or-
carried as freight, in any passenger or baggage car or passenger:
boat moved by steam power in this State, or in any stage or street
car drawn by horses. Exceptions as regards the transportation of
coal oil, petroleum and its products, are hereby made when the same-
is securely packed in barrels or metallic packages, and permission.
is hereby granted for its carriage in passenger boats moved by
steam power when there are no other public means of transporta-
tion. Any violation of this act shall be deemed a misdemeanor and’
subject the offending party or parties to a penalty not exceeding
three hundred dollars, or imprisonment not exceeding six months,
at the discretion of the court.

* * * * * * *

§ 5. It shall be the duty of all district attorneys of the counties:
in this State to represent and prosecute in behalf of the people,
within their respective counties, all cases of offenses arising under-

the provisions of this act.
* * * * * * +

See, also, L. 1896, ch. 876, § 24, page 593, post.

L. 1885, Cx. 490.
An Act concerning tramps.

Penalty for entering building without consent.

Srorron 4. Any tramp who shall enter any building against
the will of the owner or occupant thereof, under such circumstances.
as shall not amount to burglary, or willfully or maliciously injure
the person or property of another, which injury under existing law
does not amount to a felony, or shall be found carrying any fire-
arms or other dangerous weapon, or burglar’s tools, or shall threaten
to do any injury to any person or to the real or personal property
of another, when such offense is not now punishable by imprison-
ment in the State prison, shall be deemed guilty of felony, and on
conviction, shall be punished by imprisonment in the State prison:
at hard labor for not more than three years.
Revative to Mirx Cans; Resate Tickets.. 465

Miscellaneous Railroad Laws.

L. 1887, Cx. 401.
An Act in relation to milk cans.

‘Rights of railroad superintendents in relation thereto.

Szotton 11. The owner or owners, dealer or dealers, shipper or
shippers, and the several superintendents of the various railroad
-companies and the branches and connections thereof, and steamboat
lines operating their lines, or any portion thereof in the State of
.New York, or elsewhere, shall have power to collect, gather and
take into possession from any person or persons within the State of
New York, or wherever found in said State, any such milk,or cream
can or cans, and shall have power to appoint an agent therefor.

“What shall constitute evidence of appointment of agent.

§ 12. The certificate of any superintendent of any of the rail-
‘road companies or steamboat line. mentioned in this act, or other
‘person or persons authorized thereto, in this. act, appointing an
agent to collect such can or cans duly acknowledged before a notary
public, shall be presumptive evidence of the authority of such
agent.

-Powers of such agent.

§ 13! Such agent shall have full power sto collect, gather and
take into his possession from any person or persons, or wherever
‘found, any such milk or cream can or cans, and in case of resistance
may call to his aid the ‘assistance of any constable or police officer,
swho shall assist him to take possession of such can or cans.

L. 1889, On. 38.
An Act to regulate the payment of fares upon railroads.

“Extra fare; rebate tickets. j

Suction 1. It shall be lawful for any company owning or
-operating a steam railroad in this State, to demand and collect an
-excess charge of ten cents over the regular or established rate of
fare, from any passenger who pays fare in the car in which he or
she may have taken passage, except where such passage is wholly
within the limits of any incorporated city in this State, provided,
“however, that it shall be the duty of such company to give to any
passenger paying such excess, a receipt or other evidence of such
‘payment, and which shall legibly state that it entitles. the holder

30
466 Ramways on Counry Roaps; Cuane@s or Gavez.

Miscellaneous Railroad Laws.

thereof to have such excess charge refunded, upon the delivery of
the same at any ticket office of said company, upon the line of their
railroad,-and said company shall refund the same upon demand}.

jand provided further that this act shall not apply to any passenger
taking passage from a station or stopping place when tickets can-
not be purchased during half an hour previous to the schedule time-
for the departure of said train on which such passenger takes.

passage.

L. 1890, Cu. 555.

‘An Act to provide for the improvement and maintenance of the
public roads in certain counties as county roads.

Construction of horse, electric or other railways.

‘Sxctron 7. No horse railway or electric or other railway shall
be laid, constructed or operated on said county roads, unless, in.
addition to the requirements of existing laws, the same shall be
authorized by a two-third vote of the board of supervisors and’
unless the same shall be constructed with a flat or grooved rail, and'
in case of horse railways, paved between the tracks in the manner
prescribed by the board of supervisors in the resolution authorizing:
the same and the same constantly maintained in good order and!
condition by said railroad company, and the railroad or corporation.
constructing the same shall agree thereto, and it shall be the duty
of the said board of supervisors to require from said railroad or
corporation, or other person, a bond with sufficient sureties as a-
guarantee, and conditioned for the performance of their agreement,
and the board of supervisors may, from time to time, require such
bond to be renewed in case the sureties or any of them, in its judg-
ment, shall become insufficient.

L. 1891, Cu. 267.
An Act to authorize change of gauge on railroads and to provide.
for an increase of floating and bonded indebtedness.
Change of gauge; bonds.

Szorton 1. Any railroad company incorporated under chapter
one hundred and forty of the laws of eighteen hundred and fifty,
entitled “ An act to authorize the formation of railroad corporations
and to regulate the same,” and acts amendatory thereof and supple-
Exzvatep Roaps; ABANDONMENT, 467

 

Miscellaneous Railroad Laws.

 

mentary thereto, may change the gauge of its road on consent of
the board of railroad commissioners and approval of the stock-
holders of said railroad company owning three-fourths in amount
of the capital stock, said approval of said stockholders to be made
at a special meeting of the stockholders of said company called for
that purpose; and upon like consent of said board of railroad com-
missioners, and upon like approval of the stockholders of said rail-
road company owning three-fourths in amount of the said capital
stock of said company, the floating and bonded indebtedness of
said railroad company may be increased to an amount necessary to
make such change of gauge and to provide for the operating
expenses of said railroad, notwithstanding restrictions or limitations
contained in the original certificate’ of incorporation of said railroad -
company.

L. 1891, Cu. 294.
An Act in relation to elevated railways in cities.
Abandonment of part of route by elevated railroad.

Srotion 1. Any company operating an elevated railway or rail-
ways in any city of this state for the transportation of passengers,
mails or freight, and which, prior to the passage of this act shall
have built and operated six-tenths of its route as set forth and
embodied in its articles of incorporation, may declare relinquished
and abandoned any portion of its said route, which it may deem
no longer necessary for the successful operation of its road and the
convenience of the public. Such declaration of abandonment to be
valid, shall be adopted by the board of directors, under the seal
of such company, and shall be submitted to the stockholders
thereof at a meeting called for the purpose of taking the same into
consideration. Due notice of the time and place of holding said
meeting, and stating the object thereof shall be given by the com-
pany to its stockholders by written or printed notices addressed to
each of the persons in whose name the capital stock of the company
stands on the books thereof, at the address of such persons as stated
on the books, or as known to the secretary of the company, and
delivered or mailed to such persons, or the legal representatives of
such persons, respectively, at least thirty days before the time of
holding the meeting of such company, and also by a general notice ©
published daily for at least four weeks in some newspaper last
designated for the publication of the session laws or of judicial pro-
ceedings and legal notices in the county where the route of such
468 Tunnets; Liautine AND VENTILATION.
Miscellaneous Railroad Laws.

company is located; and at the said meeting of stockholders the
declaration of the said directors shall be considered and a vote by
ballot taken for the adoption or rejection of the same, each share
entitling the holder thereof to one vote, and said ballots shall be
cast in person or by proxy, and if two-thirds of all the votes of the
stockholders cast in person or by proxy at said meeting shall be for
the adoption of said declaration of abandonment, then that fact
shall be certified thereon by the secretary of the company under the
seal thereof, and the declaration so adopted shall be submitted for
approval to the state board of railroad commissioners, and if
approved by them, such approval shall be indorsed thereon, and the
said declaration so certified and indorsed shall be filed and recorded
in the office of the secretary of state, and from the time of such
filing such portion of said route designated, in such declaration of
such company shall be deemed to be abandoned. <A copy of such
declaration of abandonment, duly certified by the secretary of state,
under his official seal, shall be presumptive evidence in all courts
and places of the facts which it recites, and of the regularity of the -
proceedings resulting in such abandonment.

 

 

L. 1891, Cx. 360.

An Act to confer upon the board of railroad commissioners of the
state of New York authority to compel the lighting and ventila-
tion of all tunnels within this state which are used by steam
railroads.

Ventilation of tunnels.

Szorron 1. The board of railread commissioners of the state
are hereby authorized, empowered and given full and complete
authority to require and compel all tunnels used or to be used by
railroads operated by steam in this state to be properly ventilated,
in such manner and by such means and mechanical appliances as
said board of railroad commissioners, or a majority of the same,
may direct. ;
Lighting.

§ 2. The board of railroad commissioners of this state are also
hereby authorized, empowered and given full and complete author-
ity to require and compel all tunnels used or to be used by railroads
operated by steam in this state, to be properly lighted by electricity
or otherwise, or by such means or in such manner as said board
of railroad commissioners, or 9 majority of the same, :nay direct. «
Tunnets; Lianting AND VENTILATION. 469

Miscellaneous Railroad Laws.
Notice.

§ 38. Whenever said board of railroad commissioners of this
state, or a majority thereof, shall cause to be personally served upon
any railroad corporation controlling any tunnel, or part of a tunnel, .
in this state for the purpose of operating a railroad or moving, haul-
ing or propelling cars therein by steam by delivering a copy per-
sonally to the president, general manager or any director of said
corporation of a notice or order, signed by a majority of said board
-of railroad commissioners, stating and specifying the structures
to be erected, the manner, means, mechanical appliance and appar-
atus to be used in lighting or ventilating any tunnel or tunnels
‘used by said corporation for the purpose of moving, hauling or
propelling cars by steam therein as aforesaid, said corporation shall,
within thirty days from and after the service of said notice or order
as aforesaid, cause said tunnel or tunnels so used by it as aforesaid
to be lighted or ventilated, or both, in the manner and by the means
and use of the mechanical apparatus and appliances specified and
pointed out in said notice or order. :

Mandamus.

§ 4. After the expiration of thirty days from the service of said
order or notice specified in the preceding section, as therein directed,
if said corporation shall not have fully complied with the provisions
and requirements of said notice or order as aforesaid and as therein
directed and required, said board of railroad commissioners, or a
majority of said board, may apply to the supreme court of this state
for a writ of mandamus to compel said corporation or corporations
so neglecting or refusing to obey and comply with the provisions
of said order or notice to comply with and obey the provisions and
requirements of said notice or order, and said court shall have full
power and authority to hear and determine said matter, and, after
giving the corporation or corporations proceeded against an oppor-
tunity to be heard in its or their defense, to compel said corporation
or corporations so proceeded against to obey said order or notice,
and forthwith comply with and carry out the provisions and require-
ments therein contained.

Violation; penalty.
§ 5. Every corporation violating any of the provisions of this
act shall be guilty of a misdemeanor, and may be indicted therefor,

and may be compelled to appear and plead to an indictment therefor
in the person of its president, secretary, treasurer or any director
470 Tonnets; Licutine anD VENTILATION.

 

Miscellaneous Railroad Laws.

 

thereof, and a bench warrant may issue out of any competent court.
to compel such attendance and pleading, and, upon conviction
thereof, punished by a fine of one thousand dollars, and an addi-
tional fine of five hundred dollars a day for each and every day
or part of a day after thirty days from the due service of said notice
or order that said corporation shall refuse or neglect to obey and
carry out the requirements and provisions of the same, and duly
‘sentenced to pay the same.

Enforcement of penalty.

§ 6. It shall be the duty of the district attorney prosecuting
any corporation for a violation of any of the provisions of this act,
that shall be convicted thereof and sentenced to pay a fine therefor,
to cause a judgment-roll to be made up, consisting of the indictment
orders and sentence of the court and a formal judgment, to be pre-
pared by him, which judgment shall be duly signed by the clerk
of the county in which said trial took place; said judgment-roll
shall be filed by said county clerk and said judgment shall be duly
recorded in the book of judgments in said county, and duly.entered
and docketed by said county clerk in said county the same as if said
judgment had been obtained in a civil action, and said judgment so
duly entered and docketed- shall become and be a lien upon all of
the real estate of said corporation against which the same is
obtained, and the collection thereof may be enforced by execution
to be issued and signed by the district attorney of the county where
the trial of said indictment took place, in the same manner and to
the same extent as executions are collected in civil action.

°

Mechanical devices; approval of.

§ 7. In cities in this state having a population of one million
inhabitants or over, where tunnels are or may hereafter be oper-
ated or controlled by any railroad corporation such portions of any
mechanical or other devices or appliances as may be required under
the provisions of this act to be constructed on or above the surface
of any streets, avenues or other places under which such tunnels
may be built, shall be subject as to form, material and construction,
to the approval of the local authorities of such cities, except that
in the city of New York such approval shall be by a majority vote
of the mayor, the comptroller, the commissioner of publie works
and the president of the department of public parks of said city.
Raitways in anp Near Parks. 471.

Miscellaneous Railroad Laws.

L. 1892, Cx. 367.
An Act in relation to Madison avenue in the city of New York.

Railroads on said avenue; consent of property owners required.

Section 1. None of the provisions of existing law nor any pro-
-ceedings thereunder shall authorize the construction, maintenance-
or operation of any elevated or underground railway upon or under
‘Madison avenue in the city of New York, or any portion of the:
bame, except that the consent of a majority of the owners of prop-
erty, in number and value thereof, bounded on said Madison ave-
nue, be first obtained in writing duly acknowledged as are deeds.
entitled to be recorded.

L, 1892, Cu. 425.
‘An Act to authorize the state engineer and surveyor to file certain
reports with the board of railroad commissioners.
(The above-entitled act was repealed by L. 1896, ch. 548.)

L. 1892, Cu. 488.
‘An Act for the protection, preservation, and propagation of birds,
fish and wild animals in the state of New York and the different
counties thereof.

(For provisions of said act, regulating the transportation of certain
game, see pages 242-248.) S

L. 1892, Ca. 532.
‘An Act relative to railways in and near public parks in the cities
of the State of New York.
Parks; construction of railroads in.

Suction 1. For the purpose of providing for the more speedy
transportation of persons across public parks in the cities within
the state of New York having a population of one million five hun-
idred thousand or upwards it shall be lawful for the municipal
authorities, officers, departments, or boards having control of such
parks to construct railways in and upon tunnels or roads or ways
depressed below the surface of said parks in such cities in this
state, and to extend the same east or west to connect with any sur-

~ face railways in such cities, now in existence, and with railways
A472 Raitways in anp Near Parks.

7 Miscellaneous Railroad Laws.

which hereafter may be built by companies now chartered and
existing, and to contract in the name of such cities with any person
or corporations for the construction thereof, and for the equipment
and running of the same either with or without public advertise-
ment upon such terms and conditions, including the rates of fare
to be charged to persons using such railways, for such compensa-
tion to be paid to such cities, and subject to such rules, regula-
tions and requirements as may be determined upon in said con-
tract, and as the department or board, or officer having charge of
said parks may, from time to time, thereafter establish or impose.

Owners of property adjoining parks; consents of.

§ 2. No railroads shall be constructed, equipped or operated
‘by virtue of this act except upon the condition. that the consent
of the owners of one-half in value of the property outside of said
public parks bounded on and the consent also of the local authori-
ties having the control of that portion of a street or highway upon
‘which it is proposed to construct, operate or extend the said rail-
roads to connect with any gurface railroads in such cities be first
obtained, or in case the consent of such property owners can not
be obtained, the general term of the supreme court in the district
in which it is proposed to be constructed may, upon application,
appoint three commissioners, who shall determine, after hearing
‘of all parties interested, whether the portion of such railroad out-
side of said public parks ought to be constructed or. operated, and
their determination confirmed by the court may be taken in lieu
-of the consent of the property owners. ;

‘Construction; expense of.

§ 3. Whenever any railroad shall be constructed, equipped or
operated under this act, the expense of such construction, equip-
ment and operation shall be paid by the municipal corporation
within which such railroads are situate, in the same manner as the
‘other expenses of such municipal corporation are paid and pro-
vided for. ‘

‘Construction and operation; agreement for.

§ 4. The department, board or officer having control of such
public parks may agree with the person or corporation with whom
any contract may be made for the construction, equipment and
‘operation of said railroad that the cost of such construction shall
be paid by such cities in installments out of the compehsation which
‘such person or corporation shall agree to pay to such cities under-
Rewer or Cerrar Street Rariroaps. 473.

 

Miscellaneous Railroad Laws.

any such contract from time to time and such compensation shall
be received.

Income from railroad.

§ 5. The compensation or income which shall be received by.
such cities from such railroad, except as the same may be other-
wise ‘applied pursuant to the provisions of this act, shall be paid
into the treasury thereof.

Motive power.

§ 6. Any railroad constructed, equipped and operated under
this act may operate any portion of its road by animal or horse
power, or by cable.

New York city; supervision of construction in.

-§ 7. Whenever any railroads shall be constructed in the city
of New York under the provisions of this act such railroads shall
be constructed by the department of public parks of said city with
the concurrence of the sinking fund commissioners of said city.

Bonds, when to be issued.

§ 8. Whenever any such railroad shall be constructed, equipped
and operated under the provisions of this act in the city of New
York, should no such agreement be made as is provided in the
fourth section of this.act, it shall be the duty of the comptroller
of said city from time to time upon the request of the sinking fund
commissioners to issue bonds or stock of the city in the aggregate
sufficient to pay the expense of such construction, equipment or
operation which said bonds or stock shall be paid out of taxation in
not more than ten years from the date of their issue and shall bear
interest not exceeding four per centum per annum and shall be
sold at not less than par, and the cost of constructing, equipping
and operating such railroads shall be paid out of the proceeds of
such bonds or stocks. .

L. 1892, Cu. 604.

‘An Act for the relief of street surface railroad companies organized
under chapter two hundred and fifty-two of the laws of eighteen
hundred and eighty-four.

Extensions and branches.

Sxorion 1. Any street railroad company now organized under
-chapter two hundred and fifty-two of the laws of eighteen hundred
AT4 Montoreat Ar Bonps.

Miscellaneous Railroad Laws.

and eighty-four, which shall have heretofore constructed and is
now operating any extension or branch of its railroad along any
streets or highways or portion thereof within any county named
in its articles of association, in a city not exceeding in population
fifty thousand inhabitants, and shall heretofore have obtained the
consent of the owners of one-half in value of the property bounded
on and the consent also of the local authorities having control of
that portion of a street or highway upon which it has constructed
or operated such railroad, is hereby authorized to operate and main-
tain the same respectively in like manner and as fully as if the
said streets and highways, or portions thereof, were fully named
and described in its articles of association, and up@n filing in the
office of the secretary of state a certificate signed by its board of
directors, which certificate shall contain a statement of the names
of cities, towns, villages and counties, and the names or descriptions
of the streets, avenues and highways in which such extension or
‘branch has been constructed the places from and to which the same
thas been constructed and is to be maintained and operated, and the
length thereof, as near as may be; thereupon the said extensions
cand branches shall be deemed and considered a part of the lines of
railway of such corporation from the date of the filing thereof,
with the same force and effect as if the same were fully named
and described in its original articles of association, and all corporate
action relating to the construction, maintenance and operation of
such extensions or creating liens upon the same by the said cor-
poration, are hereby validated and confirmed.

§ 2. Nothing in this act contained shall affect or impair any
vested right or any pending litigation.

See Railroad Law, section 90.

L. 1892, Cu. 685 (Tue Generat Mounicrpat Law).

An Act in relation to municipal corporations, constituting chapter
seventeen of the general laws.

Municipal taxes of railroads payable to the county treasurer.

Sxction 12. If a town, village or city has outstanding unpaid
bonds, issued or substituted for bonds issued, to aid in the construc-
tion of a railroad therein, so much of all taxes as shall be neces-
sary to take up such bonds, except school districts and highway °
taxes, collected. on the assessed valuation of such railroad in such
municipal corporation, shall be paid over to the treasurer of the
county in which the municipal corporation is located. Such treas-
Monicreat Arp Bownns. 475

 

Miscellaneous Railroad Laws.

,

-urer shall purchase with such moneys of any town, village or city, such bonds,
when they can be purchased at or below par, and shall immediately cancel
them in the presence of the county judge. If such bonds can not be purchased
at or below par, such treasurer shall invest such moneys in the bonds of the
United States, of the State of New York, or of any town or village or city
of such state, issued pursuant to law; and shall hold such bonds as a sinking
fund for the redemption and payment of such outstanding railroad aid bonds.
If a county treasurer shall-unreasonably neglect to comply with this section,
any taxpayer of the town, village or city having so issued its bonds may
apply to the county judge of the county in which such municipal corporation
is situated, for an order compelling such treasurer to execute the provisions
-of this section. Upon application of the town board of any town, the board
-of supervisors of the county in which said town is situated may authorize.
“payment by the county’ treasurer ofall moneys thus paid to him in any year
‘by tlie railroads mentioned in this section, to the supervisor of such town, for
its use and benefit; to be applied either to the purchase of outstanding rail-
‘road aid bonds or the payment of interest thereon and any payment hereto-.
fore made in good faith by the treasurer of any county to any town or to the
-supervisor thereof, of the taxes received, in any year by such treasurer, from
railroad corporaticns in that town is hereby validated. The county treasurer
-of any county in which one or more towns therein shall have issued bonds for
railroad purposes, shall when directed by the board of supervisors or county
judge of the county, execute and file in the office of the clerk of the county an
undertaking with not less than two sureties, approved by such board or judge,
to the effect that he will faithfully perform his duties pursuant to this section.
‘The annual report of a county treasurer shall fully state, under the head of
“ railroad sinking fund ” the name and character of all such investments made
-by him or his predecessors, and the condition of such fund.

(Thus amended by L. 1893, ch. 466; L. 1903, ch. 515.)
Abolition of office of railroad commissioners.

§ 18. The board of supervisors of any county may, upon the.
-application of the auditing board of any municipal corporation
‘thereifi, by resolution, abolish the office of railroad commissioners
-of such municipal corporation, and direct the manner of the trans-
‘fer of their duties to the supervisor of the town, or the treasurer
-of the municipal corporation other than a town, and upon his com-
pliance with such directions, such transferee shall be vested with all
‘the powers conferred upon such railroad commissioners and subject
‘to all the duties imposed upon them.

-Appointment of railroad commissioners.

§ 14. The county judge of any county within which is a
‘municipal corporation having or being entitled to have railroad
-commissioners, when this chapter shall take effect, and in which
the duties imposed upon such commissioners are not fully per-
formed, shall continue to appoint and commission, upon the appli-
ation of twenty freeholders within such corporation, three persons,
476 Mounicrpan At Bonps.
Miscellaneous Railroad Laws.

who shall be freeholders and resident taxpayers therein, commis-
‘sioners for the purpose of performing the duties and completing
the business required of them pursuant to this chapter or any law.
Such commissioners shall hold their office for five years, and until
others are appointed by the county judge, unless their duties shall
be sooner performed, or the office shall be abolished, who shall
also, in like manner, fill any vacancies that may exist therein. Such
commissioners shall each receive the sum of three dollars per day
for each day actually engaged in the discharge of their duties, and
the necessary disbursements to be audited and paid by the usual
auditing and disbursing officers of such municipal corporation. A
majority of such commissioners, at a meeting of which all have
notice, shall constitute a quorum.

Oath and undertaking of commissioners.

§ 15. Before entering upon their duties such commissioners
shall take the constitutional oath of office, and make and file with
the county clerk of their county, their joint and several under-

taking, with two or more sureties to be approved by the county -

judge of their county, to the effect that they will faithfully dis-
charge their duties as such commissioners, and truly keep, pay over
and account for all moneys belonging to such corporation coming
into their hands.

Exchange or sale of railroad stock and bonds.

§ 16. The commissioners or officers of a municipal corporation,
having the lawful charge and control of any railroad stock or
bonds, for or in payment of which the bonds of such municipal cor-
poration have been lawfully issued in aid of such railroad corpora:
tion, may exchange the stock or bonds of such railroad corporation
for and in payment of such bonds, or the new substituted bonds of

such municipal corporation, when such exchange can be made for °

not less than the par value of the stocks or bonds so held by them.
If they can not make such exchange they may sell such stocks or
bonds at not less than par; but they may, on the application and
with the approval, of the governing board of the municipal cor-
poration, owning such stock and bonds, exchange, sell, or dispose
of such stock or bonds, at the best price and upon the best terms
obtainable, for the municipal corporation they represent, and shall
execute to the purchaser the necessary transfers therefor. All
* moneys received for any stock or bonds shall only be applied to the
payment and extinguishment of the bonds of the municipal cor-
poration, lawfully issued in aid of any such railroad, or substituted

*
Monicirpan Arp Bonps. 477

 

Miscellaneous Railroad Laws,

 

therefor; except that if the bonds so issued or substituted have all
been paid, or the moneys so realized shall be more than sufficient
to pay them in full, and all the costs and expenses of the sale, such
proceeds or balance thereof shall be paid by the officers making the
sale, to the supervisor of the town, or the treasurer of the municipal
corporation, and applied to such lawful uses as the governing board
of the municipal corporation, entitled to the same, may direct. The
‘provisions of this section shall apply to all such commissioners or
officers of a municipal corporation elected or appointed or acting
under the provisions of any special act, and the authority hereby
conferred shall not be limited by the provisions of any such special
act.
(Thus amended by L. 1893, ch. 490.)

Annual report of commissioners and payment of bonds.

§ 17. The commissioners of a municipal corporation, having
in charge the moneys received and collected, and who are respon-
sible for the payment of the interest of the bonds lawfully issued
by such municipal corporation, in aid of railroads, shall annually
report to the governing board of the municipal corporation, the
total amount of the municipal indebtedness of the municipal cor-
poration they represent, upon such bonds or such new bonds sub-
stituted therefor, the date of the bonds and when payable, the rate
of interest thereon, the acts under which they were issued, the
amount of principal and interest that will become due thereon
before the next annual tax levy and collection of taxes for the next
succeeding year, and the amount in their hands applicable to the
payment of the principal or interest thereon. Each year such gov-
erning board shall levy and collect of the municipal corporation
sufficient money to pay such principal and interest, as the same
shall become due and payble. When collected, such moneys, with
the unpaid sums on hand, shall be forthwith paid over to such com-
missioners, and applied by them to the purposes for which collected
or held. When paid, such bonds shall be presented by such com-
missioners to the governing board of the municipal corporation, at
least five days before the annual town meeting, village or city elec-
tion, or meeting of the board of supervisors, next thereafter held,
who shall cancel the same, and make and file a record thereof in
the clerk’s office of the municipal corporation, whose bonds were
so paid or canceled.

(Thuy amended by L. 1898, ch. 466.)
Chapter 330, Laws of 1892, containing provisions similar to the fore
going, was repealed by L. 1893, ch. 466. ‘
‘478 Srreets on Rartroap Lanps.

 

Miscellaneous Railroad Laws.

L. 1892, Cu. 686 (Tue Counry Law).

An Act in relation to counties, constituting chapter eighteen of
‘the general laws.

No street to be laid out across lands held in fee for depot purposes;
streets outside of city limits.

Sxcrion 71. When any territory in a county containing an
incorporated city of one hundred thousand inhabitants, excepting
the towns of Flatbush and New Lots in the county of Kings, has
been mapped into streets and avenues pursuant to law, the board of
supervisors may authorize the establishment of a plan for the grade
of such streets and avenues, laying out, opening, grading, con-
structing, closing and change of line of any one or more of them,
and provide for the assessment on property intended to be bene-
fited thereby, and fixing assessment districts therefor, and for the
levy, collection and payment of the amount of damages sustained
and the charges and expenses incurred, or which may be necessary
to incur in carrying out such provisions, but such last named power
in regard to laying out, opening, grading, constructing and change
of line, of such streets or avenues or defraying’ the expenses thereof,
shall only be exercised on the petition of the property owners, who
own more than one-half of the frontage on any such street or ave-
nue, or on a certificate of the town board and commissioners of
highways of the town, that the same is, in their judgment, proper
and necessary for the public interest. If the streets and avenues,
in respect to which such action is proposed to be taken, shall lie
in two or more towns, a like certificate shall be required of the
town board and commissioners of highways of each town. Before
making such certificate, such town board, or boards and commis-
sioners of highways, shall give ten days’ notice by publication in
one of the daily papers of the county, and by conspicuously post-
ing in six public places in each of such towns, of the time and place
at which they will meet to consider the same, at which meeting
the public, and all persons interested, may appear and be heard
in relation thereto. No such street or avenue shall be laid out,
opened or constructed, upon or across any lands acquired by the
right of eminent domain, and held in fee for depot purposes by
any railroad corporation, or upon or across any lands now held by
a corporation formed for the purpose of improving the breed of
horses, without the consent of such corporations. No town officer
shall charge any thing for his services under this section, nor shall
-

Inrerseorina Rartroaps 479

 

Miscellaneous Railroad Laws.

any charge be made against any such town or the property therein,
for the expense of the publication of the notice herein required.

L. 1893; Ca. 239.

An Act in relation to the intersections and crossings of the tracks
and roadbeds of certain railroads laid in, across or upon the high-
ways, streets, avenues or roads of the cities, towns and villages
of the state.

Szcrion 1. Whenever the railroad or route of any street snr-
face railroad corporation shall intersect and gross, or shall cross the
tracks and roadbed of any railroad, operated by locomotive, steam
or other power, which are laid in, across or upon the surface of any
‘street, avenue, road or highway in any city, town or village of the
state, having less than five hundred thousand inhabitants, and such
street surface railroad corporation having been unable to agree
with the corporation owning the tracks and roadbed‘so intersected
or to be intersected and crossed, as to the line or lines, grade or
grades, points or manner of such intersection and crossing, or
upon the compensation to be made therefor, shall have applied to
the court by petition to appoint commissioners to determine the
‘same, the court shall upon application made by such street surface
railroud corporation, at, or after, the time of the appointment of
such commissioners, or ‘if an answer to the petition of such street
surface railroad corporation has been interposed, ‘at any time there-
after, direct that such street surface railroad corporation, be per-
mitted to lay its tracks across and to intersect, upon the surface
of the street, avenue, road or highway, the tracks and roadbed of
such railroad operated by locomotive, steam, or other power, pro-
vided, such street surface railroad corporation shall at the time of
obtaining such order make and file with the clerk of said court, its
bond or undertaking in writing, in an amount and with surety or
-sureties to be approved by the court, conditioned for the full and
faithful performance by such street surface railroad corporation
-of any and all conditions and requirements which may be imposed
by said commissioners and be affirmed by the court, in determining
the line or lines, grade or grades, points or manner of such inter- ~
-section and crossing and as to the amount of compensation to be
paid therefor, and also conditioned to conform such crossing an¢
intersection made by virtue of such order of the court to the require-
aments made by said commissioners as affirmed by the court.
480 InrersEctine Rartroaps.

 

Miscellaneous Railroad Laws.

 

§ 2. No street surface railroad shall be allowed to lay its tracke
at grade across the tracks or roadbed of any railroad operated by
locomotive steam power at any point where there are three or more
tracks of the steam road proposed to be crossed, which tracks have
been constructed and in operation at least two years, unless the
written consent of the state railroad commissioners be first obtained
for such crossing at grade. But this section shall not affect the
operation of section one of this act in any suit or proceeding now
pending nor any renewals of said pending suit or proceeding
brought for any cause.

See, also, the Railroad Law, 8§ 60-68.

The provisions of this law, permitting a street surface railroad cor-
poration to lay its tracks across and intersect with any railroad operated.
by locomotive, steam or other power, is not in contravention of that
provision of the State Constitution which prohibits the taking of private
property for public use without just compensation. (Buffalo, Bellevue &
Lancaster Ry. Co. v. N. Y., L. E. & W. R. R. Co., 72 Hun, 587.)

This statute, under which a street surface railroad may cross a rail-
road operated by steam, does not make the right to an order directing
the crossing and intérsection dependent upon the appointment of com-
missioners, but declares the right of the petitioner to such order when
an answer to the petition has been interposed. (Geneva & Waterloo Ry.
Co. v. N. Y. C. & H. R. R. R. Co., 90 Hun, 9.)

The purpose of this statute in permitting an application for an order
at the time when an answer is interposed to the petition is to enable a
street railroad company to avoid the delay in laying its tracks which.
would otherwise result from the raising of issues for trial; and, in order
to vacate such an order, the defendant must show by affidavit or other-
wise that the proceedings have been in some respect irregular or not
authorized by the statute. (Geneva & Waterloo Ry. Co. v. N. Y. C. & B,
R. R R. Co.. 90 Hun, 9.)

The intersection of a railroad made pursuant to an order made on a
petition under this act is for the time being provisional, and its per-
manency depends upon the result of the pending proceedings. (Geneva
& Waterloo Ry. Co v.N. Y. C. & H. R. R. R. Co., 90 Hun, 9.)

Where a railroad corporation has laid its tracks across a highway, it
has there only an easement to be enjoyed in common with the public,
and the intersection of its tracks by those of a street railroad is an act.
in the interest of the public and does not in any substantial manner
interfere with the use of the highway by the railroad which first laid its.
tracks thereon. (Geneva & Waterloo Ry. Co. v. N. Y. C. & H. R. R. R.
Co., 90 Hun. 9.)

This act is not in contravention of that provision of the Constitution
which prohibits the taking of private property for public use without
just compensation; the right to compensation rests upon the statute and
not upon the constitutional provision. (Buffalo, Bellevue & Lancaster
Ry. Co. v, N. Y., L, H. & W. R. R. Co., 72 Hun, 587.)
Forest Fires; Prevention or. 481

 

Miscellaneous Railroad Laws.

 

L. 1895, Cu. 395.

An Act to amend the game law and to repeal chapter three hun-
dred and thirty-two of the Laws of eighteen hundred and ninety-
three, entitled “An Act in relation to the forest preserve and
Adirondack park, constituting articles six and seven of chapter
forty-three of the general laws.”

‘Duties of railroad companies.

' Sxorron 275. Every railroad company whose road passes
through waste or forest land or lands liable to be overrun by fires
within the State, shall twice in each year cut and remove from its
right of way all grass, brush or other inflammable materials, but
under proper care and at proper times when fire, if set, can be
kept under control. All locomotives which run gional forest
lands shall be provided with approved and sufficient arrangements
for preventing the escape of fires from their furnaces or ashpans,
and with netting of stéel or iron wire upon their smoke stacks to
prevent the escape of sparks of fire, and every engineer and fire-
man employed upon a locomotive shall see that the appliances to
prevent the escape of fire are in use and applied as far as it can be
reasonably and practically done. No railroad company shall per-
jit its employes to deposit fire coals or ashes upon their track in
the immediate vicinity of woodlands, or lands Tiable to be over-
run by fires, and where any engineers, conductors or trainmen
discover that fences or other material or substances along the right
-of way upon woodlands adjacent to the railroad are burning, or in
‘danger from fire, they shall report the same at their next stopping
place, and the person in charge of such station shall take prompt
measures to extinguish such fires, and shall immediately notify
the nearest fire warden or fish and game protector and forester. In
seasons of drought and especially during the first dry time in the
‘spring after the snows have gone, and before vegetation has revived,
railroad companies shall employ a sufficient number of trackmen
for the prompt extinguishment of fires; and where a forest fire is
raging near the line of their road they shall concentrate such help
and adopt such measures as shall most effectually arrest its pro-
gress. ’ Tf any railroad company or any of its employes violate any
provision of this section the company shall forfeit to the people
of the State the sum of one hundred dollars for every such
violation.

The foregoing provisions were formerly contained in L. 1885, ch. 288,
sections 25, 26, 27, 28, 29, and subsequently in L. 1893, ch. 332.

31
482 Arr Braxes.

Miscellaneous Railroad Laws.

 

 

L. 1893, Cx. 543.

‘An Act to promote the safety of railway employes by compelling
the equipment of freight cars with continuous power or air
brakes, and locomotives with driving-wheel brakes.

Szctiow 1. That from and after the first day of January, eigh-
teen hundred and ninety-five, it shall be unlawful for any railroad
company to use within the state on its line or lines any locomotive
engine not equipped with a power driving-wheel brake and appli-
ances for operating the train brake system.

§ 2. That on and after the first day of January, eighteen hun-
dred and ninety-eight, the use of cars known and designated as
“coal jimmies ” in any form shall be unlawful within the state,
except upon any railroad whose main line is less than fifteen
miles in length and whose average grade exceeds two hundred
feet to the mile, under a penalty of one hundred dollars for each
offense, said penalty to be recovered in an action to be brought by
the attorney-general in the name of the people and in the judicial
district where the principal office of the company within the
state is located. This section shall not be construed to au-
thorize the interchange of such “coal jimmies,” with, and the
use thereof upon; railroads of more than fifteen miles in length:
or whose average grade is less than two hundred feet to the
mile. -

(Thus amended by L. 1896, ch. 486; L. 1900, ch. 549.)

§ 3. That on and after the first day of January, nineteen hun-
dred and one, it shall be unlawful for any railroad or other com-
pany to haul or permit to be hauled or used on its line or lines.
within this state any freight train that has not a sufficient num-
ber of cars in it so equipped with continuous power or air brakes.
that the engineer on the locomotive drawing such train can con-
trol its speed without requiring brakemen to use the common hand:
brake for that purpose.

(Thus amended by L. 1900, ch. 549.)

§ 4. That within sixty days from the passage of this act every
railroad or other company operating a line of railroad within the
state shall file with the board of railroad commissioners at its office
in Albany a verified statement of the total number of freight cars
owned or operated by it, the number of such cars equipped with
such continuous power or air brakes and the number unequipped,
Avtromatic CouPLERSs. 483

 

\ Miscellaneous Railroad Laws.

 

and shall thereafter annually and in the month of January, for
the ensuing ten years, file with the said board a verified report of
the number of cars so equipped in each year and the number of
cars, if any, remaining unequipped.

§ 5. That on and after January first, nineteen hundred and
one any railroad or other company hauling or permitting to be
hauled on.its line or lines any freight train in violation of any of
the provisions of this act, shall be liable to a penalty of one hun-
_.dred dollars for each and every violation, to be recovered in any
action to be brought by the attorney-general in the name of the
people and in the judicial district wherein the principal office
of the company within the state is located, and it shall be the
duty of the board of railroad commissioners of the state to
notify the attorney-general of all such violations coming to its
notice.

(Thus amended by L. 1900, ch. 549.)

§ 6. That the board of railroad comimissioners may, from time
to time, after full hearing given and for good cause shown, extend
the time within which any company shall comply with the require-
ment of this act, not exceeding, however, four years from the first
day of January, eighteen hundred and ninety-eight.

(Thus amended by L. 1900, ch. 549.)

L.. 1898, Cu. 544.

‘An Act to promote the safety of railway employes by compelling
the equipment of freight cars with automatic couplers.

Szction 1. That from and after the passage of this act, every
new freight car which is to be used in this state shall be equipped
with couplers of the master car builders’ type, which can be coupled
automatically by impact, and which may, except in cases of acci-
dent, be uncoupled without the necessity of a person going between
the cars.

§ 2. That from and after the passage of this act, in addition to
such new freight cars, there shall. be equipped each year with
such couplers, by every company operating a line or lines of rail-
‘ road. within the state, at least twenty per centum of all freight
cars owned or operated by such companies, and used within the-
state, which are not so equipped, except certain cars known and
designated as “coal jimmies,” and that on and after the first day
484 Automatic CouPLERs.

Miscellaneous Railroad Laws.

of January, eighteen hundred and ninety-eight, the use of said
“eoal jimmies” in any form shall be unlawful within this state,
except upon any railroad whose main line is less than fifteen miles
in length and whose average grade exceeds two hundred feet to
the mile, under penalty of one hundred dollars for each offense,
said penalty to be recovered in an action to be brought by the
attorney-general, in the name of the people, and in the judicial
district where the principal office of the company within the state
is located. This section shall not be construed to authorize the |
interchange of such “coal jimmies” with, and the use therefor
upon, railroads of more than fifteen miles in length or whose aver-
age grade is less than two hundred feet to the mile.

(Thus amended by L. 1896, ch. 485.)

p

§ 8. That on and after the first day of January, eighteen hun-
dred and ninety-eight, it shall be unlawful for any railroad or
other company to haul, or permit to be hauled or used, on its line
or lines within the state, any freight car not equipped with couplers
of the master car builders’ type, and coupling automatically by
impact, and which can be uncoupled, except in cases of accident,
without the necessity of men going between the ends of the cars.

§ 4. That within sixty days from the passage of this act, every
railroad or other company operating a line of railroad within the
state, shall file with the board of railroad commissioners, at its office
in Albany, a verified statement of-the total number of freight cars
owned or operated by it, the number of such cars equipped with the
automatic couplers, and the number unequipped; and shall there-
after annually, and in the month of January, for the ensuing five
years, file with said board a verified report of the number of cars so
equipped in each year, and.the number of cars, if any, remaining
unequipped.

§ 5. That on and after January first, eighteen hundred and
ninety-eight, any railroad or other company using, or permitting to
be used, on its line or lines, any freight car not equipped with
- couplers as provided for in this act, shall be liable to a penalty
of one hundred dollars for each and every violation, to be recov-
ered in an action to be brought by the attorney-general, in the
name of the people, and in the judicial district wherein the prin-
cipal office of the company within the state is located; and it shall
be the duty of the board of railroad commissioners of the state
to notify the attorney-general of all such violations coming to its
notice.
Buran Permits. 485

Miscellaneous Railroad Laws.

 

§ 6. That the board of railroad commissioners may, from time
to time, after full hearing given and for good cause shown, exempt
any company from the provisions of this act, as to the equipment

‘of twenty per cent of its cars in any particular year or years, and
may extend the time within which any company shall comply with
the requirements of this act, not exceeding, however, five years
from the first day of January, eighteen hundred and ninety-eight.

L. 1893, Cz. 661.

An Act in relation to the public health, constituting chapter
twenty-five of the general laws.

(This act repeals L. 1886, ch. 329, entitled “‘ An act to prevent the spread
of contagious and infectious diseases.’’)

* * * * * * *

Burial and burial permits.

Srction 23.- Every such local board shall prescribe sanitary
regulations for the burial and removal of corpses, and shall desig-
nate the persons who shall grant permits for such burial, and
permits for the transportation of any corpse which is to be carried
for burial beyond the county where the death occurred. Every
undertaker, sexton or other person havirig charge of any corpse,
shall procure a certificate of the death and the probable cause duly
certified by the physician in attendance upon the deceased during
his last illness, or by the coroner where an inquisition is required
by law, and if no physician was in attendance, and no inquest has
been held or required by law, an affidavit stating the circumstances,
time and cause of death, and sworn to by,some creditable person
known to the officer granting the permit, and there shall be no
burial or removal of a corpse until such certificate or affidavit has
been presented to the local board or to the person designated by it,
and thereupon a permit: for such burial or removal .has been
obtained. When application is made for a permit to transport a
corpse over any railroad or upon any passenger steamboat within
the state, the board of health, or the officers to whom such applica-
tion is made, shal] require such corpse to be inclosed in a hermeti-
cally sealed casket of metal or other indestructible material, if the

" eause of death shall have been from a contagious or infectious
disease.

\
486. Former Extensions.

Miscellaneous Railroad Laws.

L. 1893, Cu. 679.
An Act for the relief of street surface railroad companies.

Extensions or branches heretofore constructed; operation of authorized.

Szcrion 1. Any street surface railroad corporation which shall
have heretofore constructed and is now operating any extension or
branch of its railroad along any streets or highways or portion
thereof in a city having less than fifty thousand inhabitants, or in
any town adjoining such city, and which shall heretofore have
obtained consent of the owners of one-half in value cf the property
bounded on, and the consents also of the local authorities having
control of that portion of the streets, roads or highways upon which
such extension or branch is constructed and is being operated to
the construction and operation of the same, is hereby authorized
to operate and maintain any such branch or extension, upon filing
in the office of the secretary of state a certificate, signed by its board
of directors, which certificate shall contain a statement of the names
of the cities, towns, villages and counties, and the names or descrip-
tion of the streets, avenues and highways in which such extensions.
or branches have been constructed, the places from and to which
the same have been constructed and are to be maintained and
operated and the length thereof as near as may be; thereupon said
extensions and branches shall be deemed and considered a part of
the lines of said railway from the date of the filing thereof, and
all corporate action relating to the construction, maintenance and
operation of such extensions or branches, or creating liens upon
the same by said corporation are hereby validated and confirmed.

§ 2. Nothing in this act contained shall affect or impair any
vested right or any pending litigation, nor shall any corporation
which shall avail itself of the provisions of this act be deemed
thereby to have waived any rights which it theretofore had to main-
tain and operate any branch or extension named in any certificate
filed by it: hereunder.
Fars on Evevatep Roaps. 487.

 

Miscellaneous Railroad Laws.

L. 1894, Cu. 518.

An Act to prevent the use of certain parks and streets in the city-
of New York for railroads.

Szction 1, Except for necessary crossings, at the intersection.
thereof with other streets or avenues, no surface street or other
railroad, after the date of the passage of this act, shall be con-
structed or operated upon, over or under West End avenue above
Seventy-first street, Cathedral parkway and Morningside park, or
any avenue or street bounding on Morningside park in the city of
New York, except Tenth avenue and Manhattan avenue.

‘

L. 1894, Cx. 743.

An Act to facilitate travel upon elevated railroads in the city:
of New York.

Srotion 1. Any passenger upon the Manhattan elevated rail--
way who has paid the fare required for passage from any point
on said railway east of Broadway, between the Battery and One-
Hundred and Twenty-ninth street, not exceeding five cents, shall
be entitled to a continuous passage, without change of cars, on the-
suburban rapid transit railway or on any railway owned or operated.
by the Manhattan railway company, within the city of New York,
in connection with said Manhattan elevated railway from One-
Hundred and Twenty-ninth street, or other termini'of the lines-
of said Manhattan elevated railway south of the Harlem river, to-
any station on the route of said suburban rapid transit railroad, or
such other elevated railroad as may be operated by the Manhattan.
railway company north of the Harlem river, without the payment.
of additional fare; and any passenger on the suburban rapid transit.
railroad, or any elevated railway owned or operated by the Man-
hattan railway company in connection with the Manhattan elevated
railroad, within the city of New York, running southward to One-
Hundred and Twenty-ninth street; or other termini of the Man-
hattan railroad, who has paid the fare required on said suburban
rapid transit railroad to One Hundred and Twenty-ninth street in
the city of New York, not exceeding five cents, shall be entitled to:
a continuous passage, without change of cars, over the Manhattan
elevated railway to any station on its route east of Broadway,
between One Hundred and Twenty-ninth street and the Battery,
without the payment of additional fare.
488° Liasting Cars on Exvevatep RarLroaps.

 

Miscellaneous Railroad Laws.

L. 1896, Cu. 388.

An Act to provide for a better system of lighting passenger cars
on elevated railroads in cities of over twelve hundred thousand
* inhabitants.

Secrion 1. Within one year from the passage of this act every
corporation operating an elevated railroad in any city of over
twelve hundred thousand inhabitants in this state computed
according to the last census, shall equip two-fifths of all cars used
for the transportation of passengers with the most approved system
of lighting passenger cars now in use upon railroads, either by
electricity or gas of not less than eighteen candle power, and shall
likewise equip an additional two-fifths of all such cars within
two years from the passage of this act, and shall likewise equip all
remaining such cars within three years from the passage of this
act, and every such corporation is hereby prohibited from using
after one year from the passage of this act, kerosene or coal oils as
a means of lighting more than three-fifths in number of all such
ears, and after two years from the passage of this act, no more than
one-fifth in number of all such cars, and after three years from the
passage of this act such corporation is prohibited from using kero-
sene or coal oils as a means of lighting any of its passenger cars.

§ 2. Any violation of the provisions of this act shall render any
such corporation liable to pay a fine or penalty of fifty dollars for
each and every day, for each and every passenger car run over its
railroad which is not equipped and lighted as provided in the first
section of this act; and such fine may be recovered by any passen-
ger on such railroad who may sue therefor; and any violation of
the provisions of this act on the part of any such railroad corpora-
tion shall also be:a misdemeanor.

L. 1897, Cu. 415.
An Act in relation to labor, constituting chapter thirty-two of the
general laws.

The provisions of the Labor Law (L. 1897, ch. 415), which supersede
former acts relative to hours of labor and payment of wages are as
follows:

Hours of labor on street surface and elevated railroads.

Sxction 5. Ten consecutive hours’ labor, including one-half
hour for dinner shall constitute a day’s labor in the operation of
Amendment of 1907.

({usert facing page 488, White on Corporations, 6th edition.)

Laws of 1907, chapter 243, amends the Labor Law, section 5, to read as
follows:

§ 5. Hours of labor on street surface and elevated railroads.— Ten con-
secutive hours’ labor, including one-half hour for dinner, shall constitute a
day’s labor in the operation of all street surface and elevated railroads, of
whatever motive power. owned or operated by corporations in this state,
whose ‘main line of travel, or whose routes lie principally within the cor-
orate limits of cities of the first and second class. No employee of any such
corporation shall be permitted or allowed to work more than ten consecutive
hours, including one-half hour for dinner, in any one day of twenty-four
hours. In cases of accident or wnavoidable delay. extra labor may be per-
formed ‘for extia compensation,

The amendment took effect July 1, 1907.
12
Rexatine to Lazor. 489

 

Miscellaneous Railroad Laws.

all street surface and elevated railroads, of whatever motive power,
owned or operated by corporations in this state, whose main line
of travel or whose routes lie principally within the corporate limits
of cities of more than one. hundred thousand inhabitants. No
employe of any such corporation shall be permitted or allowed to
work more than ten consecutive, hours, including one-half hour for
dinner, in any one day of twenty-four hours.

In cases of accident or unavoidable delay, extra labor may be
‘performed for extra compensation. ,

The foregoing section supersedes chapter 529, Laws of 1887, which has
been repealed by the Laber Law, except section 2, which reads as follows:

Violation of act a misdemeanor.

§ 2. It shall be a misdemeanor for any officer or agent of any
such corporation to exact from any of its employes more than ten
hours labor, the same to be performed within twelve consecutive.
hours, with not less than one-half Hour. for dinner, constituting a
day; provided, however, thaj in cases of accident or unavoidable

daly, extra labor may be permitted for extra compensation.

¢
Hours of labor in brickyards. ~

§ 6. Ten hours, exclusive of the necessary time for meals, shall
constitute a legal day’s work in the making of brick in brickyards
owned or operated by corporations. No corporation owning or

, operating such brickyard shall require employes to work more than
ten hours in any one day, or to commence work before seven
o’elock in the morning. But overwork and work prior to seven
o’clock in the morning for extra compensation may be performed
by agreement between employer and employe.

A corporation does not forfeit its charter by requiring employes to

work more than ten hours per day in violation of this act. (People v.
Atlantic Ave. R. R. Co., 125 N. Y., 518.)

-Regulation of hours cf labor on steam surface and elevated railroads.

§ 7. Ten hours labor, performed within twelve consecutive
hours, shall constitute a legal day’s. labor in the operation of steam
surface and. elevated railroads owned or operated within this state,
except where the mileage system of running trains is in operation.
But this section does.not apply to the performance of extra hours:
of labor by conductors, engineers, firemen and trainmen in case
of accident or delay resulting therefrom. For each hour of labor
performed in any one day in excess of such ten hours, by any such
-490 Retatine to Lazor.
Miscellaneous Railroad Laws.

employe, he shall be paid in addition at least one-tenth of his daily
- compensation.

No person or corporation operating a line of railroad of thirty miles
in length or over, in whole or in part within this state, shall permit or
require a conductor, engineer, fireman or trainman, who has worked in
any capacity for twenty-four consecutive hours, to go again on duty or
perform any kind of work, until he has had at least eight hours’ rest.

_ The foregoing section of the Labor Law supersedes chapter 711, Laws
- of 1892, all of which has been repealed except section 4, the text of which
is as follows: 3

§ 4. Any railroad company or corporation, or any officer, agent or
employe of any such company of corporation, violating or permitting
the violation of any of the provisions of this act, shall be guilty of a
misdemeanor, and on conviction shall be punished by a fine of five hun-
-dred dollars for each offense.

The second and third sections of chapter 711, Laws of 1892, were held
not to be penal in their scope. They regulate the contractual relations
of the parties, when the contract for hire of the employe omits to pre-
‘scribe the duration of a day’s service. (People v. Phyfe, 136 N. Y., 554.)
Section four, declaring a violation of the provisions of the act to be a
misdemeanor applies only to the prohibition of section one. (Id.)

Cash payment of wages.

§ 9. Every manufacturing, mining, quarrying, mercantile, railroad,
street Tailway, canal, steamboat, telegraph and telephone company,
every express company, and every water company, not municipal, and
every person, firm or corporation, engaged in or upon any public work
for the state or any municipal corporation thereof, either as a con-
tractor or a subcontractor therewith, shall pay to each employe engaged
ih his, their or its business the wages earned by such employe in cash.
No such company, person, firm or corporation shall hereafter pay such
employes in script, commonly known as store money-orders. No per-
son, firm or corporation engaged in carrying on public work under con-
tract with the state or with any municipal corporation of the state,
either as a contractor or subcontractor therewith, shall, directly or
indirectly, conduct or carry on what is commonly known as a company
store, if there shall, at the time be any store selling supplies, within two
miles of the place where such contract is being executed. Any person,
firm or corporation violating the provisions of this section shall be
guilty of a misdemeanor.

(Thus amended by L. 1906, ch. 316.) A

This section supersedes Laws of 1889, chapter 381, section 1, an act
entitled “An act to provide for the cash payment of wages by corpora-
tions.” The provisions of section 2 of said act, prescribing the penalty,
are embodied in section 11 of the Labor Law, page 426, post.

When wages are to be paid.

§ 10. Every corporation or joint stock association, or person carrying
on the business thereof by lease or otherwise, shall pay weekly to each
-employe the wages earned by him to a day not more than six days prior
to the date of such payment.

But every person or corporation operating a steam surface rail-
road shall, on or before the twentieth day of each month, pay the
Amendment of 1907.

 

(Insert facing page 490, White on Corporations, 6th edition.)

Laws of 1907, chapter 627, amends the Labor Law by adding thereto a
new section to read as follows: 5

§ T-a, Regulation of hours of labor of block system telegraph and telephone
operators and signalmen on surface, subway and elevated railroads.— The
provisions of section seven of this chapter shall not be applicable to em-
Pployees mentioned herein. It shall be ‘unlawful for any corporation or
| Teceiver, operating a line of railroad, either surface, subway or elevated, in
:whole or in part, in the state of New York, or any officer, agent or repre-
sentative of such corporation or receiver to require or permit any telegraph
“or telephone oferator who spaces trains by the use of the telegraph or tele-
‘phone under what is known and termed the “block system” (defined as
follows): Reporting trains to another office or offices or to a train dispatcher
‘operating one or more trains under signals, and telegraph or telephone lever-
‘men who manipulate interlocking machines in railroad yards or on main
tracks out on the lines or train dispatchers in its service whose duties *
fsubstantially, as hereinbefore set forth, pertain to the movement of cars:
‘engines or trains on its railroad by the use of the telegraph or telephone in
dispatching or reporting trains or receiving or transmitting train orders as
‘interpreted in this section, to be on duty for more than eight hours in a
day of twenty-four hours, and it is hereby declared that eight hours shall
constitute a day of employment for all laborers or employees engaged in
ithe kind of labor aforesaid; except in cases of extraordinary emergency
caused by accident,. fire, flood or danger to life or property and for each
‘hour of labor so performed in any one day in excess of such eight hours, by
any such employee, he shall be paid in addition at least, one-eighth of his
‘daily compensation. Any person or persons, company or corporation, who
shall violate any of the provisions of this section, shall, on conviction, be
fined in the sum not less than one hundred doHars, and such fine shall be
Tecovered by an action in the name of the state of New York, for the use
‘of the state, which shall sue for it against such person, corporation or asso-
tiation violating this act, said suit to be instituted in any court in this state
having appropriate jurisdiction. Such fine, when recovered as aforesaid,
shall be paid without any deduction whatever, one-half thereof to the in-
former, and the balance thereof to be paid into the free school fund of the
Staite of New York. The provisions of this act shall not apply to any part of
a railroad where not more than eight regular passenger trains in twenty-
four hours pass each way; provided, moreover, that where twenty freight
trains pass each way generally in each twenty-four hours then the provisions
of this act shall apply, notwithstanding that there may pass a less number of
Passenger trains than hereinbefore set forth, namely eight.

This act took effect October 1, 1907.
13
Retatine To Lazor. 491.

 

sp. Miscellaneous, Railroad Laws.

 

employes thereof the wages earned by them during the preceding
calendar month. :

The foregoing section supersedes section 1 of chapter 388, Laws of
1890, repealed by the Labor Law (L. 1897, ch. 415).

Penalty for violation of preceding sections.

§ 11. If a corporation or joint stock association, its lessee or
other person carrying on the business thereof, shall fail to pay the
wages of an employe as provided in this article, it shall forfeit to
the people of the state the sum of fifty dollars for each such failure,
to be recovered by the factory inspector in his name of office in a
civil action; but an action shall not be maintained therefor, unless
the factory inspector shall have given to the employer at least ten
days’ written notice, that such an action will be brought if the
‘wages due are not sooner paid as provided in this article.

-On the trial of such action, such corporation or association shall
not be allowed to set up any defense, other than a valid assign-
ment of such wages, a valid set-off against the same, or the absence
of such employe from his regular place of labor at the time of pay-
ment, or an actual tender to such employe at the time of the
payment of the wages so earned by him, or a breach of contract by.
such employe or a denial of the employment.

This section of the Labor Law embodies the provisions of L. 1889,
chapter 381, section 2, but seems also to be in addition to section 2,

chapter 388, Laws of 1890, which has not been repealed, and reads
as follows:

Penalty; factory inspectors may maintain action; charges for goods
not to be an offset. ;

§ 2. Any joint-stock company or corporation violating any of
the provisions of this act shall be liable to a penalty not exceed-
ing fifty dollars and not less than ten dollars for each violation, to
be paid to the people of the State, and which may be recovered in
a civil action; provided notice in writing shall have been given
such company or corporation that such an action will be brought if
such company or corporation, after service of such notice, shall at
any time fail to comply with the provisions of this act. The factory
inspector of this State, his assistant or deputies, may bring an action
in the name of the people of the State as plaintiffs against any
joint-stock company or corporation which neglects to comply with
the provisions of this act within two weeks, after having been noti-
fied in writing by such inspector, assistant.or deputies, that such
action will be brought. On the trial of such action such joint-stock
492 Rexatine to Lazor.

Miscellaneous Railroad Laws.

company or corporation shall not be allowed to set up any defense
for a failure to pay weekly, or monthly, if a steam surface railway
company, any employe engaged in its business, the wages earned
by such employe to within six days of the date of such payment,
or for the preceding calendar month, if a steam surface railway
company, other than a valid assignment of such wages or a valid
set-off against the same, or in the absence of such employe from his
regular place of labor at the time of payment, or an actual tender
to such employe at the time of payment of the wages so earned by
him, or a breach of contract by such employe, or a denial of the
employment. No assignment of future wages, payable weekly or
monthly, if a steam surface railway company, under the provisions
of this act shall be valid if made to the corporation or joint-stock
company from which such wages are to become due, or to any
person on behalf of such joint-stock company or corporation, or if
made or procured to be made to any person for the purpose of
relieving such joint-stock company or corporation from the obliga-
tion to pay weekly or monthly, if a steam surface railway company,
under the provisions of this act. Charges for groceries, provisions,
or clothing shall not be made a valid offset for wages, nor shall
any such corporation or joint-stock company require as a condition
of employment any agreement from any employe to accept wages
at other periods than as provided in section one of this act. Any
person, acting as the agent or lessee of the corporation or joint-
stock company, and operating its plant, works or business, and dis-
posing of the products thereof chiefly or solely to-such corporation
or joint-stock company, who shall violate the provisions of this act,
shall be guilty of a misdemeanor, and on conviction thereof shall
be fined not less than ten dollars or more than fifty dollars.

(L. 1890, ch. 388, as amended by L. 1893, ch. 717; L. 1895, ch. 791.)
Assignment of future wages.

§.12. No assignment of future wages, payable weekly, or
monthly in case of a steam surface railroad corporation, shall be
valid if made to the corporation or association from which such
wages are to become due, or to any person on its behalf, or if made
or procured to be made to any person for the purpose of relieving
such corporation or association from the obligation to pay weekly,
or monthly in case of a steam surface railroad corporation. Charges
for groceries, provisions or clothing shall not be a valid off-set for
wages in behalf of any such corporation or association.
Revarine to Liens. 493

 

Miscellaneous Railroad Laws.

 

No such corporation or association shall require any agreement
from any employe to accept wages at other periods than as pro
vided in this article as a condition of employment

L. 1897, Ox. 418.

An Act in relation to liens, constituting chapter forty-nine of the
general laws.

Chapter 529, Laws of 1870, entitled “An act in relation to mechanics’.

~ liens,” and chapter 392, Laws of 1875, entitled “An act for the better
security of railroad employes for labor performed,” except section 8
thereof, have been repealed by the Lien Law (UL. 1897, ch. 418), section 4
of which relates to liens on railroads and reads as follows:

y
Liens for labor on railroads.

Section 6.. Any person who shall hereafter perform any labor
for a railroad corporation shall have a lien for the value of such
labor upon the railroad track, rolling-stock and appurtenances of
such railroad corporation and upon the land upon which such rail-
road track and appurtenances are situated, by filing a notice of
such lien in the office of the clerk of any county wherein any part
of such railroad is situated, to the extent of the right, titlé and
interest of such corporation in such property, existing at the time of
such filing. The provisions of this article relating to the contents,
filing and entry of a notice of a mechanic’s lich, and the priority
and duration thereof, shall apply to such liens. A copy of the
notice of such lien shall be personally served upon such corporation
within ten days after the filing thereof in the manner prescribed ©
by the code of civil procedure for the service of summons in actions
in justices’ courts against domestic railroad corporations.

Section 8 of chapter 392, Laws of 1875, which remains unrepealed reads
as follows: ,

é
Personai liability of stockholders; notice; time for commencing action.

§ 8. Each and all the stockholders of such corporation shall be
jointly and severally liable for the debts due or owing to any of its
laborers or servants, other than contractors, for personal service for
ninety days’ service, or less than ninety days’ service, performed for
such corporation, but shall not be liable to an action therefor, before
an execution shall be returned unsatisfied in whole or in part against
the corporation, and the amount due on such execution shall be the
amount recoverable with costs against such stockholders; before

4 ‘
494 Rexatine to Liens.

Miscellaneous Railroad Laws.

such laborer or servant shall-charge such stockholders for such
ninety days’ service, or less than ninety days’ service, he shall give
notice in writing, within twenty days after the performance of
such service, that he intends to so hold him liable, and shall com-
mence such action therefor within thirty days after the return of
such execution unsatisfied, as above mentioned; and every such
stockholder against whom any such recovery by such laborer or
servant shall have been had, shall have a right to recover the same
of the other stockholders in such corporation in ratable proportion
to the amount of the stock they shall respectively hold with himself.

See also the Stock Corporation Law, section 54, which applies to rail-
road as well as other stock corporations,

L. 1897, Cu. 418. 2

An Act in relation to liens, constituting chapter forty-nine of the
general laws.

Chapter 383, Laws of 1883, entitled “An act relating to certain con-
tracts for the lease or conditional sale of railroad equipment and rolling
. stock, and providing for the record thereof,” has been repealed by the
Lien Law (L. 1897, ch. 418), section 111 of which reads as follows:

Conditional sale of railroad equipment and rolling stock.

Section 111. Whenever any railroad equipment and rolling
stock is sold, leased or loaned under a contract which provides that
the title to stich property, notwithstanding the use and possession
thereof by the vendee, lessee or bailee, shall remain in the vendor,
lessor or bailor, until the terms of the contract as to the payment
of installments, amounts or rentals payable, or the performance of
other obligations thereunder, are fully complied with and that
title to such property shall pass to the vendee, lessee or other :bailee
on full payment therefor, such contract shall be invalid as to any
subsequent judgment creditor of or purchaser from such vendee,
lessee or bailee for a valuable consideration, without notice, unless

1. Such contract is in writing, duly acknowledged and recorded
in the book in which real estate mortgages are recorded in the
office of the county clerk or register of the county in which is
located the principal office or place of business of such vendee,.
lessee or bailee; and unless

2. Each locomotive or car so sold, leased or loaned, has the
nawe of the vendor, lessor or bailor, or of the assignee of such

 
Neoorrasrte Instruments, 495

 

; Miscellaneous Railroad Laws.

vendor, lessor or bailor, plainly marked upon both sides thereof,
followed by the word owner, lessor, bailor or assignee, as the case
may be.

L. 1897, Ox. 612.

An Act in relation to negotiable instruments, constituting chapter
fifty of the general laws.

Chapter 84, Laws of 1871, entitled “An act to authorize the owners of
certain railroad mortgage bonds, made payable to bearer, to render the
same payable to order only,” has been repealed by the Negotiable Instru-
‘ments Law (L. 1897, ch. 612), section 332 of which reads as follows:

“How negotiable bonds are made non-negotiable.

Sxection 332. The owner or holder of any corporate or muni-
cipal bond or obligation (except such as are designated to circulate
as money, payable to bearer), heretofore or hereafter issued in and
payable in this state, but not registered in pursuance of any state
law, may make such bond or obligation, or the interest coupon
accompanying the same, non-negotiable, by subscribing his name
to a statement indorsed thereon, that such bond, obligation or
coupon is his property; and thereon the principal sum therein men-
tioned is payable only to such owner or holder, or his legal repre-
sentatives or assigns, unless such bond, obligation or coupon be
transferred ‘by indorsement in blank, or payable to bearer, or to
order, with the addition of the assignor’s place of residence.

%

| LL, 1898, Cu. 263.
An Act for the relief of certain railroad corporations. *

Section 1. Any railroad corporation that was duly incorporated
after the year eighteen hundred and.eighty-fiv:, under the pro-
visions of chapter one hundred and forty, of the laws of eighteen
hundred and fifty, and the acts amendatory thereof, and that
within two years after its certificate of incorporation was filed,
began the construction of its road and expended five ‘hundred hon,
sand dollars thereon, but failed to finish its road and put it in
operation within ten years from the time of filing such certificate,
shall be entitled to, and have all the rights and te subject to all
the obligations intended or provided by the next section of this
act,
496 Time to Construct Certarms Roaps ExrENnvDED.

 

Miscellaneous Railroad Laws.

§ 9. Any such company or corporation may finish its road and
put it in operation; and the rights, powers, privileges, franchises,
obligations, duties, restrictions and limitations of any such cor-
poration shall be as though the time heretofore provided by law.
to finish its road and put it in operation, had been fifteen years
from the date of filing its certificate of incorporation; and all
rights or franchises acquired by any such corporation to construct.
its road in, upon, along or across any strcet or highway, and alk
proceedings to locate or extend its route or change its termini,
or acquire any franchise, and all liens or obligations against any
such corporation are hereby expressly conferred, imposed and con-
‘tinued to the same effect as though the time for finishing its road
had been fifteen years as aforesaid. This act shall not apply to
any street railroad, whether surface, elevated or depressed, nor to
any railroad more than twenty miles in length,

L. 1898, Cx. 597.

An Act to provide for a change of motive power in the operation
of certain railways in and near public parks in the cities of the
state of New York.

Srction 1. Any railroad company having the right to use any
railway now constructed in any public tunnel, road or way
depressed below the surface of and wholly within any public park
in any city within the state of New York having a population of
one million five hundred thousand or upwards, may change the
motive power and operate any such railway by cable power, under-
ground current of electricity, compressed air, or any other motive:
power other than locomotive steam power, that may be consented
to by the authorities having control of such park or parks, and by
the board of railroad commissioners of the state of New York, and
may make changes in the construction ef the road or roadbed or
other property made necessary by the change of motive power.
Such reconstruction shall be at the sole cost and expense of the
railroad company making such change, and when completed such
improved railway shall be the property of the municipal corpora-
tion having control of such public tunnel, road or depressed way.
Amendment of 1907. =

®
(Insert facing page 497, White on Corporations, 6th edition.)

Laws of 1907, chapter 463, amends Laws of 1899, ch. 488, entitled, “An
act authorizing the sale’ of propery left in street surface railroad cars, and
the disposition of the proceeds thereof,” to read as follows:

Section 1. It shall be the duty of every street surface railway corporation
doing business in this state, and of every corporation engaged in this state
in the business of carrying passengers for hire in cabs, coaches, or other
similar vehicles or of letting such vehicles for hire, or in the business of
operating a line of stages or omnibuses, which shall have unclaimed property
left in its cars, cabs, coaches, stages or other similar vehicles, to ascertain
if possible, the. owner or owners of such property, and to notify such owner
or owners of the fact by mail as soon as possible, after such property comes
into its possession. Every such corporation which shall have such property
not perishable, in its possession for the period of three months, may sell the
same at public auction, after giving notice to that effect, by one publication,
at least ten days prior to the sale, in a daily newspaper published in the
teity or village in which such sale is to take place, of the time and place at
which such sale will be held, and such sale may be adjourned from time to
time until all the articles offered for sale are sold. All perishable property
so left, may be sold by any such corporation, without notice. as soon as it
can be, upon the best terms that can be obtained. ,

§ 2. All moneys arising from the sale of any such unclaimed property,
after deducting charges for storage: and expenses of sale, shall be paid by any
such corporation to the treasurer of any association, composed of the em-
ployees of such corporation, having for its object the pecuniary assistance of
.its members in case of disability caused by sickness or accident, for the use
‘and benefit of such association and its members; and where no such associa-
tion of the employees of any such corporation is in existence at the time of
any such sale, such moneys shall be paid over to the county treasurer of the
county or if in a city, to the chief fiscal officer thereof, in which such sale
took place for the benefit of such city or county.

14
SALE or Property Lerr ou Street Cazs. 497

 

Miscellaneous Railroad T.aws.

=

L. 1899, Cx. 488.

An Act authorizing the sale of property left in street surface
railroad cars, and the disposition of the proceeds thereof.

Szorion 1. It shall be the duty of every street surface railway
corporation doing business in this state, which shall have
unclaimed property left in its cars, to ascertain if possible, the
owner or owners of such property, and to notify such owner or
owners of the fact by mail as soon as possible, after such property
comes into its possession. Every such corporation which shall have
such property not perishable, in its possession for the period of
three months, may sell the same at public auction, after giving
notice to that effeet, by one publication, at least ten days. prior to
the sale, in a daily newspaper published in the city or village in
which such sale is to take place, of the time and place at which
such sale will be held, and such:sale may be adjourned from time
to time until all the articles offered for sale are sold. All perish-
able property so left, may be sold by any such street surface rail-
road corporation without notice, as soon as it can be, upon the
best terms that can be obtained.

§2. All the moneys arising from the sale of any such unclaimed
property, after deducting charges for storage and expenses of sale,
shall be paid by any such corporation to the treasurer of any
association, composed of the employes of such street ‘railroad cor-
poration, having for its object the pecuniary assistance of its
members in case of disability caused by sickness or accident, for
the use and benefit of such association and its members; and where
no such association of the employes of any such street railroad cor-
poration is in existence at the'time of any such sale, such moneys
shall be paid over to the county treasurer of the county in which
such sale took place for the benefit of such county.

\

 

L. 1899, Cx. 497.

An Act to regulate the use of lands forming part of the right of
way of any railroad company, the road of which has been
removed from the surface in, or adjacent to, streets and high-
ways in all cities of the first class in this state.

Ausf f

Section 1. Whenever the right of way, grade or tracks of any.
steam railroad company in or adjacent to any street or highway
32
498 Removat or Tracks From STREET Surracs.

 

Miscellaneous Railroad Laws.

in any city of the first class are required by law to be changed or
altered by elevating or depressing the same for the purpose of
discontinuing the use of steam power upon the surface of such
highway or street, such alteration or change of grade shall not be
deemed to curtail or affect any right which such railroad company
or its lessees or assigns may have to maintain and operate a surface
passenger railway within the limits of the right of way so depressed
or elevated, and over and under the railroad tracks so depressed or
elevated, with all turnouts, sidings and tracks necessary to secure
the continuous connection and operation of such surface railroad.

§2. In the event that any such turnouts, sidings or tracks shall
extend beyond the lines of the right of way of such railroad cor-
porations so depressed or elevated, in or upon any of the streets
or highways aforesaid, such turnouts, sidings or tracks so extend-
ing beyond the lines of such right of way shall only be constructed
upon condition that the consent of the owners of one-half in value
of the property bounded on, and the consent also of the local
authorities having the control of that portion of such street or high-
way upon which it is proposed to construct or operate such turn-
outs, sidings or tracks, shall be first obtained; or, in case the
consent of such property owners can not be obtained, the appellate
division of the supreme court in the department where such con-
struction is proposed, may upon application appoint three com-
missioners who shall determine, after a hearing of all parties
interested, whether such turnouts, sidings and tracks so extending
beyond the limits of such right of way and on said highway ought
to be constructed or operated; and their determination, confirmed
by the court, may be taken in lieu of the consent of the property
owners. 4

§ 3. Any such surface railroad shall be operated by some power
other than steam locomotives, and shall not ‘be used except for
passenger traffic. :

 
1

TRANSPORTATION OF WALVEs. 499

 

Miscellaneous Railroad Laws.

 

“eo
L. 1898, Cx. 491.

An Act to amend chapter three hundred and thirty-eight, laws of
eighteen hundred and ninety-three, entitled “ An act in relation
to agriculture, constituting articles one, two, three, four and
five of chapter thirty-three of the general laws, ” in relation to
sale and transportation of calves.

§ 72. On and after the passage of this act it shall be unlawful
for any corporation, partnership, person or persons to ship to or
from any part of this state any carcass or carcasses of a calf or
calves or any part of such carcass except the hide, unless they shall
attach to every carcass or part thereof so shipped in a conspicuous
place a tag, that shall stay thereon during. such transportation,
stating the name or names of the person or persons who raised the
calf, the name of the shipper, the points of shipping and destina-

’ tion and the age of the calf.

§ 73. On and after the passage of this act, no railroad company,
express company, steamboat company, or other common carrier,
shall carry or receive for transportation any carcass or carcasses
of calves, or any, part of the same except the hide, unless the said
carcass or carcasses or parts thereof shall be tagged as herein
_ Prov rided.

“L. 1857, Cx. 228.

‘An Act in selgnou to the payment of fare upon the New York Cen-
tral Railroad.

‘Szction 1. The New York Central Railroad Company, at every
station on its road where a ticket office is now or may hereafter be
established, shall keep the same open for the sale of tickets at least
one hour prior to the departure of each passenger train from such

‘station; but nothing herein contained shall require said company to

keep such office open between nine o’clock p. m. and five o’clock
A. M., except at Albany, Schenectady, Utica, Syracuse, Rochester,
Buffalo and Suspension Bridge, which shall be kept open as herein-
before required between five o’clock a. m. and eleven o’clock p. m.

§ 2. If any. person shall at any station, where a ticket office
is established and open, enter the cars of said company, as a pas-
senger thereon, without having first purchased a ticket for that
purpose, it shall be lawful for the said company to demand and
receive from such person a sum not exceeding five cents in ad-
dition to the usual rate of fare for the distance such person may
desire to be transported.
500 CoMPLETION OF CERTAIN RarLRoaDs.

 

Miscellaneous Railroad Laws.

 

L. 1903, Cu. 626.

An Act to suspend the limitation of time for commencement of
construction or the completion of railroads while in the hands
of receivers.

Srction 1. In every case where a receiver of the property or
franchises of a domestic railroad corporation has been heretofore
appointed by a court of this state or by a court of the United
States having jurisdiction within the limits of this state, the time
intervening between the entry of the order, judgment or decree
appointing a receiver in the first instance and-the entry of the
order, judgment or decree finally terminating the receivership,
shall not be nor be taken to be part of the time limited by law for
beginning the construction of its road by such railroad corporation,
or for the expenditure by it of ten per centum on the amount of
its capital stock on such construction, or for finishing its road or
putting it in operation, and the expiration heretofore or here-
after during such receivership of’ the time so limited shall not
be taken to have terminated or in any way to have affected the
existence, franchises, rights or privileges of said corporation; but
such corporation shall have all rights, privileges, powers and fran-
chises to which if a valid corporation it would have been entitled -
by law at the time of filing its certificate of incorporation, together
with such rights, privileges, powers and franchises as have since
been or may hereafter be granted by law to such corporations;
provided that nothing herein contained shall in any way alter,
affect or impair any vested right or interest. And such corpo-
ration, or in case of a sale of its franchise by the court, then the
successor corporation acquiring the franchise, shall be entitled
to the same period of time for the performance of said acts and
things after the termination of receivership, as remained to said
corporation at the time of entry of the order, judgment or decree
appointing the receiver in the first instance. This act as here
amended shall not apply to nor affect any street surface railroad
company the route of which in whole or in part lies within any
city of the first or second class in this state, and shall not apply
to nor affect any railroad corporation incorporated under any
private or local bill or act.

See, also, Laws of 1898, chapter 495, page 734, post.
THE RAPID TRANSIT ACT.

 

Laws or 1891, Cuaprer 4.

’

Berne “Aw Act to Provipe ror Rapip Transit Rariways
ain Citres or Over One Mituion Inuasirants,” as AMENDED
TO THE COMMENCEMENT OF THE LEGISLATIVE Szssion or 1907.

Commissioners of rapid transit; vacancies.

Section 1. In each city having over one million of inhabi-
tants, according to the last preceding national or.state census, there
shall be a board of rapid transit railroad commissioners in and for
such city, which shall consist of the mayor of such city, the comp-
troller or other chief financial officer of such city, the president of
the chamber of commerce of the state of New York, by virtue of his
office, and the following named persons, to wit: William Stein-
way, Seth Low, John Claflin, Alexander E. Orr and John H.
Starin. The members of said board shall be styled commissioners
of rapid transit. Vacancies which may take place in the offices so
held by the persons specifically named herein as-such commission-
ers shall be filled by a majority vote of the remaining members of
said board. Provided, however, that vacancies which may at any
time after the first day of January, nineteen hundred and six
take place in the offices so held by the persons specifically named
herein as such commissioners, or by their successors heretofore
elected, shall be filled by the mayor of such city, and any person
so hereafter appointed by the mayor of such city to fill-any such
vacancy shall be a citizen of the United States and of the state of
New. York and a bona fide resident of the city in which such per-
son is appointed. The board thus constituted shall have and exer-
cise the specific authority and powers hereinafter conferred and
also. such other and necessary powers as may be requisite to the
efficient performance of the duties imposed upon said board by
this act.

(Thus amended by L. 1894, ch. 752; L. 1906, ch. 472.)

The mere fact that New York is the only city in the State having over
1,000,000 inhabitants does not make this act local; therefore, it does not
violate section 18 of article 3 of the Constitution, providing that “the
legislature shall not pass a private or local bill * * * granting to
any corporation, association or individual, the right to lay down railroad
tracks.” (Sun Pubg. Assn. v. Mayor, etc., 8 App. Div., 230; aff’d 152
N. Y., 257.)

The legislation designed to secure rapid transit in the city of New
York is constitutional. (Sun Pubg. Assn. v. Mayor, etc., 8 App. Div., 230;
aff'd 152 N. Y., 257.)
502 AppiicaBLE Onty to New York Crry.
The Rapid Transit Act, §§ 2, 3.

The construction of a rapid transit railroad, located wholly within the
limits of a city, is a legitimate city purpose. (Sun Publishing Assn. Ve
Mayor, etc., of New York, 8 App. Div., 230; aff’d 152 N. Y., 257.)

In order to constitute an enterprise a city purpose, the purpose must
be primarily the benefit, use or convenience of the city'as distinguished
from that of the public outside of it, although they may be incidentally
benefited, and the work must be of such a character as to show plainly
the predominance of that purpose; furthermore, the thing to be done
must be within the ordinary range of municipal action. (Sun Publishing
Assu. v. Mayor, etc., of New York, 8 App. Div., 280; aff'd 152 N. Y., 257;
Matter of Application of the Mayor, 99 N. Y., 569.)

The mere fact that a rapid transit failvond in a city was never before
planned nor such a plan executed by a municipal corporation, does not
determine the question whether such scheme is a legitimate city purpose;
the true test is that which requires that the work shall be essentially
public and for the ‘géneral good of all the inhabitants of the city. (Sun
Publishing Assn. vy. Mayor, ete., of New York, 8 App. Div., 280; aff'd 152
N. Y., 257.) In considering this question, if the court finds that there is
a lack of convenient and adequate means of transit for people to and
from their places of business, it should sustain the action of the Legis-
lature in attempting to give safe, rapid and healthful locomotion within
the city. (Id.)

The rapid transit commissioners are local officers in each city embraced
within the statute; their character does not depend upon the form or
general structure of the act. (Sun Publishing Assn. v. Mayor, etc., of
New York, 8 App. Div., 230; aff’d 152. N. Y., 257.) Local officers may be
appointed in a general act as well as in a local act. (Id.)

Oath of commissioners.

§ 2. Each of the said commissioners other than the mayor and
comptroller or other chief financial officer of such city shall take
and subscribe an oath faithfully to perform the duties of his office,
which oath shall be filed in the office of the clerk of any county
within which there shall be a city of the class mentioned in the
first section of this act.

(Thus amended by L. 1894, ch. 752.)

Organization of board; by-laws and rules; quorum; seal; record of
proceedings.

§ 3. Within twenty days after the filing of the oaths of said
commissioners so required to make and file the same the commis-
sioners of rapid transit in respect to each of such cities shall meet.
and organize asa board. The board when so organized, may frame
and adopt by-laws not inconsistent with this act, and establish suit-
able rules and regulations for the proper exercise of the powers and
duties hereby conferred and imposed, and may, from time to time,
amend the same. Four members of the board shall constitute a
APPLICABLE Onty To New Yorx Crry. 503

 

The Rapid Transit Act, § 4.

quorum for the transaction of business, but a less number may
adjourn meetings. The said board shall adopt a seal, and keep a
record of its proceedings, which shall be a public record and be
open to inspection at all reasonable times: ;

(Thus amended by L. 1894, ch. 752.)

Board to determine necessity of railways; plan of construction’ and
routes ; provise as to consents; parks and certain streets excepted.
§ 4. The said board upon its own motion may pro-.
ceed, from time to time, to consider and determine whether it
is for the interest of the public and of the city in which it is
appointed, that a rapid transit railway or railways for the con-
veyance and transportation of persons and property should be
established therein, and upon the request in writing of the
local authorities of any such city at any time, the said board shall
proceed forthwith to consider and determine the same questions,
and in each case the said board shall conduct such an inquest
and investigation as may be deemed necessary in the premises.
If, after any such consideration and inquest, the said board
shall determine that a rapid transit railway or railways, in addition
.to any already existing authorized or proposed are necessary for
the interest of the public, and such city, it shall proceed to deter-
mine and establish the route or routes thereof and the general plan
of construction, Such general plan shall show the general mode
of operation and contain such details as to manner of construc-
tion as may be necessary to show the extent to which any street,
avenue or‘other public place is to be encroached upon and the prop-
_erty abutting thereon affected, and the concurrent votes of at least*
six members of the board shall be necessary for the purpose of
determining and establishing such route or routes and plan of con-
struction. The said board, from time to time, may locate the
route or routes of such railway or railways over, under, upon,
through and across any streets, avenues, bridges, viaducts, rivers,
waters and lands within such city, including blocks between streets
or avenues or, partly over, under, upon, through and across any
streets, avenues, bridges, viaducts, and lands within such city and.
partly through blocks between streets or avenues; provided that
the consent of the owners of one-half in value of the property
pounded on and the consent also of the local authorities hav-

 

* “Whenever it is expressly provided in the act hereby amended that any act of the board
of rapid transit railroad commissioners shall be done by the concurrent vote of four of the
members of said board, the act hereby amended is further amended so as to provide in such
cases that such vote shall be that‘of six of such members.” (L. 1894, ch. 752, § 10.) This
amendment applies to sections 4, 11, 14, 20.
504 AppiicaBLe Onty To New Yorx Crry.

 

The Rapid Transit Act,-§ 4.

 

ing control of that portion of a street, bridge, viaduct, or high-
way, upon which it is proposed to construct or operate such
railway, or railways be first obtained, or in case the consent of such
property owners cannot be obtained, that the determination of
three commissioners appointed by the genéral term of the su-
preme court in the district of the proposed construction, given af-
ter due hearing of all parties interested, and confirmed by the
court, that such railway or railways ought to be constructed or
operated, be taken in lieu of the corsent of such property owners;
except that no public park nor any lands or places, lawfully set
apart for, or occupied by, any public building of any city or
county, or of the state of New York, or of the United States, nor,
those portions of Grand, Classon, Franklin avenues and Downing
street in the city of Brooklyn, lying between the southerly line
of Lexington avenue and northerly line of Atlantic avenue,
nor that portion of Classon avenue in said city lying between the
northerly line of Lexington avenue and southerly line of Park
avenue, nor that portion of Washington avenue in said city lying
between Park and Atlantic avenues, nor DeBevoise place, Irving
place and Lefferts’ place, Lee avenue, Nostrand avenue, Waverly
avenue, Vanderbilt avenue and Clinton avenue in said city of
Brooklyn, nor that portion of the city of Buffalo lying between
Michigan and Main streets, nor any part of Fifth avenue in the
city of New York, nor that portion of any street or avenue which
is now actually occupied by any elevated railroad structure, shall
be occupied by any corporation to be organized under the pro-
visions of this act for the purpose of constructing a railway in or
upon any of such public parks, lands or places, or upon or along
either of the said excepted streets or avenues. It shall be lawful
for said commissioners to loeaté the route of a railway or railways,
by tunnel under any such public parks, lands, places, rivers or
waters and to locate the route of any railway to be built, under
this act, across any of the streets and avenues now occupied by an
elevated railroad structure in the city of New York, or across any
s i

AppLicaBLe Onty to New Yorx Ciry. 505

 

The Rapid Transit Act, § 4.

 

of the streets or avenues excepted in this act at any point at which,
in its discretion; the board of rapid transit railroad commissioners
may deem necessary in the location of any route or routes, or un-
der, or under and along, any of said streets or avenues now so oc-
cupied or so excepted in this act. Nothing in this act shall au-
thorize the construction of an elevated railway on Broadway south
of Thirty-third street, nor on Madison avenue in the city of New
York. It shall-not be lawful to grant, use or occupy, for the pur-
poses of an elevated railroad, except for the purpose, of crossing
the same, any portion of the following named streets and places in
the city of New York, that is to say: Second avenue below
Twenty-third street; Fourteenth street, between the easterly line
or side of Seventh avenue, and the westerly side of Fourth avenue;
nor Eleventh street, west of Seventh avenue, nor any part of Bank
street; Nassau street; Printing House square, so called, south of
Franklin street; Park row, south of Tryon row; Broad street and
Wall street. .

(Thus amended by L, 1894, ch. 528; L. 1894, ch. 752, 8 10; L. 1895, ch. 519;
L. 1900, ch. 616; L. 1904, ch. 564.)

The provisions of the said section 4 of the said act shall, with reference
to any rapid transit railroad for which routes and a general plan have
been heretofore adopted by the board of rapid transit railroad commis-
sioners of any city and for the municipal construction of which a con-
tract has been heretofore made by any city, be deemed to have been in
full force as hereby amended from before the time when the routes and
general plan for such railroad or railroads were so adopted by the board of
rapid transit railroad commissioners. (L. 1900, ch. 616, § 2; L. 1904, ch. 564.)

Other streets in New York are exempted by the following acts; L. 1892,
ch. 367; L. 1888, ch. 256, as amended by L. 1894, ch. 518.

The direction that no such railway shall be located on certain streets
is plainly, as matter of context, limited to railroads incorporated under
the Rapid Transit Law. (Beekman v. Brooklyn & Brighton Beach R. Rh.
Co., 89 Hun, 14.)

The rapfd transit board is not to consider whether a railway could be
made a paying ‘investment, ‘but whether it would be “for the interest

a ’
>

506 APpPLlicaBLeE Onuy to New York Cirv.

 

The Rapid Transit Act, § 5.

of the public and of the city in which the board is appointed.” (Sun
Publishing Assn. v. Mayor, etc., of New York, 8 App. Div., 230; aff'd 152
N. ¥., 257.)

See In re Rapid Transit R. R. Comrs., 5 App. Div., 290.

Plans to be approved by board of estimate and apportionment; con-
sents; value of property determined.

§ 5. After any determination by said board of any such route or
routes and of any general plan of construction of said raillway or rail-
ways, the said board shall transmit to the board of estimate and appor-
tionment or other board or boards of said city having the control of
any street, highway, boulevard, driveway, bridge, tunnel, park, parkway,
dock, bulkhead, wharf, pier or public grounds or water which is within
or belongs to the city, a copy of said plans and conclusions as adopted.
It shall be the duty of such board of estimate and apportionment and
of every other such board or boards having such control, upon receiving
such copy of plans and conclusions to appoint a day not less than one
week nor more than ten days after the receipt thereof for the consider-
ation of such plans and conclusions, and the said board of estimate and
apportionment and every other such board having such control shall,
or the day so fixed, proceed with the consideration thereof and may
continue and adjourn such consideration, from time to time, until a
final vote shall be taken thereon, as hereinafter provided. Within sixty
days after the copy of such plans and conclusions adopted by the board
of rapid transit railroad commissioners shall have first been received
by said board of estimate and apportionment or such other board or
boards having such control, a final vote shall be taken thereon, by ayes
and nays, according to the number of votes by law pertaining to each
member of any such board in the form of a vote upon a resolution to
approve such plans and conclusions, and to consent to the construction
of a railway or railways in accordance therewith. Upon the adoption
of such a resolution by a majority vote of all the members of the said
board of estimate and apportionment or other such board or boards
having such control according to the number of votes by law pertaining
to each member of any such board and the approval of the mayor, the
said plans and conclusions shall be deemed to have been finally consented
to and adopted, and such consent shall be deemed to be consent of the
local authorities of such city; provided, that where in any such city the
exclusive control of any street, road, bridge, viaduct, highway or avenue
which is to be used or occupied by any railway or railways constructed
under the provisions of this act, is by law vested in any local authority
other than the board of estimate and apportionment of such city, the
approval of the aforesaid plans and conclusions and the consent to the
construction of a railway thereunder shall be given by such local
authority in place of and if required in addition to such approval and
consent by said board of estimate and apportionment and with like
effect.. Upon obtaining the approval and consent of the local authorities
APPLICABLE OnLy To New York CIry. 507

 

The Rapid Transit Act, § 5.

 

as above provided, the said board of rapid transit railroad commis-
sioners shall also, unless such approval and consent of local authorities
shall have been refused, take the necessary steps to obtain, if possible,
the said consents of the property owners along the line of the said
route or routes, For the purposes of this act the value of the property
bounded on that portion of any street or highway in, upon, over or
‘under which it is proposed to construct or operate such railway or
railways, or any part thereof, shall be ascertained and determined from
the assessment roll of the city in which the said property is situated,
confirmed or completed last before the local authorities shall have
given their consent as above provided. If such consents of property
owners cannot be obtained, the said board may, in its own name, make
application to the appellate division of the supreme court in the judicial
district in which such railway is to be constructed for the appointment
of three commissioners to determine and report after due hearing
‘whether such railway ought to be constructed and operated. Two
-weeks’ notice of such application shall be given by daily publication
thereof, Sundays and holidays excepted, in six daily newspapers pub-
lished in the city where such proposed railway is to be constructed, if
there be so many newspapers published in said city, and if not, then in
all the, daily newspapers published in said city. The newspapers in
-which said publication shall be made shall be designated by the appel-
late division of the supreme court to which such application is to be
tmade on the application of the commissioners without notice. The said
appellate division, upon due proof of the publication aforesaid, shall
appoint three disinterested persons who shall act as commissioners,
and such commissioners within ten days after their appointment shall
eause public notice to be given in the manner directed by the said
appellate division of their first sitting, and may adjourn from time to
time until all their business is completed. Vacancies in such commis-
sion may be filled by said appellate division after such notice to
‘persons interested as the appellate division may deem proper, and the
evidence taken before as well as after such vacancy occurred shall be
deemed to be properly before such commissioners. The said commis-
sioners shall determine after public hearing of all parties interested
whether such railroad ought to be constructed and operated and shall
report the evidence taken to said appellate division together with a
report of their determination whether such road ought to be con-
‘structed and operated, which report, if in favor of the construction
and operation of such road shall, when confirmed by said court, be
taken in lieu of the consent of the property owners above mentioned.
Quch report shall be made within sixty days after the appointment
of said commissioners, unless the said court, or a judge thereof, shall
extend such time. The board of estimate and apportionment of the
city of New York shall, with respect to that city, be hereafter for all
purposes of this act and be deemed to be the local authority in eontroi
of the streets, roads, bridges, viaducts, highways, avenues, boulevards,
508 APPLICABLE OnLy To NEw York CIry.

 

The Rapid Transit Act, § 6.

 

driveways, parks, parkways, docks, bulkheads, wharfs, piers’and public
grounds and waters which are within or belong to the said city; and
the consent of such board of estimate and apportionment and the
mayor, without the consent of the common council, board of aldermen
or other board or officer of the city, shall be the only consent of local
authorities required hereunder.

(Thus amended by L. 1895, ch. 519; L. 1904, ch. 564; L. 1905, ch. 631.)

This act and all the amendments hereby made to the sections thereof
hereby amended, shall be applicable to every grant, franchise or contract
heretofore made, authorized or issued by the said board of rapid transit
railroad commissioners but not yet consented to by the common council
or board of aldermen of the city, as well as to all grants, franchises
and contracts hereafter made, authorized or issued by the said board
of rapid transit railroad commissioners. (L. 1905, ch. 631, § 2.)-

The provision of sec. 18 of art. 3 of the Constitution of 1894, requiring
application for commissioners to determine whether a street railroad
should be constructed, to be made to the Appellate Division, did not take
effect until Jan. 1, 1896, and until that date the General Term continued
to have jurisdiction to entertain such applications. (Matter of B. of R.
T. R. R. Comrs., 147 N. Y., 260.)

Plans and specifications; subways; supervision of local authorities;
expenses payable by the company.

§ 6. When the consents of the local authorities and the prop-
erty owners, or, in lieu thereof, the authorization of the said appel-
late division of the supreme court upon the report of commission-
ers, shall have been obtained, the board of rapid transit railroad
commissioners shall at once proceed to prepare detailed plans and
specifications for the construction of such rapid transit railway or
railways in accordance with the general plan of construction, in-
cluding all devices and appurtenances deemed by it necessary to-
secure the greatest efficiency, public convenience and safety,
including the number, location and description of stations and
plans and specifications for the suitable ~supports, turnouts,.
switches, sidings, connections, landing places, buildings, platforms,
stairways, elevators, telegraph and signal devices, and other suit-
able appliances incidental and requisite to what the said board may
approve as the best and most efficient system of rapid transit in
view of the public needs and requirements, and the said board may,
in its discretion, include in said plans provisions for galleries,
ways, subways or tunnels for sewers, gas or water pipes, electric
wires and other subsurface structures and conductors proper to
be placed under ground, whenever necessary so to do, in order to-
permit of the proper construction of any railway herein provided.
for in accordance with the plans and specifications of the said
board, or for any other purpose in furtherance of the-public inter-
est or convenience. Stations and station approaches may be under-
or over streets of the route or cross streets, and the board of alder-
men, or other legislative body, of any such city shall have power-
to regulate by general or special ordinance or resolution, the erec-

as end
APPLICABLE On Ly To New Yorx Crry. 509
The Rapid Transit Act, § 6.

 

 

tion, alteration and maintenance upon or in connection with any
building used, wholly or in part for station purposes, or approaches,
or any and all structures or parts of structures extending over the
whole or any part of any sidewalk or sidewalks adjacent thereto.
The board may, from time to time, alter such detailed plans and
specifications, but always so that the same shall accord with the
general plan of construction; but whenever a contract shall have
been made for the construction of any railway herein provided for,
no such alteration shall be made by the board without the consent
of the contractor and his sureties, except as liberty shall have been
reserved in such contract by said board for such alteration. When-
ever the construction of any railway, depressed way, subway or
tunnel under the provisions of this act shall interfere with disturb
or endanger any sewer, water pipe, gas pipe, or other duly author.
ized subsurface structure, the work of construction at such points
shall be conducted in the city of New York in accordance with
the reasonable requirements of the commissioner of public works,
and in other cities in accordance with the reasonable requirements
and under the supervision of the officer or local authority having
the care of and the jurisdiction or control over such subsurface
structures so interfered with, disturbed or endangered. All ex-
penses incidental to such supervision and to the work of recon-
structing, readjusting and supporting any such sewer, water pipe,
gas pipe or other duly authorized subsurface structure shall be
borne and paid by the company which shall have acquired the right,
privilege and franchise to construct, maintain and operate such
railway, pursuant to a sale of the same at public auction, as here-
inafter provided, if any such sale shall be made by said board.
Where under the direction of the said board or in pursuance of any
general plan adopted or of any contract made by the said board,
galleries, ways, subways or tunnels shall be constructed to contain
sewers, pipes or other subsurface structures, the said galleries,
ways, subways or tunnels shall be maintained by the said city and
shall be in the care and charge of the said board and subject to such
regulations as it shall prescribe not inconsistent with the provisions
of this act, and any revenue derived therefrom shall be paid into
the treasury of said city, except that where bonds shall have been
issued to provide for the cost of construction of such railroads, such
amounts shall be paid to the sinking fund of the city, if there be
one, or if not then into the sinking fund, to be established and
created out of the annual rentals of the said road, as provided in
section thirty-seven of this act. Provided, however, that any person
or corporation who or which at the time of the construction of the
said galleries, ways, subways, or tunnels shall own pipes, subways
or conduits in a street, avenue or public place in which said gal-
510 APPLICABLE OnLy To New York Cry.

 

The Rapid Transit Act, § 7.

 

leries, ways, subways or tunnels shall be constructed pursuant to
this act, shall be entitled to the use of such galleries; ways, sub-
ways or tunnels for his or its said pipes, subways or conduits in the
same manner as the said person or corporation shall be entitled by
law to the use of such street, avenue or public place, and that no
rent shall be charged for such use, except a reasonable charge to
defray the actual cost of maintenance, unless such pipes, subways
or conduits shall be of greater capacity than those theretofore
owned by such person or corporation in said street, avenue or public
place, and that, if the capacity of any such pipe, subway or con-
duit, so placed in the said galleries, ways, subways or tunnels shall
be increased, the rent shall be charged only for such increased
capacity ; and provided further, that the placing in any such gal-
leries, ways, subways or tunnels of the subways or conduits of any
corporation owning subways or conduits for electrical conductors,
shall not in any wise affect the right of such corporation to charge
and demand such compensation or rent for the use of said subways
or conduits by other corporations or individuals as is, or may be,
permitted by law. Nothing in this section or contained in the act
hereby amended shall be construed as granting, enlarging, chang-
ing, or in any manner validating, any right, privilege or franchise,
or any claimed or alleged right, privilege or franchise, to maintain, ,
operate, or possess any gas mains, pipes or conductors, or any con-
duits or conductors for transmission of electricity, or any subsur-
face structures of any name or nature whatever, in any street,
avenue, highway or public place in such city.

(Thus amended by I, 1892, ch. 556; L. 1894, ch. 752; L. 1895, ch. 519;
L. 1896, ch. 729; L. 1902, ch. 542; L. 1906, ch. 472.)

x

Public sale of franchise; terms and conditions; forfeiture and resale
thereunder; capitalization of company; rate of fare; term of
franchise. .

§ 7. If, after having secured the necessary consents and after
having prepared such detailed plans and specifications as are by
this act provided for, it shall not have been determined by vote of
the people as provided by sections twelve and thirteen of chapter
seven hundred and fifty-two of the laws of eighteen hundred ‘and
‘ninety-four that such railway or railways shall be constructed for
and at the expense of such city as hereinafter provided, said board
shall sell at public auction in the city where said railway or rail-
ways are to be built and for the account and benefit of said city the
right, privilege and franchise to construct, maintain and operate
such railway or railways. Notice of the time and place of such sale
shall be published three times a week for at least six successive
weeks in at least three daily newspapers published in said city. The
APPLICABLE Onty TO New York Ciry. 511

 

The Rapid Transit Act, § 7. '

 

board may prescribe all such terms and conditions of sale as it may
deem to be for the interest of the public and of the city in which
the railway or railways are to be constructed. The advertisement
of sale shall contain only so much of the’ said terms, plans and
specifications for the construction as the said board may think
proper, but such advertisement must state at what place the full
terms, plans and specifications may be examined, and they shall be
subject to examination under such reasonable rules and regulations
as the board may prescribe. The terms of sale shall provide for the
construction of the railway or railways under the supervision of the
board, and for ‘the approval of an engineer or engineers to be
appointed, from time to time, by the board, and the corporation
or corporations to be organized for the purpose of constructing and
operating such railway or railways as in this act provided shall pay
such engineer or engineers such salary as may, from time to time,
be fixed by the said board of rapid transit railroad commissioners.
Such engineer or engineers shall hold their office at the pleasure
of the said board. The terms of sale shall require the successful
‘bidder to deposit with the comptroller or chief fiscal officer of the
city, in cash or approved securities, such amount as the board may
deem sufficient to constitute a guarantee of full compliance with
the terms of sale by the purchaser and by the corporation to be
*formed for the purpose of building and operating said railway as
hereinafter provided. Said bids and all rights which may have
been acquired thereunder shall become null and void and of no
effect, at the option of said board, should there be a failure to
organize a corporation to exercise such rights, privileges and fran-
chises as required by said terms of sale and this act, or for any
violation of any of the requirements of said terms of sale which
should be complied with before such corporation is organized, and
thereupon any deposit which may have been made pursuant: to
such terms of sale shall be paid into the treasury of such city upon
a certificate being’ made and filed by said board with the public
officer with whom such deposit sha!l have been made, that said bid,
and all rights which have been acquired thereunder, have become
null and void and of no effect; and said rights, privileges and fran-
chiges shall be again sold by said board, subject to all the provisions
of this act regulating such sales. The terms of sale shall require
theconstruction of the road to be begun within a time to be specified
in said terms of sale, and to be finished within a certain time there-
‘after, to be specified therein, and may prescribe the time within
which portions of the same shall be begun and finished. The said
,

512 APPLICABLE Onty TO New York Crry.

 

. The Rapid Transit Act, § 7.

terms of sale may reserve to the board the power to extend the
times for the commencement and completion of the construction
of said railway, or of portions of the same, if in its discretion, the
said board deem such extension to be for the best interests of the
city. In case the corporation formed for the purpose of construct-
ing said railway shall fail to begin or finish the construction within
the times for those purposes respectively limited, all rights, privi-
leges and franchises of such corporations to maintain and operate
said railway shall be forfeited, and upon such forfeiture being:
adjudged by the court in a suit brought for that purpose in the
name of the mayor, aldermen and commonalty of the city of New
York, or such other appropriate corporate title of said city or by
said board of rapid transit railroad commissioners, then the said
board shall have power to advertise and resell said rights, privileges.
and franchises and so much of the road as shall have been con-
structed by such corporation; such suit shall have preference over:
all other cases in all courts; and the proceeds of such resale shall be:
applied first to the payment of the expenses of the resale, and then.
to the discharge of any liens which may have been created upon.
such property, and the balance shall be paid over to the gaid cor-
poration. The terms of sale must provide for the organization by
the purchaser or purchasers of such rights, privileges and franchises.
of a corporation to exercise the same, and to construct, maintait
and operate such rapid transit railway or railways, with the powers
and subject to the duties and liabilities granted or imposed by this.
act. The said terms of sale must also specify the amount of the:
capital of any such corporation, and number of shares of capital
stock which such corporation shall be authorized to issue, the per-
centage to be paid in cash by the subscribers on subscribing for such.
shares, the maximum amount of the bonded indebtedness which
such corporation may be authorized to incur, and which may be:
secured by mortgage upon its property and franchises, and the rates:
of fares and freights which such corporation may charge and collect
for the carriage of persons and property. But the rate of fare for
any passenger on said railway from any point on the same north-
ward or southward within the city of New York shall not exceed
five cents under any provision of this act. The said board may, if
it considers that the public interest requires it to do so, reject all
bids and readvertise the said rights, privileges and franchises for
sale, with the same or different terms of sale, as often as it may
deem necessary in the interest of such city, ‘and shall finally accept
that bid which, under all circumstances in its opinion. is most.
2 °

APPLICABLE Onty To New York’ Crry. 513

 

The Rapid Transit Act, §§ 8, 9.

 

advantageous to the publi¢ and such city; and uo bid shall be
accepted without the concurrent vote of six members of the ‘board.
The terms of sale on any such resale must contain all the provisions
required by this act to be inserted in the original terms of sale.
Such sale may be adjourned from time to time at the discretion of
the board. All sales of such rights, privileges and franchises shall
be made for a definite term of years, but the expiration of the
term, if sold for a term of years, shall not impair any mortgage or
other lien upon the property of such corporation or the rights of
any creditor or creditors of such corporation; provided, however,
that nothing herein contained shall be so construed as to extend the
term for which such rights, privileges and franchises are sold.
(Thus amended by L. 1894, ch. 752, and L. 1895, ch. 519.)

Resale of franchise after expiration of term; existing corporation may
purchase, or new one may be formed.

§ 8. Within one year, and not Jess than six months, prior to the
expiration for any term for which such rights, privileges and fran-
chises shall have been sold, said board shall proceed to resell the
right to maintain and operate the said railway. Such sale shall be
made in the manner prescribed for the original sale, and the board
is empowered to make suitable provisions for securing to the cor-
poration then operating such railway or railways suitable compensa-
tion for the railroad structure and appurtenances, and for any other
property, real or personal, which the said corporation may own or
of which it may be vested at the expiration of the term for which
such rights, privileges and franchises were sold. Any corporation
theretofore organized under the provisions of this act may be a pur-
chaser on such resale; but if no such corporation be the purchaser,
a new corporation shall be formed to maintain and operate said
road in the manner prescribed for the organization of a corporation
on the original sale, except that the plans and specifications. accord-
ing to which said railway has been constructed need not be set out
at large, but may be referred to as forming part of the articles of
association of said new corporation. ,

Offices of board; engineers; attorneys and other assistants.

§ 9. Thesaid board may rent such offices and employ such engi-
neers, attorneys and other persons, from time to time, as it may, in
its discretion, deem necessary to the proper performance by it of
its duties as in this act prescribed. It may sue in the name and
behalf of the city for which it acts as a board. It may in the name
of and in behalf of the said city bring action of specific perform-

33
514 Appiidaste Onty to New York Crry.

The Rapid Transit Act, § 10.

ance or may apply by mandamus to compel the performance within
its city by any corporation or person of any duty or obligation with
reference to or arising out of the construction or operation of any
railroad under, or by reason of, any grant made or right acquired
under this act or the acts amendatory hereof or supplementary
hereto, or out of or by reason of any contract made or authorized by
any board of rapid transit commissioners within its city, or it may
in behalf of and in the name of said city bring actions to recover
damages for any violation of contract or duty, or for any wrong
committed by any such corporation or person by reason of any non-
performance or violation of duty under the provisions of this act,
or under any contract or stipulation made in pursuance of any pro-
visions of this act. Every action or proceeding brought by the
said board, and every action or proceeding in which an injunction
is had or sought against the board or the said city, or against any
corporation or person who or which shall have entered into a con-
tract under the provisions of this act, or any act supplementary
hereto, or amendatory hereof, by reason of any act or thing done,
proposed or threatened under or by virtue of any provision of this
act, or any act supplementary hereto, or amendatory hereof, or is
sought against any corporation or person claiming or claiming to
act under any grant or franchise under this act, or any act supple-
mentary hereto, or amendatory hereof, and every action or pro-
ceeding in which the constitutionality of any part of this act, or of
any act supplementary hereto, or amendatory hereof, shall or may
be brought in question, shall have a preference above all causes not
criminal on the calendar of every court, and may be brought on for
trial or argument upon notice of eight days for any day of any
term on which the court shall be in session.

(Thus amended by L. 1892, ch. 556; L. 1894, ch. 752, and L, 1895, ch. 619.)

Appropriations for board; audit and payment thereof; repayment of
expenses; revenue bonds; compensation of commissioners. tC

§ 10. The board of estimate and apportionment or other board
or public body on which is imposed the duty, and in which is vested
the power, of making appropriations of public moneys for the pur-
poses of the city government in any city in which it is proposed to
construct such railway or railways shall, from time to time, on
requisition duly made by the board of rapid transit railroad com-
missioners, appropriate such sum or sums of money as may be
requisite and necessary to properly enable it to do and perform, or
cause to be done and performed, the duties herein prescribed, and
AppLicaBLE OnLy To New Yorx Crry. 515

 

The Rapid Transit Act, § 10.

 

te provide for the compensation of such commissioners, and such
‘appropriation shall be made forthwith upon presentation of a
requisition from the board of rapid transit railroad commissioners,
which shall state the purposes for which such moneys are required
by the said board. In case the said board of estimate and appor-
tionment, or such other board or public body fail to appropriate such ,
amount as the board of rapid transit railroad commissioners deem
requisite and necessary, the said board of rapid transit railroad
commissioners may apply to the general term of the supreme court,
in the department in which the railway is to be or has been con-
structed, on notice to the board of estimate and apportionment, or
such other board or public body aforesaid, to determine what
amount shall be appropriated for the purposes required by this sec-
tion, and the decision of said general term shall be final and con-
clusive; and no city shall be liable for any indebtedness incurred by
the said board of rapid transit railroad commissioners. in excess of
such appropriation or appropriations. It shall be the duty of the
auditor and comptroller of any such city, after such appropriations
shall have been duly made, to audit and pay the proper expendi-
tures and compensation of said commissioners upon vouchers there-
for, to be furnished by the said commissioners, which payments
shall be made in like manner as payments are now made by the
auditor, comptroller, or other public officers, of claims against and
demands upon such city; and for the purpose of providing funds
with which to pay the said sums, the comptroller or other chief
financial officer of said city is hereby authorized and directed to
issue and sell revenue bonds of such city in anticipation of receipt
of taxes, and out of the proceeds of such bonds to make the pay-
ments in this section required to be made. The amount necessary
to pay the principal and interest of such bonds shall be included
in the estimates of moneys necessary to be raised by taxation to
carry on the business of said city, and shall be made a part of the
tax levy for the year next following the year in which such appro-
priations are made. All expenses of the said board of rapid transit
railroad commissioners, including the compensation of said com-
missioners, so incurred and paid by any city as in this section pro-
vided, and for which any city shall be liable, shall be repaid, with
interest, by the bidder or bidders at the public sale of the rights,
privileges and franchises, as in this act provided, in case said board
shall so sell the same, whose bid shall be accepted by the board of
rapid transit railroad commissioners, and the terms of such sale shall
specify the time when such payment shall be made, as well as the
516 AppricaBLE Onty to New York Crrv.

 

The Rapid Transit Act, § 11.

amount thereof. The commissioners, other than the mayor and
comptroller or other chief financial officer of such city, shall be paid
a reasonable compensation for the duties performed by them from
time to time, under the provisions of this act. The amount of such
compensation shall be determined by the general term of the
supreme court in the department in which said city shall be located
upon application by said board after notice to the mayor of such
city.
(Thus amended by L. 1894, ch. 752.)

Corporations, how organized, articles of association to be approved
and filed; subscription books; subscribers’ meeting.

§ 11. A corporation or corporations to construct and operate
such rapid transit railway or railways, and to enjoy and exercise
the rights, privileges and franchises in this act provided for shall
be created and organized in the manner following: Articles of
association shall be duly signed and acknowledged by not less than
twenty-five persons, and such articles shall set forth the name of the
proposed corporation and duration thereof. Said articles must also
state that they are made and filed under and in pursuance of this
act for the purpose of taking and exercising the rights, privileges
and franchises so purchased as aforesaid, according to the terms of
sale; and such terms of sale and all plans and specifications must
be made a part of said articles, annexed thereto and filed therewith.
The said articles must also contain such other provisions as the said
board may deem requisite and necessary, not inconsistent with the
terms of sale or with this act. The said articles must be approved
by said board, by the concurrent vote of six members, and its
approval must be indorsed thereon and attested by the seal of the
board and the signature of its presiding officer, and must then be
filed in the office of the secretary of state, and a duly certified copy,
or a duplicate thereof, must be filed in the office of the clerk of the
county in which such railway or railways are to be constructed.
Immediately after the articles of association shall have been so
made, approved and filed, the board of rapid transit railroad com-
missioners shall cause books of subscription to the capital stock of
any such corporation to be opened, and shall give public notice of
the opening of such books and of the time and place at which sub-

_ scriptions will be received; and when the full amount of such capi-
tal stock shall have been subscribed by not less than fifty persons,
and such percentage of the amount subscribed as may have been
fixed by the board in the terms of sale shall have been paid in, in

I
Aprpiicaste Onty to New York Crry. 517

 

The Rapid Transit Act, § 12.

 

cash, to such bank or trust company as the board may select, the
‘said board shall call a meeting of the subscribers for the purpose
of organizing the corporation, serving upon or mailing to each sub-
scriber a notice of such meeting at least ten days before the time
appointed for holding the same; and the person or persons whose
bid shall have been accepted by the said board of rapid transit rail-
road commissioners shall, if they elect to become subscribers to the
capital stock of such corporation, be entitled to a preference for
themselves and their associates in subscribing for, and in the allot-
ment of the shares of capital stock of such corporation.

(Thus amended by L. 1894, ch. 752, § 10.)
lection of first directors; by-laws. : ;

§ 12. At such meeting of subscribers thirteen directors of the
corporation shall be elected, each of whom shall be a holder in his
own right of at least one hundred shares of the capital stock of the
corporation, and the board of rapid transit railroad commissioners
shall appoint the inspectors of the first election. Each share of
stock shall entitle the holder to one vote for each director. The
directors so elected shall hold office for one year and until others
are elected in their places. At such meeting by-laws must be
adopted not inconsistent with this act, which by-laws shall, among
other things, provide for:

1. The term of office of the directors elected at any subsequent
meeting of stockholders, which term shall not exceed one year.

2. The manner of filling any vacancy which may occur in any
office or in the board of directors.

3. The time and place of the annual meeting of stockholders.

4. The manner of calling and holding special meetings of

* stockholders.

5. The number of stockholders who shall attend either in person

or by proxy, at any stockholders’ meeting in order to constitute a
quorum.
, 6. The officers of the corporation, the manner of their election
by the directors, and their duties and powers, and among which
officers there shall be included a president, a secretary and a
treasurer. Me

7%. The manner of electing or appointing inspectors of election.

8. The manner of amending the by-laws. ;

The by-laws may also provide for the forfeiture of shares for the
non-payment of calls and for such other matters,as may be deemed
proper by the board of rapid transit railroad commissioners and
they must be approved by a resolution of said board.
518 Appricaste Onty to New York Crry.

 

The Rapid Transit Act, §§ 13, 14.

Record of proceedings; certificate of organization; filing thereof.

§ 18. Within ten days after the said subscribers’ meeting 2
record of the proceedings thereof, containing a copy of the sub-
scription list, a copy of the by-laws adopted, and the names of the
directors chosen, shall be prepared and duly certified by the person
presiding over, and person acting as secretary of said meeting.
There shall be attached thereto a certificate of the board of rapid
transit railroad commissioners, attested by its seal an the signature
of its presiding officer, that said board has approved the by-laws.
adopted at the subscribers’ meeting, and that said corporation has
been organized in accordance with the provisions of this act. The
said record and certificate shall be filed by said board in the office
of the secretary of state, and a duly certified copy or duplicate
thereof shall be filed in the office of the clerk of the county in which
said railway or railways are to be built, and thereupon and upon
the payment to the state treasurer of a tax of one-eighth of one
per centum of the par value of the capital stock of said corpora-
tion, such corporation shall be deemed to be fully organized. A
copy of said certificate, duly certified by the secretary of state, or
by the county clerk in whose office it is filed, shall be presumptive
evidence of the due organization of such corporation in all courts
and proceedings. Upon the production of the certified copy of said
certificate, and upon the order of such corporation, the bank or
trust company in which the percentage of subscriptions to the capi-
tal stock shall have been deposited, shall pay over to any such cor-
poration the amount of such deposit, and said corporation shall
repay to the purchaser or purchasers at the sale provided for in
‘section seven of this act, the expenses paid by him or them to the
city pursuant to the provisions of the terms of sale, with interest
to the date of such repayment.

Modification of plans; certificate hensat filing of such cartifigate,

§ 14. The said board of rapid transit railroad commissioners,
if, in their judgment, the public interest requires, may, at any
time, after the full organization of any such corporation, by the
concurrent vote of six members, authorize such corporation to
alter or add.to the detailed plans and specifications contained in its
articles of association, provided the plans and specifications as so-
modified do not change the route or routes of said railway and be
not inconsistent with the general plan of construction adopted
under the provisions of section four of this act, and provided also
such modifications be first approved by a vote of two-thirds of the
APPLICABLE Onty to New Yorxk Ctry. 519

The Rapid Transit Act, §§ 15, 16.

 

directors of said corporation present and voting at any special
meeting duly called for the purpose, by written notice stating the
nature of the business to be transacted at said meeting. When
such authorization by the board of rapid transit railroad commis-
sioners shall have been given, a certificate shall be prepared, and
acknowledged by the president and a majority of the directors of
said corporation, stating the nature of the modification, and that
the same has been approved by the board of directors in the manner
above set forth, to which certificate there shall be attached a copy of
so much of the original plans and specifications as are to be affected
by the modification, and also the plans and specifications asmodified.
There shall also be contained in such certificate a declaration of
the approval of said board of rapid transit railroad commissioners,
attested in the same manner as the certificate of full organization.
The said certificate, plans and specifications shall then be filed in
the office of the secretary of state, and a certified copy or duplicate
thereof shall be filed in the office of the clerk in which the articles
of association are filed. And thereupon said corporation shall be
authorized to construct its railway or railways and appurtenances
in accordance with such modified plans and specifications.
(Thus amended by L. 1894, ch. 752, § 10.) ‘
Principal office; taxation and exemption therefrom during construction.
_§ 15. Every corporation organized under this act shall have
its principal office and be taxed on its property in the city where
its railway or railways are situated. But no taxes of any kind or
nature shall be levied or imposed upon that portion of any railway
constructed under this act which is in process of construction, and
not in actual operation for the transportation of passengers or
freight, but this exemption from taxation during construction shall
not apply to any portion or portions of said railway after the date
on which said portion or portions shall have been opened to the
public for the transportation of passengers or freight.
(Thus amended by L. 1892, ch. 556.)

Directors, election of; vacancies, qualifications; exhibition of books.

‘$16. The affairs of said corporation shall be managed by a
board of thirteen directors, who shall be chosen annually, by a
majority of the votes of the stockholders voting at such election,
in such manner as may be prescribed in the by-laws of the corpora-
tion, and they may and shall continue to be directors until others.
are elected in their places., In the election of directors, each stock-
holder shall be entitled to one vote for each share of stock held by
him. Vacancies in the board of directors shall be filled in such
520 ‘APPLICABLE Onty To New York Cry.

 

The Rapid Transit Act, §§ 17, 18, 19.

 

manner as shall be prescribed by the by-laws of the corporation.
No person shall be a director unless he shall be a stockholder own-
ing one hundred shares of stock absolutely in his own right, and
qualified to vote for directors at the election at which he shall be
chosen. At every election of directors the books and papers of
such corporation shall be exhibited to the meeting, provided a
majority of the stockholders present shall require it.

Payments for stock

§ 17. The directors shall require the subscribers to the capital
stock of the company to pay the amount by them respectively sub-
scribed in money at such times and in such installments as they may
deem proper, not inconsistent with the by-laws and the articles of
association.

Liability of stockholders; notice.

" § 18. Each stockholder of any corporation formed under this
act shall be individually liable to the creditors of such corporation,
to an amount equal to the amount unpaid on the stock held by him,
for all the debts and liabilities of such corporation, until the whole
amount of the capital stock so held by him shall have been paid
to the corporation; and all the stockholders of any such corporation
shall be jointly and severally liable for the debts due or owing to
any of its laborers and servants, other than contractors, for per-
sonal services, for thirty days’ service performed for such corpora-
tion, but shall not be liable to an action therefor before an execu-
tion or executions shall be returned unsatisfied in whole or in part
against the corporation, and the amount due on such execution or
executions shall be the amount recoverable, with costs, against such
stockholders; before such laborer or servant shall charge such stock-
holder for gudh thirty days’ service, he shall give him notice in
writiag within twenty days after the performance of such service,

that he intends so to hold him liable, and he shall commence gael

action therefbr within thirty days after the return of such execu-
tion unsatisfied, as above mentioned; and every such stockholder
against whom any such recovery by fick laborer or servant shall
have been had, shall have a right to recover the same of the other
stockholders in said corporation, in ratable proportion to the amount
of the stock they shall respectively hold.

Transfer of stock.

§ 19. The stock of every corporation formed under this act
shall be deemed personal estate, and shall be transferable in the
AppiicaBLE Onty to New York Crry, 521

 

The Rapid Transit Act, §§ 20, 21, 22.

 

manner prescribed by the by-laws of the company, but no share
shall be transferable until all previous calls thereon shall have been
fully paid in.

Capital stock, increase or reduction of; statement to be made and filed.

§ 20. Any corporation formed under this act may increase or
reduce its capital stock from time té time upon obtaining the
approval of the board of rapid transit railroad commissioners by a
concurrent vote of six members thereof. Such increase or reduc-
tion must be approved by a vote in person, or by proxy, of two-
thirds in amount of all the stockholders of the corporation, at a
meeting of such stockholders called by the directors of the corpo-
ration for that purpose, by a notice in writing to each stockholder,
to be served on him in the manner provided for service of the

. notice of the subscribers’ meetings provided for in section eleven of

’ this act. Such notice shall state the time and place of the meeting,
and its object, and the amount to which it is proposed to increase
or reduce the capital stock. A statement of the increase or reduc-
tion shall be signed by the president and a majority of the directors
and shall be filed in the office of the secretary of state and of the
clerk of the county in which the original articles of association are
filed. There must be attached thereto a certificate of the approval
of said board of rapid transit railroad commissioners attested in
the same manner as the certificate of full organization.

(Thus amended by L. 1894, ch. 752, § 10.)

Liability of holders of stock in a representative capacity.

§ 21. No person holding stock in any such corporation, as
executor, administrator, guardian or trustee, and no person holding
such stock as collateral security, shall be personally subject to any
liability as a stockholder of such corporation; but the person pledg-
ing such stock shall be considered as holding the same, and shall be

‘liable as a stockholder accordingly; and the estate and funds in the

hands of such executor, administrator, guardian or.trustee shall
be liable in like manner, and to the same extent, as the testator’
or intestate or the ward or person interested in such trust fund
would have been if he had been living and competent to act, and
held the same stock in his own name.

_ Liability of corporation to employes of contractors; notice required
to create such liability. ~
‘ § 22, As often as any contractor for the construction of any

part of a railway, which is in progress of construction under the
provjsions of this act, shall be indebted to any laborer for thirty
522 APppPLicaBLE Onty to New York Crry.

 

‘The Rapid Transit Act, §§ 23, 24.

 

or any less number of days’ labor performed in constructing said
road, such laborer may give notice of such indebtedness to said cor-
poration in the manner herein provided; and said corporation shall
thereupon become liable to pay such laborer the amount so due him
for such labor, and an action may be maintained against said cor
poration therefor. Such notice shall be given by said laborer to
said corporation within twenty days after the performance of the
number of days’ labor for which the claim is made. Such notice
shall be in writing, and shall state the amount and number of days’
labor, and the time when the same was performed and the name of
the contractor from whom due, and shall be signed by such laborer
or his attorney, and shall be served on an engineer, agent or super-
intendent employed by such corporation having charge of the sec-
tion of the road on which such labor was performed personally, or
by leaving the same at the office or usual place of business of such
engineer, agent or superintendent with some person of suitable age.
But no action shall be maintained against any corporation under
the provisions of this section, unless the same be commenced within
thirty days after notice is given to such company by such laborer
as above provided.

Real estate necessary for such corporation; how acquired.

§ 23. Every such corporation shall have the right to acquire
and hold such real estate or easement or other interest therein, or
rights appertaining thereto, as may be necessary to enable it to con-
struct, maintain and operate the said railway, or railways, and such
as may be necessary for stations, depots, engine-house, car-houses,
machine-shops, and other appurtenances specified in the articles of
association; and in case any such corporation can not agree with the
owner or owners of such property it shall have the right to acquire
title to the same in pursuance of the terms of and in the manner
prescribed in title one of chapter twenty-three of the Code of Civil:
Procedure, known as the condemnation law.

See the Railroad Law, section 4, subd. 2, page 213, and the Condemna-
tion Law, post.

Powers; intersections with other railways; entry upon streets; con-
struction and maintenance; excavations; parks and streets; may
borrow money and issue bonds.

§ 24. Every corporation formed under this act shall have
power:

1. To take and hold such voluntary grants of real estate and
other property as shall be made to it, to aid in the construction,
APPLICABLE Onty to New Yorx Crry. 523

 

The Rapid Transit Act, § 24. !

 

Iaintenance and accormodatinn of its railway or railways, but the
real estate received by voluntary grant shall be held and used for
the purposes of such grant only.

2. To purchase, lease, hold and use all such real estate and other
property as may be necessary for the construction and maintenance
of its railway or railways, and the stations or other accommoda-

‘tions necessary to accomplish the objects of its incorporation; but
nothing herein contained shall be held as repealing or in any way
affecting the act, entitled “An act authorizing the construction
of railroads upon Indian lands,” passed May twelve, eighteen hun-
‘dred and thirty-six.

8. To cross, intersect, join and unite its railway or railways with
any other railway at any point on its route and upon the grounds
-of such other railway company, with the necessary turnouts, sidings
and switches and other conveniences in furtherance of the objects
-of its connections. And every corporation whose railway is or shall
be hereafter intersected by any new railway, shall unite with the
-owners of such new railway in forming such intersections and con-
nections, and grant the facilities aforesaid; and if the two corpora-
tions can not agree upon the amount of compensation to be made
therefor, the same shall be ascertained and determined by commis-
‘sioners to be appointed by the court, in the manner provided in
this act in respect to acquiring title to real estate. And if the two*
-corporations cannot agree upon the points and manner of such cross-
ings and -connections, the board of rapid transit railroad commis-
‘sioners shall determine the same on the application of either

. corporation.

_ 4, To take and convey persons and property on its railway or

‘railways by the power or force of steam, or by any motor other than
-animal power, and to receive compensation therefor not inconsistent
with the provisions of this act, and the terms of sale under which.
‘the said corporation shall have acquired its rights, privileges and
‘franchises.

5. To enter upon and underneath the several streets, avenues,
‘public places and lands designated by the said board of rapid transit
railroad commissioners, and enter into and upon the soil of the
same; to construct, maintain, operate and use, in accordance with
‘the plan adopted by said board, a railway or railways upon the route
-or- routes and to the points decided upon, and to secure the neces-
-sary foundations and erect the columns, piers and other structures
which may be required .to secure safety and stability in the con-
-struction and maintenance of the railways constructed upon the

e
524 APPLICABLE Onty To New York Ciry.

The Rapid Transit Act, § 25.

plan adopted by the said board, and which may be necessary for
operating the same, except that nothing in this act shall authorize
the construction of a railway crossing the track of any steam fail-
way-in actual operation at the grade thereof, and it shall be lawful
to make such excavations and openings along the route through
which such railway or railways shall be constructed as shall be
necessary from time to time; in all cases the surface of said streets
around such foundations, piers and columns shall be restored to the
condition in which they were before such excavations were made,

as near as may be, and under the direction of the proper local
authorities; and in all cases the use of the streets, avenues, places
and lands designated by the said board, and the right of way through
the same, for the purpose of a railway or railways, as herein author-
ized and provided, shall be considered, and is hereby declared, to be
a public use, consistent with the uses for which the roads, streets,
avenues and public places are publicly held; but no such corpora-
tion shall haye the right to acquire the use or occupancy of public
parks or squares in such county, or the use or occupancy of any of
the streets or avenues, except such as may have been designated for
the route or routes of such railway, and except such temporary
privileges as the proper authorities may grant to such corporations
to facilitate such construction.

6. From time to time to borrow such sums of money as may
be necessary for completing and finishing or operating their rail-
road, and to issue and dispose of their bonds for such purposes; but
the amount of such bonds outstanding at any one time shall not
exceed the amount limited by the articles of association.

(Thus amended by L. 1892, ch. 556.)

L, 1836, ch. 316, referred to in subd. 2, of the foregoing section, was

repealed by L. 1890, ch. 565, and L. 1892, ch. 687. See the similar pro-
visions in the Railroad Law, sections 4, 9 and 129.

Employes to wear badges.

§ 25. Every conductor, baggage master, engineer, brakeman
or other servant of any railroad corporation employed in a passenger
train, or at stations for passengers, shall wear upon his hat or cap:
a badge, which shall indicate his office, and the initial letter of the
style of the corporation by which he is employed. No conductor
or collector, without such a badge, shall be entitled to demand or
receive from any passenger any fare or ticket, or to exercise any of
the powers of his office; and no officer or servant without such
badge shall have authority to meddle or interfere with any pas~
senger, his baggage or property.
Appricante Onty to New Yorx Crrv. 525

 

The Rapid Transit Act, §§ 26, 27, 28.

 

_ Carrying of mails; extra trains therefor.

§ 26. Any corporation or person operating a railroad under
any provision of this act or of any act supplementary hereto or
amendatory hereof shall, when applied to by the postmaster-general,
convey the mails of the United States on their road or roads. respect-
ively; and in case the parties can not agree as to the rate of trans-
portation therefor, and as to the time, rate of speed, manner and
conditions of carrying the same, it shall be lawful for the governor
of this state to appoint three commissioners, who, or a majority of
them, after fifteen days’ notice in writing of the time and place of
meeting to the corporation, shall determine and fix the prices,
_ terms and conditions aforesaid; but such price shall not be less for
carrying said mails in the regular passenger train¢ than the amount
which such corporation would receive as freight on a like weight
of merchandise transported in their merchandise trains, and a fair
compensation for the post-office car. And in case the postmaster-
general shall require the mail to be carried at other hours, or at a
higher speed than the passenger trains are run, the corporation shall
furnish an extra train for the mail aud be allowed an extra com-
pensation for the expenses and wear and tear thereof, and for the
service to be fixed as aforesaid.

(Thus amended by L. 1895, ch. 519.)

Bjection of passenger refusing to pay fare.

§ 27. If any passenger shall refuse to pay his fare, it shall be
lawful for the conductor of the train and the servants of the corpo-
ration to put him and his baggage otit of the cars, using no unneces-
sary force, at any usual stopping place, on stopping the train.

Accommodations for the conveyance of freight and passengers.

§ 28. Every such corporation shall start and run its cars for
the transportation of passengers and property at regular times, to
be fixed by public’ notice; and shall furnish sufficient accommoda-
tions for the transportation of all such passengers and property as
shall, within a reasonable time previous thereto, be offered for
transportation at the place of starting and the junction of other rail-
roads, and at usual stopping places established for receiving and
discharging way passengers and freight for that train; and shall
take, transport and discharge such passengers and property at, from
and to such places, on the due payment of the freight or fare legally
authorized therefor; and shall be liable to the party aggrieved in an
action for damages, for any neglect or refusal in the premises.
526 APPLICABLE OnLY To New York Crry.

 

The Rapid Transit Act, §§ 29, 30, 31, 32.

Intoxication of employes.

§ 29. If any person shall, while in charge of a locomotive en-
gine running upon the railway of any such corporation, or while
acting as the conductor of a car or train of cars on any such rail-
road, be intoxicated, he shall be deemed guilty of a misdemeanor.

Willful injury to property.

§ 30. If any person or persons shall willfully do, or cause to be
done, any act or acts whatever, whereby any building, construction
or work of or on any part of any railroad either constructed or
operated under any provision of this act or of any act supplemen-
tary hereto or amendatory hereof, or under any provision of any
contract made under this act or any act supplementary hereto or
amendatory hereef, or any engine, machine or structure, or any
matter or thing appertaining to the same, shall be stopped, ob-
structed, impaired, weakened, injured or destroyed, the person or
persons so offending shall be guilty of a misdemeanor, and shall
forfeit and pay to the owner of such building, construction, works,
engine, machine, structure, matter or thing treble the amount of
damages sustained in consequence of such offense.

(Thus amended by L. 1895, ch. 519.)

Dissolution by legislature.

* § 31. The legislature may, at any time, annul or dissolve any
corporation formed under this act; but such dissolution shall not
take away or impair any remedy given against any such corpora-
tion, its stockholders or officers, for any liability which shall have
been previously incurred.

Extension of route; terminal and other facilities; plans; compensa-
tion; consents, how obtained.

§ 32. The said board of rapid transit railroad commissioners
may also from time to time, as in this section hereinafter provided,
with the approval of the board of estimate and apportionment, or
other analogous local authority of such city, grant a right‘or rights,
franchise or franchises or enter into a contractor contracts, upon
application to said board of any railroad corporation, now or here-
after incorporated, for the purpose of constructing and operating
a tunnel railroad or railroads from an adjoining state under the
North or Hudson or Harlem river to a terminus within such city;
or under the North or Hudson river and thence transversely across
and under the surface of the borough of Manhattan and thence
under the East river by the shortest practical route; such railroad
or railroads to be connected with some trunk line railroad or rail-
roads whose terminus or termini are in this or an adjoining state,
APPLICABLE OnLy To New York Ciryv. 527

 

The Rapid Transit Act, § 32.

 

‘thereby forming a continuous line for the carriage of passengers
-and property between a point or points within such adjoining state
and a point. or points within the said city, provided such purpose
is declared in the certificate of incorporation of such corporation.
A similar grant may be made, or a similar contract or contracts
entered into, upon the application of a railroad corporation, own-
ing or actually operating a trunk line railroad whose terminus or
‘termini are within such city, or of.a railroad corporation. owning
or actually operating, or by the certificate-of the board of rapid
transit railroad commissioners hereinafter in this section men-
‘tioned required to own or actually operate, a railroad wholly or
partly within said city and engaged or intended, and in said
‘certificate so recited and required, to: be, in interstate commerce
in connection with a trunk line railroad and which shall have,
-or be required by ‘such certificate to have a terminus or termini
in said city, for the purpose of constructing and operating a
railroad or railroads from such terminus or termini by the short-
-est practicable route to and under or over the East. river or the
North or Hudson river, or the Harlem river, to any point in
this or an adjoining state, or to connect such terminus or termini
with the railroad or terminus of any other such railroad or trunk
line railroad in this state or to straighten or improve the grade
-or alignment of any such railroad or more directly connect any
points thereon. If and when in the judgment of said board the
-public interests so demand, the said board may, with like approval,
-by the concurrent vote of six of its members fix and determine
the route or routes by which any such railroad corporation mak-
ing such application may so establish and construct or so extend
its lines into or within said city, and may authorize any such
railroad corporation to construct and operate- any such railroad
or connecting railroad under any lands, streets, avenues, waters,
rivers, parkways, highways or public places in the said city, and
‘also in the case of any such railroad or connecting railroad which
is, or by the terms of the said certificate of the said board of
rapid transit railroad commissioners is required to be, operated
or used as a part of an interstate trunk line, to construct and
‘operate the same over and across any such lands, waters, rivers,
-streets, avenues, parkways, highways or public places in the said
city, but not over and lengthwise of any streets, avenues or
‘highways, with all. necessary sidings, platforms, stations, facili-
ties for access to the surface and other appurtenances and with
the right to emerge to the surface upon private lands at the
termini, and to transport over the same passengers or freight or
both, and to run over the same either passenger trains or freight
trains or mixed trains. The said board shall, with like approval,

x
528 APPLicaBLE Onty to New York Ciry.
, The Rapid Transit Act, § 32. _

 

fix and determine the locations and plans of construction of the
railroad or railroads upon such route or routes, the times within
which they shall be respectively constructed, the compensation to
be made therefor to the city by the railroad corporation to which
the grant shall be made, or with which the contract shall be en-
tered into, and such other terms, conditions and requirements as.
to the said board may appear just and proper,—provided, how-
ever, that every such grant shall be made and every such contract
entered into upon the condition that the railroad corporation to-
which the grant shall be made or with which the contract shall
be entered into shall, from the time of the commencement of
the operation of any such railroad, annually pay to the said city
a sum or rental, and that the amount of such sum or rental for a
period of not more than twenty-five years, beginning with such
operation of any such railroad, shall be prescribed by the said
board in such grant or contract and that every such grant or con-
‘tract shall provide for the readjustment of the amount of such
sum or rental at the expiration of the period for which the same: «
shall be so prescribed and for readjustment from time to time in
the future of the amount of such annual payment at intervals each
of not more than twenty-five years. A certificate shall be pre-
pared by the said board, attested by its seal and the signature of its
presiding officer, setting forth in detail the action taken and grant
made or contract entered into by the said board with respect to-
such railroad or railroads and the terms, conditions and require-
ment aforesaid, including provisions as to the said annual pay-:
ments and the future readjustments thereof. A like certificate:
shall be prepared in like manner upon every modification of the.
terms of the grant or contract as hereinafter provided. Each such
certificate shall prescribe the terms and conditions of the readjust-
ments of such annual payments and may provide for the deter-
mination of such amount upon such readjustments by arbitration
or by the supreme court. Such certificate shall be delivered to.
said railroad corporation upon the receipt by said board of a writ-
ten acceptance of the terms, conditions and requirements of the
grant or contract, duly executed by said railroad corporation, so:
as to entitle it to be recorded. The said certificate shall. be filed.
in the office of the secretary of state, and a duly certified copy
thereof shall be filed in the office of the clerk of the county in
which the said city is situated, and thereupon, and upon fulfill-
ment by such railroad corporation, so far as it relates to such
railroad or railroads, of such of the requirements and conditions.
as are necessary to be fulfilled in such cases, under section eighteen
of article three of the constitution of this state, and upon fulfill-
ment by such railroad corporation of such other terms, conditions.

e
APPLICABLE Onzty To New Yorx Crry. 529

 

‘The Rapid Transit Act, § 82.

and requirements enumerated in said certificate, as the said board
may require to-be fulfilled as a condition precedent to commencing
said work, said railroad corporation shall in such cases possess in
addition to its already existing franchises all the powers conferred
by this act upon corporations specially formed thereunder, with
respect to its railways authorized to be constructed as aforesaid,
and when any route or routes, rights or franchises, shall be so fixed
and determined, and a certificate as aforesaid shall have been duly
filed, such railroad corporation may construct the same with all the
rights, and with like effect as though the same had been a part of
the original route of its railroad then in actual operation, or as
may be provided in said certificate but in every case subject to all
the provisions and conditions of the said certificate. Every certifi-
cate prepared by the board of rapid transit railroad commissioners ,
as aforesaid when delivered to and accepted by-such railroad cor-
poration, shall be deemed to constitute a contract between the said
city and said railroad corporation, according to the terms of the
said certificate; and such contract shall be enforceable by the said
board acting in the name of and in behalf of the said city or by the
said corporation according to the terms thereof, but subject to the
provisions of this act. The terms of such contract may from time
to time, with like approval and with the consent of-such corpora-,
tion, be modified by the board of rapid transit railroad commission-
ers by the vote of six of its members. But the construction and
operation of such railroad or railroads are hereby authorized only
upon the condition that the consent of the owners of one-half in
‘value of the property bounded on, and the consent also of the local
authorities having the control of that ‘portion of a street or highway
upon, above or under which it is proposed to construct or operate
the same, be first obtained provided that such local authorities
shall, upon the presentation to them of any such grant or contract,
without requiring the execution of any other agreements than those
herein provided for, either approve or disapprove the same; and
every such approval, shall be and be deemed to be, free of all
limitations except those contained in this act or the constitution
of the state. In case the consent of such property owners cannot
be obtained, the appellate division of the supreme court in the
department in which such railroad or railroads are proposed to be
constructed, may, upon application, in the same manner and on the
same notice specified in section five of this act, appoint three com-
missioners, who shall determine after a hearing of all parties inter-
ested, whether the same ought to be constructed or operated, and
their determination, confirmed by the’ court, may be taken in lieu
ef the consent of such property owners. Nothing in this act con-
tained shall be construed as interfering in any way with the juris-
'529-a APPLICABLE OnLy To New York Cirvy.

 

The Rapid Transit Act, § 32-a.

 

diction, powers and duties of the board of railroad commissioners.
of the state of New York, nor shall any grant or contract be made-
hereunder affecting in any way the liabilities and obligations of the-
grantee or contracting railroad corporation with reference to tax-
ation for state or local purposes. The state of New York shall not
be liable for injuries to persons or property in connection with any
railroad or other construction which may be authorized under the.
provisions of this act, nor shall the state of New York be liable for
any damages in any event for any act or omission of the board of
rapid transit railroad commissioners.

(Thus am’d by L. 1895, ch. 519; L. 1902, ch. 584; L. 1906, chs. 472 and 606.)

Connection with other railways; operation of passenger, freight or
mixed trains; adjustment of rental to be paid, etc.

§ 32a. The said board of rapid transit railroad commissioners
may also from time to time, with the approval of the board of
estimate and apportionment, upon application of any person, firm
or corporation owning, leasing, constructing or actually operating
a railroad wholly or in part within the limits of the city in which
the said board has power to act, if in the judgment of said board.
the public interests so demand, by the concurrent vote of six of the:
members of said board, fix and determine the route or routes by
which any such person, firm or corporation may connect with other:
railways, or the stations thereof, or with ferries, or may extend his.
or its lines within said city, and may with like approval authorize
any such person, firm or corporation to lay an additional track or
tracks on, above, under or contiguous to a portion or the whole of the-
route or routes of his or its railway or railways within said city and.
to acquire terminal or other facilities necessary for the accommoda-
tion of the traveling public on any street or place except the place:
known as Battery park on which said railway shall be located; and
may also with like approval authorize any such person, firm or
corporation to lay his or its tracks and operate his or its railway to.
any terminal or terminals within the said city, and to transport
over the same passengers or freight or both, and to run over the.
same either passenger trains or freight trains or mixed trains; and
the said board shall with like approval fix and determine the loca-:
tions and plans of construction of the railways upon such route or
routes and of such tracks and facilities, the times within which
they shall be respectively constructed, the compensation to be made:
therefor to the city by said person, firm or corporation, and such
other terms, conditions and requirements as to the said boards may
appear just and proper, provided, however, that every such deter-:
mination, authorization and license shall be made upon the condi-
tion that such person, firm or corporation shall from the time of
the commencement of the operation of any such railway or track.
.

APPLICABLE OnLy TO New York Crry. 529-b,

 

The Rapid Transit Act, § 32-a.

 

- or tracks under such determination, authorization or license, annu-

’

ally pay to the said city a sum or rental, and that the amount of.
such sum or rental for a period of not more than twenty-five years,
beginning with such operation of any such railway, track or tracks,
shall be prescribed by the said board in such determination, author-
ization and license, and that every such determination, -authoriza-
tion and license shall provide for the readjustment of the amount
of such sum or rental at the expiration of the period for which
the same shall be so prescribed and for readjustment from time to
time in the future, to the end of the period of renewal, if any, of
the amount of such annual payment at intervals each of not more
than ten years. No such determination, authorization or license
shall be made for a longer period than twenty-five years but may

‘ provide for a renewl or renewals thereof not to exceed twenty years

in the aggregate. A certificate shall be prepared by the said board,
attested by its seal and the signature of its presiding officer, setting
forth in detail the action taken by the said board with respect to
such connecting or extended route or routes and such tracks and
facilities, and the terms, conditions and requirements aforesaid,
including provisions as to the said annual payments and the future
readjustments thereof. A like certificate shall be prepared in like
manner upon every modification or renewal of the terms of the
contract as hereinafter provided. Every such certificate shall pre-
scribe the terms and conditions of the readjustments of such annual
payments and may provide for the determination of such amount
upon such readjustments by arbitration or by the supreme court.
Such certificate shall be delivered to said person, firm or corpora-
tion upon the receipt by said board of a written acceptance of said
terms, conditions and requirements, duly executed by said person,
firm or corporation, so as to entitle it to be recorded. The said
certificates shall be filed in the office of the secretary of state, and
a duly certified copy thereof shall be filed in the office of the clerk
of the county in which the said city is situated, and thereupon, and
upon fulfillment by such person, firm or corporation, so far as it
relates to such connections, additional track or tracks, or facilities,
of such of the requirements and conditions as are necessary to be
fulfilled in such cases, under section eighteen of article three of the
constitution of this state, and upon fulfillment by such person, firm
or corporation of such other terms, conditions and requirements
enumerated in said certificate, as the said board may require to be

fulfilled as a condition precedent to commencing said. work, said

person, firm or corporation shall in such cases possess in addition
to existing franchises all the powers conferred by this act. upon
corporations specially formed thereunder, with respect to his or its
railways authorized to be constructed as aforesaid, and when any
route or routes, additional track or tracks, or terminal or other
 

529-¢ APPLICABLE Onity To New York CIry.

The Rapid Transit Act, § 32-2.

 

facilities, shall be so fixed and determined, and a certificate as
aforesaid shall have been duly filed, such person, firm or corpera-
tion may construct the same with all the rights, and with like effect
as though the same had been a part of the original route of his or
its railway then in actual operation or in process of construction,
except that no franchise, right or authority shall be granted under
this section to extend any railway, make any connections, lay any
additiona] track or tracks or acquire any terminal or other facil-
ities for a longer period than the original grant, franchise or con-

tract of the railway to which such extension, connection, additional -

track or tracks, or terminal or other facilities are added, The
certificate or certificates prepared by the board of rapid transit
railroad commissioners as aforesaid when delivered to and accepted.
by such person, firm or corporation, shall be deemed to constitute
a contract between the said city and said person, firm or corpora-
tion according to the terms of the said certificate; and such con-
tract shall be enforceable by the said board acting in the name of
and in behalf of the said city or by the said person, firm or corpo-
ration according to the terms thereof, but subject to the provisions
of this act. The terms of such contract may from time to time,
with the consent of such person, firm or corporation be modified
by the board of rapid transit railroad commissioners by the vote
of six of its members. But the construction and operation of such
connections, extensions, additional track or tracks, or facilities,
are hereby authorized only upon the condition that the consent of
the owners of one-half in value of the property bounded on, and
the consent also of the local authorities having the control of that
portion of a street or highway upon, above or under which it is
proposed to construct or operate the same, be first obtained, or in
case the consent of such property owners cannot be obtained, the
appellate division of the supreme court in the district in which
they are proposed to be constructed, may, upon application, in the
same manner, and on the same notice specified in section five of
this act, appoint three commissioners, who shall determine after a
hearing of all the parties interested, whether the same ought to be
constructed or operated, and their determination, confirmed by the
court, may be taken in lieu of the consent of the property owners.
Every such certificate granting any franchise, right or authority
as aforesaid shall provide that upon the termination thereof all the
rights of property of the grantee in the streets, avenues, parkways,
highways and public places shall cease and terminate without com-
pensation and shall further provide that upon such termination of
such franchise, right or authority the plant and structure together
with the appurtenances thereto, of the grantee constructed pursu-
ant to such certificate, except rolling stock and other movable
equipment, shall become the property of the city without further
ApPLicaBLe Oniy To New York Crrv. 529-d

 

The Rapid Transit Act, § 33.

 

or other compensation to the grantee; but such certificate may pro-
vide that upon such termination there shall be a fair valuation of
the rolling stock and other movable equipment which shall be and
become the property of the city on the termination of the grant on
paying the grantee such valuation. The provisions of this section
shall apply to any railroad or railroads constructed, constructing or
contracted for under the provisions of section thirty-four of this
act, and to any person, firm or corporation constructing or operat-
ing such railroad or railroads. ‘
- (New, added by L. 1906, ch. 472.)
‘Removal and restoration of tracks of other railways; compensation for
damages caused thereby.

§ 33. Wherever or whenever the route selected by the said board
of rapid transit railroad commissioners for the construction of such
railway shall intersect, cross or coincide with any railway track or
tracks occupying the surface of any street or avenues, or the con-
struction or operation of said railway shall interfere with any
‘pipes, sewers, subways, or underground conduits or ways, any cor-
poration organized under this act, or any contractor or persqn
constructing any railway or part of a railway under any contract
made with the board of rapid transit railroad commissioners, is
hereby authorized, for the purpose of constructing the said work .
to remove the track or tracks of any such surface railway or ‘rail-
ways, or any such pipes, sewers, subways, or underground conduits
or ways, but the same shall be done in such manner as to interfere
as little as possible with the practical operation or workings of such
surface railway or railways, or the works or business of the owners
of any such pipes, sewers, subways, or underground conduits or
‘ways, and upon the construction of such railways built under and
in conformity with the provisions of this act, where such removals
or changes have been made, said track or tracks, pipes, sewers, sub-
‘ways or underground conduits or ways shall be restored as nearly
as may be to the condition in which they were previous to the con-

‘struction of any such railway, built under the provisions of this act,

and any damages which such company or companies or owners may
sustain shall be ascertained by a commission to be appointed the
same as in the case where lands are taken for the purpose of a rail-
‘way route or routes as hereinbefore provided in this act. For the
purpose of the construction or operation of any railway under the
provisions of this act, the board of rapid transit railroad commis-
sioners may remove or cause to be removed, any pipes, sewers, sub-
‘ways or underground conduits or ways underneath any street, high-
way, park, or public place; provided, however, that the same shall
be replaced as soon as practicable, either in the same position

.as before or in a secure and convenient position underneath such

street, highway or public place, or underneath such other street,
530 AppricaBLe Onty to New Yorx Ciry.

 

The Rapid Transit Act, § 34.

 

highway or public place as may be approved by the head of the de-
partment of public works of the city. Provided, however, that
nothing in this section contained shall authorize the permanent re-
moval from any street, highway, park or public place of any sub-
ways or conduits for the reception of electrical conductors which
shall have been placed in such street, highway or public place prior
to the construction of the rapid transit railroad, without the consent
of the owner and lessee of such subway or conduit. All such re-
movals and restorations shall be made at the proper cost and charge
of such corporation, contractor or person as may have made such
removals, but subject to the provisions of its, his, or their contract,
if any, with the board of rapid transit railway commissioners.
Nothing contained in this act shall authorize any corporation
formed thereunder to use the tracks of any horse railway. For
the purpose of facilitating construction, and to diminish the period.
of occupancy of any street for the transportation of material, any
contractor acting under a contract made in pursuance of this act,
or of any act supplementary hereto or amendatory hereof, may,
ee : vere me

with the approval of the board of rapid transit railroad commission-
ers, lay upon or over the surface of any street, temporary tram-
ways, to be used only for the removal of excavated materials or the:
transportation of material for use in the construction; provided,
however, that any such tramway shall be forthwith removed upon
the direction of the board of rapid transit railroad commissioners;
and provided, further, that this provision shall not be construed to-
authorize the construction or operation of any street railroad or to-
grant to any corporation, association or individual the right to lay
down railroad tracks.

(Thus amended by L. 1895, ch. 519, and L. 1896, ch. 729; LL. 1904, ch. 564.)
Construction of railway at expense of city; determination by vote of

people ; contracts for construction, maintenance and operation of
road ; rate of fare ; rental for lease of road.

§ 34. In case the people shall determine by vote, as provided’
in sections twelve and thirteen of chapter seven hundred and fifty-
two of the laws of eighteen hundred and ninety-four, that any such
railway or railways shall be constructed for and at the expense of
such city, then and in that event it shall be the duty of said board
to consider the routes, plans and specifications, if any, previously
laid out and adopted by them or their predecessors, and for whick
the consents have been obtained referred to in section five of this:
act: and either to proceed with the construction of such railway
ApPLiicaBLE Onuty To New Yorx Crry. " BBL.

 

The Rapid Transit Act, § 34.

 

or railways, and provide for the operation of the same, as herein--

after provided, or to change and modify the said routes, plans or
specifications in such particulars as to said board may seem to be-
desirable, or from time to time and with or without reference to
former routes or plans to adopt other or different or additional.
routes, plans and specifications for such railway or railways, pro-
vided always, that in all cases in which any such change or modifi-.
cation shall be of such character as to require the consents thereto-
referred to in section five of this act; and in all cases where other:
or different routes or general plans may have been so adopted the
said board shall proceed to secure the consents required to be ob--
tained by section five of this act as therein set forth. If any city
has been or shall have been formed by the union or consolidation
of one or more cities and other territory, and if in or for one of
such cities so consolidated or united there shall have been a board:
of rapid transit railroad commissioners as provided in this act, the
board of rapid transit railroad commissioners for the said city
formed by such union or consolidation shall have for and within
such city so formed all the powers, and be subject to all the duties.
and responsibilities, which at the time of such union or consolida-
tion belonged to the board of rapid transit railroad commissioners.
of the former city so as aforesaid possessing such board for or
in or with respect to such former city. If in such former city the
vote of the qualified electors thereof shall have been for municipal
construction of rapid transit road as prescribed in sections twelve
and thirteen of chapter seven hundred and fifty-two of the laws.
of eighteen hundred and ninety-four, then the system of municipal.
construction of rapid transit railways provided for in this act and
all of the provisions with respect thereto in this act contained shall
be applicable to, and in full force Within, all the districts or bor-
oughs and throughout the entire area of the said city formed by
such union or consolidation. The board of rapid transit railroad
commissioners for any city shall, prior to the time of the final grant
of any franchise under the provisions of this act or the making
of a contract for construction of any railroad under the pro-
visions of this act have power to rescind and revoke any reso-
lution or resolutions of such board adopting any routes or general
plan for a rapid transit railroad adopted by such board and,
in the discretion of such board, in lieu thereof to adopt new
routes and general plan. Every such rescindment or revocation
582 APPLICABLE OnLy To New York CIrv.

 

The Rapid Transit Act, § ‘34.

 

which shall have been heretofore made shall be deemed to have
been lawful and authorized by this act as the same was‘prior to the
present amendment hereof. As soon as such consents, where nec-
essary, shall have been obtained for any rapid transit railroad
or railroads, and the detailed plans and specifications have been
prepared as provided in section six of this act, the said board, for
and in behalf of said city, shall enter into a contract with any per-
son, firm or corporation, which in the opinion of said board shall
be best qualified to fulfil and carry out said contract, for the con-
‘etruction of such road or roads, including such galleries, ways,. sub-
ways and tunnels for subsurface structures as said board may
include in the plans for such road or roads under the authority of
section six of this act; upon the routes and in accordance with the
plans and specifications so adopted, for such sum or sums of money,
to be raised and paid out of the treasury of said city, as hereinafter
provided, and on such terms and conditions, not inconsistent with
the aforesaid plans and specifications, as said board shall deter-
mine to be best for the public interests. The sum or sums of money
to be paid for the construction of such road or roads shall be sepa-
rately stated in the contract from the sum or sums to be paid for
any galleries, ways, subways or tunnels for subsurface structures,
the construction of which is provided for in such contract. And
said board may in any case contract for the construction of the
whole road, or all the roads provided for by the aforesaid plans in
a single contract, or may by separate contracts, executed from time
to time, or at the same time, with one or more such persons, firms
or corporations provide for the construction of parts of said road
or roads or for the construction at first of two or more tracks over
a part or parts of such road or roads and afterwards of one or more
additional tracks over a part or parts of such road or roads as the
necessities of said city and the increase of its population or the
advantageous and economical performance of the work may in the
judgment of said board require. The board may also, in a contract
for a part of any such rapid transit railroad, insert a provision
that, at a future time, upon the’ requirement of the board, the con-
tractor shall construct the remainder or any part of the remain-
der of said road, as the growth of population or the interests of the
city may, in the judgment of the board, require, and may, in such
contract, insert a provision of a method for fixing and ascertaining
at such future time the amount to be paid to the contractor for
such additional construction, and to the end of such ascertainment,
may provide for arbitration or for determination by court of the
amount of such compensation. or of any other details of construe-
tion which shall not be prescribed in the contract, but which shall
be deemed necessary or convenient by said board. Any such con-
APPLICABLE Onity to New Yorx Crry. 533

The Rapid Transit Act, § 34.

tract may provide, if the public interest shall, in the opinion of
the board, justify the provision, that the construction of any sec-
tion or portion of the railroad included in such contract may, with
the consent of the board, be suspended during the term of opera-
tion of the railroad as hereinafter mentioned, or any part of such
term; provided that during such term or part of term there shall
be available for use, in lieu of such portion of the road, a railroad
or a portion or section thereof, which shall, with the railroad or
portion of railroad constructed under such contract form a con-
tinuous and convenient route. Any such contract may be made for
the construction of said road in sections, or for the construction
of any section or sections thereof; and, except as herein otherwise
provided, every such contract shall specify when the construction of
the railroad or the section or sections thereof included therein shall
be commenced in each case, and, in each case, the date of completion.
The said board may by any such contract determine when and how
the work of construction of the rapid transit railroad or railroads
included therein shall proceed. The said board of rapid transit
railroad commissioners may also provide for the equipment at pub-
lic expense of such railroad or railroads in connection with the
construction thereof, and may include in any contract for con-
struction authorized by this act provision for the equipment, or
any part thereof, of such railroad or railroads, but may make a
separate contract or contracts.for the whole or any part of such
equipment with the constructing contractor or contractors or any
other responsible persons, firms or corporations.

(New provisions added by L. 1894, ch. 752, as am’d by L. 1895, ch. 519;
L. 1896, ch. 729; L. 1900, ch. 616; L. 1902, ch. 544; L. 1905, ch. 599; L. 1906,
ch. 472.)

See saving: clause in L. 1905, ch. 599, § 3. .

The Appellate Division has power to confirm a report, subject to cer-
tain conditions as to security required of the contractor. (Matter of
Rapid Transit Comrs., 26 App. Div., 608.)

The principle of local self-government is not infringed by this law.
(Sun Pubg. Assn. v. Mayor, etc., 8 App. Div., 230; aff’d, 152 N. Y., 257.)

The provision authorizing the board to contract for the construction
and lease of the road for a long term of years does not violate the con-
stitutional provision that “no county, city, town or village ‘shall here-
aftet give any money or property, or loan its money or credit to or in
aid of any individual association or corporation.” Sun Publishing Assn.
v. Mayor, etc., 158 N. Y., 257, aff’g 8 App. Div., 230.)

A city has a right to lease its property. (Sun Pubg. Assn. v. Mayor,
ete., 8 App. Div., 230; aff’d, 152 N. Y., 257.)

The proposed construction by the city, at its own expense, of a rail-
road, under the Rapid Transit Acts, on the failure of private enterprise
to intervene, is necessary for the welfare of the people, is public in char-
acter, and, hence, is for a “city purpose.” (Sun Publishing Assn. v.
Mayor, etc., 152 N. Y., 257, aff’g 8 App. Div., 230.) ‘

The provision of article 8, section 10, of the Constitution, that “no

county, city, town or village shall hereafter give any money or property, ~~”

or loan its money or credit to or in aid of any individual, association or*
tr

an
{
7 +
5384 APPLICABLE OnLy To New York Crrvy.

 

The Rapid Transit Act, § 34-a.

 

-corporation, or become directly or indirectly the owner of stock in,, or
bonds of, any association or corporation,” does not prohibit municipali-
ties from constructing their own roads and paying therefor, when neces-
‘sary and authorized by the Legislature, and does not apply to a railroad
‘constructed or owned by a municipality, or affect the character of the
use or the purpose for which it was constructed. (Sun Publishing Assn.
v. Mayor, ete., of New York, 152 N. Y., 257, aff’g 8 App. Div., 230.)

To constitute a “city purpose,” within the meaning of the provision of
article 8, section 10, of the Constitution, which prohibits cities from
incurring any indebtedness except for a city purpose, the purpose must
be necessary for the common good and general welfare of the people of
the municipality, sanctioned by its citizens, public in character and
authorized by the Legislature. (Sun Publishing Assn. v. Mayor, etc., 152
N. Y., 257, aff’g 8 App. Div., 230.)

Railroads are highways, and as such may properly be deemed to be for
‘municipal purpose, when constructed by a municipality. (Id.)

Railroads being necessary for the common welfare of the people,
required for their use and public in character, are for a “ city purpose,”
within the meaning of the Constitution, when authorized by the Legis-
lature and constructed and owned by the city in whose territory they
are located. (Id.)

The question whether the municipal construction of a rapid transit
railway within the city limits for the benefit mainly of the people of the
‘city is inherently a city purpose, is one which must be determined apart
from the machinery provided for effecting that purpose, as the statutory
provisions regulating the construction, control and operation of such a
railway have no weight in determining whether such a road is a legiti-
mate city purpose. (Sun Publishing Assn. v. Mayor, etec., 8 App. Div.,
250; aff'd, 152 N. Y., 257.) The fact that the rapid transit commissioners
are appointed directly by the Legislature, and the fact that the statute
contemplates the leasing of the railroad when it is constructed, have no
Significance in the decision of the question. (Id.)

See Matter of Rapid Transit R. R. Comrs., 5 App. Div., 290.

§ 34-a. The board of rapid transit railroad commissioners shall,
‘subject to the approval of the board of estimate and apportionment,
-or other analogous local authority of such city, have full power
and authority to provide for the maintenance, supervision, care
and operation of the railroad or railroads, including the aforesaid
galleries, ways, subways and tunnels for subsurface structures and
all other appurtenances, constructed or to be constructed for and
at the expense of such city pursuant to the provisions of this chap-
ter, and may, with like approval, enter into a contract with any
person, firm or corporation, who or which in the opinion of said
board of rapid transit railroad commissioners shall be best qualified
to fulfill and carry out said contract, for the equipment, or any part
thereof not provided for pursuant to the next preceding section of
this act, of such road or roads, at his or its own cost and expense,
and for the maintenance and operation of such road or roads for
a term of years to be specified in said contract and not to exceed
twenty years. Every such contract shall contain such terms and
conditions as to the rates or fare to be charged and the character
of services to be furnished and otherwise as said board of rapid

_, transit railroad commissioners shall deem to be best suited to the
APPLICABLE OnLy To New York Crry. 535

 

The Rapid Transit Act, § 34-a.

 

public interests, and subject to such public supervision and to such
conditions, regulations and requirements as may be determined
upon by said board, with like approval; provided, that in case dif-
ferent parts of a road shall be constructed at, different times or
at intervals of time, or if the contract shall provide for the use by
the contractor of an existing railroad as part of a continuous route
as aforesaid, then and in any such case the board of rapid transit
railroad commissioners may, in its discretion, prescribe periods for
the operation of the different parts of said road so that at one
period of time in the future the board may be enabled to make
a single operating contract or lease of the entire road. Livery such
contract shall further provide that the person, firm or corporation
‘so contracting to equip, maintain and operate said road shall annu-
ally pay into the treasury of said city, as rental for the use of
said road, a sum which shall not, except as hereinafter provided,
be less than the annual interest upon the bonds to be issued by: said
city for the construction and equipment of said road as hereinafter
provided for, and in addition to said interest, a further sum which
shall be equal to a percentage of not less than one per centum
upon the whole amount of said bonds; provided, that in estimating
‘such annual interest and additional percentage there shall be
deducted from the amount of said bonds the amount thereof issued
to pay for rights, terms, easements, privileges or property other
than lands acquired in fee, and also the amount thereof issued to
pay for the construction of galleries, ways, subways and tunnels
for subsurface structures. And provided, further, that the said
contract may, in the discretion of the said hoard, provide that the
payment of the said further sum of not less than one per centum
upon the amount of said bonds as aforesaid, shall begin at a date
not more than five years after the date at which the payment of
rental shall begin, and that the said annual rate, instead of one
per centum, may be a rate not less than one-half per centum for
a further period not exceeding five years; but in case the con-
tractor shall, during any year in which the said payment of one
per centum shall be suspended or reduced as aforesaid, earn a
greater profit upon his, its or their net capital invested in the
enterprise than five per centum, then the surplus of his, its or their
earnings for such year up to the extent of at least one per centum
shall be paid as rental as aforesaid. Such rental and the term
for the operation of the railroad included in any such contract
shall begin, as to said road, or any section thereof, when the same
shall be declared by the board of rapid transit railroad commis-
sioners to be completed and ready for operation. For the pur-
-pose of estimating’ such one per.centum per annum upon the dscer-
tginment of the amount of such rental, there shall be included
536 APPLICABLE OnLy To New Yorx Crry.

 

The Rapid Transit Act, § 34-a.

 

such portion of the said bonds as shall have been issued to pay
interest on bonds theretofore issued under the provisions of this
act, except bonds issued to pay for rights, terms, easements, privi-
leges or property other than lands acquired in fee. The afore-
said annual rental shall be paid at such times during each year as
said board shall require, and shall be applied first to the payment.
of the interest on said bonds, as the same’shall accrue and fall
due, and the remainder of said rental not required for the pay-
ment of said interest shall be paid into the sinking fund, for the
payment of the city debt, if there shall be such sinking "fund in
said city, or, if there be none such, then said balance of said rental
shall be securely invested, and, with the annual accretions of
interest thereon, shall constitute a sinking fund for the payment
and redemption at maturity of the bonds issued, as hereinafter
provided. Any such contract may also provide for a renewal or
renewals not to exceed twenty years in the aggregate of the lease
of said road upon the expiration of the original term upon such
terms and conditions, to be approved by the board of estimate
and apportionment, or other analogous local authority of such
city, as to said board of rapid transit railroad commissioners may
seem just and proper, and may also contain provisions for the valu-
ation of the whole or a part of the property of said contracting
person, firm or corporation, employed in and about the equipment,
maintenance and operation of said road, and for the purchase
of the same by the city, at such valuation, or a percentage of the
same, should said lease not be so renewed at any time. Such con-
tract shall also state the daté on which the operation of the road,
or of any section thereof, shall commence. The city in and for
which said road shall be constructed shall also have a first lien
upon the rolling stock and other property of said contracting per-
son, firm or corporation, constituting the equipment of said road
and used or intended for use in the maintenance and operation of
the same, as further security for the faithful performance by such
contracting person, firm or corporation of the covenant, conditions
and agreements of said contract, on his, their, or its part to be ful-
filled and performed, and in case of the breach of any such cove-
nant, condition and agreement said lien shall be subject to fore-
closure by action, at the suit of such city, in the same manner, as
far as may be, as is then provided by law in the case of foreclosure
by action of mortgages on real estate. The said board of rapid
transit railroad commissioners may, however, from time to time,
by a concurrent vote of six of the members of said board, relieve
from such lien, any of the property to which the same may attach,
upon receiving additional security, which may be deemed by said
board so voting to be the equivalent of that which it is proposed
APPLICABLE Onty To New Yorx Ciry. 587

 

The Rapid Transit Act, § 34-a.

 

to release and otherwise upon such terms as to such board so voting
shall seem just. ‘The said contract shall further provide that in
case of default in paying the annual sum or rental therein provided
for, or in case of the failure or neglect on the part of said con-
tracting person, firm or corporation, faithfully to observe, keep
and fulfill the conditions, obligations and requirements of said
contract, the said city, by its board of rapid transit railroad ‘com-
missioners, may take possession of said road and the equipment
thereof, and as the agent of said contracting person, firm or cor-
poration, either maintain and operate said road, or enter into a
contract with some other person, firm or corporation for the main-
tenance and operation thereof, retaining out of the proceeds of
such operation, after the payment of the necessary expenses of
operation and maintenance, the annual rental hereinbefore referred
to, and paying over the balance, if any, to the person, firm or
corporation with whom the first contract above mentioned was
made, and if such proceeds of the operation of said road, after
the payment of the necessary expenses of maintenance and opera-
tion, including the keeping in repairs of the rolling stock and
other equipment, shall in any year be less than the annual rental
hereinbefore referred to and provided in the first contract, then
and in that case, the said contraeting person, firm or corporation,
and his or its bondsmen, shall be and continue (but in the case
of any bond hereafter executed each bondsman only. to the extent
of the liability expressly assumed by him upon the bond) jointly
and séverally. liable to the aforesaid city for the amount of such
deficiency, until the end of the full term for which the said first
contract was originally made. Any existing railway corporation
owning or actually operating a railway wholly or in part within
the limits of the city in and for which said board has power to
act, and approved by the said board of rapid transit railroad
commissioners, shall be competent and is hereby authorized to enter
into any contract for the equipment, maintenance and ‘operation
of any railway pursuant to the provisions of this chapter, or,
after such a contract shall have been made, shall be competent and
is hereby authorized, with the approval of the said board, to con-
tract with the original contractor or his assignee or assignees for
the maintenance and operation (including the equipment or any
part thereof) of any railway constructed or in process of con-
struction pursuant to the provisions of this chapter, and shall have
all the powers necessary to the due performance of such contract.
A corporation may be organized under the railroad law of this
state, for the purpose of maintaining and operating a railway
(including the equipment or any part thereof) already constructed
or in process of construction pursuant to the provisions of this
538 APPLICABLE OnLy To New Yorx Crry.

The Rapid Transit Act, § 34-b.

chapter; and any corporation so organized, upon the approval in
writing of the said board of rapid transit railroad commissioners,
shall, in addition to the powers conferred by the general act under
which such corporation is organized, be empowered, and is hereby,
authorized to enter into any contract permitted by law for the
maintenance and operation when constructed (including the equip-
ment or any part thereof if desired), as the case may be, of any
such railway constructed or to be constructed at the expense of the
city as in this act provided. The certificate of such approval shall
be filed in the office of the secretary of state, and a copy thereof
certified to be a true copy by the secretary of state or his deputy,
shall be evidence of the fact therein stated. A corporation so
organized shall not be required to procure the consent of the board
of railroad commissioners of the state as provided for in section
fifty-nine of the railroad law. Where in this section or in seetion
thirty-four of this act the consents referred to in section five of this
act are mentioned, they shall be construed to include any consent
given by the commissioners appointed by the general term or appel-
late division of the supreme court, and confirmed by the said gen-
eral term or appellate division in lieu of the consent of property
owners as hereinbefore provided.
(New, added by L. 1906, ch. 472.)

§ 34-b. If in the opinion of the board of estimate and appor-
tionment, or other analogous local authority of such city, a con-
tract for the equipment, maintenance and operation as provided
for in the preceding section shall be inexpedient, impracticable
or prejudicial to the public interest, the board of rapid transit
railroad commissioners may, with the approval of the board of
estimate and apportionment, or such other analogous authority,
equip the said road or roads in whole or in part, for and at
the public expense, by contract or contracts therefor subject to the
provisions of section thirty-six of this act, and enter into a contract
with any person, firm or corporation, who or which, in the opinion
of said board of rapid transit railroad commissioners, shall be best
qualified to fulfill and carry out said contract, for the maintenance
and operation of such road or roads for a term of years to be speci-
fied in said contract, and not to exceed ten years. The provisions
of the foregoing sections in respect of a contract or contracts for
the equipment, maintenance and operation of. such road or roads
shall apply to such contract for maintenance and operation so far
as such provisions are pertinent and applicable thereto except that
the annual rental to be paid into the city treasury for the use of
said road or roads shall be based upon the total amount of bonds
issued by said city for the construction and equipment, instead of
for the construction alone, of said road or roads as hereinafter pro-
APppPLicaBLE OnLy to New Yorx Gim. 539

 

The Rapid Transit Act, § 34-c.

 

-vided for and that. the renewal or renewal of said contract provided
for therein shall not exceed in the aggregate ten years.
(New, added by L. 1906, ch. 472.)

§ 34-c. Every contract for the construction or operation of such
‘road or roads shall provide by proper stipulations and covenants
-on the part of the said city, that the said city shall secure and
assure to the contractor, so long as the contractor shall perform the
-stipulations of the contract, the right to construct or to operate
the road as prescribed in the contract, free of all right, claim or
-other interference, whether by injunction, suit for damages or
-otherwise, on the part of the owner, abutting owner, or other per-
‘son, The person, firm or corporation bidding or contracting for
‘the construction, equipment, maintenance or operation of the rail-
‘road or railroads included in any such contract shall make such
-deposit of cash or securities and shall give a bond to said city, in
-such amount as said board of rapid transit railroad commissioners
shall require, and with sureties to be approved by said board, who
shall justify each in double the amount of his liability upon said
“bond. Said bond shall be a continuing security, and shall provide for
‘the prompt payment by said contracting person, firm or corpora-
-tion,-of the amount of annual rental, if any, specified in the afore-
-said contract, and also for the faithful performance by said con-
‘tracting person, firm or corporation of all the conditions, covenants
and requirements specified and provided for in said contract. In
‘lieu of said continuing bond such contracting person, firm or corpo-
ration may, upon the approval of the said board, deposit with the
-comptroller or other chief financial officer of such city cash equal
in amount to the entire amount of the said bond or securities which
_are lawful for the investment of the funds of savings banks within
this state and are worth not less than the entire amount of such
‘pond. If such bond shall have been given then after the deposit
-of cash and securities in lieu thereof as aforesaid, and the approval
thereof by the said board, the said bond shall be surrendered by
the said' city to the said contracting person, firm or corporation
-duly canceled by the comptroller or other chief financial officer of
the said city. In the event of the deposit of cash or securities as
aforesaid, the contract may provide for the payment to the con-
tractor of the income of such securities or of interest upon such
“moneys at a rate not higher than the highest rate received by the
-city upon the deposit of its funds with banks, and may also provide
for withdrawal of securities so deposited upon deposit of cash or
-securities of the same value, provided that all such securities shall
sbe such as are so lawful for the investment of the funds of savings
“banks. The said board may in or by any such contract and in its
-discretion require, and this act, as the same was prior to the pres-

’
 

‘540 APPLICABLE OnLy To New Yorxk City.
The Rapid Transit Act, § 34-c.

ent amendment thereof shall be deemed to have authorized the said
board to have heretofore required any other security upon any such.
contract. No contract entered into under authority of this act shall
be assigned without the written consent of the said board of rapid
transit railroad commissioners, concurred in by six members of
said board. The said contracting person, firm or corporation, with
such written consent and upon such terms and conditions as the
said board shall prescribe, may either assign the whole of such con-
tract or separately the right or obligation to maintain and operate:
the said road or roads for the remainder of the term of years speci-.
fied in such contract and all rights with respect to such mainte-
nance and operation, or included in the leasing provisions of such.
contract, but subject to all the terms and conditions therein stated ;.
provided, however, that the assignee or assignees shall, in and by
such assignment, assume all of the obligations of the original con-.
tractor under or with respect to such leasing provisions and all.
obligations which relate in ‘any way to such operation and mainte-
nance, and provided, further, that the said board before giving its.
consent shall be satisfied that the pecuniary responsibility of the:
assignee or assignees shall be no less than that of such original.
contractor; and provided, further, that all of the security or secur-
ities which the city shall have received for the performance by the:
original contractor of such leasing provisions and of all provisions.
of the contract with respect to such operation and maintenance
shall continue in full force as provided in such contract, or ‘any
modification thereof, as security for the performance by such
assignee of all obligations of the contractor under or with respect
to such leasing provisions and such maintenance or operation. It.
shall be deemed to be part of every such contract that, in case the-
board of. rapid transit railroad commissioners shall cease to exist,
the legislature may provide what public officer or officers of the city
shall exercise the powers and duties belonging to the board of rapid.
transit railroad commissioners under or by virtue of any such con-
tract, and that in default of such provision, such powers and duties.
shall be deemed to be vested in the mayor of the city. Every
such contract shall provide that if the contracting person, firm
or corporation shall fail to construct, equip, maintain or operate.
the railway according to the terms of the contract, and shall,
after due notice of its default, omit for more than a reasonable
time to comply with the provisions of such contract, the board of
rapid transit railroad commissioners may bring an action in the
name and in behalf of the city to forfeit and vacate all the rights.
of such contracting person, firm or corporation under such contract,

and for damages and otherwise as may be necessary for the suf-

ficient and just protection of the rights of the city; or may, upon
such terms as to the board of rapid transit railroad commissioners.

pin ae
See

sek
APPLICABLE OnLY To New Yorx Crry. 540-2.

 

‘The Rapid Transit Act, § 34-d.

 

seem just, and with such person or corporation as to the said board
may seem proper, make another operating contract and lease of the.
said road for the residue of the term of the contractor in default;
and may bring action in the name and on behalf of the city to
recover from the contractor the amount due from the contractor,
Jess the amount which shall have been received by the city, under
or by virtue of such new contract, and for all other damages sus-
tained by the city by reason of such default.
(New, added by L. 1906, ch. 472.)

§ 34-d. If in the opinion of the board of estimate and appor-
‘tionment, or other analogous local authority of such city, either a
contract for equipment, maintenance and operation, or a contract
for maintenance and operation as provided for in the preceding
sections would be inexpedient, impracticable or prejudicial to the
public interest, the board of rapid transit railroad commissioners
shall forthwith devise and prepare a plan for the maintenance and’
operation of such road or roads, and when said plan shall have been
approved by the board of estimate and apportionment, or other
analogous local authority of such city, the said board of rapid
transit railroad commissioners shall maintain and operate such
road or roads for and on behalf of said city. The rates of fare
provided for in any operating contract or plan aforesaid shall be
adjusted, fixed and readjusted always with a view to securing suf-
ficient receipts therefrom, when added to the net revenues from
such galleries, ways, subways or tunnels, and all other sources inci-
dental or appurtenant to the use and operation of said road or
roads, to provide for operating expenses, maintenance, interest on
the cost, all other proper charges, and a sinking fund to discharge
the bonds issued for the construction and equipment of such road
or roads within a reasonable period, without recourse to taxation.
Whenever it shall seem practicable to reduce rates of fare, the
reduction shall in the first instance be in favor of school children,
and then, next in order, in favor of all the public between six and.
‘nine o’clock ante meridian, and between four and seven o’clock
post meridian, and then for all the public from five o’clock ante
meridian until seven o’clock post meridian, and, lastly, for all the
public at all times. No part of any road or roads or of its or
their appurtenances, constructed under the authority of this act,
shall be used for advertising purposes, except that the person, firm
or corporation operating such road or roads may use the struc-
ture for posting necessary information for the public relative to
the running of trains and to the operation of the road or roads.
Nor shall any trade, traffic or occupation, other than required for
the operation of said road or roads, be permitted thereon: or in
_-the stations thereof, except. such sale of newspapers and period-
icals as may, from time to time, always with the right of revoca-
540-b APPLIcaBLE Onty to New Yorx Crry.

 

The Rapid Transit Act, §§ 34-e, 35, 36.

 

tion, be permitted by the board of rapid transit railroad

commissioners, at
(New, added by L. 1906, ch. 472.)

§ 34-e: Nothing contained in this act shall be deemed, or be
construed as intending, to limit, or as limiting, in any manner,
the discretion of the board of rapid transit railroad commissioners,.
provided in the opinion of the board of estimate and apportion-
ment, or other analogous local authority of such city, it is expedi-
ent, practicable and in the public interest to do so, to enter into
contracts for construction, equipment, maintenance and operation
with the same person, firm or corporation, or for any one or more
of said purposes with the same person, firm or corporation, or with.
different persons, firms or corporations, either in one contract or
im separate contracts, and at any time or times.

(New, added by L. 1906, ch. 472.)

§ 35. The equipment to be supplied by the person, firm or eor-
poration contracting for the equipment or any part thereof, of
any such road shall include all such rolling stock, motors, boilers,.
engines, wires, ways, conduits and mechanisms, machinery, tools,
implements and devices of every nature whatsoever used for the
generation or transmission of motive power and including’ all
power houses, and all apparatus and all devices for signaling and
ventilation as may be required for the operation of such road and
specified in the contract for such equipment.

(Added by L. 1894, ch. 752; am’d by L. 1896, ch. 729; L. 1900, eh. 6163,
L. 1905, ch. 599; L. 1906, ch. 472.)

See saving clause in L. 1905, ch. 599, § 3.

Advertising for proposals.

§ 36. The said board of rapid transit railroad commissioners
before awarding any contract or contracts shall advertise for pro-
posals for such contracts by a notice to be printed twice a week for
three successive weeks in no less than four of the daily newspapers:
published in said city, and in such newspapers published elsewhere.
than in said city as said board shall determine. Such notice shall
set forth and state the points within said city, between which said.
road or roads is or are to run, the general method of construction,
the route or routes to be followed, the term of years for whick it is.
proposed to make such contract, and such other details and specifi-
‘eations as said board shall deem to be proper. Said notice shall
state the time and place at which said proposals will be opened, and.
the said board shall attend at the time and place so specified, and
shall publicly open all proposals that shall have been received, but
the said board shall not be bound to accept any proposals so re-
ceived, but may reject all such proposals and readvertise for pro-
posals in the manner hereinbefore provided, or may accept any of
Amendment of 1907.

 

(Insert facing page 541, White on Corporations, 6th edition.)

Laws of 1907, chapter 534, amends the Rapid Transit Act, section 37, so
that the first sentence thereof shall read as follows:

‘. § 37. For the purpose of providing the necessary means for such construc-
tion, or equipment, or both, as the case may be, at the public expense, of any
such road or roads, including galleries, ways, subways and tunnels for sub-
‘surface structures, and the necessary means to pay for lands, property, rights,
terms, privileges and easements, whether of owners, abutting owners, or
‘others, which shall be acquired by the city for the purposes of the construc-
‘tion or the operation of such road or roads as hereinafter provided and of
meeting the interest on the bonds in this section hereinafter provided for
accruing thereon prior to the completion and readiness for operation of the
portion of such road or roads, and the galleries, ways, subways and tunnels
for subsurface structures, for the construction, or equipment of which such
bonds shall have been respectively issued, the board of estimate and appor-
tionment, or other local authority in said city, in which such road or roads
are to be constructed, having power to make appropriations of moneys to be
raised by taxation therein, from time to time, and as the same shall be
fiecessary, and upon the requisition of said board of rapid transit railroad
commissioners, shall direct the comptroller, or other chief financial officer of
said city, and it shall thereupon become his duty, to issue the bonds of said
city at such w rate of interest, as the board of commissioners of the sinking
fund of said city, if there be such a board, or if there be no such board then
as other local authority directing the issue of such, bonds, may pre-
scribe, * * *

i A provision limiting the rate of interest to 4 per cent. was eliminated by
the amendment.
15
APPLICABLE On ty to New Yorx Crry. 541

 

_ The Rapid Transit Act, § 37.

such proposals as will, in the judgment of such board, best promote
the public interest, and award a contract accordingly.

New, addéd by L. 1894, ch. 752, and amended by L. 1895, ch. 519.)
Bonds; issue of to provide for constriction.

-§ 37. For the purpose of providing the necessary means for
such construction, or equipment, or both, as the case may be, at
the public expense, of any such road or roads, including galleries,
ways, subways and tunnels for subsurface structures, and the

- hecessary means to pay for lands, property, rights, terms, privi-
leges and easements, whether of owners, abutting owners, or
others, which shall be acquired by the city for the purposes of
the construction or the operation of such road or roads as herein-
after provided, and of meeting the interest on the bonds in this
section hereinafter provided for accruing thereon prior to the
completion and readiness for operation of the portion of such toad
or roads, and the galleries, ways, subways and tunnels for subsur-
face structures, for the construction, or equipment of which suichi
bonds shall have been respectively issued, the board of estimate
and apportionment, or other local authority in said city, in which
such road or roads are to be constructed, havitig power to make
appropriations of moneys to be raised by taxation therein, from
time to time, and as the same shall be necessary, and upon the
requisition of said board of rapid transit railroad commissioners
shall direct the comptroller, or other chief finaricial officer of sai
city, and it shall thereupon become his duty, to issue the botids of
said city at such a rate of interest, not exceeding four per centum

“per annum, as said board of estimate and apportionment, or other
loeal authority directing the issué of such bonds, may prescribe.

_ Said bonds shall provide for the payment of the principal and
interest in gold coin of the United States of America. They shall

not be sold for less than the par value thereof, and the proceeds
of the same shall be paid out and expended for the purposes for
which the same are issued, upon vouchers certified by said board
of rapid transit railroad commissioners. Said bonds shall be free
_ from all taxation for city and county purposes, and shall be pay-
able at matutity out of the sinking fund for the payment of the
city debt, if there be such a sinking fund of said city; but if there
be no such sinking fund, then out of a sinking fund to be estab-
lished and created out of the annual rentals or revenues of said
road incltiding galleries, ways, subways, or tunnels for subsurface
structures, a8 totelithofate provided. But this provision that the
éaid bonds shall be payable out of such sinking fund shall not
diminish or affect the obligation of said city as a debtor upon said
bonds, or any other right or remedy of any holder or owner of any
such bonds, to collect the principal or interest thereof. The amount
 

_ 542 APPLICABLE OnLy TO New Yorx Ciry.

 

The Rapid Transit Act, § 38.

 

of bonds authorized to be issued and sold by this section shall not
exceed the limit of amount which shall be prescribed by the board
of estimate and apportionment or such other local authority having
power to make appropriations of moneys to be raised by taxation;
and no contract for the construction of such road or roads shall
be madé unless and until such board of estimate and apportion-
ment or such other local authority shall have consented thereto
and prescribed a limit to the amount of bonds available for the
purposes of this section which shall. be sufficient to meet the re-
quirements of such contract in addition to all obligations there-
tofore incurred and to be satisfied from such bonds. Before
finally fixing the terms and conditions of any contract for any of
the purposes contained and set forth in this act, the board of
rapid transit railroad commissioners of the appropriate city shall
set a date or dates for a public hearing upon the proposed terms
and conditions thereof, at which citizens shall be entitled to appea>
and be heard. -No such hearing shall be held, however, until notice
thereof shall have been published for at least two weeks immedi-
ately prior thereto in the City Record, or other official publication
of the city, and at least twice in two daily newspapers published
in the city, to be designated by the mayor. It shall be the duty
of the board of rapid transit railroad commissioners to cause not
less than five hundred copies of a draft of the proposed contract
to be printed at least two weeks in advance of such hearing. The
said notice of such public hearing shall state where copies of such
drafts may be obtained upon payment of a fee, to be fixed by said
board, but not to exceed one dollar for each such copy. The said
board may, after the hearing to be held as above required, alter,
modify or amend such draft contract in any manner in its
discretion. :

(Added by L. 1894, ch. 752, as am’d by L. 1895, ch. 519; L. 1904, ch. 562;
L. 1906, chs. 472 and 607.)

Contract and plans; changes or modifications.

§ 38. The board of rapid transit railroad commissioners, for
and on behalf of the said city in which such road or roads may be
constructed, may, from time to time, with the concurrence of six
members of said board and the consent, in writing, of the bondsmen
or sureties of the person, firm or corporation which has contracted
to construct, equip, maintain or operate said road or roads, or any
of them, agree with the said contracting person, firm or corpora-
tion upon changes in and modifications of said contract, or of the
plans and specifications upon which said road or roads is or are
to be constructed, but no change or modification in the plans and
specifications consented to and authorized pursuant to section five
of this act shall be made without the further consent and author-
ization provided for in said section; but in no event shall the

eae
AppiicaBLe Onty To New Yorx Ciry. 543
i The Rapid Transit Act, § 38 (a).

 

 

annual rental to be paid to said city, for the use of ‘said road, be
reduced below the minimum rate hereinbefore provided.
(Added by L. 1894, ch. 752, and am’d by L. 1895, ch. 519; L, 1906, ch. 472.)

§ 38 (a). The board of directors of any company incorporated
for the purpose of constructing, maintaining or operating a bridge
or bridges connecting a city of more than one million inhabitants
with any other city in this state, and by the act of incorporation of
which authority shall have been conferred or intended to be con-
ferred, to construct, maintain or operate, as a part of or in connec-
tion with its bridge, an approach or approaches thereto extending
generally in an easterly and westerly direction, may determine in
lieu of constructing such approach or approaches, to build, maintain
and operate an elevated railway, the route of which shall be coinci-
dent with the route of*such approach or approaches as defined in
said act, and shall adopt a general plan for the construction thereof,
and which shall showthe general mode of operation, and contain
such details as to manner of construction as may be necessary to
show the extent to which any street, avenue, or other public place
is to be encroached upon and the property abutting thereon affected,
copy of which plan shall be transmitted to the common council
of the city in which the same is to be located. Such proceedings
shall thereupon be had by such common council as are provided by
section five of this act, as though such plans had been transmitted
by the rapid transit commissioners as contemplated in said section.
Provided, that where in any such city the exclusive control of any
street, route, highway or avenue, which is to be occupied by any
railway or railways constructed under the provisions of this section

‘ is by law vested in any local authority other than the common
council of such city, the approval of the aforesaid plans, and con-
gent to the construction of a railway thereunder shall be given by
such local authority in place of, and if required in addition to such
approval and consent by such common council, and with like effect.
Upon obtaining the approval and consent of the local authorities
as in said section provided, the said board of directors shall take the
necessary steps to obtain, if possible, the consent of the property
owners along the line of the said route or routes; and all proceed-
ings in respect of such consents or when such consents cannot be
obtained shall be similar in all respects to the proceedings in said
section provided. Any consent of the local authorities to construct
or operate such railway shall be given only upon the condition that
the rate of fare upon such elevated railway shall not exceed five
544 APPLICABLE Onty to New Yorx Crry.

 

The Rapid Transit Act, § 38 (a).

 

cents for each passenger, and that payment of such fare shall entitle
each passenger to or from said elevated railroad to free transit
across the bridge or bridges with which it is intended to connect
the same. When the consents of the local authorities and the prop-
erty owners, or in lieu thereof, the authorization of the supreme:
court upon the report of the commissioners shall have been
obtained, and the said company shall, have accepted such condition
it shall have all the powers of corporations formed under this act,.
it shall be authorized to build, construct, maintain and operate such.
elevated railway or railways, but all provisions of this act, or of any
act requiring the sale of the right, privilege and franchise of con-
structing, maintaining and operating such railway or railways, or
requiring a corporation or corporations to be organized for the pur-
pose of acquiring such right, privilege ard franchise, and all other:
provisions of this act or of any act inconsistent with this section,
are hereby declared inapplicable to such elevated railway and to-
such company. The entire route of any elevated railway con-
structed under the provisions of this section shall not exceed three:
miles in length, nor‘shall any part of said railway except at the
termini thereof be less than sixteen feet above any street, avenue or
public place, or less than fourteen feet above any existing elevated
railway which may be crossed, intervened or intersected thereby.
The said railway may be located and constructed so as to cross any
intersecting ‘street, avenue, highway or place otherwise exempted,
except that no public park shall be occupied or crossed thereby, the
structure of such elevated railway shall be liable to taxation as pro-
vided ‘by law for similar structures.

(New, added by L. 1892, ch. 102, and amended by L. 1895, ch. 519.)

The section number of the foregoing was changed in 1895.

Under the provisions of the foregoing section, which makes the author-
ization of the Supreme Court a prerequisite to the right of a bridge com-
pany to construct and operate an elevated railway as an approach to ite
bridge, in case of failure to obtain the consent of property owners, the
power conferred upon the court is discretionary and exclusive, and its.
order refusing the authorization upon the merits, where no abuse of its
discretion is shown, is not reviewable by the Court of Appeals. (Matter
of East River Bridge Co., 143 N. Y., 249; reported below, 75 Hun, 119.)

When a report of commissioners, appointed under this section, is
against the construction of an elevated railway, it is final, as there is no
provision in the Rapid Transit Act for any action upon the purt of the
court unless the report of the commissioners is in favor of the con-
struction of such railroad. (Matter of East River Bridge Co., 75 Hun, 1193.
Id., 143 N. Y., 249.) The Supreme Court, if it gives its consent to the con-
APPLICABLE Oncy to New Yor«. Crry. 545-

The Rapid Transit Act, § 39.

 

struction of such an elevated railway, cannot impose conditions in regard:
to the enterprise. (Id.)

It would seem that the court should deny an application to confirm the-
report of commissioners deciding upon the construction of an elevated
railroad, if the statute incorporating the corporation by which such un-
dertaking is to be carried out affords no adequate assurance of sufficient
capital to enable it to build the railway, or to respond to adjoining
owners for resulting damages. (Matter of East River Bridge Co., 75-
Hun, 119.)

This section does not apply to the New York & Long Island Bridge:
Company in erecting such a bridge, with its approaches, as such com-
pany can build under Laws of 1867, chapter 395, and its lawful amend-
ments. (In re N. Y. & Long Island Bridge Co. v. Lenox, 148 N. Y., 540.)

Power to acquire title to property.

§ 39. For the purpose of constructing or operating any road.
for the construction or operation of which a contract shall have.
been made by the board of rapid transit railroad commissioners,
including necessaty stations and station approaches, or for the pur-
pose of operating or securing the operation of the same free of
interference and right of interference and of action and right of
action for damages and otherwise, whether by abutting owners
or others, or to provide, lay or maintain conduits, pipes, ways.
oy other means for the transmission of electricity, steam, water,.
air or other source or means of power or of signals or of messages.
necessary or convenient for or in the construction or operation
of sueh road, or for the transportation of materials necessary for:
such construction or operation, or to provide a temporary or per-
manent way or course for any sueh conduit, pipe or other means.
or source of transportation, said board for and in behalf of said
city may acquire, by conveyance or grant to said city to be de-
livered to the said board and to contain sueh terms, conditions,
provisos and limitations as the said board shall deem proper,
or by condemnation or other legal or other proceedings, as in this.
act. provided, any real estate and any rights, terms and iziterest.
therein, any and all rights, privileges, franchises and easements,
whether of owners or abutters, or others to interfere with the con-
struction or operation of such road or to recover damages there-
for, which, in the opinion of the board, it shall be necessary to
acquire or extinguish for the purpose of eonstructing and operat-
ing such road free. of interference or right of interference. The

35
546 APpPLicaBLE Onty To New York Cirv.

 

The Rapid Transit Act, § 39.

 

word property hereinafter used shall be deemed to include any
such real estate, and any rights, terms and interest therein, and
any such rights, privileges, franchises and easements, whether. of
owners, abutting owners, or others. Where any contractor for
the construction or operation of any such railroad shall require
any property for such construction and operation, such property
shall be deemed to be required for a public purpose; and with
the approval of the said board of rapid transit railroad commis-
-sioners the same may be acquired by the said contractor in all
respects as such property may be acquired by the said board of
rapid transit railroad commissioners for the said city, and all pro-
ceedings to acquire the said property shall be conducted under
the direction and subject to the approval of the rapid transit
railroad commissioners. It shall be the duty of the board when-
ever any property which the city shall have acquired as provided
in this act shall be unnecessary for rapid transit purposes, to
sell and convey the same in behalf of said city, provided, how-
ever, that no such sale or conveyance shall be made except witE
the approval of the commissioners of the sinking fund of such city
or, if there be no commissioners of the sinking fund then the
other board or public body thereof having power to sell or lease
city property and provided further that the proceeds of any such
sale or-conveyance shall, under the direction of the said board of
rapid transit railroad commissioners, be applied either to the purs
chase of other property necessary for rapid transit purposes or
shall be applied in all respects as the payments of rental to be
made by the contractor as provided in this act. Whenever the said
rapid transit railroad commissioners for and in behalf of the city
shall have acquired or shall hereafter acquire an easement in prop-
erty by conveyance or grant for the purpose of the operation or
construction of a rapid transit railroad, it may in behalf of the
city and as part consideration for the grant or conveyance of the
easement, enter into an agreement with the grantor of such ease-
ment or right of way, giving to such grantor or his assigns, the
right of lateral or other support through, in, or under the said
property, or any adjoining lands or space occupied by said rapid
transit railroad for any building erected or to be erected upon the
land over which the easement or right of way has been obtained for
the support and maintenance of any such building or buildings,
provided that any structure that shall be built for the support of
any such building or buildings shall be approved by said board and
shall not extend in or under any street beyond the curb lines as
fixed by the ordinances of the board of aldermen or other legis-
lative body of such city.

(Added by In 1894, ch. 752; am’d by L. 1895, ch. 519; L. 1896, ch. 729; |
L. 1901, ch. 587; L. 1904, ch. 564; L. 1906, ch. 472.)
APPLICABLE Onty To New York Crrvy. 5AT

 

The Rapid Transit Act, § 40.

 

Entry upon lands and property; maps and plans to be made; filing
of amended maps. _
_ § 40. It shall and may be lawful for said board, and for all
persons acting under its authority, to enter in the day time into
and upon any and all lands and property which it shall deem neces-
sary to be acquired, or to which there may be appurtenant rights,
terms, franchises, easements or privileges which it shall deem neces-
sary to be acquired or extinguished by said city, for the purpose
of making the maps or surveys hereinafter mentioned, and also to
enter in like manner and for the same purpose upon any property
adjacent to and within five hundred feet of the property to be so
surveyed; and the said board shall cause three similar maps or plans
to be made of each parcel of property which it may deem necessary
so to be acquired, or to which there may be appurtenant rights,
terms, franchises, easements or privileges necessary so to be
acquired or extinguished, designating each of said parcels by a
number, and upon each map or plan so made or in a memorandum
accompanying the same and to be deemed part thereof the said
board shall cause to be clearly indicated the particular estate or
estates, rights, terms, privileges,. franchises or easements to be
acquired or extinguished for the purposes of this act, in relation to
each and every piece or parcel of property described upon said map
or plan. The said board shall have power to cause a triplicate set
of maps or plans and memoranda as herein provided for to be made
as often and at such times as said board shall determine, and each
set of maps or plans and memoranda so made shall contain the
particulars above, enumerated within such district as said board shall
in each case provide. The maps or plans and memoranda herein
provided for, when approved and adopted by said board, shall have
written thereon a certificate of such approval, signed by the mem-
bers of said board adopting and. approving the same, and one copy
thereof shall be filed in the department of public works, or other
chief executive department having principal charge of the streets,
there to remain as a public record, and the other two of said maps
or plans and memoranda shall be transmitted to the counsel to the
corporation or other principal legal adviser of said city. The said
board may from time to time make and file further maps or plans
and memoranda amending those already filed, but not so as to defeat.
or impair any property or interest which shall have been already
acquired, or to revive any interest or right which may have been
already extinguished by the said city.
(New, eee by L. 1894, ch. 752, and amended by L. 1895, ch. 519.)
548 AppiicaBLE Onzy to New York Curry.

 

The Rapid Transit Act, §§ 41, 42, 43.

 

Proceedings to acquire title to property. ;

§ 41. Whenever and as often as the said board shall deem it to
‘be necessary and proper that the said city should acquire any such
“property and shall have caused to be made, as provided in the last
.preceding sections, the maps or plans and memoranda specifying
and defining the said property to be acquited, or to which are
‘appurtenant the rights, terms, franchises, easements or privileges
to be acquired or extinguished, and shall have certified, filed and
transmitted the several copies of such maps or plans as in the last
-section prescribed, the said board may direct the counsel to the
corporation or other principal legal adviser of said city, to take
‘legal proceedings to acquire the same for the said city, and the
-said counsel to the corporation, or other principal legal adviser, shall
‘thereupon take proceedings as in this act provided.

(New, added by L. 1894, eh. 752, as amended by L. 1895, ch. 619.)

“Filing of maps or plans.

§ 42. The said counsel to the corporation, or other principal
‘legal adviser of said city, shall cause one ‘of the maps or plans, so
-as aforesaid transmitted to him, to be filed in the office of the regis-
ter of the county, or if there be no such register, then in the office
of the county clerk of the county in which said city is situated.
The map, hereinafter denominated the third map, being the other
one of the two so as aforesaid transmitted to said counsel to the
-corporation, or other legal adviser, shall be disposed of as herein-
.after provided.

(New, added by L. 1894, ch. 752.)

’

‘Commissioners of appraisal.

§ 43. After the said set* shall have been filed as hereinbefore
provided in the office of the register or county clerk of said county,
the said counsel to the corporation, or other principal legal adviser,
tor and on behalf of the said city, shall, and he may from time to
time, upon first giving the notice required by the next section of
this act, apply to the supreme court at any special or general term
thereof, to be held in the judicial district in which said city is situ-
ated, for the appointment of commissioners of appraisal. Upon
-each such application he shall present to the court a petition, signed
by a majority of the members of said board and verified in the
manner prescribed by law-for the verification of pleadings, accord-
“ing to the practice of said court, setting forth the action or deter-

 

* So in the > {ginal law.
AppricasLe Qwiy To New Yorx Cury. _ 549
The Rapid Transit Act, §§ 44,45. |

‘mination theretofore taken or had by said board, with respect to the
property to be acquired, and the filing of said maps or plans and
memoranda and praying for the appointment of such commissioners
-of appraisal. Such petition shall contain a general description of all
the property to, or in or over or appurtenant to which any title, in-
terest, right, franchise, easement, term or privilege is sought to be
acquired or extinguished, and of every right, franchise, easement, or
privilege sought to be acquired, by the said city for public purposes,
each lot or parcel being more particularly described by a reference
to the number of said lot or parcel as given on said maps, and the
title, interest, right, easement, term or privilege sought to be ac-
quired, or extinguished, to or in or over or appurtenant to each of
‘said lots or parcels shall be stated in said petition.

(New, added by L. 1894, ch. 752, and amended by L. 1895, eh. 519.)

 

Notice of application for appointment of commissioners of ‘appraisal;
publication thereof.

§ 44. The said counsel to the corporation, or other principal legal
-adviser, shall give or cause to be given notice by publication in two
public newspapers published in the said city, or, instead of such pub-
‘lication, may in his discretion cause service of the petition and notice
-of his intention to make application to the said court for the appoint-
‘ment of such commissioners of appraisal, to be made in the same
manner prescribed by section three thousand three hundred and sixty-
‘two of the code of civil procedure, as amended by chapter ninety-five
-of the laws of eighteen hundred and ninety, such notice if published
as aforesaid shall state the time and place of such application, shall
briefly state the object of the application, and shall briefly describe
‘the property sought to be acquired or affected, and refer to a fuller
statement to be filed in the office of the board of rapid transit railroad
-commissioners, in which shall be set forth the location and bound-
aries of the several lots or parcels of property, and rights, franchises,
easements or privileges sought to be taken or affected,and a brief
‘statement as to each of said lots or parcels, of the title, interest, rights,
-easements, terms or privileges therein or appurtenant thereto sought
to be acquired or extinguished, with a reference to the dates and
places of filing the said maps or plans and memoranda shall’ be a
‘sufficient description of the property sought to be so taken or affected.
Such notice in case of publication as aforesaid shall be so published,
in said newspapers twice a week for six weeks immediately previous
to the time fixed in said notice for the presentation of each petition.

(New, added by L. 1894, ch. 752, amended by L. 1895, ch. 519, L. 1902,

-eh. 533.) ‘

Order of appointment of commissioners of appraisal.

§ 45. At the time and place mentioned in said notice, unless
‘the said courts shall adjourn said application to a subsequent date,
and in that event at the time to which the same may be adjourned,
-the court, upon due proof to its satisfaction of the publication afore-
ee

550 AppiicaBLE Onty to New Yorx Crry.
The Rapid Transit Act, §§ 46, 47.

 

said, and upon filing the said petition, shall make an order for the
appointment of three disinterested freeholders, residents in said
city, as commissioners of appraisal, to ascertain and appraise the
compensation to be made to the owners of property so to be taken
or extinguished for the purposes indicated in this act. Such order
shall fix the time and place for the first meeting of the com-
missioners.

* (New, added by L. 1894, ch. 752.)

Oath of commissioners of appraisal.

§ 46. The said commissioners shall taken and subscribe the
oath required by the twelfth article of the constitution of the state
of New York, and shall forthwith file the same in the office of the
clerk of the county in which said city is situated.

(New, added by L. 1894, ch. 752.)

City to become seized in fee of property indicated on maps; possession
and entry thereon.

§ 47. On filing said oath in the manner provided in the last
section, the said city shall be and become seized and possessed in
fee or absolute ownership of all those parcels of property, rights,
terms, franchises, easements and privileges which afe in the maps
or plans and memoranda referred to in section forty of this act,
described as parcels of property, rights, franchises, easements, or
privileges which are to be acquired, and also shall become seized
and possessed of all the rights, terms, franchises, easements or privi-
leges appurtenant to any lots or parcels of property indicated on
said maps or plans as parcels in regard to which it is deemed neces-
sary to acquire such rights, terms, franchises, easements or privi-
leges, or the said rights, terms, franchises, easements or privileges
shall.be extinguished as the case may be; and the said board for the
said city, may immediately or at any time or times thereafter take
possession or enter into the enjoyment of the said property, rights,
terms, franchises, easements and privileges or of any part or parts
thereof without any suit or proceeding at law for that purpose and
the said board for the said city, or any person or persons acting
under their or its authority, may enter upon and use, occupy, and:
enjoy in perpetuity all the parcels of property and all the rights,
terms, franchises, easements or privileges appurtenant to any of the
parcels of property and all rights, franchises, easements, and privi-
leges, described on said maps or plans in said memoranda, for any
of the purposes authorized and provided for by this act. But on

.
AppricasLE Onty to New Yorx Crrv. 551

 

The Rapid Transit Act, § 48.

 

such filing of the said oath the said city shall be and become forth-
with liable to the respective owners of the several parcels of prop-
erty and the several rights, terms, franchises, easements and
privileges appertaining thereto, and of the said rights, franchises,
easements, and privileges acquired as aforesaid, for the true and
respective values thereof, together with interest thereon from the
time of filing the said oath, provided, however, that no such inter-
est shall be payable to any owner of any such property, right, term,
franchise, easement or privilege during any period during which
the said city or the said board of rapid.transit railroad commission-
ers may by any resistance, whether by legal proceedings or other-
wise of such owner or with his authority, be prevented from taking
possession thereof or enjoying the same; and provided further, that
no action shall be brought to recover the amount of such value or
interest unless within eighteen months after the filing of such oath,
a report shall not have been duly made by the commissioners of
appraisal as herein provided, or such report shall not have been
confirmed by the supreme court as herein provided, so that the said
city shall be liable to forthwith pay the amount by such report
ascertained to be due for such value or interest.

(New, added by L. 1894, ch. 752, and amended by L. 1895, ch. 519.)

The provisions of this section, together with sections 48 to 53, both
inclusive, constitute a certain, definite and adequate source and manner
of payment for property taken for the construction of the road contem-
plated thereby, and are not, therefore, in conflict with section 6 of article1
of the Constitution which provides that private property shall not be :
taken for public use without just compensation. (Sun Publishing Assn.
v. Mayor, etc., of New York, 8 App. Div., 230; aff’d 152 N. Y., 257.)

Commissioners of appraisal; power to issue subpoenas and administer
oaths; to hear and determine claims; vacancies; determination
of compensation to property owners.

§ 48. Any one of said commissioners of appraisal may issue
subpoenas and administer oaths to witnesses, and they or any one
’ of them, in the absence of the others, may adjourn the. proceedings,
from time to time in their discretion, but they shall continue to
meet from time to time as may be necessary to hear, consider and
determine upon all claims which may be presented to them under
any of the provisions of this act. In case of the death, resignation,
refusal or neglect to serve of any commissioner of appraisal
the remaining commissioner or commissioners shall, upon ten days’
notice, to be given by advertisement in the newspapers mentioned
in section forty-four of this act, apply to the supreme court, at a
552 APPLICABLE Onty to New Yorx Ciry.

 

The Rapid Transit Act, § 49.

i

special or general term thereof, to be held in the judicial district in
which said city is situated, for the appointment of a commissioner
or commissioners to fill the vacancy or vacancies so occasioned. In
case of the death, resignation or refusal to serve of all the commis-
sioners of appraisal, the said counsel to the corporation or other
principal legal adviser to said city shall, on giving the notice
required in this section, apply to the said court for the appointment
. of othercommissioners of appraisal. It shall be the duty of the com-
missioners of appraisal to procure from the counsel to the corporation
or other principal legal adviser the third set of maps or plans and
memoranda provided for in sections forty and forty-two of this act.
- They shall view the property laid down on said map, and shall hear
the proofs and allegations of any owner, lessee or other person in
any way entitled to or interested in the property to be acquired or
extinguished, or any part or parcel thereof, and also such proofs
and allegations as may be offered on behalf of the said city... They
shall reduce the testimony, if any, taken before them to writing,
and after the testimony is closed, they, or a majority of them, all
having considered the same, and having an opportunity to be
‘present, shall, without unnecessary delay, ascertain and determine
the compensation which ought justly to be made by the said city
to the owners or persons interested in the property acquired or
extinguished by said proceedings. The said commissioners of
appraisal shall make reports of their proceedings’ to the supreme
court, as in the next section provided with the minutes of the testi-
mony taken before them, if any, and they shall be entitled to the
payment hereinafter provided for their services and expenses, to be
paid from the fund hereinafter specified. The said commissioners
may make a single report or may make reports from time to time -
as they shall reach their several decisions as to different parcels of
property.
(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

Report of commissioners of appraisal.

§ 49. The said commissioners shall prepare a report or reports,
to which shall be annexed the third set of maps or plans and memo-
randa referred to in section forty-two of this act and therein
denominated the third set or a copy thereof certified by them.
Each said report shall contain a brief description of the property
so taken or affected, with a reference to the map upon which the
same is required to be indicated; a statement of the sugns estimated
and determined upon by them, as a just compensation for the same
ApPLicaBLE Onty To New York Ciry. 553

 

The Rapid Transit Act, §§ 50, 51, 52.

 

to be made by the city to the owners or persons interested therein
and the names of such owners and persons; but in all and each and
‘every case or cases where one or more of the owners and persons
interested, or their respective estates or interests, are, unknown, or
not fully om to the commissioners of appraisal, it shall be suffi-
cient for them to set forth and state in general terms the respective
sums to be allowed and paid to the owners of and persons interested.
therein, generally, without specifying the names or estates or inter-
ests of such owners or persons interested, or any or either of them.

(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

«

Filing of report.

§$ 50. Each said report, signed by said commissioners, or a
majority of them, shall, be filéd in the office of the clerk of the
county in which said city is situated, and the commissioners of
appraisal shall, in each case, notify the counsel to the corporation,
or other principal adviser to said city, as soon as any such report is

filed.
(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

Notice of presentation of report for confirmation.

§ 51. The counsel to the corporation, or other principal legal
adviser, or, in case of his neglect to do'so within ten days after
receiving notice of such filing, then any person interested in the
proceedings, shall give notice that the said report will be presented
for confirmation to the supreme court, at a special term thereof, to
be held in the judicial district in which said city is situated, at a
time and place to be specified in said notice. The said notice shall.
contain a statement of the time and place of the filing of the report,
and shall be published in two daily newspapers published 4 in such
city, for at least two weeks immediately prc to the presentation.
of said report for confirmation.

(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

Hearing upon application for confirmation of report.

§ 52. The application for the confirmation of each of such
reports shall be made to the supreme court at a special term thereof,
held in the judicial district in which said city is situated. Upon the
hearing of the application for the confirmation thereof, the said
court shall confirm such report and make an order containing a
recital of the substance of the proceedings in the matter of the
appraisal, with a general description of the property appraised and
554 AprricaBLeE Onty to New York Crry.

 

The Rapid Transit Act, §§ 53, 54.

 

for which compensation is to be made, and shall also direct to whom
the raoney is to be paid, and whether or not any part thereof, and,
if so, what part, is to be deposited with the comptroller or other
chief financial -officer of said city with the chamberlain of said city,
or if there be no chamberlain, with a bank or trust company to be
designated by said court. Such repott when so confinmed shall,
except in the case of an appeal, as hereinafter provided, be final sini:
sonclusive, as well upon the said city as upon owners and all persons
interested in or entitled to said property, and also upon all other-
persons whomsoever.
*(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

Payment of awards of commissioners.

§ 58. The said city shall, within four, calendar months after
the confirmationof any report a thecommissioners of appraisal, pay
to the respective owners and bodies politic or corporate mentioned
or referred to in said report, in whose favor any sum or sums of
money shall be estimated and reported by said commissioners, the-
respective sum or sums so estimated and reported in their favor
respectively, with legal interest thereon from the date of filing the-
oath of said commissioners, and in case of neglect or default in the-
payment of the same within the time aforesaid, the respective per-.
son or persons or bodies politic or corporate, in whose favor the-
same shall be so reported, his, her or their executors, administrators,.
successors or assigns at any time or times after application first.
made by him, her or them, to the comptroller or other chief finan-
cial officer of said city for payment thereof, may sue for and recover-
the same, with lawful interest as aforesaid, and the costs of suit,.

- in any proper form of action against the said city in any court.
having cognizance. thereof, and in which it shall be sufficient to-
declare generally for so much money due to the plaintiff or plaint-
iffs therein by virtue of this act for property taken or extinguished.
-for the purposes herein mentioned, and the report of said commis-
sioners, with proof of the right and title of the plaintiff or plaint-.
iffs to the sum or sums demanded shall be conclusive evidence in.
such suit or action.

(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

Payment of award when owner is an infant, or non compos mentis or:
unknown.

§ 54. Whenever the owner or owners, person or persons inter-

ested in any property taken or affected in such proceeding, or in:

whose favor. any such sum or sums or compensation shall be so:
APPLICABLE Onty to New Yorx Crry. 555

 

The Rapid Transit Act, § 55.

 

reported, shall be under ilie age of twenty-one years, or of unsound
mind or absent from the city, and also in all cases where the name
or names of the owner or owners, person. or persons, interested in
‘any such property shall not be set forth or mentioned in said report,
or where the said owner or owners, person or persons, being named
therein, can not, upon diligent inquiry, be found, or where there
‘are adverse or conflicting claims to the money awarded as com-
pensation, it shall be lawful for the said city to pay the sum or
sums mentioned in said report, payable, or that would be coming
to such owner or owners, person or persons, respectively, with
anterest, as aforesaid, to the chamberlain of said city, or, if there be
no chamberlain, then to any bank or trust company designated by
the court in the order confirming the report of the commissioners
of appraisal, to the credit of such owner or owners, person or per-
sons, and such payment shall be as valid and effectual in all
Yespects as if made to the said owner or owners, person or per-
sons, interested therein, respectively, according to their just rights;
and, provided, also, that in all and each and every such case and
cases where any sum or sums or compensation reported by the com-
missioners in favor of any person or persons or parties whatsoever,
whether named or not named in said report, shall be paid to any
person or persons, or party or parties, whomsoever, when the same
shall of right belong and ought to have been paid to some other
person or persons, or party or parties, it shall be lawful for the per-
son or persons, or party or parties, to whom the same ought to have
been paid, to sue for and recover the same, with lawful interest
and costs of suit, as so much money had and received to his, her or
their use by the person or persons, party or parties, respectively, to
whom the same shall have been so paid.

(New, added by L. 1894, ch. 752.)

‘Claims for compensation; limitation of time for presentation.

§ 55. Every owner or person in any way interested in any
property taken or extinguished as contemplated in this act, if he
intends to make claim for compensation for such taking or extin-
guishment, shall within six months after the appointment of the
commissioners of appraisal exhibit to the said commissioners a
statement of his claim, and shall thereupon be entitled to offer tes-
timony and to be heard before them touching such claim and the
- compensation proper to be made him, and to have a determination
yaade by such commissioners of appraisal as to the amount of such
compensation. Every person neglecting or refusing to present such
556 APPLICABLE Onty To New Yorx Crry.

 

The Rapid Transit Act, §§ 56, 57, 58.

 

claim within said time shall be deemed to have surrendered his -
claim for such compensation, except so far as he may be entitled,
as such owner or person interested, to the whole or a part of the
sum of money awarded by the commissioners of appraisal as a just
compensation for taking or extinguishing the property owned by
said person, or in which the said person is interested.

(New, added by L. 1894, ch. 752, and amended by L. 1901, ch. 587.)

Payment of compensation protects the city.

8 56. Payment of the compensation awarded by said’ commis-
sioners of appraisal to- the persons named in their report (if not
infants or persons of unsound mind), shall, in the absence of notice
to the said city or other claimants to such award, protect the ‘said
city.

(New, added by L. 1894, ch. 752.)

Separate reports of commissioners.

§ 57. Said commissioners of appraisal may in their discretion
take up any specified claim or claims, and finally ascertain and
determine the compensation to be made thereon, ‘and make a
separate report with reference thereto, annexing to said repert a
copy of so much of the set of maps or plans and memoranda
referred to in section forty-two of this act as indicates the property
so reported on. Such report shall, ‘as*to claims therein specified, be
the report required in this act, and the subsequent action with
reference thereto, shall be had in the same manner as though no
other claim were embraced in said proceeding, which, however,
shall continue as to all claims upon which no such determination
and report is made.

(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

Appeal from award of commissioners.

§ 58. Within twenty days after notice of the confirmation of
the report of the commissioners, as provided for in section fifty-two
of this act, which notice may, as to parties who have not appeared
before the commissioners, be given in the manner provided in sec-
tion. fifty-one of this act, either party may appeal to the general
term of the supreme court in the department in which such com-
missioners were appointed, from the appraisal and report of the
commissioners and the order confirming the same. Such appeal
shall be heard upon due notice thereof being given, according to-
the rules and practice of said court. On the hearing of such appeal
the court may direct a new appraisal and determination of any
AppiicaBLE Onty To New Yorx Crrv. 557

 

The Rapid Transit Act, § 59.

 

question passed upon, by the same or new commissioners, in its
discretion, and from any determination of the general term either
party, if aggrieved, may take an appeal, which shall be heard and
determined by. the court of appeals. In the case of a new appraisal
the second report shall be final and conclusive on all the parties
and persons interested. If the amount of compensation to be made
by such city is increased by the second report, the difference shall
be paid by the comptroller or other chief financial officer of said
city, to the parties entitled to the same, or shall be deposited with’
the chamberlain, or bank or trust company, as the court may direct,
and if the amount is diminished the difference shall be refunded
to the said city by the party to whom the same may have been paid,
and judgment therefor may be rendered by the court on the filing
of the second report against the party liable to pay the same. But
the taking of an appeal by any person or persons shall not operate
to stay the proceedings under this act except as to the particular
property with which the said appeal is concerned. Such appeal
may be heard upon the evidence taken before said commissioners,

and any affidavits as to irregularities, and three printed copies ae
such evidence shall be furnished by the said city to the party taking
the appeal, within ten days after the appeal is perfected, and such
appeal may be heard upon the evidence so furnished, and may be
taken without security thereon.

(New, added by L. 1894, ch. 752.)

Power of supreme court to amend defects in proceedings, fill vacancies
and remove commissioners.

§ 59. The supreme court in the judicial district in which said
city is situated shall have power at any time to amend any defect
or informality in any of the special proceedings authorized by this
act as may be necessary, and to direct such further notices to be
given to any party in interest as it deems proper, and also to
appoint other commissioners in place of any who shall die, or refuse,
or neglect to serve or be capable of serving, or be removed. And
the said court may at any time remove any commissioner of
appraisal who in its judgment shall be incapable of serving, or who
shall for any reason in its judgment be an unfit person to serve as
such commissioner. The cause of such removal shall be specified
in the order making the same. If in any particular it shall at any,
time be found necessary to amend any pleadjng or proceeding or
to supply any defect therein arising in the course of any special
proceeding authorized by this act, the same may be amended or
/

558 AppiicaBLe Onty to New Yor« Crry.

 

The Rapid Transit Act, §§ 60, 61, 62.

 

supplied in such manner as shall be directed by the supreme court,
which is hereby authorized to make such amendment or correction.
Wherever in this act reference is made to the general term of the
supreme court, it shall be deemed to include the appellate division
of the supreme court for the district in which said city is situated,
whenever said general term shall be superseded thereby.

(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

Property acquired impressed with a public use.

§ 60. All property acquired under the provisions of this act
shall be and shall be deemed to have been acquired for public
uses and purposes, and for the purpose of affording increased facili-
ties for rapid transit between points within ‘the city acquiring such
property.

(New, added by L. 1894, ch. 752.),

Moneys required; how raised and paid.

§ 61. The moneys necessary and sufficient to be paid for any
property, acquired in any manner under the provisions of this act,
together with all expenses necessarily incurred in surveying, locat-
ing, and acquiring title to such property, and for surveying and
locating the same, and for preparing the necessary maps and plans
in connection therewith, shall be raised and paid out of the pro-
ceeds of bonds issued and sold as provided by section thirty-seven
of this act, and all such expenses so incurred in surveying, locating
and acquiring title, and for preparing necessary maps and plans
and also those incurred as provided in the next section shall be
deemed a part of and included in the cost of constructing the: road
or roads, the construction of which rendered it necessary to acquire:
the property in the course of the acquisition of which such expenses
may be incurred. 2

(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)

Compensation of commissioners of appraisal; employment of clerks,
stenographers and surveyors; compensation for assistants.

§ 62. The commissioners of appraisal appointed in pursuance
of this act shall receive as compensation the sum of ten dollars per
day for each day actually employed. They may employ the neces-
sary clerks, stenographers and surveyors. The counsel to the cor-
poration or other principal legal adviser to said city shall, either in
person or by such counsel as he shall designate for the purpose,
appear for and protect the interests of the city in all such proceed-
ings in court and before the commissioners. The fees of the com-
APPLICABLE Onty To New Yor« Crrvy.. 559

 

‘ The Rapid Transit Act, §§ 63, 64.

 

missioners and the ‘salaries and compensation of their employes,
sand all other necessary expenses in and about the said proceedings
provided for by this act, and such allowance for counsel fees as may
be made by order of the court, and all reasonable expenses incurred
by said counsel to the corporation, or other principal legal adviser
of said counsel designated by him for the proper presentation and
defense of the interests of said city before said commissioners and
in court, shall be paid by the comptroller or other chief financial
officer of said city out of the funds referred to in the last preceding
section. But such fees and expenses shall not be paid until they
have been taxed before a justice of the supreme court in the judi-
cial district in which said city is situated upon five days’ notice to
the counsel to the corporation, or other chief ‘legal adviser of said
city. Such allowance shall, in no case, exceed the limits prescribed
by ‘section thirty-two hundred and fifty-three of the code of civil
procedure.

(New, added by L. 1894, ch. 752.)

Proviso as to city ownership of road.

§ 63. In case it shall be determined by vote of the people as
provided by sections twelve and thirteen of chapter seven hun-
dred and fifty-two of the laws of eighteen hundred and ninety-four,
to construct by and at the city’s expense, then and in that event
the road or roads so constructed shall be and remain the absolute
property of the city so constructing it or them, and shall be and
be deemed to be a part of the public streets and highways of said
city, to be used and enjoyed by the public upon the payment of
such fares and tolls, and subject to such reasonable rules and regu-
lations as may be imposed and provided for by the board of rapid
transit railroad commissioners in said city.

(New, added by L. 1894, ch. 752, as amended by L. 1895, ch. 519.)
‘Construction of act.

§ 64. This act shall not be construed to repeal or in any. man-
ner affect chapter six hundred and six of the laws of eighteen hun-
dred and seventy-five, entitled “ An act to further provide for the
‘construction and operation of a steam railway or railways in the
counties of this state,” or the acts amendatory thereof or supple-
-mentary thereto, or article five of chapter five hundred and sixty-
‘five of the laws of eighteen hundred.and ninety, known as the rail-
road law, except so far as the said acts or either of them, would, if
this act had not been passed, authorize the appointment hereafter
of any commissioners applied for as provided i in section one of said
act of eighteen hundred and seventy-five, or in section one hundred
and twenty of said act of eighteen hundred and ninety, in any city
£60 APPLICABLE OnLy To NEw York CIty.

The Rapid Transit Act, § 65. '

or cities containing a population of over one million inhabitants,
according to the last preceding national or state census, or authorize
any commissioners already appointed pursuant to the provisions of
such act or acts in any such city or cities, to fix, determine or locate
any new route or routes, pursuant to the provisions of either of said.
acts. This act shall not be construed in any manner to affect the.
exercise or enjoyment at any time, and from time to time hereafter, '
of any right or rights heretofore acquired, exercised or enjoyed by
any corporation heretofore duly incorporated and organized or
deriving powers and rights under the laws of this state. This act.
shall not affect or impair the exercise or enjoyment of any right or
rights now possessed or heretofore acquired or heretofore author-
ized to be acquired, exercised or enjoyed by any street surface rail-
road corporation, except as herein otherwise expressly provided,
and this act shall not be construed to repeal or in any manner affect.
chapter one hundred and forty of the laws of eighteen hundred and.
fifty, entitled “ An act to authorize the formation of railroad cor-
‘porations, and to regulate the same,” or either of the several acts
amendatory thereof or supplementary thereto. This act shall not
be construed to repeal or in any manner affect chapter five hun-
dred and sixty-five of the laws of eighteen hundred and ninety,
known as the railroad law, except as hereinabove expressly pro-
vided, or except so far as the provisions of the same conflict with .
the provisions of this act. But nothing in this section contained
shall prevent the board of rapid transit railroad commissioners.
from laying out a route for a railway and constructing and operat-
ing a railway, and such board shall have the right to lay out such.
route and construct and operate such railway, over, under, along
er across any street in, along, under or over which there shall be-
any existing railway, provided that the routes so laid out by the
said board and the railway so constructed by it shall so pass over
or under or at the side of such existing railway as not to interfere-
with its operation.

(Section number changed from 34 to 64 by L. 1894, ch. 752, and am’d
by L. 1895, ch. 519; L. 1906, ch. 472.) ¥

§ 65. (Former section 65 of this act was repealed by Laws
of 1906, ch. 472, which also provided that sections 66 and 67 of
said act should be renumbered, respectively, 65 and 66.)
AppLicaBLE Onty to New Yorx Ciry. 561

 

The Rapid Transit Act, §§ 66, 67.

 

Repeal. .

§ 65. All acts and parts of acts, local or general, inconsistent
with this act are hereby repealed.
(Section number changed from 36 to 66 by L. 1894, ch. 752, and again

renumbered as 65 by L. 1906, ch. 472.)
§ 66. This. act shall take effect immediately.

(Section number changed from 37 to 67 by L. 1894, ch. 752, and again
renumbered as 66 by L. 1906, ch. 472.)

The amendatory act of 1894, chapter 752, besides amending and enlarg-
ing the Rapid Transit Act as herein set forth, added the following pro-
visions, to wit:

§ 10. Whenever it is expressly provided im the act hereby
amended that any act of the board of rapid transit railroad com-
missioners shall be done by the concurrent vote of four of the mem-
bers of said board, the act hereby amended is further amended so
as to provide in such cases that such vote shall be that of six of
such members. __

(New, added ’by L. 1894, ch. 752.) i

§ 11. The commissioners of rapid transit heretofore appointed
under the act hereby amended, or who became such commissioners.
by its terms, upon the organization of the board which shall suc-
ceed them pursuant to said act as hereby amended, shall cease to
be such commissioners and shall transfer and deliver to the board
of rapid transit railroad commissioners, provided for by the act
hereby amended, as so amended, all furniture, books, maps, records,
plans and other papers and property of what kind soever appertain-
ing or belonging to or. in the custody of the board of which they
‘were commissioners, or in their possession, or under their control as
such commissioners, or held by them, or for which they are respon-
sible in their official capacity. The expenses incurred by said com-
missioners for which an appropriation or appropriations shall have
been made pursuant to section ten of the act hereby amended, shall
be paid upon vouchers to be furnished by said commissioners and
otherwise, as provided in said section. Said commissioners shall
also be entitled to receive a reasonable compensation for the ser-
vices which have been rendered by them, which may have been, or
which shall be, determined on their application in the manner pro-
vided for in said section. The comptroller, or other chief financial
officer of said city, is hereby authorized and directed to issue and
sell revenue bonds of such city in anticipation of the receipt of
taxes, and out of the proceeds of such bonds to pay said compensa-
tion so ascertained and determined, ahd the amount necessary to

' 36 .
APPLICABLE Onty to New Yorx Ciry.

 

The Rapid Transit Act, § 67.

 

pay the principal and interest ef said bonds shall be included in the
tax levy of said city for the year next following the issue and sale
of the same :

(New, added by L. 1894, ch. 752.)

§ 12. The said board of rapid transit railway commissioners
shall cause the question, whether such railway or railways shall be
constructed by the city and at the public expense, to be submitted
to the vote of the qualified electors of the city within which such
railway or railways is or are to be constructed, and to that end it
shall be the duty of the said board, after completion of the detailed
plans and specifications, as required by the act hereby amended, at
least thirty days prior to the next general election, to file with the
public officer or officers within the county in which such city is
located, who may be charged with the duty of printing the ballots
to be used at such election, a request that separate ballots be printed
and supplied to such electors, one-half in number of which shall
read: “For municipal construction of rapid transit road,” and the
other half in number of said ballots shall read, “ Against municipal
construction of rapid transit road.” Upon such request -being so
filed, such ballots shall be printed and supplied to such electors at
such general election, and separate ballot boxes shall be provided
for the reception of the same in each election district within such
city, and the provisions of chapter six hundred and eighty of the
laws of eighteen hundred and ninety-two, entitled “ An act in rela-
tion to the elections constituting chapter six of the general laws,’’
and any act or acts amendatory thereof or supplemental thereto
shall apply thereto as far as the nature of the case may allow. No
ballot which may be provided under this section shall be deemed
invalid by reason of any error in dimensions, style of printing, or
other formal defect, or through having been deposited in the wrong
ballot box, but all of such ballots shall be canvassed and returned
as if such formal defect had not existed, or as if they had been
deposited in the box provided for the purpose. Upon the canvass
of such votes by the board of county canvassers of the county in
which such city is located, it shall be the duty of said board to file
with the county clerk of said county a statement which shall declare
the total number of votes,cast in said, city “for municipal construe-
tion of rapid transit road,” and the total number so cast therein
“against municipal construction of rapid transit road.” And the
said railway or railways shall be constructed by the said city and
at the public expense, if it shall be found from such statements so
“ApPLicaBLe Onty To New York Cry. 563:

 

The Rapid Transit Act, § 67

 

filed that there is a majority of the votes so cast in favor of such
municipal construction.

(New, added by L. 1894, ch. 752.)

§ 13. In case the majority of votes cast at such election shall
be in favor of such municipal construction of said railway or rail-
ways, it shall be the duty of said board of rapid transit railway
commissioners within thirty days after the official declaration of the
said vote to proceed to construct the said railway or railways, and
to make and let all contracts required for the performance of the
work necessary to be done and performed in and about the con-
struction “thereof. All such contracts must, before execution, be
approved as to form by the counsel to the corporation, or other
chief legal adviser for said city:

(New, added by L. 1894, ch. 752.)

§ 14. This act shall take effect immediately; except that the
building of said road, or the sale of the franchises as provided for
in sections seven and thirty-four of the act hereby amended, as so
amended, is postponed until, and made dependent upon, the deter-
mination of that question by the vote of the people as called for by
sections twelve and thirteen of this act.

(New, added by L. 1894, ch. 752.) ?
INTERSTATE COMMERCE ACT.

ApproveD Frsruary 4, 1887, as AMENDED.

Carriers and transportation subject to the act.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the pro-
visions of this act shall apply to any common carrier or carriers
engaged in the transportation of passengers or property wholly by .
railroad, or partly by railroad and partly by water when both are
used, sinder a common control, management, or arrangement, for a
continuous carriage or shipment, from one State or Territory of
the United States, or the District of Columbia, to any other State
or Territory of the United States, or the District of Columbia,
or from any place in the United States to an adjacent foreign coun-
try, or from any place in the United States through a foreign
country to any other place in the United States, and also to the
transportation in like manner of property shipped from any place
in the United States to a foreign country and carried from such
place to a port of transshipment, or shipped from a foreign country
to any place in the United States and carried to such place from a
port of entry either in the United States or an adjacent foreign
country: Provided, however, That the provisions of this act shall
not apply to the transportation of passengers or property, or to the
receiving, delivering, storage, or handling of property, wholly
within one State, and not shipped to or from a foreign country from
or to any State or Territory as aforesaid.

‘What the terms “ railroad” and “ transportation ” include.

The term “railroad ” as used in this act shall include all: bridges
and ferries used or operated in connection with any railroad, and
also all the road in-use by any corporation operating a mailroail:
whether owned or operated under a contract, agreement, or lenges
and the term “ transportation ” shall include all instrumentalities of
shipment or carriage.

Charges to be reasonable.

All charges made for any service = iailleved or to be rendered in
the transportation of passengers or property as aforesaid, or in con-
566 Reevtating Commerce BETwEEen THE STaTEs.

 

Interstate Commerce Act.

 

nection therewith, or for the receiving, delivering, storage, or hand-
ling of such property, shall be reasonable and just; and every
unjust and unreasonable charge for such service is prohibited and
declared to be unlawful.

Unjust discrimination forbidden.

§ 2. That if any common carrier subject to the provisions of
this act shall, directly or indirectly; by any special rate, rebate,
drawback, or oes device, charge, demand, collect, or receive from
any person or persons a greater or less compensation for any service
rendered, or to be rendered, in the transportation of passengers or
property, subject to the provisions of this act, than it charges,
demands, collects, or receives from any other person or persons for
doing for him or them a like and contemporaneous service in the
transportation of a like kind of traffic under substantially similar
circumstances and conditions, such common carrier shall be deemed
guilty of unjust discrimination, which is hereby prohibited and
declared to be unlawful.

Undue or unreasonable preference or advantage forbidden.

~§ 3. That it shall be unlawful for any common carrier subject
, to the provisions of this act to make or give any undue or unreason-
able preference or advantage to any particular person, company,
firm, corporation, or locality, or any particular description of
traffic, in any respect whatsoever, or to subject any particular per-
son, company, firm, corporation, or locality, or any particular
description of traffic, to any undue or unreasonable prejudice or
disadvantage in any respect whatsoever.

Facilities for interchange of traffic.

Every common carrier subject to the provisions of this act shall,
according to their respective powers, afford all reasonable, proper,
and equal facilities for the interchange of traffic between their
respective lines, and for the receiving, forwarding, and delivering
of passengers and property to and from their several lines and those
connecting therewith, and shall not discriminate in their rates and
charges between such connecting lines; but this shall not be con-
strued as reqtiring any such common carrier to give the use of its
tracks or terminal facilities to another carrier engaged in like
business.

Long and short haul provision.
§ 4. That it shall be unlawful for any common carrier subject:
to the provisions of this act to charge or receive any greater com-

-
Reeutating Commerce Bretwrren tHE StatEs. 567

 

Interstate Commerce Act.

 

? i
pensation in the aggregate for the transportation of passengers or
of like kind of property, under substantially similar circumstances
and conditions, for a shorter than for a longer distance over the
same line, in the same direction, the shorter being included within
the longer distance; but this shall not ‘be construed as authorizing
any common paneer within the terms of this act to charge and
receive as great compensation for a shorter as for a longer distance:
Provided, however, that upon application to the commission
appointed under the provisions of this act, such common carriers
may, in special cases, after investigation by the commission, be
authorized to charge less for longer than for shorter distances for
the transportation of passengers or property; and the commission
may from time to time prescribe the extent to which such desig-
nated common carrier may be relieved from the operation of this
section of this act.

Pooling of freights and division of earnings forbidden.

§ 5. That it shall be unlawful for any common carrier subject:
to the provisions of this act to enter into any contract, agreement,
or combination with any other common carrier or carriers for the
pooling of freights of different and competing railrqads, or to

divide between them the aggregate or net proceeds of the earnings

of such railroads, or any portion thereof; and in any case:of an
agreement for the pooling of freights as aforesaid, each day of its
continuance shall be deemed a separate offense.

,
Printing and posting of schedules of rates, fares and charges.

§ 6. That every common carrier subject to the provisions of
this act shall print and keep open to public inspection schedules
showing the rates and fares and charges for the transportation of
passengers and property which any such common carrier has estab-
lished and which are in force at the time upon its route. The
schedules printed as aforesaid by any such common carrier shall
plainly state the places upon its railroad between which property
and passengers will be carried, and shall contain the classification
of freight in force, and shall also state separately the terminal
charges and any rules or regulations which in any wise change,
affect, or determine any part or the aggregate of such aforesaid
rates and fares and charges. Such schedules shall be plainly
printed in large type, and copies for the use of the: public shall be
posted in two public and conspicuous places, in every depot, station,
or office of such carrier where passengers or freight, respectively,

i
\
568 Reeviating CommMercr Between THE STATES.

Interstate Commerce Act.

are received for transportation, in such form that they shall be
accessible to the public and can be conveniently inspected.

(Thus amended March 2, 1892.)

Printing and posting of schedules of rates on freight carried through
a foreign country.

“Any common carrier subject to the provisions of this act receiv-
ing freight in the United. States to be carried through a foreign
country to any place in the United States shall also in like manner
print and keep open to public inspection, at every depot or office
where such freight is received for shipment, schedules showing the
through rates established and charged by such common carrier to
all points in the United States beyond the foreign country to which
it accepts freight for shipment; and any freight shipped from the
United States through a foreign country into the United States, the
through rate on which shall not have been made public as required
by this'act, shall, before it is admitted into the United States from
said foreign country, be subject to customs duties as if said freight
were of foreign production; and any law in conflict with this sec-
tion is hereby repealed.

Ten days’ public notice of advance in rates to be given; three days’
public notice of reduction in rates to be given.

No advance shall be made in the rates, fares, and charges which
have been established and published as aforesaid by any common
carrier in compliance with the requirements of this section, except
after ten days’ public notice, which shall plainly state the changes
proposed to be made in the schedule then in force, and the time
when the increased rates, fares, or charges will go into effect; and
the proposed changes shall be shown by printing new schedules, or
shall be plainly indicated upon the schedules in force at the time
and kept open to public inspection. Reductions in such published
rates, fares, or charges shall only be made after three days’ previous
public notice, to be given in the same manner that notice of an-
advance in rates must be given. ,

Published rates not to be deviated from.

And when any such common carrier shall have established and
published its rates, fares, and charges in compliance with the pro-
‘visions of this section, it shall be unlawful for such common earrier
to charge, demand, collect, or receive from any person or persons
a greater or less compensation for the transportation of passengers
or property, or for any services in connection therewith, than is
Reeutating Commerce Brerween tue States. 569

 

Interstate Commerce Act.

 

specified in such published schedule of rates, fares, and charges as
aay at the time be in force.

‘Copies of schedules of rates, fares and charges to be filed with com-
mission; copies of contracts and agreements to be filed with
commission; joint tariffs to be filed with commission; power of
commission to prescribe publicity.

Every common carrier subject to the provisions of this act shall
file with the commission hereinafter provided for copies of its
schedules of rates, fares, and charges which have been established
and published in compliance with the requirements of this section,
and shall promptly notify said commission of all changes made in
‘the same. Every such common carrier shall also file with said com-
‘mission copies of all contracts, agreements, or arrangements with
other common carriers in relation to any traffic affected by the
provisions of this act to which it may be a party. And in cases
where passengers and freight pass over continuous lines or routes
operated by more than one common carrier, and the several, com-
mon carriers operating such lines or routes establish joint tariffs or
rates or fares or charges for such continuous lines or routes, copies
of such joint tariffs shall also, in like manner, be filed with said
commission. Such joint rates, fares, and charges on such contin-
uous lines so filed as aforesaid shall be made public by such common
carriers when directed by said commission, in so far as may, in the
judgment of the commission, be deemed practicable; and said com-
mission shall from time to time prescribe the measure of publicity
which shall be given to such rates, fares, and charges, or to such
part of them as it may deem it practicable for such common car-
riers to publish, and the places in, which they shall be published.

Ten days’ notice to commission of advance in joint rates, fares and
charges; three days’ notice to commission of reduction in joint
rates, fares and charges; power of commission to make advances
or reductions public.

No advance shall be made in joint rates, fares, and charges,
shown upon joint tariffs, except after ten days’ notice to the com-
mission, which shall plainly state the changes proposed to be made
in the schedule then in force, and the time when the increased
rates, fares, or charges will go into effect. No reduction shall be
made in joint rates, fares, and charges, except after three days’
notice, to be given to the commission as is above provided in the
case of an advance of joint rates. The commission may make
‘public such proposed advances, or such reductions, in such manner
570 Reeviatine ComMERcE BETWEEN THE STATES.

 

Interstate Commerce Act. :

as may, in its judgment, be deemed practicable, and may prescribe
from time to time the measure of publicity which common carriers
shall give to advances or reductions in joint tariffs.

Joint rates, fares and charges not to be deviated from.

Tt shall be unlawful for any common carrier, party to any joint.
tariff, to charge, demand, collect, or receive feu any person or
persons a greater or less compensation for the transportation of per-
sons or property, or for any services in connection therewith,
betaveen any points as to which a joint rate, fare, or charge is named.
thereon than is specified in the schedule filed with the commission.
in force at the time.

Commission may prescribe forms of schedules of rates, fares and
charges.

The commission may determine and prescribe the form in which
the schedules required by this section to be kept open to public
inspection shall be prepared and arranged, and may change the
form from time to time as shall be found expedient.

Penalties for neglecting or refusing to file or publish rates, fares and.
charges.

If any such common carrier shall neglect or refuse to file or pub-
lish its schedules or tariffs of rates, fares, and charges as provided.
in this section, or any part.of the same, such common carrier shall,.
in addition to other penalties herein prescribed, be subject to a writ
of mandamus, to be issued by any circuit court of the United States.
in the judicial district wherein the principal office of said common.

carrier is situated, or wherein such offense may be committed, and.
if such common carrier be a foreign corporation in the judicial
circuit wherein such common carrier accepts traffic and has an
agent to perform such service, to compel compliance with, the afore-
said provisions of this section; and such writ shall issue in the name
of the people of the United States, at the relation of the commis-
sioners appointed under the provisions of this act; and the failure-
to comply with its requirements shall be punishable as and for a
contempt; and the said commissioners, as complainants, may also-
apply, in any such circuit court of the United States, for a writ of
injunction against such common carrier, to restrain such common

carrier from receiving or transporting property among the several .

states and territories of the United States, or between the United
States and adjacent foreign countries, or between ports of trans-
shipment and of entry and the several states and territories of the

XN
Recutating Commerce BretwEEen THE STATES. 571

 

Interstate Commerce Act.

 

United States, as mentioned in the first section of this act, until
such common carrier shall have complied with the aforesaid pro-
visions of this section of this act.

Continuous carriage of freights not to be unnecessarily interrupted.

§ 7. That it shall be unlawful for any common carrier subject
to the provisions of this act to enter into any combination, contract,
or agreement, expressed or implied, to prevent, by change of time
-echedule, carriage in different cars, or by other means or devices,
the carriage of freights from being continuous from the place of
shipment to the place of destination; and no break of bulk, stop-
page, or interruption made by such common carrier shall prevent
the carriage of freights from being and being treated as one con-
tinuous carriage from the place of shipment to the place of destina-
tion, unless such break, stoppage, or interruption was made in good
faith for some necessary purpose, and without any intent to avoid
or unnecessarily interrupt such continuous carriage or to evade
any of the provisions of this act. ,

Liability of common carriers for damages. fg

§ 8. That in case any common carrier subject to the provisions
of this act shall do, cause to be done, or permit to be done any act,
matter, or thing in this act prohibited or declared to be unlawful,
or stall omit to do any act, matter, or thing in this act required
to be done, such common carrier shall be liable to the person or
persons injured thereby to the full amount of damages sustained
in consequence of any such violation of the provisions of this act,
together with a reasonable counsel or attorney’s fee, to be fixed by
the court in every case of recovery, which attorney’s fee shall be
taxed and collected as part of the costs in the case.

Persons claiming to be damaged may complain to commission or bring
suit in United States courts; officers, etc., of defendant may be
compelled to testify.

§ 9. That any person or persons claiming to be damaged’ by
any common carrier subject to the provisions of this act may either
make complaint to the commission as hereinafter provided for, or
may bring suit in his or their own behalf for the recovery of the
damages for which such common carrier may be liable under the
provisions of this act, in any district or circuit court of the United
States of competent jurisdiction; but such person or persons shall
not have the right to pursue both of said remedies, and must in
each ease elect which one of the two methods of procedure herein
572 Reeuuating Commerce BerwEEN THE STATES.

 

Interstate Commerce Act.

provided for he or they will adopt. In any such action brought
for the recovery of damages the court before which the same shalk
be pending may compel any director, officer, receiver, trustee, or
agent of the corporation or company defendant in such suit to
attend, appear, and testify in such casé, and may compel the pro-
duction of the books and papers of such corporation or company
party to any,such suit; the claim that any such testimony or evi-
dence may tend to criminate the person giving such evidence shalk
‘not excuse such witness from testifying, but such evidence or testi-
mony shall not be used against such person on the trial of any
criminal proceeding.

Penalties ‘for violations of act by carriers, their officers or agents;

fine and imprisonment.

§ 10. That any common carrier subject to the provisions of
this act, or, whenever such common carrier is a corporation, any
director or officer thereof, or any receiver, trustee, lessee, agent,
or person, acting for or employed by such corporation, who, alone
or with any other corporation, company, person, or party, shall
willfully do or cause to be done, or shall willingly suffer or permit
to be done, any act, matter, or thing in this act prohibited or
declared to be unlawful, or who-shall aid or abet therein, or shall
willfully omit or fail to do any act, matter, or thing in this act
required to be done, or shall cause or willingly suffer or permit any
act, matter or thing so directed or required by this act to be done
not to be so done, or shall aid or abet any such omission or failure,
or shall be guilty of any infraction of this act, or shall aid‘or abet.
therein, shall be deemed guilty of a misdemeanor, and shall, upon
conviction thereof in any district court of the United States within
the jurisdiction of which such offense was committed, be subject
to a fine of not to exceed five thousand dollars for each offense:
Provided, that if the offense for which any person shall be con-
victed as aforesaid shall be an unlawful discrimination in rates,
fares, or charges, for the transportation of passengers or property,
such person shall, in addition to the fine hereinbefore provided for,
be liable to imprisonment in the penitentiary for a term of not
exceeding two years, or both such fine and imprisonment, in the
discretion of the court.

Penalties for false billing, etc., by carriers, their officers or agents;
fine and imprisonment.

Any common carrier subject to the provisions of this act, or,
whenever such common carrier is a corporation, any officer or agent
Reeuiating ComMEerRcE BrerwEEen THE STATES. 573°

 

Interstate Commerce Act. :

 

thereof, or any person acting for or employed by such corporation,
who, by means of false billing, false classification, false weighing,
or false report of weight, or by any other devise or means, shall
knowingly and willfully assist, or shall willingly suffer or permit,
any person or persons to dbtain transportation for property at less
than the regular rates than established and in force on the line of
transportation of such common carrier, shall be deemed guilty of a
misdemeanor, and shall, upon conviction thereof in any court of
the United States of competent jurisdiction within the district in
which such offense was committed, be subject to a fine of not
exceeding five thousand dollars,.or imprisonment in the peniten-
tiary for a term of not exceeding two years, or both, in the dis-
cretion of the court, for each offense.

Penalties for false billing, etc., by shippers and other persons; fine

and imprisonment.

Any person and any officer or agent of any corporation or com-
pany who shall deliver property for transportation to any common
carrier, subject to the provisions of this act, or for whom as con-
signor or consignee any such carrier shall transport property, who
shall knowingly and willfully, by false billing, false classification,
' false weighing, false representation of the contents of the package,
or false report of weight, or by any other devise or means, whether
with or without the consent or connivance of the carrier, its agent
or agents, obtain transportation for such property at less than the
regular rates then established and in force on the line of transpor-
tation, shall be deemed guilty of fraud, which is hereby declared
‘to be a misdemeanor, and shall, upon conviction thereof in any
court of the United States of competent, jurisdiction within the
district in which such offense was committed, be subject for each
offense to a fine not exceeding five thousand dollars or imprison-
ment in the penitentiary for a term of not exceeding two years, or
both, in the discretion of the court.

Penalties for inducing common carriers to discriminate unjustly; fine
and imprisonment; joint liability with carrier for damages.

If any such person, or any officer or agent of any such corpora-
tion or company, shall, by payment of money or other thing of
value, solicitation, or otherwise, induce any common carrier subject
to the provisious of this act, or any of its officers or agents, to dis-
criminate unjustly i in his, its, or their favor as against any other
consignor or consignee in the transportation of property, or shall
aid or abet any common carrier in any such unjust discrimination,
such person or such officer or agent of such corporation or company
574 Reevutating Commerce Berween THE States.

 

Interstate Commerce Act.

shall be deemed guilty of a misdemeanor, and shall, upon convie-
tion thereof in any court of the United States of competent juris-
diction within the district in which such offense was committed, be
subject to a fine of not exceeding five thousand dollars, or imprison-
ment in the penitentiary for a term not exceeding two years, or
both, in the discretion of the court, for each offense; and such per-
son, corporation, or company shall also, together with said common
carrier, be liable, jointly or severally, in an action on the case to be
brought by any consignor or consignee discriminated against in any
court of the United States of competent jurisdiction for all dam-
ages caused by or resulting therefrom.

(Thus amended March 2, 1889.)

Interstate commerce commissioners; how appointed; terms of com-
missioners.

§ 11. That a commission is hereby created and established to
be known as the Interstate Commerce Commission, which shall be
composed of five commissioners, who shall be appointed by the
President, by and with the advice and consent of the Senate. The
commissioners first appointed under this act shall continue in office
for the term of two, three, four, five, and six years, respectively,
from the first day of January, anno Domini eighteen hundred and
eighty-seven, the term of each to be designated by the President;
but their successors shall be appointed for terms of six years, except.
that any person chosen to fill a vacancy shall be appointed only for
the unexpired time of the commissioner whom he shall succeed.
Any commissioner may be removed by the President for ineffi-
ciency, neglect of duty, or malfeasance in office. Not more than
three of the commissioners shall be appointed from the same politi-
eal party. No person in the employ of or holding any official rela-
tion to any common carrier subject to the provisions of this act,
or owning stocks or bonds thereof, or who is in any manner pecuni-
arily interested therein, shall enter upon the duties of or hold such
office. Said commissioners shall not engage in any other business,
vocation, or employment. No vacancy in the commission shall
impair the right of the remaining commissioners to exercise all the
powers of the commission.

Power of commission to inquire into business of carriers; commission
required to enforce the provisions of the act; power of the commis-
sion to require attendance of witnesses and production of books
and papers,

§'12. That the commission hereby created shall have authority
to inquire into the management of the business of all common ear-
Reeviating Commerce Berwren tur States. 575

 

Interstate Commerce Act.

 

riers subject to the provisions of this act, and shall keep itself
informed as to the manner and method in which the same is con-
‘ducted, and shall have the right to obtain from such common car-
riers full and complete information necessary to enable the com-
‘mission to perform the duties and carry out the objects for which
it was created; and the commission is hereby authorized and
required to execute and enforce the provisions of this act; and.
upon the request of the commission, it shall be the duty of any
district attorney of the United States to whom the commission may
apply to institute in the proper court and to prosecute under the
direction of the Attorney-General of the United States all neces-
‘sary proceedings for the enforcement of the provisions of this act
and for the punishment of all violations thereof, and the costs and
expenses of such prosecution shall be paid out of the.appropriation
for the expenses of the courts of the United States; and for the
purposes of this act the commission shall have power to require, by
subpoena, the attendance and testimony of witnesses and the pro-
‘duction of all books, papers, tariffs, contracts, agreements, and
documents relating to any matter under investigation.

Such attendance’ of witnesses, and the production of such docu-
mentary evidence, may be required from any place in the United
‘States, at any designated place of hearing. And in case of dis-
obedience to a subpoena the commission, or any party to a pro-
ceeding before the commission, may invoke the aid of any court
of the United States in requiring the attendance and testimony of
‘witnesses and the production of. books, papers, and documents under
the provisions of this section.

Punishment for refusal to testify or produce books and papers.

And any of the circuit courts of the United States within the
jurisdiction of which such inquiry is carried on may, in case of
contumacy or refusal to obey a subpoena issued to any common
carrier subject to the provisions of this act, or other person, issue
an order requiring such common carrier or other person to appear
before said commission (and produce books and papers if so
ordered) and give evidence touching the matter in question; and
any failure to obey such order of the court may be punished by
such court as a contempt thereof. The claim that any such testi-
mony or evidence may “tend to criminate the person giving such
evidence shall not excuse such witness from testifying; but such
evidence or testimony shall not be used against such person on the
trial of any criminal proceeding.

(Thus amended February 10, 1891.)

€
576 Reeuiating Commerce BetwEEn THE STATES.

 

Interstate Commerce Act.

 

Commission may order testimony to be taken by deposition.

The testimony of any witness may be taken, at the instance of
a party in any proceeding or investigation depending before the
commission, by deposition, at any time after a cause or proceeding
is at issue on petition and answer. The commission may also order
testimony to be taken by deposition in any proceeding or investi-
gation pending before it, at any stage of such proceeding or investi-
gation. Such depositions may be taken before any judge of any
court of the United States, or any commissioner of a circuit, or any
clerk of a district or circuit court, or any chancellor, justice, or
judge of a supreme or superior court, mayor or chief magistrate-
of a city, judge of a county court, or court of common pleas of any
of the United States, or any notary public, not being of counsel or
attorney to either of the parties, nor interested in the event of the-
proceeding or investigation. Reasonable notice must first be given:
in writing by the party or his attorney proposing to take such
deposition to the opposite party or his attorney of record, as either
may be nearest, which notice shall state the name of the witness:
and the time and place of taking of his deposition. Any person
may be compelled to appear and depose, and to produce document-
ary evidence, in the same manner as witnesses may be compelled
to appear and testify and produce documentary evidence before the
commission as hereinbefore provided.

Every person deposing as herein provided shall be cautioned’
and sworn (or affirm, if he so request) to testify the whole truth,
and shall be carefully examined. His testimony shall be reduced
to writing by the magistrate taking the deposition, or undér his
direction, and shall, after it has been reduced to writing, be sub-
scribed by the deponent.

If a witness whose testimony may be desired to be taken by
deposition be in a foreign country, the deposition may be taken
before an officer or person designated by the commission, or agreed
upon by the parties by stipulation in writing to be filed with the
commission. All depositions must be promptly filed with the
commission.

Witnesses whose depositions are taken pursuant to this act, and
the magistrate or other officer taking the same, shall severally be
entitled to the same fees as are paid for like services in the courta
of the United States.

(This section was added by amendment February 10, 1891.)
1 Reeuiating Commerce Between THE STATES. 577

 

Interstate Commerce Act.

 

Complaints to commission; how and by whom made; reparation by
carriers before investigation; investigations by the commission.

§ 13. That any person, firm, corporation or association, or any
mercantile, agricultural, or manufacturing society, or any body
politic or municipal organization complaining of anything done or
omitted to. be done by any common carrier subject to the provisions
of this act in contravention of the provisions thereof, may apply
to said commission by petition, which shall briefly state the facts;
‘whereupon a statement of the charges thus made shall be forwarded
by the commission to such common carrier, who shall be called
upon to satisfy the complaint or to answer the same in writing
within a reasonable time, to be specified by the commission. If
such common carrier, within the time specified, shall make repara-
tion for the injury alleged to have been done, said carrier shall be
relieved of liability to the complainant only for the particular vio-
lation of law thus complained of. If such carrier shall not satisfy
the complaint within the time specified, or there shall appear to
be any reasonable ground for investigating said complaint, it shall
be the duty of the commission to investigate the matter complained
of in such manner and by such means‘as it shall deem proper.

Said commission shall in like manner investigate any complaint
forwarded by the railroad commissioner or railroad commission of
any state or territory, at the request of such commissioner or com-
mission, and may institute any inquiry on its own motion in the
same manner and to the same effect as though complaint had been
made.

No complaint shall at any time be dismissed because of the
absence of direct damage to the complainant.

Findings of commission prima facie evidence in judicial proceedings.

§ 14. That whenever an investigation shall be made by said
commission, it shall be its duty to make a report in writing in
respect thereto, which shall include the findings of fact upon which.
the conclusions of the commission are based, together with its
recommendation as to what reparation, if any, should be made by
the common carrier to any party or parties who may be found to
have been injured; and such findings so made shall thereafter, in all
judicial proceedings, be deemed prima facie evidence as to each
and every fact found.

All reports of investigations made by the commission shall be
entered of record, and a copy thereof shall be furnished to the party

37
578 Reeuiating Commerce Between THE STATES.

 

Interstate Commerce Act.

 

who may have complained, and to any common carrier that may
have been complained of.

(Thus amended March 2, 1889.)
‘

Reports and decisions; authorized publication to be competent evi-
dence; publication and distribution of annual reports of com-
mission.

The commission may provide for the publication of its reports
and decisions in such form and manner as may be best adapted for
public information and use, and such authorized publications shall
be competent evidence of the reports and decisions of the commis-
sion therein contained, in all courts of the United States, and of the
several States, without any further proof or authentication thereof.
The commission may also cause to be printed for early distribution
its annual reports.

Notice to common carriers to cease from violation of act; compliance
‘with notice to cease from violation of act; reparation.

§ 15. That if in any case in which an investigation shall be
made by said commission it shall be made to appear to the satisfac-
tion of the commission, either by the testimony of witnesses or
other evidence, that anything has been done or omitted to be done
in violation of the provisions of this act, or of any law cognizable
by said commission, by any common carrier, or that any injury or
damagé has been sustained by the party or parties complaining, or.
by other parties aggrieved in consequence of any such violation,
it shall be the duty of the commission to forthwith cause a copy of
its report in respect thereto to be delivered to such common car-
rier, together with a notice to said common carrier to cease and
desist from such violation, or to make reparation for the injury
so found to have been done, or both, within a reasonable time, to
be specified by the commission; and if, within the time specified,
it shall be made to appear to the corrmission, that such common
carrier has ceased from such violation of law, and has made repara-
tion for the injury found to have been done, in compliance with
the report and notice of the commission, or to the satisfaction of
the party complaining, a statement to that effect shall be entered
of record by the commission, and the said common carrier shall
thereupon be relieved from further liability or penalty for such
particular violation of law.
Reeuiatinc ComMERcE BretwrEren THE STATEs. 579

 

Interstate Commerce Act.

 

Petition to United States courts in case of disobedience to order of
commission; power of United States courts to hear and determine
cases of disobedience; writs of injunction or other process against
carriers in cases of disobedience; punishment for refusal to obey
writs of injunction or other proper process; fine; appeals to supreme:
court of United States.

§ 16. That whenever any common carrier, as defined in and
subject to the provisions of this act, shall violate, or refuse or neg-
lect to obey or perform any lswfal order or requirement of the
commission created by this act, not founded upon a controversy
requiring a trial by jury, as provided by the seventh amendment.
to the constitution of the United States, it shall be lawful for the
commission or for any company or person interested in such order
or requirement, to apply in a summary way, by petition, to the
Circuit Court of the United States sitting in equity in the judicial
district in which the common carrier complained of has its principal
office, or in which the violation or disobedience of such order or
requirement shall happen; alleging such violation or disobedience,
as the case may be, and the said court shall have power to hear
and determine the matter, on such short notice to the common
carrier complained of as the court shall deem reasonable; and such
notice may be served on such common carrier, his or its officers,
agents, or servants in such manner as the court shall direct; and
said court shall proceed. to hear and determine the matter as
speedily ‘as a court of equity, and without the formal pleadings and
proceedings applicable to ordinary suits in equity, but in such man-
ner as to do justice in the premises; and to this end such court shall
have power, if it think fit, to direct and prosecute in such mode and
by such persons as it may appoint, all such inquiries as the court
may think needful to enable it to form a just judgment in the
matter of such petition; and on such hearing the findings of fact
in the report of said commission shall be prima facie evidence of
the matters therein stated; and if it be made to appear to such
court, on such hearing or on report of any such person or persons,
that the lawful order or requirement of said commission drawn in
question has been violated or disobeyed, it shall be lawfy) for such
court to issue a writ of injunction or other proper process, manda-
tory or otherwise, to restrain such common carrier from further
continuing such violation or disobedience of such order or require-
ment of said commission, and enjoining obedience to the same;
and in case of any discbadienca of any such writ of injunction or .
other proper process, mandatory or otherwise, it shall be lawful
580 Reguiating Commerce BrerwrEen ‘tHE STaTEs.

 

Interstate Commerce Act.

 

for such court to issue writs of attachment, or any other process of
said court incident or applicable to writs of injunction or other
proper process, mandatory or otherwise, against such common car-
rier, and if a corporation, against one or more of the directors,
officers, or agents of the same, or against any owner, lessee, trustee,
receiver, or other person failing to obey such writ of injunction,
or other proper process, mandatory or otherwise; and said court
may, if it shall think fit, make an order directing such common
carrier or other person so disobeying such writ of injunction or
other proper process, mandatory or otherwise, to pay such sum of
money, not exceeding for each carrier or person in default the sum
of five hundred dollars for every day, after a day to be named in the
order, that such carrier or other person shall fail to obey such
injunction or other proper process, mandatory or otherwise; and
such moneys shall be payable as the court shall direct, either to the
party complaining or into court, to abide the ultimate decision of
the court, or into the treasury; and payment thereof may, without
prejudice to any other mode of recovering the same, be enforced
by attachment or order in the nature of a writ of execution, in like
manner as if the same had been recovered by a final decree in per
sonam in such court. When the subject in dispute shall be of the
value of two thousand dollars or more, either party to such pro-
ceeding before said court may appeal to the Supreme Court of the
United States, under the same regulations.now provided by law in
respect of security for such appeal; but such appeal shall not
operate to stay or supersede the order of the court or the execution
of any writ or process thereon; and such court may, in every such
matter, order the payment of such costs and counsel fees as shall

' be deemed reasonable. Whenever any such petition shall be filed

tf

or presented by the commission it shall be the duty of the district
attorney, under the direction of the attorney-general of the United
States, to prosecute the same; and the costs and expenses of such
prosecution shall be paid out of the appropriation for the expenses
of the courts of the United States. :

XN
Petition to United States courts in cases of disobedience when trial
by juty is necessary; trial by jury; trial by court; appeals to
supreme court of United States; counsel or attorney’s fees.

If the matters involved in any such order or requirement of said
commission are founded upon a controversy requiring a trial by
jury, as provided by the seventh amendment to the constitution of
the United States, and any such common carrier shall violate or
Reevrating Commerce Between tae Staves. 581

 

: Interstate Commerce Act,

refuse or neglect to obey or perform the same, after notice given
by said commission as provided in the fifteenth section of this act,
it shall be lawful for any company or person interested in such
order or requirement to apply in a summary way by petition to
the circuit court of the United States sitting as a court of law in
the judicial district in which the carrier complained of has its
principal office, or in which the violation or disohedience of such
_ order or requirement shall happen, alleging such violation or dis-
- obedience as the case may be; and said court shall by its order then
fix a time and place for the tal of said cause, which shall not be
less than twenty nor more than forty days from the time said order
is made, and it shall be the duty of the marshal of the district in
which said proceeding is pending to forthwith serve a copy of said
petition, and of said order, upon each of the defendants, and it shall
be the duty of the defendants to file their answers to said petition
within ten days after the service of the same upon them as afore-
said. At the trial the findings of fact of said commission as set
forth in its report shall be prima facie evidence of the matters
therein stated, and if either party shall demand a jury or shall omit
to waive a jury the court shall, by its order, direct. the marshal
forthwith to summon a jury to try the cause; but if all the parties
shall waive a jury in writing then the court shall try the issues in
said cause and render its judgment thereon. If the subject in dis-
pute shall be of the value of two thousand dollars or more either
party may appeal to the supreme court of the United States under
the same regulations now provided by law in respect to security for
such appeal; but such appeal rust be taken within twenty days
from the day of. the rendition of the judgment of said Circuit
Court. If the judgment of the Cireuit Court shall be in favor of
the party complaining he or they shall be entitled to recover a
reasonable counsel or attorney’s fee, to be fixed by the court, which
shall be collected as part of the costs in the case. For the purposes
of this act, excepting its penal provisions, the Circuit Courts of the
United States shall be deemed to be always in session.

(Thus amended March 2, 1889.)

Interstate commerce commission; form of procedure; official seal.

§ 17. That the commission may conduct its proceedings in such
‘manner as will best conduce to the proper dispatch of business and
to the ends of justice. A majority of the commission shall con-
stitute a quorum for the transaction of business, but no commis-
sioner shall participate in any hearing or proceeding in which he
582 Reevitating Commerce Brrwreren THE Sates. :

 

Interstate Commerce’ Act.

 

has any pecuniary interest. Said commission may, from time to
time, make or amend such general rules or orders as may be
requisite for the order and regulation of proceedings before it,
including forms of notices and the service thereof, which shall con-
form, as nearly as may be, to those in use in the courts of the
United States. Any party may appear before said commission and
be heard, in person or by attorney. Every vote and official act of
the commission shall be entered of record, and its proceedings shalt -
be public upon the request of either party interested. Said com-
mission shall have an official seal, which shall be judicially noticed.
Either of the members of the commission may administer oaths and
affirmations and sign subpoenas.
(Thus amended March 2, 1889.)

Salaries of commissioners; secretary, how appointed; salary; offices
and supplies; witness fees.

§ 18. That each commissioner shall receive an annual salary
of seven thousand five hundred dollars, payable in the same man-
ner as the judges-of the courts of the United States. The com-
mission shall appoint a secretary, who shall receive an annual salary
of three thousand five hundred dollars, payable in like manner.
The commission shall have authority to employ and fix the com-
pensation of such other employes as it may find necessary to the
proper performance of its duties. Until otherwise provided by law,
the commission may hire suitable offices for its use, and shall have
authority-to procure all necessary office supplies. Witnesses sum-
moned before the commission shall be paid the same fees and
mileage that are paid witnesses in the courts of the United States.

Expenses of the commission; how paid.

All of the expenses of the commission, including all necessary
expenses for transportation incurred by the commissioners, or by
their employes under their orders, in making any investigation, or
upon official business in any other places than in the city of Wash-
ington, shall be allowed and paid on the presentation of itemized
vouchers therefor approved by the chairman of the commission.

(Thus amended March 2, 1889.)

’ Principal office of the commission; sessions of the commission.

§ 19. That the principal office of the commission shall be in
the city of Washington, where its general sessions shall be held;
but whenever the convenience of the public or the parties may be
promoted or delay or expense prevented thereby, the commission.
Reeuiating Commerce BETWEEN THE STATES. 583

 

Interstate Commerce Act.

 

may hold special sessions in any part of the United States. It may,
by one or more of the commissioners, prosecute any inquiry neces-
sary to its duties, in any part of the United States, into any matter
or question of fact pertaining to the business of any common cartier
subject’ to the provisions of this act.

Carriers subject to the act must render full annual reports to commis-
sion; commission may prescribe methods of keeping accounts.

§ 20. That the commission is hereby authorized to require
annual reports from all common carriers subject to the provisions
of this act, to fix the time and prescribe the manner in which such
reports shall be made, and to require from such carriers specific
answers to all questions upon which the commission may need
jnformation. Such annual reports shall show in detail the amount
of capital stock issued, the amounts paid therefor, and the manner
of payment for the same; the dividends paid, the surplus fund, if
pny, and the number of stoakhelders: the funded and floating debts
and the interest paid thereon; the cost and value of the carrier’s
property, franchises, and equ pmrenits ; the number of employes and
the salaries paid ‘each class; the amounts expended for improve-
ments each year, how denended: and the character of such improve-
ments; the earnings and receipts from each branch of business and
from all sources; the operating and other expenses; the balances of
profit and loss; nad a complete exhibit of the financial operations
of the carrier each year, including an annual balance sheet. Such
report shall also contain such information in relation to rates or
regulations concerning fares or freights, or agreements, arrange-
ments, or contracts with other common carriers, as the commission
may require; and the said commission may, within its discretion,
for the purpose of enabling it the better to carry out the purposes
of this act, prescribe (if in the opinion of the commission it is prac-
ticable to prescribe such uniformity and methods of keeping
accounts) a period of time within which all common carriers sub-
ject to the provisions of this act shall have, as near as may be, a
uniform system of accounts, and the manner in which such
accounts shall be kept.

Annual reports of the commission to congress.

§ 21. That the commission shall, on or before the first day of
December ir each year, make a report, -which shall be transmitted
to congress, and copies of which shall be distributed as are the
other reports transmitted to congress. This report shall contain
such information and data collected by the commission as may be
584 Reeviating Commerce Between THE STATES.

 

: Interstate Commerce Act.

 

considered of value in the determination of questions connected.
with the regulation of commerce, together with such recommenda-
tions as to additional legislation relating thereto as the commission
may deem necessary; and the names and compensation of the per-
sons employed by said commission.

(Thus amended March 2, 1889.)

Persons and property that may be carried free or at reduced rates;
mileage, excursion, or commutation passenger tickets; passes and
free transportation to officers and employes of railroad companies;
pending litigation not affected by act. eg 8

§ 22. That nothing in this act shall prevent the carriage,
storage, or handling of property free at reduced rates for the United
' States, state or municipal governments, or for charitable purposes,

or to or from fairs and expositions for exhibition thereat, or the
free carriage of destitute and homeless persons transported by
charitable societies, and the necessary agents employed in such
transportation, or the issuance of mileage, excursion, or commuta-
tion passenger tickets; nothing in this act shall be construed to
prohibit any common carrier from giving reduced rates to minis-
ters of religion, or to municipal governments for the transportation
of indigent persons, or to inmates of the National Homes or State
Homes for Disabled Volunteer Soldiers, and of Soldiers and Sailors’
Orphan Homes, including those about to enter and those returning
home after discharge, under arrangement with the boards of man-
agers of said homes; nothing in this act shall be construed to pre-
vent railroads from giving free carriage to their own officers and
employes, or to prevent the principal officers of any railroad com-
pany or companies from exchanging passes or tickets with other
railroad companies for their officers and employes; and nothing in
this act contained shall in any way abridge or alter the remedies
now existing at common law or by statute, but the provisions of
this act are in addition to such remedies: Provided, That no pend-
ing litigation shall in any way be affected i this act.

(Thus amended March 2, 1889.)

Jurisdiction of United States courts to issue writs of peremptory man-
damus commanding the movement of interstate traffic or the fur-
nishing of cars or other transportation facilities.

That the circuit and district courts of the United: States shall
have jurisdiction upon the relation of any personor persons, firm,
or corporation, alleging such violation by a common carrier, of
any of the provisions of the act to which this is a supplement and
Recuiating Commerce Bretwren THE StarEs. 585

 

Interstate Commerce Act.

 

all acts amendatory thereof, as prevents the relator from having
interstate traffic moved by said common carrier at the same rates
.as are charged, or upon terms or conditions as favorable as those
given by said common carrier for like traffic under similar condi-
tions to any other shipper, to issue a writ or writs of mandamus
against said common carrier, commanding such common carrier to
move and transport the traffic, or to furnish cars or other facilities
for transportation for the party applying for the writ: Provided,
that if any question of fact as to the proper compensation to the

common carrier for the service to be enforced by the writ is raised ,

‘by the pleadings, the writ of peremptory mandamus may issue, not-
withstanding such question of fact is undetermined, upon such
terms as to security, payment of money into the court, or otherwise,
as the court may think proper, pending the determination of the
question of fact: Provided, that the remedy hereby given by writ
of mandamus shall be cumulative, and shall not be held to exclude
or interfere with other remedies provided by this act or the act
to which it is a supplement.

(New section, added March 2, 1889.)
586 Reeviating Commerce Brrwreren THe States.

 

Interstate Commerce Act.

SUPPLEMENTAL TO THE INTERSTATE COMMERCE ACT.

An Act in relation to testimony before the Interstate Commerce
Commission, and in cases or proceedings under or connected with.
an act entitled “ An act to regulate Commerce,” approved Feb-
ruary fourth, eighteen hundred and eighty-seven, and amend-
ments thereto.

Be it enacted by the Senate and House of Representatives of the-
United States of America in Congress assembled, That no person.
shall be excused from attending and testifying or from producing
books, papers, tariffs, contracts, agreements and documents before:
the Interstate Commerce Commission, or in obedience to the sub-.
poena of the Commission, whether such subpoena be signed or
issued by one or more Commissioners, or in any cause or proceed-
ing, criminal or otherwise, based upon or growing out of any
alleged violation of the act of Congress, entitled “ An act to regu-
late commerce,” approved February fourth, eighteen hundred and‘
eighty-seven, or of any amendment thereof on the ground or for the:
reason that the testimony or evidence, documentary or otherwise,
required of him, may tend to criminate him or subject him to a
penalty or forfeiture. But no person shall be prosecuted or sub-
jected to any penalty or forfeiture for or on account of any trans--
action, matter or thing, concerning which he may testify, or pro-
duce evidence, documentary or otherwise, before said Commission,
or in obedience to its subpoena, or the subpoena of either of them,.
or in any such case or proceeding: Provided, That no person so
testifying shall be exempt from prosecution and punishment for:
perjury committed in so testifying.

Any person who shall neglect or refuse to attend and testify, or:
to answer any lawful inquiry, or to produce books, papers, tariffs,
contracts, agreements and documents, if in his power to do so, in
obedience to the subpoena or lawful requirement of the Commis-
sion shall be guilty of an offense and upon conviction thereof by a
court of competent jurisdiction shall be punished by fine not less
than one hundred dollars nor more than five thousand dollars, or
by imprisonment for not more than one year or by both such fine-
and imprisonment.
Reeviating Commerce Berwreen rue Staras, “© 587

—

 

Interstate Commerce Act.

 

_, wAn Act to promote the safety of employes and travelers upon rail-
roads by compelling common carriers engaged in interstate com-
merce to equip their cars with automatic couplers:and continuous
brakes and their locomotives with driving-wheel brakes, and for

other purposes.
APPROVED March 2, ag00.

Be it enacted by the ae ai a House of Representatives of the
United States of America in Congress assembled, That from and
after'the first day of January, eighteen hundred. anal ninety-eight,
it shall be unlawful for any common carrier engaged in interstate
‘commerce by railroad to use on its line any locomotive engine in
moving interstate traffic not equipped with a power driving-wheel
‘brake and appliances for operating the train-brake system, or to run
any train im such traffic after said date that has not a sufficient num-
ber of cars in it so equipped with power or train brakes that the
/engineer on the locomotive drawing such train can control its
‘speed without requiring brakemen to use the common hand brake
for that purpose.

-§ 2. That on and after the first day of January, eighteen hun-
‘dred and ninety-eight, it shall be unlawful for any such common
jearrier to haul or permit to be hauled or used on its line any car

used in moving intetstate traffic not equipped with couplers coup-
ling automatically by impact, and which can be uncoupled without
the necessity of men going between the ends of the cars.

§ 3. That when any person, firm, company, or corporation
engaged in interstate commerce by railroad shall have equipped a
sufficient number of its cars so as to comply with the provisions of
‘section one of this act, it may lawfully refuse to receive from con-
necting lines of road or shippers any cars not equipped sufficiently,
‘in accordance with the first section of this act, with such power or
train brakes as will work and readily interchange with the brakes
‘in use on its own cars, as required by this act.

§ 4. That from and after the first day of July, eighteen hun-
‘dred and ninety-five, until otherwise ordered by the Interstate Com-
merce Commission, it shall be unlawful for any railroad company
to use any car in interstate commerce that is not provided with
secure grab irons or hand-holds in the ends and sides of each car
for greater security to men in coupling and uncoupling cars.

§ 5. That within ninety days from the passage of this act the
American Railway Association is authorized hereby to designate

é \
 

E

588 Reeuiatine Commerce Brtwren THE Srares.

 

Interstate Commerce Act.

to the Interstate Commerce Commission the standard height of
drawbars for freight cars, measured perpendicular from the level
of the tops of the rails to the center of the drawbars, for each of
the several gauges of railroad in use in the United States, and shall.
fix a maximum variation from such standard height to be allowed:
between the drawbars of empty and loaded cars. Upon their deter-
mination being certified to the Interstate Commerce Commission,.
said commission shall at once give notice of the standard fixed upon. '
to all common carriers, owners, or lessees engaged in interstate com-
merce in the United States by such means as the commission may
deem. proper. But should said association fail to determine a
standard as above provided, it shall be the duty of the Interstate:
Commerce Commission to do so, before July first, eighteen hun-
dred and ninety-four, and immediately to give notice thereof as
aforesaid. And after July first, eighteen hundred and ninety-five,
no cars either loaded or unloaded, shall be used in interstate traffic
which do not comply with the standard above provided for. ;

Penalty for violation of the provisions of this act.

§ 6. That any such common carrier using any locomotive
engine, running any train, or hauling or permitting to be hauled
or used on its line any car in violation of any of the provisions of
this act, shall be liable to a penalty of one hundred dollars for
each and every such violation, to be recovered in a suit or suits
to be brought by the United States district attorney in the district.
court of the United States having jurisdiction in the locality where
such violation shall have been committed, and it shall be the duty
of such district attorney to bring such suits upon duly verified infor
mation being lodged with him of such violation having occurred.
And it shall also be the duty of the Interstate Commerce Commis-
sion to lodge with the proper district attorneys information of any

‘such violations as may come to its knowledge: Provided, That

nothing in this act contained shall apply to trains composed of four-
wheel cars or to locomotives used in hauling such trains.

Power of interstate commerce commission to extend time of carriers to
comply with this act.

§ 7. That the Interstate Commerce Commission may from time
to time upon full hearing and for good cause extend the period
within which any common carrier shall comply with the provisions
of this act.
Reavitating Commerce Between THE STATES. 589.

 

Interstate Commerce Act.

 

Employes not deemed to assume risk of employment.

§ 8. That any employe of any such common carrier who may be
injured by any locomotive, car, or train in use contrary to the -
provision of this act shall not be deemed thereby to have assumed
the risk thereby occasioned, although continuing in the employ-
ment of such carrier after the unlawful use of such locomotive,
car or train had been brought to his knowledge.

t
MISCELLANEOUS STATUTES

Arrecting Corporations GENERALLY.

 

L. 1890, Ox. 388.
An Act to provide for the weekly payment of wages by corporations,

L. 1889, Cu. 381.

An Act to provide for the cash payment of wages by corporations.

The two above-entitled acts have been repealed by the Labor Law
(L. 1897, ch. 415), which now contains the provisions regulating the pay: ,
ment of wages by corporations. For such provisions, see ante, page 425.

L. 1873, Cu. 595.

An Act relative to certain negotiable corporate bonds and
obligations.
The above-entitled act has been repealed by the Negotiable Instruments

Law (L. 1897, ch. 612), section 332, of which embodies provisions of like
character. For said section, see ante, page 430. :

'

L. 1851, Cx. 321.

An Act authorizing married women who may be members or stock-
holders of any incorporated company, to vote at elections of
directors and trustees. ;

Secrion 1. It shall be lawful for any married woman, being a
stockholder or member of any bank, insurance company (other
than mutual fire insurance companies), manufacturing company
or other institution incorporated under the laws of this state, to vote
at any election for directors or trustees, by proxy or otherwise, in
such company of which she may be a stockholder or member.
'

Free Facriiries ror PoLiceMEN AND FIREMEN. 591

 

Miscellaneous Statutes.

 

L. 1895, Cu. 417.

An Act to regulate the exercise of their franchises by certain public
corporations, by requiring them to afford facilities for the trans-.
action of the public business, to certain public officers and
employes.

’ Sorrow 1. The mayor of each city of this State and the presi-

dent of each incorporated village may issue, under the seal of hia
office, to each policeman and fireman appointed by the duly con-
stituted authorities of such city or village, a certificate of the
appointment and qualification of such policeman or fireman ag
such, and specifying the duration of his term of office; and it shall
thereupon be the duty of every street surface and elevated railroad
company carrying on business within such city or village, to trans- .
port every such policeman or fireman free of charge while he is
traveling in the course of the performance of the duties of hig
office. Every telegraph or telephone company engaged in businesg
within such city or village, shall afford to such policeman or fire-
man the use of its telegraph lines or telephones for the purpose
of making and receiving reports and communications in the course
of the performance of his official duties.

Ԥ 2. Every policeman or fireman who shall permit any other
person to use the certificate issued to him as provided by this act,
ur to present or make use of the same, except while acting in the
course of the performance of his official duties, or who shall use
such certificate after the expiration of his term of office or his
resignation or removal therefrom, shall be deemed guilty of a
misdemeanor.

See aiso L. 1897, ch. 683, p. 594.

L. 1899, Ox. 201.

An Act to facilitate the proving of the incorporation of new
corporations formed by the consolidation of two or more
corporations.

Srecrion 1. Where two or more corporations have been or shall
hereafter be, consolidated and merged into a new corporation. a
certificate of the secretary of state under his official seal concisely
stating the names of the respective corporations consolidated, the
dates of the filing of the certificates respectively of the incorpora-
tion of such corporations in his office, the object for which they
592 Poors to Conrro: Transportation RatTEs.

Miscellaneous Statutes.

were formed, including the nature and locality of their business
as set forth in their respective incorporation papers on file in his
office, the date of the filing of the consolidation agreement and.
other proceedings in his office, the name of the new corporation.
formed by such consolidation and merger, the term of its incor-
porate existence, the place where its principal office is situated
and the amount of its capital stock, shall be presumptive and
prima facie‘evidence in all actions and special proceedings for all.
purposes of the incorporation of the corporations so consolidated,
‘the incorporation of the new corporation by such consolidation
and merger from the date of filing of said consolidation agreement
and proceedings, and of the other facts so certified by him.

L. 1899, Cx. 727.

An Act providing for the punishment of pools, trusts and con-
spiracies to control rates of transportation.

Szorion 1. Any corporation not organized under the laws of
this state engaged in the transportation business, and transacting or
conducting the said business or any part thereof in this state, or
any partnership of individual, or other association or person what-
soever, so engaged and transacting business as aforesaid, who shall
create, enter into, become a member of or a party to any pool,
trust, agreement, combination, confederation or understanding
with any other corporation, partnership, individual or any other
person or association of persons, to control the volume of trans-
portation between this country and Europe, or to control, limit,
regulate or fix the rates.thereof, or who shall refuse to sell to any
person, either for himself or another, on demand therefor, trans-
portation between the United States and Europe, either eastbound
or westbound, at the usual and legal rates, shall be deemed and
adjudged guilty of a misdemeanor, and be subject to the other
penalties hereinafter provided in this act.

§2. Any contract or agreement in violation of any provision of
the preceding section of this act shall be absolutely void.

§3. Any corporation created or organized by or under the laws
of any other state or country which shall violate any provision: of
the preceding sections of this act, shall thereby forfeit its right
and privilege thereafter, to do any business in this state, and
Srorace or Itituminatine Ors. : » 593:

 

Miscellaneous Statutes.

 

upon proper proof thereof in any court of competent jurisdiction-
in this state its rights and privileges to do business in this state-
shall be declared forfeited; and in all proceedings to have such
forfeiture declared, proof that any person who has been acting as-
the agent of such foreign corporation in transacting its business-
in this state, has been, while acting as such agent, and in the name,
behalf or interest of such corporation, violating any provision of
the preceding sections of this act shall'be received as prima facie.
proof of the act of the corporation itself; and it shall be the duty
of the clerk of said court to certify the decree thereof to the secre-
tary-of state, who shall take notice and be governed thereby as to-
the corporate powers and rights of said corporation.

(Became a law May 26, 1899.)

L. 1896, Cx. 376.

An Act relating to domestic commerce law, constituting chapter
thirty-four of the general laws. ‘

§ 24. Standard and storage of illuminating oils.—No per--
son shal] manufacture or have in his possession or sell or give away
for illuminating or heating purposes in lamps or stoves within
this state, any oil or burning fluid wholly or partly composed of
naphtha, coal oil, petroleum or products thereof, or of other sub-
stances or materials emitting an inflammable vapor which wilk
flash at a temperature below one hundred degrees Fahrenheit,
according to the instruments and tests approved by the state board:
of health.

No such oil or fluid which will ignite at a faiparaties below-
three hundred degrees Fahrenheit shall be burned or be carried’
as freight in any passenger or baggage car or passenger boat moved:
by steam or electric power in this state, or in any stage or street
car, however propelled, except that coal oil, petroleum and its.
products may be carried, when securely packed in barrels or metal-
lic packages, in passenger boats propelled by steam when there are-
no other public means of transportation.

* * * * * * *

Any person violating any provision of this section shall forfeit.
to the city or village, or if not in a city or village to the town in
which the violation occurs, the sum of one hundred dollars for

38
Py

594 Frees Faciritres ror PoLicEMEN AND FIREMEN.

 

Miscellaneous Statutes.

every such violation, and for every day or part of a day that such
violation occurs.

This section shall not apply to the city of New York, and shall
not supersede but shall be in addition to the ordinances or regula-
tions of any city or village made pursuant to law for the inspection
or control of combustible materials therein.

(L. 1896, ch. 376, § 24.)

L. 1897, Cu. 683.

‘AN ACT to regulate the exercise of their franchises by certain
public corporations by requiring them to afford facilities for
the transaction of the public business to certain public officers
and employes of the city of New York.

Section 1. The mayor of the city of New York may issue under
the seal of his office to each policeman and fireman appointed by
the duly constituted authorities of said city a certificate of the
appointment and qualification of such policeman or fireman as
such, and specifying the duration of his term of office; and it, shall
be thereupon the duty of every street surface, elevated railroad or
railroad company operating cars by steam or electricity and carry-
ing on business within said city to transport every such police-
man or fireman free of charge while he is traveling in the course
of the performance of the duties of his office within said city limits.
Every telegraphic or telephone company engaged in business
within such city or village, shall afford to such policeman or fire-
man the use of its telegraph lines or telephones for the purpose of |
making and receiving reports and communications in the course
of the performance of his official duty.

§ 2. Every ‘policeman or fireman who shall permit any other
person to use the certificate issued to him as provided by this act,
or to present or make use of the same, except while as acting in
the course of the performance of his official duties, or who shall
use such certificate after the expiration of his term of office or hig
resignation or removal therefrom, shall be deemed guilty of a
misdemeanor.

See also L. 1895, ch. 417, p. 591.
Posting Ferry Rarss. 595.

 

Miscellaneous Statutes.

 

L. 1889, Cx. 489.

Schedule of Ferry Rates, how posted in New York City and Brooklyn.

Section 1. Within thirty days after the passage of this act,
every person, corporation or association, operating any ferry in
this state, or between this state and any other state, operating
from or to a city of five hundred thousand inhabitants or over,
shall post in a conspicuous and accessible place in each of its ferry-
houses, in plain view of the passengers, a schedule plainly printed
in the English language of the rates of ferriage charged thereon
and authorized by law to be charged for ferriage over said ferry.

Penalty for Non-Compliance Herewith.

§ 2. If any such person, corporation or association shall fail to
comply with the provisions of section one of this act, or shall post
a false schedule, they shall be guilty of a misdemeanor and, in
addition, shall forfeit and pay the sum of one hundred dollars, to
be recovered by any person who shall sue therefor in any court of
competent jurisdiction.

Repeal.

§ 3. Chapter two hundred and sixty of the laws of one thousand
eight hundred and eighty-eight, entitled “ An act in relation to
ferries,” is hereby repealed.

 

L. 1889, Ox. 422.

AN ACT to provide for the organization and regulation of
natural gas companies, being “ An act supplemental to chapter
six hundred and eleven of the laws of one thousand eight hun-
dred and seventy-five, entitled ‘An act to provide for the or-
ganization and regulation of certain business corporations.’ ”

Section 1. It shall be lawful for any corporation organized un-
der chapter six hundred and eleven of the laws of one thousand
eight hundred and seventy-five, and acts amendatory thereto, for the

_ purpose of boring, drilling, digging or mining for natural gas, and
conveying and distributing the same in pipes, and vending said gas
to the consumers thereof; to purchase, lease, secure and convey
such réal estate, and such only, as may be necessary for the con-
venient transaction of their business; and to effectually carry on
the operations of such corporation. ;

§ 9. Such corporation is authorized to dig and trench for, and
lay their pipes along or under any of the public roads or high,
/

596 Gas anp Exectric Lieut Corporations.

 

Miscellaneous Statutes.

 

ways, or through or under any of the waters within the limits of
this State: provided the same shall not be so done as to in-
-commode the public use of said highways, or interrupt the navi-
_gation of said waters. Provided, however, that no pipe-line for
the purpose aforesaid shall be constructed across, along, or upon
any public highway, without the consent of the commissioners of
highways of the town in which such highway is located, upon such
terms as may be agreed upon with such commissioners; or upon
the order of the general term of the supreme court of the depart-
ment in which such highways are situated, made upon petition,
and notice to the commissioners of highways of such town, ac-
cording to the practice, or order of the court, or an order to show
cause; and in such manner, and upon such terms as shall be or-
-dered by the court.

- § 3. No pipe-line shall be constructed into or through any in-
corporated city or village in this State, unless the same be sanc-
tioned by a majority of the common council of such city, or trus-
tees of such village, by a resolution adopted at a regular meeting
-of such common council, or board of trustees, which resolution shall
prescribe the terms upon which consent is granted. Nothing in
this or the preceding section shall be construed or held to confer
any other right than the relinquishment, of the public rights, and
the consent of the people to the construction of such pipeline, and
‘shall not affect any private right.

§ 4. When any corporation formed as aforesaid has fully com-
pleted its organization, ‘the said corporation, its agents or em-
ployees shall be authorized to enter upon any lands for the pur-
pose of making surveys, and to agree with the owner of the prop-
erty as to the amount of compensation to be paid such owner for
the right of laying and maintaining pipes for conveying natural
gas on or beneath the surface of said lands.

§ 5. Before entering upon or using any lands, for the purpose

-of conveying natural gas as aforesaid; the said corporation shall

cause a survey and map to be made, of the proposed route of said

, Pipeline, by, and on which the lands of each owner and occupant,

through which the same may run shall be designated, which map

shall be signed. by the president of said corporation and its secre-

tary; and be filed in the office of the county clerk of the county

in which the lands are situated; and the said corporation, by any

of its officers, agents and servants, may enter upon any lands for
the purpose’ of making such survey and map.
Gas anp Exzctric Ligur Corporations. 597

 

Miscellaneous Statutes.

 

§ 6. In all cases where the said corporation shall be unable to
agree with the person owning, or having an interest in any lands,
for the right to lay gas pipes through the same, the supreme court,
-at any special term thereof, held in the judicial district in which
the lands are situated, shall, on application of the said corporation,
after ten days’ written notice, personally served on such person,
or where such notice cannot be personally served within this State,
or such persons shall be incapacitated from receiving personal
notice, then by service in such manner as the court shall direct,
appoint three disinterested citizens of the county in which such
lands are situated, who-shall be freeholders, as commissioners, to
‘determine the damage sustained by each of said persons, by reason
‘of the use of his or her lands, for the purpose above recited. Such
commissioners shall take the oath required by the Constitution of
‘public officers, and shall personally examine each parcel of land
proposed to be used, and shall estimate and report to said court
at any term thereof held in said judicial district, on ten days’ no-
tice served as aforesaid, on the parties in interest, the several sums
which they shall decide to be just compensation to such owners,
-or person interested, for the use of such property as aforesaid.
Such commissioners may examine witnesses upon hearing before
them, and shall have power to administer oaths to such witnesses,
and all the evidence they shall take shall accompany their report
to the court. On the presentation of such report the said court
may confirm or amend, or appoint new commissioners who shall
proceed in like manner as the first commissioners, and whose re-
ports, subject to amendment as aforesaid, shall be final, and shall
‘be confirmed by said court. Said commissioners shall receive from
the said corporation the sum of three dollars per day each, for
‘the time employed by them in the performance of their duties, to-
‘gether with the amount which they shall certify, on their oatha
‘as correct, in their said report, for incidental expenses connected
‘with their work, including the preparation of said report.

§ 7. Whenever any report of such commissioners shall have
‘been confirmed by the said supreme court, the said corporation
may deposit, as the court directs, or pay to the said owners or per-
‘sons, as court directs, the sum mentioned in said report, in full
‘eompensation for the right or easement so required and there-
upon the said corporation shall be seized of said easement and
-discharged from all claim by reason of such appropriation and use.
598 Lzenpine Money on Personal PROPERTY.

 

Miscellaneous Statutes.

 

*L,. 1895, Cu. 326.

AN ACT to provide for the incorporation of associations for lend-
ing money on personal property, and to forbid certain loans of.
money, property or credit.

Section 1. In any county of this State containing a city of more
than twenty-five thousand inhabitants according to the last enumera-
tion taken by the State, any three or more persons may organize
and become a corporation, for the purpose of aiding such persons
as shall be deemed in need of pecuniary assistance, by loans of
money at interest, not exceeding two hundred dollars to any one
person, upon a pledge or mortgage of personal property by mak-
ing, signing, acknowledging and filing a certificate, in the form
prescribed by the business corporation law, and, by filing a bond
in an amount equal to one-tenth of its capital stock, but not less
than the sum of five thousand dollars with the superintendent of
the banking department, with sufficient sureties, to be approved
by him for the faithful observance of all general provisions of
law regulating business corporations within the State of New
York, and the provisions of this act; and thereupon the persons
who shall have signed the said certificate, and their associates
and their successors, shall be a corporation of the names stated
in said certificate.

(Thus amended by L. 1895, ch. 706; L. 1896, ch. 206.)

§ 2. Said bond shall be renewed and refiled annually, in Janu-
ary of each year, or the corporation shall, within thirty days there-
after, cease doing business and proceedings for a dissolution shall
be instituted, and the corporation shall also in January of each
year, make a report for the previous calendar year to the super-
intendent of the banking department, giving such information
as he shall require. If any such corporation shall knowingly vio-
late any of the provisions or restrictions of this act, the said bond
shall be forfeited and shall be collected by suit by the superin-
tendent of the banking department, in the name of the people
of the state, which suit shall be conducted by the attorney-general ;
and a reward of two hundred and fifty dollars shall be paid by the
state to the person first giving information and furnishing legal.

‘ proof of such violation.

§ 3. Every such corporation shall have the general powers of
a business corporation, as provided by law, and shall be subject
to all the duties, obligations and restrictions of a business cor-
poration; so far as applicable thereto, and shall have the follow-

 

*See Laws 1902, chapter 78, amending this act.
Lenpina Monry on Personat PROPERTY. 599

 

Miscellaneous Statutes.

 

ing additional powers: It shall be entitled to act as pawnbroker
within such county, and shall be subject to and entitled to all
the benefits and provisions of the laws of the state, and of all
ordinances of the city in which it is located, concerning pawn- .
brekers; except that it shall not be required to obtain a license
or file any bond other than that provided for in the first section
of this act. And it may lend money to such persons, within such
county, as shall be deemed by it in need of pecuniary assistance
and may take as security for the payment of any such loan either
a pledge or a mortgage of any personal property without the
actual delivery to it of the property pledged or mortgaged, to-
gether with other lawful securities. It shall be entitled to charge
and receive upon each loan made by it without the actual de-
livery to it of the property pledged, or mortgaged, which charge
shall include all services of every character, in connection with
said loan, except upon the foreclosure of the security, interest or
discount at a rate not exceeding three per centum per month for
a period of two months or less, and not exceeding two per centum
per month for any period after said two months; and also a sum
not exceeding three dollars for the first examinations of the prop-
erty to be pledged or mortgaged and for drawing and filing the
necessary papers. But no such loan greater than two hundred
dollars shall be made, nor shall any one person owe such corpora- ,
tion more than two hundred dollars for principal at any one time.

§ 4. No such ‘corporation shall, in any year, declare or pay
dividends on its capital stock amounting to more than ten per
cent. After any such corporation shall have accumulated a sur-
plus amounting to fifty per cent. of its capital, the superintendent
of the banking department shall, upon ascertaining that said cor-
poration has, during the breton: calendar year, made a net profit
amounting to more than ten per cent. on its capital, have authority
to make an order reducing the rates of interest, discount and
charges which such corporation may lawfully charge and receive
upon loans, to such sums as will, in his judgment, produce a net
return of ten per cent. on its capital stock. Any such order shall
take effect at such time, not less than four months after it is made,
as the order shall name, and shall be of force for one year from
that date, unless sooner revoked.

§ 5. In any such county no person or corporation, shee than
corporations organized pursuant-to this act, shall, directly or
indirectly, charge or receive any interest, discount or considera-
tion greater than at the rate of six per cent. per annum upon the
600 CaprtaL Stock or Certain CoRPORATIONS.

 

Miscellaneous Statutes.

 

loan, use or forbearance of money, goods or things in action less
than two hundred dollars in amount or value, or upon the
loan, use or sale of personal credit in any wise, where there is
taken for such loan, use or sale of personal credit any security
upon any household furniture, apparatus or appliances, sewing
machine, plate or silverware in actual use, tools or implements
of trade, wearing apparel or jewelry. The foregoing prohibi-
tion shall apply to any person who, as security for any such
loan, use or forbearance of money, or for any such loan, use or
sale of personal credit as aforesaid, makes a pretended purchase
of property from any person and permits the owner or pledgor
to retain the possession thereof, or who, by any device or pre-
tense of charging for his services or otherwise, seeks to obtain
a larger compensation in any case hereinbefore provided for. Any
person, and the several officers of any corporation, who shall
violate the foregoing prohibition, shall be guilty of a misdemeanor,
and upon proof of such fact the debt shall be discharged and the
security shall be void. But this section shall not apply to li-
censed pawnbrokers, making loans upon the actual and permanent
deposit of personal property as security; nor shall this section
affect in any way the validity or legality of any loan of money
or credit exceeding two hundred dollars in amount.

§ 6. This act shall take effect immediately, except that section
five shall take effect on the first day of April, eighteen hundred
and ninety-six.

The foregoing act does not apply to the counties of Monroe and West-
chester. (L. 1896, ch. 206.)
For form of certificate of incorporation, see post, Form No. 155.

L. 1900, Cu. 164.

AN ACT in relation to the capital stock of corporations.
Section 1. Any corporation, company or association which has

filed an affidavit with the clerk of the county wherein such cor-.

poration, company or association is organized as required by chap-
ter four hundred and nine of the laws of eighteen hundred and
eighty-two, or that of chapter two hundred and seventy-seven of
the laws of eighteen hundred and eighty-eight, setting forth that
the capital stock or such portion thereof as by the charter of said
company required to be paid, has been paid and there shall have
been found a deficit in said capital so certified as aforesaid, said

ile
Capita, Stock or Crertarn CorroRaTions. $01

 

\ Miscellaneous Statutes.

 

-corporation, company or association is authorized and empowered
‘to make good such deficit within six months from the passage of
this act, by a pro rata assessment of the unpaid subscriptions to
the capital stock of such corporation, company or association to
‘an amount not exceeding the unpaid sum due on said stock sub-
-seribed.

§ 2. Said corporation, company or association shall notify in
“writing the subscribers to said capital stock, the amount of said
‘assessment required to make up said deficit, the day the same shall
‘be paid, either personally or by enclosing the notice in a sealed
envelope addressed to the subscribers aforesaid, postage paid, to
the last known place of each, their residence and deposit the same
in the United States post office, and on the failure of said sub-
:scribers to pay said assessment within thirty days after the date
fixed for payment, the said subscription shares shall be sold at
‘public auction for the best price bidden therefor, and the proceeds
-of such sale be applied to make up said deficit, and the purchaser
of said subscription shares shall have the right to pay to said cor-
‘poration, company or association the said assessment and receive
‘the stock of said company for the amount so paid and should the
‘purchaser at said sale fail to pay into said company the amount
-of said assessment within five days from the date of sale, the cor-
poration, company or association may thereafter accept the
‘amount of said assessment from any other person or persons, ac-
-ceptable to the board of directors of said corporation, company
-or association, and issue its stock therefor.

§ 3. Within thirty days from the time said deficit is paid into
-said corporation, company or association it shall file an affidavit,
with the clerk of the county aforesaid, setting forth that the whole
-of the capital of said company has been paid, and is on hand or
‘such portion thereof as by law is required to be paid, before com-
mencing business and upon the filing of such affidavit, such cor-
poration is authorized to do business.

This act, although general in its terms, seems to be intended to meet
some special case-
602 DEPaRTMENT oF CoMMERCE AND Laszor.

 

Miscellaneous Statutes. _

 

DEPARTMENT OF COMMERCE AND LABOR.

The Act of Congress, passed February 14, 1903, entitled “ An
Act to establish the Department of Commerce and Labor,’”
which relates to corporations engaged in interstate or foreign
commerce, excepting common carriers, reads as follows:

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That there
shall be at the seat of government an executive department to be
known as the Department of Commerce and Labor, and a Secre-
tary of Commerce and Labor, who shall be the head thereof, who-
shall be appointed by the President, by and with the advice and
consent of the Senate, who shall receive a salary of eight thou-
sand dollars per annum, and whose term and tenure of office shall
be like that of the heads of the other Executive Departments; and
section one hundred and fifty-eight of the Revised Statutes is:
hereby amended to include such Department, and the provisions.
of title four of the Revised Statutes, including all amendments
thereto, are hereby made applicable to said Department. The-
said Secretary shall cause a seal of office to be made for the said
Department of such device as the President shall approve, and
judicial notice shall be taken of the said seal. .

Sc. 2. That there shall be in said Department an Assistant
Secretary of Commerce and Labor, to be appointed by the Presi-
dent, who shall receive a salary of five thousand dollars a year.
He shall perform such duties as shall be prescribed by the Sec-
retary or required by law. ‘There shall also be one chief clerk
and a disbursing clerk and such other clerical assistants as may
from time to time be authorized by Congress; and the Auditor
for the State and other Departments shall receive and examine
all accounts of salaries and incidental expenses of the office of
the Secretary of Commerce and Labor, and of all bureaus and
offices under his direction, all accounts relating to the Light-House
Board, Steamboat-Inspection Service, Immigration, Navigation,
Alaskan fur-seal fisheries, the National Bureau of Standards,
Coast and Geodetic Survey, Census, Department of Labor, Fish
Commission and to all other business within the jurisdiction of
the Department of Commerce and Labor, and certify the balances.
Department or ComMERcE anv Lapor. 603

 

Miscellaneous Statutes.

 

arising thereon to the Division of Bookkeeping and Warrants and

-send forthwith a copy of each certificate to the Secretary of Com-

merce and Labor.

Szo. 3. That it shall be the the province and duty of said
Department to foster, promote, and develop the foreign and dom-
‘estic commerce, the mining, manufacturing, shipping, and fishery
industries, ‘the labor interests, and the transportation facilities
‘of the United States; and to this end it shall be vested with juris-
diction and control of the- departments, bureaus, offices, and
branches of the public service hereinafter specified, and with such
other powers and duties as may be prescribed by law. All unex-
pended appropriations, which shall be available at the time when
this Act takes effect, in relation to the various offices, bureaus,
divisions, and other branches of the public service, which shall,
‘by this Act, be transferred to or included in the Department of
‘Commerce and Labor, or which may hereafter, in accordance with
the provisions of this Act, be so transferred, shall become avail-
able, from ‘the time of such transfer, for expenditure in and by
the Department of Commerce and Labor and shall be treated the
‘same as though said branches of the public service had been di-.
rectly named in the laws making said appropriations as parts of |
the Department of Commerce and Labor, under the direction of
the Secretary of said Department.

Src. 4. That the following-named offices, bureaus, divisions,
‘and branches of the public service, now and heretofore under the
jurisdiction of the Department of the Treasury, and all that per-
tains to the same, known as the Light-House Board, the Light-

House Establishment, the Steamboat-Inspection Service, the

Bureau of Navigation, the United States Shipping Commission-
ers, the National Bureau of Standards, the ‘Coast and Geodetic
Survey, the Commissioner-General of Immigration, commission-
ers of immigration, the Bureau of Immigration, the immigration
service at large, and the Bureau of Statistics, be, and the same
hereby are, transferred from the Department of the Treasury to
‘the Department of Commerce and Labor, and the same shall here-
after remain under the jurisdiction and supervision of the last-
thamed Department; and that the Census Office, and all that per-
tains to the same, be, and the same hereby is, transferred from
the Department of the Interior to the Department of Commerce
C04 Department oF CoMMERCE AND LaBor.

 

Miscellaneous Statutes.

 

and Labor, to remain henceforth under the jurisdiction of the
latter; that the Department of Labor, the Fish Commission, and.
the Office of Commissioner of Fish and Fisheries, and all that per-
tains to the same, be, and the same hereby are, placed under the.
jurisdiction and made a part of the Department of Commerce and
Labor ; that the Bureau of Foreign Commerce, now in the Depart-
ment of State, be, and the same hereby is, transferred to the De-
partment of Commerce and Labor and: consolidated with and
made a part of the Bureau of Statistics, hereinbefore transferred
from the Department of the Treasury to the Department of Com-
merce and Labor, and the two shall constitute one bureau, to be
called the Bureau of Statistics, with a chief of the bureau; and
that the Secretary of Commerce and Labor shall have control of
the work of gathering and distributing statistical information.
naturally relating to the subjects confided to his Department; and
the Secretary of Commerce and Labor is hereby given the power
and authority to rearrange the statistical work of the bureaus and
offices confided to said department, and to consolidate any of the
statistical bureaus and offices transferred to said Department;
and said secretary shall also have authority to call upon other
Departments of the Government for statistical data.and results
obtained by them; and said Secretary of Commerce and Labor
may collate, arrange, and publish such statistical information so
obtained in such manner as to him may seem wise.

That the official records and papers now on file in and pertain-
ing exclusively to the business of any bureau, office, department,
or branch of the public service in this Act transferred to the De
partment of Commerce and Labor, together with the furniture
now in use in such bureau, office, department, or branch of the
public service, shall be, and hereby are, transferred to the Depart-
ment of Commerce and Labor.

Szc. 5. That there shall be in the Department of Commerce
and Labor a bureau to be called the Bureau of Manufactures, and
a chief of said bureau, who shall be appointed by the President,.
and who shall receive a salary of four thousand dollars per annum.
There shall also be in said bureau such clerical assistants as may
from time to time be authorized by Congress. It shall be the
province and duty of said bureau, under the direction of the Sec-
retary, to foster, promote, and develop the various manufactur;
DeparTMENT oF CoMMERCE AND LABOR. 605

 

Miscellaneous Statutes.

 

ing industries of the United States, and markets for ‘the same at
home and abroad, domestie and caeien, by gathering, conipiling,
publishing, and supplying all available and useful information
concerning such industries and such markets, and by such other
methods and means as may be prescribed by the Secretary or pro-
vided by law. And all consular officers of the United States, in-
cluding consuls-general, consuls, and commercial agents, are hereby
required, and it is made a part of their duty, under the direction
of the Secretary of State, to gather and compile, from time to time,
useful -and material information and statistics in respect to the
subjects enumerated in section three of this Act in the countries
and places to which such consular officers are accredited, and to
send, under the direction of the Secretary of State, reports as often
* as required by the Secretary of Commerce and Labor of the infor.
mation and statistics thus gathered and compiled, such reports
to be transmitted through the State Department to the Secretary
of the Department of Commerce and Labor.

Szc. 6. That there shall be in the Department of Commerce
and Labor a bureau to be called the Bureau of Corporations, and
a Commissioner of Corporations who shall be the head of said
bureau, to be appointed by the President, who shall receive a
salary of five thousand dollars per annum. There shall also be
in said bureau a deputy commissioner who shall receive a salary
of three thousand five hundred dollars per annum, and who shall
in the absence of the Commissioner act as, and perform the duties
of, the Commissioner of Corporations, and who shall also perform
such other duties as may be assigned to him by the Secretary of
Commerce and Labor or by the said Commissioner. There shall
also be in the said bureau a chief clerk and such special agents,
clerks, and other employees as may be, authorized by law.

The said Commissioner shall have power and authority to make,
under the direction and control of the Secretary of Commerce and
Labor, diligent investigation into the organization, conduct, and
management of the business of any corporation, joint stock
company or corporate combination engaged in commerce among
the several States and with foreign nations excepting common car-
riers subject to “An Act to regulate commerce,” approved Feb-
ruary fourth, eighteen hundred and eighty-seven, and to gather
such information and data as will enable the President of the
606 DEpaRgTMENT OF CoMMERCE AND Lagor.

Miscellaneous Statutes.

United States to make recommendations to Congress for legisla-
tion for the regulation of such commerce, and to report such data
to the President from time to time as he shall require; and the
information so obtained or as much thereof as the President may
direct shall be made public.

In order to accomplish the purposes declared in the foregoing
part of this section, the said Commissioner shall have and exercise
the same -power and authority in respect to corporations, joint
stock companies and combinations subject to the provisions hereof,
as is conferred on the Interstate Commerce Commission in said
“ Act to regulate commerce” and the amendments thereto in re-
spect to common carriers so far as the same may be applicable,
including the right to subpena and compel the attendance and
testimony of witnesses and the production of documentary evi-
dence and to administer oaths. All the requirements, obligations,
liabilities, and immunities imposed or conferred by said “ Act
to regulate-commerce” and by “ An Act in relation to testimony
before the Interstate Commerce Commission,” and so forth, ap-
proved February eleventh, eighteen hundred and ninety-three,
supplemental to said “Act to regulate commerce,” shall also apply
to all persons who may be subpenaed to testify as witness or to
produce documentary evidence in pursuance of the authority con-
ferred by this section. , ;

It shall also be the province and duty of said bureau, under the
direction of the Secretary of Commerce and Labor, to gather,
compile, publish, and supply useful information concerning cor-
porations doing business within the limits of the United States
as shall engage in interstate commerce or in commerce between the
United States and any foreign country, including corporations
engaged in insurance, and to attend to such other duties as may
be hereafter provided by law.

Sec. 7. That the jurisdiction, supervision and control now pos-
sessed and exercised by the Department of the Treasury over the
fur-seal, salmon and other fisheries of Alaska and over the immi-
gration of aliens into the United States, its waters, territories
and any place subject to the jurisdiction thereof, are hereby trans-
ferred and vested in the Department of Commerce and Labor ;
provided, That nothing contained in this Act shall be construed
to alter the method of collecting and accounting for the head-tax
DeparTMENT oF ComMERCE AND Lazor. 607

 

Miscellaneous Statutes.

 

prescribed by section one of the Act entitled “ An Act to regulate
immigration,” approved August’ third, eighteen hundred and
eighty-two. That the authority, power and jurisdiction now pos-
sessed and exercised by the Secretary of the Treasury by virtue
of any law in relation to the exclusion from and the residence
within the United States, its territories and the District of Colum-
bia, of Chinese and persons of Chinese descent, are hereby trans-,
ferred to and conferred upon the Secretary of Commerce and
Labor, and the authority, power and jurisdiction in relation thereto
now vested by law or treaty in the collectors of customs and the
collectors of internal revenue, are hereby conferred upon and
vested in such officers under the control of the Commissioner-Gen-
eral of Immigration, as the Secretary of Commerce and Labor
may designate therefor.

Src. 8. That the Secretary of Commerce and Labor shall an-
nually, at the close of each fiscal year, make a report in writing
to Congress, giving an account of all moneys received and dis- -
bursed by him and his department, and describing the work done-
by the Department in fostering, promoting, and developing the
foreign and domestic commerce, the mining, manufacturing, ship-
ping, and fishery industries, and the transportation facilities, of
the United States, and making such recommendations as he shall
deem necessary for the effective performance of the duties and
purposes of the department. He shall ‘also from time to time
make such special investigations and reports as he may be re-
quired to do by the President, or by either House of Congress, or
which he himself may deem necessary and urgent.

Src. 9. That the Secretary of Commerce and Labor shall have
charge, in the buildings or premises occupied by or appropriated
to the Department of Commerce and Labor, of the library, furni-
ture, fixtrires, records, and the other property pertaining to it or
hereafter acquired for use in its business; and he shall be allowed
to expend for periodicals and the purposes of the library, and for
the rental of appropriate quarters for tue accommodation of the
Department of Commerce and Labor within the District of Co-
lumbia, and for all other incidental expenses, such sums as Con-
gress may provide from time to time: Provided, however, That
where any office, bureau, or branch of the public service trans-
 

608 Department oF Commerce anp Lazor.

 

Miscellaneous Statutes.

 

ferred to the Department of Commerce and Labor by this Act is
occupying rented buildings or premises, it may still continue to
do so until other suitable quarters are provided for.its use: And
provided further, That all officers, clerks, and employees now
employed in or by any of the bureaus, offices, departments, or
branches of the public service in this Act transferred to the De-
partment of Commerce and Labor are each and all hereby trans-
ferred to said Department at their present grades and salaries,
except where otherwise provided in this Act: And provided
further, That all laws prescribing the work and defining the duties
of the several bureaus, offices, departments, or branches of the pub-
lic service by this Act transferred to and made a part of the De
partment of Commerce and Labor shall, so far as the same are not
in conflict with the provisions of this Act, remain in full force and
effect until otherwise provided by law.

Sec. 10. That all duties performed and all power and author-
ity now possesséd or exercised by the head of any executive depart-
ment in and over any bureau, office, officer, board, branch, or di-
vision of the public service by this Act transferred to the Depart-
ment of Commerce and Labor, or any business arising therefrom
or pertaining thereto, or in relation to the duties performed by
and authority conferred by law upon such bureau, officer, office,
board, branch or division of the public service, whether of an ap- :
pellate or revisory character or otherwise, shall hereafter be vested
in and exercised by the head of the said Department of Commerce
and Labor.

All duties, power, authority and jurisdiction, whether super-
visory, appellate or otherwise, now imposed or conferred upon the
Secretary of the Treasury by Acts of Congress relating to mer-
chant vessels or yachts, their measurement, numbers, names, reg-
isters, enrollments, licenses, commissions, records, mortgages, bills
of sale, transfers, entry, clearance, movements and transportation
of their cargoes and passengers, owners, officers, seamen, passen-
gers, fees, inspectiony equipment for the better security of life,
and by Acts of Congress relating to tonnage tax, boilers on steam
vessels, the carrying of inflammable, explosive or dangerous cargo
on vessels, the use of petroleum or other similar substances to pro-
duce motive power and relating to the remission or refund of
fines, penalties, forfeitures, exactions or charges incurred for vio-
‘DEPARTMENT OF COMMERCE AND LAzBor. 6082.

 

Miscellaneous Statutes.

 

lating any provision of law relating to vessels or seamen or to-
informer’s shares of such fines, and by Acts of Congress relating:
to the Commissioner and Bureau of Navigation, Shipping Com-
missioners, their officers and employees, Steamboat-Inspection
Service and any of the officials thereof, shall be and hereby are.
transferred to and imposed and conferred upon the Secretary of
Commerce and Labor from and after the time of the transfer of
the Bureau of Navigation, the Shipping Commissioners and the
Steamboat Inspection Service to the Department of Commerce.
and Labor, and shall not thereafter be imposed upon or exercised
by the Secretary of the Treasury. And all Acts or parts of Acts.
inconsistent with this Act are, so far as- inconsistent, hereby
repealed.

Src. 11. A person, to be ‘designated by the Secretary of State,
shall-be appointed to formulate, under his direction, for the in--
struction of consular officers, the requests of the Secretary of Com-
merce and’ Labor; and to prepare from the dispatches of consular-
officers, for transmission to the Secretary of Commerce and Labor,
such information as pertains to the work of the Department of’
Commerce and Labor; and such person shall have the rank and.
salary of a chief of bureau, and be furnished with such clerical
assistants as may from time to time be authorized by law.

Src. 12. That the President be, and he is hereby, authorized,
by order in writing, to transfer at any time the whole or any part.
of any office, bureau, division or other branch of the public serv-.
ice engaged in statistical or scientific work, from the Department.
of State, the Department of the Treasury, the Department of War,
the Department of Justice, the Post-Office Department, the De-
partment of the Navy or the Department of the Interior, to the
Department of. Commerce and Labor; and in every such case:
the duties and authority performed by and conferred by law upon
such office, bureau, division or other branch of the public service,
or the part thereof so transferred. And all power and authority
conferred by law, both supervisory and appellate, upon the de-
partment from which such transfer is made, or the secretary
thereof, in relation to the said office, bureau, division or other
branch of the public service, or the part thereof so transferred,
shall immediately, when such transfer is so ordered by the Presi-
dent, be fully conferred upon and vested in the Department of

\
608b DeEparTMEN’ OF COMMERCE AND Lasor.

Miscellaneous Statutes.

Commerce and Labor, or the Secretary thereof, as the case may
be, as to the whole or part of such office, bureau, division or other
branch of the public service so ‘transferred.

Src. 13. That this Act shall take effect and be in force from
and after its passage: Provided, however, That the provisions of
this Act other than those of section twelve in relation to the trans-
fer of any existing office, bureau, division, officer or other branch
of the public service or authority now conferred thereon, to the
Department of Commerce and Labor shall take effect and be in
force on the first day of July, nineteen hundred and three, and

not before.
Approved, February 14, 1903.
THE PENAL CODE.

Noumerioat ARRANGEMENT oF Srections SpEcIALLY APPLICABLE TO
Corporations. —

Corporations convicted of offenses; punishment.

Section 13. Whenever in this code the punishment for crime
is left undetermined between certain limits, the punishment to be
inflicted in a particular case must be determined by the court
authorized to pass sentence within such limits as may be prescribed
by this code. In all cases where a corporation is convicted of an
offense for the commission of which a natural person would be
punishable with imprisonment, as for a felony, such corporation
is punishable by a fine of not more than five thousand dollars.

(Thus amended by ch. 218, L. 1892.)

Refusal to permit employes to attend election. iF :

§ 41f. A person or corporation who refuses to an employe
entitled to vote at an election or town meeting, the privilege of
attending thereat, as provided by the election law, or subjects such
employe to a penalty or reduction of wages because of the exercise
of such privilege, is guilty of a misdemeanor.

(Thus amended by ch. 698, L. 1892.)

Compelling employes to agree not to join any labor organization a
misdemeanor. :

§ 171a. Any person or persons, employer or employers of
labor, and any person or persons of any corporation or corporations
on behalf of such corporation or corporations, who shall hereafter
coerce or compel any person or persons, employe or employes,
laborer or mechanic, to enter into an agreement, either written or
verbal from such person, persons, employe, laborer or mechanic,
not to join or become a member of any labor organization, as a
condition of such person or persons securing employment, or con-
tinuing in the employment of any such person or persons, employer
or employers, corporatior. or corporations, shall be deemed guilty of

39
“610  Sxcrions Sprcratty APPLicaABLE To CoRPoRATIONs.

 

The Penal Code.

‘a misdemeanor. The penalty for such misdemeanor shall be
imprisonment in a penal institution for not more than six months,
or by a fine of not more than two hundred dollats, or by both such
“fine and imprisonment.

(Thus amended by L. 1887, ch. 688.)

\

-Liability of persons in charge of steam engines.

‘ § 199. An engineer or other person having charge of a steam
‘boiler, steam engine, or other apparatus for generating or applying
steam, employed in a boat or railway, or in a manufactory,’ or in
-any mechanical works, who willfully, or from ignorance or gross
neglect, creates, or allows to be created, such an undue quantity of
‘steam as to burst the boiler, engine or apparatus, or to cause any
-other accident whereby the death of a human being is produced, is
guilty of manslaughter in the second degree.

Use of force or violence, declared not unlawful, etc.

§ 223. To use or attempt, or offer to use, force or violence
“upon or towards the person of another is not unlawful in the fol-
lowing cases: * * *

5. When committed by a carrier of passengers, or the author-
ized agents or servants of such carrier, or by any person assisting
‘them, at their request, in expelling from a carriage, railway car,
vessel or other vehicle, a passenger who refuses to obey a lawful
-and reasonable regulation prescribed for the conduct of passengers,
if such vehicle has first been stopped and the force or violence
used is not more than sufficient to expel the offending passenger,
with a reasonable regard to his personal safety; * * *

See Ansteth v. Buffalo Ry. Co., 9 Misc. R., 419.

‘Keeping gaming and betting establishments.

§ 3843. Any corporation or association or the officers thereof or
any co-partnership or individual, who keeps a room, shed, tent,
tenement, booth, building, float or vessel, or any part thereof to be
used for gambling or for any purpose or in any manner forbidden
by this chapter, or for making any wagers or bets made to depend
upon any lot, chance, casualty, unknown or contingent event, or
-on the future price of stocks, bonds, securities, commodities or prop-
-erty of any description whatever or for making any contract or
contracts for or on account of any money, property or thing in
action, so bet or wagered, or being the owner or agent, knowingly
lets or permits the same to be so used, is guilty of a misdemeanor.
“This section shall not be extended so as to prohibit or in any man-
Secrions Specratty AppiicaBLe To Corporations. 411
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ner affect any insurance made in good faith for the security or
indemnity of the. party insured and which is not otherwise pro-
hibited by law, nor to any contract on bottomry or respondentia.

(Thus amended by L. 1895, ch. 571.)

Pool-selling, book-making, bets and wagers, et cetera.

§ 351. Any person who engages in pool-selling, or book-mak-
‘ing at any time or place; or any person who keeps or occupies any
room, shed, tenement, tent, booth, or building, float or vessel, or
-any part thereof, or who occupies any place, or stand of any kind,
upon any public or private grounds, within this State, with books,
papers, apparatus or paraphernalia, for the purpose of recording or
‘registering bets or wagers, or of selling pools, and any person who
records or registers bets or wagers, or sells pools upon the result of
-any trial or contest of skill, speed or power of endurance, of man or
beast, or upon the result of any political nomination, appointment
-or election; or upon the result of any lot, chance, casualty, unknown
or contingent event whatsoever; or any person who receives, regis-
ters, records or forwards, or purports or pretends to receive, regis-
ter, record or forward, in any manner whatsoever, any money, thing
-or consideration of value, bet or wagered, or offered for the purpose.
-of being bet or wagered, by or for any other person, or sells pools,
‘upon any such result; or any person who, being the owner, lessee,
-or occupant of any room, shed, tenement, tent, booth or building,
float or vessel, or part thereof, or of any grounds within this State,
knowingly permits the same to be used or occupied for any of these
‘purposes, or therein keeps, exhibits or employs any device or appar-
-atus for the purpose of recording or registering such bets or wagers,
-or the selling of such pools, or becomes the custodian or depositary
for gain, hire or reward, of any money, property or thing of value,
‘staked, wagered or pledged, or to be wagered or pledged upon any
Such restilts or any person who aids, assists or abets in any manner
in any of the said acts, which are hereby forbidden, is guilty of
a felony, except wien, another penalty is provided by law, and
‘upon conviction is punishable by imprisonment in the State prison
for a period not less than one year, nor more than two years, or by
-such imprisonment, together with a fine not exceeding two thou-
sand dollars. When an exclusive penalty is provided by law for
-an act hereby prohibited, the permitting of the use of premises for
the doing of the act in such case shall not be deemed a violation
thereof, or of section three hundred and forty-three of this code.

(Thus amended by L. 1895, ch. 572.)
612 Transacting Business UNDER ASSUMED Name,

 

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Doing business under assumed name.

§ 363-b. 1. No person or persons shall hereafter carry on or
conduct or transact business in this state under any assumed name
or under any designation, name or style, corporate or otherwise,
other than the real name or names of the individual or individuals
conducting or transacting such business, unless such person or
persons shall file in the office of the clerk of the county or counties.
in which such person or persons conduct, or transact, or intend to
conduct or transact such business, a certificate setting forth the
name under which such business is, or is to be, conducted or
transacted, and the true or real full name or names of the person
or persons conducting or transacting the same, with the post-office
address or addresses of said person or persons. Said certificate
shall be executed and duly acknowledged by the person or persons
so conducting, or intending to conduct said business.

2. Persons now conducting such business under an assumed
name, or under any such designation referred to in subdivision
one, shall file such certificate as hereinbefore prescribed, within
thirty days after this act shall take effect, and persons hereafter
conducting or transacting business as aforesaid shall, before com-
mencing said business, file such certificate in the manner herein-
before prescribed.

3. The several county clerks of this state shall keep an alpha-
betical index of all persons filing certificates, provided for herein
and for the indexing and filing of such certificates, they shall
receive a fee of twenty-five cents. A copy of such certificate duly
certified to by the county clerk in whose office the same shall be
filed shall be presumptive evidence in all courts of law in this state
of the facts therein contained.

4. This act shall in no way affect or apply to any corporation
duly organized under the laws of this state, or to any corporation
organized under the laws of any other state and lawfully doing
business.in this state, nor shall this act be deemed or construed
to prevent the lawful use of a partnership, name or designation, :
provided that such partnership, name or designation shall include
the true or real name of at least one of such persons transacting
such business.

5. Any person or persons carrying on, conducting or transacting
business as aforesaid, who shall fail to comply with the provisions
of this act, shall be guilty of a misdemeanor.

(Added by L. 1900, ch. 216, to take effect Sept. 1, 1900.)

For form of certificate, see post, Form No. 153.
Amendment of 1907.

{Insert facing page 613, White on Corporations, 6th edition.)

Laws of 1907, chapters 506 and 523, amend the Penal Code, section 384-h,

so that subdivisions 3 and +4 thereof shall read as follows: :

3. Who shall require the employees of a corporation owning or operating a
"prickyard to work contrary to the requirements of section six of the labor
law; or, . '°

_4, Who shall require or permit any employee engaged in ‘or connected with
the movement of any train of a corporation operating a line of railroad of
thirty miles in length, or over, in whole or in part within this state, to remain
on duty more than sixteen consecutive hours; or to require or permit any such
‘employee who has been on duty sixteen consecutive hours to go on duty with-
out having had at least ten hours off duty; or to require or permit any
such employee who has been on duty sixteen hours in the aggregfite in any
jtwenty-four hour period, to continue on duty or to go on duty without hav-
ing had at least eight hours off duty within such twenty-four hour period ;
except when by casualty occurring aiter such employee has started on his trip,
or by unknewn ‘casualty occurring before he started on his trip, and except
when by accident or unexpected delay of trains scheduled to make connection
with the train on which such employee is serving, he is prevented from reach-
ing his terminal; is guilty of a misdemeanor, and on conviction thereof shall
be punished by « fine of not less than five hundred nor more than one
thousand dollars for each offense. If any contractor with the state or a
municipal corporation sha}l require more than eight hours for a day’s labor,
upon conviction therefor in addition to such fine. the contract sha}l be for-
feited at the option of the municipal corporation.

: Subdivision 3, supra, was thus amended by chapter 506, to take effect
immediately. Subdivision 4 was amended by chapter 506, and further
asmended, as above, by chapter 523. the latter amendment taking effect

Mareh 4, 1908.
"16
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Mismanagement of steam boilers

§ 362. An engineer or other person having charge of a steam
boiler, steam engine or other apparatus for generating or employ-
ing steam employed in a railway, manufactory, or other mechanical,
works, who, willfully or from ignorance or gross neglect, creates
or allows to be created such an undue quantity of steam as to burst
the boiler, engine or apparatus, or cause any other accident whereby
human life is endangered is guilty of a misdemeanor.

Innkeepers and carriers refusing to receive guests and passengers.

§ 381. A person, who, either on -his own account or as agent
or officer of a corporation, carries on business as innkeeper, or as
common carrier of passengers, and refuses, without just ‘cause or
excuse, to receive and entertain any guest, or to receive and carry
any passenger, is guilty of a misdemeanor.

Protecting civil and public rights.

§ 383. No citizen of this state can by reason of race, color, or
previous condition of servitude, be excluded from the equal enjoy-'
ment of any accommodation, facility, or privilege furnished by inn-
keepers, or common carriers, or by owners, managers or lessees of
theatres or other places of amusement, by teachers and officers of
common schools and public institutions of learning, or by cemetery
associations. The violation of this section is a misdemeanor, pun-
ishable by a fine of not less than fifty dollars, nor more than five
hundred dollars.

Hours of labor ta be required.
§ 384h. Any person or corporation,

i. Who, contracting with the state or a municipal corporation,
shall require more than eight hours work for a day’s labor; or

2. Who shall require more than ten hours labor, including one-
half hour for dinner, to be performed within twelve consecutive
hours, by the employes of a street surface and elevated railway,
owned or operated by corporations whose main line of travel or
routes lie principally within the corporate limits of cities of more
than one hundred thousand inhabitants; or,

3. Who shall require the employes of a corporation owning or
operating a brickyard to work more than ten hours in any, one day
or to commence work before seven o’clock in the morning, unless
by agreement between employer and employe; or,

4. Who shall require the employes of a corporation operating a
614 Sxcrions Specratty APPLICABLE TO CoRPORATIONS.

 

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line of railroad of thirty miles in length or over, in whole or in
part within this state to work contrary to the requirements of
article one of the labor law, is guilty of a misdemeanor, and on
conviction therefor shall be punished by a fine of not less than
five hundred nor more than one thousand dollars for each offense.
If any contractor with the state or a municipal corporation shall
require more than eight hours for a days labor, upon conviction
therefor in addition to such fine, the contract shall be forfeited
at the option of the municipal corporation.
(New, added by L. 1897, ch. 416.)
Payment of wages.

§ 384i. A corporation or joint stock association or a person carry-
ing on the business thereof, by lease or otherwise, who does not pay
the wages of its employes in cash, weekly or monthly as provided
in article one of the labor law, is guilty of a misdemeanor, and upon
conviction therefor, shall be fined not less than twenty-five nor
more than fifty dollars for each offense.

(New, added by L. 1897, ch. 416.)

Penalty for neglect to post schedule of ferry rates.

§ 415a. A person, corporation or association operating any
ferry in this state, or between this state and any other state, operat-
ing from or to a city of five hundred thousand inhabitants or over,
posting a false schedule of ferry rates, or neglecting to post in a
conspicuous and accessible place in each of its ferry-houses, in plain
view of the passengers, a schedule, plainly printed in the English
language, of the rates of ferriage charged thereon and authorized
by law to be charged for ferriage over such ferry, is guilty of a
misdemeanor.

(Added by L. 1893, ch. 692.)

For other regulations as to posting schedule of rates, see pages 181 and
183, respectively.

' Ferries. s .

.§ 415. A person who:

1. Maintains a ferry for profit or hire upon any of the waters
ef this state without authority of law; or

2. Having entered into a recognizance to keep or maintain a
ferry, violates the condition of such recognizance;

Is guilty of a misdemeanor.

Where such ferry is upon waters dividing two counties, the
offender may be prosecuted in either county.

(Thus amended by L. 1892, ch. 692, and combines former sections 416
and 417.)
Sections Specratty APPLIcABLE to Corrorations. 615

 

The Penal Code.

 

Unlawful offers to railroad commissioners or their employes.

§ 416. Any officer, agent or attorney of a railroad corporation,
who offers a place, appointment, position or any other considera-
tion to a railroad commissioner, or to a secretary, clerk, agent,
employe, or expert employed by the board of railroad commission-
ers is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692.)

Misconduct of railroad commissioners and of their employes.

§ 417. Any railroad commissioner, or any secretary, clerk,
agent, expert or other person employed by the board of railroad
commissioners, who:

1. Directly or indirectly solicits or requests from or “recom-
mends to any railroad corporation, or to any officer, attorney or
-agent thereof, the appointment of any person to any place or posi-
tion; or
9. Accepts, receives or requests, either for himself or for any

other person, any vass, gift or gratuity from any railroad corpora-
tion; or, :

3. Secretly reveals to any railroad corporation, or to any officer,
member, or employe thereof, any information gained by him from
any other railroad corporation;

Is guilty of a misdemeanor.

(Thus amended by ch. 692, L. 1892.) ,

R. S., 1844, L. 1882, ch. 358, § 14.

Person unable to read not to act or be employed as engineer.

§ 418. Any person unable to read the time tables of a railroad
and ordinary handwriting, who acts as an engineer or runs a locomo-
tive or train on any railroad in this State; or any person who, in
his own behalf, or in the behalf of any other person or corporation,
knowingly employs a person so unable to read to act as such engi-
neer or to run any such locomotive, is guilty of a misdemeanor; or
who employs a person as a telegraph operator who is under the age
of eighteen years, or who has less than one year’s experience in
telegraphing, to receive or transmit a telegraphic message or train
order for the movement of trains, is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692; L. 1895, ch. 892.)

Misconduct of officials or employes on elevated railroads.

§ 419. Any conductor, brakeman, or other agent or employe
of an elevated railroad, who:
616 Sxcorrons Spectatty APPLICABLE TO CoRPORATIONS.

 

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1. Starts any train or car of such railroad, or gives any signak
or order to any engineer or other person to start any such train or
car, before every passenger therein who manifests an intention to
depart therefrom by arising or moving toward the exit thereof, has.
departed therefrom; or before every passenger on the platform
or station at which the train has stopped, who manifests a desire to
enter the train, has actually boarded or entered the same, unless.
due notice is given by an authorized employe of such railroad that.
the train is full, and that no more passengers can then be:
received; or,

2. Obstructs the lawful ingress or egress of a passenger to or
from any such car; or,

3. Opens a platform gate of any such car while the train is
in motion, or starts such train before such gate is firmly closed; is
guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692.)

Intoxication or other misconduct of railroad or steamboat employes.

§ 420. 1. Any person who, being employed upon any railway
as engineer, conductor, baggagemaster, brakeman,: switchtender,
fireman, bridge-tender, flagman, signal man, or having charge of
stations, starting, regulating or running trains upon a railroad, or,
being employed as captain, engineer or other officer of a vessel pro-
pelled by steam is intoxicated. while engaged in the discharge of
any such duties; or,

2. An engineer, conductor, brakeman, switch-tender, or other
officer, agent or employe of any railroad corporation, who willfully
violates or omits his duty as such officer, agent or employe, by which
human life or safety is endangered, the punishment of which is not.
otherwise prescribed; is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692.)

Failure to ring bell, etc.

§ 421. A person acting as engineer, driving a locomotive om
any railway in this state, who fails to ring the bell, or sound the
whistle, upon such locomotive, or cause the,same to be rung or
sounded, at least eighty rods from any place where such railway
crosses a traveled road or street on the same level (except in
cities), or to continue the ringing such bell or sounding such
whistle at intervals, until such locomotive and the train to which
the locomotive is attached shall have completely crossed such road
or street or any officer or employe of a corporation in charge of a
Sections SpeciatLty APPLICABLE TO Corporations. 617

 

The Penal Code.

 

locomotive, train or car, who shall willfully obstruct, or cause to
be obstructed, any far or highway crossing with any locomo-
tive, train or car for a longer period than five consecutive min-
utes, is guilty of a misdemeanor.

» (Thus amended by L. 1891, ch. 358, and L. 1900, ch. 759.)

Placing passenger car in front of merchandise or freight car.

§ 422. A person, being an officer or employe of a railway com-
pany, who knowingly places, directs, or suffers a freight, lumber,
‘merchandise, or oil car to be placed in rear of a car used for the
conveyance of passengers in a railway train, is guilty of a mis-
demeanor. :

(Thus amended by L. 1889, ch. 267.)

Platforms and heating apparatus of passenger cars.

§ 423. A railroad corporation, or any officer or director thereof
having charge of its railroad, or any person managing: a railroad in
‘this state, or any person or corporation running passenger cars upon
a railvoad into or through this state, who:

1. Fails to have the platforms or ends of the passenger cars run
upon such railroad constructed in sueh manner as will prevent pas-
‘sengers falling between the cars while in motion; or,

2. Except temporarily, in case of accident or emergency, heats
any passenger car, while in motion, on any such railroad more than
fifty miles in length, except a narrow gauge railroad which runs
only mixed trains, between October fifteenth and May first, by any
stove or furnace inside of or suspended from such car, except stoves
of a pattern and kind approved by the board of railroad commis-
‘sioners for cooking purposes in dining-room cars, and except within
the extended time allowed by the railroad commissioners in pur-
suance of law for introducing other heating apparatus; is guilty of
a misdemeanor.

(Thus amended by L. 1892, ch. 692.)

Guard posts; automatic couplers.

§ 424. All corporations and persons other than employes,
operating any steam railroad in this state,

1. Failing to cause guard posts to be placed in the prolongation
of the line of bridge trusses upon such railroad, so that in case of
derailment, the posts and not the trusses shall receive the blow of
the derailed locomotive or car; or,

2. Failing after November first, eighteen hundred and ninety-
two, to equip all of their own freight cars, run and used in freight or
618 Sxorions Sprctatty APPLICABLE TO CORPORATIONS.

 

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other trains on such railroad, with automatic self-couplers, or run-
ning or operating on such railroad any freight car belonging to
any such person or corporation, without having the same equipped,
except in case of accident or other emergency, with automatic self-
couplers, and except within the extended time allowed by the board
of railroad commissioners, in pursuance of law, for equipping such
car with such couplers, is guilty of a misdemeanor, punishable by a
fine of five hundred dollars for each offense.
(Thus amended by L. 1892, ch. 692; L. 1896, ch. 664.)

Officers of railroad companies to be uniformed. :

§ 425. A person who, is

1. Advises or induces any one, being an officer, agent or
employe of a railway company, to leave the service of such com-
pany, because it requires a uniform to be worn by such officer,
agent or employe, or to refuse te wear such uniform, or any part
thereof; or

2. Uses any inducement with a person employed by a railway
company to go into the service or employment of any other railway
company, because a uniform is required to be worn; or

3. Wears the uniform designated by a railway company with-
out authority;

Is guilty of a misdemeanor.

Riding on freight trains. ny

§ 426. A person who rides any engine or any freight or wood
ear of any railway company, without authority or permission of
the proper officers of the company or of the person in charge -
said car or engine; or

2. Who gets on any car or train slitle t in motion (for the pur-
pose of obtaining transportation thereon as a passenger); or

3. Who willfully obstructs, hinders or delays the passage of any
car lawfully running upon any steam or horse, or street railway,

Is guilty of a misdemeanor.

(Thus amended by L. 1890.)

Lights upon swing bridges.

§ 433a. A corporation, company or individual, owning, main-
taining or operating a swing bridge across the Hudson river, who
during the navigation season between sundown and sunrise, neg-
lects to keep and maintain upon every such bridge the lights
required by law, is guilty of a misdemeanor.

(Added by L, 1893, ch. 692.)
Szctions SpecraLty APPLICABLE TO CoRPORATIONS. 619

 

The Penal Code.

Forgery in first degree defined. y

§ 509. A person is guilty of forgery in the first degree who
with intent to defraud, forges, * * *

2. A certificate of the- acknowledgment or proof of a will,
codicil, deed, or other instrument, which by law may be recorded.
or given in evidence when duly proved or acknowledged, made or
purporting to have been made by a court or officer duly authorized
to make such a certificate; or

3. <A certificate, bond, paper, writing, or other public security,
_ issued or purporting to have been issued by or under the authority
of this state, or of the United States, or of any other state or. terri-
tory of the United States, or of any foreign government, country or
state, or by any officer thereof in his official capacity, by which the
payment of money is promised absolutely or upon any contingency,
or the receipt of any money or property is acknowledged, or being
or purporting to be evidence of any debt or liability, either absolute
or contingent, issued or purporting to have been issued by lawful
authority; or

4. An indorsement or other instrument, transferring or pur-
porting to transfer the right or interest of any holder of such a
certificate, obligation, public security, evidence of debt or liability,
or of any person entitled to such right or interest; or

5. A certificate of stock, bond or other writing, bank note, bill
of exchange, draft, check, certificate of deposit, or other obligation
or evidence of debt, issued or purporting to be issued by any bank,
banking association or body corporate existing under the laws of
this state, or of the United States, or of any other state, govern-
ment, or country, declaring or purporting to declare any right, title
or interest of any person in any portion of the capital stock, or
property of such a body corporate, or promising or purporting to
promise or agree to the payment of money, or the performance of
any act, duty, or obligation; or

6. An indorsement or other writing, transferring or purporting
to transfer the right or interest of any holder of such a certificate,
bond, or writing obligatory, or of any person entitled to such right
or interest.

False certificate to certain instruments.

§ 510. An officér authorized to take the proof or acknowledg-
ment of an instrument which by law may be recorded, who will-
fully certifies, falsely that the execution of such an instrument was
620 Sxcrions Sprctatty ApriicaBLE TO CoRPORATIONS.

 

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acknowledged’ by any party thereto, or that the execution of, any
such instrument was proved, is guilty of forgery in the first degree.
Forgery in second degree.

§ 511. A person is guilty of forgery i in the second degree who,
with intent to defraud,

1. Forges the great or privy seal of this state, the seal of any
court of record, or of any public office or officers authorized by
law, or of any body corporate created by or existing under the laws
of this state, or of the United States, or of any other state or any
territory of the United States, or of any other state, government, or
country, or any impression of such a seal; or any gold or silver coin,
whether of the United States, or of any foreign state, government
or country; or

2. Forges a record of a will, conveyance, or instrument of any
kind, the record of which is by the law of this state made evidence,
or of any judgment, order or decree of any court or officer or a
certified, or authenticated copy thereof; or

A judgment roll, judgment, order, or decree or any court or
officer, or an enrollment thereof, or a certified or authenticated
copy thereof, or any document or writing purporting to be such
judgment, order, decree, enrollment, or copy; * * *

Forgery in third degree.
§ 514. A person who either,

1. Being an officer or in the employment of a corporation, asso-
ciation, partnership or individual, falsifies, or unlawfully and cor-
_ Tuptly alters, erases, obliterates or destroys any accounts, book of
‘accounts, records, or other writing, belonging to or appertaining to
the business of. the corporation, association, partnership, or indi-
vidual; or

2. "Who, with intent to injure or defraud, shall falsely make,
alter, forge or counterfeit, shall cause, aid, abet, assist: or otherwise
dbnnive at, or be a party to, the making, altering, forging or coun-
terfeiting of any letter, telegrau, report or other written ¢ommuni-
cation, paper or instrument, by which making, altering, forging or
counterfeiting, any other person shall be in any manner injured in
his good name, standing, position, or general reputation; * * *

Is guilty of forgery in the third degree.

Forgery, third degree.

-§ 515. A person who, with intent to defraud or conceal any
larceny or misappropriation by any person of any money or prop-
erty, either:
Seotions SpEctaLty APPLICABLE TO CoRPORATIONS. 621

 

The Penal Code.

 

1. Alters, erases, obliterates, or destroys an account, book of
accounts, record, or writing, belonging to, or appertaining to the
business of, a corporation, association, public office or officer, part-
nership, or individual;.or . '

2. Makes a false entry in any such account or book of accounts;
or,

3. Willfully omits to make true entry of any material particu-
lar in any such account or book of accounts, made, written, or kept
by him or under his direction;

Is guilty of forgery in the third degree.

Forging passage tickets.

§ 516. A person who, with intent to defraud, forges, counter-
feits, or falsely alters any ticket, check or other paper or writing,
entitling or purporting to entitle the holder or proprictor thereof
to a passage upon any railway or in any vessel or other public con-
‘veyance; and a person who, with like intent, sells, exchanges or
delivers, or keeps or offers for sale, exchange or delivery, or receives
“upon any purchase, exchange or delivery, any such ticket, knowing
the same to have been forged, counterfeited or falsely altered, is
guilty of forgery in the third degree.

‘Officer of corporation selling, etc., shares.

§ 518. An officer, agent or other person employed by any com-
‘pany or corporation existing under the laws of this state, or of any
other state or territory of the United States, or of any foreign gov-
ernment, who willfully and with a design to defraud, sells, pledges
or issues, or causes to be sold, pledged or issued, or signs or procures
to be signed with intent to sell, pledge or issue, or to be sold,
pledged or issued, a false, forged or fraudulent paper, writing or
instrument, being or purporting to be a scrip, certificate or other
“evidence of the ownership or transfer of any share or shares of the
capital stock of such company or corporation, or a bond or other
evidence of debt of such company or corporation, or a certificate or
other evidence of the ownership or of the transfer of any such
‘bond or other evidence of debt, is guilty of forgery in the third
degree, and upon conviction, in addition to the punishment pre-
scribed in this title for that offense, may also ‘be sentenced to pay
a fine not exceeding three thousand dollars...

Falsely indicating person as corporate officer.

§ 519. The false making or forging of an instrument or writ-
ing, purporting to have been issued by or in behalf of a corporation

*
622 Sxcrions Sprctatty APPLICABLE TO CORPORATIONS.

The Penal Code.

or association, state or government, and bearing the pretended sig-
nature of any person, therein falsely indicated as an agent or offi-
cer of such corporation, is forgery in the same degree, as if that
person were in truth such officer or agent of the corporation or asso-
ciation, state of government.

Frauds in the organization of corporations.

§ 590. A person who:

1. Without authority subscribes the name of another to or
inserts the name of another in any prospectus, circular or other
advertisement or announcement of any corporation or joint-stock
association existing or intended to be formed, with intent to permit:
the same to be published, and thereby to lead persons to believe
that the person whose name is so subscribed is an officer, agent,.
member or promoter of such corporation or association; or,

2. Signs the name of a fictitious person to any subscription for,
or agreement to take stock in any corporation, existing or pro-
posed; or,

3. Signs to any such subscription or agreement the name of any
person, knowing that such person does not intend in good faith to
comply with the terms thereof, or under any understanding or
agreement, that the terms of such subscription or agreement are
not to be complied with or enforced;

Is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692.)

Fraudulent issue of stock, etc.

§ 591. An officer, agent or other person in the service of any
joint-stock company or corporation formed or existing under the
laws of this state, or of the United States or of any state or terri-
tory thereof, or of any foreign government or country, who will-
fully and knowingly, with intent to defraud, either:

1. Sells, pledges or issues, or causes to be sold, pledgea or
issued, or signs or executes, or causes to be signed or executed with
intent to sell, pledges or issues, or causes to be sold, pledged or
issued, any certificate or instrument purporting to be a certificate
or evidence of the ownership of any share or shares of such com-
pany or corporation, or any bond or evidence of debt, or writing
purporting to be a bond or evidence of debt of such company or
corporation, without being first thereto duly authorized by such
company or corporation, or contrary to the charter or laws under
which such corporation or company exists, or in excess of the power
Sections Speciatty AppLicaBLE To Corporations. 623

 

The Penal Code.

 

of such company or corporation or of the limit imposed by law or
otherwise upon its power to create or issue stock or evidences of
debt; or :

2. Reissues, sells, pledges or disposes of, or causes to be reissued,
sold, pledged. or disposed of, any surrendered or canceled certifi-
cates, or other evidence of the transfer or ownership .of any such
share or shares, is punishable by imprisonment for a term not
exceeding seven years, or by a fine not exceeding three thousand
dollars, or by both.

(Thus amended by L. 1892, ch. 692.)

Fraud in organizing corporation, etc.

§ 592. An officer, agent or clerk of a corporation, or of persons
proposing to organize a corporation, or to increase the capital stock
of a corporation, who knowingly exhibits a false, forged or altered
book, paper, voucher, security or other instrument of evidence to
any public officer or board authorized by law to examine the
erganization of such corporation, or to investigate its affairs, or
to allow an increase of its capital, with intent to deceive such officer
or board in respect thereto, is punishable by imprisonment in a
state prison not exceeding ten years.

(Thus amended by L. 1892, ch. 662.)

Misconduct of directors of stock corporations.

§ 594. A director of a stock corporation, who concurs in any
vote or act of the directors of such corporation, or any of them, by
which it is intended,

1. To make a dividend, except from the surplus profits arising
from the business of the corporation, and in the cases and manner
allowed by law; or

2. To divide, withdraw, or in any manner pay to the stock-
holders, or any of them, any part of the capital stock of the cor-
poration; or to reduce such capital stock without the consent of
the legislature; or

3. To discount or receive any note or other evidence of debt
in payment of an installment of capital stock actually called in,
and required to be paid, or with intent to provide the means of mak-
ing such payment; or ae

4. To receive or discount any note or other evidence of debt
with intent to enable any stockholder to withdraw any part of the
money paid in by him on his stock; or

5. To apply any portion of the funds of such corporation,
624 Sxcrions Sprcratuy APPLicaBLE To CoRPORATIONS.

The Penal Code.

except surplus profits, ‘directly or indirectly, to the purchase of
shares of its own stock;
Is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692, and L. 1901, ch. 588.)

The amendment of 1901 consisted of the striking out of: subdivisions 6
and 7, the provisions of which, if retained, would have conflicted with the
Stock Corporation Law, as amended in 1901.

Misconduct of officers and directors of stock corporations.

§ 610. An officer or direetor of a stock corporation who:

1. Issues, participates in issuing, or concurs in a vote to issue
any increase of its capital stock beyond the amount of the capital
stock thereof, duly authorized by or in pursuance of law; or

2. Sells, or agrees to sell, or is directly or indirectly interested
in the sale of any share of stock of such corporation, or in any
agreement to sell the same, unless at the time of such sale or agree-
ment he is an actual owner of such share; is guilty of a misde--
meanor, punishable by imprisonment for not less than six months,
or by a fine not exceeding five thousand dollars, or by both.

(Thus amended by L. 1892, ch. 692.)
Misconduct of officers and employes of corporations.

§ 611. A director, officer, agent or employe of any corporation
or joint-stock association who: :

1. Knowingly receives or possesses himself of any of its prop-
erty otherwise than in payment for a just demand, and with intent
to defraud, omits to make or to cause or direct to be made, a full
and true entry thereof in its books and accounts; or

2. Makes or concurs in making any false entry, or concurs in
omitting to make any material entry in its books or accounts; or,

3. Knowingly (1), concurs in making or publishing any writ-
ten report, exhibit or statement of its affairs or, pecuniary condi-
tion containing any material statement which is false, or (2),
omits, or concurs in omitting any statement required by law to be
contained therein; or, '

4. Having the custody or control of its books, willfully refuses
or neglects to make any proper entry in the stock book of suth cor-
poration as required by law, or to exhibit or allow the same to be
inspected and extracts to be taken therefrom by any person entitled
by law to inspect the same or to take extracts therefrom ; or,

‘5, If a notice of an application for an injunction affecting the
property or business of such joint-stock association or corporation
is served upon him, omits to disclose the fact of such service and
the time and place of such application to the other directors, officers
and managers thereof; or,
)

Sections SpectaLty APPLICABLE TO CORPORATIONS. 625

The Penal Code.

6. Refuses or. neglects to make any report or statement lawfully
required by a public officer; is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692; L. 1893, ch. 692; L. 1906, ch. 286.)
Misconduct of officers and agents of pipe-line corporations.

§ 612. Any officer, agent or manager of a pipeline corpora-
tion, who :

1. Neglects or refuses to transport any product delivered for
transportation, or to accept and allow a delivery thereof in the
order of application, according to the general rules of the corpora-
tion, as provided by law; or,

2. Charges, accepts or agrees to accept for such receipt, ‘trans-
portation and delivery, a sum different from the amount fixed by
such regulations; or, 5

3. Allows or pays, or agrees to allow or pay, or suffers to be
allowed or paid or repaid, any draw-back, rebate or allowance, so
that any person shall, by any device, have or procure any trans-
portation of products over such pipe-line at a less rate or charge
than is fixed in such regulations; ;

Is guilty of a misdemeanor, punishable by a fine not exceeding
one thousand dollars, or by imprisonment not exceeding six months,
or by both.

(Thus amended by L. 1892, ch. 692.)

Misconduct at corporate elections.

§ 613. Any person who:

2. Being entitled to vote at any meeting of the stockholders or
bondholders or both of a stock corporation, sells his vote, or who
issues ‘a proxy to vote to any person for any sum of money or
thing of value, except as expressly authorized by law; or,

8. Acts as an inspector of election at any such meeting, and
violates an oath taken by him, in pursuance of law as such in-
spector, or violates the provisions of an oath required by law to
be taken by him as such inspector, or is guilty of any dishonest or
corrupt conduct as such inspector;

Ts guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692, and L. 1901, ch. 588.) .

The changes made in the foregoing section by the amendment of 1901
consisted of an extension of the provisions of subdivisfon 2 so as to
inelude bondholders and the striking out from said section of subdivision
1, which reads as follows: ‘1. Votes or issues a proxy to vote at
any meeting of the stockholders or bondholders, or both, of a stock cor-
poration, upon any stock or bond, if the person in whose behalf such
vote is given shall not then have the title to the stock represented by
such certificate or to such bond, and shall not have it in his possession
and control, notwithstanding such stock or bond shall then stand on the
books of such corporation in the name of the person in whose behalf such

vote is given.”
40
*

626 Sxorions Specratty APPLICABLE TO CoRPORATIONS.

 

The Penal Code.

Presumption of knowledge of corporate condition and business and of
assent thereto by directors; definitions.

§ 614. It is no defense to a prosecution for a violation of the
provisions of this chapter, that the corporation is a foreign cor-
poration, if it carries on business or keeps an office therefor in this
state.

The term “ director ” as used in this chapter includes any of the
persons having, by law, the direction or management of tHe affairs
of a corporation, by whatever name described.

A director of a corporation or joint-stock association is deemed
to have such a knowledge of the affairs of the corporation or asso-
ciation as to enable him to determine whether any act, proceeding
or omission of its directors is a violation of this chapter. If present
at a meeting of the directors at which any act, proceeding or omis-
sion of such directors in violation of this chapter occurs, he must
be deemed to have concurred therein, unless he at the time causes
or in writing requires his dissent therefrom to be entered on the
minutes of the directors. If absent from such meeting, he must be
deemed to have concurred in any such violation, if the facts con-
stituting such violation appear on the record or minutes of the
proceedings of the board of directors, and he remains a director of
the corporation for six months thereafter without causing or in
writing requiring his dissent from such violation to be entered on
such record or minutes.

(Thus amended by L. 1892, ch. 692.)

Sale of passage tickets on vessels and railroads forbidden except by
agents specially authorized.

§ 615. No person shall issue or sell, or offer to sell, any passage
ticket, or an instrument giving or purporting to give any right,
either absolutely or upon any condition or contingency to a pas-
sage or conveyance upon any vessel or railway train, or a berth or
state-room in any vessel, unless he is an authorized agent of the.
owners or consignees of such vessel, or of the company running such
train, except as allowed by sections six hundred and sixteen and
six hundred and twenty-two; and no person is deemed an authorized
agent of such owners, consignees or company, within the meaning
of the chapter, unless he has received authority in writing therefor,
specifying the name of the company, line, vessel or railway for
which he is authorized to act as agent, and the city, town or village
together with the street and street number, in which his office is
kept, for the sale of tickets.

(New section added by L. 1897, ch. 506 ; to take effect September 1, 1897.)
Srctions Sprctatty APPLicaBLE To Corporations. 627

 

The Penal Code.

Sales by authorized agents restricted.

§ 616. No person, except as allowed in section six hundred and
twenty-two, shall ask, take or receive any money or valuable thing
as a consideration for ‘any passage or conveyance upon any vessel
or railway train, or for the procurement of any ticket or instrument
giving or purporting to give a right, either absolutely or upon a con-
dition or contingency, to a passage or conveyance upon a vessel or
railway train, or a berth or state-room on a vessel, unless he is an
authorized agent within the provisions of the last section; nor shall
any person, as such agent, sell or offer to sell, any such ticket,
instrument, berth or state-room, or ask, take or receive any con-
sideration for any such passage,*conveyance, berth or state-room,
excepting at the office designated in his appointment, nor until he
has been authorized to act as such agent according to the provisions
of the last section, nor for a sum exceeding the price charged at the
time of such sale by the company, owners or consignees of the ves-
sel or railway mentioned in the ticket. Nothing in this section or
chapter contained shall prevent the properly authorized “agent of
any transportation company from purchasing from the properly
authorized agent of any other transportation company a ticket for
a passenger to whom he may sell a ticket to travel over any part of
the line for which he is the properly authorized agent, so as
to enable such passenger to travel to the place or junction from
‘which his ticket shall read. Every person who shall have pur-
chased a passage ticket from an authorized agent of a railroad
company, which shall not have Been used, or shall have been
“used only in part, may, within thirty days after the date of
the sale of said ticket, present the same, unused or partly used,
for redemption, at the general office of the railroad company which
issued said ticket, or at the ticket office where said ticket was sald,
or at the ticket office at the point to which the ticket has been
used. If said ticket, wholly unused, shall be presented for redemp-
tion at the ticket office where sold, the same shall be then and there
redeemed by the agent in charge of said ticket office at the price
paid for said ticket. If said ticket, partly used, shall be presented
for redemption at the ticket office where sold, or at the ticket office
at the point to which used, the ticket agent at either of said offices,
upon the delivery of said ticket, shall issue to the holder thereof a
‘receipt, properly describing said ticket and setting forth the date
of the receipt of said ticket, and the name of the person from whom
received, and shall thereupon forthwith transmit said ticket for
redemption to the general office. It shall be the duty of every rail-

*
628 Sxortons Specratty APPLICABLE TO CORPORATIONS.

The Penal Code.

road company to redeem tickets presented for redemption, as in this.
section provided for, promptly and within not to exceed thirty days.
from the date of presentation at the general office or from the date
of the aforesaid receipt. A wholly unused tfcket shall be redeemed
at the price paid therefor. A partly used ticket shall be redeemed
at a rate which shall be equal to the difference between the price
paid for the whole ticket and the cost of a ticket of the same class
between the points for which said ticket was actually used. Mileage-
books shall be redeemed within thirty days after the date of the
expiration thereof in the same manner. Every railroad company
which shall wrongfully refuse redemption, as in this section pro-
vided for, shall forfeit to the aggrieved party fifty dollars, which
sum may be recovered, together with the amount of redemption
money to which the party is entitled, in an action in any court of
competent jurisdiction, together with costs; but no such action can
be maintained unless commenced within one year after the cause
of action accrued. .

(Thus amended by L. 1897, ch. 506, which took effect September 1, 1897.)

Unauthorized persons forbidden to sell certificates, receipts, etc.

§ 617. No person other than an agent appointed, as provided’
in section 615, shall sell, or offer to sell, or in any way attempt to-
dispose of any order, certificate, receipt or other instrument for the
purpose, or under the pretense, of procuring any ticket, or instru-
ment mentioned in section 615, upon any company or line, vessel
or railway train therein mentioned. And every such order sold or
‘offered for sale by any agent, must be directed to the company,
owners or consignees at their office.

Punishment for fraud on accounts, etc.

§ 618. A person guilty of a violation of any of the provisions’
of the preceding sections of this chapter is punishable by i imprison~ :
ment in a state prison not exceeding two years, or imprisonment in
a county jail not exceeding six months.

(Thus amended by L. 1892, ch. 692.)

Conspiring to sell passage tickets in violation of law.

§ 619. All persons who conspire together to sell or attempt to-
sell to any person any passage ticket, or other instrument men-
tioned in sections 615 and 617, in violation of those sections, and.
all persons, who, by means of any such conspiracy obtain, or
attempt to obtain, any money or other property, under the pre:
tense of procuring or securing any passage or right of passage in.

For section 619a, Penal Code, relative to transfer tickets, see page 640.

 
Amendment of 1907.

(Insert facing page 628, White on Corporations, 6th edition. )

Laws of 1907, chapter 546, an act-in relation to the sale of transportation

tickets, amends the Penal Code by adding thereto three new sections to read
as follows:

: § 616-a. No person issuing, selling or offering to sell any passage ticket
or any instrument giving or purporting to give any right, either absolutely
or upon any condition or contingency, to a passage or conveyance upon any
vessel, or a berth or stateroom in any vessel, shall hold himself out to he
or advertise himself in any way as the agent of the owners or consignees of
such yessel or line, unless he has received authority in writing therefor,
specifying the name of the company, line or vessel for which he is authorized
to act as agent and the city, town or village, together with the street and
street number in which his office is kept for the sale of tickets, and unless
such written authorization is conspicuously displayed in such office. Pro-
vided that this section shall not apply to the sale of passage tickets onboard
-any such vessel or to the offices of the actual owners or consignees of such
vessel. No person issuing, selling or offering to sell any such passage ticket
or instrument giving or purporting to give any such right to passage or
{conveyance shall give any false or misleading information in regard to said
passage ticket or instrument or line over .which such passage is sold, or as to
his agency for such line or vessel.
" § 616-b. No person agreeing to furnish or secure for any other person, for
a consideration, passage by vessel from any foreign port to any port in
this state shall issue any advice, order, certificate or other instrument pur-
porting to entitle one or more persons to a passage ticket or ‘other evidence
‘of a right of passage, unless every such advice, order, certificate or instru-
ment shall be signed or countersigned by a duly appointed agent as pro-
vided in section six hundred and sixteen-a, of the vessel or line over which
said advice, order, certificate or other instrument is held out to be good to
secure such passage ticket or other evidence of a right of ' passage. Every
such order, advice, certificate or other instrument. and every tfeceipt for
money paid for or on account of any such advice, order, certificate or other
|instrument, shall contain a statement of the amount paid or to be paid for
such passage; the name, address and age of the person or persons for whom
lintended ; the name of the company or line, if any, to which the vessel on
awhich passage‘ is to be made belongs; the place from which such passage is
to commence; the place where such passage is to terminate ; the name of the
person or persons purchasing such advice, order, certificate or other instru-
ment, and. such advice, order, certificate or other instrument must be signed
by the person who issues it.
1 § 616-c. Any person violating any of the provisions of section six hun-
dred and sixteen-a, or six hundred and sixteen-b shall be guilty of a mip-
emeanor and for a second or further violation shall be guilty of a felony.

The above act took effect September 1, 1907.
V7
Sections Sprcratty APPLICABLE to Corporations. 629

 

The Penal Code.

 

violation of this chapter, are punishable by imprisonment in a state
‘prison not exceeding five years.

Conspirators may be indicted notwithstanding object of conspiracy has

not been accomplished.

§ 620. Persons guilty of violating the last section may be

indicted and convicted for a conspiracy, though the object of such
conspiracy has not been executed.

: Offices for unlawful sales of passage tickets are disorderly houses.

§ 621. All offices kept for the purpose of selling passage tickets
in violation of any of the provisions of this chapter, and all offices
where any such sale is made, are deemed disorderly houses; and all
‘persons keeping any such office, and all persons associating together
for the purpose of violating any of the provisions of this chapter
are punishable by imprisonment in a county jail for a period not

: exceeding six months. . \ - :

(Thus amended by L. 1892, ch: 662.)

Owners, pursers, etc., allowed to sell tickets.

§ 622. The provisions of this chapter do not prevent the actual
owners or consignees of any vessel, from selling passage tickets
thereon; nor do they prevent the purser or clerk of any vessel from
selling in his office on board of such vessel, any passage ticke‘s upon
such vessel. a

Station masters, conductors, ete., allowed to sell tickets.

§ 623. The provisions of this chapter do not prevent the station
master or other ticket agent upon any railway, from selling in. his
office at any station on such railway, any passage tickets upon such
railway; nor do they prevent any conductor upon a railway from

“selling such tickets upon the trains of such railway. «

What must be stated in passage tickets.

§ 624. A ticket or instrument issued as evidence of a right of
‘passage upon the high seas, from any port in this state, to any port
of any other state or nation, and every certificate or order issued
for the purpose, or under pretense of procuring any such ticket
or instrument, and every receipt for money paid for such ticket or
instrument must state the name of the vessel on board of which the
passage is to be made, the name of the owners or consignees of such
vessel, the name of the company, or line, if any, to which such
vessel belongs, the place from which such passage is to commence,
the place wheré such passage is to terminate, the day of the ‘month
630 Sxcrions Spectatty ApPLicaBLE TO CoRPORATIONS.

The Penal Code.

and the year upon which the voyage is to commence, the name of
the person or persons purchasing such ticket or instrument, or
receiving such order, certificate or receipt, and the amount paid
therefor; and such ticket or instrument, order, certificate or receipt,
unless sold or issued by the owners or consignees of such vessels,
must be signed by their authorized agent.

The declarations of a ticket agent made in the line of his duty form a
part of the contract. (Miller y. King, as receiver of N. Y., L. EB. and W.
R. R. Co., 84 Hun, 308.)

Sale of tickets not filled out as required in last section, a misdemeanor.

§ 625. A person who issues, sells or delivers to another, any
ticket, instrument, certificate, order or receipt, which is not made
or filled out as prescribed in the last section, is guilty of a mis-
demeanor. ‘

Certain sales and exchanges of passenger tickets.

§ 626. A person who:

1. Sells, or causes to be sold, a passage ticket, or order for such
ticket on any railway, vehicle, or vessel, to any emigrant passenger
at a higher rate than one and a quarter cents per mile; or

2. Takes payment for any such ticket or order for a ticket under
a false representation as to the class of the ticket, whether emigrant
or first-class; or

3. Directly or indirectly, by means of false representation, pur-
chases or receives from an emigrant passenger any such ticket; or

4. Procures or solicits any such passenger having such a ticket,
to exchange the same for another passenger ticket, or to sell the
same and purchase some other vassenger ticket; or

5. Solicits or books any passenger arriving at the port of New
York from a foreign country, before such passenger has left the
vessel on which he has arrived, or enters or goes on board any ves-
sel arriving at the port of New York from a foreign country, hav-
ing emigrant passengers on board, for the purpose of soliciting or
booking such passengers, and a person or agent of a corporation
employing any person for the purpose of booking such passengers
before leaving the ship;

Is guilty of a misdemeanor.

“Company ” defined.

§ 627. The term “company,” as used in this chapter, includes
all corporations, whether created under the laws of this state, or of
the United States, or of those of any other state or.nation.
\

Sections Sprcranty ApriicaBLeE to Corporations. 631

 

The Penal Code.

7

 

‘By pipe-line corporations.

§ 628. A pipeline corporation, or a person bemg the officer,
agent, manager or representative thereof, who:

1. Accepts, makes or issues any receipt, certificate or order of
any kind for any commodity, unless the commodity represented is
actually at the time in the possession of the corporation; or,

2. Delivers to any person any petroleum or other commodity
received for transportation by such corporation without the pre-
aentation and surrender of all vouchers, receipts, orders or certifi-
cates that have been’ issued or accepted for the same; or,

3. Having parted with the possession of any commodity and
having received therefor an order, voucher, receipt or certificate
shall reissue the same, or:shall not cause it to be canceled by the
word “canceled” stamped or printed legibly across the face
thereof, and to be filed and recorded by such corporation, as pro-
vided by law;

Is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692.)

Issuing fictitious bills of lading receipts and vouchers.
§ 629. A person who:

1. Being the master, owner or agent of any vessel, or officer or
, agent of any railway, express or transportation company, or other-'
wise being or representing any carrier, who delivers any bill of
lading, receipt or other voucher, by which it appears that merchan-
‘dise of any kind has been shipped on board a vessel, or delivered
to'a railway, express or transportation company, or other carrier,
‘unless the same has been so shipped or delivered and is‘ at the time
actually under the control of such carrier, or the master, owner or
agent of such vessel, or of some officer or agent of such company,
to be forwarded as expressed in such bill of lading, receipt or
voucher; or,

2. Carrying on the business of a warehouseman, wharfinger or
other. depository of property, who issues any receipt, bill of lading
or other voucher for merchandise of any kind which has not been
actually received upon the premises of such person, and is not
under his actual control at the time of issuing such instrument,
whether such instrument is issued to a person as being the owner
of such merchandise, or as security for any indebtedness;

Is guilty of a misdemeanor, punishable by imprisonrient not
632 Sxcrions Speciatty APPLICABLE TO CoRPORATIONS.

 

The Penal Code.

exceeding one year, or by a fine not exceeding one thousand dol-
lars, or by both.

(Thus amended by L. 1892, ch. 692.)

Erroneous bills of lading or receipts, issued in good faith, excepted.

§ 630. No person can be convicted of an offense under the
last two sections, for the reason that the contents of any barrel, box,
case, cask or other vessel or package mentioned in the bill of lading,
receipt or other voucher did not correspond with the description
given in such instrument of the merchandise received, if such
description corresponds substantially with the marks, labels or
brands upon the outside of such vessel or package, unless it appears:
that the defendant knew that such marks, labels or brands were
untrue.

Duplicate receipts must be marked “ duplicate.”

§ 631. A person mentioned in sections 628 and 629, who issues
any second or duplicate receipt or voucher, of a kind specified in
those sections, at a time while a former receipt or voucher for the
merchandise specified in such second receipt is outstanding and
uncanceled, without writing across the face of the same the word
“duplicate,” in a plain and legible manner, is punishable by
imprisonment not exceeding one year, or by a fine not exceeding
one thousand dollars, or by both.

Selling, hypothecating or pledging property received for transporta-
tion or storage.

§ 632. A person mentioned in sections 628 and 629, who sells.
or pledges any merchandise for which a bill of lading, receipt or
voucher has been issued by him, without the consent in writing
thereto of the person holding such’ bill, receipt or voucher, is pun-
ishable by imprisonment not exceeding one year, or by a fine not’
exceeding one thousand dollars, or by both.

Bill of lading or receipt issued by warehouseman, must be canceled on
redelivery of the property.

§ 633. A person mentioned in section 629, who delivers to:
another any merchandise for which a bill of lading, receipt or
voucher has been issued, unless such receipt or voucher bears upon
its face the words, “not negotiable,” plainly written or stamped, or
unless such receipt is surrendered to be canceled at the time of such
delivery, or unless, in the case of a partial delivery, a memorandum
thereof is indorsed upon such receipt or voucher, is punishable by
Srcrions Spzcratty AppricaBLeE to Corporations. 633

 

The Penal Code.

 

“imprisonment not exceeding one year, or by a fine not exceeding
one thousand dollars, or by both. :

Property demanded by process of law.

§ 634. The last two sections -do not apply to any case where
property is demanded by virtue of legal process.

Injuries to railroad tracks, et cetera.
§ 635. A person who willfully:

1. Displaces, loosens, removes, injures or destroys any rail,
sleeper, switch, bridge, viaduct, culvert, embankment or structure
_ or any part thereof, attached, appertaining to or connected with any
' railway, or by any other means attempts to wreck, destroy, or so
damage any car, tender, locomotive or railway train or part thereof,
while moving or standing upon any railway track in this state, as to
render such car, tender, locomotive or railway train wholly or par-
tially unfitted for its ordinary use, whether operated by steam, :
electricity or other motive power; or

2. Places any*obstruction upon the track of any such railway;
or 3

3. Wilfully destroys or breaks any guard erected or maintained
by a railroad corporation as a warning signal for the protection of
its employes; or

4. Wilfully discharges a loaded firearm or projects, or throws
a stone or other missile at a railway train, or at a locomotive, car
‘ or vehicle standing or moving upon a railway; or

5. Wilfully displaces, removes, cuts, injures or destroys any
wire, insulator, pole, dynamo, motor; locomotive, or any part
thereof, attached, appertaining to or connected with any railway
operated by electricity, or wilfully interferes with or interrupts any
motive power used in running such road, or wilfully places any
obstruction upon the track of such railroad, or wilfully discharges a
loaded firearm, or projects or throws a stone or any other missile at
such railway train or locomotive, car or vehicle, standing or moving
upon such railway; or . :

6. Removes a journal brass from a car while standing upon any
railroad track in this state, without authority from some person '
who has a right to give such authority, is punishable as follows:
First. If thereby the safety of any person is endangered, by
imprisonment for not more than twenty years. Second. In every
other case by imprisonment for not more than five years.

(Thus amended by L.. 1895, ch. 726 ; L. 1897, ch. 183.)
‘The last amendment took effect September 1, 1897.
634 Sxcrions Sprcratty APPLICABLE TO CORPORATIONS.

 

The Penal Code.

 

Altering, etc., signal or light for vessel, etc.

§ 638. A person who, with intent to bring a vessel, railway
engine, or railway train into danger, either

1. Unlawfully or wrongfully shows, masks, extinguishes, alters,
or removes a light or other signal; or

2. Exhibits any false light or signal;
Is punishable by imprisonment for not more than ten years.

Injuring highway boundary, pier, sea wall, dock, rock, buoy, land-
mark, mile board, pipe, main, sewer, machine, telegraph, etc.
§ 639. A person who willfully or maliciously displaces,
removes, injures or destroys, * * *

1. A public highway or bridge, or a private way laid out by
authority of law, or a bridge upon such public or private way; or

* * * * * * *

7. A line of telegraph or telephone, wire or cable, pier.or abut-
ment, or the material or property belonging theteto, without law-
ful authority, or who shal unlawfully and willfully cut, break,
tap or make connection with any telegraph or telephone line, wire,
cable or instrument, or read or copy in any unauthorized manner
any message, communication or report passing’ over it, in this state;
or who shall willfully prevent, obstruct or delay, by any means or
contrivance whatever, the sending, transmission, conveyance or
delivery, in this state, of any authorized message, communication
or report by or through any telegraph or telephone line, wire or
cable, under the control of- any telegraph or telephone company
doing business in this state; or who shall aid, agree with, employ
or conspire with any person or persons to unlawfully do, or permit
or cause to be done, any of the acts hereinbefore mentioned, or
who shall occupy, use a line, or shall knowingly permit another
to occupy, use a line, a room, table, establishment or apparatus or
-unlawfully do or cause to be done any of the acts hereinbefore
mentioned.

(Thus amended by L. 1892, ch. 372.)

s

8. A pipe or main for conducting gas or water, or any works
erected for supplying buildings with gas or water, or any appurte-
nance or appendage connected therewith; or

9. A sewer or drain, or a pipe, or main connected therewith, or
forming part thereof; or who

10. Destroys or damages with intent to destroy or render use-
Szorions Specratty APPLicaBLe To Corporations. 635

 

be x The Penal Code.

 

less any engine, machine, tool or implement intended for use in
trade or husbandry ;

Is punishable by imprisonment for not more than two years.
Divulging, ete., telegram a misdemeanor.

§ 641. A person who, either

1. Wrongfully obtains, or attempts to obtain, any knowledge
of a telegraphic or telephonic message by connivance with a clerk,
operator, messenger, or other employe of a telegraph or telephone
company ; or

2. Being such clerk, operator, messenger or other employe, will-
fully divulges to anyone but the persons for whom it was intended,
the contents or the nature thereof of a telegraphic or telephonic
message or dispatch intrusted to him for the transmission or de-
livery, or of which contents he may in any manner become pos-
sessed, or occupying such position in a telegraph office shall will-
fully refuse or neglect duly to transmit or deliver messages received
at such office, except when such telegraphic or telephonic message
or dispatch is in aid of or used to abet or carry on any unlawful
business or traffic, or to perpetrate any criminal offense, and when
it shall appear that any offense at law or unlawful business: or
traffic is being carried on or conducted in whole or int part’ by
means of a telegraphic or telephonic message or dispatch, it shall
be the duty of any corporation or employe having knowledge of
the same, to withhold such dispatch from delivery, and to fur-
ther furnish to any public officer whose duty it is to prosecute any
offense at law so aided.and abetted, all information in their pos-
session, relating to said unlawful business or traffic; and to fur-
ther assist in the identification of any person aiding or abetting
in or conducting any such ‘unlawful business or traffic; and any
violation of this act, or refusal or neglect to furnish information
as provided hereinbefore, is punishable by a fine of not more than
one thousand dollars or by imprisonment for not more than two
years, or by both such fine and imprisonment.

(Thus amended by L. 1895, ch. 727, and L. 1901, ch. 661.)
636 Sxcrions Specratty APPLICABLE TO CORPORATIONS.

 

The Penal Code.

 

Opening or publishing a sealed letter, etc.

§ 642. A person who, willfully, and without authority, either

1. Opens or reads, or causes to be opened or read, a sealed
letter, telegram, or private paper; or,

2. Publishes the whole or any portion of such letter, or tele-
gram, or private paper, knowing it to have been opened or read
without authority ; or,

3. Takes a letter, telegram or private paper, belonging to an-
other, or a copy thereof, and publishes the whole or any portion
thereof ; or,

4. Publishes the whole or any portion of such letter, telegram.
or private paper, knowing it to have been taken or copied without
authority; or

5. Publishes or causes to be published, or connives at the pub-
lication of any letter, telegram, or private paper or of any por-
tion of any letter, telegram, or private paper found on, or among
the effects of, any person who has been dangerously wounded, or
who has committed suicide, or who has died suddenly, or who
has been found dead, unless such letter, telegram, or private paper.
shall have been produced pursuant to law before a coroner at an
inquest dnd the publication of such letter, telegram, or private -
paper, or of such portion of such letter, telegram, or private paper
shall have been declared by that coroner in writing to be necessary
to aid in the discovery of a crime, or of the identity of the wounded
or deceased person, is guilty of a misdemeanor.

(Thus amended by L. 1895, ch. 287, and L. 1900, ch. 588.)

Unlawful interference with gas or electric meters or steam valves.

§ 651. A person who willfully, with intent to injure or de-
fraud:

1. Connects a tube, pipe, wire or other instrument or con-
trivance with a pipe or wire used for the conducting or supplying
illuminating gas, fuel, natural gas or electricity in such a manner
as to supply such gas or electricity to any burner, orifice, lamp
Sections Specratty ApriicaBLe To Corporations. 637
; The Penal Code.

 

‘or motor where the same is or can be burned ‘or used without pass-
-ing through the meter or instrument provided for registering the
_ quantity consumed; or uses such: gas or electricity obtained by
reason of the making of such connections; or
2. Obstructs, alters, injures or prevents the action of a meter or
. other instrument uséd to measure or register the quantity of illumi-
nating fuel, natural gas or electricity consumed in a house or
apartment, or at an orifice or burner, lamp or motor, or by a con-
sumer or other person or a person other than a state inspector or
‘deputy inspector of gas meters or an employe of the company own-
ing any gas or electric meter, who wilfully shall detach or discon-
nnect such meter, or make or report any test of, or examine for the
‘purpose of testing any such meter so detached or disconnected ; or
3. In any manner whatever, changes, extends or alters any ser-
‘vice or other pipe, wire or attachment of any kind, connecting or
through which natural or artificial gas or electricity is furnished
from the gas mains or pipes or wires of any person, company or
corporation without first procuring from said person, company or
corporation written permission to make such change, extension or
alterations, or uses gas or electricity obtained by: reason of such
‘changes, extensions or alterations without first procuring the writ-
‘ten permission aforesaid; or
4. Makes any connection or reconnection with the gas mains,
service pipes or wires of any person, company or corporation fur-
nishing to consumers natural or artificial gas or electricity, or
turns on or off or in any manner interferes with any valve or stop-
-eock or other appliances belonging to such person, company or cor-
poration and connected with its service or other pipes or wires, or
enlarges the orifice of mixers, or uses natural gas for heating pur-
‘poses except through mixers, or uses electricity or artificial gas for
any purpose before it has passed through an-instrument for meas-
uring the quantity consumed, without first procuring from such
person, company or corporation a written permit to turn on or off
such stop-cock or valve, or to make such connections or reconnec-
tions, or to enlarge the orifice of mixers or to use for heating pur-
poses without mixers, or to interfere with the valves, stop-cocks,
wires, or other appliances of such person, company. or corporation

as the case may be; or
638 Sxctions SprciaLLy APPLICABLE TO CoRPORATIONS.

 

The Penal Code.

 

5. Retains possession of or refuses to deliver any mixer or mix-
ers, meter or meters, lamp or lamps, or other appliances which
may be or may have been loaned or rented to them by any person,
company or corporation for the purpose of furnishing gas, elec-
tricity or power through the same, or who sells, loans or in any’
manner disposes of the same to any person or persons other than ©
the said person, company or corporation entitled to the possession
of the same; or

6. Sets on fire any gas escaping from wells, broken or leaking
mains, pipes, valves or other appliances used by any person, com-
‘pany or corporation, in conveying gas to consumers, or interferes.
in any manner with the wells, pipes, mains, gate-boxes, valves,
stop-cocks, wires, cables, ‘conduits, or any other appliances, ma-
chinery or property.of any person, company or corporation en-
gaged in furnishing gas to consumers: unless employed by or act-
ing under the authority and direction of such person, company
or corporation ; or

7. Opens or causes to be opened or reconnects or causes to be:
reconnected any valve lawfully closed or disconnected by a dis-
trict steam corporation; or

8. Turns on steam or causes it to be turned on, or to reenter
any premises when the same has been lawfully stopped from enter-
ing such premises, is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 692, and ch. 699; L. 1893, ch. 692; L. 1900,
ch. 589; L. 1906, ch. 453.)

Injury to property or interfering with railroad property, how punished.

§ 654. A person who unlawfully and willfully destroys or in-
jures any real or personal property of another, or who without
authority or permission from a person who has the right to give
such authority or permission, loosens any brake or blocking of any
car standing on any railroad track in this state, or without like
authority or permission, puts upon or runs any hand car, or other
car, on any railroad track in this state, or without like authority
or permission, interferes or meddles with any brake or coupling of
any car while standing or moving on any railroad track in this
Sections Sprcratty AppLticaBLE To Corporations. 639

The Penal Code.

state, or takes any part therein, in a case where the punishment is
not specially prescribed by statute, is punishable as follows:

1. If the value of the property destroyed, or the diminution in
- the value of the property by the injury is more than twenty-five
dollars, by imprisonment for not more than four years.

2. In any other case, by imprisonment for not more than six
months, or by a fine of not more than two hundred and fifty dol-
lars, or by both such fine and imprisonment.

8. And in addition to the punishment prescribed therefor, he
is liable in treble damages for the injury done, to be recovered in
a civil action by the owner of such property, or the public officer
having charge thereof. _ '

(Thus amended by L. 1892, ch. 186.)

Transporting animals for more than twenty-four consecutive hours, a
misdemeanor. ‘

§ 663. A railway corporation, or an owner, agent, consignee,
or person in charge of any horses, sheep, cattle, or swine, in the
course of, or for transportation, who confines, or causes or suffers
the same to be confined, in cars for a longer period than 24 con-
secutive hours, without unloading for rest, water and feeding, dur-
ing ten consecutive hours, unless prevented by storm or inevitable
accident, is guilty of a misdemeanor. In estimating such confine-
ment, the time during which the animals have been confined with-
out rest, on connecting roads from which they are received, must
be computed. If the owner, agent, consignee, or other person in
charge of any such animals refuses or neglects upon demand to

' pay for the care or feed of the animals while so unloaded or rested,
the railway company, or other carriers thereof, may charge the
expense thereof to the owner or consignee, and shall havea lien:
thereon for such expense.

Relating to disorderly conduct on public conveyances.

§ 675. Any person who shall, by any offensive or disorderly
act or language, annoy or interfere with any person or persons in
any place or with the passengers of any public stage, railroad car,
ferry boat, or other public conveyance, or who shall disturb or
offend the occupants of such stage, car, boat or conveyance, by
any disorderly act, language, or display, although such act, conduct,
or display, may not amount to an assault or battery, shall be
deemed guilty of a misdemeanor. A person who willfully and
wrongfully commits any act which seriously injures, the person or
640 Sxorions Sprctatty APPLICABLE TO CoRPoRATIONS.

The Penal Code.

property of another, or which seriously disturbs or endangers the
public peace or health, or which openly outrages public decency,
for which no other punishment is expressly prescribed by this
code, is guilty of a misdemeanor; but nothing in this code contained
shall be so construed as to prevent any person from demanding an
increase of wages, or from assembling and using all lawful means
to induce employers to pay such wages to all persons employed by
them as shall be a just and fair compensation for services rendered.

(Thus amended by L. 1891, ch. 327.)

‘Transfer tickets not to be disposed of.

§ 619a. No transfer ticket or written or printed instrument
giving, or purporting to give, the right of transfer to any person
or persons from a public conveyance operated upon one line or
route of a street surface railroad to a public conveyance upon
another line or route of a street surface railroad, or from one car
to another car upon the same line of street surface railroad, shall
-be issued, sold or given except to a passenger lawfully entitled
thereto. Any person who shall issue, sell or give away such a
transfer ticket or instrument as aforesaid to a person or persons
not lawfully entitled thereto, and any person or persons not law-
fully entitled thereto who shall receive and use or offer for pas-:
sage any such transfer ticket or instrument, or shall sell or give,
away such transfer ticket or instrument to another with intent to}
have such transfer ticket used or offered for passage after the time|
limited for its use shall have expired, shall be guilty of a
misdemeanor.

(New section added by L. 1898, ch. 668 )
CODE OF CRIMINAL PROCEDURE.

Sections Sproratty APPLICABLE TO CoRPORATIONS.

Corporation convicted of offense; punishment.

§ 13. Whenever in this code the punishment for crime is left.
undetermined between certain limits, the punishment to be inflicted.
in a particular case must be determined by the court authorized to:
pass sentence within such limits as may be prescribed by this code.
In all cases where a corporation is convicted of an offense for the
commission of which a natural person would be punishable with
imprisonment, as for a felony, such corporation is punishable by a
fine of not more than five thousand dollars.

(Thus amended by L. 1892, ch. 218.)

Refusal to permit employes to attend election.

§ 41f. A person or corporation who refuses to an employe
entitled to vote at an election or town meeting, the privilege of
attending thereat, as provided by the election law, or subjects such
employe to a penalty or reduction of wages because of the exercise:
of such privilege, is guilty of a misdemeanor.

(Thus amended by L. 1892, ch. 693.) .

Jurisdiction of courts of special sessions.

§ 56. Subject to the power of removal provided for in this
chapter, courts of special sessions, except in the city and county of
New York and the city of Albany, have in the first instance exclu-
sive jurisdiction to hear and determine charges of misdemeanors.
committed within their respective counties, as follows:

* * * * * * *

9. Intoxication of a person engaged in running any locomotive:
engine upon any railroad, or while acting as a conductor of a car
or train of cars, on any such railroad, or a misdemeanor committed
by any person on a railroad car or train.

(Thus amended by L. 1890, ch. 521; re-enacted without change by L.

1893, chs. 150 and 570.) <=
41

'
642 Sxcrions Spectatty APPLICABLE TO CoRPORATIONS.

The Code of Criminal Procedure.

23. Unlawfully frequenting or attending a steamboat landing,
railroad depot, church, banking institution, broker’s office, place of
public amusement, auction room, store, auction sale or private resi-
dence, passenger car, hotel, restaurant, or any other gathering of
people.

(Thus amended by L. 1886, ch. 28; re-enacted without change by L.
1893, chs. 150 and 570.)

Jurisdiction of crime on board a vessel.

§ 186. When a crime is committed in this state on board of a
vessel navigating a river, lake or canal, or lying therein in the
course of her voyage, or in respect to any portion of the cargo or
lading of such boat or vessel, the jurisdiction is in any county
through which, or any part i which, such river or canal passes,
or in which such lake is situated, or on which it borders, or in the
county where such voyage terminates, or would terminate if
completed.

3 R. S. 1021, § 44.

Of crime committed in the state on board of any railway train, etc.

§ 1387. When a crime is committed in this state, in or on board
of any railway engine, train or car, making a passage or trip on or
over any railway in this state, or in respect to any portion of the
lading or freightage of any such railway train or engine car, the
jurisdiction is in any county through which, or any part of which,
the railway train or car passes, or has passed in the course of the
same passage or trip, or in any county where such passage or trip
terminates, or would terminate, if completed.

Plea of guilty, how put in.

§ 335. <A plea of guilty can only be put in by the defendant
himself in open court, except upon an indictment against a cor-
poration; in which case, it may be put in by counsel.

Summons upon an information or presentment against a corporation,
by whom issued, and when returnable.

§ 675. Upon an information against a corporation, the magis-
trate must issue a summons, signed by him, with his name of
office, requiring the corporation to appear before him, at a specified
time and place, to answer the charge; the time to be not less than
ten days after the issuing of the summons. ;
Sections Specratty APPLIcABLE To Corporations. 643

 

The Code of Criminal Procedure.

¥Form of the summons.

§ 676. The summons must be in substantially the following
form:

“County of Albany [or as the case may be].
“In the name of the people of the state of New York:
“To the [naming the corporation ].

“ You are hereby summoned to appear before me, at [naming the
place], on [specifying the day and hour], to answer a charge made
against you, upon the information of A. B., for [designating the
offense, generally ].

“Dated at the city for “town ”] of , the day of
, 18—. G. H., justice of the peace ”
[or as the case may be].

 

 

 

“When and how served.

§ 677. The summons must be served at least five days before
the day of appearance fixed therein, by delivering a copy thereof
.and showing the original to the president, or other head of the cor-
poration, or to the secretary, cashier, or managing agent thereof.

‘Examination of the charge.

§ 678. At the time appointed in the summons, the magistrate
‘must proceed to investigate the charge, in the same manner as in
the case of a natural person brought before him, so far as those
proceedings are applicable.
‘Certificate of the magistrate, and return thereof with the depositions.

§ 679. After hearing the proofs, the magistrate must certify

upon the depositions, either that there is or is not sufficient cause

to believe the corporation guilty of the offense charged, and must
return the depositions and certificate, in the manner prescribed in
‘section 221..

Grand jury may proceed as in the case of a natural person.

§ 680. If the magistrate return a certificate that there is suffi-
‘cient cause to believe the corporation guilty of the offense charged,
the grand jury may proceed thereon, as in the case of a natural
‘person held to answer. \

‘Bringing an indicted corporation into court.

§ 681. When an indictment is filed against any corporation,
such corporation must be arraigned thereon, and the court acquires
jurisdiction over the corporation, in the manner following:
644 Sxotrions Sprcratty APPLICABLE TO CORPORATIONS.

 

d The Code of Criminal] Procedure.

 

1. The clerk of the court wherein such indictment is found,
or to which it is sent or removed, or the district attorney of the
county, must issue a summons signed by him with his name of
office, requiring such corporation to appear and answer the indict-
ment by a demurrer or written plea to be verified in like manner
as a pleading in a civil action, at a time and place to be specified in
such summons, such time to be not less than five days after the
issue thereof. The summons may be substantially in the follow-
ing form:

Supreme Court, county of
(state the proper county or court, as the case may be).

The People of the State of New York
vs.

“The A. B. Company.

You are hereby summoned to appear in this court and, by
demurrer or plea in writing duly verified, answer an indictment.
filed against you by the grand jury of this county, on the
day of , charging you with the crime of (designating
‘the offense generally), at a term of the Supreme Court (or as the
case may be) of this county, at (naming the place) on (stating the
day and hour), and in case of your failure to so appear and answer,
judgment will be pronounced against you. ;

Dated at the city (or town) of , the
day of , 18 .

Cc. D.,
- Distyict Attorney.

(or by order of the court, E. F., clerk, as the case may be).

2. The summons must be served at least four days before the
appearance fixed therein, in the same manner as is provided for
the service of a summons upon a corporation in a civil action; and
if the corporation does not appear in the manner and at the time
and place specified in the summons, judgment must be pronounced
against it.

3. Nothing contained in this section shall be construed as pre-
venting the appearance of a corporation by counsel to answer an
indictment, without the issuance or service of the summons as above:
provided. And when an indictment shall have been filed against a
corporation it may voluntarily appear and answer the same by
counsel duly authorized to so appear for it; in which case the court.
Szctions Sprciatty APPLICABLE To Corporations. 645

The Code of Criminal Procedure.

acquires full jurisdiction over the corporation in the same manner
as if the summons had. been issued and served.

(Thus amended by L. 1892, ch. 219; L. 1895, ch. 880.)
Fine imposed on corporation, collection of.

; § 682. When a fine is imposed upon a corporation upon con-
viction, it may be collected.in the same manner as a judgment in
a civil action, and if an execution issued upon such judgment be
" returned unsatisfied, the district attorney of the county may there-
upon bring an action in the name of the people of the state of New
York, to procure a judgment sequestrating the property of the cor-
poration, as provided by the Code of Civil Procedure.

(Thus amended by L, 1892, ch, 219.) os

Bail of certain railroad employes.

§ 554a. Whenever a person employed as am engineer, fireman, -
motorman, conduetor, trainman or otherwise, on a train or car of a
steam, elevated or street surface railroad, is arrested in any city on
a criminal charge, arising from an accident in connection with the
operation of such train or car, resulting in an injury or death to
a person-or injury to property, such engineer, fireman, motorman,
conductor, trainman or otuer employe, shall be immediately taken
before a magistrate, if one is accessible, and otherwise, before a
captain or sergeant of police, or acting sergeant of police, in charge
of a police station in such city, and be given an opportunity to be
admitted to bail. Such bail shall be taken in the same manner,
so far as practicable, as is provided by section five hundred and
fifty-four of this code, for the taking of bail in case of misde-
meanors by a captain or sergeant of police, or acting sergeant of
police in a city or village, except that the amount of bail shall
be fixed by such officer at not exceeding one thousand dollars, and
except that the undertaking shall provide for the appearance of
the defendant before the magistrate, coroner, or other officer, who,
except for this section, would be authorized to take such bail.
Such officer may however in his discretion, instead of exacting bail
release such employe on his own recognizance, conditional for his
appearance as above provided in case an undertaking is required.

(New section, added by L. 1903, ch. 614; to take effect Sept. 1, 1903.)
CODE OF CIVIL PROCEDURE.

Szctions Sproratty APPLICABLE TO CORPORATIONS.

Superior city courts; jurisdiction of.

§ 263. ' The civil jurisdiction of each of the superior city courts
extends to the following actions and special proceedings, in addition
to the jurisdiction, power and authority conferred upon it, in a par-
ticular case,-by special statutory provision:

* * * * * * *

4, * * * Tf the property consists of one or more shares in
the capital stock of a domestic corporation or joint-stock associa-
tion, whose principal place of business is located or established
within that city, or of a debt due from, or money, or a thing in
action, in the possession or under the control of, such a corporation
or joint-stock association, it is deemed to be situated within that
city, within the meaning of this subdivision. :

* * * * * * *

7. To an action brought by a resident of that city against a
foreign corporation, either (1) to recover damages for the breach
of a céntract, express or implied, or a sum payable by the terms of
a contract, express or implied, where the contract was made, exe-
cuted or delivered within the state, or where the cause of action
arose within the state; or (2) where a warrant of attachment,
granted in the action, has been actually levied within that city,
upon. property of the corporation; or (3) where the summons is
served by delivery of a copy thereof, within that city, to an officer
of the corporation, as prescribed by law.

8. * * * Or for the sale or other disposition of the prop-
erty, or the voluntary dissolution of a domestic corporation, whose
principal place of business is located or established within that
city; or for the sale or other disposition of the real property, situated
within that city, of a domestic corporation, wherever it is located.

Jurisdiction of superior city courts; domestic corporations; ae
deemed residents.

§ 264. For the purpose of determining the jurisdiction of a
superior city court, in a case specified-in the last section, a domestic
Sections Sprctatty AppricaBLe To Corporations. 647

 

The Code of Civil Procedure.

 

‘corporation or joint-stock association, whose principal place of busi-
ness is established, by or pursuant to a statute, or by its articles of
-association, or is actually located, within the city wherein the court
‘is located, is deemed a resident of that city; and personal service
of a summons, made within that city, as prescribed in this act, or
personal service of a mandate, whereby a special proceeding is com-
menced, made within that city, as prescribed in this act for personal
service of a summons, is sufficient service thereof upon a domestic
‘corporation, wherever it is located.

Jurisdiction of superior city courts; if founded upon an‘act or omission
of the corporation.

§ 265. Where an action or a special proceeding is brought
against two or more parties, and the jurisdiction of a superior city
‘court depends upon the residence of a party, within the city wherein
‘the court is located; or personal service upon him, within that city,
‘of the summons or the mandate for the commencement of the
‘special proceeding; or the levying of a warrant of attachment
within that city; and jurisdiction is thus acquired as against one or
more, but not as against all of them, the jurisdiction with respect
sto the others, is governed by the following rules:

* * % * * * *

2. Where an action or a special proceeding brought against a
-public officer, together with one or more private persons, is founded
upon an official act or omission; or where an action or a special pro-
«ceeding brought against a corporation, together with one or more
natural persons, is founded upon an act or omission of the corpora-
tion; and the court has or acquires jurisdiction thereof, as against
‘the public officer or the corporation; it has ‘jurisdiction thereof as
-against all persons, who are necessary parties to the complete deter-
mination of the controversy.

Jurisdiction of county courts; domestic corporations, when deemed
residents.

$341. For the purpose of determining the jurisdiction of a county
‘court, in either of the cases specified in the last section, a domestic corpo-
‘ration or joint-stock association, whose principal place of business is estab-
lished, by or'pursuant to a statute, or by its articles of association, or is
actually located within the county, or in case of a railroad corporation
where any portion of the road operated by it is within the county, it is
“deemed a resident of the county; and personal service of a summons,
made within the county, as preccribed in this act, or personal service of a
mandate, whereby a special proceeding is commenced, made within the
-county, as prescribed in this act for personal service of a summons, is
1

648  Sxorrons Spectatty APPLicaABLE TO CoRPORATIONS.

 

f The Code of Civil Procedure.

sufficient service thereof upon a domestic corporation, wherever it is:
located. .
(Thus amended by L. 1899, ch. 320.)

Attempt to commence action in a court of record.

§ 399. An attempt to commence an action, in a court of record,
is equivalent to the commencement thereof against each defendant,
within the meaning of each provision of this act, which limits the
time for commencing an action, when the summons is delivered,.
with the intent that it shall be actually served, to the sheriff, or,.
where the sheriff is a party, to a coroner of the county, in which
that defendant or one of two or more co-defendants, who are joint.
contractors, or otherwise united in interest with him, resides or last,
resided; or, if the defendant is a corporation, to a like officer of the.
county, in which it is established by law, or wherein its general
business is or was last transacted, or wherein it keeps or last kept,.
an office for the transaction of business. But in order to entitle a.
plaintiff to the benefit of this section, the delivery of the summons.
to an officer must be followed, within sixty days after the expira-
tion of the time limited for the actual commencement of the action,.
by personal service thereof upon the defendant sought to be
charged, or by the first publication of the summons, as against that
defendant, pursuant to an order for service upon him in that.
manner. ;

Attempt to commence action in a court not of record.

§ 400. The last section, excluding the provision requiring a:
publication or service of the summons within sixty days, applies to:
an attempt to commence an action in a court not of record, where
the summons is delivered to an officer authorized to serve the same,.
within the city or town wherein the person resides or the corpora--
tion is located, as specified in that section; provided that actual.
service thereof is made with due diligence.

Summons, personal service of upon a domestic corporation.

§ 481. Personal service of the summons upon a defendant,
being a domestic corporation, must be made by delivering a copy
thereof, within the State, as follows:

1. If the action is against the mayor, alderman, [aldermen]
and commonalty of the city of New York, to the mayor, comp-
troller, or counsel to the corporation.

2. If the action is against any other city, to the mayor, treas-
urer, counsel, attorney, or clerk; or, if the city lacks either of those:
Sxorrons Sprcratty APPLICABLE TO CorRPoRATIOoNS, 649

 

The Code of Civil Procedure.

officers, to the officer performing corresponding functions, under
another name.

3. In any other case, to the president or other head of the cor-
poration, the secretary or clerk to the corporation, the cashier, the
treasurer, or a director or managing agent.

For provisions relative to service of process upon foreign corporations,
~see pages 32=35, ante.

On a motion to set aside the service of summons on a domestic tele-
graph corporation, it appeared that such service was upon the general
superintendent of the work of operating the lines of the company, aud
it was held that the person served was the “managing agent” of the
‘company within the meaning of this section. (Barrett v. American Tele-
phone & Telegraph Co., 188 N. Y., 491; aff’g 56 Hun, 430.)

The design of the statute was to secure notice of the commencement
-of a suit to the corporation, and it is very apparent, from the description
in the statute of the persons upon whom service might be made, that
the Legislature intended to facilitate such service, and only required that
tthe person to be served should sustain such responsible and representative
Trelations to the corporation 4s would secure notice to it of the com-
mencement of the action. (Barrett v. American Telephone & Telegraph
‘Co., 138 N. Y., 491.)

It has been held that an allegation in a complaint that the defendant
is a corporation constitutes no part of the cause of action but simply
relates to the character or capacity of the defendant. (Adanis v. Lam-
son Consolidated Store Service Co., 59 Hun, 127; The O’Reilly, Skelly &
Fogarty Co. v. Greene, 18 Misc. 423.)

Service of summons upon the vice-president of a domestic corporation,
or upon one who performs corresponding duties under a different appella-
tion, is a sufficient service upon the corporation. (Balmford v. Grand
Lodge A. O. U. W., 16 Misc., 4; see, also, cases therein cited.)

Service of.summons on the president de facto of a defendant corpora-
‘tion gives the court jurisdiction of such corporation; and a subsequent
adjudication in a proceeding to which plaintiff was not a party, that the
‘person served was not president de jure, is ineffectual to divest or defeat
jurisdiction. (Stillman v. Associated Lace Makers’ Co., 14 Misc., 503.)

Service upon one who was known to be the president of 4 corporation,
put who had, in fact, previously resigned his office, and at the time of
“service had no connection with the company, is not service upon such
corporation. (Buchanan v. Prospect Park. Hotel Co., 14 Misc., 485.)

A managing agent of a corporation, upon whom service of process may
tbe made, does not cease to be such by the appointment of temporary
receivers of the company and his retention in office by them, so long as
4nis original appoititment is not revoked hy the company. (Faltiska v. N.
W., L. E. & W. BR. BR. €o., 12 Misc., 478.)
650 Sxcriows Srzcratey AppricaBLeE To CoRPoRATIONS.

 

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Summons, service of by publication.

§ 438. An order, directing the service of a summons upon @
defendant, without the State, or by publication, may be made in
either of the following cases:

1. Where the defendant to be served is a foreign corporation.

* * * * * * *

6. Where the defendant is a resident of the State, or a domestic
corporation; and an attempt was made to commence the ‘action
against the defendant, as required in chapter fourth of this act,
before the expiration of the limitation applicable thereto as fixed
‘in that chapter; and the limitation would have expired, within
sixty days next preceding the application, if time had not been
extended by the attempt to commence the action.

7. Where the action is against the stockholders of a corporation,
or joint-stock company, and is authorized by a law of the State, and
the defendant is a stockholder thereof.

* *

# * * # *

(Thus amended by L. 1899, ch. 301.)

Order for publication; papers to procure.

§ 439. The order must be founded upon a verified complaint,
showing a sufficient cause of action against the defendant to be
served, and proof by affidavit of the additional facts required by the
last section; and‘ also, where the application is made upon the
ground that the defendant is a foreign corporation, or not a resident
of the State, or in a case specified in subdivision fourth, fifth, or
seventh of the last section, that the plaintiff has been or will be un-
able, with due diligence, to make personal service of the summons.

For other provisions relative to service by publication, see the Code of
Civil Procedure, §§ 440-445. :

Verification of pleadings by corporations.

§ 525. The verification must be made by the affidavit of the
party, or, if there are two or more parties united in interest, and
|Pleading together, by at least one of them, who is acquainted with
the facts, except as follows:

1. Where the party is a domestic corporation, the verification
‘must be made by an officer thereof.

* * * * * * *

8. Where the party is a foreign corporation; or where the
party is not within the county where the attorney resides, or if
the latter is not a resident of the State, the county where he has
his office, and capable of making the affidavit; or, if there are two
or more parties united in interest, and pleading together, whera.
,

Srotions Sprcratty APPLICABLE To Corporations. 651

 

_ The Code of Civil Procedure.

neither of them, acquainted with the facts, is within that county,
and capable of making the affidavit; or where the action or defense
is founded upon a written instrument for the payment of money
only, which is in the possession of the agent or the attorney; or
where all the material allegations of the pleading are within the
personal knowledge of the agent or the-attorney; in either case, the
verification may be made by the agent of or the attorney for the
party.

Restrictions upon injunction to restrain State officers.

§ 605. Where a duty is imposed by statute upon a State officer,
or board of State officers, an injunction order to restrain him or
them, or a person employed by him or them, from the performance
of that duty, or to prevent the execution of the statute, shall not
be granted, except by the Supreme Court, at a term thereof, sitting
in the department in which the officer or board is located, or the
duty is required to be performed; and upon notice of the applica-
tion therefor to the officer, board, or other person to be restrained.

(Thus amended by L. 1895, ch. 946.)

Prior to the amendment of 1895 injunctions under this section could
only be granted at a General Term. 7

Where a peremptory mandamus is applied for, which by its terms acts
as a restraint upon State officers engaged in, or about to perform a duty
imposed by statute, and it is sought to be used as a restraining order or
injunction, the limitation upon the granting of such injunction by the fore-
going section applies. (People ex rel. Derby v. Rice, 129 N. ¥., 461.)

Injunction against corporations, service of.

§ 610. The injunction order must briefly recite the grounds for
the injunction. Where it is granted by the court, it must be served
by delivering a certified copy thereof; where it is granted by a
judge, it must be served by showing the original order, and deliver-
ing a copy thereof. Service of the order, upon a corporation, may
be made as prescribed in this act, for making personal service of a
summons upon a corporation. Copies of the papers, upon which
the order was granted, must be delivered with the copy of the
order.

Iujunction, damages.

§ 624. Where the defendant enjoined was an officer of a cor-
poration, or joint stock association, or a bailee, agent, trustee, or
other representative of another, and the damages sustained by him,
are less than the sum specified in the, undertaking, the court or the
referee may also separately ascertain and determine the damages
652 Sxcrions Sprcratzy AppLicaBLE TO CoRPoRATIONS.

 

The Code of Civil Procedure.

 

sustained,. by reason of the injunction, by the corporation, associa-
tion, or person, whom the defendant represents, to an amount not
exceeding the surplus of the sum specified in the undertaking; and
those damages may be recovered in a’separate action, brought as
prescribed in the next section.

Injunction; action on undertaking.

§.625. Where the damages have been ascertained by the decis-
ion of the court, or the confirmation of a referee’s report, as pre-
scribed in the last two sections, any person, entitled to the benefit
of an undertaking, executed pursuant to the provisions of this
title, may bring an action-thereon, without further leave of the
court.

Attachments; in what actions.

§ 635. A warrant of attachment against the property of one
or more defendants in an action, may be granted upon the applica-
tion of the plaintiff, as specified in the next section, where the
action is to recover a sum of money only, as damages for one or
nore of the following causes:

1. Breach of contract, express or implied, other than a con-
tract to marry.

2. Wrongful conversion of personal property.

3. An injury to property in consequence of negligence, fraud
or other wrongful act.

(Thus amended by L. 1894, ch. 738.)

Foreign corporation; attachment.

§ 636. To entitle the plaintiff to such a warrant he must show,
by affidavit, to the satisfaction of the judge granting the same, a8
follows:

1. That one of the causes of action specified in the last section
exists against the defendant. If the action is to recover damages
for breach of a contract, the affidavit must show that the plaintiff
is entitled to recover a sum stated therein, over and above all
counterclaims known to him. —

2. That the defendant is either a foreign corporation or not a
resident of the state; or, if he is a natural person and a resident of
the state, that he has departed therefrom, with interit to defraud
his creditors, or to avoid the service of a summons, or keeps him-
self concealed therein with the like intént; or, if the defendant is
a natural person, or a domestic corporation, that he or it has
removed, or is about to remove, property from the state, with intent
Srcrions Sproratty APPLICABLE TO CoRPORATIONS. 653

 

‘5 The Code of Civil Procedure.

 

to defraud his or its creditors; or has assigned, disposed of, or
secreted, or is about to assign, dispose of, or secrete property with
the like intent; or where, for the purpose of procuring credit, or
the extension of credit, the defendant has, made a false statement
in writing under his own hand or signature, or under the hand or
signature of a duly authorized agent, made with his knowledge

and acquiescence as to his financial responsibility or standing.
* * * * * * *

(Thus amended by L. 1894, ch. 736; L. 1899, ch. 598.)

A debt due from a foreign corporation to a non-resident debtor cannot
‘be attached at the instance of a resident creditor of the latter. (Wood
-y. Furtick, 17 Misc., 561.) An attachment proceeding is dependent for its
‘validity upon the presence of the res, the debt, within the jurisdiction of
the court; and the situs of a debt is at the place of residence of the
-ereditor; such residence of a corporation is within the’ domain of the
sovereignty which created it. (Id., Douglas v. Phenix Ins. Co., 188 N. Y.,
209.)

Mere averment of facts as upon personal knowledge, in an affidavit
made to procure an attachment, is not sufficient unless circumstances
‘are stated from which an inference can fairly be drawn that the affiant

has personal knowledge of the facts which he alleges, (Hoormann v. Cli-

‘max Cycle Co., 9 App. Div., 579; 41 N. Y. Supp., 710; affg. 17 Misc. 734.)

Where a creditor of a corporation procures an attachment and its levy,
prior. to the appointment of a receiver of the corporation, the property
passes to the receiver subject to the lien of the attachment, and the pos-
session is in the sheriff and not in the receiver. (Bennett v. Complete
Electric Construction Co., 8 App. Div., 301.)

An affidavit made by the assignee of a claim, who is not alleged to
thave been otherwise connected therewith, although positively stating the
mon-residence of defendant and the facts constituting the cause of action,
-will be presumed to have been made upon information and belief, and
is sufficient to authorize the granting of an attachment. (Winstein v.
.Climax Cycle Co., 18 Misc., 88.)

Although the Code of Civil Procedure provides in what cases attach-
ments may be issued, and what must be shown by the plaintiff to entitle
him thereto, yet such provisions are not exclusive, and it is entirely within
‘the province of the Legislature to affix other conditions to the right of
persons in the State of New York to invoke such remedies. (Sawyer
Lumber Co. v. Bussell, 84 Hun, 114.) As a remedy by attachment is a
step in an action the provisions of section 15 of the General Corporation
Law apply. (Id.)

The papers upon which a. foreign ‘eorporation doing business in the
State of New York, in relation to a transaction arising in such State,
procures an attachment, must show, for the purposes of the attach-
ment, that the corporation has complied with section 15 of the General.
Corporation Law, and if such fact does not appear in the papers upon
which the warrant of attachment was granted, the omission of such
allegation is legal cause for vacating the attachment. (Sawyer Lumber
Co. v. Bussell, 84 Hun, 114.)
654 Sxcrions Specratty APPLICABLE TO CORPORATIONS.

 

The Code of Civil Procedure.

 

The power of the court to reach by its process the property of a foreign.

' 2orporation within the limits of this State, depends entirely upon stat-.
utory enactment, and does not proceed from any inherent or generar
jurisdiction which the court possesses. Therefore, where such right is
created by statute, the conditions therein attached to its exercise must.
be fulfilled, and they must appear before the court obtains jurisdiction.
(Oliver v. Walter Heywood Mfg. Co., 10 N. Y. Supp., 771; Sawyer Lum-
ber Co. v. Bussell, 84 Hun, 114.) Where the plaintiff in an action procures:
an attachment for a cause of action which arises in the State of New
York, it is necessary, in order that the court shall acquire jurisdiction,
that it shall appear that the plaintiff is a resident of the State. (Sawyer.
Lumber Co. v. Bussell, 84 Hun, 114; Smith v. Union Milk Co., 70 Hun,
348.) To maintain an attachment, issued with the complaint in an action
brought against a foreign corporation (which has neither been served
with process in the State nor has appeared in the action) to recover
damages for breach of contract, as against a motion by a subsequent:
attaching creditor, whose writ is in all respects regular, to vacate the
attachment upon the papers on which it was granted, such papers, if they
do not show that the plaintiff is a resident of the State, must show
either that the contract in suit was made within this State, or that the

cause of action arose therein. (Smith v. Union Milk Co., 70 Hun, 348.)
Unless the jurisdietional facts appear in the papers upon which a war-
rant of attachment is granted against a foreign corporation the attach-
ment must be set aside. The plain meaning of the Code is that it must
appear by affidavit that a cause of action of which the court has juris-
diction exists to the satisfaction of the judge granting the warrant,
(Ladenburg v. Commercial Bk. of Newfoundland, 87 Hun, 269.) The
‘provision of the Code regarding actions against foreign corporations is
not restrictive of the jurisdiction of the Supreme Court, but an enlarge.
ment thereof and does not infringe upon the constitutional provisions as
te the jurisdiction of said court. (Id.) In an action brought against a
foreign corporation commenced by attachment where the cause of action
arose without the State the Supreme Court has no jurisdiction unless the
plaintiffs: are residents of the State of New York. (Id.)
An attachment against a corporation will not be justified because of
fraudulent acts of the president in disposing of his individual property,’
(Central Nat. Bk. v. Fort Ann Woolen Co., 57 St. Rep., 316.)

Foreign corporation; attachment of unpaid subscription to.

§ 646. Under a warrant of attachment against a foreign cor-
‘poration, other than a corporation created by or under the laws of
the United States, the sheriff may levy upon the sum remaining
unpaid upon a subscription to the capital stock of the corporation,:
made by a person within the county; or upon one or more shares
of stock therein, held by such a person, or transferred by him, for
the purpose of avoiding payment thereof.

ee of interest in corporation.

 § 647. The rights or shares Which the defendant has in the
aoe of an association or corporation, together with the interests
Amendment of 1907.

{Insert facing page 655, White on Corporations, 6th edition.)

Laws of 1907, chapter 318, amends the Penal Code, section 648, ie adding
two new sentences at the end thereof, to read as follows:

* * * * The attachment may also ‘be levied upon «a right or interest,
present or future, to any of the property or estate of a deceased person which
tnay belong to the defendant and which could be legally assigned by him ae
degatee or distributee, whether the same exists by reason of the provisions
of a last will and testament admitted to probate at the time the attachment
is ‘granted, or by operation of the law in dase of the intestacy of the de-
pense. Levy of the attachment thereupon is deemed a levy upon, and a

wizure and attachment of, the rights and interests of the defendant at the
‘time of such levy, subject to the rights of the executor, administrator or
‘trustee of such estate to administer the same according to law.

Laws of 1907, chapter 318, amends the Penal Code, section 649, subd, 3, 4
fread as follows: , re

3. Upon other personal property, by leaving a certified copy of the warrant,
‘and a notice showing the property aitached, withthe person holding the
‘same; or, if it consists of a demand, other than as specified in the last sub-
fdivision, with the person against: whom it exists; or, if it consists of a
tight or share in the stock of an association or corporation, or interests or
jprofits thereon, with the president, or other head of the association or cor-
‘poration, or the secretary, cashier, or managing agent thereof, or if it con-
sists of a right or interest in an estate of a deceased person arising under
the. provisions of a will or under the provisions of law in case of intestacy.
with the executor or trontee under the will, or the administrator of the

estate,
18
Sections SprctaLLy APPLICABLE TO CoRPORATIONS. 655:

 

The Code of Civil Procedure.

-and profits thereon, may be levied upon, and the sheriff’s certificate:
_of the sale thereof entitles the purchaser to the same rights and.

privileges, with respect thereto, which the defendant had, when.
they were so attached.

Attachment of corporation bonds, notes, ete.

_ § 648. The attachment may also be levied upon a cause of
action arising upon contract; including a bond, promissory note, or-
other instrument for the payment of money only, negotiable or
otherwise, whether past due, or yet to become due, executed by a
foreign or domestic government, state, county, public officer, asso-
ciation, municipal or other corporation, or by a private person,
either within or without the state, which belongs to the defendant,.
and is found within the county. The levy of the attachment.
thereupon is deemed a levy upon, and a seizure and attachment of,
the debt represented thereby. \

/

Shares of stock; how attached.

§ 649. A levy under a warrant of attachment must be made as:
follows:
* * * & * * *

3. Upon other personal property, by leaving a certified copy
of the warrant, and a notice showing the property attached with the
person holding the same; or, if it consists of a demand, other than
as specified in the last subdivision, with the person against whom:
it exists; or, if it consists of right or share in the stock of an asso-
ciation or corporation, or interests or profits thereon, with the presi--

‘dent, or other head of the association or corporation, or the secre-
tary, cashier, or managing agent thereof.

The receiver of a corporation, appointed in proceedings for a voluntary
dissolution, is vested with title to the assets of the corporation upon
the making of the order appointing him, and no superior lien is obtained

_ by the levy of an attachment thereon between the making of such order
- and the taking of possession by the receiver. (Dickey v. Bates, 13 Misc.,.
489.)

Shares of stock attached; certificate by the corporation.

§ 650. Upon the application of a sheriff, holding a warrant of
attachment, the president or other head of an association or cor-
poration, or the secretary, cashier, or managing agent thereof, or
a debtor of the defendant, or a person holding property, including
a bond, promissory note, or other instrument for the payment of
money, belonging to the defendant, must furnish to, the sheriff a
certificate, under his hand, specifying the rights or number of
656 Sxotions Sprcratty APPLICABLE TO CORPORATIONS.

 

The Code of Civil Procedure.

 

shares of the defendant, in the stock of the association or corpora-
tion, with all dividends declared, or incumbrances thereon; or the
amount, nature, and description of the property, held for the bene-
fit of the defendant, or of the defendant’s interest in property so
held, or of the debt or demand owing to the defendant, as the case
requires.

Refusal of corporation to give information.

§ 651. Ifa person to whom application is made, as prescribed
in the last section, refuses to give such a certificate; or if it is made
to appear, by affidavit, to the satisfaction of the court, or a judge
thereof, or the county judge of the county to which the warrant is
issued, that there is reason to suspect that a certificate given by him
is untrue, or that it fails fully to set forth the facts, required to be
shown thereby; the court or judge may make an order, directing
him to attend, at a specified time, and at a place within the county,
to which the warrant is issued, and submit to an examination under
oath, concerning the same. The order may, in the discretion of
the court or judge, direct an appearance before a referee named
therein.

Foreign corporation; judgment enforceable only against attached
property.

§ 707. Where a defendant, who has not appeared, is a non-
resident of the State, or a foreign corporation, and the summons
was served without the State, or by publication, pursuant to an
order obtained for that purpose, as prescribed in chapter fifth of
this act, the judgment can be enforced only against the property
which has been levied upon, by virtue of the warrant of attach-
ment, at the time when the judgment is entered. But this section
does not declare the effect of such a judgment, with respect to the
application of any statute of limitation.

Certain actions against corporations entitled to preference.

§ 791. Civil causes are entitled to preference’ among them-
selves, in the trial or hearing thereof, in the following order, next
after the causes specified in the last section but one:

* * * * * * *

7. An action against a corporation or joint-stock association,
issuing bank notes or any kind of paper credits to circulate as
money, or by or against the receiver of such corporation or asso-
ciation. An action in which a county or town is sole-plaintiff or
defendant.
Sections SpEcraLty APPLICABLE TO CoRPoRATIONS. 657

 

The Code of Civil Procedure.

 

8. An action against a corporation founded upon a note or
other evidence of debt, for the absolute payment of money. An
action upon an undertaking given upon an appeal to the court of
appeals or to stay the execution on an appeal to the court of
appeals.

Member of corporation, admission by, as evidence.

§ 839. The admission of a member of an aggregate corpora-
tion, who is not a party, shall not be received as evidence against
the corporation, unless it was made concerning and while engaged
in a transaction in which he was the authorized agent of the
corporation. ’

Books as,evidence.

§ 929. Where a party wishes to prove an act or transaction of
a foreign corporation, the book or books of the corporation may be
used for that purpose, as presumptive evidence, whether any or all
of the parties are or are not members of the corporation.

Copies as evidence.

§ 930. If an original book is not produced at the trial, as pre-
scfibed in the last section, a copy thereof, or an entry therein, veri-
fied as prescribed in the next section, may be used, with like effect
as the original book; provided that the party, intending to use the
copy, gives the adverse party at least ten days’ notice of his inten-
tion, specifying briefly the nature of the evidence to be given.
But this and the next section do not apply, where the foreign cor-
poration is a party to the action, and seeks to prove its own act or
transaction, in its own behalf.

Verification of copy.

§ 931. The copy must be verified by the deposition, taken as
prescribed by law, or the oral testimony, taken at the trial, of the
person who made it, or-of a person who has examined and com-
pared it with the original book, or the entry therein. The witness
must testify that the copy produced. is correct; that he made it,
or compared it ‘with the original; and that he then knew that the
original book so copied, or containing the. entry, was the book of
the corporation; or that it was then acknowledged to him to be
such, by an officer or receiver of the corporation, or a person having
the custody thereof, naming the person who made the acknowledg-
ment; and he must specify where, and in whose custody, the
original was then kept.

42
‘658 Sxotions Sprcratty APPLICABLE TO CORPORATIONS.

 

The Code of Civil Procedure.

 

§ 1650. An action may be maintained, as prescribed in this
-article, by or against a corporation, or by or against an unincorpo-
rated association, as if it was a natural person, or such an action
may be maintained by or against the receiver or other successor of
any such corporation or association.

Complaint in action by or against a corporation.

§ 1775. In an action brought by or against a corporation, the
-complaint must aver that the plaintiff, or the defendant, as the
-case may be, is a corporation; must state whether it is a domestic
corporation or a foreign corporation; and, if the latter, the state,
country or government, by or under whose laws it was created. But
the plaintiff need not set forth, or specially refer to, any act or pro-
-eeeding, by or under which the corporation was created.

“When proof of corporate existence unnecessary.

§ 1776. In an action, brought by or against a corporation, the
plaintiff need not prove, upon the trial, the existence of the cor-
poration, unless the answer is verified, and contains an affirmative
-allegation that the plaintiff, or the defendant, as the case may be,
is not a corporation. !

A party who has entered into a contract with another, in which the
latter assumes to be and contracts as a corporation, is estopped from
denying the corporate existence. (U. S. Vinegar Co. v. Schlegel, 148
N. Y., 537.)

The corporate existence of a plaintiff is not put in issue by a mere
allegation in an answer that “defendant has no knowledge or informa-
tion sufficient to form a belief” as to the allegations of the complaint in
respect thereto; to raise such an issue there must be affirmative allega-
tions that plaintiff is not a corporation. (Snow, Church & Co. v. Hall,
19 Misc., 655.)

In an action for goods sold to a corporation, the latter cannot show,

‘ander a general denial, that it was not incorporated at the time of the .
-sale alleged; to authorize such proof the answer must affirmatively allege
‘the fact that the defendant was not a corporation. (Schmidt vy. Nelke
-Art Lithographic Co., 17 Misc., 124; revsg. 16 Misc., 300.)

-Misnomer, when waived.

§ 1777. In an action or special proceeding brought by or
-against a corporation, the defendant is deemed to have waived any
mistake in the statement of the corporate name, unless the mis-
nomer is pleaded in the answer, or other pleading in the defend-
ant’s behalf.

The fact that a writ of certiorari is directed to “The Board of Trustees
-of the New York and Brooklyn Bridge” instead of “The Trustees of the
Sections Sprcratty ApriicaBLeE To Corporations. 659

The Code of Civil Procedure.

=

-New York and Brooklyn Bridge” is not such a misnomer, where the cor-
porate name is correctly stated in the body of the petition, as will defeat
the proceeding, and the addition of the words “The Board of” may be
regarded as immaterial. (People ex rel. Fitzgibbons v. N. Y. & Brooklyn
Bridge, 1 App. Div., 186.)

Where a corporation, plaintiff in an action has misnamed itself in the
‘summons and complaint, it is no effectual ground of demurrer; the error
is merely formal and is amendable upon motion. (Empire State Sav. Bk.
v. Beard, 81 Hun, 184.)

Action against a corporation upon a note, etc.

§ 1778. In an action against a foreign or domestic corporation,
‘to recover damages for the non-payment of a promissory note, or
' other evidence of debt, for the absolute payment of money, upon
-demand, or at a particular time, an order, extending the time to
answer or demur, shall not be granted, except by the court, upon
notice to the plaintifi’s attorney. In such an action, unless the
defendant serves, with a copy of his answer, or demurrer, a copy of
an order of a judge, directing that the issues presented by the
pleadings be tried, the plaintiff may take judgment, as in case of
‘default in pleading, at the expiration of twenty days after service
of a copy of the complaint, either personally with the summons, or
upon the defendant’s attorney, pursuant to his demand therefor; or,
if the service of the summons was otherwise than personal, at the
expiration of twenty days after the service is complete.

Where a corporation defendant in an action upon a promissory note
fails to serve with its answer a copy of an order directing that the issues
be tried, the plaintiff may take judgment by default without returning
the answer with a notice calling attention to the failure to serve said copy
of order. (Watertown Nat. Bk. v. Westchester County Water Works Co.,
19 Misc., 685.) , ,

‘When foreign corporation may sue.

§ 1779. An action may be maintained by a foreign corpora-
tion, in like manner, and subject to the same regulations, as where
the action is brought by a domestic corporation, except as other-
wise specially prescribed by law. But a foreign corporation cannot
‘maintain an action, founded upon an act, or upon a liability or obli-
gation, express or implied, arising out of, or made and entered into
in consideration of, an act, which the laws of the State forbid a cor-
poration or association of individuals to do, without express author-
ity of law. This section does not affect the validity of a meeting of
the stockholders or directors of a foreign corporation, held within
the State, where such a meeting is authorized by the laws of the
State, country, or government, by or under which the corporation

a
660 Sxcrions Sprctatty APPLICABLE TO CORPORATIONS.

 

The Code of Civil Procedure.

is created, or of an act, done at such a meeting, which is not in
conflict with the same laws, or the laws of the State.

The right of a foreign corporation to sue in this State is not dependent
upon section 15, chapter 687 of the Laws of 1892. It is conferred by sec-
tion 1779 of the Code, giving the same rights of maintaining actions as.
are possessed by domestic corporations, except as otherwise specially
prescribed by law. Section 15 of the General Corporation Law only
prohibits actions upon contracts made by corporations in this State after
its passage until they shall have procured the necessary certificate of
authority. Actions upon contracts made by other parties and assigned
to the foreign corporation are not within the statute. (The O’Reilly,
Skelly & Fogarty Co. v. Greene, 18 Mise., 423.) The complaint in an action
brought by a foreign corporation need not allege the procurement of a
certificate of authority under section 15 of the General Corporation Law,
but the want of such certificate is matter of defense to be pleaded in
the answer. (Id.) Failure of the complaint in an action by a foreign
corporation to allege payment of the license fee of one-eighth of one per
cent, is not a demurrable defect. , (Id.)

When foreign corporation may be sued.

§ 1780. An action against a foreign corporation may be main-
tained by a resident of the State, or by a domestic corporation, for
any cause of action. An action against a foreign corporation may
be maintained by another foreign corporation, or by a non-resident,
in one of the following cases only:

1. Where the action is brought to recover damages for the
breach of a contract, made within the State, or relating to property
situated within the State, at the time of the making thereof.

2. Where it is brought to recover real property situated within
the State, or a chattel, which is replevied within the State.

3. Where the cause of action arose within the Statd,- except
where the object of the action is to affect the title to real property
situated without the State.

A contract made between two foreign corporations by a written order
mailed within the State and accepted in another State where one of the
corporations is domiciled is not a contract made within this State, as
the contract was not completed until the acceptance of the order; there-
fore a certificate, under section 15 of the General Corporation Law,
authorizing the vendor corporation to do business here was not necessary.
A cause of action based on a default in. paying for goods delivered in
this State on such contract arises here and can be maintained under sub-
division 3 of the foregoing section. (Shelby Steel Tube Co. v. Burgess
Gun Co., 8 App. Div., 444.)

Where a contract was made in the eity of New York for work to be
done in Illinois and payment was to be made in bonds without specifying
the place of delivery of such bonds, the presumption is that the bonds
Szcrionws Sprciatty APPLicaBLE To Corporations. 661

 

The Code of Civil Procedure. \

were to be delivered in New York, therefore the cause of action for their
non-delivery would be one coming under the third subdivision of the
foregoing section. (O’Brien v. Peoria Water: Co., 5 App. Div., 229.)

The City Court of New York has jurisdiction in an action where the
plaintiff resides within this State and the cause of action arises therein,
although the defendant is a foreign corporation, service upon it having
been made within the State. (Mass v. Cunard S. S. Co., 18 Misc., 379.)

The courts of this State may decline to exercise jurisdiction in an action
to enforce a contract between foreign railroad corporations for transporta-
tion to be performed in the State of their common domicile, and an injunc- ,
tion pendente lite, restraining violations of such contract, and thus
restricting the defendant to that extent in the exercise in that State of its
full corporate rights, should not be granted. (D., L. & W. R. R. Co. v.
N. ¥., S. & W. R. R. Co., 12 Mise. R., 231, and cases cited.) :

When, in an action against a foreign corporation, the status of the
plaintiff as a foreign corporation or non-resident is conceded or otherwise
ascertained, and the case is not one of class enumerated in section 1780,
the court must dismiss the action. (Gundlin v. Hamburg-American Packet
Co., 8 Mise., 291.) When the non-residence of the plaintiff in an action
against a foreign corporation does not affirmatively appear, and the evi-
dence in relation thereto is conflicting, the court may properly submit
that question to the jury. (Id.)

Where a contract between foreign corporations was not made in this
State, or the cause of action did not arise here, the voluntary appearance
of the defendant in an action on such contract does not confer jurisdic-
tion on the court. (Seiser Bros.’ Co. v. Potter Produce Co., 62 St. Rep.,
69; 23 Civ. Pro. Rep., 348.)

See Waton v. Boston Woven Cordage Co., 75 Hun, 115; and Robeson v.
Cent. R.- R. Co. of N. J., 76 Hun, 444.

Action by attorney-general.

§ 1948. The attorney-general may maintain an action, upon
his own information, or upon the complaint of a private person in
either of the following cases:

1. Against a person who usurps, intrudes into, or unlawfully
holds or exercises, within the state, a franchise, or a public office,.
civil or military, or an office in a domestic corporation.

* * * * * * *

3. Against one or more persons who act as a corporation within
the state, without being duly incorporated; or exercise within the
state, any corporate rights, privileges, or franchises, not granted to
them by the law of the state.

4. Against a foreign corporation which exercises within the
state any corporate rights, privileges or franchises, not granted to
it by the law of this state; or which within the state, has violated *
any provision of law, or, contrary to law, has done or omitted any

act, or has exercised a privilege or franchise, not conferred upon it
662 Sxcrrons Specratty APPLICABLE TO CoRPORATIONS. |

 

The Code of Civil Procedure.

 

by the law of this state, where, in a similar case, a domestic cor-
poration would, in accordance with section seventeen hundred and
ninety-eight of this act, be liable to an action to vacate its charter
and to annul its existence; or which exercises within the state any
corporate rights, privileges or franchises in a manner contrary to
the public policy of the state.

Subdivision 4 is new, added by L. 1896, ch. 962.

This section contemplates an action against individuals and not against
corporations. (People v. Equity Gas Light Co., 141 N. Y., 232; People ex
rel, Haberman v. James, 5 App. Div., 412.)

Ap action may be brought under the third subdivision of this section
for a perpetual injunction restraining ‘persons from transacting the busi-
ness of 2 corporation after the term for which the corporation was organ-
ized had expired, but in such action the corporation is not a proper
party. (People ex rel. Haberman v. James, 5 App. Div., 412.)

Under the foregoing section an action cannot be maintained in the
name of the people to close up the affairs of the corporation or to dis-
tribute its assets, as section 30 of the General Corporation Law provides
that when the existence of a corporation terminates its assets shall be
held by the directors as trustees for its creditors and stockholders with
full power to close up its affairs. (People ex rel. Haberman v. James, 5
App. Div., 412.) If such an action becomes necessary it should be brought
by a creditor or stockholder. (Id.)

An extension of the term of existence of a corporation cannot be ac-
complished by reincorporation under the provisions of section 4 of the
Business Corporations Law. (People ex rel. Haberman v. James, 5 App.
Div., 412.) It was not the purpose of said section to give to a corporation,
upon its reincorporation thereunder, any rights or franchises, other than
those which it had, and which it had exercised, under the laws pursuant
to which it was incorporated. (Id.)

The attorney-general cannot maintain an action in the name of the
people against a corporation, either under the foregoing section or as a
matter of common law, to restrain the commission of a nuisance in a
city street, where local officials have authority to protect the street.
People v. Equity Gas Light Co., 141 N. Y., 232.) The jurisdiction of
a court of equity to abate an existing or prevent a threatened nuisance
upon application of the attorney-general, is limited to those public nuis-
ances which affect or endanger the public safety or convenience, and
require immediate judicial interposition, and where the relief sought may
not with equal facility be obtained by other constituted authorities and
public officers. (Id.)

This section was intended as a substitute for the writ of quo warranto,
which would lie in every case where a franchise was unlawfully asserted
and used. (People v. Loew, 19 Misc., 248.)

Justices’ courts, actions in. /

§ 2865. An action cognizable by a justice of the peace, may
be brought by or against a corporation; by or against a natural per-
son in his own right; by or against a town or county officer in his’
Sections Sprcratty APPLICABLE To Corporations. 663,

The Code of Civil Procedure.

 

-official character; or by an xecutor, administrator, trustee of an

-express trust, or a receiver in supplementary proceedings.

-Justices’ courts; summons, service upon corporations generally.

§ 2879. Where the defendant to be served is a corporation, or
person, company or partnership doing business in another county
‘than that in which he or it resides, the summons may be personally
served upon it or him by delivering a copy thereof to an officer,
managing agent or person to whom a copy of the summons in an
action brcught against the corporation in the supreme court might
be delivered as prescribed in sections four hundred and thirty-one
and four hundred and thirty-two of this act, or, to any director,
managing agent or trustee of the corporation, person, partnership
-or company by whatever official title he or it is called. (

‘

(Thus amended by L. 1904, ch. 527.)

.Id.; special provision relating to railroad corporations.

§ 2880. Where the defendant to be served is a railroad cor-’
poration, and no officer thereof resides in the county, to whom a
-eopy of the summons may be delivered, as prescribed in the last
section, it may be personally served, by delivering a copy thereof
to a local superintendent of repairs; freight agent, agent to sell
tickets, or station keeper of the corporation, residing in the county ;
unless, at least thirty days before it was issued, the corporation had
filed, in the office of the clerk of the county, a written instrument,
designating a person residing in the county, upon whom process
to be issued by a justice of the peace against it, may be served ;
in which’case, the summons may be personally served by deliver-
: -ing a copy to the person so designated.
(Thus amended by L. 1900, ch. 511.)
664 Sxzcrtons Spectatty APPLICABLE TO CoRPORATIONS.

 

The Code of Civil Procedure.

 

Services of summons, relating to expréss companies.

§ 2881. Where the defendant to be seraed is a corporation,
association, partnership or person, doing business in the state as an
express company or an insurance company, and no person resides.
in the county to whom a copy of the summons may be delivered,
as prescribed in the foregoing section of this article, it may be per-
sonally served on the express company by delivering a copy thereof
to any local or general agent to receive freight or parcels, route:
agent, or messenger of the defendant, residing in the county, and
on an insurance company by delivering a copy thereof to any local
or general agent of the defendant, residing in the county; unless:
at least thirty days before it was issued, the defendant had filed:
in the office of the clerk of the county, a written instrument, desig-
nating a person residing in the county, upon whom process to be
issued by a justice of the peace against the defendant may be
served; in which case the summons may be personally served by
delivering a copy thereof to the person so designated.

§ 2. This act shall take effect September first, eighteen hundred
and ninety-five.

(Thus amended by L. 1895, ch. 349.)

Justices’ courts; service upon person designated.

§ 2882. Where a person ‘has been designated, as prescribed im
either of the last two sections and the designation has been re-

voked, or it appears, by affidavit or the return of the constable,
to whom a summons has been duly delivered for service, that the
person designated is dead, or has ceased to reside within the county 3
or that he cannot, after due diligence, be found within the county,
so as to deliver a copy of the summons to him; the original sum-
mons, or the second or third summons, issued as prescribed in.

the next section, may be served as if the designation had not
Sections Specratty APPLICABLE TO CorporaTions. 665

 

The Code of Civil Procedure.

 

‘been made. Such a designation may be revoked by a writing,
executed and filed in like manner as required for the purpose

of making the designation.
In action by foreign corporations security for costs may be required.

§ 3268. The defendant, in an action brought in a court of
record, may require security for costs to be given, az prescribed in
this title, where the plaintiff was, when the action nee commenced,
‘either

_ i, A person residing without the state; or if the action is
‘brought in a county court, or in-the city court of the city of New
York, the city court of Yonkers, or the justices’ court of the city
of ‘Albany, residing without the city or county, as the case may be,

wherein the court is located; or

2. A foreign corporation. * * *

*Corporation defined.

§ 3343. In construing this act, the following rules must be
«observed, except where a contrary intent is expressly declared in
the provision to be construed, or plainly apparent from the context

-thereof :

* * * * * * *

? is a corporation created by or

18. A “domestic corporation ’
‘under the laws of the State; or located in the State, and created by
-or under the laws of the United States, or by or pursuant to the
laws, in force in the colony of New York, before the 19th day of

: ‘April, in the year 1775. Every other corporation is a “foreign

corporation.”
See also the definition of a domestic corporation in the General Corpora:
“tion Law, § 3, subd. 5, ante.
‘THE CONDEMNATION LAW.

Laws or 1890, Cuaprer 95.

An Act to amend the Code of Civil Procedure.

CHAPTER TWENTY-THREE QF THE CODE OF CIVIL
PROCEDURE.

SvurpLreMENTAL PROCEEDINGS.

TITLE I.
PROCEEDINGS. FOR CONDEMNATION OF REAL PROPERTY.
Short title. \

Sxotion 3357. This title shall be known as the condemnation

law.

This chapter provides a complete system of practice in condemnation
proceedings. (Dansville & Mt. Morris R. R. Co. v. Hammond, 77 Hun,
39; Matter of Trustees 137 N. Y., 97; City of Syracuse yv. Stacey, 86 Hun,
450; Village of Canandaigua v. Bepedict, 13 App. Div., 602.)

Definitions.

§ 3358. The term “person,” when used herein, includes a
natural person and also a corporation, joint stock association, the
state and a political division thereof, and any commission, board,
board of managers or trustees in charge or having control of any
of the charitable or other institutions of the state; the term “real
property,” any right, interest or easement therein or appurtenances
thereto; and the term “ owner,” all persons having any estate, inter-
est, or easement in the property to be taken, or any lien, charge, or
incumbrance thereon. The person instituting the proceedings shall
be termed the plaintiff; and the person against whom the proceed-
ing is brought, the defendant.

(Thus amended by L. 1896, ch. 589.)

Proceedings.

§ 3359. Whenever any person is authorized to acquire title to
real property, for a public use by condemnation the proceeding for
that purpose shall be taken in the manner prescribed in this title.
PRockEeDINGs. 667

 

The Condemnation Law.

 

A proceeding by an owner of land taken for a public use to recover
compensation therefor and for resultant damage to his remaining prop-
erty is not one to recover upon a liability created by statute nor one “to
recover damages for an injury to property,” and hence it is not within
the six years’ limitation provided by subdivisions 2 and 3 of section 382
of the Code of Civil Procedure. (In re Clark v. Water Comrs. of Amster-
dam, 148 N. Y., 1; revsg. 74 Hun, 294.)

The clear intention of the Condemnation Law is to adapt the pro-
cedure, as far as practicable, to the ordinary procedure in actions and pro-
ceedings. The only material change is that the appellant must now go in
the first instance to the Special Term, and no longer has an option to
proceed first either at the Special or General Term. (Manhattan Ry.
Co. v. O'Sullivan, 6 App. Div., 571; aff’d 150 N. Y., 11.)

In construing statutes which are claimed to authorize the exercise of
the power of eminent domain, a strict construction is the rule. Such
statutes assume to call into active operation a power which, however
essential to the existence of the government, is in derogation of the
ordinary rights of private ownership, and of the control which an owner
usually has of his property. (City of Syracuse v. Stacey, 86 Hun, 441.)

The right to divert the waters from a natural stream can only be
acquired by virtue of the sovereign right of eminent domain and upon
making just compensation, which right it is in certain cases competent
for the Legislature to grant to corporations. (City of Syracuse v. Stacey,
86 Hun, 441.)

The Condemnation Law merely regulates the procedure for the_con-
demnation of property, and authorizes such procedure only when the
person instituting it has authority under some independent statute to
acquire the title to real property for public use. (Matter of Thomson, 86
Hun, 405.) ; :

The power of eminent domain which resides in the State as an attribute
of sovereignty is dormant until called into exercise by an act of the
Legislature. Until a statute authorizes an exercise of the power, it is
latent and potential merely, and not active or efficient, and the State can
neither exercise the prerogative, nor can it delegate its exercise, except
through the medium of legislation. Therefore, it is that wherever an
attempt is made, either by the officers of the State or by a corporation
organized for a public purpose, to take private property under the power
of eminent domain, the officers or body claiming the right must be able
to point to a statute conferring it. In the absence of statutory authority
private property cannot be invaded by this power, however strong may
be the reasons for the appropriation. In construing statutes which are
claimed to authorize the exercise of the power of eminent domain, a
strict, rather than a liberal, construction is the rule. Such statutes
assume to call into active operation a power which, however essential
to the existence of the government, is in derogation of the ordinary rights
of private ownership and of the eontrol which an owner usually has of
his property. (In re Poughkeepsie Bridge Co., 108 N. Y., 488; Matter of
Thomson, 86 Hun, 405.)

A proceeding cannot be maintained under the Condemnation Law unless
668 Perition; Wxart to Contain.

 

The Condemnation Law.

 

the party instituting it has authority under some independent statute to
acquire title to land for public use. (Matter of Thomson, 86 Hun, 405.)

Rural cemetery associations, whose certificate of incorporation or by-
laws do not exclude any person from the privilege on equal terms with
others of purchasing a lot or of burial in its cemetery, may constitu-
tionally secure the condemnation of lands for cemetery purposes. (Stan-
nards Corners Rural Cemetery Ass’n v. Brandes, 14 Misc., 270.)

Statutes delegating the right of eminent domain to corporations, being
in derogation of common right, are not to be extended by implication.
They must be strictly complied with, but are not to be construed so liter-
ally as to defeat the evident purpose of the legislature. (N. Y. & H. R.
R. Co. v. Kip, 46 N. Y., 546.) 6

The propriety of taking private property for a public use, is not a
judicial question, but one of political sovereignty, to be determined by
the Legislature, either directly or by delegating the power to public agents.
(People ex rel. Herrick v. Smith, 21 N. Y., 595.)

State lands under water may be acquired by condemnation proceedings.
(In re N. Y. Cable Co., 104 N. Y., 1, 48.)

Petition; what to contain.

§ 3360. The proceeding shall be instituted by the presentation
of a petition by the plaintiff to the supreme court setting forth the
following facts:

1. His name, place of residence, and the business in which
engaged; if a corporation or joint-stock association, whether foreign
or domestic, its principal place of business within the state, the
names and places of residence of its principal officers, and of its
directors, trustees or board of managers, as the case may be, and
the object or purpose of its’incorporation or association; if a politi-
eal division of the state, the names and places of residence of its
principal officers, and if the state or any commission or board of
managers or trustees in charge or having control of any of the
charitable or other institutions of the state, the name, place of resi-
dence of the officer acting in its or their behalf in the proceedings.

(Thus amended by L. 1896, ch. 589.)

2. A specific description of the property to be condemned and
its location, by metes and bounds, with reasonable certainty.

3. The public use for which the property is required and a con-
cise statement of the facts showing the necessity of its acquisition
for such use.

4, The names and places of residence of the owners of the
property; if an infant, the name and place of residence of his gen-
eral guardian, if he has one, if not, the name and place of residence
of the person with whom he resides; if a lunatic, idiot, or habitual
drunkard, the name and place of residence of his committee or
Perition; Wat to Contain. . 669

The Condemnation Law.

*

trustee, if he has one; if not, the name and place of- residence of
the person with whom he resides. If a non-resident, having an
agent or attorney residing in the state authorized to contract for the
sale of the property, the name and place of residence of such agent
or attorney; if the name or place of residence of any owner can not
after diligent inquiry be ascertained, it may be so stated with a
specific statement of the extent of the inquiry which has been made.

5. That the.plaintiff has been unable to agree with the owner
of the property for its purchase and the reason of such inability.

6. The value of the property to be condemned.

7. A statement that it is the intention of the plaintiff, in good
faith, to complete the work or improvement, for which the property
is to be condemned; and that all the preliminary steps required by
law have been taken to entitle him to institute the proceeding.

8. A demand for relief, that it may be adjudged that the public
use requires the condemnation of the real property described, and
that the plaintiff is entitled to take and hold such property’ for the
public use-specified, upon making compensation therefor, and that
commissioners of appraisal be appointed to ascertain the compensa- ,
tion to be made to the owners for the property so taken.

When a petition in condemnation proceedings is duly presented and
no sufficient cause in opposition is shown, it is the duty of the court to
/ make an order appointing commissioners to ascertain the compensation
to be made to the property owner, and, when their report comes in to be
confirmed by the court, the proper judicial action may be taken, either
in confirming it, or in setting it aside for irregularity or for error of law
in the proceedings. (In re Southern Boulevard R. R. Co., 146 N. ¥., 352.)

A petition made by a railway corporation under this section is defec-
tive in case it does not cqntain, as required by subdivision 7, ‘‘a state-
‘ment that it is the intention of the plaintiff in good faith to complete
the work or improvement for which the property is to be condemned.”
(Erie & Central N. Y. Ry. Co. v. Welch, 1 App. Div., 140.) Objections
may be taken orally to such a petition. (Id.)

If in the petition, three lots are incorporated in a single description
jt does dot make such lots a single entity or unit, if the fact be otherwise;
where there are three independent structures on the property, each lot
being used and held by itself, each is to be considered as a separate plot.
{In re Brooklyn El. R. R. Co., 87 Hun, 104.)

It is the petitioner’s duty to insert in the petition an accurate specific
description, with reasonable certainty, of the precise property rights
sought to be condemned, to the end that the proceedings shall comply
with the statute, and the property owner be enabled by the petition to
understand just what is sought to be taken from him and just what is
deft, if anything, after the property rights have been taken under the
proceedings instituted by the petition. (City of Syracuse v. Stacey, 86
Hun, 441.) ,
670 Petition ; PRESENTATION OF.

 

The Condemnation Law.

 

Objections to the regularity of the proceedings must be made upon the
presentation of the petition for the appointment of commissioners. (N. Y.
& E.R. R. Co. v. How., 177; In re N. Y., W. S. & B. Ry. Co. v. Watson,
64 How., 217; In re N. Y. & Jamaica R. R. Co. v. Wilson, 21 How.,
4384; In re Union El. Ry. Co., 8 N. Y. Supp., 813; 30 St. Rep., 164; see,
also, Roch., Horn. & Lack. R. R. Co. v. Hartshorn, 7 N. Y., Supp., 279;
26 St. Rep., 2538.) ,

The petition need not state whether it is an easement, or the fee of the
abutting owners in the street that is sought to be taken. (In re Met. El.
Ry. Co., 12 N. Y. Supp., 506; 86 St. Rep., 606.) Easements sought to be
acquired, which the petition designates as those “Which now are or
may be the subject of injury from a construction of said railroad or
incidental to its use,” are sufficienty described. (In re Brooklyn El.
R. R. Co. v. Nagel, 75 Hun, 590.) If it be irregular to join lands of differ-
ent owners in one petition the court may sever the cases. (Id.) One
petition to acquire lands of several owners is but one proceeding, and ~™
requires one appeal and one allowance of costs. (In re Prospect Pk. &
Cc. i. R. R. Co. v. Moynahan, 67 N. Y., 371.) The petition should disclose
the specific purpose to which. the land is to be applied. (In re N. Y. C.
& H. R. R. R. Co. v. Armstrong, 5 Hun, 86, aff’d other grounds, 66 N.
Y., 407.)

A description of the real estate to be acquired is not sufficient unless.
the land is so described as to show its location and the boundaries
thereof. (In re N. Y. C. & H. R. R. R. Co. v. Rau, 70 N. Y., 191.)

A statement that the petitjoner has not been able to acquire title to the
land because of the owner’s demand for unreasonable compensation, and
has not been able to agree with the owner, is sufficient. (In re Suburban
R. T. Co., 38 Hun, 553; In re N. Y., W. S. & B. Ry. Co. v. Watson, 64
How., 216; but see Met. El. Ry. Co. v. Dominick, 55 Hun, 198, as to the
statement on information and belief.) A petition which fails to state the
reasons for disagreement is defective. (In re Marsh, 71 N. Y., 316.)

As to petition when the road has already been constructed, see 55 Hun,
198; 12 N. Y. Supp., 506, supra.

It is a compliance with subdivision 7 of this section to embody in the
petition the phraseology of said subdivision. (Rochester Ry. Co. v. Rob-
inson, 133 N. Y., 242.) This section prescribes the method of judicial pro-
cedure in those cases where by virtue of the provisions of some other,
law, the exercise of the right of eminent domain has been conferred for
public purposes. (Id.)

A petition verified by the attorney for a railroad company was held to
have been verified by an officer thereof. (In re St. Law. & Adirondack
R. R. Co. v. De Camp, 183 N. Y., 270.) A general land agent having
eharge of the purchase of lands for the purposes of the company may
also verify the petition. (In re N. Y., Lack. & W. Ry. Co., 33 Hun, 148,
aff'd 98 N. Y., 664.)

Notice of presentation of petition; upon whom served.

§ 3361. There must be annexed to the petition a notice of the
time and place at which it will be presented to a special term of the
APPEARANCE oF Parrizs. 671.

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some portion of it is situated, and a copy of the petition and notice
must be seryed upon all the owners of the property at least eight
days prior to its presentation,

Service of petition and notice, how made.

§ 3362. Service of the petition-and notice must be made in the.
same manner as the service of a summons in an action in the
supreme court is required to be made, and all the provisions of
articles one and two of title one of chapter five of this act, which
relate to the service of a summons, either personally or in any
other way, and the mode of proving service, shall apply to the ser-
vice of the petition and notice. If the defendant has an agent or
attorney residing in this state, authorized to contract for the sale
of the real property described in the petition, service upon such
agent or attorney will be sufficient service upon such defendant.
In case the defendant is an infant of the age of fourteen years or
upwards, a copy of the petition and notice shall also be served upon
his general guardian, if he has one, if not, upon the person with
whom he resides. :

The word “residence” does not mean the place where the owner act-
ually was when served. So held where the owner had a “residence” in
this state but was in Europe at the time of service. (In re N. ¥. & O. M..
R. R. Co., 40 How., 335.)

Appearance for an infant, idiot, lunatic or habitual drunkard.

§ 3363. If a defendant is an infant, idiot, lunatic or habitual
drunkard, it shall be the duty of his general guardian, committee:
or trustee, if he has one, to appear for him upon the presentation
of the petition and attend to his interests, and in case he has none,
or in case his general guardian, committee or trustee fails to appear
for him, the court shall, upon the presentation of the petition and
notice, with proof of service, without further notice, appoint a
guardian ad litem for such defendant, whose duty it shall be to.
appear for him and attend to his interests in the proceeding, and,
if deemed necessary to protect his rights, the court may require a
general guardian, committee or trustee, or a guardian ad litem to
give security in such sum and with such sureties as the court may
approve. If a-service other than personal has been made upon any
defendant, and he does not appear upon the presentation of the
petition, the court shall appoint some competent attorney to appear
for him and attend to his interests in the proceeding.
672 APPEARANCE; ANSWER; VERIFICATION.

 

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Appearance of parties.

§ 3364. The provisions of law and of the rules and practice of
the court, relating to the appearance of parties in person or by
attorney in actions in the supreme court, shall apply to the pro-
ceeding from and after the service of the petition, and all subse-
quent orders, notices and papers. may be served upon the attorney
appearing and upon a guardian ad litem in the same manner and
with the same effect as the service of papers in an action in the
supreme court may be made.

A party putting in a general appearance and proceeding without objec-
tion submits himself to the jurisdiction of the court. (N. Y., L. & W. Ry.

Co. v. Scheu, 33 Hun, 148, aff’d 98 N. Y., 664; In re Roch., Horn. & L,
R. R. Co. v. Hartshorn, 7 N. Y. Supp., 279; 26 St. Rep., 253.)

Answer; contents.

§ 3365. Upon presentation of the petition and notice with
proof of service thereof, an owner of the property may appear and
interpose an answer, which must contain a general or specific denial
of each material allegation of the petition controverted by him,
or of any knowledge or information thereof sufficient to form a
belief, or a statement of new matter constituting a defense to the
proceeding.

The answer in the form prescribed by this section raises an issue, and
a corporation seeking to proceed must meet it by proof. (City of Syra-
cuse v. Benedict, 86 Hun, 343.)

The fact that a railroad corporation has, by virtue of a private con-
tract, surrendered its right to use steam on a small portion of its route,
and that it has violated such contract, is no defense in proceedings insti-
tuted by it to condemn lands shown to be necessary for its corporate
purpose. (Matter of Long Island R. R. Co., etc., 143 N. Y., 67.)

If the corporation has forfeited its corporate rights that fact may be
averred by the land owner in answer to the application. (In re Brooklyn,
W. & N. Ry. Co., 72 N. Y., 245; see In re'Kings Co. El. R. R. Co. v.
.Nathan, 105 N. Y., 97, 119.)

The mere fact that the land to be acquired is not needed for present
purposes is not necessarily a defense. (In re Staten Isl. R. T. Co., 103
N. Y., 251.) Nor that the company owns other lands claimed to be
equally available. (In re N. Y. C. & H. R. R. R. Co. v. Charlotte Iron
Works, 28 St. Rep., 64, aff'd 121 N. Y., 665.)

The intention of the company in good faith to construct and operate
the road may be put in issue. (In re Met. Transit Co. v. Mayor, ete.,
111 N. Y., 588.)

Verification of petition and answer.

§ 3366. A petition or answer must be verified, and the provis-
ions of this act relating to the form and contents of the verification
Triax or Issue; REFeree. 673

 

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of pleadings in courts of record, and the persons by whom it may be
made, shall apply to the verification.

Trial of issues; referee.

§ 3367. The court shall try any issue raised by the petition
and answer at such time and place as it may direct, or it may order
the same to be referred to a referee to hear and determine, and upon
such trial the court or referee shall file a decision in writing, or
deliver the same to the attorney for the prevailing party, within
twenty days after the final submission of the proofs and allegations
of the parties, and the provisions of this act relating to the form
and contents of decisions upon the trial of issues of fact by the
court, or a referee, and to making and filing exceptions thereto,
and the making and settlement of a case for the review thereof
upon appeal, and to the proceedings which may be had, in case
such decision is not filed or delivered within the time herein
required, and to the powers of the court and referee upon such
trial, shall be applicable to a trial and decision under this title.

Where, after a trial before a referee of the issues raised by an answer in
condemnation proceedings, a report has been made and judgment has
been entered dismissing the petition, with costs, but “ without prejudice to

’ the plaintiff’s right to begin other proceedings,’ an appeal therefrom by
the defendant will be dismissed. (Village of Canandaigua v. Benedict, 18
App. Div., 600.)

The burden is on the petitioner to show the necessity for acquiring the
property, its intention to complete the road, and its endeavor to acquire
by purchase. (In re Met. El. Ry. Co., 12 N. Y. Supp., 506; In re Staten I.
R. T. Co. v. Bechtel, 20 W. Dig., 15.) The burden is on the owner as to an
issue raised concerning petitioner’s incorporation. (Same v. Bodine, 38
Hun, 387; In re Roch., Horn. & Lack. R. R. Co: v. Babcock, 110 N. Y., 119.)

See, also, In re N. ¥. C. R. R. Co. v. Armstrong, 66 N. Y., 407; In re
‘Lockport & Buf. R. R. Co. v. N. ¥. ©. & H.R. R. R. Co., 77 N. Y., 557.

Other provisions applicable. :

§ 3368. The provisions of title one of chapter eight of this act
shall also apply to proceedings had under this title.

Amendment of petition; see In re Met. Transit Co., 45 Hun, 159, aff’d
111 N. Y., 588; In re Prosp. Pk. & C. I. R. R. Co. v. Moynahan, 67 N. Y.,
371; In re N. Y., W. S. & B. Ry. Co. v. Walsh, 89 N. Y., 453; In re Roch.,
Hornsv. & Lacka. Ry. Co. v. Babcock, 45 Hun, 126, aff’d other grounds,
110 N. Y., 119.

Appointment of a receiver of petitioner and his addition as a petitioner
does not affect the rights of either party. (In re Roch., Horn. & L. R. R.
Co. v. Hartshorn, 26 St. Rep., 753.)

43
674 JupemMENnt ; APPOINTMENT OF CoMMISSIONERS.

 

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Judgment; commissioners, appointment of.

§ 3369. Judgment shall be entered pursuant to the direction of
the court or referee in the decision filed. If in favor of the defend-
-ant the petition shall be dismissed, with costs to be taxed by the
-clerk at the same rates as are allowed, of course, to a defendant pre-

vailing in an action in the Supreme Court, including the allow-
-ances for proceedings before and after notice of trial. If the decis-
ion is in favor of the plaintiff, or if no answer has been interposed |
and it appears from the petition that he is entitled to the relief
-demanded, judgment shall be entered, adjudging that the condem-
nation of the real property described is necessary for the public use,
-and that the plaintiff is entitled to take and hold the property for
‘the public use specified, upon making compensation therefor, and
‘the court shall thereupon appoint three disinterested and competent
‘freeholders, residents of the judicial district embracing the county
‘where the real property, or some part of it, is situated, or of some
-eounty adjoining such judicial district, commissioners to ascertain
-the compensation to be made to the owners for the property to be
taken for the public use specified, and fix the time and place for
the first meeting of the commissioners. Provided, however, that in
-any such proceeding instituted within the first or second judicial
district, such commissioners shall be residents of the county where
the real property, or some part of it, is situated, or of some adjoin-
ing county. If a trial has been had, at least eight days’ notice of
‘such appointment must be given to all the defendants who have
appeared. The parties may waive, in writing, the provisions of this
-section as to the residence of the commissioners, and in that case
they may be residents of any county in the State. Where owners
of separate properties are joined in the same proceeding, or separate
properties of the same owner are to be condemned, more than one
set of commissioners may be appointed.
(Thus amended by L. 1895, ch. 530.)

A corporation by going into court and consenting to the appointment of
‘commissioners to_determine the damages alleged to have been sustained
by a landowner estops itself from thereafter raising any question as to
the authority of the court to make such appointment; and by thereafter
going before the commission and participating in its proceedings without
objection, and taking chances of a favorable result, it will not be per-
mitted, upon being disappointed, to raise the question of lack of authority
or of irregularity in the proceedings. (Akin v. Water Comrs. of Amster- *
dam, 82 Hun, 265.)

An application for appointment of commissioners should not be denied
‘because other companies having coincident routes have refused thetr
Oars or Comissionurs; Huarines; Report, eto. 675
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‘consent. Inability to procure the assent of land owners the statutory
prerequisite. (In re Thirty-fourth St. R. R. Co., 102 N. Y., 343.)

Where commissioners were appointed on consent of parties, and it sub-
‘Sequently appeared one of them was not a freeholder, held, that the
irregularity was waived. (In re N. Y., W. S. & B. Ry. Co. v. Hart, 35
Hun, 575.) The appointment of a comniissioner’s son as a station agent
‘by the company pending the proceedings is ground for setting aside an
appraisal. (Same v. Townsend, 36 Hun, 630; ste, also, Alb. Nor. R. R. Co.
v. Cramer, 7 How., 164; In re Buf., N. Y. & Phil. R. R. Co. v. McIntosh,
32 Hun, 289.)

The appointment of three commissioners who had been selected by the
parties discussed. (In re N. Y., Lacka. & W. Ry. Co. v. Bennett. 38 Hun,
‘639, aff'd 98 N. Y., 447; 40 Hun, 130, rev'd, 102 N. Y., 704.)

Allegations of the verified petition not denied by affidavits regarded as
‘sufficient for the order appointing commissioners. (In re N. ¥., L. & W.
Ry. Co., 99 N. Y., 12.)

The only case in which a defendant is entitled to costs upon the prelim-
‘inary hearing is when he succeeds in having the petition dismissed.
‘(Dansville & Mt. Morris R. R. Co. v. Hammond, 77 Hun, 39.) The proper
practice in condemnation proceedings considered. (Id.)

' ‘Oath of commissioners; hearings by; report; compensation.

§ 3370. The commissioners shall take anid subscribe the con-
.stitutional oath of office. Any of them may issue subpoenas and
.administer oaths to witnesses; a majority of them may adjourn the
proceeding before them, from time to time in their discretion.
Whenever they meet, except by appointment of the court or pur-
-suant to adjournment, they shall cause at least eight days’ notice of
such meeting to be given to the defendants who have appeared,
or their agents or attorneys. They shall view the premises
-described in the petition, and hear the proof. and allegations of the
‘parties, and reduce the testimony taken by them, if any, to writing,
.and after ‘the testimony in each case is closed, they, or a majority
-of them, all being present, shall, without unnecessary delay ascer-
‘tain and determine the compensation which ought justly to be made
by the plaintiff to the owners of the property appraised by them,
.and, in fixing the amount of such compensation, they shall not
make any allowance or deduction on account of.any real or sup--
‘posed benefits which the owners may derive from the public use,
for which the property is to be taken, or the construction of any
proposed improvement connected with such public use. But in
case the ‘plaintiff is a railroad corporation and such real property
-shall belong to any other railroad corporation, the commissioners
-on fixing the amount of such compensation, shall fix the same at
its fair value for railroad purposes. They shall make a report of
stheir proceedings to the supreme court with the minutes of the
676 Oars or Commissioners; Hrarinas; Report, ETO.

 

The Condemnation Law.

testimony taken by them, if any; and they shall each be entitled’
to six dollars for services for every day they are actually engaged
in the performance of their duties, and their necessary expenses,
to be paid by the plaintiff; Provided, That in proceedings within
the counties of New York and Kings such commissioners shall be
entitled to such additional compensation not exceeding twenty-five:
dollars for every such day, as may be awarded by the court.

(Thus amended by L. 1898, ch. 384.)

When compensation for private property taken for public use is ascer-
tained in the constitutional method, what review shall be permitted of
the determination of the jury or commissioners, within their jurisdiction,
rests in the discretion of the Legislature. (In re De Camp, 151 N. Y.,
557; revsg. 77 Hun, 478.) ;

Where it appears that there has been an almost unparalleled rise in
the value of similar property and the increase in value has not been
shared by the parcel to be taken, {ts failure ‘so to share in the increase
in value may properly be attributed to the construction and maintenance
of the railroad. (Manhattan Ry. Co. v. O’Sullivan, 6 App. Div., 571.)

In determining the measure of compensation to be awarded the commis-
sioners must take into consideration the availability of the property for
the use to which it is to be devoted by the party seeking its acquisition.
(Matter of City of N. Y.; Iselin et al., 85 Hun, 424.) The omission of the
word “ faithfully ” from the constitutional oath which the statute requires:
the commissioners to take is sufficient to invalidate the proceedings unless.
the parties can be held to have waived the objection by going on without
calling attention to the defect until the report was made. (Id.) Where
‘two of the commissioners appointed by the court were neither residents of
the county where the property was situated nor residents of some adjoin-
ing county, it was held that the claimants had notice by the order
appointing them and it did not affect the jurisdiction of the commission,
having been waived. (Id.)

A grant to a corporation by an abutting owner of a right to a portion
of the street and of the right to construct a railroad thereon, carries also-
the right to operate the road when constructed, and damages to the
‘grantor’s abutting property are not recoverable unless the road was
improperly constructed or negligently operated. (Conabeer v. N. Y. ©. &
H. R. R. BR. Co., 84 Hun, 34.)

When land is acquired by condemnation, an easement therein may be
reserved, with the consent of the owner, and its value may be considered
in determining damages. (Conabeer v. N. Y. C. & H. R. BR. RB. Co., 84.
Han, 34.)

Where-a railroad company had for more than twenty years occupied a
street under legislative ‘and municipal authority, it cannot be assumed,.
that for an award of one dollar, it intended to surrender its right in the
‘street. (Conabeer v. N. Y. C. & H. R. R. R. Co., 84 Hun, 34.)

Proof that values of real estate in the vicinity have gradually appre-
‘ciated, while those of property abutting upon an elevated railroad have
declined, is sufficient to show that such abutting property has sustained
substantial pecuniary damage from the maintenance and operation of the
road, (Courtney v. N. Y. Hl. R. R. Co., 10 Misc. R., 115; Johnson v.*
‘Same, id., 136.)

Where the fee of land already subject to the right of passage thereover
by owners of adjacent lots is taken from the owner, he is entitled to sucb
‘

Oats oF Commissioners; Hearines; Report, Ero. 677

 

a The Condemnation Law.

 

substantial damages as may be ascertained by measuring the effect upon
the value of his remaining property of the loss of the fee of the street,
and this rule is based upon the fact that the ownership of the fee of the
land in a street vests in the owner certain rights, of which he is deprived
by the taking of the fee of the land for street purposes. (Matter of Open-
ing 178d Street, 78 Hun, 487.)

A provision in a statute for a public improvement which authorizes
condemnation proceedings furnishes a sufficient provision for the payment
of compensation for land taken for such improvement. (Swikehard v.
Michels, 8 Misc. R., 568.) ‘

The report is to be signed by a majority of the commissioners, but all
need not be present at the signing. (In re Roch. & Gen. V. R. R. Co. v.
Beckwith, 10 How., 168.)

It is the duty of the commissioners to view the premises and hear the
proofs and allegations of parties. (In re N. Y¥., Lack. & W. Ry. Co. v.
Scheu, 33 Hun, 148, aff’d 98 N. Y., 664; Same v. Longwell, 68 How., 265;
Troy & Boston R. R. Co. v. Lee, 13 Barb., 169; In re N. Y. El. R. R. Co.,
29 St. Rep., 190; In re Kings Co. Hl. Ry. Co. v. Smith, 15 N. Y. Supp.,
516.) The order in which the commissioners shall proceed is entirely in
their discretion. (Alb. Nor. R. R. Co. v. Lansing, 16 Barb., 68.) ‘

The landowner has the right to open and close the argument. (In re
N. Y., Lack. & W. Ry. Co. v. Scheu, supra.) The commissioners must
hear all evidence which would be competent in a court on similar ques-
tions. (Roch. & Syr. R. R. Co. v. Budlong, 6 How., 467.) They are con-
trolled by established rules of evidence. (Troy & B. R. R. Co. v. Nor.
Turnpike Co., 16 Barb., 100; Utica, C. & 8. V. R. R. Co. v. Mening, 56
Barb., 456.) An error in receiving evidence is not cured by the certificate
of a commissioner that it did not affect the report. (In re N. Y., Lack. &
W. Ry. Co. v. Haskin, 29 Hun, 1.) Nor by a statement to that effect in
their report. (In re N. Y., W. S. & B. Ry..Co. v. Sutherland, 35 Hun,
260.) But errors occurring in the report of testimony may be corrected
by the commissioners. (Same v. Judson, 33 Hun, 293.) : P

As to damages, the proper inquiry is, what is the fair marketable value
of the whole property; what will be the fair marketable value of the
property not taken? The difference is the amount to be awarded. (In re
N. Y., Lack. & W. Ry. Co. v. Arnot, 27 Hun, 151; In re Utica, C. & S. V.
R. R. Co. v. Mening, 56 Barb.,.456; In re Gilbert El. Ry. Co., 38 Hun,
438; In re Pros. Pk. & C. I. R. R. Co. vs Sheehy, 24 Hun, 199; In re N. Y,,
tack. & W. Ry. Co. vy. Haskin, 29 Hun, 1.) Where plaintiffs occupied
premises for their business and there was no evidence to show any special
damage to that business, they are entitled to recover damages based upon
the rental, instead of the usable value of the property if they so elect.
(Woolsey v. N. Y. El. R. R. Co., 184 N. Y., 323.) The award for compen-
sation should include the value of the land taken, and in addition the
depreciation in value of that from which it is severed. (In re N. Y., W. S.
& B. Ry. Co. v. Duddleston, 29 Hun, 609; Same v. Sutherland, 35 Hun,
260; Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423; 6 How., 467; supra;
In re N. Y. C. & H. R. BR. R. Co. v. Met. Gas Lt. Co., 6 Hun, 149; Purdy
vy. Man. El. Ry. Co., 13 N. ¥. Supp., 295; In re B’klyn El. R. R. Co., 55
Hun, 165; Newman v. Met. El. Ry. Co., 118 N. Y¥., 618.) Inconveniences
678 Report; Conrirmine ox Serrine Aspe.

 

The Condemnation Law.

 

from noise, smoke, etc., may be taken into consideration in estimating
depreciation of balance. (Brooklyn Park Comrs. v. Armstrong, 45 N. Y.,
234; see, also, Kings Co. El. Ry. Co. v. Smith; Same v. Bryan 15 N. Y.,
Supp., 516; 89 St. Rep., 876.) The land must be appraised at its actual
value; a reservation of easements and privileges to the owner can not
be made. (Hill v. M. & H. R. R. Co., 7 N. Y., 152; see, also, In re Hartf.
& Conn. W. R. R. Co., 65°: How., 133.) An appraisal will not be set aside
as excessive unless the excess is plain and palpable on the evidence.
(In re N. Y., Lack. & W. Ry. Co. v. June. C. & R. R. Co., 27 Hun, 116.)

The corporation acquires am absolute right to the lands divested of any
inchoate right of dower of a wife. (Moore v. Mayor, etc., 8 N. Y., 110.)
The compensation to be made to a widow having a dower or life estate
should be determined. (Matter of William St., 19 Wend., 678.) Also com-
pensation to a mortgagee. (Matter of John St., 19 Wend., 659.)

Loss of business profits and good will are not substantial grounds for
damages. (Troy & Boston R. R. Co. v. Northern Turnp. Co., 16 Barb.,
100; In re N. Y., W. S. & B. Ry. Co. v. Cosack, 35 Hun, 633.) Appraisal
of leasehold estate, see same; also, In re N. Y. C. & H. R. R. R. Co. v.
Pierce, 35 Hun, 306; N. Y., W. S. & B. Ry. Co. v. Bell, 28 Hun, 426.)

A possible reverter of the land is never contemplated in the assessment
of damages. The appropriation is regarded as permanent and the dam-
ages are awarded upon that basis. (Miner v. N. Y. Cc. & H. R. BR. R. Co.,
123 N. Y., 242.)

The report of commissioners of appraisal will be upheld, unless it is so
clearly against the weight of the body of the evidence as to justify a
reversal for that reason. (Matter of City of Brooklyn to Acquire: Property
of Long Island Water Supply Co., 73 Hun, 499.)

Confirmation of report, or setting aside; final order; deposit of award.

§ 3371. Upon filing the report of the commissioners, any party
may move for its confirmation at a special term, held in the dis-
trict where the property or some part of it is situated, upon notice
to the other parties who have appeared, and upon such motion, the
court may confirm the report, or may set it aside for irregularity,
or for error of law in the proceedings before the commissioners, or
upon the ground that the award is excessive or insufficient. If the
feport is set aside, the court may direct a rehearing before the same
commissioners, or may appoint new commissioners for that pur-
pose, and the proceedings upon such rehearing shall be conducted
in the manner prescribed for the original hearing, and the same
proceedings shall be had for the confirmation of the second report,
as are herein prescribed for the confirmation of the first report. If
the report is confirmed, the court shall enter a final order in the
proceeding, directing that compensation shall be. made to the owners
of the property, pursuant to the determination of the commis-
sioners, and that'upon payment of such compensation, the plaintiff
shall be entitled to enter into the possession of the property con-
Report; Conrirmine or Serrine Asipe. 679

 

The Condemnation Law. i

 

demned, and take and hold it for the public use specified in the
judgment. Deposit of the money to the credit of, or payable to the
order of the owner, pursuant to the direction of the court, shall be
deemed a payment within the provisions of this title.

When the corporation instituting condemnation proceedings desires to
appeal from an award in favor of the owner for a substantial amount,
the corporation should not be.allowed to keep the property taken, and
also retain, during the pendency of the appeal, the amount of the award.
‘In such case the proper course is for the court to direct the corporation
to pay the amount of the award, and require the owner to give a bond in
a suitable amount, conditioned that if the order shall be reversed and a
new appraisal shall be made, under which a less sum shall be awarded
than had been awarded in the first instance, the owner will make resti-
tution to the corporation of the difference between the amount which the
owner shall receive under the existing order and that which he may
receive under the new order, if. the award shall be thereby reduced.
{Manhattan Ry. Co. v. O’Sullivan, 8 App. Div., 320.)

An order confirming the report of the commissioners is a final order,
and the question whether an appeal lies therefrom to the Court of
Appeals is a matter to be determined by that court. (Manhattan Ry. Co.
v. O'Sullivan, 8 App. Div., 320.)

The report of commissioners may be set aside for irregularity, error
of law, and because of an excessive or insufficient award, but if,
in such case, a new appraisal, is ordered, it will not be final and con-
clusive. (Manhattan Ry. Co. v. O’Sullivan, 6 App. Div., 571.) Such new
appraisal has the same effect as the original appraisal, and the pro-
ceedings for its confirmation are precisely the same as for the confirma-
tion of the first report. (Id.) In considering the proceedings of the
eommissioners, every intendment is in favor of their action; which is not
determined solely by the evidence, as they may view the premises to
assist them in reaching a conclusion. (Id.)

An award made by commissioners will not be set aside for inadequacy
or as excessive, unless it is palpably wrong in that respect. (In re
Brooklyn El. R. R. Co., 87 Hun, 88.) /

The fact that the construction and operation of an elevated railroad
creates discomfort to the occupier of residential property is not con-
clusive as to the right of the owner or occupant to a substantial award;
if the property has enhanced in value, in part. because of the construc-
tion and operation of the railroad, and the increase is sufficient to equal
the injury the property owner is entitled only to a nominal award. (In
re Brooklyn El. R. R. Co., 87 Hun, 88.)

Notice of motion for confirmation is only a step in the proceedings.
Service of the petition and notice of its presentation give jurisdiction,
and sustain the proceedings when attacked collaterally. (Allen v. Utica,
I. & EB. R. R. Co., 15 Hun, 80.) ‘

The default of a landowner‘upon the hearing before commissioners may.
be excused and the report set aside upon the motion to confirm the report.
(in re N. Y., L. B. & W. Ry. Co. v. Wolfe, 93 N. Y., 385.)
680 Orrrer to Purcuase.

The Condemnation Law.

 

The landowner may apply for confirmation of the report. (Bloomfield,
ete., Gas Lt. Co. v. Calkins, 62 N. Y., 386.)

Upon a motion to confirm the report a commissioner will not be allowed
to stultify himself by an affidavit that he signed without reading it.
(Roch. & Genesee Val. R. R. Co. v. Beckwith, 10 How., 168.)

After filing their report the commissioners have no power to amend.
(People ex rel. Mann v. Mott, 60 N. Y., 649.) But upon application the
court may amend or correct their report to conform to the facts. (N. Y.
& E. R. R. Co. v. Corey, 5 How., 177.)

It is not sufficient ground for sefting aside a report because the com-
missioners received from the corporation compensation for their services
in excess of the statutory allowance. (In re Staten Isl. R. T. R. R. Co. v.
Hamilton, 41 Hun, 392.)

A report must show error, fraud, misconduct or irregulerity to enable
the court to set it aside. (Rondout & Oswego R. R. Co. v. Field, 38 How.,
187; In re N. Y. C. & H. R. R. R. Co. vy. Cunningham, 64 N. Y., 60; In re
N. Y., Lack. & W. Ry. Co. v. Longwell, 63 How., 265; In re Buf., N. ¥. &
Phil. R. R. Co. v. McIntosh, 32 Hun, 289; In re N. Y. & Jamaica R. R.
Co. v. Wilson, 21 How., 484; In re N. Y. El. R. R. Co. v. Story, 41 Hun,
502; Alb. N. R. R. Co. vy. Cramer, 7 How., 164; In re Pros. Pk. & ©. TI.
R. R. Co., 85 N. Y., 489; In re N. Y., Lack. & W. Ry. Co., 102 N. Y., 704;
N. Y. C. R. R. Co. v. Marvin, 11 N. Y., 276; N. Y., W. S. & B. R. Co. y.
Gennet, 37 Hun, 317.) :

The exercise of this discretion may be reviewed at General Term. (In
re N. Y. C. & H. R. R. R. Co. v. Cunningham, 64 N. Y., 60.) And if a
substantial right is involved an appeal may be had to the Court of
Appeals. (In re N. Y. & H. R. R. Co., 98 N. Y., 13, 19; In re Pros. Pk.
& C. 1. R. R. Co., 85 N. Y., 489.) .

The court will not review the judgment of commissioners upon the
facts, except when gross inequality of values is developed, or the appraisal .
is made upon a wrong principle. (In re Mayor, etc., of N. Y., 99 N. Y.,
569; see, also, In re N. Y., W. S. & B. R. R. Go. v. Yates, 18 W. Dig,,
272.) Where the petitioner has fairly made out a case establishing that
the premises are necessary for its use, and the company has acted in good
faith and exercised a reasonable discretion, the court will not interfere,
(In re N. Y., Lack. & W. Ry. Co. y. Union S. Co., 35 Hun, 220.)

Offer to purchase and acceptance; costs and allowances.

§ 3372. In all cases where the owner is a resident and not
under legal disability to convey title to real property the plaintiff
before service of his petition and notice, may make a written offer
to purchase the property at a specified price, which must within ten
days thereafter be filed in the office of the clerk of the county
where the property is situated; and which can not be given in evi-
dence before the commissioners, or considered by them. The owner

‘may at the time of the presentation of the petition, or at any time
previously, serve notice in writing of the acceptance of plaintiff’s
offer, ‘and thereupon the plaintiff may, upon filing the petition,

'
Orrer to Purowase. 681

 

‘The Condemnation Law.

4

with proof of the making of the offer and its accertance, enter an
order that upoit payment of the compensation agreed upon, he may
enter into possession of the-real property described in the peti-
tion, and take and hold it for the public use therein specified. If
the offer is not accepted, and the compensation awarded by the
commissioners does not exceed the amount of the offer with interest
from the time it was made, no costs shall be allowed to either party.
If the compensation awarded shall exceed the amount of the offer
with intérest from the time it was made, or if no offer was made,
the court shall, in the final order, direct that the defendant recover
of the plaintiff the costs of the proceeding, to be taxed by the clerk
at the same rate as is allowed, of course, to the defendant when he
is the prevailing party in an action in the supreme court, including
the allowances for proceedings before and after notice of trial and
the court may also grant an additional allowance of costs, not
exceeding five per centum upon the amount awarded. The court
shall also direct in the final order what sum shall be paid to the
general or special guardian, or committee or trustee of an infant,
idiot, lunatic or habitual drunkard, or to an attorney appointed
by the court to attend to the interests of any defendant upon whom
other than personal service of the petition and notice may have
been made, and who has not appeared, for costs, expenses and coun-
sel fees, and by whom or out of what fund the same shall be paid.
If a trial has been had, and all the issues determined in favor of the
plaintiff, costs of the trial shall not be allowed to the defendant,
but the plaintiff shall recover of any defendant answering the.costs
of such trial caused by the interposition of the unsuccessful defense,
to be taxed by the clerk at the same rate as is allowed to the pre-
vailing party for the trial of an action in the supreme court.

 

As to offer to purchase property at a specified price and acceptance of
same, see Code, §§ 736-740.

This section providing that the court may grant the property owner
in condemnation proceedings an extra allowance not exceeding five per
cent upon the amount of the award does not extend to proceedings taken
under a subsequent special statute enacted to cover a case not within the
general law, and which prescribes an independent and materially dif-
ferent procedure and makes no provision for costs or allowances. (Mat-
ter of Brooklyn to acquire property, etc., of Long Island Water Supply
Co., 148 N. Y., 107; affg. 88 Hun, 176, which reversed 10 Misc., 650.)

The provision that if no offer is made the court shall in the final order
direct that the defendant recover the cost of the proceeding, and may
also grant an additional allowance, do not apply to a situation where
the defendants are under a legal disability to convey; under such circum-
stances an offer would be an idle ceremony, apd, therefore, the reason
voz eLbeMENt; Weir oF AssIsTaNce.

 

The Condemnation. Law.

 

for charging a plaintiff with costs for not making an offer entirely fails.
(Manhattan Ry. Co. v. McKee, 1 App. Div., 488.)

The provision in relation to costs and extra allowances applies to pro-
ceedings to take land under the Buffalo grade crossing act, chapter 345,
Laws of 1888. (Matter of Grade Crossing Comrs., 19 Misc., 230.)

Separate bills of costs should not be allowed in condemnation proceed-
ings to the petitioner against two persons answering where it was alleged
in the petitidn that such persons were co-partners, and owned the prem-
ises sought to be condemied as such, if such is found in the decision to
be the fact. (City of Syracuse v. Benedict, 86 Hun, 343.)

The court may, in its discretion, award costs to either party according
to the rate allowed for similar services in an action. (In re N. ¥., L. &
W. Ry. Co. v. Wagner, 26 Hun, 592.) An extra allowance can not be
granted. (In re R. & S. R. R. Co. v. Davis, 55 N. Y., 145.) Upon an
appeal by the petitioner from the order of confirmation the General Term
bas no power to award costs against the landowner. (In re N. Y., W. S.
& B. Ry. Co. v. Walsh, 94 N. Y., 287; see, also, In re Ulster & Del. R. R.
Co. v. Gross, 31 Hun, 83.)

Under this section when the plaintiff is entitled to the costs of the trial
of the issue made by the pleadings, the defendants are not deprived of.
their right to other taxable costs in the proceedings; an absolute right to
taxable costs is given to the defendant, of which he cannot be deprived
by the court, if an award is obtained greater than the offer made. (Mat-
ter of Manhattan Ry. Co. v. Taber, 78 Hun, 434.)

Judgment; enforcement thereof; writ of assistance.

§ 3373. Upon the entry of the final order, the same shall be
attached to the judgment roll in the proceeding, and the amount
directed to be paid, either as compensation to the owners, or for the
costs or expenses of the proceeding, shall be docketed as a judgment
against the person who is directed to pay the same, and it shall
have all the force and effect of a money judgment in an action in
the supreme court, and collection thereof may be enforced by exe-
cution and by the same proceedings as judgments for the recovery
of money in the supreme court may be enforced under the pro-
visions of this act. When payment of the compensation awarded,
and costs of the proceeding, if any, has been made, as directed in
the final order, and a certified copy of such order has been served
upon the owner, he shall, upon demand of the plaintiff, deliver pos-
session thereof to him, and in case possession is not delivered when
demanded, the plaintiff may apply to the court without notice,
unless the court shall require notice to be given, upon proof of such
payment and of service of the copy order, and of the demand and
non-compliance therewith, for a writ of assistance, and the court
shall thereupon cause such writ to be issued, which shall be exe-
cuted in the same manner as when issued in other cases for the
delivery of possession of real property.
ABANDONMENT oF PRocEEDINGS. 683

 

The Condemnation Law.

 

The fact that the order of confirmation had not been recorded did not
affect its conclusive character. (Oberfelder v. Met. El. Ry. Co., 188 N. Y.,
181.) Recording the original order is a compliance with the law. (Morgan
v. N. Y. & Mass. Ry. Co., 180 N. Y., 692.) The entry of the final order
fixes the date from which interest on the award must be computed.
(Trustees N. Y. & B. Bridge Co. v. M. E. Church, 45 St. Rep., 615.)

In an action against a company for an award a complaint, which con-
tains no allegation that the defendant had failed or omitted to pay the
award or was indebted to plaintiff, does not state a cause of action.’
(Lent v. N. Y. & Mass. Ry. Co. 130 N. Y., 504.)

The interest acquired by a railroad company in land condemned for the
use of its road is a permanent easement, and while it exists the com-
pany is entitled to the exclusive use, possession and control of the land.
(Roby v. N. Y. C. & H. R. RB. R. Co., 142 N. Y., 176.) The easement may
be abandoned, and the owner of the fee again become entitled to pos-

. Session, but this must be done by unequivocal acts, or by a non-user for
a long time. (Id.)

The interest acquired in lands by condemnation proceedings, whatever
its exact legal character, is scarcely less than a fee. (Vandermulen v.
Vandermulen, 108 N. Y., 195; see, also, Crowner v. Rome & Watertown
R. R. Co., 9 How., 457; In re N. Y. & H. R. R. Co., 98 N. Y., 12; In re
Hartford & Conn. W. R. R. Co., 65 How., 133.)

The plaintiff does not acquire any greater rights than were possessed
by the landowner who has been divested of title. (Anderson v. Roch.,
L. & N. F. R. R. Co., 9 How., 553.)

It has also been held that a company does not acquire the same unquali-
fied title and right of disposition, which individuals have in their lands.
(Alb. Nor. R. BR. Co. v. Brownell, 24 N. Y., 345.)

The easements acquired are permanent and remain vested in a con-
solidated company, even after the term of existence of the constituent
company which acquired them, has expired by limitation. (Miner v. N. Y.
Cc. & H. R. R. R. Co., 123 N. Y., 242.) As ‘to permanency of easements
acquired, see, also, Roby v. N. Y. C. & H. R. BR. R. Co., 142 N. Y., 176.’ As
to effect of extension of corporate existence upon the title to lands taken
by eminent domain, see Beal v. N. Y. C. & H. R. R. R. Co., 41 Hun, 172,
aff'd 119 N. Y., 635.

An award in condemnation prdceciings to the owner of a farm crossed
by the track of a railroad, does not deprive the owner of his right to
compel the railroad company to construct suitable crossings. (Beardsley
v. Lehigh Valley Ry. Co., 142 N. Y., 173.)

As to apportionment of amount of an award made for.a portion of
an unopened private street. (Pentz v. Shafer, 76 Hun, 209; see, also,
Matter of Opening Eleventh Av., 81 N. Y., 446.)

Abandonment and discontinuance of proceeding.

§ 3374. Upon the application of the plaintiff to be made at
any time after the presentation of the petition and before the expir-
ation of thirty days after the entry of the final order, upon eight
days’ notice of motion to all other parties to the proceeding who
684 ApprkAL FRoM Finas, OxrpEr; Sray.

 

The Condemnation Law.

 

have appeared therein or upon an order to show cause, the court
may, in its discretion, and for good cause shown, authorize and
direct the abandonment and discontinuance of the proceeding, upon
payment of the fees and expenses, if any, of the commissioners,
and the costs and expenses directed to be paid in such final order,
if such final order shall have been entered, and upon such other
terms and conditions as the court may prescribe; and upon the
entry of the order granting such application and upon compliance
with the terms and conditions therein prescribed, payment of the
amount awarded for compensation, if such compensation shall have
been theretofore awarded, shall not be enforced, but in such case,
if such abandonment and discontinuance of the proceeding be
directed upon the application of the plaintiff, the order granting
such application, if permitting a renewal of such proceedings, shall
provide that proceedings to acquire title to such lands or any part
thereof shall not be renewed by the plaintiff without a tender or
deposit in court of the amount of the award and interest thereon.

(Thus amended by L. 1894, ch. 475.)

Confirmation of the commissioners’ report prevents abandonment of
proceedings. (In re Rhinebeck & Conn. R. R. Co., 67 N. Y., 242.) Pro-
ceedings may be abandoned prior to the order of confirmation. (In re
N. Y., W. S. & B. Ry. Co. v. Thorne, 1 How., N. S., 190; In re Same v.
Watson, 18 W. Dig., 586; Ex parte N. Y., S. & B. R. R. Co., 4 Hun, 311.)
Upon an application for leave to abandon proceedings, the court may fix
such terms as justice and fairness require. (1 How., N. S., 190, above; In
re Waverly Water Works Co., 85 N. Y., 478; see, also, In re N. Y., W. S.
& B. Ry. Co. v. Watson, 64 How., 218.)

Appeal from final order; stay.

§ 3375. Appeal may be taken to the general term of the
supreme court from the final order, within the time provided for
appeals from orders by title four of chapter twelve of this act; and
all the provisions of such chapter relating to appeals to the general
term from orders of the special term shall apply to such appeals.
Such appeal will bring up for review all the proceedings subse-
quent to the judgment, but the judgment and proceedings ante-
cedent thereto may be reviewed on such appeal, if the appellant
states in his notice that the same will be brought up for review, and
exceptions shall have been filed to the decision of the court or the
referee, and a case or a case and exceptions shall have been made,
settled and allowed, as required by the provisions of this aet, for
. the review of the trial of actions in the supreme court willigat a
jury. The proceedings of the plaintiff shall not be stayed upon

x
APPEAL FRoM Fina Oxprr; Stray. 685

 

The Condemnation Law.

 

such an appeal, except by order of the court, upon notice to him,
and the appeal shall not affect his possession of the property taken,
and the appeal of a defendant shall not be heard except on his
‘stipulation not to disturb such possession.

The decision of the County Court upon motion to confirm, modify or
vacate the decision of commissioners appointed to determine the necessity
of a highway is final and conclusive on the questions of necessity and
amount of compensation to the landowner, but is appealable as to ques-
tions of the power and jurisdiction of the County Court to make the
order. (Matter of De Camp, 151 N. Y., 557; revg. 77 Hun, 478.)

Commissioners appointed in condemnation proceedings are judges of
the law and the fact so far as relates to the compensation to be awarded
to landowners; when their report has been confirmed and the order of
confirmation has been affirmed by the General Term, no further appeal
can be taken. (In re Southern Boulevard R. R. Co., 143 N. Y., 253.)

The duty of the Appellate Division is similar to that of the Special Term,
for the reason that both courts are called upon to act in a, discretionary
manner. (Manhattan Ry. Co, v. O’Sullivan, 6 App. Div., 571.) When the
award of commissioners is set aside by the Special Term as excessive,
the Appellate Division has an inherent power to review the order. (Id.)
The case is treated as though the Special Term had confirmed the report
and as if the parties, who deemed the award excessive, were appeal-
ing. (Id.)

An order of the General Term, affirming an order of the Special Term,
confirming the report of commissioners, is not appealable when there
is presented only an error of law or fact, and no question as to the juris-
diction of the commissioners is raised. (In re Brooklyn Elevated R. R.
Co. v. Flynn, 147 N. Y., 344; reported below, 87 Hun, 104.)

Any person deeming himself aggrieved may appeal. (N. Y. & H. R. R.
Co. v. Corey, 5 How., 177.) An appeal from the appraisal and report
may be had, but not from the order of confirmation. (In re N. Y., W. 8.
& B. Ry. Co. v. Hart, 35 Hun, 575; see, also, In re Met. El. Ry. Co. v.
Bache, 57 Hun, 130; Inre N. Y., W. S. & B. Ry. Co. v. Lang, 33 Hun, 231.)
The court will not direct a new appraisal unless it appears that error
has injuriously affected the party appealing. (N. Y. C. R. R. Co. v.
Marvin, 11 N. Y., 276; T. & B. R. R. Co. v. Lee, 13 Barb., 169; In re B.,
H. T. & W. Ry. Co. v. Turnbull, 31 Hun, 461.) The rule which deprives
a party of the right to appeal from an order or judgment under which
he has taken a benefit, does not apply to these proceedings. The land-
owner is not estopped from appealing by accepting pay for the land and
giving receipt therefor. (In re N. Y. C. & H. R. R. R. Co., 98 N. Y., 12;
In re N. Y., W. S. & B. Ry. Co. v. Walsh, 94 N. Y., 287.) And when the
company obtains a confirmation of the report it is not thereby estopped
from appealing to review the commissioners’ report. (Met. El. R. Co. v.
Levy, 36 St. Rep., 606.) .

No appeal lies to the Court of Appeals from a General Term order con-
firming the commissioners’ report. (In re Met. El. Ry..Co., 128 N. ¥., 600;
In re N. Y. C. & H. BR. R. R. Co., 64 N. Y., 60; In re Kings Co. El. R. R.
Co., 82 N. Y., 100; In re D. & H. C. Co., 69 N. Y., 209; In re N. Y. C. R. R
686 AppEAL From JupemMenT; New APPRAIsaL.

 

The Condemnation Law.

 

Co. v. Marvin, 11 N. Y., 276; see, also, In re Southern Boulevard R. R. Co.,
141 N. Y., 532, and cases there cited; and, also, 143 N. Y., 253.)

For cases appealable to Court of Appeals, see In re Pros. Pk. & OG. I.
R. R. Co., 8 N. Y., 489; In re N. Y., L. E. & W. R. R. Co., 98 N. Y.,
447; In re N. Y. & H. RB. R. Co., 93 N, Y., 121.

While an award of the appraisers which has been confirmed by the
General Term is not reviewable by the Court of Appeals, yet if the Gen-
eral Term modify the award, by increasing or diminishing it, its action
is reviewable. (In re Trustees N. Y. & B’klyn Bridge, 187 N. Y., 96.)

Appeal by plaintiff from judgment in favor of defendant.

§ 3376. If a trial has been had and judgment entered in favor
of the defendant, the plaintiff may appeal therefrom to the general
term within the time provided for appeals from judgments by title
four of chapter twelve of this act, and all the provisions of such
chapter relating to appeals from judgments shall apply to such
appeals; and on the hearing of the appeal the general term may
affirm, reverse or modify the judgment, and in case of reversal may
grant a new trial, or direct that judgment be entered in favor of
the plaintiff. If the judgment is affirmed, costs shall be allowed
to the respondent, but if reversed or modified, no costs of the
appeal shall be allowed to either party.

New appraisal before the same or new commissioners.

§ 3377. On the hearing of the appeal from the final order the
court may direct a new appraisal before the same or new commis-
sioners, in its discretion, and the report of such commissioners shall
be final and conclusive upon all parties interested. If the amount
of the compensation to be paid is increased by the last report, the
difference shall be a lien upon the land appraised, and shall be paid
to the parties entitled to the same, or shall be deposited as the court
shall direct; and if the amount is diminished, the difference shall
be refunded to the plaintiff by the party to whom the same may
have been paid, and judgment therefor may be rendered by the
court, on the filing of the last report, against the parties liable to
pay the same.

The General Term may set aside and vacate the report of commis-
sioners for errors of law or of fact, and direct a new appraisal, in which
case the second report is “ final and conclusive upon all the parties inter-
ested,” except in case there is some irregularity in the proceedings affect-
ing the jurisdiction of the commissioners, or fraud, mistake or accident
of such a character as would authorize a court of equity to set aside a
judgment, a report of a referee or an award of arbitrators. (In re
Southern Boulevard R. R. Co., 143 N. Y., 253.)

Where an award of commissioners is reversed and a new appraisal
PRorerty ; CoMPENSATION FOR. 687

 

The Condemnation Law.

directed, and upon a second hearing a new award is made, the second
report is final and conclusive on all the parties interested, and no appeal
ies to the Court of Appeals from a General Term order affirming an order
of Special Term confirming the second report. (In re Southern Boulevard
R. R. Co., 141 N. Y., 582; In re Same, 128 N. Y., 98, and cases therein
cited.) This provision precludes as well a review by common law certior-|
ari as by appeal. (People ex rel. Schuylerville & U. H. R. R. Co. v.
Betts, 55 N. Y., 600.)

If the second report does not increase or diminish the amount of the
first award it need not be presented to the court for confirmation. (In re’
Pros. Pk. & C. I. R. R. Co., 85 N. Y., 489.) When the second. appraisal
diminishes the award the landowner, upon refunding the difference, must
pay interest only from the time the final report was confirmed and the
order served upon him or his attorney. (In re N. Y. El. R. R. Co. v.
Story, 44 Hun, 117.) The railroad company cannot avoid. the increased
award by changing its route. (Crowner v. R. & W. R. R. Co., 9 How., 457.)

Where the Court of Appeals reversed ‘the order appointing commis-
sioners after their report had been confirmed and new commissioners.
were appointed and their report confirmed in new proceedings, the report
of such new commissioners is not a second report within the terms of
the statute. (In re N. Y., W. S. & B. Ry. Co. v. Chrystie, 29 Hun, 646.)

For cases ip which new appraisals have been directed, see, In re N. Y.
El, R. R. Co. v. Story, 36 Hun, 427; In re N. Y., W. S. & B. Ry. Co. v.
Sutherland, 35 id., 260; In re Same v. Lang, 33 id.,-231; In re Same v.
Dudleston, 29 id., 609; -In re Same v. Bell, 28 id., 426; In re Same v.
Le Fevre, 27 id., 537; In re N. ¥., Lack. & W. Ry. Co. v. Bennett, 33 id.,
639; In re Same v. Haskin, 29 id., 1; In re Same v. Arnot, 27 id., 151;
Roch. & Sy. R. R. Co. v. Budlong,-6 How., 467; N. Y. & E. R. R. Co. v.
Coburn, 6 How, 223.

Conflicting claimants to compensation for property.

§ 3378. If there are adverse and conflicting claimants to the
money, or any part of it, to be paid as compensation for the prop-
erty taken, the court may direct the money to be paid into the court
by the plaintiff, and may determine who is entitled to the same,
and direct to whom: the same shall be paid, and may, in its dis-
eretion, order a reference to ascertain the facts on which such
determination and direction are to be made.

When commissioners are unable to determine to whom an award should
be made, it should be made to unknown owners. The title to the award
can be determined between the claimants in subsequent proceedings.
A nominal award because of failure to make title is erroneous. (In re
Dept. of Public Parks, 53 Hun, 280.)

This section is not unconstitutional. The money takes the place of
land, subject to the same liens as was the land before being taken. (In
re N. Y. C. & H. R. R. R. Co. v. Armstrong, 60 N. Y., 116.)

A claim by the county to a portion of the award for unpaid taxes upon

the property cannot be maintained on any ground which wou!d bé insuffi-
\

688 Properry ; Possession.

 

The Condemnation Law.

 

cient in a direct proceeding by virtue of the assessment to support a sale
of the property or uphold a tax title. (In re N. Y. C. & H.R. RK. R. Co.,
90 N. Y., 342.)

Continued possession of the property by plaintiff; conditions.

§ 3379. At any stage of the proceeding the court may authorize
the plaintiff, if in possession of the property sought to be con"
demned, to continue in possession, and may stay all actions or pro-
ceedings against him on account thereof, upon giving, security, or
depositing such sum of money as the court may direct to be held
as security for the payment of the compensation which may be
finally awarded to the owner therefor and the costs of the proceed-
ing, and in every such case the owner may conduct the proceeding
to a conclusion, if the plaintiff delays or neglects to prosecute the
same.

Where it appears that a village has forcibly taken and used a strip
of the highway for the purpose of laying water pipes and for the erection
of poles for electric power, and that the only steps which it has taken to
acquire the property consist in the fact that, a few days before its vio-
lent acts, it had begun condemnation proceedings, which were subse-
quently resisted by the landowner and were referred but not further
prosecuted by the village, the case presented is not one in which the court
should exercise the powers specified in the foregoing section and continue
the village in possession of the property. (Village of Canandaigua v.
Benedict, 8 App. Div., 475.) There is no statute which authorizes the
courts to protect a municipal corporation, having the right to acquire title
to property by condemnation, in the possession of property which it has
acquired by trespass, force or fraud. (Id.) The order, authorized by sec-
tion 3379, is not designed for the permanent protection of a corporation in
@ possession which it may have acquired even peaceably, but is designed
to temporarily protect its possession pendente lite, while it is actively
engaged in prosecuting a proceeding for the condemnation of the property.
Where the corporation has been guilty of laches in prosecuting the pro-
ceeding, such an order should be set aside. (Id.)

The purpose of this section is to provide a remedy for the protection
of the plaintiff's possession of property sought to be condemned during
pendency of the proceedings, but it does not authorize the court to grant,
after the order of confirmation has been entered, an order forever
restraining the defendants from maintaining actions in respect to the
property. (Manhattan Ry. Co. v. Taber, 78 Hun, 434.) When the final]
order has been entered and the award has been made or deposited, the
plaintiff is entitled to the possession of the property condemned, and the
defendants, in case they appeal, are required to stipulate not to disturb
the plaintiff's possession during the pendency of the appeal. (Id.)

This section does not apply where a corporation unlawfully entered
upon land, without claim or pretense of right, in defiance of the will of
the owner, under no mistake and no -color of authority, and thereafter
began condemnation proceedings to acquire title. (In re St. Law. &
Proce: pines; How Fixep. 689

 

The Condemnation Law.

 

Adirondack R. R. Co. v. De Camp, 183 N. Y., 270.) Constitutionality of
the section undetermined. (Id.)

Immediate possession after answer, when given.

§ 3380. When an answer to the petition has been interposed,
and it appears to the satisfaction of the court that the public inter.
ests will be prejudiced by delay, it may direct that the plaintiff be
permitted to enter immediately upon the real property to be taken,
and devote it temporarily to the public use specified in the petition,
upon depositing with the court the sum stated in the answer as
the value of the property, and which sum shall be applied, so far
as it may be necessary for that purpose, to the payment of the
award that may be made, and the costs and expenses of the pro-
ceeding, and the residue, if any, returned to the plaintiff, and, in
case the petition should be dismissed, or no award should be made,
or the proceedings should be abandoned by the plaintiff, the court
shall direct that the money so deposited, so far as it may be neces-
sary, shall be applied to the payment of any damages which the
defendant may have sustained by such entry upon and use of his
property, and his costs and expenses of the proceeding, such dam-
ages to be ascertained by the court, or a referee to be appointed
for that purpose, and if the sum so deposited shall be insufficient
to pay such damages, and all costs and expenses awarded to the
defendant, judgment shall be entered against the plaintiff for the
deficiency, to be enforced and collected in the same manner as a
judgment in the supreme court; and the possession of the property
shall ‘be restored to the defendant. \

A railroad company, having entered into a written agreement with a
landowner or his lessee to submit the question of damages to three arbi-
trators named in the agreement, cannot thereafter obtain an order under
the Condemnation Law authorizing it to take possession of the property
upon making a deposit. (Niagara Falls & Lewiston B. R. Co. v. Brundage,
7 App. Div., 445.). , &

This section provides for compensation to the landowner for any
damages sustained by the entry of the corporation, and is, therefore, con-
stitutional. (In re St. Law. and Adirondack R. R. Co. v. De Camp, 133
N. Y., 270.) ,

Notice of pendency of proceedings; filing in county clerk’s office; effect.

§ 3381. Upon service of the petition, or at any time afterwards
before the entry of the final order, the plaintiff may file in the
clerk’s office of each county where any part of the property is
situated, a notice of the pendency of the proceeding stating the
names of the parties and the object of the proceeding, and contain-

44
690 Oxsseor or Tittz; Repzarine Crauss.

 

The Gondemnation Law.

 

ing a brief description of the property affected thereby, and from
the time of filing, such notice shall be constructive notice to a
purchaser, or incumbrancer of the property affected thereby, from
or against a defendant with respect to whom the notice is directed

_ to be indexed, as herein prescribed, and a person whose conveyance
or incumbrance is subsequently executed or subsequently recorded,
is bound by all proceedings taken in the proceeding, after the filing
of the notice, to the same extent as if he was a party thereto. The
county clerk must immediately record such notice when filed in
the book in his office kept for the purpose of recording notices of
pendency of actions, and index it to the name of each defendant
specified in the direction appended at the foot of the notice, and
‘subscribed by the plaintiff or his attorney.

Court may make necessary orders to carry into effect the object of
this title.

§ 3382. In all proceedings under this title, where the mode or
manner of conducting all or any of the proceedings therein is not
expressly provided for by law, the court before whom such proceed-
ings may be pending, shall have the power to make all nceessary:
orders and give necessary directions to carry into effect the object
and intent of this title, and of the several acts conferring authority
to condemn lands for public use, and the practice in such cases shall
conform, as near as may be, to the ordinary practice in such court.

When application is made to suspend the operation of an injunction,
pending proceedings for condemnation, the applicdnt must show that such
proceedings were commenced without unreasonable delay and are prose-

cuted with reasonable diligence. (Jacquelin v. Manhattan Ry. Co., 9
Mise., R., 329; Youmans v. Same, 9 id., 329.)

See, also, Henney v. Brooklyn El. R. R. Co., 15 Hun, 543.

Repealing clause.

§ 3383. So much of all acts and part of acts as prescribe a
method of procedure in proceedings for the condemnation of real
property for a public use is repealed, except such acts and parts
of acts as prescribe a method of procedure for the condemnation
of real property for public use as a highway, or as a street, avenue,
or public place in an incorporated city or village, or as may pre-
scribe methods of procedure for such condemnation for any public
use for, by, on behalf, on the part,.or in the name of the corpora-
tion of the city of New York, known as the mayor, aldermen, and
commonalty of the city of New York, or by whatever name known,
or by or on the application of any board, department, commissioners
Ween Trrtz to Taxe Erreor. ’ 691

 

The Condemnation Law.

 

or other officers.acting for or on behalf or in the name of such cor-
poration or city, or where the title to the real property so to be
acquired vests in such corporation or in such city; and.all pro-
ceedings for the condemnation of real property embraced within
the exceptions enumerated in this section are exempted from the
operation of this title.

(Thus amended by L. 1890, ch. 247.)

t
When this title to take effect.

§ 3384. This title shall take effect on the first day of May,
one thousand eight hundred and ninety, and shall not affect any
proceeding previously commenced.
DISSOLUTION AND RECEIVERS.

PROVISIONS REGULATING DISSOLUTIONS AND
RECEIVERS OF CORPORATIONS.

 

_ Code of Civil Procedure.
/
TITLE XI.

ProorEpines For tHE Votuntary DissOLUrION OF A CorPoraTION.

Sxcrion 2419. When a majority of directors, etc., may petition for
dissolution.
2420. Id.; when they are equally divided.
2421. Contents of petition.
2422. Affidavit to be annexed. |
2423. Presentation of petition, etc; order to show cause,
2424, Order to be published.
2425. Id.; to be served on creditors and stockholders.
2426. Hearing. S
2427, Id.; original papers may be used.
2428. Application for final orders.
2429. Final order.
2430. Certain sales, etc., void.
2431. Certain corporations excepted from this title.

Dissolution, when majority of directors may petition for.

§ 2419. Ifa majority of the directors, trustees, or other officers,
having the management of the concerns of a corporation created by
or under the laws of the State, discover that the stock, effects, and
other property théreof are not sufficient to pay all just demands,
for which it is liable, or to afford a reasonable security to those who
may deal with it; or if, for any reason, they deem it beneficial to
the interest of the stockholders that the corporation should be dis-
solved, they may present a petition to the Supreme Court praying
for a final order dissolving the corporation, as prescribed in this
title.

(Thus amended by L. 1895, ch. 946.)

The amendment of 1895 took effect January 1, 1896.

For forms of petition, etc., see post, forms Nos. 121, 122,128.
‘Dissotution; Cause ror; Peririon. 693

 

Dissolution and Receivers.

 

Dissolution, when directors are equally divided.

§ 2420. Ifa corporation created under a general statute of the
state for the formation of corporations or under any special act or
charter has an even number of, trustees or directors who are equally
divided respecting the management of its affairs, or if the stock of
such corporation is equally divided into not more than two independ-
ent ownerships or interests, or if the entire stock of the corporation
is at that time owned by the trustees or directors who are even in
number or equally divided representing' the management of its affairs,
or if the stock is so divided that one-half thereof is owned or con-
trolled by persons favoring the course of part of the trustees or direct-
ors and one half thereof is owned by persons favoring the course of
the other trustees or directors the trustees or directors or the stock-
holders or one or more of them may present a petition as prescribed
in the last section. And it shall be the duty of a majority of the
directors or trustees of every corporation created by or under the
laws of this state to present a petition as prescribed in the last section
whenever directed so to do by a majority in interest of its, stockhold-
ers. But this section does not apply to a savings bank, a trust com-
‘pany, a safe deposit company, or a corporation formed to. rent safes
in burglar and fire-proof vaults, or for the construction or operation
of a.railroad, or for aiding in the construction thereof, or for carrying
on the business of banking or insurance, or intended to derive a profit

from the loan or use of. money.
(Thus amended by L. 1894, ch. 304, and L. 1896, ch. 569.) ;

If the petitioner, in a proceeding under the foregoing section for the
voluntary dissolution of a corporation having an even number of trustees
equally divided respecting its management, neglects or refuses, after a referee has
been appointed, to apply for a final order, as contemplated by section 2428 of this
chapter, it is competent for the court, on special application of any person inter-
ested, to direct the petitioner to move, so that the interests of all may be protected,
(In re Peekamose Fishing Club, 151 N. Y., 511.)

Petition for dissolution; contents.

§ 2421. The petition must show that the case is one of those
specified in the last two sections, and must state the reasons, which
induce the petitioner or petitioners to desire the dissolution of the
corporation. A schedule must be annexed to the petition, contain-
ing the following matters, as far as the petitioner or petitioners
know, or have the means of knowing the same:

1. A full and true account of all the creditors of the-corporation,
and of all unsatisfied engagements, entered into by, and subsisting
against, the corporation.

2. A ‘statement of the name and place of residence of each
ereditor, and of each person with whom such an engagement was
694 Perrnion ; AFFIDAVIT.

 

Dissolution and Receivers. ¢

 

made, and to whom it is to be performed, if known; or, if either is
not known, a statement of that fact.

3. <A statement of the sum owing to each creditor, or other
person specified in the last subdivision, and the nature of each debt,
demand, or other engagement.

4. A ‘statement of the true cause and consideration of the
indebtedness to each creditor.

5. A full, just, and true inventory of all the property of the
corporation, and of all the books, vouchers, and securities, relating
thereto.

6. A statement of each incumbrance upon the property of the
corporation, by judgment, mortgage, pledge, or otherwise.

7. <A full, just and true account of the capital stock of the cor-
poration, specifying the name of each stockholder; his residence, if
it is known, or if it is not known, stating that fact; the number of
shares belonging to him; the amount paid in upon his share, and
the amount still due ghecenpon.

Where a creditor of a corporation recovers judgment, issues an execu-
tion and levies upon its property, after a petition has been filed for its
voluntary dissolution, but before the appointment of a receiver of its prop-
erty in such proceedings, the creditor is entitled to hold the property levied
upon as against the receiver. (Matter of dissolution of Muehlfeld &
Haynes Piano Co., 12 App. Div., 492.)

If a technical and accidental omission in the schedules of some item of
property or some other omission to comply with this section of the Code
does not show a lack of good faith on the part of the petitioner or afford
evidence of any fraudulent purpose or any attempt to impose upon the
court, an objection to the sufficiency of such schedule does not go to the
jurisdiction of the court, and may be obviated by evidence. (Matter of
Murray Hill Bank, 9 App. Div., 546; In re Santa Eulalia Silver Mining Co.,
115 N. Y., 657.)

When the petition prays for a dissolution on the ground of the insol-
vency of the corporation, and the schedule shows a surplus instead of a
deficiency of assets, no case is made for the appointment of temporary
receivers of the property of the corporation. (In re Hitchéock Manfg. Co.,
1 App. Div., 164.) Upon a motion made to vacate the order appointing
temporary receivers, it is not permissible to show by the affidavits of
certain directors, submitted in opposition to such motion, that the former
valuation of assets shown by the schedule was erroneous, and that at the
time when the directors made their affidavits, a period four months later,
the corporation was insolvent. (Id.)

Petition for dissolution; affidavit to be annexed.

§ 2422. An affidavit, made by each of the petitioners, to the
effect that the matters of fact, stated in the petition and the sched-
ule, are just and true, so far as the affiant knows or has the means
of knowing the same, must be annexed to the petition and schedule.
Petition ; PRESENTATION OF. 695

 

Dissolution ,and Receivers.

 

Presentation of petition, et cetera; order to show cause; receiver.

§ 2423. The papers must be presented at a Special Term of the
Supreme Court, held within the judicial district, embracing the
county wherein the principal office of the corporation is located.
In a case specified in section two thousand four hundred and twenty
of this act the court may in its discretion entertain or dismiss the
application. Where it entertains the application, or where the
cause is one of those specified in section two thousand four hundred
and nineteen of this act, the court must make an order, requiring
all persons interested in the corporation to show. cause before it, or
before a referee designated in the order, at a time and place therein
specified, not less than six weeks after the granting of the order,
why the corporation should not be dissolved. The order must be
entered, and the papers must be filed, within ten days after the
order is made, with the clerk of the county where the principal
office-of the corporation is located. If it shall be made to appear
to the satisfaction of the court that the corporation is insolvent, the
court may at any stage of the proceedings before the final order,
,on motion of the petitioners on notice to the attorney-general, or
on motion of the attorney-general on notice to the corporation,
appoint a temporary receiver of the property of the corporation,
which receiver shall have all the powers and be subject to. all the
duties that are defined as belonging to temporary receivers
appointed in an action, in section one thousand seven hundred and
eighty-eight of this act. The court may also, in its discretion, at
any stage in the proceeding, after such appointment, upon like
motion and notice, confer upon such temporary receiver the powers
and authority, and subject him to the duties and liabilities of a
permanent receiver, or as much thereof as it thinks proper, except
that he shall not make any final distribution among the creditors
and stockholders, before final order in the proceedings, unless he
is specially directed so to do by the court. If such receiver be
appointed, the court may, in its discretion, on like motion and
notice, with or without security, at any stage of the proceedings
before the final order, grant an injunction, restraining the creditors
of the corporation from beginning any action against the said cor-
poration for the recovery of a sum of money, or from taking any
further proceedings in such an action theretofore commenced.
Such injunction shall have the same effect and be subject to the
same provisions of law as if each creditor upon whom it is served
was named therein.

(Thus amended by L. 1895, ch. 946; L. 1906, ch. 293.)

The amendment of 1906 reduced the time fixed in the third sentence
from three months to six weeks.
696 Petrrion; PRresENnTATION oF.
)

 

Dissolution and Receivers.

 

The receiver of an insolvent corporation may enforce the liability of its
trustees or directors to make good the loss occasioned to the company by
their misapplication of its assets, either by an action at law for damages
or by an action in equity for an accounting. (Mason v. Henry, 152 N. Y.,
529.) :

A court has no power, in proceedings for the voluntary dissolution of
a corporation, to order a general assignee of the corporation to deliver its
assets to a receiver of the corporation, appointed in such proceedings,
where, although such proceedings were begun before the date of the
general assignment, the receiver was appointed after that time, and where
the general assignee was not a party to the proceedings in which the
receiver was appointed. (Matter of Muehlfeld, 16 App. Div., 401.)

The court has no power to restrain creditors of the corporation from.
disposing of its bonds, held as collateral to loans under lawful contracts,
empowering them to sell. (In re Binghamton General Electric Co., 143
N. Y., 261.)

The proceeding for dissolution is purely statutory, and the restraining
power of the court is such as is given by the above section; the equity
power of the court does not extend to the sequestration of the property
of a corporation by means of a receiver. (In re Binghamton General
Electric Co., 143 N. Y., 261.)

The provisions c? the Code for voluntary dissolution of a corporation
apply to all corporations created by or under the laws of the State of New
York, and no exception from the operation of such provisions is made of a
banking corporation, the property or business of which have been taken
possession of by the superintendent of banks. By section 2423 of the
Code, the court is authorized, in its discretion, at any stage in the. pro-
ceeding, on motion of ‘ue petitioners on notice to the Attorney-General, or
on motion of the Attorney General on notice to the corporation, to appoint
a temporary receiver of the property of the corporation. (Matter of Mur-
ray Hill Bank, 9 App Div., 546; 41 N. Y. Supp., 914.) While the provisions
of the Code as to voluntary dissolution of corporations very likely apply
to banks, as well as other corporations, still they must give way in the
case of banks to those provisions of the Banking Law which are incon-
sistent or in conflict with them. It may be doubtful if the proceedings
for voluntary dissolution could be instituted at all under the provisions
of the Code, after the property and business of the bank had been taken
possession of, and were held by the Bank Superintendent, but even if
they could be, still the court had no power in such proceedings to appoint
receivers or compel the delivery of the property and assets of the bank to
such receivers without the consent of the Bank Superintendent. (Matter
of Murray Hill Bank, 9 App. Div., 554; 41 N. Y. Supp., 920.)

The question whether the Attorney General, not made a party to the
special proceeding, can appeal from an order appointing receivers, is one
not free from doubt. (Matter of Murray Hill Bank, 9 App. Div., 546.)

When the order appointing the receiver of a corporation does not restrain
the judgment creditor from prosecuting his action against the corporation,
his issue of an execution in such an action and a levy under it are proper
acts and cannot be construed to be a contempt of court. (Bennett v. Com-
plete Electric Construction Co., § App. Div., 301.)
/OxDER oF Court; Hearinas. 697

 

Dissolution and Receivers.

 

Where a temporary receiver has been appointed in proceedings for the
voluntary dissolution of a corporation, the court cannot, under the pro- _
vision empowering it to grant an injunction restraining the creditors of
the corporation “from beginning an action against the said corporation
for the recovery of a sum of money, or from taking any further proceed-
ings in such an action theretofore commenced,” restrain a suit to foreclose
a mortgage given by the corporation to a trust company to secure its
bonds; such an action is not one for the “recovery of a sum of money”
within the meaning of the Code of Civil Procedure. (Matter of Hamilton
aay Co., 1 App. Div., 375; In re Binghamton Gen. Blectric Co., 143 N. Y.,

-)

An action for the foreclosure of a mortgage is a suit in equity, and the
fact that, as an incident thereto, the court has jurisdiction, where such
relief is asked, to award a judgment for a deficiency, does not alter the
character of the action or bring it within section 2423 of the Code of
Civil Frocedure. (1 App. Div.; 375, supra.)

Order of court to be published.

§ 2424. A copy of the order must be published, as prescribed
therein, at least once in each of the three weeks immediately pre-
ceding the time fixed therein for showing cause, in the newspaper
printed at Albany, in which legal notices are required to be pub-
lished; and also in one or more newspapers, specified in the order,
published in the city or county wherein the order is entered.

See the Executive Law, L. 1893, ch. 248,§ 74.

‘Order to be served on creditors and stockholders. ;

§ 2425. A copy of the order must also be served upon each of
the persons, specified in the schedule as a creditor or stockholder
of the corporation, or as a person to whom an engagement of the
corporation is to be performed, other than a person whose residence
is stated to be unknown, or to be without the United States. The
service must be made either personally, at least ten days before
the time appointed for the hearing; or by depositing a copy of the
order, at least twenty days before the time so appointed, in the post-
office, inclosed in a postpaid wrapper, addressed to the person to
be served, at his residence, as stated in the schedule.

(Thus amended by L. 1906, ch. 293.)
The time for service was reduced in 1906 from twenty and forty days
to ten and twenty days, respectively.

Hearing on the order to show cause.

§ 2426. At the time and place. specified in the order, or at
the time and place to which the hearing is adjourned, the court, or
the referee, must hear the allegations and proofs of the parties, and
determine the facts. If a referee was not designated in the order
+o show cause, the court may, in its discretion, appoint a referee
when or after the order is returnable. The decision of the court,
or the report of the referee, must be in writing, and must be made
698 Hrarines; May Use Oriernat Papers; Finat Order.

Dissolution and Receivers.

and filed with all convenient speed. It must contain a statement of
the effects, credits and other property, and of the debts and other
engagements of the corporation, and of all other matters pertaining
to its affairs.

Hearing; original papers may be used.

§ 2427. The court or the referee is entitled to use, upon the
hearing, the original petition, and the schedules annexed thereto;
and the clerk must transmit them accordingly, upon the written
order of the judge, or of the referee. In that case, they must be
returned with the decision or report. The court may, at any stage
of the proceedings before final order, on the application of the peti-
tioners, or a majority of them, or on the application of the tem-
porary receiver, grant an order amending the schedules annexed to
the original petition, by the insertion of additional items, or by
making the statements or inventory fuller and in greater detail
than as originally filed, with the like effect as though said petition

and schedules had been originally presented and filed as amended.
(Thus amended by L. 1894, ch. 258.)

The amendments to a schedule permitted by this section contemplate
the insertion of ‘ additional items,” ‘“ making the statements or inven-
tory fuller and in greater detail than as originally filed,” and does not
contemplate « radical change of the statement of the value of the
assets. (In re Hitchcock Manfg. Co., 1 App. Div., 164.)

Application for final order.

§ 2428. Where the hearing is before a referee, a motion for a
final order must be made to the court, upon notice to each person
who has made himself a party to the proceedings, by filing with
the clerk, before the close of the hearing, a notice of his appearance,
in person or by attorney, specifying a post-office within the State,
where such a notice may be served. The notice may be served as
prescribed in this act, for the service of a paper upon an attorney
Finar Orper. 699

 

 

Dissolution and Receivers.

in an action. Where the hearing was before the court, a motion
for a final order may be made immediately, or at such a time and

upon such a notice as the court prescribes.

When the petitioner, in a proceeding under section 2420, supra, for the
voluntary dissolution of a corporation having an equal number of trus-
tees equally divided respecting its management, has filed a referee’s
report but does not apply for a final order, and all the parties appear
on an order obtained by one of them requiring the petitioner and the
other parties to show cause why a final hearing should not be had and
a dissolution denied, the court acquires jurisdiction, on notice to the
attorney-general, to make a final order dissolving the corporation, on
the default, on an adjourned day, of the party who moved for a denial
of dissolution, where the mofion was in effect an application for a final
hearing of the proceeding upon the merits. (In re Peekamose Fishing
Club, 151 N. Y., 511.)

Final order.

§ 2429. Upon an application for a final order, if it appear to
the court in a case specified in section twenty-four hundred and
“nineteen of this‘act, that the corporation is insolvent, or, in a case
specified either in that section, or in section twenty-four hundred
and twenty of this act, that, for any reason a dissolution of the cor-
poration will be beneficial to the interests of the stockholders and
not injurious to the public interests, the court must make a final
order dissolving the corporation, ‘and appointing one or more
receivers of its property. But in the case of a solvent corporation,
the court may if there is no objection by creditors, dispense with
a receiver and provide in 'the final order for the distribution of
the assets. Upon the entry of the order the corporation is dis-
solved. The court may, in its discretion, appoint a director, trus-
tee, or other officer, or a stockholder of the corporation, a receiver
of its property. Ina proceeding for the voluntary dissolution of a
corporation the court may, in the furtherance of justice, upon

notice to the attorney-general, and the attorney-general not object-

'
700 Crrtain Sates Vor, Etc.

 

Dissolution and Receivers.

 

ing, and upon such further notice to creditors or others interested
as the court shall direct, which notice may be made by mail upon
-all persons and corporations not residing or existing within the
State, relieve a receiver from any omission, defect or default, in
any proceeding or act required by law to be taken or done, or in
the giving of any notice required by law to be given, and the court
may upon like notice, confirm any act of a receiver, and any deci-
sion, report, order or judgment made in such proceeding.
(Thus amended by L. 1895, ch. 175; L. 1899, ch. 599.)

.
.

Certain sales void. .
§ 2430. A sale, assignment, mortgage, conveyance or other
transfer of any property of a corporation, made after the filing of
a petition as prescribed in this title, in payment of, or as security
for, an existing or prior debt, or for any other consideration; or a
judgment thereafter rendered against the corporation by confession, |
or upon the acceptance of an offer, is absolutely void, as against
the receiver appointed in the special proceeding, and as against’

the creditors of the corporation.

Where a just debt exists against an insolvent corporation, against
which an action is brought, the fact that the corporation fails to defend
is not alone sufficient to justify the inference that the judgment was
suffered with intent to give a preference, and a judgment so entered is
not invalid under section 2430. (Matter of Dissolution of Muehlfeld &
Haynes Piano Co., 12 App. Div., 492.)

Certain corporations excepted from this title. ‘

§ 2431. This title does not apply to an incorporated library
society, to a religious corporation, or to a select school ar academy
incorporated by the regents of the university, or by the legislature,
or to a municipal or other political corporation. In the case of
corporations affected by the provisions of this title and not having
stockholders, it shall be sufficient for the purposes of this title te
Receiver’s Commissions; AccounrING. 700-a

 

Dissolution and Receivers.

 

‘

notify, name and refer to the “ members” of such corporations

instead of “ stockholders ” as herein provided.

Commissions of receiver.

Ԥ 2481-a, A receiver appointed pursuant to this title is enti-
tled, in addition to his necessary expenses, to commissions, upon
the sums received and disbursed by him as the court by which or
the judge by whom he is appointed allows, as follows: On the first *’
twenty thousand dollars, not exceeding five per centum; on the
next eighty thousand dollars, not exceeding two and one-half per
centum; and on the remainder, not exceeding one per centum; but
in case the commissions of a receiver so computed shall not amount
to one hundred dollars, said court or judge may in his or its dis-
cretion allow said receiver such a sum not exceeding one hundred
dollars for his commissions as shall be commensurate with the ser-
vices rendered by said receiver.

(New, added by L. 1906, ch. 293.)

Final accounting.

§ 2431-b. A receiver appointed -under this title shall apply
within one year after qualifying as such for a final settlement of
his accounts and an order for distribution, or shall apply to the’
court upon notice to the attorney-general for an extension of time,
setting forth the reasons why he is unable to close his accounts,
which order may be granted in the discretion of the court. The
attorney-general or any creditor, or any party interested, may
apply for an order that the receiver show cause why an accounting
and distribution shall not be had at any time after the expiration
of one year after the receiver qualifies; and it shall be the duty of
the attorney-general after the expiration of eighteen months from.
‘ the time the receiver enters upon his duties, in case he has not
applied for a final settlement of his accounts, to apvly for such an

.
:700-b : Actions AGAINST Directors.

 

Dissolution and Receivers.

 

order on notice to such receiver. In case of such application by
a party other than the receiver the court shall direct the receiver
to take steps to account with all convenient speed. The receiver is
not required or authorized to file any account, except as herein
provided, except by special order of the court.

(New, added by L. 1906, ch. 293.)

TITLE II.
Actions RELATING To a CoRPoRATION.

Article 1. Action by a corporation, and action against a corporation,
to recover damages or property.

2. Judicial supervision of a corporation, and of the officers and
members thereof.

3. Actions to procure the dissolution of a corporation, and
actions to enforce the individual liability of the officers and
members of a corporation, with or without a dissolution,
thereof.

4, Action by the people to annul a corporation.

5. Provisions applicable to two or more of the actions specified
in this title.

" ARTICLE FIRST.

by
Action sy a Corporation, anp Action Against a CoRPoRATION, '
to Recover Damaers or PRrorerry.

(For text of sections under this article see provisions of Code of Civil
Procedure, §§ 1775-1780, ante, pages 563-565.)

ARTICLE SECOND.

JupiciaL SUPERVISION OF 4 CoRPORATION, AND OF THE OFFICERS
AND Mempers THEREOF. |
i

.

SEcTion 1781. Action against directors, etc., of a corporation for mis«
eonduct.
1782. By whom action to be brought.
1783. This article, how construed.

Action against directors for misconduct.

§ 1781. An action may be maintained against one or more
trustees, directors, managers, or other officers of a corporation, to
Amendment of 1907. ‘

_ Unsert facing page 701, White on Corporations, 6th edition.)

; fay of 1907, chapter 157, amends the Code of Civil Procedure, section
1781, subdivisions 1 and 2, and also adds a new subdivision numbered 7.
The subdivisions referred to read as follows: ,

1, Compelling the defendants to account for their official conduct, includ-
ing any neglect of or failure to perform their duties, in the management
and disposition of the funds ‘and property, committed to their charge.

2. Compelling them to pay to the corporation, which they represent, or to
its éreditors, any money, and the value of any property, which they have
acquired to themselves, or transferred to others, or lost, or wasted, by or
through ‘any neglect of or failure to perform or by other violation of their

duties.
i 2 * * * ‘ oF a * * * * * *

7, The court must, upon the application of either party, make an order
directing the trial by a jury of the issue of neglect or failure of defendants
to perform their duties; and for that purpose the questions to be tried’ must
be prepared and settled as prescribed in section nine hundred and seventy
of this act. f

The amendments took effect September 1, 1907)

19
Aorions Aearyst Directors. 701,

 

Dissolution and Regeivers.

procure a judgment for the following purposes, or so much thereof
as the case requires:

1. Compelling the defendants to account for their official con-
duct, in the management and disposition of the funds and property
committed to their charge.

2. Compelling them to pay to the corporation, which they
represent, or to its creditors, any money, and the value of any prop-
erty, which they have acquired to themselves or transferred to
others, or lost, or wasted, by a violation of their duties.

3. Suspending a defendant from exercising his office, where it
appears that he has abused his trust. .

4. Removing a defendant from his office, upon proof or con-
viction of misconduct, and directing a’new election to be held by
the body or board, duly authorized to hold the same, in order to
supply the vacancy created by the removal; or, where there is no
such body or board, or where all the members thereof are removed,
directing the removal to be reported to the governor, who may,
with the advice and consent of the senate, fill the vacancies.

5. Setting aside an alienation of property, made by one or more
trustees, directors, managers or other officers of a corporation, con-
trary to a provision of law, or for a purpose foreign to the lawful
business and objects of the corporation, where the alienee knew the
purpose of the alienation.

6. Restraining and preventing such an alienation, where it is
threatened, or where there is good reason to apprehend that it will
be made.

Under the provisions of this article an action may be brought by the
attorney-general in the name of the people, without a relator, against.
a domestic business corporation and its trustees to remove the latter
from their position, for misconduct, and to compel them to account for
and pay over to the corporation the value of property belonging to it
transferred by them to others in violation of their duty, whenever he
deems ‘that the action can be maintained and that the interests of the
public will be promoted thereby. (People v. Ballard, 134 N. Y., 269.
reversing 56 Hun, 125.)

A corporation cannot cease to exist of its own will; its life continues
unjil either the charter period has expired or the court has decreed a
dissolution. While a corporation may sell its property to pay debt:
to carry on its business, it cannot sell all its property in order to de; :
itself of existence. (People v. Ballard, 134 N. Y., 269; Abbott v. American
Hard Rubber Co., 33 Barb., 578; Blatchford v. Barber, 54 Barb., 42:
Copeland v. Citizens’ Gas Lt. Co., 61 Barb., 60; Smith v. N. Y. Cons.
Stage Co., 18 Abb. Pr., 419; Metropolitan El. Ry. Co. v. Manhattan Ry.

  
702 = Actions Against Directors; By Waom Brovear.

 

Dissolution and Receivers.

 

Co., 14 Abb. N. C., 303; Hartford & N. H. R. R. Co. v. Croswell, 5 Hill,
383; Taylor v. Earle, 8 Hun, 1; Mann v. Butler, 2 Barb. Ch., 362.)

A receiver appointed in an action against a corporation and certain of
its directors for waste of corporate assets, wrong doing and mismanage-
ment, and to prevent alienation of its property should not be continued
after judgment, nor creditors restrained from enforcing their rights,
where it appears that the offending directors have resigned and others
have been elected in their places. (Halpin v. Mutual Brewing Co., 91
Hun, 220.)

In an action by a stockholder or creditor to compel officers of a corpo-
ration to account for their official conduct in the management and dispo-
sition of the funds and property of the corporation, an interlocutory
judgment for an accounting cannot be entered until proof has been made
and official misconduct determined. (Stokes v. Stokes, 91 Hun, 605.)

Where moneys are advanced to a corporation by one of its officers, it
is not wrongful for the person making such advances to withdraw from
the corporation, when its treasury will permit, enough money to reim-
burse himself, and such a transaction does not expose the officer to an
action for misconduct. (Stokes v. Stokes, 91 Hun, 605.)

Where a corporation refuses to prosecute individual directors who are
alleged to have been guilty of an abuse of their trust, or of a misapplica-
tion of the funds of the corporation, and such directors are still in control,
stockholders are entitled to sue for redress in their own name. (Nash y..
Hall Signal Co., 90 Hun, 354.)

A cause of action for waste committed in one year by some of the
directors cannot be united with a cause of action for waste in another
year in which a portion of them did not participate. (Nash vy. Hall
Signal Co., 90 Hun, 354.)

Action, by whom to be brought.

§ 1782. An action may be brought, as prescribed in the last
section, by the attorney-general in behalf of the people of the State;
or, except where the action is brought for the purpose specified in
subdivision third or fourth of that section, by a creditor of the cor-
poration, or by a trustee, director, manager or other officer of the
corporation, having a general superintendence of jts concerns.

In an action brought by an officer and director of a corporation against
a co-director and the corporation under sections 1781 and 1782, to compel
such director to make restitution to the corporation for alleged violations
of trust, for the appointment of a receiver and for other relief, where it
appears that the plaintiff is entitled to some portion of the relief demanded
and that it is desirable that the existing status be continued, a temporary
injunction is a proper exercise of the discretion vested in the court, and
the court has power in such an action to appoint a receiver. (Piza v.
Butler, 90 Hun, 254.)

An action to compel an accounting and to restrain the alienation of
corporate property under the two foregoing sections does not contemplate
the distribution of the corporate assets among creditors nor a dissolution
of the corporation. (Halpin v. Mutual Brewing Co., 91 Hun, 220.)
SEQUESiRAIION; ACTION FOR. 703

 

Dissolution and Receivers.

 

This article, how construed. . =

§ 1788. This article does not divest or impair any visitorial
power over a corporation, which is vested by statute in a corporate
body cr a public officer.

 

ARTICLE THIRD.

Aorions to Procure THe DissoLution oF A CoRPORATION, AND
Actions to Enrorce tue Inpivipvat LiaBitity oF THE
Orricers on Members or a Corporation, WiTH or WiTHOUT
A Dissotution THEREOF. ;

Section 1784. Action by judgment creditor for sequestration, ete.

1785. Action to dissolve a corporation:

1786. Id.; by whom to be brought.

1787. Temporary injunction.

1788. Receiver may be appointed. Permanent and temporary
receiver. Powers! etc., of temporary receiver.

1789. Additional powers and duties may be conferred upon tem-
porary receiver.

1790. Making stockholders, etc., parties.

1791. When separate action may be brought against them.

1792. . Proceedings in either action.

1793. Judgment; property of corporation to be distributed.

1794. Id.; stock subscriptions to be recovered.

1795. Id.; as to liabilities of directors and stockholders.

1796. Effect of this article limited.

Sequestration, action for.

§ 1784. Where final judgment for a sum of money has been
rendered against a corporation created by or under the laws of the
state, and an execution, issued thereupon to the sheriff of the
county, where the corporation transacts its general business, or
where its principal office is located, has been returned wholly or
partly unsatisfied, the judgment creilitae may maintain an action
to procure a judgment, sequestrating the property of the corpora-
tion, and providing for a distribution thereof, as prescribed in sec-
tion one thousand seven hundred and ninety-three of this act.

Where a complaint shows that the officers and directors of a corporation
have made use of relations of trust and confidence to secure or promote
some selfish interest and asks for an accounting, a court of equity will
require an answer from the defendants in regard to the facts; but such
averments would not warrant a dissolution of the corporation under
sections 1784, 1785 and 1789 of the Code. (Watkins v. Watkins & Turner
Lumber Co., 11 App. Div., 517.)

=
é

104 Dissoxurion; OTHER Cavsks FoR.

 

Dissolution and Receivers.

 

A proceeding under this section is an equitable action, and a judgment
creditor of a corporation seeking to sequestrate its property to satisfy his
judgment may, if a fraudulent transfer of the corporate property is
alleged, join as purties defendant the persons who hold such property in
their possession. (Proctor v. Sidney Sash & Furniture Co., 8 App. Div., 43.)

Power of receivers in sequestration proceedings considered. (Bien v.
Bixby, 18 Mise., 415.) :

The courts of this State have no jurisdiction to appoint a receiver of a
foreign corporation for the purpose of winding up its affairs, nor to
sequestrate its property with a view to distribution pursuant to this
section. (Dreyfuss v. Seale, 18 Misc., 551.)

Where an answer is interposed and the complaint shows defendant to
.be a foreign corporation with its principal place of business in this State;
the recovery of judgments against it and return of unsatisfied executions
thereon; insolvency of the defendant; fraudulent disposition of its prop-
erty in this State and the necessity of a receiver to reclaim that property
for the benefit of the plaintiffs, judgment creditors, a cause of action is
disclosed to authorize the appointment of a receiver and the appropriation
of defendant’s property to the satisfaction of the judgments. (Dreyfuss v.
Seale, 18 Misc., 551.)

Dissolution, when action for, may be brought.

§ 1785. In either of the following cases, an action to procure
a judgment dissolving a corporation, created by or under the laws
of the state, and forfeiting its corporate rights, privileges and fran-
chises, may be maintained as prescribed in the next section:

1. Where the corporation has remained insolvent for at least
one year.

2. Where it has neglected or refused, for at least one year, to
pay and discharge its notes or other evidences of debt.

3. Where it has suspended its ordinary and lawful business for
at least one year.

4. If it has banking powers, or power to make loans on pledges
or deposits, or to make insurances, where it becomes insolvent or
unable to pay its debts, or has violated any provision of the act, by”
or under which it was incorporated, or of any other act binding
upon it.

The pendency of proceedings for a dissolution instituted by a majority
of the directors of a corporation is not a bar to the maintenance of uu
action by the attorney-general in the name of the people for substantially
the same relief. (People v. Murray Hill Bank, 10 App. Div., 328.)

While an action by the people for the dissolution of a corporation, and
one commenced by a majority of the directors under section 2419 of the
Code may be carried on at the same time, yet a judgment of dissolution

entered in one action operates as an abatement of the other. (In re
Murray Hill Bank, 14 App. Div., 318; 43 N. Y. Supp., 836.)
Dissototion ; Inguncrion. 705

 

Dissolution and Receivers.

 

A clear case of a violation of law, actual insolvency, and insufficiency
of assets not justifying the continuation of its business, or acts showing
‘that the affairs of the corporation are being carried on fraudulently or
unlawfully, must be presented before the court will appoint a receiver of
a mutual insurance company. (People vy. Equitable Mut. Fire Ins. Co.,
93 Hun, 84.)

The court has no general jurisdiction of an action brought for the disso-
lution ‘of a corporation; its power in that respect is derived solely from
the statute, and unless the complaint in an action brought to dissolve
the corporation shows the jurisdictional facts, the court has no power to
act, its decree is void, and the corporation still exists. (Osborn v. Mont-
elac Park, 89 Hun, 167.)

Where the jurisdictional facts are not alleged in a complaint for dis-
solution of a corporation, and judgment in such action is entered dissolv-
ing the corporation, the judgment may be treated as valid so far as it
relates to the sequestration of the property of the corporation, but so far
as it purports to dissolve the corporation it is a nullity. (Osborn v. Monte-
lac Park, 89 Hun, 167.) :

Action for dissolution, by whom to be brought.

§ 1786. An action specified in the last section may be main-
tained by the attorney-general in the name and in behalf of the
people; and whenever a creditor or stockholder of any corporation
submits to the attorney-general a written statement of facts, verified
by oath, showing grounds for an action under the provisions of the
last section, and the attorney-general omits, for sixty days after
this submission, to commence an action specified in the last section,
then, and not otherwise, such creditor or stockholder may apply to
the proper court for leave to commence such an action, and on
obtaining leave may maintain the same accordingly.

One or more members of a joint stock association may maintain an
action for its dissolution whenever a proper occasion arises rendering it
legitimately desirable to. wind up its affairs, and the right to bring such

an action is not confined to the attorney-general, as is the case where
it is sought to dissolve a corporation. (Snyder v. Lindsey, 92 Hun, 432.)

Temporary injunction.

§ 1787. In an action, brought as prescribed in this article, the
court may, upon proof of the facts authorizing the action to be
maintained, grant an injunction order restraining the corporation
and its trustees, directors, managers and other officers from collect-
ing or receiving any debt or demand, and from paying out or in
any way transferring or delivering to any person any money, prop-
erty or effects of the corporation, during the pendency of the
action; except by express permission of the court. Where the

45
106 Reortvers; Powxrs oF.

 

Dissolution and Receivers.

 

action is brought to procure the dissolution of the corporation, the
injunction may also restrain the corporation, and its trustees, direc-
tors, managers and other officers from exercising any of its cor-
porate rights, privileges or franchises, during the pendency of the
aetion; except by express permission of the court. The provisions
of title second of chapter seventh of this act, relating to the grant-
ing, vacating or modifying of an injunction order, apply to. an
injunction order, granted as prescribed in this section; except that
it can be granted only by the court.

Appointment of receivers; powers, etc., of temporary receiver.

-§ 1788. In such an action the court may also, at any stage
thereof, appoint one or more receivers of the property of the cor-
poration. A receiver so appointed, before final judgment is a tem-
porary receiver until final judgment is entered. A temporary
receiver has power to collect and receive the debts, demands and
other property of the corporation; to preserve.the property, and the
proceeds of the debts and demands collected; to sell or otherwise
dispose of the property as directed by the court; to collect, receive
and preserve the proceeds thereof; and to maintain any action or
special proceeding for either of those purposes. He must qualify
as prescribed by law for the qualification of a permanent receiver.
Unless additional powers are specially conferred upon him, as pre-
scribed in the next section, a temporary receiver has only the powers
specified in this section, and those which are incidental to the exer-
cise thereof. A receiver appointed by or pursuant to a final judg-
ment in the action, or a temporary receiver, who is continued by
the final judgment, is a permanent receiver and has all the powers
and authority conferred, and is subject to all the duties and liabili-
ties imposed upon a receiver appointed upon the voluntary dissolu-
tion of a corporation.

A temporary receiver of an insolvent corporation, appointed in an
action of sequestration, has power under the foregoing section to main-
tain an action to recover from a third party money collected by the
defendant under a judgment entered against the insolvent corporation
upon an offer made by it for the purpose of giving an unlawful preference;
and the insolvent corporation is not a necessary or proper party defend-
ant to such action. (Nealis v. Am. Tube & Iron Co., 150 N. Y., 42, affirm-
ing Nealis v. Am. T. & I. Co., 76 Hun, 220.)

A foreign judgment against a corporation, in an action in which it
appeared, obtained after the: appointment of a temporary receiver, is
valid, and such judgment is competent evidence to establish before the
referee, in this State, the existence of the indebtedness of the corporation.
(People v. Commercial Alliance Life Ins. Co. 5 App. Div., 273.) Until
Receivers; Powers of. 707

 

Dissolution and Receivers.

 

the corporation is dissolved by the entry of final judgment its ability to
sue and its liability to be sued remain, and are not affected by the
order appointing a temporary receiver. (Id.) The appearance of the
defendant may be established by an exemplified copy of the record in the
action showing that the defendant did appear by an attorney of the
court in which the action was pending. (Id.)

The receiver has no powers except such as are conferred by the order
of his appointment, by statutory provision and the course and practice
of the court. (Murray v. Cantor, as receiver, 18 Misc., 389; 20 Am. & Eng.
Ency. of Law, 111-118; Corey v. Long, 12 Abb. Pr. N. S., 427; Dickerson
v. Van Tine, 1 Sandf., 724; 2 Paige, 452.) A_receiver cannot appoint a
deputy without special order of the court. (Id.)

‘The title of a receiver in an action brought by the people to procure
the dissolution of a corporation, to the corporate assets relates back to
the commencement of the action, and the effect of the judgment of
dissqlution is to determine that the corporation was insolvent when the
action was begun. (Higgins, as receiver, v. Worthington, 90 Hun, 436.)

Where a receiver brings an action he will not be required to file security
for costs merely because, the corporation is insolvent, or because he has
no funds in his hands. It is necessary, in addition to the fact of insol-
vency, to show that the action was brought in bad faith or heedlessly,
or that the plaintiff wiN not probably succeed. (Hale v. Mason, 86
Hun, 499.) ;

An auxiliary receiver of a foreign corporation appointed in this State is
merely the custodian of the property within the State for preserving the

assets, that creditors may reach them without being compelled to go to a’

foreign jurisdiction to prove their claims, and has only the powers con-
ferred by the order appointing him. In seeking to set aside a fraudulent
transfer by a corporation, he acts, not for the corporation, but adversely
to its interests and as representing the creditors, and, conceding that he
might be authorized to maintain the action, would have to show a

judgment and execution returned unsatisfied, as against the corporation, ©

before he could maintain his.suit. (Buckley v. Harrison, 10 Mise. R., 683.)

Additional powers and duties of temporary receiver.

§ 1789. A temporary receiver, appointed as prescribed in the
last section, is, in all respects, subject to the control of the court.
In addition to the powers conferred upon him, by the provisions
of the last section, the court-may, by the order or interlocutory
judgment appointing him, or by an order subsequently made in the
action, or by the final judgment, confer upon him the powers and
authority, and subject him to the duties and liabilities of a perma-
nent receiver, or so much thereof as it. thinks proper; except that
he shall not make any distribution among the creditors or stock-
holders, before final judgment, unless he is specially directed so to
do by the court.

A temporary receiver of the property of a corporation appointed in
an action to dissolve such corporation has no powers other than those
 

708 Recutver; Actions sy, Acainst SrocKHOLDERS.

 

Dissolution and Receivers.

 

specified in sections 1788 and 1789; where he is not authorized by the court
or by the statute to continue the business or to dispose of the property
of the corporation, he has no authority to employ a truckman. (Meyer
v. Lexow, as receiver of F. J. Kaldenberg Co., 98 Hun, 116.) In such
ease if the receiver is liable at all, it is individually. (Id.)

The receiver is a mere custodian and manager of the property, under
the direction of the court, during the pendency of the action. (Herring v.
R. R. Co., 105 N. Y., 340.)

In addition to the general authority conferred upon temporary receivers
under section 1788 of the Code of Civil Procedure, they may obtain
special authority under this section. by an order of the Supreme Court
to conduct, institute and prosecute any and all proceedings that may be
necessary to redeem property from which a corporation has been dis-
possessed. (Bien, as receiver, v. Bixby, 18 Misc., 415.)

Making stockholders, directors, etc., parties defendant.

§ 1790. Where the action is brought by a creditor of a corpo-
ration, and the stockholders, directors, trustees, or other officers, |
or any of them, are made liable by law, in any event or contingency,
for the payment of his debt, the persons, so made liable, may be
made parties defendant, by the original or by a supplemental com-
plaint; and their liability may be declared and enforced by the
judgment in the action.

Separate actions against stockholders, directors, etc., when to be
brought.

§ 1791. Where the stockholders, directors, trustees, or other
officers of a corporation, who are made liable, in any event or con-
tingency, for the payment of a debt, are not made parties defend-
ant, as prescribed in the last section, the plaintiff in the action may
maintain a separate action against them, to procure a judgment,
declaring, apportioning and enforcing their liability.

A cause of action for injuries caused by negligence of a corporation

survives its dissolution, and the action may be maintained against its
directors. (Marstaller v. Mills, 148 N. Y., 398.)

Amount of liability, how determined.

§$ 1792. In an action, brought'as prescribed in either of the last
two sections, the court must, when it is necessary, cause an account
to be taken of the property and of the debts of the corporation, and
thereupon the defendants’ liability must be apportioned accord-
ingly; but, if it affirmatively appears, that the corporation is insol-
vent, and has no property to satisfy its creditors, the court may,
without taking such an account, ascertain and determine the
amount of each defendant’s liabilitv, and enforce the same
accordingly.
‘JUDGMENT oF DissoLuTIoN. 709

 

Dissdlution and Receivers.

 

Judgment of dissolution; distribution of property.

§ 1793. A final judgment in an action, brought against a cor-
. poration, as prescribed in this article, either separately or in con-
junction with its stockholders, directors, trustees, or other officers,
must provide for a just and fair distribution of the property of the
corporation, and of the proceeds thereof, among its fair and honest
. creditors, in the order and in the portions prescribed by law, in
ease of the voluntary dissolution of a corporation.
, If premises leased to a corporation are vacated before the expiration
of the term, on the appointment of a receiver in dissolution proceedings,
and the lessor re-enters, pursuant to the terms of the lease, and relets
to a third party for the unexpired term, at a less rental, the difference
; in rent constitutes a definitely established claim against the ‘corporation,
whicl. the receiver is empowered to recognize. (People v. St. Nicholas
IBk., 151 N. Y., 592; affg. “ App. Div., 544; distg. 144 N. Y., 271.)

The situation of a veceivcr of an insolvent corporation is less restricted ~

than that of an assig:ee under a general assignment for the benefit of
creditors, whose po.vers and duty are prescribed by that instrument.
(People v. St. Nicholas Bk., 151 N. Y., 592; affg. 3 App. Div., 544.)

An application to authorize the receiver of an insolvent corporation to
pay, as a preferred claim, a reasonable allowance to counsel employed by
the corporation, in the defense of the proceeding, is properly denied, when
it appears that, by reason of the actual insolvency of the corporation,
known to its officers, and of their attempt to continue it in business by

- fraudulent means, the employment of counsel to resist the proceeding
was unjustifiable. (People v. Coml. Alliance Life Ins. Co., 148 N. Y., 563:
affg. 91 Hun, 389.)

{ ‘
Unpaid stock subscriptions, when recoverable.

§$ 1794. Where tho stockholders of the corporation are parties
to the action, if the property of the corporation is not sufficient to
discharge its debts, the interlocutory or final judgment, as the case
requires, must adjudge that each stockholder pay into court the
amount due and remaining unpaid, on the shares of stock held by
him, or so much thereof as is necessary to satisfy the debts of the
corporation.

Insufficiency of assets; proceedings.

§ 1795. If£ it appears, that the property of.the corporation, and
the sums collected or collectible from the stockholders, upon their
stock subscriptions, are or will be insufficient to pay the debts of the
corporation, the court must ascertain the several sums, for which
the directors, trustees, or other officers, or the stockholders of the
corporation, being parties to the action, are liable; and must
adjudge that the same he paid into court, to be applied, in such
710 AnnvuLuiine CoRPoRATION.

 

Dissolution and Receivers.

 

proportions and in such order as justice requires, to the payment of
the debts of the corporation.

Effect of this article limited.

§ 1796. This article does not repeal or affect any special pro-
vision of law, prescribing that a particular kind of corporation shall
cease to exist, or shall be dissolved, in a case or in a manner, not
prescribed in this article; or any special provision of law, prescrib-
ing the mode of enforcing the liability of the stockholders of a par |
ticular.kind of corporation.

ARTICLE FOURTH.

Aotion py THE Prorte to Annu A Corporarion.

Section 1797. Action by attorney-general, when Legislature directs,
1798. Id.; by leave of court.
1799. Leave; when and how granted.
1800. Action triable by a jury.
1801. Judgment,
1802. Injunction may issue. .
1803. Copy of judgment-roll to be filed and published.

Action by Attorney-general, when legislature directs,

§ 1797. The attorney-general, whenever he is so directed by the
legislature, must bring an action against a corporation created by
or under the laws of the state, to procure a judgment, vacating or
annulling the act of incorporation, or any act renewing the corpo-
ration, or continuing its corporate existence, upon the ground that
tHe act was procured upon a fraudulent suggestion, or the conceal-
ment of a material fact, made by or with the knowledge and con-
sent of any of the persons incorporated.

Sections 1797 and 1798 apply only to actions to vacate or annul the
charter of a corporation. (People v. Ballard, 134 N. Y., 289, 290.)

Leave of court.

§ 1798. Upon leave being granted, as prescribed in the next
section, the attorney-general may bring an action against a corpo-
ration created by or under the laws of the gtate, to procure a judg-
ment, vacating the charter or annulling the existence of the cor-
poration, upon the ground that it has, either

1. Offended against any provision of an act, by or under which
it was created, altered, or renewed, or-an act amending the same,
and applicable to the corporation; or,

2. Violated any provision of law, whereby-it has forfeited its
Dissotution; Orner Causes For. 711

 

Dissolution and Receivers.

 

T

charter, or become liable to be dissolved, by the abuse of its
powers; or,

3. Forfeited its privileges or franchises, by a failure to exercise
its powers; or,

4. Done or omitted any act, which amounts to a surrender of its
corporate rights, privileges, and franchises; or,

5. Exercised a privilege or franchise, not conferred upon it by
law.

The statement of the location of its principal office or place of business
is a condition precedent to the organization of a business corporation,
and, should it appear that the location of its principal office was willfully
misstated in the certificate, or in case the corporation should change its
principal place of business, without effecting a legal change of residence,
for the purpose of evading taxation, it might present a case under the
foregoing section for the attention of the attorncy-general. (People ex rel.
Knickerbocker Press v. Barker, 87 Hun, 341.) At the <ime this proceeding
was instituted section 3 of the General Corporation Law provided that -
“the office of a stock corporation shall be in the county, town or city in
which its -business is principally carried on,” which provision has been
eliminated from said statute by the amendment of 1895, chapter 672.

In a direct proceeding to dissolve a corporation and distribute its prop-
erty the fact that the corporation has ceased to discharge its corporate
functions and permitted its property and business to pass into the hands
of individuals may be a good reason for the State to withdraw the
franchise which it had granted and to distribute its property, but.in that
event the property of the corporation is not lost or forfeited. Upon disso-
lution of the corporation its debts must be satisfied out of its property
and what remains must go to’ the stockholders. (Boyer vy. Village of
Little Falls, 5 App. Div., 1.)

Leave, when and how granted.

§ 1799. Before granting leave, the court may, in its discretion,
require such previous notice of the application as it thinks proper,
to be given to the corporation, or any officer thereof, and may hear
the corporation in opposition thereto.

Action triable by a jury.

§ 1800. An action, brought as prescribed in this article, is
triable, of course, and of right, by a jury, as if it was an action ©
specified in section nine hundred and sixty-eight of this act, and
without procuring an order, as prescribed in section nine hundred
and seventy of.this act.

Judgment ot dissolution.

§ 1801. Where any of the matters, specified in section one
thousand seven hundred and ninety-seven or section one thousand.
712 Insuncrion ; JUDGMENT-ROLL.

 

Dissolution and Receivers.

seven hundred and ninety-eight of this act, are established in an
action, brought as prescribed in either of those sections, the court
may render final judgment that the corporation, and each officer
thereof, be perpetually enjoined from exercising any of its cor
porate rights, privileges, and franchises; and that it be dissolved.
The judgment must also provide for the appointment of a receiver,
the taking of an account, and the distribution of the property of
the corporation, among its ereditors and stockholders, as where a
corporation is dissolved upon its voluntary application, as pre-
scribed in chapter seventeenth of this act.

A judgment recovered in another State against a domestic corporation,
after the latter hav becn dissolved, in an action to which the receiver was:
not a party, is not enforcible in the eourts of this State against the
receiver, although it is valid under the laws of the State in which it

was recovered. (Rodgers y. Atlantic Fire Ins, Co., 148 N. Y., 34; affg.
87 Hun, 384.)

Injunction may issue.

§ 1802. In an action, brought as prescribed in this article, an
injunction order may be granted, at any stage of the action, restrain-
ing the corporation, and any or all of its directors, trustees, and
other officers, from exercising any of its corporate rights, privileges
or franthises; or from exercising certain of its corporate rights,
privileges, or franchises specified in the injunction order; or from
exercising any franchise, liberty, or privilege, or transacting any
business, not allowed by law. Such an injunction is deemed one of
those specified in section six hundred and three of this act, and all
the provisions of title second of chapter seventh of this act, appli-
cable to an injunction specified in that section, apply to an injune
tion granted as prescribed in this section, except that it can be
granted only by the court. : ,

Copy of judgment-roll to be filed and published.

§ 1803. Where final judgment is rendered against a corpora-
tion, in an action, brought as prescribed in this article, the attorney-
.general must cause a copy of the judgment-roll to be forthwith
filed in the office of the secretary of state; who must cause a notice
of the substance and effect of the judgment, to be published, for
four weeks, in the newspaper printed at Albany, in which legal
notices are required to be published, and also in a newspaper
printed in the county, wherein the principal place of business of
the corporation was located.

See the Executive Law, L. 1893, ch. 248, § 74,
Stayine Aorions By CREDITORS. 713

 

Dissolution and Receivers.

 

ARTICLE FIFTH.

Provisions APPLICABLE TO Two on More or THE AcTIONS
Srreciriep In Turis TITLE.
SECTION 1804. Certain corporations excepted from certain articles of
this title. :
1805. Officers and agents may be compelled to testify.
1806. Injunction staying actions by creditors.
1807. Creditors may be brought in.
1808. When attorney-general must bring action.
1809. Requisites of injunction against corporations in certain
cases.
1810. Id.; of order appointing receiver in certain cases.
1811. Id.; of judicial suspension or removal of an officer.
1812. Application of the last three sections. 2
1813. In action against stockholders, misnomer, ete. not
available.

Certain corporations excepted from certain articles of this title.

§.1804. Articles second, third, and fourth of this title do not
apply to a religious corporation; or. to a municipal or other
political corporation, created by the constitution, or by or under
the laws of this state; or to any corporation which the regents of
the university have power to dissolve, except upon the application
of the regents, or of the trustees of such a corporation; and in
aid of its liquidation under such dissolution.

(Thus amended by L. 1903, ch. 290; L. 1904, ch. 501.)

Officers and agents may be compelled to testify.

§ 1805. In an action, brought as prescribed in article second,
third, or fourth of this title, a stockholder, officer, alienee, 6r agent
of a corporation, is not excused from answering a question, relating
to the management of the corporation, or the transfer or disposition
of its property, on the ground that his answer may expose the cor-
poration to a forfeiture of any of its corporate rights, or will tend
to convict him of a criminal offense, or to subject him to a penalty
or forfeiture. But his testimony shall not be used, as evidence
against him, in a criminal action or special proceeding.

Injunction staying actions by creditors.

§ 1806. In such an action, the court may, in its discretion, on
the application of either party, at any stage of the action, before or
after final judgment, and with or without security, grant an injunc-
tion order, restraining the ereditors of the corporation from bring-
ing actions against the defendants, or any of them, for the recovery
of a sum of money, or from taking any further proceedings in such

 

§ 2. All proceedings in any action or proceeding instituted on or after the twenty-fourth
day of April, nineteen hundred and three, under articles two, three and four of chanter fifteen,
title two of the code of civil procedure, or under either of them, are validated and confirmed.

(L. 1904, ch. 501.)
 

714 ATTORNEY-GENERAL; ACTIONS BY.

Dissolution and Receivers.

 

actions, theretofore commenced. Such an injunction has the same
effect, and except as otherwise expressly prescribed in this section,
is subject to the same provisions of law, as if each creditor, upon
whom it is served, was named therein, and was a party to the action
in which it is granted.

Creditors may be brought in.

§ 1807. In such an action the court may, at any stage of the
action, before or after final judgment, make an order requiring all
the creditors of the corporation to exhibit and prove their claims,
‘and thereby make themselves parties to the action, in such a man-
ner and in such a reasonable time, not less than six months from
the first publication of notice of the order as the court directs; and
that the creditors who make default in so doing shall be precluded
from all benefit of the judgment and from any distribution which
may be made thereunder, except as hereinafter provided. Notice
_ of the order must be given, by publication, in such newspapers and
for such a length of time as the court directs. Notwithstanding
such order any such creditor who shall exhibit and prove his claim
in the manner directed thereby, with proof, by affidavit or other-
wise, that he has had no notice or knowledge thereof in time to
comply therewith, any time before an order is made directing a
final distribution of the assets of such corporation, shall be entitled
to have his claim received, and shall have the same rights and bene-
fits thereon, so far as the assets of such corporation then remaining
undistributed may render possible, as if his claim had been exhib-
ited and proved within the time limited by such order.

When attorney-general must bring action.

§ 1808. When the attorney-general has good reason to believe
that an action can be maintained in behalf of the people of the
state, as prescribed in article 2, 3, or 4 of this title, except section
1797 of this act, he must bring an action accordingly, or apply to a
competent court for leave to bring an action, as the case requires;
if, in his opinion, the public interests require that an action should
be brought. In a case where the action can be brought only by
the attorney-general in behalf of the people, if a creditor, stock-
holder, director, or trustee of the corporation, applies to the attor-
ney-general, for that purpose, and furnishes the security required by
law, the attorney-general must bring the action, or apply for leave
to bring it, if he has good reason to believe that it can be main-
tained. Where such an application is made, section 1986 of this
act applies thereto, and to the action brought in pursuance thereof.
Insunorion aND REOEIVERS. 715

 

Dissolution and Receivers.

 

While section 1781 is to govern the action of the court in granting
relief, section 1808 is to govern the action of the attorney-general in
deciding to ask for relief. The sole responsibility of suing in the name
of the people rests upon him, that subject being wholly in his keeping as
the representative of the public interests, The question as to what the
public interests require is committed to the absolute discretion of the
attorney-general, and if he abuses this power a remedy may be found in
his removal from office. (People v. Ballard, 134 N. Y., 269.)

Requisites of injunction against corporations in certain cases.

§ 1809. An injunction order suspending the general and ordi-
nary business of a corporation, or of a joint-stock association, con-
sisting of seven or more persons, or suspending from office, or
restraining from the performance of his duties, a trustee, director,
or other officer thereof, can be granted only by the court, upon
notice of the application therefor, to the proper officer of the cor-

‘poration or association, or to the trustee, director, or other officer

enjoined. ‘ If such an injunction order is made, otherwise than as

prescribed in this section, it is void. ’

Receiver, when to be appointed.

§ 1810. A receiver:of the property of a corporation can be
appointed only by the court, and in one of the following cases:

1. An action, brought as prescribed in article 2, 3, or 4 of this
title.

2. An action brought for the foreclosure of a mortgage upon
the property, of which the receiver is.appointed, where the mort-
gage debt, or the interest thereupon, has remained unpaid, at least
thirty days after it was payable, and after payment thereof was
duly demanded of the proper officer of the corporation; and where
either the income of the property is specifically mortgaged, or the
property itself is probably insufficient to pay the mortgage debt.

3. An action brought by the attorney-general, or by a stock-
holder, to preserve the assets of a corporation, ‘having no officer

. empowered to hold the same.

4, A special proceeding for the voluntary dissolution of a
corporation,

5. Upon the application of the regents of the university, in aid
of the liquidation of a corporation whose dissolution they contem-
plate or have decreed; or upon the application of the trustees of
such a corporation, with notice to the regents.

Where the receiver is appointed in an action, otherwise than by
716 Removat or Corporate OFFIC=RS, ETC.

Dissolution and Receivers.

or pursuant to a final judgment, notice of the application for his
appointment must be given to the proper officer of the corporation.

(Thus amended by L. 1903, ch. 290.)

In a proper case a receiver should be appointed upon the foreclosure of
a paramount mortgage given by a corporation, althougn a receiver had
been previously appointed in the foreclosure of a junior mortgage, for the
earlier receivership inured solely to the benefit of the junior mortgagee.
(Holland Trust Co. v. Consolidated Gas & Elec, Lt. Co., 85 Hun, 454.)

Judicial suspension or removal of an officer of a corporation.

§ 1811. A trustee, director or other officer of a corporation
snall not be suspended or removed from office, by a court or judge,
otherwise than by the final judgment of a competent court, in an
action brought by the attorney-general, as prescribed in section one

thousand seven hundred and eighty-one of this act.

Application of last three sections.

§ 1812. The last three sections apply to an action ora special
proceeding, against a corporation, or joint-stock association, created
by or under the laws of the state, or a trustee, director or other
officer thereof; or against a corporation, or joint-stock association
created by or under the laws of another state, government, or coun-
try, or a trustee, director, or other officer thereof, where the cor-
poration or association does business within the state, or has, within
the state, a business agency or a fiscal agency, or an agency for the
transfer of its stock.

In action against stockholders, misnomer, etc., not available.

§ 18138. Where an action authorized by a law of the state, is
brought against one or more persons, as stockholders of a corpora-
tion or joint-stock association, an objection to any of the proceed-
ings can not be taken, by a person properly made a defendant in
the action, on the ground that the plaintiff has joined with him,
as a defendant in the action, a persou, whose name appears on the
stock-books of the corporation ur ossociation, as a stockholder
thereof, by the name so appearing; but who is misnamed, or dead,
or is not liable for any cause. In such a case, the court may, at
any time before final judgment, upon motion of either party,
amend the pleadings and other vapers, without pre;udice to the
previous proceedings, by substituting the true name of the person
intended, or by striking out the name of the person who is dead,
or not liable, and in a proper case, inserting the name of his repre-
sentative or successor.
Receivers; Security. 717

 

Dissolution and Receivers.

 

* Revised Statutes, Part III, Chapter VIII, Title 4.

ARTICLE THIRD.

Or tHe Votuntary DissotuTion oF CORPORATIONS.

SEcTIon 66. Who may be receivers; security to be given.
67 & 68. Rights, interests and authority of receivers.
69. To prosecute stockholders for arrears on their stock.
70. Notice to be given by receivers; its contents.
71. Acts of corporation after presenting petitions, void.
72. Debtors to account to receivers; their powers to discover-
debts, ete.
73. Power of receivers to refer controversies; proceedings.
74. Duties of receivers; to call meetings of creditors, ete.
75. Subsisting contracts, how canceled.
76. Commissions to be allowed to receivers.
77. To retain monies to cancel subsisting contracts.
78. Also to meet recovery in suits pending.
79. Order of payment of debts.
80. Second and final dividend when to be made, how notified.
81. Proceedings therein; to be final, except certain cases.
82. Receivers not to be answerable for debts not exhibited.
83. Surplus to be distributed among stockholders.
84. Application of monies retained to meet suit.
85. Power of court of chancery over, receivers.
86. When to render account on oath to court.
87. Notice of intent to render, when and how to be published.
88. Duty of master to whom account is referred.
e 89. Settlement of account by court, its effect; further accounts,.
ete.
90 & 91. [Repealed.]

[Sections 58-65 were repealed by L. 1880, ch. 245.]

[Sections 66 to 89, both inclusive, were saved by the repealing act of
1880, chapter 245, which declared them applicable to a receiver appointed:
as prescribed in § 2429 of the Code of Civil Procedure.]

‘Who may be receivers; security to be given.

§ 66. Any of the directors, trustees or other officers of such’
. corporation, or any of its stockholders, may be-appointed receivers,
who, before entering upon the duties of their appointment, shall
give such security to the people of this state, and in such penalty,
as the court shall direct, conditioned for the faithful discharge of
the duties of their appointment, ahd for the due accounting for all
monies received by them. ‘ :
718 Suits ror Arrears or Stock; Cxrrain Acts Vor.

 

Dissolution and Receivers.

 

Receivers, when vested with authority.

§ 67. Such receivers shall be vested with all the estate, real
and personal, of such corporation, from the time of their having’
filed the security herein before required, and shall be trustees of
such estate for the benefit of the creditors of such corporation and
of its stockholders.

#
Receivers, powers of.

§ 68. Such receivers shall have all the power and authority
conferred by law upon trustees to whom an assignment of the
‘estate of insolvent debtors may be made, pursuant to the provisions
of the fifth chapter of the second part of the Revised Statutes.

Receivers to prosecute stockholders for arrears on stock.

§ 69. If there shall be any sum remaining due upon any share
-of stock subscribed in such corporation, the receivers shall imme-
diately proceed and recover the same, unless the person so indebted
shall be wholly insolvent; and for that purpose may file their bill
in the court of chancery, or may commence and prosecute an action
at law, for the recovery of such sum, without the consent of any of
the creditors of such corporation.

Receivers, notice to be given by; its contents.

§ 70. The receivers, immediately on their appointment, shall
give notice thereof, which shall contain the same matters required
by law in notices of trustees of insolvent debtors; and in addition
thereto, shall require all persons holding any open or subsisting
contract of such corporation, to present the same in writing and in®
detail to such receivers, at the time and place in such notice speci-
fied; which shall be publishéd for three weeks in the state paper
and in a newspaper printed in the county where the principal place
of conducting the business of such corporation shall have been

‘situated.

‘Corporation, acts of, after presenting petition for dissolution, void.

§ 71. All sales, assignments, transfers, mortgages and convey-
ances of any part of the estate, real or personal, including things
in action, of every such corporation, made after the filing of the
‘ petition for a dissolution thereof, in payment of, or as a security
for, any existing or prior debt, or for any other pounideration, and
all judgments confessed by such corporation after that time, shall
be absolutely void as against the receivers who may be appointed
-on such petition, and as against the creditors of such corporation.
Desrs Dux Corporations; Suzsistine Contracts. 719

 

Dissolution and Receivers.

 

Debtors to account to receivers; their powers to discover debts, etc.

§ 72. After the first publication of the notice of the appoint-
ment of receivers, every person having possession of any property
belonging to such, corporation, and every person indebted to such
corporation, shall. account and answer for the amount of such debt
and for the value of such property to the said receivers; and all the
provisions of law, in respect to trustees of insolvent debtors, the col-
lection and preservation of the property of such debtors, the con-
cealment and discovery thereof, and the means of enforcing such *
discovery, shall be applicable to the receivers so appointed, and to
the property of such corporation. ,

Receivers may refer controversies.

§ 73. Such receivers shall have the same power to settle any
controversy that shall arise between them and any debtors or credi-
tors of such corporation, by a reference, as is given by law to trustees
of insolvent debtors; and the same proceedings for that purpose
shall be had, and with the like effect; and application for the
appointment of referees may be made to any officer authorized to
appoint such referees on the application of trustees of insolvent
debtors, who shall proceed therein in the same manner; and the:
referees shall proceed in like manner, and file their report with
the like effect in all respects.

Duties of receivers; meetings of creditors.

§ 74, The receivers shall be subject to all the duties and obliga-
tions by law imposed on trustees of insolvent debtors, so far as
they may be applicable, except where other provisions shall be
herein made. They shall call a general meeting of the creditors of
such corporation, within four months from the time of their
appointment, when all accounts and demands for and against such
corporation, and all its open and subsisting contracts shall be ascer-
tained and adjusted as.far as may be, and the amount of-monies in
the hands of receivers declared.

Subsisting contracts, how canceled.

§ 75. If there be any open and subsisting engagements or con-
tracts of such corporation, which are in the nature of insurances
or contingent engagements of any kind, the receivers may with the
consent of the party holding such engagement, cancel and dis-
charge the same, by refunding to such party the premium or con-.
' sideration paid thereon by such corporation, or so much thereof as
shall be in the same proportion to the time which shall remain of
720 Commissions; Drsrs; Divipenps.

Dissolution and Receivers.

-any risk assumed by such engagement, as the whole premium bore
‘to the whole term of such risk; and upon such amount being paid
‘by such receivers to the person holding or being the legal owner of
such engagement, it shall be deemed canceled and discharged as
-against such receivers,

‘Commissions allowed to receivers.

§ 76. (This section has been repealed by Laws of 1906, chap-
ter 349, passed May 1, 1906; to take effect immediately. Com-
pensation of receivers is provided for by Laws of 1883, chapter
-878, as amended. See page 725.)

-Receivers to retain monies for existing contracts.

§ 77. The receivers shall retain out of the monies in their
‘hands, a sufficient amount to pay the sums, which they dre herein
‘before authorized to pay, for the purpose of canceling and dis-
-eharging any open or subsisting engagements.

Receivers to retain monies to pay recovery in suits pending.

§ 78. If any suit be pending against the corporation or against
‘the receivers, for any demand, the receivers may retain the pro-
‘portion which would belong to such demand if established, and the
necessary costs and proceedings, in their hands, to be applied
‘according to the event of such suit, or to be distributed in a second
or other dividend.

-Order of payment of debts.

§ 79. The receivers shall distribute the residue of the monies
‘in their hands, among all those who shall have exhibited their
-claims as creditors, and whose debts shall have been ascertained, as
follows:

1. All debts entitled to a preference under the laws of the
‘United States.

2. Judgments actually obtained against such corporation, to the
:extent of the value, of the real estate on which they shall respec-
tively be liens.

3. All other creditors of such corporation, in proportion to their
respective demands, without giving any preference to debts due
on specialties.

Second and final dividends; notice of payment.

§ 80. If the whole of the estate of such corporation be not dis-
tributed on the first dividend, the receivers shall, within one year
‘thereafter, and within sixteen months after their appointment,
Drvipenps to Creprrors; SurPius. 721

 

Dissolution and Receivers.

t

make a second dividend of all the monies in their hands, among the
creditors entitled thereto; of which, and that the same will be a
final dividend, three weeks’ notice shall be inserted once in each
‘week, in the state paper, and in a newspaper printed in the county
where the principal place of business of such corporation was
situated.

‘Creditor neglecting to exhibit his demand.

§ 81. Such second dividend shall be made in all respects in
the same manner as herein prescribed in relation to the first divi-
-dend, and no other shall be made thereafter among the creditors of
‘such corporation, except to the creditors having suits against it, or
against the receivers, pending at the time of such second dividend,
and except of the monies which may be retained to pay such eredi-
tors, as herein provided; but every creditor who shall have neg-
jected to exhibit his demand before the first dividend, and who shall
deliver his account to the receivers before such second dividend,
‘shall receive the sum he would have been entitled to on the first
dividend, before any distribution be made to the other creditors.

‘Receiver not answerable for debts not exhibited.

§ 82. After such second dividend shall have been made, the
receivers shall not be answerable to any creditor of such corpora-
tion, or to any person having claims against such corporation, by
virtue of any open or subsisting engagement, unless the demands of
such creditor shall have been exhibited, and the engagements upon
which such claims are founded, shall have been presented to the
said receivers, in detail and in writing, before or at the time speci-
fied by them in their notice of a second dividend.

Surplus to be distributed among stockholders.

§ 83. If after the second dividend is made, there shall remain
any surplus in the hands of the receivers, they shall distribute the
same among the stockholders of such corporation, in proportion to
the respective amounts paid in by them severally, on their shares
of stock. ;

Application of monies retained to meet suit.

§ 84. When any suit pending at the time of the second divi-
.dend, shall be terminated, they shall apply the monies retained in
their hands for that purpose, to the payment of the amount recov-
ered, and their necessary charges and expenses; and if nothing shall
thave been recovered, they shall distribute such monies, atter

46
722 ReckEivErs’ ACCuUNTS.

 

Dissolution and Receivers.

deducting their expenses and costs, among the creditors and stock-
holdérs of the corporation, in the same manner as herein directed
in respect to a second dividend.

Power of court over receivers.

§ 85. The receivers shall be subject to the control of the court
of chancery, and may be compelled to account at any time; they
may be removed by the court, and any vacancy created by such
removal, by death or otherwise, may be supplied by the court.

Receiver to render account to court.

§ 86. Within three months after the time herein prescribed
for making a second dividend, the receivers shall render a full and
accurate account of all their proceedings to the court of chancery,
on oath, which shall be referred to a master to examine and report
thereon.

Notice of intention to render account.

§ 87. Previous to rendering such account the receivers shall
insert a notice of their intention to present the same, once in each
week, for three weeks, in the state paper, and in a newspaper, of
the county in which notices of dividends are herein required to be
inserted, specifying the time and place at which such account will
be rendered.

Reference of accounts.

§ 88. The master to whom such accounts shall be referred,
shall hear and examine the proofs, vouchers and documents offered
for or against such account, and shall report thereon fully to the
court. .

Settlement of receiver’s account.

§ 89. Upon the coming in of such report, the court shall hear
the allegations of al] concerned therein, and shall allow or disallow
such account, and decree the same to be final and conclusive upon
all the creditors of such corporation, upon all persons who have
claims against it, upon any open or subsisting engagement, and
upon all the stockholders of such corporation. Such receivers shall
also account from time to time in the same manner, and with the
like effect, for all monies which shall come to their hands after the
rendering of such account, and for all monies which shall have been
retained by them for any of the purposes herein before specified,
and shall pay into court all unclaimed dividends.

Sections 90 and 91 were repealed by L. 1880, ch. 245.
Removat or ReEoxrver. 723

 

Dissolution and Receivers.

 

,L. 1880, Cx. 573.

An Act in relation to receivers of insolvent corporations.

Oopy report to be served on attorney-general.

Sxcrion 1. All receivers of insolvent corporations who are
now required by law to make and file reports of their, proceedings
shall hereafter, at the time of making and filing such reports, serve
a copy thereof upon the attorney-general of this state, and receivers
of such corporations as reported to, and were under the supervision
of the banking department, prior to their appointment as such
receivers, and who have not been discharged from their respective
trusts, and all receivers of such corporations, that may hereafter be
appointed, shall on the first day of January and July of each year,
during the continuance of their respective trusts, file with the sup-
erintendent of the banking department a report, verified by oath,
in such form as the superintendent may prescribe, showing the con-
dition of their respective trusts.

(Thus amended by L. 1881, ch. 639.)

Motion by attorney-general to compel making report, ete.

§ 2. In case any receiver of an insolvent corporation shall neg-
lect to make and file a report of his proceedings for thirty days
after the time he is now required by law to make and file such
report, or shall neglect for the same length of time to serve a copy

.thereof on the attorney-general, as required by the first section of

this act, the attorney-general may make a motion in the supreme
court for an order to compel the making and filing and serving a
copy on him of such report, or for the removal of such receiver
from his office.

Attorney-general may move for order removing receiver, etc.

§ 3. The attorney-general may, at any time he deems that the
interests of the stockholders, creditors, policy-holders, depositors
or other beneficiaries interested in the proper and speedy distribu-
tion of the assets of any insolvent corporation will be subserved
thereby, make a motion in the supreme court at a special term
thereof, in any judicial district, for an order removing the receiver
of any insolvent corporation, and appointing a receiver thereof in
his stead, or to compel him to account, or for such other or addi-
tional order or orders as to him may seem proper to facilitate the
closing up of the affairs of such receivership, and any appeal from
any order made upon any motion under this section shall be to the
724 APPOINTMENT AND CoMPENSATION OF RECEIVER.

 

Dissolution:and Receivers.

 

general term of said court of the department in which such motion
is made. ' ;
(Thus amended by L. 1882, ch. 331, § 1.,

Notices, etc., must be served on attorney-general.

§ 4. A copy of all notices of motion and of all motion papers,
and a copy of any other application to the court, together with a
copy of the order or judgment to be proposed thereon to the court,
in every action or proceeding now pending for the dissolution of a
corporation or a distribution of its assets, or which shall hereafter
be commenced for such purpose, shall in all cases be served on the
attorney-general, in the same manner as provided by law for the
service of papers on attorneys who have appeared in actions,
whether the applications but for this law would be ex parte or upon
notice, and no order or judgment granted shall vary in any material
respect from the relief specified in such copy, order or judgment,
unless the attorney-general shall appear on the return day and have
been heard in relation thereto; and any order or judgment granted
in any action or proceeding aforesaid without such service of such
papers upon the attorney-general, shall be void, and no receiver
of any such corporation shall pay to any person any money directed
to be paid by any order or judgment made in any such action or
proceeding, until the expiration of eight days after a certified copy
of such order or judgment shall have been served as aforesaid upon
the attorney-general.

(Thus amended by L. 1882, ch. 331, § 2.)

[L. 1882, ch. 331, § 3. The provisions of this act shall only apply to
actions and special proceedings heretofore instituted by the attorney-
general and to such as shall hereafter be instituted by him for the pur-
poses aforesaid.]

The attorney-general may accept short notice. (In re:-Peekamoose Fish-
ing Club, 151 N. Y., 511.) z e

L. 1888, Ox. 378.
An Act in relation to receivers of corporations.
‘Where application for appointment of a receiver to be made.
Section 1. Every application hereafter made for the appoint-
ment of a receiver of a corporation, other than applications made by
the attorney-general on behalf of the people of the state, shall be

made at a special term of the supreme court, held in and for the
judicial district in which the principal business office of the cor-
Prace or Deposit; Report oF RECEIVER. 725

 

Dissolution and Receivers.

poration is located; and all such applications made by the attorney-
general shall be made in the judicial district in which the action in
which the appointment is sought is triable; and any action or proceed-
‘ing hefeafter brought by the attorney-general on behalf of the people
of the state against any corporation for the purpose of procuring its
dissolution, the appointment of a receiver, or the sequestration of its
property, may be brought in any county of the state, to be designated
by the attorney-general.

(Thus amended by L. 1896, ch. 282.)

Compensation of receivers; division in certain cases.

§ 2. A receiver of a corporation, except a receiver appointed in pro-
ceedings: for its voluntary dissolution, is entitled, in addition to his
necessary expenses, to such commissions, not exceeding two and one-
half per centum upon the sums received and disbursed by him, as the
court by which or the judge by whom he is appointed allows, but except
upon a final accounting such a receiver shall not receive on account of
his services for any one year a greater amount than twelve thousand
dollars, nor for any period less than a year more than at that rate.
Upon final accounting, the court may make an additional allowance
to such receiver, not exceeding two and one-half per centum upon the
sums received and disbursed by him, if the court is satisfied that he
has performed services that fairly entitle him to such additional allow-
ance. Where more than one receiver shall be appointed, the compensa-
tion herein provided shall be divided between said receivers.

(Thus amended by L. 1886, ch. 275; L. 1901, ch. 506; L. 1906, ch. 349.)

‘Counsel; compensation of.

§ 2-a. If the receiver ofa corporation employs counsel he shall within
three months after he has qualified as receiver enter into a written
contract fixing the compensation of such counsel at not exceeding a
certain amount or a certain percentage of the sums received and dis-
bursed by him, which contract must be approved by the supreme court,
on at least eight days’ notice to the attorney-general. A payment by
such receiver to his counsel on account of services shall only be made,
pursuant to an order of the court, on notice to the attorney-general
and subject to review on the final accounting. A contract with counsel
shall not be made for a longer period than eighteen months, but may
be renewed from time to time for periods of not more than one year,
if approved by the supreme court on at least eight days’ notice to the
attorney-general. ;

(New, added by L. 1906, ch. 349.)

Order to designate place of deposit.

§ 3. All orders appointing receivers of corporations shall designate
therein one or more places of deposit, wherein all funds of the corpora-
tion not needed for immediate disbursement shall be deposited, and no
deposits or investments of such trust funds shall be made elsewhere,
except upon the order of the court upon due notice given to the
attorney-general.

Receiver to report in detail ‘receipts and expenses every six months,

§ 4. It shall be the duty of every receiver of an insurance, banking
or railroad corporation, or trust company, to present every six months
to the special term of the supreme court, held in the judicial district
wherein the place of trial or venue of the action or special proceeding
in which he was appointed may then be, on the first day of its first
sitting, after the expiration of such six months, and to file
a copy of the same, if a receiver of a bank! or trust com-
pany, with the bank superintendent; if a receiver of an insurance
company, with the superintendent of insurance; and in each case
with the attorney-general, an account exhibiting in detail the
726 InrERVENoRS; APPLICATION TO Remove RectivEr.

Dissolution and Receivers.

receipts of his trust, and the expenses paid and incurred therein
during the preceding six months; and it shall be unlawful for any
receiver of the character specified in this section to pay to any
attorney or counsel any costs, fees or allowances ‘until the amounts
thereof shall have been stated to the special term in this manner,
as expenses incurred, and shall have been approved by that court,
by an order of the court duly entered; and any such order shall be
the subject of review by the appellate division and the court of
appeals on an appeal taken therefrom by any party aggrieved
thereby. Of the intention to present such account, as aforesaid,
the attorney-general, and also the surety or sureties on the official
bond of such receiver, shall be given eight days’ notice in writing;
and the attorney-general shall examine the books and accounts of
such receiver at least once every twelve months.

(Thus amended by L. 1885, ch. 40; L. 1896, ch. 139.)

The attorney-general may accept short notice. (In re Peekamoose Fish-
ing Club, 151 N. Y., 511.)

Intervenors to pay their own expenses.

§ 5. In case of the intervention of any policy holder or deposi-
tor, by permission of the court, such policy holder or depositor shall
defray the legal expenses ihereot and no allowance shall be made
for costs or fees to any attorney of such policy holder or depositor.

Affairs to be closed up within one year.

§ 6. The affairs of every insolvent corporation now in the
Lands of any receiver shall be fully closed up by the receiver
thereof within one year from the passage of this act, unless the
court, upon application by said receiver and upon due notice to the
attorney“general, shall give additional time for that purpose.

Attorney-general may apply to have receiver removed, etc.

§ 7. The attorney-general may, at any time he deems that the
interests of the stockholders, creditors, policy holders, depositors
or other beneficiaries interested in the proper and speedy distribu-
tion of the’assets of any insolvent corporation will be subserved
thereby, make a motion in the supreme court at a special term
thereof, in any judicial district, for an order removing the receiver
of any insolvent corporation and appointing a receiver thereof in
his stead, or to compel him to account, or for such other and addi-
tional order or orders as to him may seem proper to facilitate the
closing up of the affairs of such receivership, and any appeal from
any order made upon any motion under this section shal] be to the
PREFERENCE ON CALENDAR. 727

 

Dissolution and Receivers.

 

general term of said court of the department in which such motion
is made.

Copies of all papers to be served on attorney-general.

§ 8. A copy of all motions and motion papers, and a copy of
any other application to the court, together with a copy of the order
or judgment to be proposed thereon to the court, in every action
or proceeding now pending for the dissolution of a corporation or a
distribution of its assets, or which shall hereafter be commenced
for such purpose, shall, in all cases, be served on the attorney-gen-
eral, in the same manner as provided by law for the service of
papers op attorneys who have appeared in actions, whether the
applications but for this law would be ex parte or upon notice, and
no order or judgment granted shall vary in any material respect
from the relief specified in such copy or order, unless the attorney-
general shall appear on the return day and have been heard in
relation thereto; and any order or judgment granted in any action
or proceeding aforesaid, without such service of such papers upon
the attorney-general, shall be void, and no receiver of any such cor-
poration shall pay to any person any money directed to be paid by
an order or judgment made in any such action or proceeding, until
the expiration of eight days after a certified copy of such order or
judgment shall have been served as aforesaid upon the attorney-
general.

The requirements of this section in reference to service of notice upon
the attorney-general may be satisfied by the acceptance of short notice.
4In re Peekamoose Fishing Club, 151 N. Y., 511.)

Where a special proceeding is taken, under the statutes, to determine
the question as to the validity of claims against a corporation which
-has been dissolved and whose assets are in the hands of a receiver, it
is not necessary that a copy of the motion papers should be served upon
the attorney-general, under the provision of the foregoing section. (People
vy. Am. Steam Boiler Ins, Co., 8 App. Div., 504.) Such a proceeding merety
determines the controversy between the receiver and the claimant, and
is not one for the distribution of the assets of the corporation. (Id.)

‘Where applications to be made. s

§ 9. All applications to the court, contemplated = this act,
shall be made in the judicial district where the principal office of
the corporation against which proceedings are taken is located,
excepting such applications as are made in actions brought by the
attorney-general on behalf of the people of the state, and all such
applications shall be made in the judicial district in which the
action is triable.

(Thus amended by L. 1896, ch. 282.)
728 Transrer oF SECURITIES.

 

Dissolution and Receivers.

 

Preference on calendars.

§ 10. All actions or other legal proceedings and appeals there-
from or therein brought by or against a receiver of any of the
insolvent corporations referred to in this act, shall have a preference
upon the calendars of all courts next in order to actions or proceed-
ings brought by the people of the state of New York.

Repeal.

§ 11. All acts or parts of acts inconsistent herewith are-hereby
repealed,

L. 1884, Cu. 285.

‘An Act to provide for the transfer of securities and property by
bankrupt corporations, etc.

Property to vest in receiver 3 proviso.

Szcrion 1. In all cases where receivers have been or shall be
appointed for any corporation of this state other than an insurance
company on application by the attorney-general, all property, real
and personal, and all securities of every kind and nature belonging
to such corporation, no matter where located or by whom held,
shall be transferred to, vested in and held by such receiver; pro-
vided, however, that such transfer shall only be made when directed
by an order of the supreme court, due notice of the application for
such order having been made on the attorney-general and the
custodian of the funds, securities or property.

Life insurance or annuity companies.

§ 2. In every case where life insurance or annuity companies,
or any corporation of the class provided for by article two of the
insurance law, entitled “life, health and casualty insurance cor-
porations,” whether formed under said article or prior thereto, has
been or hereafter may be dissolved, and a receiver thereof
appointed, upon the application of the attorney-general, or by
action begun in the name of the people of the state of New York,
each and every security and fund which shall have been deposited
by such company prior to its dissolution, with the superintendent
of the insurance department, for the security and protection of its
_ policy-holders or any class of such policy-holders, under the statutes
in such cases made and provided, may, by an order of the supreme
court, made at a special term thereof held within the judicial dis-
trict in which the principal office of such company was located,
TRANSFER OF SECURITIES. 729

 

Dissolution and Receivers. ‘

 

prior to its dissolution, upon the application of the attorney-general,
after service of eight days’ written notice of such application upon
the superintendent of the insurance department, be transferred
from the said superintendent of the insurance department to the
receiver of such company; and thereupon the said superintendent
shall deliver such funds and securities to such receiver, and in him
the title thereto shall immediately vest. Such receiver shall there-
upon convert such securities and funds into money, and shall dis-
tribute the proceeds thereof, and of each and every class of such
funds or securities, among the respective holders of valid policies
of such company for whose benefit and security the deposit or
deposits were originally made proportionately, to the respective val-
uations of such policies, as shall be ascertained in proceedings taken
by such receiver for the valuation.of policies and the determination
of the liabilities of such company under the statutes -in ‘such cases
made and provided, and the course and practice of the supreme
court in cases of insolvent corporations, until .such valuation shall
have been paid in full. If any portion of such proceeds shall then
remain, such balance may, under an order of the supreme court in
such behalf duly made at special term, be made a part of the general
assets of such receivership, and thereupon be distributed by said
receiver in payment of or upon the general liabilities of such dis-
solved company according to law. And ‘in case of a corporation
formed under the laws of any other state, doing insurance busi-
ness in this state of the nature of that done by the corporation above
mentioned, in case of any action or proceeding brought or hereafter
to be brought in this state by the attorney-general, or in the name
of the people of the state of New York, for the winding up its
business in this state, or for or in *solving distribution of its assets
therein, the same proceedings may be had with reference to any
securities and funds deposited by such corporation with the super-
intendent of the insurance department of this staté under the
statutes‘in such case made and provided, as are hereinbefore pro-
vided with reference to deposits of corporations of this state, save
only that the order for transfer of the deposit may be made in the
judicial district in whigh the principal office of the corporation in
this state was located at the commencement of the action or pro-
ceedings, or in the third judicial district.

(Thus amended by L. 1896, ch. 322.)
* So in the original law.

 
730 Rieuts or Creprrors Prorecren.

 

Dissolution and Receivers.”

 

L. 1858, Cu. 314.

An Act to declare and extend the powers of executors, assignees,
receivers and other trustees, and to protect’ the rights of creditors
and others, against frauds, and for other purposes.

Section 1. That any executor, administrator, receiver, assignee
or other trustee of an estate, or the property and effects of an insol-
vent estate, corporation, association, partnership or individual, may
for the benefit of creditors or others interested in the estate or
property so held in trust, disaffirm, treat as void, and resist all acts.
done, transfers and agreements made, in fraud of the rights of any
creditor, including themselves and others, interested in any estate
or property held by or of right belonging to any such trustee or
estate. And any creditor of a deceased insolvent debtor, having a
claim or demand against the estate of such deceased debtor exceed-
ing in amount the sum of one hundred dollars, may, in like man-
ner, for the benefit of himself and other creditors interested in the
estate or property of such deceased debtor, disaffirm, treat as void,
and resist all acts done, and conveyances, transfers and agreements
made, in fraud of the right of any creditor or creditors, by such
deceased debtor, and for that purpose may maintain any necessary
action to set aside such acts, conveyances, transfers or agreements;
and for the purpose of maintaining such action, it shall not be
necessary for such creditor to have obtained a judgment upon his
claim or demand, but such claim or demand, if disputed, may be
proved and established upon the trial of such action.

{As amended by L. 1889, ch. 487.)

Actions against offenders.

§ 2. That every person who shall, in fraud of the rights of
creditors and others, have received, taken, or in any manner inter-
fered with, the estate, property or effects of any deceased person,
or insolvent corporation, association, partnership or individual, shall
be liable in the proper action to the executors, administrators,
receivers or other trustees of such estate or property, for the same,
or the value of any property or effects so received or taken, and for
all damages caused by such acts to any such trust estate.
Wages as Prererrep Cxiams. 731

 

Dissolution and Receivers.

L. 1885, Ox. 376.

An Act to provide for the payment of wages to employes, opera-
tives and laborers of domestic corporations, other than insurance
and moneyed corporations, of which a receiver shall be appointed.

The above-entitled act has been repealed by the Labor Law (L. 1897,
‘ch. 415), section 8 of which embodies the same subject matter and reads
as follows:

Payment of wages by receivers.

§ 8. Upon the appointment of a receiver of a partnership or
of a corporation organized under the laws of this state and doing
business therein, other than a moneyed corporation, the wages of
the employes of such partnership or corporation shall be preferred
to every other debt or claim.

When a receiver, in proceedings to foreclose a mortgage given by a
railroad corporation, is appointed pendente lite by an order which makes
no provision to pay outstanding debts incurred for the current expenses
of the railroad, but which requires him to operate the road, to keep the
same in repair, and to pay out of the income of the road for all neces-
sary supplies, such receiver is a mere temporary officer of the court,
whose sole duty it is to preserve the property during the litigation.
(Franklin Trust Co. v. Northern Adirondack R. R. Co., 11 App. Div., 249.)
A receiver having such powers is not bound by the provisions of chapter
376, Laws of 1885, to give preference in payment to unpaid employes of
the railroad corporation claiming under that statute to be paid for past
due wages. (Id.) ;

The word “employe” used in this statute has a wider significance
than the words “laborers and operatives; ” therefore, a bookkeeper °
employed by 2 corporation merely to keep its books, falls directly within
the class of persons whom the statute was designed to protect. (People
vy. Beveridge Brewing Co., 91 Hun, 313.)

L. 1886, Cu. 310.

. An Act to provide for the winding up of corporations which have
been annulled and dissolved by legislative enactment.

See note on next page.
732 Recerver to Give Bonn.

 

Dissolution and Receivers.

 

L. 1886, Cu. 271.

An Act in relation to the consents of property owners, order of the
general term confirming reports of commigsioners and the con-
sents of the local authorities heretofore given to the construction
and operation of street surface railroads by companies which have
been dissolved or annulled, or whose charter may have been

.repealed by legislative enactment.

(The text of the two foregoing entitled laws of 1886 is omitted from
this work for the reason that said laws have been held unconstitutional
and void. See People’ v: O’Brien, 111 N. Y., 1, 66. In the concurring
opinion of Justices Andrews and Earl, the following language is used, to
wit: “The act, chapter 276, is unconstitutional. That act and the act
chapter 310 are parts of the same scheme adopted by the Legislature for
the purpose of winding up the affairs of the corporation and disposing of
and distributing its property. The main features of the latter act are
unconstitutional and void, and thus so much of the legislative scheme has
failed that there is not enough left to save the whole act from
condemnation.”’)

Copr or Crvit Procrpvre.
Receivers must give bonds.

Szotion 715. A receiver, appointed in an action or special pro-
ceeding, must, before entering upon his duties, execute and file
with the proper clerk, a bond to the people, with at least two suffi-
cient sureties, in a penalty fixed by the court, judge, or referee,
making the appointment, conditioned for the faithful discharge of
his duties as receiver; and the execution of any such bond by any
fidelity or surety company authorized by the laws of this state to
transact business, shall be equivalent to the execution of said, bond
by two sureties. And the court, or, where the order was made out
of court, the judge making the order, by or pursuant to which the
receiver was appointed, or his successor in office, may, at any time
remove the receiver, or direct him to give a new bond, with new
sureties, with the like condition. But the foregoing provisions of
this section do not apply to a case where special provision is made
by law, for the security to be given by a receiver, or for increasing
the same, or for removing a receiver. A receiver who, having exe-
cuted and filed a bond as provided for in this section, before pre-
senting his accounts as receiver, must give notice to the surety or
sureties on his official bond, of his intention to present his accounts,
not less than eight days before the day set for the hearing on said
Receivers May Hortp Reau Property. 733:

Dissolution and Receivers.

acounting. The same notice must be given to such surety or sure-
ties where the accounting is ordered on the petition of a person or

_persons other than the receiver, and in no case shall the receiver's.

accounts be passed, settled or allowed, unless the said notice pro-
vided for in this section shall have first been given to the surety.
or sureties on the official bond of such receiver.

(Thus amended by L. 1896, ch. 94.)
Certain receivers may hold real property. '

§ 716. A receiver, appointed by or pursuant to an order or a
judgment, in an action in the supreme court or a county court, or
in a special proceeding or the voluntary dissolution of a corpora-
tion, may take and hold real property, upon such trusts and for
such purposes as the court directs, subject to the direction of the
court, from time to time, respecting the disposition thereof.

(Thus amended by ‘L. 1895, ch. 946.)

Commissions of receivers; cost of bonds; trustee’s commissions.

§ 3320. A receiver, except as otherwise specially prescribed by
statute, is entitled, in addition to his necessary expenses, to such
commissions, not exceeding five per centum upon the sums re-
ceived and disbursed by him, as the court by which, or the judge:
by whom he is appointed, allows. But if in any case the com-
missions of a temporary or permanent receiver, so computed, shall
not amount to one hundred dollars, said court or judge may, in
its or his discretion, allow said receiver such a sum, not exceeding:
one hundred dollars, for his commissions as shall be commensurate
with the services rendered by said receiver.’ Any receiver, as-
signee, guardian, trustee, committee, executor, administrator or
person appointed under section ninety-one of the real’ property
law or under section eight of the personal property law required
by law to give a bond as such may include as a part of his neces-
sary expenses such reasonable sum not exceeding one per centum
per annum upon the amount of such bond paid his surety thereon
as such court or judge allows. <A trustee of an express trust is.
entitled, and two or more trustees of such a trust are entitled, to
be apportioned between or among them according to the services
‘rendered by them respectively, as compensation for services as.
such, over and above expenses, to commissions as follows: For
receiving and paying out all sums of principal not exceeding one *
thousand dollars, at the rate of five per centum. For receiving
and paying out any additional sums of principal not exceeding
ten thousand dollars, at the rate of two and one-half per centum.
For receiving and paying out all sums of principal above eleven
thousand dollars, at the rate of one per eentum. And for receiving

‘and paying out income in each year, at the like rates. In all cases

a just and reasonable allowance must be made for the necessary

_expenses actually paid by such trustee or trustees. If the value
734 Razroaps, Time ror Construction ExtTEnpep.

 

Dissolution and Receivers.

 

of the principal of the trust estate or fund equals or exceeds one
hundred thousand dollars, each such trustee is entitled to the full
commission on principal, and on income for each year, to which
a sole trustee is entitled, unless the trustees are more than three,
in which case three full commissions at the rates aforesaid must
' be apportioned between or among them according to the services
rendered by them respectively. If the instrument creating the
trust provides specifie compensation for the services of the trustee
or trustees, no other compensation for such services shall be
allowed unless the trustee or trustees shall, before receiving any
compensation for such services, by a written instrument duly
acknowledged, renounce such specific compensation.
(Thus amended by L. 1899, ch. 94; L. 1902, ch. 404; L. 1904, ch. 755.)

The amount of commissions of a temporary receiver, appointed on an
application for the voluntary dissolution of a corporation, is governed by
the foregoing provision. Section 76, chapter 8 of part 3 of the Revised
Statutes (ante, page 720), applies only to permanent receivers. Matter of
Warren E. Smith Co.,.31 App. Div., 39.) .

L. 1898, Cu. 495.

An Act to extend the time for the commencement of construction
or the completion of railroads that have been placed in the
hands of receivers by the supreme court.

Secrion 1. All railroad corporations that have been organized
under the laws of this state, and have been placed in the‘hands of
a receiver or receivers by the supreme court of this state, and that
are now in the hands of such receiver or receivers, are hereby
granted five years.from and after the passage of this act within
which to complete their said roads, and the charter or charters of
such companies shall not be deemed or taken as forfeited by their
failure to complete their said roads within the time originally lim-
ited in the general laws of this state for the completion of such
roads, And the said companies are hereby authorized to proceed
and build their said roads and complete the same within five years
after the passage of this act, and the corporate powers and rights
shall not be deemed or held to have ceased by reason of lapse
of time or by reason of the appointment of such a receiver or
receivers.

(Became a law April 22, 1898.)

L. 1898, Cu. 522.

An Act to authorize and empower receivers of corporations
appointed by a judgment or order in an action or special pro-
ceeding to sell the property of the corporation at private sale.
Section 1. A receiver,duly appointed in this state by and pur-

suant to a judgment in an action, or by and pursuant to an order

in a special proceeding, may, upon application to the court by
which such judgment was rendered, or such order was made, and
upon notice to such parties as may be entitled to notice of
SaLE oF PRoperty at Private SALE. 735
Dissolution and Receivers,

applications made in such action or special proceeding, be author-
ized by the said court to sell or convey the property, whether real
or personal, of the corporation of which he is the, receiver, at
private sale, upon such terms and conditions as the court may
direct. /

§ 2. All sales of the property of a corporation heretofore made
at private sale by such a receiver, and conveyances thereof, where
such sales or conveyances have been authorized or directed by the
court having jurisdiction. of the action or special proceeding in
which such receiver was appointed, are hereby ratified and con-
firmed in so far as the legal capacity and statutory power of the
receiver to make the same are concerned.

L. 1898, Cu. 534,

An Act to facilitate the collection and recovery of the assets of
- corporations for which receivers have been appointed.

Section 1. Whenever any receiver of a domestic corporation,
or of the property within this state of any foreign corporation,
shall have been appointed and qualified, as provided in title two of
chapter fifteen, or title eleven of chapter seventeen, of the code of
civil procedure, either before, upon, or after final judgment or
order in the action or special proceeding in which such appoint-
ment was made, shall, by his own verified petition, affidavit or
other competent proof, show to the supreme court, at a special
term thereof, held within the judicial district wherein such appoint-
ment was made, that he has good reason to believe that any officer,
stockholder, agent or employe of such corporation, or any other
person whomsoever, has embezzled or concealed, or withholds or
has in his possession or undef his control, or has wrongfully dis-
posed of, any.property of such corporation which of right ought
to be surrendered to the receiver thereof; or that any person can
testify concerning the embezzlement, concealment, withholding,
‘736 CoLLEcTION aND RECOVERY oF ASSETS.

 

Dissolution and Receivers.

 

ypossession, control or wrongful disposition of any such property,
‘the court shall make an order, with or without notice, command-
ing such person or persons to appear at a time and place to be
-designated in the order, before the court or before a referee named
by the court for that purpose, cud to submit to an examination
‘concerning such embezzlement, concealment, withholding, pos-
session, control or wrongful disposition of such property; and at
‘the time of making such order or at any time thereafter, the court
“may, in its discretion, enjoin and restrain the person or persons so
ordered to appear and be examined from in any manner disposing
of any property of such corporation which may be in the pos-
‘session or under the control of the person so ordered to be exam-
ined, until the further order of the court in relation thereto. No
person so ordered to appear and be examined shall be excused
from answéring any question on the ground that his answer might
-tend to convict him of a criminal offense; but his testimony taken
upon such examination shall not be used against him in any
criminal action or proceeding.

§ 2. Any person so ordered to appear and be examined shall be
-entitled to the same fees and mileage, to be paid at the time of
‘serving the order, as are allowed by law to witnesses subpoenaed
to attend and testify in an action in the supreme court, and shall
‘be subject to the same penalties upon failure to appear and tes-
‘tify in obedience to such an order as are provided by law in the
-ease of witnesses who fail to obey a subpoena to appear and testify .
in an action.

§ 3. Any person appearing for examination in obedience to
‘such order shall be sworn by the court or referee to tell the truth,
-and shall be entitled to be represented on such examination by
counsel, and may be cross-examined, or may make any voluntary
statement in his own behalf concerning the subject of his exami-
nation which may seem to him desirable or pertinent thereto.

§4. The court before which such examination is taken, as wel}
-as the referee, if one be appointed for that purpose, shall have
ypower to adjourn such examination from time to time, and may
Co.ixction AND Recovery or ASssE7s. 737

Dissolution and Receivers.

rule upon any question or objection arising in the course of such
examination, to the same extent that might be done if the per-
son so examined were testifying as a witness in the trial of an
action.

§ 5. When the examination of any person under such order
shall be concluded, the testimony shall be signed and sworn to
by the person so examined, and shall. be filed in the office of the .
clerk of the county where the action.is pending, or was tried, in
which the receiver was appointed; and if from such testimony it
shall appear to the satisfaction of the court that any person so
examined is wrongfully concealing or withholding, or has in his
possessian or under his control, any property which of right belongs
to such receiver, the court may make an order commanding the
person so examined forthwith to deliver the same to such receiver,
who shall hold the same subject to the further order of the court
in relation thereto; and otherwise, the court may, at the conclusion
of any such examination, make such final order in the premises as
the interests of justice require.

AT
THE STATE CONSTITUTION.

*Provisions RELATIVE TO CORPORATIONS,

 

Corporations, how created.

Articte VIII, Sxcrion 1. 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 objects of the corporation cannot be attained under
general laws. All general laws and special acts passed pursuant
to this sectién may be altered from time to time or repealed.

This provision is permissive, not mandatory. (Matter of Tax-payers
of Kingston, 40 How., 444.)

A special act for incorporation is not unconstitutional by reason of the
existence of a general law; the necessity of the act is in the legislative
discretion. (People v. Bowen, 21 N. Y., 517; Mosier v. Hilton. 15 Barb.,
657; Metropolitan Bk. v. Van Dyck, 27 N. Y., 448.)

An act remedying a technical defect in the organization of a corpora-
tion is valid. (Syracuse City Bk. v. Davis, 16 Barb., 188.)

Corporate powers obtained under general laws may be extended by
special act. (In re Prospect Park & C. Isl. R. R. Co., 67 N. Y., 372.)

The power reserved in this section enables the Legislature to impose
upon corporations such additional restrictions and conditions as the public
good requires. (Mayor, etc., v. 28d St. Ry. Co., 113 N. Y., 311; People ex
rel, Kimball v. B. & A. R. R. Co., 70 N. Y., £69; People v. O’Brien, 111
N. Y., 1; N. Y. Cable Ry. Co. v. Chambers St. Ry. Co., 40 Hun, 29; Troy
& Rutland R. R. Co. v. Kerr, 17 Barb., 603; Northern R. R. Co. vy. Miller,
10 Barb., 282.)

Debts of corporations.

Articte VIII, § 2. Dues from corporations shall be secured
by such individual liability of the corporators and other means as
may be prescribed by law.

It seems that the word “dues” does not include “dues” to directors.
(McDowell v. Sheehan, 129 N. Y., 201.)

 

* As amended and in force January 1, 1896,
Provisions Reuative to Corporations. 739:

The State Constitution.

 

* Corporations ’”’ defined.

Arricte VIL, § 3. The term corporations as used in this
article shall be construed to include all associations and joint-stock
companies having any of the powers or privileges of corporations
not possessed by individuals or partnerships. And all corporations
shall have the right to sue and shall be subject to be sued in all
courts in like cases as natural persons.

Summary proceedings to enforce individual liability are valid. (Empire
City Bank, 18 N. Y., 199.) .

A provision in a railway charter that the Supreme Court alone shall
issue injunctions against it, is invalid. (Story v. N. Y. El. R. Co., 3 Abb.
N C., 478; see, also, Van Vranken v. City of Schenectady, 31 Hun, 516.)

é

Restriction as to private and local bills.

Arriotz III, § 16. No private or local bills, which may be

passed by the Legislature, shall embrace more than one subject, and
that shall be expressed in the title.

In submitting an amendatory act to the test of the constitutional pro-
vision that “nc private orlocal bill * * #* shall embrace more than
one subject, and that shall be expressed in the title,” the inquiry must be
based upon the title of the original act. (In re N. Y. & Long Island
Bridge Co., 148 N. Y., 540.) Where an act deals with a subject not
expressed in its title, and the void provisions are separable frem those
that are lawful, and that which remains is capable of being executed, and
stands complete in itself, it may be treated as constitutional. (140 N. ¥.,
540, supra; People ex rel. City of Rochester v. Briggs, 50 N. Y., 553; Matter
of Van Antwerp, 56 N. Y., 267; Matter of Sackett a..d Other Streets, 4
N. Y., 95; Matter of Village of Middletown, 82 N. Y., 196; People ex rel. v.
Kenney, 96 N. Y., 294, and cases therein cited.

An act containing both general and local provisions is not a local act,
and the general provisions are not void because the title refers only to
the local provisions (People v. McCann, 16 N. Y., 58), but the local pro-
visions are void unless specified in the title. (People v. Supervisors of
Chautauqua, 43 N. Y., 10.)

An expression of the general subject is sufficient. (Nuendorff v. Duryea,
69 N. Y., 557.) ;

A local act embracing two subjects, one relating to the establishment
of a town board of improvement and its powers, and the other attempting
to confirm a contract made by the board for the lighting of the town,
violates the constitutional provision that “no private or local bill which
may be passed by the Legislature shall embrace more than one subject,
and that shall be expressed in the title.’ (Parfitt v. Ferguson, 3 App.
Div., 176.) A local act is not wholly void because it embraces two sub-
jects, but it can be sustained only as to that subject which is expressed
in its title. (Id.)
t

740 Provisions ReiativE To CorPoRATIONS.

 

The State Constitution.

 

Private or local bills, when prohibited; general laws to be passed}
street railroads, conditions relating thereto.
Articte IIT, § 18. The Legislature shall not pass a private

or local bill in any of the following cases:
* * * * * * *

Granting to any corporation, association or individual the right
to lay down railroad tracks.

Granting to any private corporation, association or individual
any exclusive privilege, immunity or franchise whatever.

Providing for public bridges, and chartering companies for such
purposes, except on the Hudson river below Waterford, and on the
East river, or over the waters forming a part of the boundaries of
the State.

The Legislature shall pass general laws providing for the cases
enumerated in this section, and for all other cases which in its
judgment may be provided for by general laws. But no law shall
authorize the construction or operation of a street railroad except
upon the condition that the consent of the owners of one-half in
value of the property bounded on, and the consent also of the local
authorities having the control of that portion of a street or high-
way upon which it is proposed to construct or operate such railroad
be first obtained, or in case the consent of such property owners
cannot be obtained, the Appellate Division of the Supreme Court,
in the department in which it is proposed to be constructed, may,
upon application, appoint three commissioners who shall detsamine,
_ after a hearing of all parties interested, whether such railroad ought
to be constructed or operated, and their determination, confirmed
by the court, may be taken in lieu of the consent of the property
owners.

The provision of the Constitution which prohibits the Legislature from
passing a private or local bill granting to any corporation, association or
individual the right to lay down railroad tracks, does not apply to a grant
to a municipality. (Sun Publishing Assn. v. Mayor, etc., of New York, 152
N. Y., 257; affg. 8 App. Div., 230.)

A provision in a statute,’enacting that a bridge shall be so constructed
as to provide for “the accommodation and transportation of passengers
and vehicles of every description,” is not to be so construed as to authorizé
the laying of railroad tracks when the effect of such construction would
be to render the statute repugnant to the constitutional inhibition against
the passage of any private or local bill granting the right to lay down
railroad tracks: (In re N. Y. & Long Island Bridge Co., 148 N. Y., 540;
affg. 90 Hun, 312.) Where there is room for two constructions of a
statute both equally obvious and equally reasonable, the court must adopt
the construction which, without doing violence to the fair meaning of the

 
Provisions Revative to Corporations. 741
The State Constitution.

word used, brings the statute into harmony with the Constitution. (148
N. Y.,. 540, supra; Oneida Co. Supervisors v. Brogden, 112 U. S., 268;
People ex rel. Burroughs v. Supervisors, 17 N. Y., 241; People ex rel.
Bolton v. Albertson, 55 N. Y., 54; In re Gilbert Elevated R. R. Co., 70
N. Y., 367.) :

The amended provision requiring the application for appointment of
commissioners to determine whether a street railroad should be con-
structed to be made to the Appellate Division, did not-take effect until
January 1, 1896, and until that date the General Term continued to have
jurisdiction to entertain such applications. (Matter of Board of Rapid
‘Transit Railroad Comrs., 147 N. Y., 260.)

The above provision of the Constitution that the determination of com-
missioners,. confirmed by the court, may be taken in lieu of the consent
of the property owners, does not give to the Appellate Division any power
in the matter where the report of the commissioners is unfavorable to
the construction of the road. (Matter of Nassau Electric R. R. Co.,
6 App. Div., 141, dist’g 82 N. Y., 95, and 143 N. Y., 249.) It is only a
favorable report, confirmed by the court, which can be taken in lieu of.
the consent of the property owners. (Id.)

When a street railroad seeks to cross a bridge, one half of which lies
in a village in one town and the other half in a village in an adjoining
town, the bridge having been built by the two towns, both of which are
chargeable with its repair and maintenance, the consent of the highway
commissioners of the two towns is a prerequisite, under the foregoing
‘section, to the construction and operation of the railroad. (Town of
Wheatfield v. Tonawanda Street R. R. Co., 92 Hun, 460.) A consent
obtained from the trustees of the two villages will not, in such a case,
‘satisfy the constitutional requirement. (Id.)

These provisions for consent of property owners do not apply to the
city of New York. (In re Gilbert Elev. R. Co., 70 N. Y., 361.)

As to meaning of “ private or local bill,” see People v. Supervisors, ete.,
43 N. Y., 10; In re Church, 92 N. Y., 1; In re N, Y. El. R. R. Co., 70 N. ¥.,
‘350; In re Union Ferry Co., 98 N. Y., 139, and cases therein cited.

An act authorizing the construction of an illustrative section of elevated
railway on a.street in New York city is invalid. (People v. Loew, 102
N. Y., 471.) ’

An act to extend the time for the completion of a railroad, after the
expiration of the time fixed by L. 1850, ch. 140, § 47, as amended by
L. 1867, ch. 775, is unconstitutional. (In re Brooklyn, etc., R. R. Co., 75
N. Y., 335; Patten v. N. Y. El. R. R. Co., 3 Abb. N. C., 306.) But an act
restricting and regulating an existing right is not within the prohibition
of this section. (In re Gilbert El. R. R. Co., 70 N. Y., 361; People v. B.,
F. & C. 1. BR. R. Co., 89 N. Y., 75; In re N. Y. El. R. BR. Co., 70 N. Y., 327;
Moran v. L. I. City, 101 N. Y., 439.)

The Legislature may enact that a second railway shall not be con-
structed in a street until the consent of the first is obtained. (In re 34th
St. R. R. Co., 102 N. Y., 343.)

This section relates to every kind of street railroad — surface, elevated
or underground —in the existence or non-existence of which the local
authorities and property owners might have an interest. (In re N. Y.
G43 Provisions RevatIve To CorPoRaTIoNs.

 

The State Constitution.

 

Dist. Ry. Co., 107 N. Y., 42.) It also embraces pneumatic railways,
(Astor v. Arcade Ry. Co., 113 N. Y., 98.)

The determination of the commissioners is not operative until confirmed
by the General Term, (In re Kings Co. El. R. R. Co., 82 N. Y., 95.3

Consent of a property owner need not be under seal, or convey any
interest he may have in the street or highway. (In re Cortland & Homer
H. R. R. Co., 31 Hun, 72, aff’d 95 N. Y., 663; see, also, the Railroad Law,
§ 91.)

As to change of route, see Negus v. City of, B’klyn, 10 Abb. N. CG.
180; see, also, Weincke y. N. Y. C. & H.R. R. R. “Co., 39 N. Y. St. R., 584,
affd.on opinion below, 188 N. Y., 656; Hilton v. 34th St. R. R. Co. t
How. Pr., N. S., 453; Met. Transit Co. v. Mayor, ete. 111 N. Y., 588;
Schaper v. B. & L. I. C. Ry. Co., 4 St. Rep., 860; 124 N. Y¥., 630.)

The provision as to highways applies only to public highways, (People
etc., v. Banks, 67 N. Y., 568.)

‘When the foregoing section shall not apply.

Axticte IIT, § 23. Sections seventeen and eighteen of this
article shall not apply to any bill, or the amendments to any bill,-
which shall be reported to the Legislature by commissioners who
have been appointed pursuant to law to revise the statutes.

The Legislature are the exclusive judges whether a bill was so reported,
(People v. Petrea, 92 N. Y., 128.)

State aid to corporations prohibited.

Arricte VIII, § 9. Neither the credit nor the money of the
State shall be given or loaned to or in aid of any association, cor-
poration or private undertaking. This section shall not, however,
prevent the Legislature from making such provision for the educa-
tion and support of the blind, the deaf and dumb, and juvenile
delinquents, as to it may seem proper. Nor shall it apply to any
fund or property now held, or which may hereafter be held, by the
State for educational purposes.

Municipal aid to corporations prohibited.

Articte VIII, § 10. No county, city, town or village shall
hereafter give any money or property, or loan its money or credit to
or in aid of any individual, association or corporation, or become
directly or indirectly the owner of stock in, or bonds of, any asso-
ciation or corporation; nor shall any such county, city, town or
village be allowed to incur any indebtedness except for county,
sity, town or village purposes. * * *

This provision annulled all acts relating to bonding of towns for rafl-

road purposes, but does not affect contracts actually made and in foree
when it went into effect. (In re Buffalo & Jamestown R. R. Co. v. Comra.,
Provisions ReiativE to Corporations. 743°

 

The State Constitution.

 

ete. 5 Hun, 485; see, also, Same v. Falconer, 103 U. S., 821; Falconer v.
Buffalo & Jamestown R. R. Co., 69 N. Y., 491; People. ex rel. Hatfield v.
Trustees, 70 N. Y., 28; Town of Cherry Creek v. Becker, 123 N. Y., 161.)

A municipality may pay an acknowledged debt. (Hills v. Peekskill Sav.
Br., 101 N. Y., 490.):

Private property taken for public use.

Articte 1, § 6. * * * No person shall * * * be
‘deprived of life, liberty or property without due process of law;
nor shall private property be taken for public use, without just
compensation. ,

Relative to the acquisition of private property for public use, see the
Condemnation Law.

An act of the Legislature is not of itself, ‘due process of law.” (Stuart
v. Palmer, 74 N. Y., 183.) The owner of property should have an oppor-
tunity to be heard, and to defend, enforce and protect his rights. (Id.)

“Due process of law,” meaning of, considered. (Westervelt v. Gregg,
12 N. Y., 209; Happy v. Mosher, 48 N. Y., 313.) ;

An easement is property. (Hussner v. Brooklyn City R. R. Co., 114
N. Y., 433; Lahr v. M. El. R. R. Co., 104 N. Y., 268; Arnold v. H. R. R. R.
‘Co., 55 N. Y., 661; Story v. N. Y. El. R. R. Co., 90 N. ¥., 122; People
ex rel. Williams v. Haines, 49 N. Y., 587.) ~

It is the provinee of the Legislature, not the courts, to determine
~whether the public benefit will justify°taking private property for public
uses. (In re Fowler et al., 53 N. Y., 60; In re Hendrick v. Smith, 21 N. Y.,
$595; In re Townsend, 39 N. Y., 171; B. & N. Y. City R. R. Co. v. Brainard,
9 N. Y., 100; Bloodgood v. M. & H. R. R. R. Co., 18 Wend., 9.) Also
what interest shall be taken. (Brooklyn, etc., v. Armstrong, 45 N. Y., 284.)
Whether the use is public or private is a question for the courts. (In re
Split R. C. R. Co., 128 N. Y., 408; Niag. F. & W. Ry. Co., 108 N. Y., 375.)

Under this provision ch. 554, L. 1885, is unconstitutional. (People ex
rel Harvey et al. v. Loew, 102 N. Y., 471.)

A law authorizing exercise of right of eminent domain must provide
for obtaining compensation. (Bloodgood v. M. R. R. R. Co., 18 Wend., 9.)

Payment of compensation need not be made a condition precedent to
an entry (Chapman v. Gates, 54 N. Y., 132.)

Taking a street or highway for railroad purposes entitles the owner
of the fee to compensation. (Williams v. N. Y. C. R. R. R. Co.,-16 N. Y,,
97; McMahon v. Same, 24 N. Y., 658; Carpenter v. O. & S. R. R. Co., Id.,
655; Wager v. Troy U. R. R. Co., 25 N. Y., 526; Craig v. Rochester, etc.,
R. R. Co., 39 N. Y., 404.)

The Legislature may authorize railroads upon streets or highways, the
fee of which is owned by a municipality, without entitling either abutting
owners or the municipality to compensation. (Forbes v. R., W. & O. R.
R. Co., 121 N. Y., 505; Kellinger v. 42d St. R. R. Co. 50 N. Y., 209;
Mahady-v. Bushwick R. R. Co.,.91 N. Y., 148.)

Rights of abutting owner who has no interest in the fee of the street,
(Abendroth v. Man. El. R. R. Gos 122 N. Y., 1; Kane v. N. ¥Y. El. R. BR

©o., 125 N. ¥., 164.)

 
144. Provisions REtativE To CoRPoRATIONS.

 

The State Constitution.

 

See, also, Uline v. N. Y. C. & H. R. R. R. Co., 101 N.-Y., 98; Niag. F. &
W. R. Co., 121 N. Y., 319; Griswold v. Met. El. Ry. Co., 122 N. Y., 102;
People v. O’Brien, 111 N. Y., 1; N. Y. Cable Co. v. Mayor, etz., 104 N. Y.,
1, 43; In re N. Y., W. S. & B. Ry. Co., 101 N. Y., 685.

Compensation; how ascertained.

Axtictr 1, § 7. When private property shall be taken for any
public use, the compensation to be made therefor, when such com-
pensation is not made by the State, shall be ascertained by a jury,
or by not less than three commissioners appointed by a court of
record, as shall be prescribed by law. Private roads may be opened
in the manner to be prescribed by law; but in every case the neces-
sity of the road and the amount of all damage to be sustained by the
opening thereof shall be first determined by a jury of freeholders,
and such amount, together with the expenses of the proceeding,
shall be paid by the person to be benefited. General laws may be
passed permitting the owners or occupants of agricultural lands‘ to
construct and maintain for the drainage thereof, necessary drains,
ditches and dykes upon the lands of others, under proper restric-
tions and with just compensation, but no special laws shall be
enacted for such purposes.

See the Condemnation Law.

The word “jury,” as used in the foregoing clause of the Constitution,
means a jury of men possessing such qualifications as the law in force
at the time prescribes for jurors serving in the courts, and selected from
one of the lists in use by the courts. (People ex rel. Eckerson v. Village
of Haverstraw, 151 N. Y., 75.) Persons selected by village trustees to
determine the damages to be awarded to landowners by reason of opening
of a village street, selected pursuant to the act for the incorporation of
villages, as amended by Laws of 1898, chap. 694, is not such a jury as is
required by the Constitution. (Id.)

When compensation for private property taken for public use has been
ascertained in the constitutional method, what review shall be permitted
of the action or determination of the jury or commissioners, within their
jurisdiction, rests in the discretion of the Legislature. (In re De Camp,
151 N. Y., 557; revsg. 77 Hun, 478.)

The “jury” referred to means a body drawn in the ordinary way, but
whose decision may be pronounced by a majority. (Cruger v. Hudson R,
R. Co., 12 N. Y., 190.)

Where all the commissioners are notified and a majority act, it is
sufficient. (Astor v. Mayor, etc., 62 N. Y., 580.)

An act (L. 1857, ch. 156, § 12) which provides that the court may
increase or diminish the amount of compensation on an appeal from an
award made by commissioners duly appointed, is unconstitutional. (In re
Malone W. W. Co., 15 N. Y. Supp., 649; 38 St. Rep., 95.)

See, also, In re Townsend, 39 N. Y., 171.
Provisions Reiative to Corporations. 745

The State Constitution.

Public officers not to receive passes.

Arxticte XIII, § 5. No public officer, or person elected or
appointed to a public office, under the laws of this, State, shall
directly or indirectly ask, demand, accept, receive or consent to
receive for his own use or benefit, or for the use or benefit of
another, any free pass, free transportation, franking privilege or
discrimination in passenger, telegraph or telephone rates, from any
person or corporation, or make use of the same himself or in con-
junction with another. A person who violates any provision of
this section, shall be deemed guilty of a misdemeanor, and shall
forfeit his office at the suit of the attorney-general. Any corpora-
tion, or officer or agent thereof, who shall offer or promise to a
public officer, or person elected or appointed to a public office, any
such free pass, free transportation, franking privilege or discrimi-
nation, shall also be deemed guilty of a misdemeanor and liable to
punishment except as herein provided. No person, or officer or
agent of a corporation giving any such free pass, free transporta-
tion, franking privilege or discrimination hereby prohibited, shall
be privileged from testifying in relation thereto, and he shall not
be-liable to civil or criminal prosecution therefor if he shall testify
to the giving of the same.

(New provisions, added in 1895.)

A notary public is a public officer within the meaning of the foregoing
section, and a notary public who, before this provision of the Constitution
went into effect, had rightfully received a free pass over a railroad, is, by
said provision, prohibited from thereafter using it while he continues to
hold such office. (People v. Rathbone, 145 N. Y., 434.) For a violation of
this provision by a notary public, an action by the people is maintainable
against him to have his office adjudged to be forfeited. (Id.)

A railroad policeman appointed pursuant to section 58 of the Railroad
Law, is a public officer and, therefore, prohibited from receiving for his
own use and benefit a pass from any corporation. (Dempsey v. N. Y. C.
& H. R. BR. BR. Co., 146 N. Y., 290.) But where ‘a person made a contract
with a railroad corporation whereby he agreed to render police services
for it and to receive for such services a fixed salary and also an annual
pass for transportation over its road and that of another corporation,
which could be used by him when engaged in the pusiness of the corpora-
tion or in his own private affairs, it was held, that the pass under the
contract was not a “free pass” within the meaning of the Constitution;
and that an action was maintainable to compel specific performance of
the contract. (Id.y

This section does not prohibit the Raiiroad Commissioners, their
clerks, agents and experts from accepting and using passes issued by the
Secretary of State for their transportation while engaged in public busi-
ness. (Matter of Railroad Commissioners, 11 Misc., 103.)
746 Provisions RELATIVE TO CoRPORATIONS.

 

The State Constitution.

 

Duty of district-attorney.

AxtictE XIII, § 6. Any district attorney who shall fail faith-
fully to prosecute a person charged with the violation in his county
of any provision of this article which may come to his knowledge,
shall be removed from office by the governor, after due notice and
an opportunity of being heard in his defense. The expenses which
shall be incurred by any county, in investigating and: prosecuting
any charge of bribery or attempting to bribe any person holding
office under the laws of this State, within such county, or of receiv-
ing bribes by any such person in said county, shall be a charge
against the State, and their payment by the State shall be provided
for by law.

leis Sale eee
THE STATUTORY CONSTRUCTION LAW.

 

Laws or 1892, Cuaprzr 677.

Being “An Act relating to the construction of statutes, consti-
+uting chapter one of the general laws,” as amended to the com-
mencement of the legislative session of 1905.

SECTION

oe ee a et

10.
11.
12.
13.
14.
15.
16.
17.
18.
19.

21.
22.
23.
24,
25.

27.
28.
29.
30.
31.

Tue Statutory. Construction Law.

Short title; extent of application.
Property.

Real property.

Personal property.

Person.

Judge.

Lunacy; idiocy.

Gender; number; tense.
Heretofore; hereafter; now.
Last; preceding; next; following.
Folio. |

Writing; signature.

Seal.

Oath; affidavit; swear.
Acknowledge; acknowledgment.
Bond; undertaking.

Choose; elect; appoint.

Board composed of one person.
Meeting; quorum; powers of majority.

Service of notice upon board or body.

County clerk; register. ?

Village.

State.

Public holiday; half-holiday.

Year.

Month.

Day; mode of computing days; night-time.
Standard time.

Civil and criminal codes.

Laws of England and'of the colony of New York.

_ Limiting the effect of répealing statutes.
748 Ssort Trrtz; Property, Reat anp Persona.

The Statutory Construction Law.

 

SEction 32. Effect of repeal and re-enactment.
33. Effect of revision upon laws passed at same session or before
revision takes effect.
34, Alterations: of title and head notes,
35. Laws repealed.
36. Time of taking effect.

Short title; extent of application.

Section 1. This chapter shall be known as the statutory con-
struction law, and is applicable to every statute unless its general
object, or the context of the language construed, or other pro-
visions of law indicate that a different meaning or application was
intended from that required to be given by this chapter.

See the note to section 31 of this law.

Taking into consideration the language of this section, there is nothing
in sections 3 and 4 of this law, defining real and personal property, which
require any construction bringing mortgages on leaseholds within the

scope of chapter 279, Laws of 1833, an act relative to chattel mortgages.
(State Trust Co. v. Casino Co., 18 Misc., 327.) :

Property.

§ 2. The term property includes real and personal property.
Code Civ. Pro., § 3348, sub. 8.
Penal Code, § 718, sub. 9.

Real property.

§ 3. The term real property includes real estate, lands, tene-
ments and hereditaments, corporeal and incorporeal.

Code Civ. Pro., § 3343, sub. 6.

Penal Code, § 718, sub. 14.

Personal property.

§ 4. The term personal property includes chattels, money,
things in action, and all written instruments themselves, as dis-
tinguished from the rights or interests to which they relate, by
which any right, interest, lien or incumbrance in, to or upon prop-
erty, or any debt or financial obligation is created, acknowledged,
evidenced, transferred, discharged or defeated, wholly or in part,
and everything, except real property, which may be the subject of
ownership. The term chattels includes goods and chattels.

Code Civ. Pro, § 3343, sub. 7.
Penal Code, § 718, sub. 15.

Estates for years have always been classified as chattel interests, and
properly fall under any definition of personal property. (State Trust Co.
v. Casino Co., 18 Misc., 327; Despard v. Churchill, 53 N. Y., 199.)
Person; Juper; Lunacy; Gxnper, Ero. 749

The Statutory Construction Law.

Person.

§ 5. The term person includes a corporation and a joint stock
association. When used to designate a party whose property may
be the subject of any offense, the term person also includes the
state, or any other state, government or country which may law-
fully own property in the state.

Penal Code, § 718, sub. 13.

R. S., 2499, Part II, ch. 4, tit. 2, § 3.

Id., 1101, L. 1857, ch. 536,, § 3.

Judge.

§ 6. The term judge includes every judicial officer authorized,
alone or with others, to hold or preside over a court of record.

The Code Civ. Pro., § 3348, sub. 8, which has not been repealed, gives.
the following definition, to wit:

The word “ judge,” includes a justice, surrogate, recorder, justice of the
peace, or other judicial officer, authorized or required to act, or prohibited
from acting, in or with respect to the matter or thing, referred to in the
provision wherein that word is used.

Lunacy; idiocy.
§ 7. The terms lunatic and lunacy include every kind of

unsoundness of mind except idiocy.
Code Civ. Pro., § 3343, sub. 15.

Gender; number; tense.

§ 8. Words of the masculine gender include the feminine and
the neuter, and may refer to a corporation, or to a board or other
body or assemblage of persons; and, when the ‘sense so indicates,
words of the neuter gender may refer to any gender. The term
men includes boys and the term women includes girls.

Words in the singular number include the plural, and in the
plural number include the singular.

Words in the present tense include the future.

R. S., 124, L. 1828, ch. 20, § 11.

Id., 2542, L. 1878, ch. 446, § 27.

Penal Code, § 718. subs. 10-12.

Code Crim. Pro., § 955.

Where the Legislature, having used the plural number generally in an
act, changes the mode of expression and uses the singular number with
reference to an express provision, and it can be seen that the use of the
singular only was necessary to carry out its intention, the rule established
by the Statutory Construction Law, that words in the singular number
include the plural, and those in the plural include the singular, has no
application. (Beekman v. Third Ave. R. R. Co., 18 App. Div., 279.)
750 Heretorori; Last; Forio; Wririne; Szay.

 

The Statutory Construction Law.

Heretofore; hereafter; now.

§ 9. Each of the terms, heretofore, and hereafter, in any pro-
vision of a statute, relates to the time such provision takes effect.
‘The term now in any provision of a statute referring to other laws
in force, or to persons in office, or to any facts or circumstances as
existing, relates to the laws in force, or the person in office, or to
the facts or circumstances, existing, respectively, immediately
before the taking effect of such provision.

R. S., 124, L. 1828, ch. 20, §§ 9-11. :
Code Civ. Pro., § 3348, sub. 22.

Last; preceding; next; following.

§ 10. A reference to the last or preceding section, or other
provision of a statute, means the section or other division imme-
diately preceding, and a reference to the next or following section
or other division of a statute means thé section or other division
immediately following.

(New.)
Folio.

§ 11. A folio is one hundred words, counting as a word each
figure necessarily used.
Code Civ. Pro., § 3348, sub. 24,

R. S., 2747, pt. 3, ch. 10, tit. 4, § 4,
Id., 2780, pt. 4, ch. 2, tit. 8, § 16.

Writing; signature.

§ 12. The terms writing and written include every legible
representation of letters upon a material substance, except when
applied to the signature of an instrument. The term signature
includes any memorandum, mark or sign, written or placed upon
any instrument or writing with intent to execute or authenticate
‘such instrument or writing.

Code. Civ. Pro., § 3343, sub. 23.
Code Crim. Pro., § 956.

Seal.

§ 13. The private seal of a person, other than a corporation,
‘to any instrument or writing shall consist of a wafer, wax or other
similar adhesive substance affixed thereto, or of paper or other
‘similar substance affixed thereto, by mucilage or other adhesive
substance, or of the word “ seal,” or the letters “ L. S.,”” opposite the
signature.
Oats; Arripavit; Swear. 751

 

The Statutory Construction Law.

A seal of a court, public officer or corporation may be impressed
directly upon the instrument or writing to be sealed, or upon wafer,
wax or other adhesive substance affixed thereto, or upon paper or
other similar substance affixed thereto by mucilage or other adhesive

substance. An instrument or writing duly executed, in the cor--

porate name of a corporation, which shall not have adopted a cor-
porate seal, by the proper officers of the corporation under their
private genie shall be deemed to have been executed under the
corporate seal.

Code Civ. Pro., §§ 29, 960.
R. §., 532, pt. 1, ch. 8, tit. 8, § 16.

Prior to the enactment of the foregoing provision, it was held that when
the common law seal was omitted, equity would regard the letters L. 8S.
in brackets as a sufficient seal. (Barnard v. Gantz, 140 N. Y., 249; Town
of Solon v. Williamsburgh Sav. Bk., 114 N. Y., 134.)

Where a contract recited “In witness whereof (the parties) have here-
unto set their hands and seals,” and was signed, “ Union Pipe & Con-
struction Co., by Calvin Detrick, Pres’t, Jos. L. Rusling,” and opposite the
name of Rusling only there was a seal, it was held that the seal would be
presumed to be the seal of both parties. (Rusling v. Union Pipe & Con-
struction Co., 5 App. Div., 448.)

Oath; affidavit; swear.

§ 14. The terms oath and affidavit include every mode author-
ized by law of attesting the truth of that which is stated.

The term swear includes every mode authorized by law of admin-
istering an oath. When an affidavit is authorized or required it
may be sworn to before. any officer authorized by law to take the"
acknowledgment of deeds in this state, unless a particular officer
is specified before whom it is to be taken.

Code Crim. Pro., § 957.

‘

Any verified pleading or other paper is an affidavit within the contem-
plation of the Code. (Code Civil Pro., § 33438, sub. 11.) Relative to the
manner of administering oaths see Code Civil Pro., §§ 842-851,

Where a certificate in regard to the power and authority of an officer
who had taken an affidavit in a foreign State simply described him as an
acting notary public, duly qualified, as such duly authorized by the laws
of the foreign State to take the affidavit, but there was nothing to show
whether notaries in such foreign State were authorized by its laws to take
and certify the acknowledgment and proof of deeds to ‘be recorded there,
such affidavit cannot be used in the State of New York. (Stanton v. U.S.
Pipe Line Co., 90 Hun, 35; see, also, Code of Civil Procedure, § 844.)

In order'that an affidavit, taken without the State of New York, may be
used in the State of New York, it must have been taken in the foreign
. State before an officer authorized by its laws to take and certify the
152 ACKNOWLEDGE; ACKNOWLEDGMENT.

 

The Statutory Construction Law.

 

acknowledgment and proof of deeds to be recorded in such State. (Stan-
ton v. U.S. Pipe Line Co., 90 Hun, 35; see, also, Code of Civil Procedure,
Ԥ 844.)

The omission of the venue in an affidavit does not invalidate the oath
or render the affidavit a nullity, where it is shown that it was duly
administered by a proper officer within his jurisdiction, and the omission
of the venue may be supplied by amendment. (Babcock vy. Kuntzsch, 85
Hun, 33.)

-Acknowledge; acknowledgment.

.§ 15. When the execution of any instrument or writing is
authorized or required by law to be acknowledged, or to be proven
so as to entitle it to be filed or recorded in a public office, the
acknowledgment may be taken or the proof made before any officer
then and there authorized to take the acknowledgment or proof of
the execution of a deed of real property to entitle it to be recorded
in a county clerk’s office, and shall be made and certified in the same
manner as such acknowledgment or proof of such deed.

The term acknowledge and acknowledgment, when used with
reference to the execution of an instrument or writing other than 4
deed of real property, includes a compliance with the provisions
of this section by either such proof or acknowledgment.

A certificate of acknowledgment should not be overthrown upon evi-
‘dence of a doubtful character, such as the unsupported testimony of
interested witnesses, nor upon a bare preponderance of evidence, but
only on proof so clear and convincing as to amount to a moral certainty.
(Albany Co. Sav. Bk. v. McCarty, 149 N. Y., 71; see, also, cases therein
cited.)

The personal appearance of the party, the recognition of the signature
as his, and the acknowledgment of execution are included among the facts
of which a certificate of acknowledgment should be regarded as evidence
per se, under sections 935 and 936 of the Code of Civil Procedure. (Albany
Co. Sav. Bk. v. McCarty, 149 N. Y., 71.)

An omission in a county clerk’s certificate of the name of the person
whg took an acknowledgment, and his official character, is not a fatal
defect, as such omission can be supplied from the certificate of acknowl-
edgment. (Thorn v. Mayer, 12 Misc., 487.)

The absence of a date will not vitiate such a certificate, as the statute
does not require it to be dated. (Id.)

ACKNOWLEDGMENTS AND PROOFS WITHIN THE STATE—The acknowledg-
ment or proof of a conveyance of real property within the state may be
made at any place within the state, before a justice of the supreme court;
-or within the district wherein such officer is authorized to perform official
duties, before a judge, clerk, deputy clerk, or special deputy clerk of a
court, a notary public, or the mayor or recorder of a city, a justice of the

" peace, surrogate, special surrogate, special county judge, or commissioner
‘of deeds. (L. 1896, ch..547 [the Real Property Law], § 248.)
ACKNOWLEDGE; ACKNOWLEDGMENT. 753

 

The Statutory Construction Law.

ope epee AND PROOFS IN OTHER STATES.— The acknowledgment
eer proof of a conveyance of real property, within the state, may be
Made without the state, but within the United States, before either of

the following officers acti ithi is jurisdicti
which he ee iningea ing within his jurisdiction, or of the court to

106A judge of the supreme court, of the circuit court of appeals.
2. A judge of the supreme, superior, or circuit court of a state.
3. A mayor of a city. ? ,

aia A commissioner appointed for the purpose by the governor of the

5. Any officer of the state in which the acknowledgment is taken
authorized by the laws thereof to take the acknowledgment or proof of
deeds to be recorded therein, of which the certificate required by section
_ two hundred and sixty-two shall be evidence. (L. 1896, ch. 547 [the Real

Property Law], § 249, as am’d by L. 1903, ch. 419.)

ACKNOWLEDGMENTS AND PROOFS IN FOREIGN COUNTRIES.— The acknowl-
edgment and proof of a conveyance of real property within the state,
may be made without the United States before either of thd following
officers: >

1 An ambassador, a minister plenipotentiary, minister extraordinary,
minister resident, or charge des affairs of the United States, residing and
accredited within the country.

2. A consul-general, vice-consul-general, deputy consul-general, vice-
‘consul or deputy consul, a consular or vice-consular agent, a consul or
commercial or vice-commercial agent of the United States residing
‘within the country; or a secretary of legation at the post, port, place or
within the limits of his legation.

3. A commissioner appointed for the purpose by the governor, and
acting within his own jurisdiction. ‘

4. A person specially authorized for that purpose by a commission,
under the seal of the supreme court, issued to a reputable person, residing
in or going to the country where the acknowledgment or proof is so
to be taken.

5. If within the Dominion of Canada, it may also be made before any
judge of a court of record; or before any officer of such dominion
authorized by the laws thereof to take the acknowledgment or proof of
deeds to be recorded therein.

6. If within the United Kingdom of Great Britain and Ireland or the
dominions thereunto belonging, it may also be made before the mayor,
provost or other chief magistrate of a city or town therein, under his
hand and the seal of such city or town.

7% All ‘acts of ambassadors, ministers plenipotentiary, ministers extra-
ordinary, mihister fesident chargé d’affaires, or secretary of legation,
in taking the acknowledgment or proof of a conveyance of real property
within the state, performed before the time when this act takes effect,
are hereby confirmed, provided that the certificate of acknowledgment
or proof is in the form required by the laws of this state.

8, If within the states comprising the empire of Germany it may also
‘be made before a judge of a court of record under the seal of such court
or before a notary public under the seal of his office and, the seal of the
city or town in which the notary resides.

(L. 1896, ch. 547 [the Real Property Law], § 250, as am’d by L. 1899,
ch. 542; L. 1901, ch. 611; L. 1903, ch. 98; L. 1904, chs. 528 and 690.) _~

ACKNOWLEDGMENTS AND PROOFS BY MARRIED WOMEN.— The acknowl-
‘edgment or proof of a conveyance of real property, within the state, or of
any other written instrument, may be made by a married woman the
same as if unmarried. (L. 1896, ch. 547 [the Real Property Law], § 251.)

48
754 ACKNOWLEDGE ; ACKNOWLEDGMENT.

 

The Statutory Construction Law.

 

REQUISITES OF ACKNOWLEDGMENTS.— An acknowledgment must not be
taken by any“officer unless he knows or has satisfactory evidence, that
the person making it is the person described in and who executed such
instrument. (L. 1896, ch. 547 [the Real Property Law], § 252.)

PROOF BY SUBSCRIBING WITNESS.— Where the execution of a conveyance
is proved by a subscribing witness, such witness must state his own
Place of residence, and that he knew the person described in and who
executed the conveyance. The proof must not be taken unless the officer
is personally acquainted with such witness, or has satisfactory evidence
that he is the same person, who was a subscribing witness to the con-
veyance. (L. 1896, ch.-547 [the Real Property Law], § 253.) 2

A subscribing witness to a conveyance may be compelled to testify con-
cerning its execution. (L. 1896, ch. 547 [the Real Property Law], § 254.)

CERTIFICATE OF ACKNOWLEDGMENT oR PROOF.— An officer taking the
acknowledgment or proof of a conveyance must indorse thereupon or
attach thereto, a certificate, signed by himself, stating all the matters
required to be done, known or proved on the taking of such acknowledg-
ment or proof; together with the name and substance of the testimony
of each witness examined before him, and if a subscribing witness, his
place of residence. Any conveyance which has heretofore been recorded,
or which may hereafter be recorded, shall be deemed to have been duly
acknowledged or proved and properly authenticated, when thirty years
have elapsed since such recording; saving, however, the rights of every
purchaser in good faith and for a valuable consideration deriving title
from the same vendor or grantor, his heirs or devisees, to the same
property or any portion thereof, whose conveyance shall have been
duly recorded before the said period of thirty years shall have elapsed
or before this act shall have taken effect. (L. 1896, ch. 547 [the Real
Property Law], § 255, as amended by L. 1905, ch. 450.)
The second sentence was added in 1905.

8
WHEN CERTIFICATE TO STATE TIME AND PLACE.— Where the acknowledg-
ment or proof is taken by a commissioner appointed by the governor,
for a city or county within the United States, and without the state, the
certificate must also state the day on which, and the tawn and county
or the city in which the same was taken. (L. 1896, ch. 547 [the Real
Property Law], § 256.)

WHEN CERTIFICATE MUST BE UNDER SEAL.— Where a certificate of
acknowledgment or proof is made by a commissioner appointed by the
governor, or by the mayor or other chief magistrate of a city or town
without the United States, or by a minister, chargé d’affaires, consul-
general, vice-consul-general, deputy consul-general, vice-consul or deputy
consul, consular or vice-consular agent, or consul or commercial vice-
commercial agent, or secretary of legation of the United States, it must
be under his seal of office, or the seal of the consulate or legation to
which he is attached. All acknowledgments or proofs of deeds, mort-
gages or other instruments relating to real property, the certificates
of which were made in the form required by the laws of this state, by
a consul-general, vice-consul-general, deputy-consul-general, vice-consul,
deputy-consul, consular-agent, vice-consular agent, consul or commercial
agent vice-commercial agent, or secretary of legation of the United
States prior to the time when this act takes effect, are confirmed, but
nothing herein contained shall affect any action or proceeding now
pending in any court. (L. 1896, ch. 547 [the Real Property Law], § 257,
as amended by L. 1904, ch. 528.) ;

ACKNOWLEDGMENT BY CORPORATION AND FORM OF CERTIFICATE.— The
acknowledgment of a conveyance or other instrument by a corporation,
must be made by some officer thereof authorized to execute the same by
the board of directors of said corporation. The certificate of acknowl-
edgment must be in substantially the following form, the blanks being
properly filled.

For form, see post, Form No. 145.
Boxp; Cuoosz; Boarp; Mrrrrne, Etc. 755

 

The Statutory Construction Law. :

If such corporation have no seal, that fact must be stated in place of
the statements required respecting the seal. (L. 1896, ch. 547 [the Real
Property Law], § 258.)

WHEN COUNTY CLERK’S AUTHENTICATION NECESSARY.— A certificate of
acknowledgment or proof, made within the state, by a commissioner of
deeds, justice of the peace, or, except as otherwise provided by law, by
a notary public, does not entitle the conveyance to be read in evidence
or recorded, except within the county in which the officer resides at the
time of making such certificate, unless authenticated by a certificate of
the clerk of the same county. * * * (1. 1896, ch. 547, § 259.)

‘When other authentication necessary. (See L. 1896, ch. 547, § 260.)

Contents of certificate of authentication. (See L. 1896, ch. 547, § 261.)

Bond; undertaking.

§ 16. A provision of law authorizing or requiring a bond to be given
-shall be deemed to have been complied with by the execution of an
undertaking to the same effect. %

Choose; elect; appoint.

§ 17. The term choose includes elect and appoint.
Board composed of one person.

§ 18. A reference to several officers of a municipal corporation hold-
ing the same office, or to a board of such officers, shall be deemed to
refer to the single officer holding such office, when but one person is
chosen to fill such office in pursuance of law.

.

Meeting; quorum; powers of majority.

§ 19. Whenever three or more public officers are given any
power or authority, or three or more persons are charged with any
public duty to be performed or exercised by them jointly or as a
board or similar body, a majority of all such persons or officers at
a meeting duly held at a time fixed by law, or by any by-law duly
adopted by such board or body, or at any duly adjourned meeting
of such meeting, or at any meeting duly held upon reasonable
notice to all of them, may perform and exercise such power,
authority or duty, and if one or more of such persons or officers
shall have died or have become mentally incapable of acting, or
shall refuse or neglect to attend any such meeting, a majority of
the whole number of such persons or officers shall be a quorum of
such board or body, and a majority of a quorum, if not less than
a majority of the whole number of such persons or officers may
perform and exercise any such power, authority or duty. Any
such meeting may be adjourned by a less number than a quorum.
A recital in any order, resolution or other record of any proceed-
ing of such a meeting that such meeting had been so held or
adjourned, or that it had been held upon such notice to the mem-
bers, shall be presumptive evidence thereof.

R. S., 2726, pt. 3, ch. 8, tit. 17, § 27.

L. 1874, ch. 321,
Id., 2853, L. 1886, ch. 21, § 20.
 

756 Norc«; County Cierx; Vittace; Stare; Howmay.

 

The Statutory Construction Law.

 

Service of notice upon body or board.

§ 20. When a notice is required to be given to a board or body
service of such notice upon the clerk or chairman thereof shall be _
sufficient.

County clerk; register.

§ 21. <Any act done in pursuance of law by the register of a
county shall be deemed to be a compliance with any provision of
law authorizing or requiring such act to be done by the county
clerk of such county, and any instrument or writing filed, entered
or recorded in ‘pursuance of law in the office of a register of a
county, shall be deemed to be a compliance with any provision of
law authorizing or requiring such paper to be filed, entered or
recorded, as the case may be, in the office of the clerk of such
county. :

Village.
§ 22. The term village means an incorporated village.
State; territory.

' § 23. The’ term state, when used generally to include every
state of the United States, includes also every territory of the
United States and the District of Columbia. The term territory
when used generally to include every territory of the United States,
including also the District of Columbia.

Code Civ. Pro., § 3348, sub. 16.

Public holidays; half holidays.

§ 24. The term holiday includes the following days in each
year: The first day of January, known as New Year’s day; the
twelfth day of February, known as Lincoln’s birthday; the twenty-
second day of February, known as Washington’s birthday; the
thirtieth day of May, known as Memorial day; the fourth day of
July, known as Independence day; the first Monday of September,
known as Labor day, and the twenty-fifth day of December, known
as Christmas day, and if either of such days is Sunday, the next day
thereafter; each general election day and each day appointed by the
president of the United States or by the governor of this state as a
day of general thanksgiving, general fasting and prayer, or other
general religious observances. The term, half-holiday, includes the
period from noon to midnight of each Saturday which is not a holi-
day. The days and half days aforesaid shall be considered as the
first day of the week, commonly called Sunday, and as public holi-
Year; Monrn. 757

The Statutory Construction Law.

days or half-holidays, for all purposes whatsoever as regards the trans-
action of business in the public offices of this state, or counties of
this state. On all other days and half days, excepting Sundays, such
offices shall be kept open for the transaction of business. Where a
contract by its terms requires the payment of money or the perform-
ance of a condition on a public holiday, such payment may be made
or condition performed on the next business day succeeding such holi-
‘day, with the same force and effect as if made or performed in accord-
ance with the terms of the contract.
(Thus amended by L. 1897, ch. 614, and L. 1902, ch. 39.)

Code Civ. Pro., § 3343, subd. 21.

The amendment of 1897, ch. 614, repeals chap. 27, Laws of 1875; chap.
30, Laws of 1881; chap. 289, Laws of 1887, and chap. 603, Laws of 1895.

"Year. e

§ 25. Time shall continue to be computed in this state accord-
ing to the Gregorian or new style. The first day of each year after
the year-1752 is the first day of January, according to such style.
For the purpose of computing and reckoning the days of the year
in the same regular course in the future, every year, the number
of which in the Christian era is a multiple of four is a bisextile or
leap year consisting of three hundred and sixty-six days, unless such
number of the year is a multiple of one hundred and the first two
figures thereof treated as a separate number is not a multiple of
four, and every year which is not a leap year is a common year
consisting of three hundred and sixty-five days.

The term year in a statute, contract, or any public or private
instrument, means three hundred and sixty-five days, but the added
day of a leap year and the day immediately preceding shall for the
purpose of such computation be counted as one day.

In a statute, contract or public or private instrument, the term
year means twelve months, the term half-year, six months, and the
term a quarter of a year, three months.

R. S, 2026, pt. 1, ch. 19, tit. 1, §§ 1-3.

In computing time by years, a different rule obtains from that which ob-
tains in computing time by days, weeks and months, as in the latter case,
section 27 of the Statutory Construction Law, as amended by chapter 447 of
the Laws of 1894, changes the general rule and provides that the day from
which the computation is to be made shall be exclusive of such day, whereas
section 25 of the Statutory Construction Law, relative to the computation of

‘time by years, contains no such provision. (Aultman & Taylor Co. v. Syme,

‘91 Hun, 632.) .
‘As to a transaction when the Revised Statutes were in force, a year was
theld to consist of 365 days. (Hall v. Brennan, 140 N. Y., 409.)

Month.
§ 26. In a statute, contract or public or private instrument,
anless otherwise provided in such contract or instrument or by law,
758 Days; Sranparp Timer.

 

The. Statutory Construction Law.

 

the term month means a calendar month and not a lunar month.
A number of months after or before a certain day shall be com-
puted by counting such number of calendar months from such day,
exclusive of the calendar month in which such day occurs, and shalt
include the day of the month in the last month so counted having
the same numerical order in days of the month as the day from
which the computation is made, unless there be not so many days
in the last month so counted, in which case the period computed
shall expire with the last day of the month so counted.

R. S., 2096, pt. 1, ch. 19, tit. 1, § 4.
Id., 2514, pt. 2, ch. 4, tit. 3, § 9.

Days; mode of computing days; night-time. | -

§ 27. A calendar day includes the time from midnight to mid-
night. Sunday or any day of the week specifically mentioned
means a calendar day. A number of days specified as a period
from a certain day within which or after or before which an act
is authorized or required to be done means such number of calendar
days exclusive of the calendar day from which the reckoning is
made. Sunday ora public holiday, other than a half-holiday, must
be excluded from the reckoning if it is the last day of any such
_ period, or if it is an intervening day of any such period of two
days. In computing any specified number of days, weeks or months
from a specified event, the day upon which the event happens is
deemed the day from which the reckoning is made. The day from
which any specified number of days, weeks or months of time is
reckoned shall be excluded in making the reckoning. Night-time
includes the time from sunset to sunrise. ;

(Thus amended by L. 1894, ch. 447.)

Penal Code, §§ 261 and 500.
Code Civ. Pro., § 788.
See case of Aultman & Taylor Co. v. Syme, 91 Hun, 632, under section 26,

Standard time.

§ 28. The standard time throughout this state is that of the
seventy-fifth meridian of longitude west from Greenwich, and all
courts and public officers, and legal and official proceedings, shall
be regulated thereby. Any act required by or in pursuance of law
to be performed at or within a prescribed time, shall be performed
according to such standard time.

R. S., 2097, pt. 1, ch. 19, tit. 1, § 5.
L. 1884,-~ch. 14.
Cops; Corontat Laws; Repzar, Error or. 759

~————_ —_

 

The Statutory Construction Law.

Civil and criminal codes.

§ 29. The term civil code means the code of civil procedure.
‘The term criminal code means the code of criminal procedure.

j

Laws of Engiand and of the colony of New York.

§ 30. A statute of England or Great Britain shall not be
deemed to have had any force or effect in this state since May 1,
1788. Acts of the legislature of the colony of New York shall
not be deemed to have had any force or effect in this state since
December 29, 1828.

The resolutions of the congress of such colony and of the conven-
tion of the state of New York, shall not be deemed to be the laws
of this state hereafter.

' R.S., 125, L. 1828, ch. 21, §§ 3 and 4.

Limiting the effect of repealing statutes.

§ 31. The repeal hereafter or by this chapter of any provision
of a statute, which repeals any provision of a prior statute, does not
revive such prior provision. The repeal hereafter or by this chap-
ter of any provision of a statute, which amends a provision of a
prior statute, leaves such prior provision in force unless the amenda-
tory statute be a substantial re-enactment of the statute amended.
The repeal of a statute or part thereof shall not affect or impair
any act done or right accruing, accrued or acquired, or liability,
penalty, forfeiture or punishment incurred prior to the time such
repeal takes effect, but the same may be asserted, enforced, prose-
cuted or inflicted, as fully and to the same extent as if such repeal
chad not been effected; and all actions and proceedings, civil. or
eriminal, commenced under or by virtue of any provision of a
statute so repealed, and pending immediately prior to the taking
effect of such repeal, may be prosecuted and defended to final
effect in the same manner as they might if such provisions were not
‘80 repealed.

See the General Corporation Law, §§ 34, 35.

A legislative intent to revive a law which has, by legislative action,
already been wholly annihilated, is not alone sufficient to accomplish such
revival; there must be some legislative expression using language equiva-
Jent to a re-enactment; therefore, legislative action upon a separate sub-
ject grounded upon an assumed revivor of the original act, does not
accomplish this, in the absence of language equivalent to a re-enactment.
(People v. Wilmerding, 186 N. Y., 363; Bank of Metropolis v. Faber, 150
N. Y., 200, aff’g 1 App. Div., 841; see, also, White v. Inebriates’ Home, 141
N. Y., 127.) t

 
760 Revision, Errecr or.

 

The Statutory Construction Law.

 

Prior to the enactment of the foregoing section it was held in Chard v.
Holt, 186 N. Y., 30, that the repeal of a repealing act revived the act
repealed, and this rule was followed in Ottman v. Hoffman, 7 Misc., 714,
in which it was held that the omission in the repealing of the General
Corporation Law of 1892, ch. 687, of a statute included in the repealing
schedule of the Stock Corporation Law of 1890, ch. 564, revived the statute
so omitted, the repeal of which was thereby repealed. The doctrine of
this decision is that because the Statutory Construction Law was passed
at the same session as the repealing act of 1892, the following section 33
precludes section 31 of the Statutory Construction Law from affecting
other statutes passed at the same session.

The effect upon a prior statute of a subsequent amendment “so as to
read as follows,” is not to be determined in all cases by any fixed and
absolute rule, but frequently becomes a question of legislative intent to
be determined from the nature and language of the amendment and from
all the circumstances of the case. The duty of the courts is to give
effect to the legislative intent rather than the literal terms of the act,
(Bank of the Metropolis v. Faber, 150 N. Y., 200; In re Rochester Water
Comrs., 66 N. Y., 415; People v. Clute, 50 N. Y., 451.)

A statute which is amended and re-enacted so as to read as prescribed
in the amendatory statute, is thereby wholly annulled as to all future
cases, and, except as to rights and duties already existing, becomes merged
and incorporated in the later statute. (People v. Wilmerding, 1386 N. Y.,
363; distinguishing In re Prime, 1386 N. Y., 347.) In case the amendatory
act is repealed, this does not revive the original act, but both fall by
virtue of the repeal. (Id.)

Effect of repeal and re-enactment.

§ 32. The provisions of a law repealing a prior law, which are
substantial re-enactments of provisions of the prior law, shall be
construed as a continuation of such provisions of such prior law,
and not as new enactments. If any provision of a law be repealed
and, in substance, re-enacted, a reference in any law to such
repealed provision shall be deemed a reference to such re-enacted
provision.

(Thus amended by L. 1894, ch. 448.)

A clerical error in citing a former statute in a later one will be die
regarded. (People ex rel. Fitch v. Lord, 9 App. Div., 458.)

Effect of revision upon laws passed at same session or before revision
takes effect.

§ 33. No provision of any chapter of the revision of the general
laws, of which this chapter is a part, shall supersede or repeal by
implication any law passed at the same session of the legislature at
which any such chapter was enacted, or passed after the enactment
of any such chapter and before it shall have taken effect; and an
amendatory law passed at such session or at any subsequent session
Tirtzes; Laws Reprarep. , TL

The Statutory Construction Law.

 

begun before any such chapter takes effect, shall not be deemed
repealed, unless specifically designated in the repealing schedule
of such chapter.

Chapters 677 to 691, inclusive, Laws of 1892, all passed at the same
session of the Legislature, all approved by the Governor on the same day,
are all part of the system of statutory revision, and are not to be treated
as independent enactments having no special relation to each other, but,
for the purpose of ascertaining the legislative intent, are to be regarded
rather as a single act. (Bank of Metropolis v. Faber, 1 App. Div., 341; aff'd
150 N. Y., 200.)

The foregoing section means, that in accepting and enacting 1 in bulk
the general body of the revision, the Legislature desired to make sure of
the retention of all the special laws on cognate subjects which had been
passed before the revision went into effect, and which had not been
expressly repealed, It had no reference to the general laws embodied in
‘the revision itself, (Bank of Metropolis v. Faber, 1 App. Div., 341; dis-
approving Ottman v. Hoffman, 7 Misc., 714; see, also, 150 N. Y., 200, aff’g
1 App. Div., 341, supra.)

In the absence of evidence as to the precise time of day it was approved
by the Governor, an act which contains a provision that it shall take
effect immediately operates during the entire day of its approval. (Cro-
veno vy. Atlantic Ave R. R. Co., 150 N. Y., 225; Niendorff v. Manhattan
Ry. Co., 150 N. Y., 276.)

When a statutory enactment is modified by engrafting upon it a new
provision, by way of amendment, providing conditionally for a new case,
such modification is. in the nature of a proviso. (Rowell v. Janvrin, 151
N, Y., 60.)

Alterations of. titles and head notes.

§ 34. If the title of any article or other division of a statute,
or the head note of a section shall be amended or repealed in the
body of the statute, or if a new article or other division having a
title, or a new section having a new head note be added to a statute,
the corresponding title or head note, if any, in an abstract of con-
tents at the beginning of the article or other division of the statute,
shall be deemed to be correspondingly amended or repealed,
although there be no express reference thereto.

Laws repealed.

§ 35. Of the laws enumerated in the schedule hereto annexed,
that portion specified in the last column is repealed.
Time of taking effect.

§ 86. This chapter shall take effect immediately.
762

Sonepute or Laws Rereaep.

 

The Statutory Construction Law.

 

ScuEpuLe or Laws REpEatep.

 

 

Sections repealed. 7 en
Revised Statutes, part I, chapter 8, title 8..) 16...............] 18.
Revised Statutes, part I, chapter 19, title 1.| 1, 2, 8, 4,5..... ..| 28, 24, 26.
Revised statutes part’ II, chapter 4, title 2..|'3...... eececncces| OL
Revised Statutes, part 11, chapter 4, title 8..| 9.......cesceee0-] 24
Revised Statutes, part III, chapter 8, title 17.| 27.... cooee| 16,
Revised Statutes, part III, chapter 10, title 4.| 4............ ooee{ AL,
Revised Statutes, part IV, chapter 2, title 8..] 16........eee0.0-| 18
Laws 1828, second meeting, fifty-first session,| .
chapter B05 ete hee 9, 10, 11. ........| 8, %
Laws 1828, second meeting, fifty-first beabion,
chapter 2 se: Nabi aigabid. 8 Se'y acgigle gia’ eiaiwiahaistaraneaw +-| Band 4.......00.) 2%
Laws 1857, chapter 586..... bd Dele Cajosaieiaion Biiwie cae ¥ aeisierere | Oe
Laws 1874, chapter 821............ce000-e0-] All. ss enseceecsee| 18
Laws 1877, chapter 466.. sssscsccecceccsees| 22.005 eid ais's'eia'etail 1s
Laws 1884, chapter 14...... seveeesweorsecsa| All... eeecese| 26,
Laws 1886, chapter 21......seececesececeees| 20...... 0 eee oo] 16,
Code of Civil Procedure.........e0e.es+e0s+| 29, 788, 960 and
subdivisions 6,
%, 8, 15, 17, 21,
22, 98 and 34 of :
section 3343....| 18, 25, 8, 4, 2,
dal ee 20,
12, 11,
Code of Criminal Procedure......2e+eeseee-| 955, 956, 957...... 18, 12, 14,
Penal Code. .....ccscccccccccccccccscecsece 261, 500, and sub-
; divisions 9, 10,
11, 12, 18, 14] °
and 15 of sec
tion 718....... 25, 2, 8, 5, 3,
and 4,

 

 

 

 
TAXATION OF CORPORATIONS.

 

Provisions Renattve to tHe AnnuaL Taxes oF CoRnpoRaTIons,

 

a

Laws or 1896, Cuarter 908,— “ An act in relation to taxation,
constituting chapter twenty-four of the general laws,” as amended.

Became a law May 27, 1896; took effect June 15, 1896.

a
[The sections of the revised Tax Law, published in this volume, include
oniy so much thereof as regulate the taxation of corporations, other than
banks and insurance companies. ]

4

 

For the provisions of the former State Tax Law, Laws of 1880, chapter
542, as amended to the time of its repeal, see either the first or second
edition of “ White on Corporations.”

The note of the Commissioners of Statutory Revision, accompanying
their report to the Legislature, gave a history of the revision of the tax
laws, which is published herewith in its entirety as follows, to wit:

“The original law (L. 1889, ch. 289), creating a Statutory Revision Com-
mission, expressly provided, among other things, that the commission
should prepare and report to the Legislature a bill for the consolidation
and revision of the general statutes of the State, relating to ‘the collec-
tion and assessment of taxes, and the exemption of property from taxa-
tion throughout the State.’ Accordingly the commissioners appointed pur-
suant to such law, prepared a consolidation and revision of the tax laws
which, however, was never submitted to the Legislature as a whole,
either by report or bill. But in 1892, the commission assisted in the
preparation of a bill revising the laws taxing the succession of property,
which became chapter 399 of the Laws of 1892, known as the taxable
transfers act..

“The supplemental supply bill of 1892 (chapter 660) provided for the
appointment by the Governor of two counsel to ‘examine the laws of
this and other States relating to taxation, and to report to the next Legis-
lature before the first day of February, the result of their investigations,
with recommendations as to legislation, relating to assessment and taxa-
tion in this State.’

“Messrs. Collin and Fiero were appointed as such counsel and repofted
to the Legislature of 1893, a proposed revision of the tax laws, purporting
764 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

to cover and supersede all existing statutes relating to taxation. The
bill, as reported by the counsel, was introduced in the Legislature, but no
portion of it became a law, except that relating to sales by the Comp-
troller and by county treasurers for unpaid taxes, which was enacted as
chapter 711 of the laws of that year. No formal report was made by the
counsel to the Legislature of 1894, but chapter 768 of the laws of that year
provided the compensation of such counsel for services rendered during
the year 1893.

“Mr. Fiero reported to the Legislature of 1895, a revision of the tax
laws, excepting the laws relating to the taxation of transfers of property,
and the taxation of corporations. The bill proposed by him follows sub-
stantially the arrangement originally reported by the tax counsel, in pur-
suance of chapter 660 of the Laws of 1892, but as stated in his report,
he abandoned many changes thereto proposed by the counsel, ‘ which
were regarded as somewhat radical.’

“The revision as,presented to the Legislature of 1895, was introduced
as a bill in the Senate and referred to the committee on taxation and
retrenchment, but was never reported from that committee.,

“ While the matter of revision was under consideration by the tax coun-
sel appointed in pursuance of the act of 1892, the Statutory Revision Com-
mission made no effort to revise the tax laws; but none of the proposed
revisions having been accepted by the Legislature, the commissioners now
deem it proper and desirable to resume consideration of the subject and
prepare a bill, in accordance with the general scheme of revision which
the commission is expected to complete.

“All the bills submitted to the ‘Legislature by the tax counsel follow
the plan of the Statutory Revision Commission for framing general laws;
‘and each bill gives to the revision the chapter number which it should
have in the general laws.

“The present commissioners have carefully examined the original bill
prepared by the former commission, as well as the several bills prepared
by the tax counsel, and so far as practical, have followed their general
arrangement, but for the substance of this revision have gone over the
entire field of statutory law relating to taxation.

“The tax laws of the State are quite conflicting and confused, and a
revision is very desirable. In preparing the draft of the bill submitted
herewith, the commission has tried to preserve, as far as possible, the
substance of existing statutes, in order that the bill may not meet, the
objection that it effects radical changes.

“Various changes, however, have been necessary to eliminate incon-
sistencies and to reduce the subject to a harmonious and systematic whole.
Several changes are proposed in those portions of the law relating to the
sale of lands for nonpayment of taxes, taxable transfers and the taxation
of corporations. In making these changes, the commission has been
aided by valuable suggestions from the Comptroller, whose office has
jurisdiction of these subjects.

“There are, of course, in addition, many changes in phraseology, which
are necessary in the revision and re-writing of the law. All the changes
of substance are indicated in the notes at the end of the sections, and it
will be unnecessary to enumerate them here.
Provisions AppiicaBLe to Corporations. 765

 

The Revised Tax Law,

“There has been no revision of the tax laws since the Revised Statutes.
of 1828, but the general scheme of taxation as then adopted has remained
substantially unchanged, so far as the local assessment and collection of
taxes are concerned. But since that time a large number of statutes:
relating to the subject of taxation have been passed, many of which con-
flict with, or supersede the provisions of the Revised Statutes, and can:
only be reconciled by a judicial decision. s

“Various other statutes have introduced into our law new schemes of
taxation. Notably, the act of 1855 (chapter 427), providing for the sale
by the Comptroller of land of nonresidents for unpaid taxes; also the acts
providing for an organization and franchise tax on corporations, and for
the taxation of the succession of property on the death of the owner.

“The exemptions of property from taxation have also been largely
increased. The creation of a State Board of Assessors for the equaliza-
tion of State taxes between the several counties and for hearing appeals.
from the equalization of boards of supervisors, is also a feature of the
existing law which has grown up since the Revised Statutes. Altogether
there are about one hundred acts supplemental to the Revised Statutes
of 1828. ’

“Many of the provisions of article II, entitled ‘ procedure,’ seem more
properly to come within the scope of a revision of the Code of Civil Pro-
cedure, rather than acrevision of the tax laws; but the commission has.
deemed it desirable to re-enact them at this time as a portion of the tax
law, in order that they may not be left on the statute books as frag-
mentary provisions of laws, the other portions of which are repealed by
this bill, When the revision of the Code of Civil Procedure is undertaken,
the provisions of the article will be again considered and may be incor-
porated into the code, so far as practicable.”

Short title.
Section 1. This chapter shall be known as the tax law.

The provisions of the Tax Law, which are substantial re-enactments.
of provisions of prior laws, are to be construed as a continuation of such
provisions of such prior law, and not as new enactments, (Statutory Con-
struction Law, section 32.) ‘

The Tax Law does not contain a saving clause as the provisions of the
Statutory Construction Law, section 31, are deemed to apply, so that the
repeal of former taxing statutes shall not affect or impair any act done
or right accruing, accrued or acquired, or liability, penalty, forfeiture or
punishment incurred prior to the time such repeal took effect.

The Constitution of this State does not require that taxation upon prop-
erty shall be general so as to embrace all taxable persons within the
State, or within any district or territorial division thereof, or that it shall
be equal, or that it shall be in proportion to the value of the property of
the persons taxed, or that it shall be apportioned according to the benefit
which each taxpayer is supposed to receive from the object on which the
tax is expended. (People ex rel. Griffin v. Mayor of Bklyn., 4 N. Y., 419.)
The provisions of the Constitution declaring that no person shall be
766 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

deprived of his property without due process of law, and that private
property shall not be taken for public use without just compensation,
have no application to the taxing power. (Id.)

The power of taxation is vested in the Legislature, and is practically
absolute, except as restrained by the Federal and State Constitutions; yet
a tax plainly departing from the principle of equality would be obnoxious
as contrary to equity, and as practical confiscation. (In re Mayor, etc.,
of N. Y., 99 N. Y., 569; Genet v. Brooklyn, 99 id., 296; People v. Hagadorn,
36 Hun, 610; People v. Supervisors of Ulster Co., 36 Hun, 491; Bowe vy.
U. S. Reflector Co., 36 Hun, 407.)

The Legislature has power, in the matter of assessments, to determine
absolutely and conclusively the amount of tax to be raised and the prop-
erty to be assessed, and its action cannot be reviewed by the courts upon
the ground that it acted unjustly or without adequate reason. (Spencer
v. Merchant, 100 N. Y., 585.)

There is no constitutional limitation upon the power of the Legislature
to tax the persons and property of individuals within the State; the power
may be exercised to pay debts contracted before the property-holder
comes within the jurisdiction. (Pumpelly v. Owego, 45 How. Pr., 219,
Ct. of App.) :

In the absence of express constitutional restriction the power of taxa-
tion vested in the Legislature is unlimited, yet the Legislature is not sole,
supreme and unrestrainable therein, and the courts are not debarred, but
may, as a co-ordinate branch of the government, scrutinize and measure
the act, always keeping in mind that the Legislature is the primary
authority which is to inquire what is a proper purpose for the application
of money to be raised by taxation, and the necessity of taxation to sub-
serve it, and it must be clear that it erred before the courts can arrest
the consequences of its action. (Weisner v. Village of Douglas, 64 N. Y,
91; Town of Guilford v. Supervisors of Chenango, 13 N. Y., 143.)

The power of taxation and of apportionment is vested in the Legislature,
and includes the right of determining what portion of a public burden
shall be borne by any dividual or class of individuals. (People ex rel.
Crowell v. Lawrence, 41 N. Y., 137.) The power of apportionment is
included in the power to impose taxes, and, in the absence of any con-
stitutional restriction, its exercise cannot be reviewed by the courts. .
(Gordon vy. Cornes, 47 N. Y., 608.) But a tax or assessment upon property
arbitrarily imposed, without reference to some system of just apportion-
ment, could not be upheld. (Stuart v. Palmer, 74 N. Y., 183.)

Unless restrained by provisions of the Federal Constitution, the power
of the State as to thé mode, form and extent of taxation is unlimited
where the subjects to which it applies are within her jurisdiction. (Kirt-
land v. Hotchkiss, 100 J, S., 491.)

The power of the Legislature to levy taxes for public purposes is
limited only by the specific restrictions of the Constitution. In order te
invalidate a statute imposing a tax, it is not enough to show that it is
oppressive and unfair in its effect, provided it violates no express con-
stitutional provision. (People v. Ulster Co. Supervisors, 36 Hun, 491.)
N

Provisions APPLICABLE TO CoRPORATIONS. "67

 

The Revised Tax Law.

 

Definitions.

§ 2. 1. “Tax district,” as used in this chapter, means a political sub-
division of the state having a board of assessors authorized to assess.
property therein for state and county taxes.

2. ie County treasurer” includes any officer performing the duties
devolving upon such office under whatever name.

3. The terms “land,” “real estate” and “real property,” as used in
this chapter, include the land itself above and under water, all buildings.
and other articles and structures, substructures and superstructures,
erected upon, under or above, or affixed to the same; all wharves and piers, .
including the value of the right to collect wharfage, cranage or dockage
thereon; all bridges, all telegraph lines, wires, poles and appurtenances;
all supports and inclosures for electrical conductors and other appurte-
nances upon, above and under ground; all surface, underground or ele-
vated railroads, including the value of all franchises, rights or permis-
sion to coustruct, maintain or operate the same in, under, above, on or
through, streets, highways, or public places; all railroad structures, sub-
structures and superstructures, tracks and the iron thereon; branches,
switches and other fixtures permitted or authorized to be made, laid or
placed in, upon, above or under any public or private road, street or
ground; all mains, pipes and tanks laid or placed in, upon, above or
under any public or private street or place for conducting steam, heat,
water, oil, electricity or any property, substance or product capable of
transportation or conveyance therein or that is protected thereby, in-
cluding the value of all franchises, rights, authority or permission to.
construct, maintain or operate, in, under, above, upon, or through, any
streets, highways, or public places, any mains, pipes, tanks, conduits, or
wires, with their appurtenances, for conducting water, steam, heat, light,
power, gas, oil, or other substance, or electricity for telegraphic, tele-
phonic or other purposes; all trees and underwood growing upon land,
and all mines, minerals, quarries and fossils in and under the same,
except mines belonging to the state. A franchise, right, authority or
permission specified in this subdivision shall for the purpose of taxation
be known as a “special franchise.” A special franchise shall be deemed.
to include the value of the tangible property of a person, co-partuership,
association or corporation situated in, upon, under or above any street,
highway, public place or public waters in connection with the special
franchise. The tangible property so included shall be taxed as a part of
the special franchise. No property of a municipal corporation shall be
subject to a special franchise tax.

(Thus amended by L. 1899, ch. 712.) \

This section, as thus amended, is a portion of the Franchise Tax Law,
and includes franchises in the definition of real estate. The scheme for
the taxation of franchises is embodied in sections 21, 31, 37, 42-47, post. .

Gas mains have been taxable as real estate ever since the amendment
of 1881, chapter 293. (People ex rel. Keystone Gas Co. v. Martin, 48 Hun,
193; People ex rel. Equitable Gas Co. v. Barker, 81 Hun, 22, reversed on
other grounds in 144 N. Y., 94.) é :

The decisions here cited were rendered prior to the change in the
statutory definition, and this fact should be considered in applying some
of the cases.

The tracks, ties, etc., of a railroad are regarded as “land” for the pur-
pose of taxation. (People ex rel. Dunkirk & F. R. R. Co. v. Assessors,
46 N. Y., 46; see, also, 80 N. Y., 573; 93 id., 313; 43 Hun, 119.)

The foundations, columns and superstructure of an elevated railroad
‘768 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

are taxable as real estate. (People ex rel. N. Y. El. R. R. Co. v. Comrs. of
‘Taxes, 82 N. Y., 459.)

It makes no difference in respect to taxation, whether the rail is laid
upon the surface of the ground or placed upon pillars or carried through
a@ covered way or tunnel, as, in either case, the structures adopted to sus-
tain it, or facilitate and protect its use are, within the meaning of the law,
land, and taxable.as such. (People ex rel. N. Y. & Harlem R. R. Co. v.
Comrs.:of Taxes, 101 N. Y., 322; reversg. 23 Hun, 687.)

The franchise of a railroad corporation does not have the character of
realty, and is not real estate under the tax laws. (People ex rel. Panama
Ry. Co. v. Comrs. of Taxes, 104 N. Y., 240; see, also, Williamson v. Field,
2 Sandf Ch., 552; Sheldon v. Van Buskirk, 2 N. Y., 478; Goulet v. Asseler,
22 N. Y., 234; Phelps v. Bostwick, 22 N. Y., 248; People ex rel. Dunkirk &
Fredonia R. R. Co. v. Cassity, 2 Lans., 298; Gillilan v. Spratt, 41 How Pr.,
.83; People ex rel. Otto v. Assessors, 27 Hun, 559; People ex rel. The Mills
Water Wks. Co. v. Forrest, 97 N. Y., 97.)

The interest of a lessee for 990 years at a nominal rent is taxable as
real estate, though such an estate would go to the executor or adminis.
trator for distribution as personalty under the statute. (Trustees of
Ehnira v. Dunn, 22 Barb., 402.)

The statute means such an interest in real estate as will protect the
‘erection or affixing thereon, and the possession of buildings ana fixtures,
will bring those buildings and fixtures within the term “land,” and hold
them to assessment as the lands of whomsoever has that interest in the
real estate, and owns and possesses the buildings and fixtures. (People
ex rel. Dunkirk, ete., R. R. Co. v. Cassity, 46 N. Y., 46.)

While a mere franchise is not taxable except by special statute, a pier
built under a franchise to construct it and charge wharfage, may be
‘taxed as real estate, notwithstanding the site belongs to the city taxing it.
(Smith v. Mayor, etc., of N. Y., 68 N. Y., 552.) The foregoing case ques-
tions the following decision, to wit: That the interest of the grantee from
a city, of a right to build and maintain a wharf on the city property, to
be used as a public street or wharf, and to charge wharfage, is not.a
mere covenant, but real property, an incorporeal hereditament, though not
subject to taxation. (Boreel v. Mayor, etc., of N. Y., 2 Sandf., 552.)

Where a grant from a city reserved a portion of the land for a public
street, the grantee covenanting to build a wharf, always to be used as a
public wharf, he to have the wharfage, his interest was taxable as land.
(People ex rel. Smith v. Comrs. of Taxes, 10 Hun, 207.)

4. The term special franchise shall not be deemed to include
the crossing of a street, highway or public place where such cross:
ing is not at the intersection of another street or highway, unless
such crossing shall be at other than right angles for a distance of
not less than two hundred and fifty feet, in which case the whole
-of such crossing shall be deemed a special franchise. This sub-
division shall not apply to any elevated railroad,

: (New, inserted by L. 1901, ch. 490.)
Amendment of 1907.

(Insert facing page 768, White on Corporations, 6th edition.)

Laws of 1907, chapter 720, amends the Tax Law, section 2, subdivision 4,
#o read as follows: ;

4. The term special franchise shal! not be deemed to include the crossing
of w Street, highway or publie place outside the limits of a city or incor-
Porated village where such crossing is less than two hundred and fifty feet
im length. This subdivision shal] not apply to any elevated railroad,

The amendment took effect September 1, 1907.

k 20
Provisions AprLicaBLE To CorPoRATIONS. 769

 

The Revised Tax Law.

 

5. The terms “ personal estate,” and “personal property,” as
used in this chapter, include chattels, money, things in action,
‘debts due from solvent debtors, whether on account, contract,
note, bond or mortgage; debts and obligations for the payment
-of money due or owing to persons residing within this state, how-
-ever secured or wherever such securities shall be held; debts due
by inhabitants of this state to persons not residing within the
United States for the purchase of any real estate; public stocks,
.stocks in monyed* corporations, and such portion of the capital
-of incorporated companies, liable to taxation on their capital, as
shall not be invested in real. estate.

(Changed from subdiv. 4 to 5 by L. 1901, ch. 490.) Source of section; L.
1851, ch. 371, § 1; L. 1883, ch. 392.

See the revisers’ note to section 34, post, giving their explanation of the
clause including in the definition debts due non-residents of the United
‘States.

Property liable to taxation.

§ 3. All real property within this state, and all personal prop-
-erty situated or owned within this state, is taxable unless exempt
from taxation by law.

[R. S., pt. 1, ch. 13, tit. 1, § 8, without change of substance. ]
Immunity from taxation will not be recognized unless granted in unmis-
-takable terms. (Chicago, B. & K. C. R. R. Co. v. Guffey, 120 U. S., 569;
Same v. Same, 122 id. 561; Sioux City R. R. Uo. v. Sioux City, 138 id., 98.)

Exemptions from taxation, being in derogation of the sovereign author-
ity and of common right, are not to be extended beyond the express
requirements of the language used, when most rigidly construed. (Yazoo,

-ete., R. R. Co. v. Thomas, 132 U. S8., 174.) .
The general laws of the State require all property, both real and per-
-gonal, no matter by whom owned, except in certain cases of special exemp-

tion, to be assessed for purposes of taxation. This requirement embraces
all property owned by. individuals as well as corporations, and includes.
all shares of stock held by individuals in corporations, except in cases
where the capital stock of such corporations is itself liable to taxation as
against the corporation. (McMahon v. Palmer, 102 N. Y., 176, aff’g 12
Daly, 362.)

See, also, the following cases: Bank of Utica v. City of Utica, 4 Paige,
401; Williamson v. Field, 2 Sandf. Ch., 552; Sun Mut. Ins. Co. v. Mayor of
N. Y., 8 Barb., 453; N. ¥. & Harlem R. R. Co. v. Lyon, 16 Barb., 651;
Trinity Church v. Mayor N. Y., 10 How. Pr., 138; Ins, Companies v.
Comrs. of Taxes, 17 How. Pr. 208; 8. C. as Int. Life Ass. Soc. v. Comrs. of
Taxes, 28 Barb., 319; People ex rel. Hoyt v. Comrs. of Taxes, 23 N. Y., 225;

-21 How. Pr., 385; People ex rel. Bank of Commerce v..Comrs. of Taxes,
.40 Barb., 335, reversed on another point in 2 Wall.. 400; Brit. Com. Ins. Co.,
y. Comrs. of Taxes, 28 How. Pr., 57; S. C., 1 Abb. Ct. App., 202; S. C., 18
Abb. Pr., 118; People ex rel. Lincoln v. Ass’ors Town Barton. 44 Barb.,
158: S. C., 29 How. Pr., 372; Barhyte v. Shepherd & Voss, 35 N. Y., 239;
-Excise Comrs. Delaware Co. v. Sackrider. 35 N. Y., 154: People ex rel.
Lockport City Bank v. Board Ed. Lockvort, 46 Barb.. 591; Foster v. Van
“Wyck, 41 How. Pr., 496; 8. C., 2 Abb. Ct. App.. 171; People ex rel. Jeffer-
-son v. Gardner, 51 Barb., 354; People ex rél. Erie R. R. Co. v. Beardsley,

* So in the original.

 

49
770 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

52 Barb., 106; People v. Barker, 48 N. Y., 74; Clark v. Norton, 58 Barb., 486;
Pacific S. S. Co. v. Comrs. Taxes, 46 How. Pr., 319, 348; Barlow v. St.
Nicholas Bank, 63 N. Y., 401; People ex rel. Trowbridge v. Comrs., 4 Hun,
596; S. C., 62 N. Y., 630; Petition N. Y. Catholic Protectory, 77 N. Y., 342;
aff’'g 8 Hun, 91; People ex rel. N. Y. Hl. R. R. v. Comrs. Taxes, etc., 19
Hun, 460; Matter Ulster Co. Savings Bank, 20 Hun, 481.

Exemption from taxation.

§ 4. The following property shall be exempt from taxation:

A presumption that the Legislature intended to surrender its right of
taxation in the future by a present exemption therefrom, cannot be enter-
tained unless such intention is clearly expressed. (People ex rel. Cun-
ningham v. Roper, 35 N. Y., 629.) .

An exemption from taxation must be described in clear and unam-
biguous language, and appear to be indisputably within the intention of
the Legislature. (People ex rel. Westchester Fire Ins. Co. v. Davenport,
91 N. Y., 574.)

An intent to exempt any property is not to be presumed. (People ex rel.
Twenty-third Street R. R. Co. v. Commissioners of Taxes, 95 N. Y., 554.)

Assessors have no authority to enter upon the assessment-roll the name
of any person whose property is by law exempt from taxation, nor to
impose an assessment thereon, and they are liable in damages if they do
so. (Prosser v. Secor, 5 Barb., 607.)

The office of assessor in determining what property is subject to, and
what is exempt from, taxation, is judicial, and the assessor is not liable
in damages for errors committed in arriving at his conclusion. (Barhyte
v. Shepherd, 35 N. Y., 238.)

Personal property of residents within their town or ee is within the
jurisdiction of the assessors, who act judicially in determining what is
exempt, and an assessment on such property, though clearly erroneous in
overruling a claim of exemption, is not void, nor does it lay the founda-
tion for an action at law against the assessors personally. (Foster v. Van
Wyck, 2 Abb. Ct. App. Dec., 167; 41 How. Pr., 493.)

A law containing an exemption clause is to be strictly construed.
(Land Co. v. Minnesota, 159 U. S., 526.)

Exemptions must be expressed in clear and unmistakable terms, and
not be left to implication. (Schurz v. Cook, Sect’y of State, 148 U. S., 397;
Railroad Co. v. New Orleans, 143 U. S., 192; Keokuk, ete., R. R. Co. v.
Missouri, 152 U. S., 301; see, also, 120 U. S., 569; Yazoo, ete., R. R. Co. v.
Thomas, 132 U. S., 174; Same v. Levee Comrs., 132 U. S., 190.)

A provision in a special act which exempts the property of a corpora-
tion from “local taxation,” includes all taxation, except for State pur-
poses; such exemption extends to taxation for county as well as for city
purposes. (People ex rel. Pratt Institute v. Assessors of Bklyn., 141 N. Y.,
476; revers’g 74 Hun, 18.)

1. Property of the United States.
[R. S., pt. 1, ch. 18, tit. 1, § 4, subd. 2.]

Property of the United States is exempt from taxation by the authority
of a State, though it be land lying within that State, and jurisdiction over
it has not been ceded. (Van Brocklin v. State of Tennessee, 117 U. S8.. 151.)
‘Provisions APPLICABLE TO CORPORATIONS. 71

 

The Revised Tax Law.

 

The general rule of law is that property owned by a State or by the
United. States, or by a municipality for public use, is not subject to taxa-
tion except by express legislation. (People ex rel. Mayor, etc., of N. Y. v.
Assessors of Bklyn., 19 Abb. N. C., 158.)

The cession by the State of Kansas to the United States of exclusive
jurisdiction of certain lands, saving to such State the right of taxation
therein, leaves the right of the State to subject property therein to taxa-
tion the same as before. (Fort Leavenworth R. R. Co. v. Low, 114 U. S.,
525.)

2. Property of this state other than its wild or forest lands in
the forest preserve.
ER. S., pt. 1, ch. 18, tit. 1, § 4, subd. 2.]

See fisheries, game and forest law, § 274, as am. by L. 1895, ch. 395, pro-
viding for taxation of State lands in forest preserve.

The Legislature substituted the words “its wild or forest lands” for
the words “real property of the state.”

“Wild or forest lands” are the only lands of the State subject to
taxation.

3. Property of a municipal corporation of the state held for
a public use, except the portion of such property not within the
corporation.

[Revisers’ Note.—R. S., pt. 1, ch. 18, tit. 1, § 4, subds. 3, 4; R. S., pt. 1.
ch. 20, tit. 1, § 72. The term municipal corporation is defined by the gen-
eral corporation law, § 3, as including “a county, town, school district,
village and city and any other territorial division of the state established
by law with powers of local government.’ This subdivision is intended
to include the exemptions of the property of municipal corporations made
by R. S., pt. 1, ch. 13, tit. 1, § 4, subds. 3, 4, which are as follows: Hvery
school-house, court-house and jail used for either of such purposes; and
the several lots whereon such buildings are situated and the furniture
belonging to each of them, and every poor-house, alms-house, house of
industry, and the real and personal property used for such purposes
belonging to or connected with the same.” The subdivision is further
extended to include all the property of a municipal corporation in accord-
ance with the decisions of the courts, that such property is not taxable.
See City of Rochester v. Town of Rush, 80 N. Y., 302, holding that munici-
pal water-works are not taxable. See, also, the People ex rel. Murphy v.
Kelly, 76 N. Y., 479, 486-89, a8 to what constitutes a municipal purpose
generally.]

4, The lands in any Indian reservation cwned by the Indian
nation, tribe or band occupying them.
[Indian L., § 6 (I. 1892, ch. 679)].
772 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

5. <All property exempt by law from execution, other than an
exempt homestead. But real property purchased with the pro-
ceeds of a pension granted by the United States for military or
naval services, and owned and occupied by the pensioner, or by
his wife or widow, is subject to taxation as herein provided. Such
property shall be assessed in the same manner as other real prop-
erty in the tax districts. At the meeting of the assessors to hear
the complaints concerning assessments, a verified application for
the exemption of such real property from taxation may be pre-
sented to them by or on behalf of the owner thereof, which
application must show the facts on which the exemption is
tlaimed, including the amount of pension money used in or to-
ward the purchase of such property. If the assessors are satisfied
that the applicant is entitled to the exemption, and that the
amount of pension money used in the purchase of such property
equals or exceeds the assessed valuation thereof, they shall enter
the word “exempt” upon the assessment-roll opposite the dé-
scription of such property. If the amount of such pension money
used in the purchase of the property is less than the assessed
valuation, they shall enter upon the assessment-roll the words
“ exempt to the extent of ....... dollars ” (naming the amount)
and thereupon such real property, to the extent of the exemption
entered by the assessors, shall be exempt from state, county and
general municipal taxation, but shall be taxable for local school
purposes, and for the construction and maintenance of streets
and highways. If no application for exemption be granted, the
property shall be subject to taxation for all purposes. The en-
tries above required shall be made and continued in each assess-
ment of the property so long as it is exempt from taxation for
any purpose. The provisions herein, relating to the assessment
and exemption of property purchased with a pension apply and
shall be enforced in each municipal corporation authorized to
levy taxes.

(Thus amended by L. 1897, ch. 347.)

All of the foregoing subdivision after the first sentence was added by the
amendment of 1897. ;

Source of the first sentence: R. S., pt. 1, ch. 13, tit. 1, § 4, subd. 9; Code
of Civil Procedure, § 1397. ‘

The amendment of 1897, chapter 347, was not retroactive in its effect.
(People ex rel. Jones v. Feitner, 157 N. Y., 363, aff’g 32 App. Div., 23.)
Prior to the enactment of said amendment the exemption was personal
and did not extend to property belonging to the wife. (Id.) See, also, as
to bounty money, People ex rel. Kenny v. Reilly, 41 App. Div. 378.
: Provisions APPLICABLE TO CoRPORATIONS. V3

 

The Revised Tax Law.

 

6. Bonds of a municipal corporation heretofore issued for the
‘purpose of paying up or retiring the bonded indebtedness of such
‘corporation.

[Gen. Mun. L. (L. 1892, ch. 685), § 7. The exemption of such bonds has
not been extended to future issues.] .*

7. The real property of a corporation or association organized
‘exclusively for the moral or mental improvement of men or women,
or for religious, bible, tract, charitable, benevolent, missionary,
‘hospital, infirmary, educational, scientific, literary, library, patri-
otic, historical or cemetery purposes, or for the enforcement of
laws relating to children or animals, or for two or more of such
purposes, and used exclusively for carrying out thereupon one or
more of such purposes; and the personal property of any such cor-
poration shall be exempt from taxation. But no such corporation
-or association shall be entitled to any such exemption if any officer,
‘member or employe thereof shall receive or may be lawfully en-
titled to receive any pecuniary profit from the operations thereof
-except reasonable compensation for services in effecting one or more
-of such purposes, or as proper beneficiaries of its strictly charitable
purposes; or if the organization thereof, for any such avowed
‘purposes be a guise or pretense for directly or indirectly making
any other pecuniary profit for such corporation or association, or
for any of its members or employes, or if it be not in good faith
organized or conducted exclusively for one or more of such pur-
poses. The real property of any such corporation or association
-entitled to such exemption held by it exclusively for one or more
of such purposes and from which no rents, profits or income are
derived, shall be so exempt, though not in actual use therefor by
reason of the absence of suitable buildings or improvements -
thereon, if the construction of such buildings or improvements is
in progress, or is in good faith contemplated by such corporation

“.or association; or if such real property is held by such corporation
or association upon condition that the title thereto shall revert
in case any building not intended and suitable for one or more
of such purposes shall be erected upon said premises or some
part thereof. The real property of any such corporation not so
used exclusively for carrying out thereupon one or more of such
purposes, but leased or otherwise used for other purposes, shall.
not be exempt, but if a portion only of any lot or building of any
such. corporation or association is used exclusively for carrying
out thereupon one or more such purposes of any such corporation
or association, then such lot or building shall be so exempt only
to the extent of the value of the portion so used, and the remaining
or other portion to the extent of the value of such remaining or
-other portion shall be subject to taxation ; provided, however, that
Vis Provisions APPLICABLE TO CORPORATIONS.
The Revised Tax Law.

a lot or building owned, and actually used for hospital purposes, by a free
public hospital, depending for maintenance and support upon voluntary charity
shall not be taxed as to a portion thereof leased or otherwise used for the
purposes of income, when such income is necessary for, and is actually applied
to, the maintenance and support of such hospital, and further provided that.’
the real property of any fraternal corporation, association or body created
to build and maintain a building or buildings for its meeting or meetings of
the general assembly of its members, or subordinate bodies of such fraternity
‘and for the accommodation of other fraternal bodies or associations, the entire
net income of which real property is exclusively applied or to be used to build,
furnish and maintain an asylum, or asylums, a home or homes, a school or
‘schools for the free education or relief of the members of such fraternity or
-for the relief, support and care of worthy and indigent members of the fra-
, ternity, their wives, widows or orphans, shall be exempt from taxation. Prop-
erty held by any officer of a religious denomination shall be entitled to the
same exemptions, subject to the same conditions and exceptions, ‘as
‘property held by a religious corporation. ;
(L. 1896, ch. 908, as am’d by L. 1897, ch. 371; L. 1903, ch. 204; L. 1906,

ch. 336.)

[R. S., pt. 1, ch, 18, tit. 1, § 4, subds. 3, 5, 6; R. S., pt. 1, ch. 13, tit. 1, § 4, -
subd. 4, as amended by L. 1892, ch. 713; L. 1847, ch. 133; L. 1852, ch. 282;
L. 1866, ch. 273, § 5; L. 1875, ch. 466, as amended by L. 1889, ch. 462; L.
1879, ch. 203; L. 1879, ch. 310; L. 1882, ch. 326; L. 1889, ch. 95, § 4; L. 1890,.
ch. 118, § 7; L. 1890, ch. 553; L. 1889, ch. 191, as amended by L. 1890, ch.
553; L. 1893, ch. 498.]

8. Real property of an incorporated association of present or former volun-
teer firemen actually and exclusively used and occupied by such corporation:
and not exceeding in value fifteen thousand dollars. ,

[R. &., pt. 1, ch. 13, tit. 1, § 4, subd. 10, as added by L. 1891, ch. 163, with
out change.]

9. All dwelling-houses and lots of religious corporations while actually ”
used by the officiating clergymen thereof, but the total amount of such exemp--
tion to any one religious corporation shall not exceed two thousand dollars.
lea exemption shall be in addition to that provided by subdivision seven of
this section,

[R. S., pt. 1, ch. 13, tit. 1, § 4, subd. 11, as added by L. 1892, ch. 565, with-
out change of substance, except the last sentence, which is new.]

10. The real property of an agricultural society permanently used by it for-
exhibition grounds,

(L. 1856, ch. 183, without change.)

11. The real property of a minister of the gospel or priest who is regularly’ -
engaged in performing his duties as such, or permanently disabled, by im-_
paired health from the performance of such duties, or over seventy-five years
of age, and the personal property of such minister or priest, but the total
amount of such exemption on account of both real and personal property shall
not exceed fifteen hundred dollars,

[Revisers’ Note. R. S., pt. 1, ch. 13, tit. 1, § 4, subd. 8; R. 8., pt. 1, ch.
13, tit. 1, § 5, without change of substance, except that after the word “ age ”
the words “when occupied as a home by such minister or priest ” were:
stricken out.]
Amendment of 1907.

(Insert facing page 774, White on Corporations, 6th edition.)

Laws of 1907, chapter 478, amends the Tax Law, section 4, by adding
thereto u new subdivision to read as follows:

j-a. The commissioners of the sinking fund or other chief financial board
of any city of the first class, may, in their discretion, by resolution, exempt
from taxation for local purposes the real and personal property, or any part
of it, of a corporation or association organized to maintain an academy of
music, if, in the opinion of such board, the interests of such city require the
maintenance of such academy of music, and it shall appear that the prop-
erty so exempted represents or was purchased with the proceeds of popular
or general .subscription for the erection of such academy of music. No
property of such corporation or association shall be exempt, except the real
property consisting of such academy of music and the furniture thereof, or
personal property so subscribed and held for the purpose of constructing
such academy of music. No such exemption shall be made for any year
unless it shall appear that, during the preceding year, the corporation or
-association has not earned « net annual income upon the net cost of such
‘academy and the furniture thereof. }

a 21
Provisions APPLICABLE TO CORPORATIONS. 75

The Revised Tax Law.

12. .\il vessels registered at any port in this state and owned
‘by an American citizen, or association, or hy any corporation,
incorporated under the laws of the state of New York, engaged
In ocean commerce between any port in the United States and
any foreign port, are exempted from all taxation in this state, -
for state and local purposes; and all such corporations, all of:
whose vessels are employed between foreign ports and ports in
the United States, are exempted from all taxation in this state, |
for state and local purposes, upon their capital stock, franchises: :
and earnings, until and including December thirty-first, nineteen
hundred and twenty-two.

be [Revisers’ Note.— L. 1881, ch. 433; R. S., as am. by L. 1892, ch. 661, § 2,
. without change, except that the period of exemption is extended from
May 17, 1922, to Dec. 31, 1922.]

13. A bond, mortgage, note, contract, account or other de-
mand, belonging to any person not a resident of this state, sent‘
to or deposited in this state for collection; the products of an-
other state, owned by a nonresident of this state and consigned -
to his agent in this state for sale on commission for the benefit
of the owner; moneys of a nonresident of this state, under the
control or in the possession of his agent in this state, when trans-

- mitted to such agent for the purpose of investment or otherwise..

[Revisers’ Note.— R. S., pt. 1, ch. 13, tit. 2, § 5; BR. S., pt. 1, ch. 13, tit. 5,
§ 3, re-enacted in part, without change of substance. See Williams v.
‘Supervisors of Wayne, 78 N. Y., 561.]

14: The deposits in any bank for savings which are due de-
‘positors, the accumulations in any domestic life insurance cor-
poration, held for the exclusive benefit of the insured, other
than real estate and stocks, now liable for taxation; the accumu-
lations of any incorporated co-operative loan association upon
the shares of such association held by any person; and personal
property of any corporation, person, company or association
transacting the business of fire, casualty or surety insurance in

»+this state equal in value to the unearned premiums required by
. the laws of this state, or the regulations of its insurance depart-
ment, to bé charged as a liability.

(Thus amended by L. 1901, ch. 618.) °
[Revisers’: Note — L. 1857, ch. 456, § 4; Banking L. (L. 1892, ch. 689),
Ԥ 191, without change in substance. ]

15. Moneys collected in the course of the business of any cor-
‘poration, association or society doing a life or casualty insurance
“business or both, upon the co-operative or assessment plan, and
which are to be used for the payment of assessments, or for death

—Yosses or for benefits to disabled members.
[Revisers’ Note.— L. 1884, ch. 353, § 1, without change of substance.]

oer
"76 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax’ Law.

 

16. The owner or holder of stock in an incorporated company liable:
to taxation on its capital, shall not be taxed as an individual for such
stock. .

[Revisers’ Note——R. S., pt. 1, ch. 13, tit. 1, § 7, without change of
substance. ]

17. The personal property in excess of one hundred thousand dollars.
of a mutual life insurance corporation incorporated in this state before
April tenth, eighteen hundred and forty-nine.

[L. 1853, ch. 469; L. 1855, ch. 83, without change of substance.]

For exemption of certain plank-road or turnpike corporations, see the
Transportation Corporations Law, § 140.

No deduction allowed for indebtedness fraudulently contracted.

§ 6. No deduction shall be allowed in the assessment of personal
property by reason of the indebtedness of the owner contracted. or
incurred in the purchase of nontaxable property or securities owned
by him or held for his benefit, nor for or on account of any indirect lia-
bility as surety, guarantor, indorser or otherwise, nor for or vn
account of any debt or liability contracted or incurred for the purpose
of evading taxation.

[L. 1892, ch. 202.]

’

‘When property of nonresidents is taxable.

§ 7. Nonresidents of the state doing business in the state, either as
principals or partners, shall be taxed on the capital invested in such
business, as “personal property, at the place 4vhere such business is.
carried on, to the same extent as if they were residents of the state.

[L. 1855, ch. 37.]

Subdivision 2. The- personal property of nonresidents of the state
having an actual situs in the state, and not forming a part of capital
invested in business in the state, shall be assessed in the nanfe of the
owner thereof for the purpose of identification and taxed in the tax
district where such property is situated, unless exempt by law. This
subdivision shall not apply to money, or negotiable collateral securities,
deposited by, or debts owing to, such nonresidents nor shall it be con-
strued as in any manner modifying or changing the law imposing a tax
on real estate mortgage securities.

[Subd. 2 is new, added by L. 1906, ch. 248.]

Chapter 37, Laws 1855, which has been superseded by the first sub-
division of the foregoing section was not in contravention of the pro-
visions of the Federal Constitution. (Duer v. Small, 4 Blatchf., 269; 17
How. Pr., 201.) It does not violate either the State or Federal Consti-
tution. (Id; Brown v. Houston, 114 U. S., 633.)

Where the evidence submitted to the assessors as to the nature and
value of the property of a corporation and the amount of its indebted-
ness is not so clear and convincing as to leave no doubt, and there is
some evidence to support the determination of the assessors, it will not
be reviewed and reversed by the court of appeals on certiorari. (People
ex rel. Hecker-Jones-Jewell Milling Co. v. Barker, 147 N. Y., 31.)

When a foreign corporation doing business in this state purchases prop-
erty here for its business, and pays cash for a portion of it, and incurs an
indebtedness for the balance, the amount unpaid is to be deducted from
the value of the property to ascertain the sums invested in this state.
(People ex rel. Heeker-Jones-Jewell Milling Co. v. Barker, 147 N. ¥., 31;
t
Provisions APPLICABLE TO CoRPORATIONS. U7

 

The ‘Revised Tax Law:

 

limiting People ex rel. Thurber-Whyland Co. v. Barker, 141 N. Y., 118, and
reversing 86 Hun, 148.)

In order that a non-resident owner of personal property invested in
business in this State may obtain exemption from such tax, he must
show that his indebtedness to citizens of the State of New York (such
indebtedness not having been incurred in the purchase of the property
assessed) is in excess of all the other personal property owned by.him taxable
under ‘our laws. (People ex rel. Barney v. Barker, 16 App. Div., 266; distg.
People ex rel. Milling Co. v. Barker, 147 N. Y., 34.)

The fact. that the State of his domicile does not permit him to deduct
the amount of his indebtedness from the property there taxed, is imma-
terial where it does not appear that he has not other property subject to
taxation sufficient to pay his indebtedness. (Id.>

Goods owned by a foreign corporatian on sale in the State of New
York the proceeds of which are at once remitted to the home office,
are not taxable. (People ex rel. Sherwin-Williams Co. v. Barker, 5 App.
Div., 246; overruling People ex rel. Martin Bros. Mfg. Co. v. Barker, 14
Misc., 382.)

Foreign corporations are included within the terms of the act subject-
ing non-residents doing business in this State to assessment and taxation
on all sums invested in such business. A person or corporation liable to
assessment and taxation under the act is not entitled to a deduction of
debts. (People ex rel. Thurber, Whyland & Co., 141 N. Y., 118.)

Prior to 1855, great numbers of persons doing business in this State,
‘and having large amounts of moneys invested within its borders, never-
theless chose to reside just outside its confines. Although these persons
were non-residents of the State, yet they came daily within its boundaries
for the purpose of doing business here, and had here large amounts of capi-
tal invested in their business, and yet under our laws they could not be
reached for taxation. Their names could not be put upon an assessment-
roll because they did not reside in any town or ward where an assess-
ment could be made, and they had no agents or trustees who resided
in the State against whom any assessment on account of such property
could be made. To reach the non-resident for the purpose of subjecting .
such property to taxation was the object of chapter 37, Laws of 1855.
(Hoyt v. Comrs. of Taxes, 23 N. Y., 224.)

Foreign corporations are included within the terms of the act of 1855,
ch. 87. (Life Ins, Co. v. Commrs. of Taxes, 1 Keyes, 303, cited in People
ex rel. Bay State, ete., v. McLean, 80 N. Y., 254-259.) Hence it was
said that a foreign corporation doing business in New York was properly
taxable in the city of New York, where its principal place of business or
office of the agency existed. And in this last cited case in 80 N. Y., it
is said that the act of 1855 points out the mode of taxation, viz.,. “the
same as if they were residents of the State;” and in referring to the
mode of taxing a resident corporation it is found that it is to be taxed
in the town or ward where it has a principal office or place for the trans-
action of its financial concerns. The foreign corporation is not to be taxed
in all things the same as if it were a resident, because the statute
expressly provides that it is only to be taxed for the sum invested in
business in this State, and in order to tax it upon that sum no indebted-

e -
778 Provisions APPLicaBLE To CorPoRATIONS.

 

The Revised Tax Law.

 

ness should be allowed. The percentage, the form, the mode of the assess-
ment and taxation upon the specific sum invested in business in this
State are to be the same as if the person were a resident, but inasmuch
as all the subjects of assessment against a non-resident are not within
the jurisdiction of the State, but only the sum here invested, it is plain
that it was never contemplated by the Legislature that such non-resident
should have the right to make deductions from the sum by reason of
debts, while the taxing authorities would have no right to balance such
deductions by an assessment of other property of the non-resident not
situated within the State. (People ex rel. Thurber, Whyland & Co., 141
N Y., 118.)

The assessment of a domestic corporation is made after a deduction
for debts, because its capital and surplus are to be assessed at their actual
value, which cannot be arrived at without considering and deducting
debts. A foreign corporation is not thus taxed, and no inquiry is made
as to the actual value of such capital or surplus, and as such value is
not to be assessed or taxed, the debts should not be deducted from specific
property here. (People ex rel. Thurber, Whyland & Co., 141 N. Y., 118.)

A foreign corporation, having property in this State, can claim no
exemption from taxation on account of the laws of its own State. (People
ex rel. Savings Bk. of New London y. Coleman, 135 N. Y., 231.)

The proofs submitted by a foreign corporation to be used for the purpose
of assessing the valuation of their personal estate within the State are
conclusive upon such corporation, and even if shown to be false, cannot
be corrected by proof on a reference to reduce or cancel the assessment;
and no grievance will be considered upon a proceeding to review the
action of assessors in av:.2: sing the value of personal property of a foreign
corporation, not urged upon the assessors in the application to them for
the reduction and correction of the assessment under review. (People ex
rel, Hecker-Jones-Jewell Milling Co.’v. Barker, 86 Hun, 148; citing People
ex rel. German Looking “Glass Plate Co. v. Barker, 75 Hun, 6.)

Laws 1855, ch. 87, which is superseded by the foregoing section was
held not to be in violation of the provisions of the Federal Constitution
guaranteeing equal privileges and immunities to the citizens of each State
in the several States; nor of those forbidding the imposition of duties on
imported goods by a State. (Duer v. Small, 4 Blatchf., 269; 17 How.
Pr., 201.) . 2

The act was intended to reach the capital of non-residents employed
within this State in continuous trade, and not property sent here only
to market for sale; so where a foreign corporation engaged in manufac-
“turing in another State transmitted to its agent here its manufactured
product for sale, the proceeds being remitted at once, with the securities
received for sales on credit, to the home office, it was not doing business
in this State within the meaning of the act. (People ex rel. Parker Mills
Co. v. Comrs: of Taxes, 28 N. Y., 242.)

This provision applies only to the personalty of foreign corporations, and
not to their real estate. (People ex rel. Keystone Gas Co. v. Assessors
of Olean, 15 St. Rep., 462.)

Securities, other than United States stock, deposited by a foreign insur-
ance company with the Comptroller, as security for policy-holders are
‘

Provisions APPLICABLE TO CoRPORATIONS. 779

 

The Revised Tax Law.

 

liable to taxation. (Internat’l Life Assur, Soc. v. Comrs. of Taxes, 28
Barb., 318.)
A foreign corporation is liable to be taxed upon bonds of a municipality
. within this State, deposited with the State Comptroller under statutory
requirements. Such bonds are personal property, and are to be regarded
as invested in the business carried on. The place of assessment for pur-
poses of taxation of a foreign corporation doing business in this State, is
where the principal business of the.corporation is carried on, not at the
residence of the Comptroller of the State, even as to the ‘securities
depositel with him. (British Commercial Life Ins. Co. v. Comrs. of Taxes,
81 .N. Y., 32; 28 How. Pr., 41.)

That bonds and mortgages deposited by a foreign insurance company
with the superintendent of insurance, may be reached by taxation, see
Smyth v. International Life Assurance Co., 35 How. Py., 126; S. C., 4
Abb. Pr., N. 8. ‘

The fact that a foreign insurance corporation has ceased to issue new
policies within the State, and confines its business to receiving yearly
premiums and paying losses on outstanding policies only, does not exempt
it from taxation. (Smyth v. International Life Assurance Co., 85 How.
Pr., 126.)

Where at the time of making the assessment-roll, the agent of a non-
resident has moneys of his principal in bank, it is liable to taxation,
though before the time for correcting the roll it has been withdrawn and
used. (People ex rel. Westbrook v. Village of Ogdensburgh, 48 N. Y., 390.)

Where a foreign banking company had an agency permanently estab-

‘ lished in the city of New York, to which it transmitted funds to be
employed in temporary loans, subject at all times to its control and drafts,
it was not liable to taxation here for the funds so employed, and the
exemption from taxation of foreign capital sent to agents here for invest-
ment, etc., under Laws of 1851 (ch. 176, § 2), was not removed by the act
of 1855, ch. 87. (People ex rel. Bank of Montreal vy. Comrs. of Taxes, 59
N. Y., 40.)

A foreign corporation doing business in this State, and having a prin-
-cipal office here, is taxable for moneys invested: in such business, as the
personal estate of a domestic corporation is taxed, in the town or ward
of such office, and the assessment at such plact must be exclusive,
embracing all its personal property liable to taxation within this State.
Assessment of personal property of a foreign corporation in the possession
-of an agent in a towii, other than that of such office, by the assessors
of that town, is void. (People ex rel. Bay State, etc., Co. v. McLean, 80
N. Y., 254; affirming 17 Hun, 204; 5 Abb. N. C., 187.) e

Moneys in the hands of a resident partner of a‘ firm having its principal
‘place of business in a foreign country, but which transacted business here,
is subject to taxation, though the business here consisted of purchasing
products for sale abroad, and the moneys were here only for that pur-
‘pose. (Matter of McMahon, 66 How. Pr., 190.)

Place of taxation of real property.
§ 9. When real property is owned by a resident of a tax district
in which it is situated, it shall be assessed to him. When real
780 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

property is owned by a resident outside the tax district where it is
situated, and is occupied, and the occupant is a resident of the tax
district, it shall be assessed to either the owner or occupant. If the
occupant resides out of the tax district or if the land is unoccupied,
it shall be assessed as non-resident, as hereinafter provided by article
two. In all cases the assessment shall be deemed as against the real
property itself, and the property itself shall be holden and liable to
sale for any tax levied upon it.
(Thus amended by L. 1902, ch. 171.)

[R. S:, pt. 1, ch. 18, tit. 2, §§ 1-3.]

The only fact necessary to give assessors jurisdiction as to real estate .
is that it be situated within the town or ward of the assessor’s office. In
making an assessment upon such land they have jurisdiction of the sub-
ject-matter, and while an error committed by them may be subject to
review, it will not make their proceedings void. (Van Rensselaer v. Cot-
trell, 7 Barb., 127; affirmed in Seld. Notes, '25.)

If the assessors have, in form, sufficiently assessed a lot to a person as
Owner, personally, the court will assume for the protection of the officer
that the circumstances necessary to give them jurisdiction to make the
assessment, existed. (Johnson vy. Learn, 30 Barb., 616.)

The lands of railroad companies are to be assessed the same as those of
residents in the towns in which they lie, and not as non-resident lands,
(People ex rel. Dunkirk, etc., R. R. Co. v. Cassity, 46 N. Y., 46.)

A railroad corporation is, for the purposes of taxation of its real estate, a
resident of each town and county through which it passes, and is properly :
assessed in personam therefor. (Buffalo & State Line R. R. Co. v.
Supervisors of Erie, 48 N. Y., 93.)

For purposes of taxation, railroad companies are residents of the towns
through which the roads pass. (People ex rel. Buffalo & State Line R. R.
Co. v. Barker, 48 N. Y., 70; People ex rel. Buffalo & State Line R. R. Co. v.
Fredericks, 48 Barb., 173; see, also, Mygatt v. Washburn, 15 N. Y., 319;
Bissell v. Mich. South. & Northern Indiana R. R., 22 N. Y., 285; Whitney v.
Thomas, 23 N. Y., 285; People ex rel. Hoyt v. Comrs. Taxes, 23 N. Y.,
231; S. C., 21 How. Pr., 385; Brit. Com. Ins. Co. v. Comrs. Taxes, 18 Abb.
Pr., 180; People ex rel. Stephens v. Halsey, 53 Barb., 552; &. C., 36 How.
Pr., 502; Dorn v. Fox, 6 Lans., 168; Barlow v. St. Nich. Nat. Bk., 63 N. Y.,
401; Trowbridge v. Horan, 78 N. Y., 489; Stewart v. Crysler, 100 N. Y., 378.)

Occupied lands owned by persons not residents of the town or ward in
which they were situated, in the absence of statutory provision, may be
assessed against either owner or occupant. (Van Rensselaer y. Cottrell,
7 Barb., 127.)

When real estate is assessed to the owner the name of the owner must
be inserted in the roll; when it is assessed to the occupant, the name of
the occupant should appear. Where real estate was assessed in the name
of one not the owner, adding the words “ or occupant” rendered the roll
fatally defective, and would not support process against property in the
possession of the occupant. (Du Bois v. Webster, 7 Hun, 371.)

The roll should show all the facts necessary to justify the action of
the collector. (Id.)

*
Provisions APPLicaBLE TO CorPoRATIONs. 781.

 

The Revised Tax Law.

 

The corporation owning an elevated railway may be assessed therefor:
_as real estate, though the fee of the land upon which it stands is in
another person or corporation which may be exempt from taxation. (Peo-
ple ex rel. N. Y. Elevated R. R. Co. v. Comrs. of Taxes, 82 N. Y., 459;.
affirming 19 Hun, 460.)

While the assessors of a town have no jurisdiction of the person of a.
non-resident so as to charge him personally with a tax on land owned but
not occupied by him, where the agent of such owner had appeared before-
the assessors and procured a reduction, without protest against the assess-
ment against the owner, this was such a waiver as would bar an action.
by the owner for damages for an illegal assessment. (Hilton v. Fonda,
86 N. Y., 348.)

Assessment to occupant need not indicate that the lands are non-resi-
dent. (People ex-rel. Hoffman v. Bug, 13 Abb. N. C., 169.)

Where by contract between the parties one owns the land and another-
the buildings upon it, each interest may be assessed to its owner. Where-
the owner of the buildings is lessee of the land. the fact that the lessor
has a right of re-entry does not affect the lessee’s present interest. or his.
liability to assessment. (People ex rel. Muller v. Assessors of Brooklyn,
93 N. Y., 308.) ‘ :

Where lands of a non-resident of the county are occupied by a resident
of the town where they are situated they must be assessed to the occu-
pant. An assessment of them to the owner, or as non-resident lands is.
void. (Stewart v. Crysler, 100 N. Y., 378, reversing, in effect, 21 Hun, 285. )
Followed in Calkins v. Chamberlain, 28 W. D., 292.

An assessment of land to a person who is neither owner nor occupant,.
is void. (Whitney v. Thomas, 23 N. Y., 281.)

Non-resident lands are unoccupied lands not owned by a person resid-
ing in the town or ward in which the same are situated. (Hampton v...
Hamsher, 46 Hun, 147.) \

Taxation of real property divided -by line of tax district. -

§ 10. If a farm or lot is divided by a line between two or more.
tax districts it shall be assessed in the tax district in which the
dwelling house or other principal buildings are located, in the
manner provided by section nine of this chapter, the same as
though such farm or lot was wholly in such tax district, except
that if the land is unoccupied or has not buildings thereupon, the
portion of such farm, lot or tract of land lying in each district
shall be separately assessed therein. - If such land is situated in
two or more counties and is wild and uncultivated and not occu-
pied and used for agricultural purposes, the portions of such
land lying in each county shall be separately assessed therein. If
the boundary line of a tax district passes through a building, any
portion of which is used as a dwelling, the owner of such building,
if occupying the same or residing in either tax district, and other-.
wise, the person occupying such building as a dwelling house,,
may elect in which district such building and the adjacent land,

.
782 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law,

 

owned, occupied and connected therewith shall be assessed, by
serving a written notice of such election on the assessors of each
tax district during the month of May; but if such election is not
made, the property shall be assessed in the tax districts in which
it is located.

(Thus amended by L. 1898, ch. 537; L. 1902, ch. 200; L. 1903, ch. 305.)

[Revisers’ Note.— R. S., pt. 1, ch. 18, tit. 2, § 4; L. 1888, ch. 342. The
original law provides that where a tax district line divides an occupied
farm or lot, it shall be taxed in the district where the occupant resides.
‘This section changes the rule and taxes the land to the owner if he resides
in either district., L. 1888, ch. 342, provides that where a dwelling house is
divided by a tax district line, the occupant may elect in which district
the land shall be taxed. This section allows the owner to elect, if he
resides in either district.]

Place of taxation of property of corporations.

11. The real estate of all incorporated companies liable to
taxation, shall be assessed in the tax district in which the same shall
lie, in the same manner as the real estate of individuals. All the
personal estate of every incorporated company liable to taxation
on its capital shall be assessed ix the tax district where the principal
office or place for transacting the financial concerns of the company
shall be, or if such company have no principal office, or place for
transacting its financial concerns, then in the tax district where the
operations of such company shall be carried on. In the case of
toll bridges, the company owning such bridge shall be assessed in
the tax district in which the tolls are collected; and where the tolls
of any bridge, turnpike, or canal company are collected in several
_ tax districts, the company shall be assessed in the tax district in
which the treasurer or other officer authorized to pay the last pre-
ceding dividend resides.

[R. 8., pt. 1, ch. 18, tit. 2, § 6, without change.]

See cases cited. under section 9, relative to real property, several of
‘which are applicable under this section.

Stock corporations which pay an annual tax to the Comptroller of the
State as a franchise or license tax, are exempt from the payment of State
taxes assessed by local authorities. (See section 202, post.)

In case the statute under which a corporation is organized requires that
its principal place of business, or its principal office, be designated in its
certificate of incorporation, the statement is, as against the corporation,
conclusive evidence of its residence, unless it has been changed pursuant

to some statute. (People ex rel. Knickerbocker Press v. Barker, 87 Hun,
341; People ex rel. Edison Electric Light Co. v. Barker, 91 Hun, 594.)
Provisions APPLicABLE TO CoRPORATIONS. ° 783

 

The Revised Tax Law.

 

The statement of location of its principal office or place of business is a
condition precedent to the organization of a business corporation, and,
should it appear that the location was willfully misstated in the certifi-
cate, or in case the corporation should change its principal place of busi-
ness, without effecting a legal change of residence, for the purpose of
evading taxation, it might present a case under section 1798 of the Code
of Civil Procedure for the attention of the Attorney-General. (People ex
rel. Knickerbocker Press v. Barker, 87 Hun, 341.)

Where a certificate of incorporation definitely states the location of the
principal office of the company and adds a clause, “or at such other place
as the stockholders of the company might determine,” the additional
clause has no force, touching the residence Of the corporation for the pur-
poses of taxation, and must be treated as surplusage. (People ex rel.
Edison Electric Light Co. v. Barker, 91 Hun, 594.) .

Residence of a corporation for the purposes of taxation cannot be
inferred from the mere place of filing its certificate of incorporation.
When the law under which it was formed does not fix its residence or
require the location of its principal office to be stated in the certificate,
its residence is deemed to be where its principal place of business is actu-
aliy situated. (Austen v. Hudson River Telephone Co., 73 Hun, 96; Austen
vy. Westchester Telephone Co., 8 Misc. R., 11; Oswego Starch Factory v.
Dolioway, 21 N. Y., 454; Conroe v. Natl. Protection Ins. Co. 10 How. Pr.,
403; Hubbard v. Same, 11 id., 149.)

Railroad companies are residents of the towns through which the road
~uns. (Buffalo & State L. R. R. Co. v. Supervisors, ete., 48 N. Y., 93;
People ex rel. Dunkirk & F. R. R. Co. v. Assessors, 46 N. Y., 46; People
ex rel. Buffalo & St. L. R. R. Co. v. Barker, 48 N. Y., 70; People ex rel.
D. L. & W. R. R. Co. v. Reid, 64 Hun, 553.)

When a law under which a corporation is organized requires the certifi-
cate of incorporation to state the location of the principal office, and such
location is stated in the certificate, the statement is conclusive evidence
ot the residence of the corporation for the purposes of taxation under
this section. (Austen v. Hudson Riv. Telephone Co., 73 Hun, 96; Western
Transportation Co. v. Scheu, 19 N. Y., 408; Oswego Starch Factory v.
Dolloway, 21 id., 449; Chesebrough Mfg. Co. v. Coleman, 44 Hun, 545;
Union Steamboat Co. v. Buffalo, 82 N. Y., 351.)

The issue as to the residence of a corporation for the purposes of taxa-
tion is sufficiently raised by a denial that its principal place of business
was fixed in its certificate, and an allegation that all its property, fran-
chises, rights and business were outside the county. (Austen ‘v. West-
chester Telephone Co., 8 Mise. R., 11.)

A denial on information and belief of the allegations of the complaint
in an action to collect personal taxes as to the proceedings for the assess-
ment and levy of such tax, and that, demand had been made therefor.
vaises no issue and is frivolous. (Id.) °

A receiver of taxes of New York city need not make a demand of the
officer of a corporation before bringing an action to collect a tax levied
against it. (Id.) But, see to the contrary U. S. Trust Co. v. Mayor, ete.,
of New York, 77 Hun, 182; McLean v. Manhattan Medicine Co., 54 N. ¥.

Super. Ct., 37 1.
‘ /
“784 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

A tax for school purposes, of that part of a toll-bridge lying within a
:school district, assessed as real estate, is valid. (Hudson River Bridge Co.
7. Patterson, 74 N. Y., 365; affirming 11 Hun, 527.)

The general provision of 1 R. S., 389, § 5, authorizing the assessment
of personal estate in the hands of an agent, against him, in the same
manner as if he were owner, does not apply to corporations liable to tax-
-ation on their capital, which have a principal office within this State.
‘(People ex rel. Bay State, etc., Co. v. McLean, 80 N. Y., 254; affirming 17
Hun, 204.)

The location of the principal financial office of a corporation doing busi-
ness in different places, indicated in its certificate, determines the place
where it should be taxed. (Péter Cooper’s Glue'Factory v. McMahon, 15
Abb. N. C., 314.)

Cars on a railroad the owner of which is domiciled in another State,
are not exempt from local taxation by reason of being instrumentalities
used exclusively for interstate commerce. (Pullman Palace Car Co. v.
“Twombly, 29 Fed. Rep., 658.)

As to the situs of rolling stock for purposes of taxation, see Marye v.
Balt & Ohio R. R. Co., 127 U. S., 117.

The persona! property, within this State, of corporatiohs, both domestic
-and foreign, is taxable at the place where the principal office within this
State is located, without regard to the particular situs of the property.
(People ex rel. Keystone Gas Co. v. Assessors of Olean, 15 St. Rep., 461.)

Taxation of corporate stock.

§ 12.° The capital stock of every company liable to taxation,
except such part of it as shall have been excepted in the assessment-
roll or shall be exempt by law, together with its surplus profits or
reserve funds exceeding ten per centum of its capital, after deduct-
ing the assessed value of its real estate, and all shares of stock in
-other corporations actually owned by such company which are tax-
able upon their capital stock under the laws of this state, shall be
-assessed at its actual value.

[L. 1857, ch. 456, § 3, without change.]

Indebtedness incurred for the purchase of the good will of a business
‘cannot be deducted from the value of the taxable personal property of a
corporation under section 6 of the Tax Law, which prohibits the deduc-
tion of indebtedness incurred in the purchase of non-taxable property,
since good will, though it constitutes property, is not taxaple as such for
general town, county, or municipal purposes. (People ex rel. Cornell
Steamboat Co. v. Dederick, 161 N. Y., 195, modifying 41 App. Div., 617.)

The word “person” as mentioned in sections 21 and 37 of the Tax
Law, providing for deduction of debts from personal property, includes: a
corporation by virtue of Statutory Construction Law, section 5, and a cor-
poration is entitled, therefore, to have its debts deducted from the value of
‘the property, in an assessment of its personal property for town, county
‘or municipal purposes. (People ex rel. Cornell Steamboat Co. v. Dederick,
“161 N. Y., 195, modifying 41 App. Div., 617.)
Provisions APPLICABLE TO CORPORATIONS. W85

 

The Revised Tax Law.

 

In assessing the personal property of a trust and safe deposit company
theré should be taken from the gross assets all debts, including amounts
due to depositors, and from the balance there should be deducted that
part of its capital invested in United States bonds, the stock of other cor-
porations taxable upon their capital stock, and 10 per @ent. of its capital
«stock. (People ex rel. Trust & Deposit Co. v. Norton, 53 App. Div., 557;
People ex rel. Bridgeport Sav. Bk. v. Barker, 154 N. Y., 128.)

Good will, as such, is not taxable for general town, county, or municipal
purposes. (People ex rel. Cornell Steamboat Co. v. Dederick, 161 N. Y.,
‘195, modifying 41 App. Div., 617.)

The provision re-enacted in section 31 of the Tax Law, requiring an
-assessment of the amount of the ‘capital stock of a corporation ‘“ paid in
-or secured to be paid in” is superseded by the provision re-enacted in
section 12, which requires capital stock to be assessed at its actual value.
(People ex rel. Cornell Steamboat Co. v. Dederick, 161 N. Y., 195, modify-
ing 41 App. Div., 617.)

The tax commissioners are justified in assuming that the capital stock
-ef a corporation, which pays annual dividends of 6 per cent., is .unim-

’ paired, but evidence may be introduced showing that it has been impaired
by the existence of debts, which evidence, if believed, overcomes the pre-
sumption that might otherwise exist. (People ex rel. Manhattan Ry. Co.
v. Barker, 165 N. Y., 305, revsg. 48 App. Div., 248.)

An application made under the charter of the city of New York (Laws
1897, chapter 378, sections 875 and 906), to its tax commissioners for cor-
‘rection of an assessment of real estate upon the grounds of overvaluation
-and of inequality must, to entitle the applicant to a review by certiorari,
be in writing and state the marketable value of real estate, as well as
‘the facts, relative to other real estate, which are deemed to show over-
valuation and inequality. (People ex rel. Marlborough Hotel Co. v. Feit-
ner, 33 Misc., 293.)

A foreign corporation which has for six successive years carried on
“business in this State under the statutory certificate permitting it to do so,
keeping on hand in New York city a stock of goods, having there a regular
“bank account for the purpose of defraying expenses, fixing there the terms
-of sale and credit for its New York business, and making collections there
for that business is taxable upon the value of such goods, the amount
‘receivable in this State on notes and open accounts, the value of its
fixtures, etc., in New York State and upon its bank balance. (People ex
‘rel. Reversible Collar Co. v. Feitner, 31 Misc., 553.)

A foreign corporation, with capital invested in a continuous business in
‘this State and liable for local taxation, is not entitled to a general
deduction of its debts from the amount of property subject to local taxa-
tion. (People ex rel. Humber Co. v. Barker, 141 N. Y., 118.) But when
.such a corporation purchases property in this State, partly for cash and
‘partly on credit, the capital invested in this State for the purpose of local

50
786 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

taxation is the amount actually paid and not the value of the property —
that is to say, the company is entitled to deduct from the value of the
property the amount still due. (People ex rel. Hecker Milling Co. v.
Barker, 147 N. Y., 31.)

A foreign corporation, which has obtained a certificate of authority,
which manufactures goods here and elsewhere and sells same, is engaged
in a permanent and continuous business in this State and is liable for a
tax on value of merchandise on hand, the notes and accounts due the
corporation for property sold in this State, the bank accounts, office fur-
niture and other property here, after deducting debts owing for expenses.
incurred for items included in such sales and assets, notwithstanding that
one-half of the business consists in selling goods manufactured elsewhere,
the proceeds of which, after deducting expenses, are sent to the main
office in another State. (People ex rel. Armstrong Cork Co. v. Barker, 157
N. Y., 159, modifying 31 App. Div., 263.)

An indebtedness incurred by a street railway company in the purchase
of franchises cannot be deducted from its assets for the purpose of deter-
mining the proper assessment for municipal taxes for the year 1894, since
such franchises were not then taxable and consequently fell within the
provision prohibiting the deduction of indebtedness incurred in the pur-
chase of non-taxable property. (People ex rel. Manhattan Ry. Co. v.
Barker, 165 N. Y., 305, revsg. 48 App. Div., 248.)

It seems, when a foreign corporation, having a certificate of authority
to do business in this State, has a sales depot here which it intends to
maintain permanently, a managing agent, travelling salesmen, and a
bank account for the payment of local expenses, the management of the
local office being practically controlled here, it is liable for a tax on its
capital invested here. (People ex rel. Crane Co. v. Feitner, 49 App. Div.,
108.) In such cases it is liable for a tax even if the proceeds of sales
are at once remitted to the home office in another State. (People ex rel.
BR. C. Co. v. Feitner, 31 Misc., 553.)

A domestic corporation having its general office in New York city and
engaged in mining and selling copper in Arizona is taxable here upon
deposits made by it in various banks outside of the State, and on bills and
accounts receivable for copper sold outside the State, all of which are
payable at the New York office. (United Verde Copper Co. v. Feitner,
54 App. Div., 217.)

In assessing the capital of a foreign corporation, the market value of its
share stock is immaterial, unless, perhaps, all of its business is done in this
State. (People ex rel. Oswego C. Co. v. City of Oswego, 5 Hun, 117.) The
market value of shares is an erroneous basis. (People ex rel. Bleecker
St. & Fulton Ferry R. R. Co. v. Barker, 85 Hun, 210.)

The good will of a corporation is taxable with its franchise as a part of
the value of its capital stock. A corporation which claims that the value
of its franchise was included in the assessment of its personal property
must prove the value of such franchise before it can claim a deduction
'

Provisions APPLICABLE TO CORPORATIONS. 787.

 

The Revised Tax Law.

 

therefor. (People ex rel. N. Y. & Queens Gas & Electric Co. v. Feitner,
58 App. Div., 555.)

In fixing the value of the personal property of a corporation the assessor
was not bound by a previous assessed value of the corporation’s real
estate for the purpose of local taxation, but may legally disregard it and
estimate the real estate at its actual value, although this exceeds the
assessed valuation. (People ex rel. N. Y. & Queens Gas & Electric Co. v.
Feitner, 58 App. Div., 555.) :

A foreign corporation, which is liable for personal sums invested in
business in this State, is taxable upon credits and bills receivable which
are in this State and are due the corporation for merchandise sold by it
in the transaction of its business in this State. (People ex rel. Yellow
PineCo. v. Barker, 23 App. Div., 524; aff’d, 155 N. Y., 665.)

Where a New Jersey corporation, which does a large portion of its
business in this State, makes an application to tax commissioners to cor-
rect an assessment upon the property which it had invested in business
in this State, the commissioners may take into consideration in disposing
of the application the willful refusal of the president of the corporation to
testify in regard to business of the company in New Jersey. (People ex
rel. H. B. Claflin Co. v. Feitner, 58 App. Div., 468.)

The taxability of open accounts and bills receivable of a foreign cor-
poration with a sales agency in this State, depends upon whether or not
the goods which they represent, if still unsold, would have been taxable.
(People ex rel. Nat. Sew. M. Co. v. Feitner, N. Y. Law Journal, Mar. 15,
1899.)

Where the return to a writ of certiorari, issued to review assessment
on real property in New York city upon the ground of excessive valuation
and ihequality, raises an issue of fact, the proceeding should.be heard at
special term, pursuant to the provisions of the Tax Law, and not at the
Appellate Division, under section 2138 of the Code. (People ex rel. Ken-
dall vy. Feitner, 51 App. Div., 196.)

The provision for the assessment of capital stock of a corporation at
its actual value under this section does not conflict with or prohibit a
deduction of the company’s indebtedness in determining such value.
(People ex rel. Cornell Steamboat Co. v. Dederick, 161 N. Y., 195, modify-
ing 41 App. Div., 617.)

A petition for a writ of certiorari is sufficient prima facie to establish
overvaluation and “inequality of assessment when it alleges that the
assessment of the relator’s property was increased 66 2-3 per cent. during
the year, while the increase of all other real estate is only 159-10 per
cent., and when it further alleges that the other real estate was assessed
at a lower proportionate valuation than the petitioner’s real estate.
(Broadway Realty Co. v. Feitner, 61 App. Div., 156; aff’d, 168 N. Y., 661.)

When assessing the capital stock, and surplus of a corporation whose
chief asset is a building erected on leased ground, the assessors may
738

Provisions’ APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

estimate the building at its actual value, and then add the value of the
personal property, and from this amount deduct the assessed value of the
‘building. (People ex rel. Eden Musee Co. v. Feitner, 60 App. Div., 282.)
Where on a hearing it appears that the building was erected at a cost of
$243,329, and was carried on the books at that price, and the corporation,
instead of furnishing evidence as to the value of the building, merely
shows that the assessed value of the building was $105,000, and that the
price of its stock had ranged from 40 to 60 for several years, the assessors
are justified in finding that the cost of the building represented its actual
value. (Id.)

In fixing the value of a lease of the property and franchise of one rail-
road corporation to another, the assessors, for the purpose of assessing the*
capital and stock surplus of the lessee corporation, have the right to con-
sider the nature of the estate granted, its duration and the profits, if any,
realized from operating the leased property, but should deduct therefrom
the value of the leased franchise, as that is taxable under another statute,
(People ex rel. D. & H. C. Co. v. Feitner, 61 App. Div., 129.)

The phrase “ capital stock,” as used in the statute, means not the stock
held by the stockholders, but the capital owned by the corporation and
paid in and used as a basis of the business enterprise. (People ex rel.
Union Trust Co. v. Coleman, 126 N. Y., 434; People ex rel. Trust & Deposit
Co. v. Norton, 53 App. Div., 557.)

For the purpose of taxation by a foreign corporation, under the provi-
sions of section 7 of this law, the value of notes and open accounts, owed
to the corporation for merchandise sold by it in the course of its business
in this State, is properly included in the assessment. (People ex rel. Arm-
strong Cork Co. v. Barker, 157 N. Y., 159, modifying 31 App. Div., 263.)

Where the business of a foreign corporation carried on in this State is
intended by it to be a permanent and continuous business, including both
the manufacture and sale of goods, the value of its merchandise at the
place designated by it as its principal place of business in the State is
properly assessed for taxation under section 7 of this law, as being
investeu in the business in this State, although the business conducted
at that place consists wholly of sellmg, and, while a portion of the goods
held there for sale was manufactured by the corporation within this State

_a large portion was manufactured at the corporation’s domicile in another
State, to which the proceeds of sales are remitted. (People ex rel. Arm-
strong Cork Co. v. Barker, 157 App. Div., 159, modifying 31 App. Div.,
263.)

Under section 895 of the New York charter, which provides that an
application for the correction of an assessment relating to real estate
must be made in writing, stating the ground of objection thereto, the
complaining taxpayer must do something more than make a claim. He
must state the facts. If he neglects to do this he cannot, upon obtaining
Provisions APPLICABLE TO CoRPORATIONS. 789

 

The Revised Tax Law.

 

a writ of certiorari, require the court to enter upon a new and original
inquiry. (Sutphen v. Feitner, 45 App. Div., 542.)

When a foreign corporation has only a sales agency and a small bank
‘account for the payment of office expenses in the State, the proceeds of
‘sales not being reinvested here, but at once remitted to home office, and
none of the officers being residents, it is liable for a tax based only on
such bank account, and the value of office furniture, and is not liable for a
tax on the value of goods kept on hand. (People ex rel. Sherwin Co. v.
‘Barker, 5 App. Div., 246; aff’d in 149 N. Y., 623; People ex rel. Nat. Sew.
'M. Co. v. Feitner, N. Y. Law Journal, Mar. 15, 1899.)

Fee damages paid by an elevated railroad company to abutting owners
represent property that may be assessed, but damages paid on account
‘of past interference with their use of easements of light, air and access
do not form a basis for assessment. \(People ex rel. Manhattan Ry. Co. v.
Barker, 165 N. Y., 305, revsg. 48 App. Div., 248.)

The provision that in assessing personal property for taxation “no
deduction shall be made or allowed for or on account of any debt or
liability contracted or incurred in the purchase of non-taxable property,”
applies to debts incurred in the purchase of imported goods not taxable by
‘the State. (People ex rel. Bijur v. Barker, 155 N. Y., 330, aff’g 21 App.
Div., 480.) Imported tobacco in original packages, which has been sub-
jected to a duty under the United States Revenue Laws, is non-taxable
property. (Id.) The above provision, as quoted, is not confined to cases
where the debt was fraudulently contracted to evade taxation. (Id.)
This provision is not unconstitutional as working a discrimination in taxa-
tion. (Id.)

In determining the actual value of the property to be taxed, the com-
missioners are-justified in deducting only the assessed value of the real

estate and taxing as capital and surplus the difference between the
assessed and actual value as represented ‘by the cost. (People ex rel.
Equitable Gas Light Co. v. Barker, 144 N. 'Y., 94; People ex rel. N. Y.
‘Clearing House Co. v. Barker, 23 Misc., 192; aff’d in 31 App. Div., 315 and
158 N. Y., 709; Jenkins v. Neff, 163 N. Y., 320.) t

The provisions of the Code of Civil Procedure govern as to the four
months’ time within which a writ of certiorari may be issued, but as to.
all proceedings relating to the mode and scope of the review of assess-
ments, alleged to be erroneous for excessive valuation of inequality, the
provisions of the Tax Law are controlling and exclusive. (People ex rel.
Kendall v. Feitner, 51 App. Div., 196.) i

The taxation of the capital of a foreign corporation was not intended
to apply to goods sent here for the purpose of sale, but to funds used in
the prosecution of a continuous business. When a foreign manufactur-
ing corporation with a depot and agent in New York sends its goods here
for sale, its only business in this State, consisting in the making of such
sales, the proceeds of which are reniitted to the corporate office in another
a
790 Provisions ApPLicaABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

State, and when sales are made on credit, the securities are sent to the
home office for collection, it is not liable for a local tax on its goods in this.
State. (Parker Mills v. Com’rs, 23 N. Y., 242.) The rule is the same
under present law. (People ex rel. Armstrong Cork Co. v. Barker, 157 N.
Y., 159.) ‘

Real property tondemned for the use of the city of New York is subject
to taxation ‘until the final confirmation of the report of the commissioners
of estimate. (Matter of Board of Education, 59 App. Div., 258.)

The surplus profits or reserve funds contemplated by the Tax Law are
the accumulations of the company of moneys or property in excess of the
par value of the stock issued by it, and if after the real estate and per-
sonal property is assessed at its actual value, no surplus over the par
value_of the stock is shown, or if such surplus does’ not exceed 10 per
cent. of the capital stock, there is nothing to assess as surplus and nothing
from which the 10 per cent. of the capital can be deducted. (People ex
rel. Manhattan Ry. Co. v. Barker, 165 N. Y., 305, revsg. 48 App. Div., 248.)

Where the tax board of New York assesses a railroad corporation upon
its roadbed lying in a city street, which has been assessed by the State
board as a part of the special franchise ‘of the corporation, the remedy
of the corporation is by certiorari and not by mandamus. (People ex rel.
N. Y. & Harlem R. R. Co. v. Tax Board, 55 App. Div., 544.)

Assessors can only make such deductions from the gross value of the
personal assets of the corporation as are expressly authorized by the
statute. (People ex rel. Nat. Surety Co. v. Feitner, 166 N. Y., 129, aff’g
54 App. Div., 633.)

A corporation assessed by the commissioners of taxes submitted a
verified statement of its assets and liabilities, by which it appeared that
the property subject to taxation amounted to $52,334.11. The commis-
sioners then examined the officers of the corporation, but secured na
evidence to contradict the verified statement. The treasurer of the cor-
poration, however, stated thatt the corporation had paid a dividend of
5 per cent.; that he considered its stock worth par, and that its capital
was substantially unimpaired. The commissioners thereupon assumed
that the surplus property of the company above its debts was equal to.
its capital stock, and on that basis assessed the property at the sum of
$199,300. Held. that the assessment should be reduced to the sum appear-
ing in the verifiéd statement as the amount on which the corporation was:
taxable; that the treasurer’s statement, that he considered the stock
worth par, and the capital unimpaired, was a mere conclusion and not
sufficient to impeach the uncontradicted evidence as to the actual amount
of the company’s assets and liabilities. (People ex rel. Brokaw Bros. v-
Feitner, 44 App. Div., 278.)

The question on review of an assessment is, whether irrespective of
the method whereby the result was reached, the assessment imposed was
in excess of the actual value of the property sought to be taxed. (People
Ss .

Provisions APPLICABLE TO CoRPORATIONS. 791

 

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ex rel, Eden Nusee Co. v. Feitner, 60 App. Div., 282; People ex rel.
‘United States Verde Copper Co. v. Feitner, 54 App. Div., 217; People ex
tel. Equitable Gas Co. v. Barker, 66 Hun, 21; aff’d in 137 N. Y., 544.)

The commissioners of taxes have no right to consider the good will of
‘a business as property subject to taxation. (People ex rel. Brokaw Bros.
v. Feitnet, 44 App. Div., 278.)

Money permanently kept by a domestic corporation in an English bank;
as a fund to defray expenses incurred in England, is not taxable. (Kur-
sheedt Mfg. Co. v. Feitner, 32 Misc., 84.)

Tangible personal property which once had its situs within the State,
‘and which has been sent temporarily without the State, is taxable. (Kur-
‘sheedt Mfg. Co. v. Feitner, 32 Misc., 84.)

Where a domestic corporation furnishes the tax commissioners with
a full and complete statement of its assets and liabilities, together with
its balance sheet supporting such statements, the’ commissioners are, in
the absence of any other ‘evidence, bound to make such statement the
‘basis of their assessment against the corporation. (People ex rel. EB.
‘Seidenberg, Stiefel & Co. v. Com’rs of Taxes, 41 App. Div., 571.)

The provision, that the capital of a corporation “shall be assessed at
its actual value,” requires the deduction of the debts of the corporation
when the assessment is made. (People ex rel. Rochester Railway Co. v.
Pond, 37 App. Div., 330.),

The tax commissioners in valuing the whole property owned by a. cor-
poration, whether real or personal, from which aggregate is to be deducted
the assessed value of the real estate, are not bound to value such real
estate at its assessed value. (People ex rel. N. Y. Clearing House ‘Bldg.
Co. v. Barker, 31 App. Div., 315.)

In determining the actual value of assets of a corporation, real estate
should be included at its actual and not at its assessed valuation, and in
‘determining the value of the shares of the corporation, the assessed value
of the real estate and not the actual value is to be deducted from the total
value of the capital stock. (Jenkins v. Neff, 29 Misc., 59.)

A corporation is not entitled to a deduction upon the’ground that its
‘surplus exceeds 10 per cent. of its capital stock, where it appears that
the alleged surplus may have resulted from an enhancement of ‘the.
value of its franchise, which is exempt from taxation. If such surplus
is from savings or accumulations from its business, that fact should
be affirmatively shown. (People ex rel. Citizens’ Blectric Ill’g Co. v. Neff,
26 App. Div., 542.) '

A corporation is entitled to a reduction of 10 per cent. of the amount
of its capital stock only ;when its surplus profits or reserve fund, as
‘returned for taxation, equal 10 per cent. of its capital stock. (People
ex rel. Citizens’ Electric Ill’g Co. v. Neff, 26 App. Div., 542.)

When a corporation makes supplemental and inconsistent verified state-
799 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law. .

 

ments as to its liability to taxation the commissioners are to act judi-
ciously upon such statements, and their conclusion, based upon the first
statement, will not be disturbed. (People ex rel. McShane Mfg. Co. v.
Barker, 23 App. Div., 530.) ‘

Dividends declared by a corporation, but retained in its business, are
taxable. (People ex rel. Hawley Box & Lumber, Co. v. Barker, 23 App.
Div., 532.)

Where a domestic corporation is entitled under the State Tax Law to
exemption from taxation upon its capital stock and personal property
and has, for several years, paid to the State such tax, and also paid, during
the same period, taxes levied upon its personal property by a city in
ignorance of the fact that any amount for State purposes was included
therein, the latter payment cannot be considered to have been voluntary
and the corporation may obtain an order requiring the city to refund
amounts unjustly collected. (Matter of Edison Electric Illuminating Co.,.
22 App. Div., 371.)

Franchises of a street railroad are not subject to local taxation. (People
ex tel. Brooklyn City R. R. Co. v. Neff, 19 App. Div., 590.) Where the
return to a writ of certiorari shows that the paid-up capital of a street
railroad corporation is $12,000,000, and the actual value of all its assets:
$8,000,000, and that the lawful deductions to be made therefrom for the
assessed value of its real estate and debts exceed that sum, the corpora-
tion is not taxable for personal estate, notwithstanding the fact that the
market value of its stock is 180. (People ex rel. Brooklyn City R. R. Co.
v. Neff, 19 App. Div., 590; affd., 154 N. Y., 763.)

When the value of the assets of a corporation cannot be definitely
ascertained, the method to establish a valuation for taxation is to deduct
the assessed value of its real estate from the market value of its stock,
but no deduction from the result should be made for good will of the
business where it is shown that no good will of any value enters into
the market value of the stock. (People ex rel. Malcolm Brewing Co..v.
Neff, 19 App. Div., 596.)

Real estate, located outside the State of New York, and held by a rail-
road corporation, is to be entirely excluded from the assets in Assessing
its capital. (People ex rel. D. & H. C. Co. vy. Barker, 23 Misc., 188.)

The tax commissioners, in deducting the valuation of real estate, are
not limited by the assessed valuation and may, if they deem proper,
estimate it at its full value. (People ex rel. N. Y. Clearing House Bldg.
Co. v. Barker, 23 Misc., 192.)

A patent is an incorporeal right —a franchise conferred by thé sov-
ereign power upon and belonging to the patentee, and like other personal
rights attends his person and exists where he is or where he puts it in
use. (People ex rel. Edison Electric Lt. Co. v. Campbell, 138 N. Y., 543.)

Letters-patent of the United States are not subject to State or local
taxation where it is found that the patent rights are owned by the cor-

\
Provisions APPLICABLE TO CoRPORATIONS. 793

 

The Revised Tax Law. :

 

poration, even though not the original patentee. (People ex rel. Edison
Blectric Ill’g Co. v. Assessors of Brooklyn, 156 N. Y., 417, aff’g 19 App.
Div., 599; N. Y. & N. J. Telephone Co. v. Neff, 15 App. Div., 13.)

A corporation cannot be taxed for the value of stock which it owns in
another company where it is shown that such other company is taxed in
the same city upon its own property. (People ex rel. Edison Electric Ill’g
Co. v. Neff, 19 App. Div., 599; aff’d in 156 N. Y., 417.)

It need not appear from the return to a writ of certiorari to review an
assessment for taxation that the relator has been aggrieved before the
court has jurisdiction to grant the writ, since, under the provision of sec-
tion 253 of the Tax Law (L. 1896, ch. 908), that the court may take testi-
mony itself, or by a referee, if upon the hearing it shall appear necessary
to the disposition of the matter, the return is not conclusive. (People ex
rel. Thomson v. Feitner, 168 N. Y., 441, aff’g 61 App. Div., 117.)

The right of relator to have testimony taken on certiorari to review an
assessment for taxation is not an appeal to the discretion of the court as
on a motion for a.new trial; but is a substantial right which must be
granted, where issues of fact are framed by the petition and return, and
evidence is necessary for their proper disposition, since the ‘provision of
section 253 of the Law Tax, that the court may take such testimony when
necessary for the proper disposition of the matter, must be regarded as
mandatory. (People ex rel. Thomson v. Feitner, 168 N. Y., 441, aff’g 61.
App. Div., 117.)

The validity of an assessment, levied by town assessors, is not affected
by the fact that the columns of the assessment-roll were not arranged
just as directed by the statute, or that the corporation was erroneously
designated. (People ex rel. Mohawk & Malone Ry. Co. v. Garmon, 63 App.
Div., 530.)

Lands of a.religious corporation used for producing revenue for main-
taining a school belonging to the corporation are exempt. (People ex rel.
Blackburn v. Barton, 63 App. Div., 581.)

In assessing the capital stock of a corporation under this act the actual
value of its capital stock, not the market value of its share stock, is to be
considered; in other words, its actual tangible personal property and not
its franchises. (People ex rel. Manhattan Ry. Co. v. Barker, 146° N. Y.
304.) If is not to be presumed that the indebtedness of a corporation
represents its actual tangible property in addition to that represented by
its capital stock. (Id.) In making an assessment the earnings of a cor-
poration may be considered, and where they are such as to enable the com-
pany to pay expenses, repairs, interest charges and a dividend of 6 per
cent. and still have a surplus, it may be assumed that its capital stock
remains unimpaired, and that there are surplus assets sufficient to pay
its outstanding indebtedness. (Id.)

When an assessment has been made with jurisdiction, and the property- .
owner has paid, he cannot recover back the payment until the assessment
794 Provistons APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

has been vacated or set aside in some appropriate proceeding. But this
rule does not apply to defects in the proceeding which render the assess-
ment void for want of jurisdiction. (Mutual Life Ins. Co. v. City of New
York, 144 N. Y., 494.)

While the petition for a writ of certiorari under chapter 269, Laws of
1880, must specify “the grounds of the alleged illegality,” only the con-
clusions of fact need be stated, not the evidence necessary to support
them; the pctition is in this respect, in the nature of a pleading. (People
ex rel. Commercial Mutual Ins. Co. v. Tax Comrs. of New York, 144 N. Y.,
483.)

The system for the review and correction of assessments by writ of
certiorari under chapter 269, Laws of 1880, furnishes an exclusive remedy
to the dissatisfied taxpayer where the illegality complained of consists,
not in the lack of jurisdiction, but in the commission of errors on the part
of the taxing officers, vitiating the assessment and laying it open to can-
cellation or reversal. (United States Trust Co. v. City of New York, 144
N. Y., 488.)

In determining the value of the real estate the assessors are not bound
by the assessed valuation. This does not necessarily show the full value
and the assessors may legally disregard it, and estimate the real estate at
its actual value, even if it exceeds the assessed valuation. (Equitable Gas
Light Co. v. Barker, 143 N. Y., 94, and cases therein cited.)

A corporation declared a dividend on December 7, 1893, and made it pay-
able January 10, 1894. The tax authorities fixed upon January 8, 1894,
as the day upon which the taxable status of the corporation should be
determined. Held, that the dividend was not a part of the “surplus
profits or reserved funds” of the corporation, and was not taxable as
property of the corporation under the foregoing section. (People ex rel.
U. 8S. Trust Co. v. Barker, 86 Hun, 131.) Dividends declared, but payable
in the future, belong to the shareholders of the corporation. (Id.)

The market value of the shares of a corporation is an erroneous basis
for determining the amount of the capital of the corporation liable to taxa-
tion. It is the corporate assets constituting the capital that is the subject
of taxation. (People ex rel. Bleecker St. and Fulton Ferry R. R. Co. v.
Barker, 85 Hun, 210.)

Unless a proper petition is presented the court is without jurisdiction to
entertain certiorari proceedings. (People ex rel. Commercial Mut. Ins. Co.
v. Tax Comrs. of N. Y., 83 Hun, 11.) Where it is sought to review an
assessment of property made for the purposes of taxation in any town,
ward, village, or city, because of alleged illegality of the assessment, under
the provisions of chapter 269, Laws of 1880, the petition must specify the
particulars of the alleged illegality,’and no general statement is suffi-
cient. (Id.) In certiorari proceedings to review an assessment for taxation
made by a city, proof should be made that the grievances complained of
are the same as those urged upon the assessing officers, as only such

: grievances can be corrected upon certiorari. (Id.)

In case the statute under which a corporation is organized requires that
its principal place of business, or its principal office, be designated in its
certificate of incorporation, the statement is, as against the corporation,
conclusive evidence of its residence, unless it has been changed pursuant

‘
Provisions AppricaABLE TO CorPoRATIONS. 795

The Revised Tax Law.

 

to some statute. (People ex rel. Knickerbocker Press v.: Barker, 87 Hun,
341.) The statement of location of its principal office or place of business
is a condition precedent to the organization of a business corporation, and,
should it appear that the location was willfully misstated in the certificate,
‘or in case the corporation should change its principal place of business,
without effecting a legal change of residence, for the purpose of evading
taxation, it might present a case under section 1798 of the Code of Civil
Procedure for the attention of the Attorney-General. (Id.)

By chapter 269, Laws of 1880, power is given to review the valuation
‘of property or the legality of placing it on the rolls for the purpose of
taxation. The word “assessment” in that statute is used in the sense
‘of valuation, not in the sense of final imposition of a specific sum for
taxes. (People ex rel. Spencer v. New Rochelle, 83 Hun, 185.)

In estimating the amount of personalty for purposes of taxation, just
debts of the corporation must be deducted. The commissioners of taxes of
New York city must value the property at its true value, and upon a
review of the assessment upon the personal property of a corporation, they
‘cannot be heard to say that their sworn valuation of the real estate was
much less than its true value. Realty and personalty are to be separately
‘assessed, and if the personalty be overvalued and the realty undervalued,
the valuation of the personalty cannot be sustained on the theory that the
undervaluation of the realty equals or exceeds the overvaluation of the
personalty. (People ex rel. Equitable Gas Light Co. v. Barker, 81 Hun,
22.) The remedy prescribed by Laws of 1880, ch. 269, applies to assess-
ments made in the city of New York, notwithstanding section 821 of the
Consolidation Act. (Id.)

Under the foregoing section, the assessed value of real estate owned by
the corporation in this State must be deducted from the arhount of taxable
‘capital. (People ex rel. Butchers’ Hide & M. Co. v. Asten, 100 N. Y., 597;
People ex rel. Twenty-third St. R: R. Co. v. Comrs. of Taxes, 95 N. Y., 554;
see, also, People ex rel. Central Park, etc., R. R. Co. v. Comrs. of Taxes,
21 St. Rep., 350.) When the real estate is situated in another State or
‘country the measure of the deduction is the actual value of such real
estate, and if better evidence is not obtainable the price paid may be
taken as representing that value, or the assessed value, if other evidence
is lacking. (People ex rel. Panama R. R. Co. v. Comrs. of Taxes, 104
N. Y:, 240; People ex rel. Fairfield Chemical Co. v. Coleman, 115 N. Y., 179.)

Capital invested in United States bonds and shares of stock owned in
such other corporations as are taxed in this State may be deducted from
the amount of taxable capital. (People ex rel. Commonwealth Ins. Co.
v. Coleman, 112 N. Y., 565; People ex rel. Pacific Mail Steamship Co. v.
‘Comrs. of Taxes, 64 N. Y., 541; People ex rel. Bk..of Commerce v. Same,
23 id., 192; International Life Assur. Soc. v. Same, 28 Barb., 318.)

The franchise of a company, which may be deemed its business oppor-
tunity and capacity, is the property of the corporation, but constitutes no
part or element of its capital stock; while the same franchise does
enter into and form part, and a very essential part, of the shareholder’s
capital stock. The capital stock of a company may be wholly in cash
or in property, or both, which may be counted and valued. It may have
in addition a surplus, consisting of some accumulated and reserved fund,

.
796 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

or of undivided profits, or both, but that surplus is no part of the com-
pany’s capital stock, and, therefore, is not itself capital stock. The
capital cannot be divided and distributed; the surplus may be. But that
surplus does enter into and form part of the share stock, for that repre-
sents and absorbs into its own value surplus as well as capital, and the
franchise in addition. So that the property of every stock corporation
may consist of three separate and distinct things, which are its capital
stock, its surplus, if any, and its franchise; but these three things, several
in the ownership of the company, are united in the ownership of the
shareholders. The share stock covers, embraces arfd represents all three
in their totality, for it is a business photograph of all the corporate pos-
sessions and possibilities. A corporation also may have no surplus, but,.
on the contrary, a deficiency which works an impairment of its capital
stock. Its actual value is then less than its nominal or par value, while
yet the share stock, strengthened by hope of the future and the support
of earnings, may be worth its par, or even more. (People ex rel. Union
Trust Co. v. Coleman, 126 N. Y., 483.)

The phrase “ capital stock” in the foregoing act means not the share
stock, but the capital owned by the corporation, the fund required to be
paid in and kept intact as the basis of the business enterprise. In taxing
corporations, therefore, under said act the subject of valuation and assess-
ment is never the share stock, but always the company’s capital and sur-
plus which should be assessed at its actual value when that is known or
ascertainable. (United States Trust Co. v. New York City, 77 Hun, 182;
People ex rel. Union Trust Co. v. Coleman, 126 N, Y., 433; distinguishing
Oswego Starch Co. v. Dolloway, 21 N. Y., 449; People ex rel. Comrs. of
Taxes, 23 id., 192; People ex rel. Dolan, 36 id., 59; People ex rel. Ferguson,
38 id., 89; People ex rel. Bd. of Assrs., 39 id., 81; People ex rel. Comrs. of
Taxes, 95 id., 554; Same v. Same, 104 id., 240; People ex rel. v. Asten, 100
id., 597; People ex rel. v. Coleman, 107 id., 541.)

It is error on the part of the assessors to take the market value of
shares as the “ actual value” of the capital stock and base their assess-
ment thereon, when the corporation presented to them a sworn state-
ment of its assets and liabilities, the truth of which was not questioned
and which showed that there was nothing subject to assessment. (Peo-
ple ex rel. Union Trust Co. v. Coleman, 126 N. Y., 483.)

It seems, when the amount of capital and surplus are undisclosed and
unknown, the assessors may consider the market value of the share stock
and general condition of the company, not as the thing to be valued and
assessed, but as an aid in discovering the value of that which is to be
assessed; it seems, also, further resort may be had to such means of
information when the amount of capital and surplus is stated, but the
assessors have sufficient reason, founded upon competent proof, to dis-
believe the statement. (People ex rel. Union Trust Co. v. Coleman, 126
N. Y., 483.)

When the evidence as to actual value of the capital stock and surplus
of the corporation are uncontradicted and is full and complete, all the
necessary facts having been established beyond any fair dispute, and
no reason appearing for doubting the truth of such evidence, a refusal of
tax officers to decide in accordance with it amounts to legal error, and

s
Provisions APPLICABLE TO CoRPORATIONS. 197

 

The Revised Tax Law.-

 

may be reviewed and corrected on certiorari. (Edison General Elec. Co..
v. Barker, 141 N. Y., 251; People ex rel. Edison Elec. Illuminating Co. v..
Barker, 139 N. Y., 55; reversing 68-Hun, 513.)

Where an assessment is illegal and void, or money is paid upon an

. iNegal or erroneous assessment, to prevent an illegal seizure of his person:

or property by one claiming authority to seize the same, the amount may
be recovered back in an action on the ground that the payment was com-
pulsory, or by duress or extortion. (United States Trust Co. v. City of
New York, 77 Hun, 182.)

But where the payment is voluntary a protest with notice of an intent
to reclaim is not sufficient to sustain a recovery in an action brought to
recover back the amount thereof, as the voluntary character of the pay-
ment still remains, notwithstanding the notice, and is fatal to the action.
(Id.; distinguishing People ex rel. Warren v. Carter, 119 N. Y., 557.)

Where assessors have jurisdiction to impose a tax, which is paid, it.
cannot be recovered back without first setting aside the assessment, and
where, without first taking proceedings for such purpose, a voluntary
payment is made, no recovery can be had, even though-it be held that.
the assessment was excessive and erroneous. A tax voluntarily paid
cannot, as a general rule, be recovered back, and it is immaterial that it
has been illegally laid, the presumption being that all payments are volun-
tary until the contrary is shown. (U. S. Trust Co. v. Mayor, etc., of
New York, 77 Hun, 182; see, also, Trimmer v. Rochester, 130 N. Y., 401.)

It tax officers having jurisdiction over the person and subject-matter
proceeded upon a wrong basis, and thus made arf erroneous assessment,
ag distinguished from an illegal one, it will not render the assessment
void. Assessors cannot acquire jurisdiction to make assessments by deter-
mining that they have it; their authority to act always depends upon:
the existence of the jurisdictional facts described in the statute. An
erroneous assessment is one where the officers making the same have-
power to act, but err in the exercise of their power, and an illegal assess-
ment is one where such officers have no power to act at all, and they are:
not aided by their decision that they have. (U. S. Trust Co. v. Mayor,
ete., of New York, 77 Hun, 182.)

In the assessment of taxes upon a corporation under Laws of 1857,
chapter 456, section 3, it is entitled to have its indebtedness deducted
from the value of its.corporate assets. (People ex rel. Second Av. R. R.
Co. v. Barker, 141 N. ¥., 196; People ex rel. Edison Elec. Illuminating
Co. v. Same, 139 N. Y., 55; People ex rel. Union Trust Co. v. Coleman,
126 N. Y., 433.)

This indebtedness must be taxen into consideration in arriving at the
value of the capital of a corporation. And when it is seen that the indebt-
edness of a corporation is double the amount of all its assets, it follows.
upon the system adopted by the State for the assessment of corpora-
tions that the actual value of the capital of such a corporation is zero.
(People ex rel. Edison Elec. INuminating Co. v. Barker, 189 N. Y., 55;
reversing 68 Hun, 513.)

The assessment of a domestic corporation is made after a deduction for:
debts. because its capital and surplus are to be assessed at their actuak

1
798 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

value, which cannot be arrived at without considering and deducting
debts. (People ex rel. Thurber, Whyland & Co., 141 N. Y., 118.)

Patent rights granted by the United States are not within the taxing
power of the state. (People ex rel. Edison Electric Illuminating Co. v.
Assessors of Brooklyn, 156 'N. Y., 417, affg. 19 App. Div., 599.)

The provision of the New York City Consolidation Act (§ 822, chap. 410,
Laws of 1882), giving to the commissioners of taxes and assessments
power to remit, or reduce taxes after delivery of the books to the receiver
of taxes, provided the party aggrieved shall satisfy them that he was.
prevented by absence from the city or illness from making his applica-
tion within the time limited by the prior provisions of the act for
correction, applies to domestic corporations. (People ex rel. N. Y. Hotel &
Restaurant Co. v. Barker, 140 N. Y., 437.)

Proceedings for the assessment of property are of a judicial character,
and assessors in making assessments act judicially. (McLean v. Wyan-
‘dance Brick & Terra Cotta Co., 138 N. Y., 158.) Therefore, where a party
who deems himself aggrieved by the proposed action of assessors,
appears before them, submits proof in support of his claims, asks and
obtains a reduction of his assessment, without making other objection,
he is precluded from thereafter claiming that the assessors had no juris-
diction to tax him at all. (Id.)

The tax commissioners of New York city have no power to increase
the assessed valuation after the assessment books are open for correc-
tion without giving the property owner the notice required by section
896 of the Greater New York charter nor have they authority to increase
the assessed valuations after March thirty-first and when the books are
closed. (People ex rel. Littman v. Wells, 91 App. Div., 172.)

In assessing the capital stock of a corporation which owns real estate
subject to a mortgage, and the value of the equity of redemption alone
has been included in determining the value of its capital stock, the
company is entitled to have deducted from the valuation only the value
of such equity, and not the whole assessed value of its real estate.
(People ex rel. Weber Piano Co. v. Wells, 180 N. Y., 62, revsg. 95 App.
Div., 574.)

Where in certiorari proceedings to review the action of assessors, it
appeared that the assessment was based solely upon statements made
in answer to questions put by the assessors showing that the capital
was impaired and that the indebtedness of the company exceeded the
value of its assets exclusive of real estate, and did not disclose any fact
or circumstance justifying a disbelief of the answers made, except that
a dividend has been declared and paid shortly previous, it was held that
this did not authorize a disbelief in the statement of the impairment of
eapital, and, in the absence of any request for further information, did
Provisions APPLICABLE TO CORPORATIONS. 799

 

The Revised Tax Law.

 

not justify a tax, as the statements, if accepted as true, showed that
there was no basis therefor. (People ex rel. Edison General Electric Co.
v. Barker, 141 N. Y., 251, revsg. 74 Hun, 418.) The directors in paying
unearned dividends merely subject themselves to the penalty imposed by
statute. (Id.)

hen a corporation has obtained from the taxing officers a reduction
ef its original assessment upon a verified statement seasonably made,
it is precluded from thereafter obtaining from the courts, in certiorari
proceedings, a further reduction upon a claim, then interposed for the
first time, that the statement was erroneous. (People ex rel. German
Looking Glass Plate Co. v. Barker, 75 Hun, 6.)

Reports of corporations.

§ 27. The president or other proper officer of every moneyed
or stock corporation deriving an income or profit from its capital
or otherwise shall, on or before June fifteenth, deliver to one of the
assessors of the tax district in which the company is liable to be
taxed and, if such tax district is in a county embracing a portion of
the forest preserve, to the comptroller of the state, a written state-
ment specifying: '

1: The real property, if any, owned by such company, the tax
district in which the same is situated and, unless a railroad cor-
poration, the sums actually paid therefor.

2. ‘The capital stock actually paid in and secured to be paid in
excepting therefrom the sums paid for real property and the
amount of such capital stock held by the state and by any incorpo-
rated literary or charitable institution, and

8. The tax district in which the principal office of the company
is situated or in case it has no principal office, the tax district in
which its operations are carried on.

Such statement shall be verified by the officer making the same
to the effect that it is in all respects just and true. If such state-
ment is not made within twenty days after the fifteenth day of
June, or is insufficient, evasive or defective, the assessors may com-
pel the corporation to make a proper statement by mandamus.

[Revisers’ Note.— R. S., pt. 1, ch. 18, tit. 4, §§ 1-3. The date of making
the report is changed from July 1, to June 15. From subdivision 3 is
omitted the statement of the tax district in which it is liable to be taxed,
for § 11 of the chapter provides if the corporation has no principal office,
it is liable to be taxed in the district in which the operations of the com-
pany are carried on.]

For form of report, see post, form No. 146.

The valuation of the capital stock made by the secretary of a company
in the statement to the assessors, is sufficient evidence of value upon
-800 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

which to base the assessment, riobwithatending the company sought by
certiorari to correct the assessment by deducting the amount of debts
owed by it from the sum indicated in the statement, since the value of
the franchises might make up the difference. (People ex rel. Buffalo Mut.
Gas Light Co. v. Steele, 1 Buff. Super. Ct., 345.)

Corporations may be assessed though no statement is made by them to

the assessors as required by law, and such a statement when made is not
- conclusive upon the assessors; it is the judgment of the assessors that the
Jaw requires. (People ex rel. Manhattan Fire Ins. Co. v. Comrs. of Taxes,
76 N. Y., 64.)

Assessors have jurisdiction to assess a corporation that omits to make
a statement of its financial condition. If such a corporation omits to
appear and demand a correction of the preliminary assessment, it can
obtain no relief from overvaluation by certiorari. (People ex rel. The
Mutual Union Tel. Co. v. Comrs. of Taxes, 99 N. Y., 254.)

Nor does the failure to file such a statement prevent a party aggrieved
from appearing before the assessors. (Id.)

This case is distinguished from People ex rel. Mutual Un. Tel. Co. v.
Comrs., 99 N. Y., 254, because in the latter case the relator did not appear ;
before the commissioners on the grievance day, and hence was deemed
to have waived any right of review. (Id.)

It is the duty of a company to make the statement required, but the

- courts have no power to impose any other punishment than that pre-
scribed by the statute, and a writ of certiorari will not be quashed on
the ground that the return shows that no such statement has been made.
(People ex rel. West Shore R. R. Co. v. Pitman, 9 St. Rep., 469.)

Penalty for omission to make statement.

§ 28. In case of neglect to furnish such statéments within
thirty days after the time above provided, the company so neglect-
ing shall forfeit to the people of this state for each statement so
omitted to be furnished, the sum of two hundred and fifty dollars,
and it shall be the duty of the attorney-general to prosecute for such
penalty upon information which shall be furnished him by the
comptroller. Upon such statement being furnished and the costs
of the suit being paid, the comptroller, if he shall be satisfied that
such omission was not willful, may, in his discretion, discontinue
such suit.

[R: S., pt. 1, ch. 18, tit. 4, §§ 4-5, without change.] ,

- Corporations, how assessed.

§ 31. The assessors shall assess corporations liable to taxation
in their respective tax districts upon their assessment-rolls in the
following manner:

1. In the first column the name of each corporation, and under
its name the amount of its capital stock paid in and secured to
-be paid in; the amount paid by it for real property then owned

Ss
Provisions APPLICABLE TO CoRPORATIONS. 801

 

The Revised Tax Law.

 

‘by it wherever situated; the amount of all surplus profits or reserve
funds exceeding ten per centum of their capital, after deducting.
therefrom the amount of said real property and the amount of its
‘stock, if any, belonging to the state and to incorporated literary
and charitable institutions. __

2. In the second column the quantity of real property except
special franchises owned by such corporation and situated within
their tax district.

8. In the third column the actual value of such real property,
except special franchises.

4. In the fourth column the amount of the capital stock paid
in and secured to be paid in, and of all of such surplus profits
or reserve funds as aforesaid; after deducting the sums paid out
for all the real‘ estate of the company, wherever the same may be
situated, and then belonging to it, and the amount of stock, if any,
belonging tothe people of the state and to incorporated literary
and charitable institutions. . ;

5. In the fifth column the value of any special franchise owned
‘by it as fixed by the state board of tax commissioners,

(Thus amended by L. 1899, ch. 712.)

See the late decisions cited under section 12, ante.

In determining the value of an elevated railroad structure for the pur
pose of taxation, no allowance can be made for the fact that its earnings
shave been decreased. by the competition of street surface roads: nor does
the corporation assessed acquire any equitable right to have this resnit
considered in reduction of its taxes, beyond an examination of its effect
upou the value of {ts structure where the construction of the street surface
road has affected it. (Brooklyn Elevated R. R. Co. v. City of Brooklyn,
11 App. Div., 127.) ° .

The commissioners of taxes and assessments of the city of New York.
in endeavoring to ascertain the proper taxable valuation of the personal
property of an elevated railroad, for the year 1895, may properly consider’
admissions made by the corporation in 1893, as to the value of its taxable
property, statements made in its report to the Railroad Commissioners of
the State for the year 1894, and the further fact that the corporation has
been able to pay dividends at the rate of six per cent per annum, has met
all its fixed charges and that it has a eonsiderable surplus remaining.
(People ex rel. Manhattan Ry. Co. v. Barker, 6 App. Div., 356.)

A street railroad company is assessable. for the purpose of taxation on
personalty, upon ite actual tangible property only, and not upon its fran-
chise. (People ex rel. Coney Island & Bklyn. R. R. Co. v. Neff, 15 App.
Div., 585.)

No deduction ts to be made for losses of capital, and no Increase for
accumulations, in the course of business of the company, but the amount
paid and secured to be paid is taken as the true sum to be ‘inserted in
the assessment-rolls. (J‘armers’ Loan & Trust Co. v. Mayor, etc., of N. Y.,
4% Hill, 261.) ;

The word “ profits ” generally means the gain which is made upo' any
-business or investment when both receipts and expenditures are taken.
{nto account. (Id.)

51
802 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

To enable a corporation to have its name stricken from the assessment
roll the affidavit must show that the company is not in receipt of any
profits or income; an affidavit that it is not in receipt of any net profits
or income is insufficient. (People ex rel. McMaster v. Supervisors of
Niagara, 4 Hill, 20.)

A railroad corporation is not liable to taxation upon its capital as per-
sonal estate, for that part thereof which is invested in the lands over
which it runs, and in the railways and other fixtures connected therewith;
but that part of the corporate property is to be taxed in the several towns
and wards in which the same is situated, as real estate, and at its actual
value at the time of the assessment. (Mohawk & Hudson R. R. Co. v.
Clute, 4 Paige, 384.)

And it seems it is liable to be so taxed on its real estate, though it is
not in receipt of any profits or income. (People ex rel. McMaster v.
Supervisors of Niagara, 4 Hill, 20.) ‘

The capital stock of a railroad corporation which is not invested in its
railways, or other real estate, is to be taxed as personal property, in the
town or ward where the principal office or place for transacting the finan-
cial concerns of the company is situated. (Mohawk & Hudson R. R. Co.
vy. Clute, 4 Paige, 384.)

The estate of a corporation which is taxable as personalty, is only that
portion of its capital which is not invested in real estate, though the
capital of a corporation embraces the whole of its stock paid in or secured
to be paid, whether invested in real or personal property. (Utica Cotton
M’f’g. Co. v. Supervisors of Oneida,.1 Barb., Ch. 432.)

Under Laws 1857, ch. 456, § 3, the capital stock is to be assessed at its
actual value irrespective of the nominal par value. (Oswego Starch Fac-
tory v. Dolloway, 21 N. Y., 449.)

It could not have been intended by L. 1857, ch. 456, § 3, that the value
of the surplus should be assessed in addition to the value of the capital
stock, for the valuation placed upon the latter should include the former.
yPeople ex,rel. Twenty-third St. R. R. Co. v. Comrs. of Taxes, 95 N. Y., 554.)

An accumulation of surplus profits of a gas-light company, invested in
mains and upon which certificates bearing interest had been issued to its
stockholders, redeemable in money or in stock, are liable to taxation as
the property of the company; held also that the issue of such certificates
did not create an indebtedness to be deducted, since the company had the
option to exchange stock for them. (People ex rel. Williamsburgh Gas-
Light Co. v. Assessors of Brooklyn, 76 N. Y., 202.) .

In the absence of sworn testimony, the assessors may ascertain the
value of the capital stock of a corporation from other sources as they do
in valuing real estate. (People ex rel. Panama Mail S. 8S. Co. v. Comrs. of
Taxes, 46 How. Pr., 315.) !

The rule of taxation as to corporations, when based upon the amount
of capital paid in, is, after deducting the amount paid out for real estate
from the capital, to assess the remaining capital at its actual value, leav-
ing the real estate to be assessed like that of individuals in thé town or
ward where it is situated. (People ex rel. Citizens’ Gas Light Co. ¥.
Assessors of Brooklyn, 39 N. Y., 81; People ex rel. Am, Linen Thread Co.
y. Assessors of Mechanicville, 6 Lans., 105.)

~
Provisions ArpLicaBLE to CoRPoRATIONS. 803

 

The Revised Tax Law. ;

 

The indebtedness of a corporation is to be considered in estimating
the value of its capital stock. (People ex rel. Pacific Mail S. S. Co. v.
Comrs. of Taxes, 46 How. Pr., 315; 1 Thomp. & C., 611.)

In assessing the capital of a corporation under L. 1857, ch, 456, § 3, the
actual value of the stock is, the basis, and where it is of no value, because
ot its indebtedness exceeding its assets, it should not be assessed. (People
ex rel. West Side & Yonkers Ry. Co. v. Comrs. of Taxes, 31 Hun, 32.)

The capital stock of a corporation is properly assessed at its actual and
not its par value. (People ex rel. Panama R. R. Co. v. Comrs. of Taxes,
64 How. Pr., 405.)

Upon an application for a reduction on personal property as being with-
out the State, the value of the property must be distinctly shown; the
amount of payments on account of it are not sufficient. (People ex rel.
Pacific Mail S. S. Co. v. Comrs. of Taxes, 64 N. Y., 541; affirming 5 Hun,
200.)

Upon an application by a corporation to have its assessment stricken
out, upon affidavit showing that its debts exceeded the value of its per-
sonal property, it did not appear that the capital stock, uninvested in real
estate, did not exceed the sum assessed against it; held, that there was
no error in the refusal of the assessors to strike out the assessment. (Peo-
ple ex rel. Utica & B, R. R R. Co v. Shields, 6 Hun, 556.)

The assessors are to ascertain the present value of the capital stock,
and from this to deduct the assessed value of the real estate, and the
fact that the whole capital was originally invested in real estate does not
preclude them from doing this. While the indebtedness of a corporation
is a proper subject for consideration in estimating the value of the capital
stock, there is no provision of law which authorizes a deduction from the
value after the estimate is made. (People ex rel. Butchers, etc., Co. v.
Asten, 100 N. Y., 597.) |

Assessors may regort. to any or all tests that they think will be most
likely to give them the actual value of the stock, i: e., either “‘ book value”
or market value. The latter is usually, though not always, the best test
of the value of the stock of a going concern. The Supreme Court alone
has power to correct the judgment of assessors, when they have taken a
wrong test in valuing capital stock for assessment. If a standard of
value be taken that is not, in fact, any measure of value, the case is
different. (People ex rel. Knickerbocker Fire Ins, Co., 107 N. Y., 541.)

Assessment of omitted property.

§ 33. The assessors of any tax district shall, upon their own
motion, or upon the application of any taxpayer therein, enter in
the assessment-roll of the current year any property shown to have
been omitted from the assessment-roll of the preceding year, at the
valuation of that year, or if not then valued, at such valuation as
the assessors shall determine for the preceding year, and such val-
uation shall be stated in a separate line from the valuation of the
current year.

[L. 1865, ch. 453, § 1. The original law provides that the omitted prop-
erty shall be assessed on the application of three taxpayers. This section
804 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

authorizes the assessors to make the assessment vn their own motion or
on the application of one taxpayer. Otherwise there is no change of
substance.]

Under L. 1865, ch. 453, § 1, the duty of the assessors is ministerial, and
they have no discretionary power; if the property was valued the year
it was omitted, they must enter it at such valuation; if not, and it was
upon the roll of the year next preceding the year it was omitted, they
must enter it at the valuation upon the roll of the earlier year; if it was
not valued in one of those years they have no power to enter it. The
valuation required is that upon the previous roll. The assessors cannot
increase it. (People ex rel. Oswald v. Goff, 52 N. Y., 434.)

The provisions of L. 1865, ch. 453, do not authorize reassessment of
omitted taxes without notice, nor after the completion of the roll for the
current year. (Overing v. Foote, 65 N. Y., 263.)

A corporation liable to taxation under L. 1880, ch. 542, having been
inadvertently omitted from assessment for city and county purposes, for
one year, it could be taxed therefor under the provisions of L. 1865, ch.
458, upon the roll of the succeeding year. (People ex rel. Brooklyn City
R. R. Co. v. Assessors of Brooklyn, 92 N. Y., 430.)

A tax against a resident returned as unpaid, is chargeable, in the subse-
quent year, against the land assessed only. (Jewett v. Lamphear, 20 N. Y.
Weekly Dig., 232.)

The provisions of L. 1865, ch. 453, being a part of the general system
of taxation, are not subject to the constitutional objection that they do
not require a notice or hearing, since the general notice of the completion
of the assessment-roll covers them. (People ex rel. Brooklyn City R. R.
Co. v. Assessors of Brooklyn, 92 N. Y., 480.)

Debts owing to nonresidents of the United States, how assessed,

§ 34. Every agent in any county of a nonresident creditor hav-
ing debts owing to him, taxable in any county of the state, shall
annually, on or before June first, furnish to the county treasurer
of the county where the debtor resides, a true and accurate state- .
ment verified by his oath, of such debts owing on the first day of
May next preceding in each town or ward in such county. The
county treasurer shall, immediately upon the receipt of such state-
ment, make out and transmit to the assessors of every tax district
in the county in which any such debtor resides, a copy of so much
of such statement as relates to the tax district of such assessors, with
the name of the creditor. The assessors on receipt of such state-
ment from the county treasurer shall, within the time in which
they are required to complete the assessment-roll, enter therein the
name of such non-resident creditor, and the aggregate amount due
him in such tax district on the first day of May next preceding, in
the same manner as other personal property is entered on the roll,
adding the name of the debtor owing such debt.
Provisions ApriicaBLeE to CoRpoRaTions. 805

‘

The Revised Tax Law.

Any agent neglecting or refusing without good cause to furnish
‘such statement to the county treasurer shall forfeit to the county
in which the debtor resides the sum of five hundred dollars, recov-
-erable by the district attorney, if the existence of such debts was
-known to the agent.

[Revisers’ Note.— L. 1851, ch. 371, §§ 2-5, without change of substance,
-except that the date for rendering the statement is changed from July
twenty-fifth to June first. The act from which this section is derived
(L. 1851, ch. 371), makes debts due to nonresidents of the United States
for the purchase of real property, taxable as personal property within the
‘State. The act would seem to raise a serious question as to the jurisdic-
tion of the State to assess nontangible personal property, where the owner
‘thereof resides without the State. There appears, however, to have been
no authoritative decision of the courts of this State as to the power of
-the Legislature to pass the act. ;

Cooley lays down the rule broadly that ‘“ Debts owing to foreign credi-
‘tors by either corporations or individuals are not the subject of taxation.
“The creditor cannot be taxed, because he is not within the jurisdiction,
and the debts cannot be taxed in the debtors’ hands, through any fiction
-of the law, which is to treat them as being for this purpose, the property
‘of the debtor.” (Cooley on Taxes, p. 22.)- a

The leading case upon the subject is reported in 15 Wall., 300, in which
‘an attempt was made to tax in the State of Pennsylvania the bonds of a
Pennsylvania railroad company, secured by mortgage, and held by non-
‘residents of the State. The Supreme Court of the United States laid down
‘the rule unequivocally that credits of that sort were not within the juris-
diction of the State, so as to render them subject to taxation; and again
in Kirkland v. Hotchkiss, 100 United States, 491, the Supreme Court laid
down the reverse proposition ‘ that a debt for the purpose of taxation is
situated at the domicile of the creditor, although secured by mortgage
upon real estate situated in another State.”

The Supreme Court of Ohio, in Myers v. Seaberger, 45 Ohio St., 232,
held “ that a loan of money secured by mortgage on real estate is a credit
within the meaning of the statutes of this State, providing for taxation
‘of property, and that where the creditor resides in another State, is not
subject to taxation in this, although the securities are in the hands of an
-agent here who collects interest.”

The State of Michigan has a law, however, which provides ‘for the
taxation of mortgages upon real property within the State, wherever and
by whomever held. Tk2 Supreme Court of the State, in Common Council
v. Assessors, 91 Michigan, 78 (1892), upheld the law upon the argument
that the interest of the mortgagee was a tangible interest within the
State, enjoying the protection of the laws of the State. The court attempts
to distinguish the decision of the Supreme Court of the United States, in
15 Wallace, on the ground that that case referred to the taxation of credits
generally and not to an interest which the State could tax as real prop-
‘erty within its jurisdiction.

The law has stood upon the statute books for so many years, appar-
ently never having been seriously questioned, that the commissioners have
806 Provisions AprLticaBre TO CORPORATIONS.

 

The Revised Tax Law.

 

deemed it best to include it within their revision, leaving to the Legisla--
ture the responsibility of repealing it without re-enactment, if such
course is deemed desirable.

Notice of completion of assessment roll.

§ 35. The assessors shall complete the assessment-roll on or
before the first day of August, and make out one copy thereof, to
be left with one of their number, and forthwith cause a notice to be-
conspicuously posted in three or more public places in the tax dis-
trict, stating that they have completed the assessment-roll, and that.
a copy thereof has been left with one of their number at a specified
place, where it may be seen and examined by any person until the-
third Tuesday of August next following, and that on that day they
will meet at a time and place specified in the notice to review their
assessments. Upon application by a non-resident owner of real
estate, having real estate in more than one tax district, the assess-
ors may fix a time subsequent to the third Tuesday in August,
but not later than the thirty-first day of August, for a hearing and
to review their assessment. In any city the notice shall conform.
to the requirements of the law regulating the time, place’ and man-
ner of revising assessments in such city. During the time specified.
in the notice the assessor with whom the roll is left shall submit*
to the inspection of every person applying for that purpose.

(Thus amended by L. 1904,. ch. 385.)

Hearing of complaints.

§ 36. The assessors shall meet at the time and place specified’
in such notice, and hear and determine all complaints in relation to-
such assessments brought before them, and for that purpose they
may adjourn from time to time. Such complainants shall file with
the assessors a statement, under oath, specifying the respect in.
which the assessment complained of is incorrect, which verification
must be made by the person assessed or whose property is assessed,
or by some person authorized to make such statement, and who has.
knowledge of the facts stated therein. The assessors may admin-.
ister oaths, take testimony and hear proofs in regard to any such
complaint and the assessment to which it relates. If not satisfied
that such assessment is erroneous, they may require the person
assessed, or his agent or representative, or any other person, to-
appear before then and be examined concerning such complaint,
and to produce any papers relating to such assessment with respect.
to his property or his residence for the purpose of taxation. If any
such person, or his agent or representative, shall willfully neglect
or refuse to attend and be so examined, or to answer any material
question put to him, such person shall not be entitled to any reduc-
tion of his assessments. Minutes of the examination of every per-
son examined by the assessors upon the hearing of any such com-

 

*So in the original, Prior to the last amendment the word “it’’ followed the word”
“submit.”
Provisions APPLICABLE TO CoRPORATIONS. 807

The Revised Tax Law.

 

plaint shall be taken and filed in the office of the town or city clerk.
The assessors shall, after said examination, fix the value of the
property of the complainant and for that purpose may increase or
-diminish the assessment thereof.
[Revisers’ Note.— R. S., pt. 1, ch. 13, tit. 2, § 2031 lL. 1857, ch. 176, $§ 6, 7.
‘The provision that the complaint shall be in writing and filed with the
assessors is new. LL. 1857, ch. 176, § 6, requires the examination to be sub-
scribed by witness and filed in town clerk’s office, while section 36 merely

requires the minutes of the testimony to be so filed. Otherwise there is
no change of substance.]

“Correction. and verification of tax-roll.

§ 37. When the assessors or a majority of them, shall have
-completed their roll, they shall severally appear before any officer
-of their county authorized by law to administer oaths and shall
‘severally make and subscribe before such officer an oath in, the
following form: “ We, the undersigned, do severally depose and
-swear that we have set down in the foregoing assessment-roll all the
real estate situated in the tax district in which we are assessors,
-according to our'best information; and that, with the exception of
‘those cases in which the value of the said real estate has been
-changed by reason of proof produced before us, and with the excep-
tion of those cases in which the value of any special franchise has
‘been fixed by the state board of tax commissioners, we have esti-
-mated the value of the said real estate at the sums which a major-
ity of the assessors have decided to be the full value therof; and,
‘also, that the said assessment-roll contains a true statement of the
-aggregate amount of the taxable personal estate of each and every
person named in such roll over and above the amount of debts due
‘from such persons, respectively, and excluding such stocks as are

-otherwise taxable, and such other property as is exempt by law |

from taxation, at the full value thereof, according to our best
judgment and belief,” which oath shall be written or printed on
‘said roll, signed by the assessors and certified by the officer.

(Thus amended by, L. 1899, ch. 712.)

[Revisers’ Note.— L. 1851, ch. 176, without change of substance, except
that the provision of section 8, that a false oath is perjury, is omitted as
being fully covered by section 96 of the Penal Code.] : ;

-Filing of roll and notice thereof.

§ 38. In cities the assessment roll when thus completed and
‘verified shall be filed on or. before September first, in the office
-of the city clerk, there to remain for fifteen days for public in-
spection. The assessors shall forthwith cause a notice to be
posted conspicuously in at least three public places in the tax
-district and to be published in one or more newspapers, if any,
‘published in the city, that such assessment roll has been finally
808 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

completed and stating that it has been so filed and will be open
to public inspection. At the expiration of such fifteen days, the
city clerk shall: deliver such roll to a supervisor of the tax dis--
trict embraced therein. In towns, when the assessment roll shall
have been thus completed and verified, the assessors shall make
two copies thereof, one of which shall be retained by them for
the use of themselves and their successors in office, and the other
of which, duly certified by the said assessors to be a copy of said.
assessment roll, shall, on or before the fifteenth day of Septem-
ber, be filed in the office of the town clerk, and which shall there-
upon become a public record. The assessors shall forthwith cause
a notice to be posted conspicuously in at least three public places
in the tax district and to be published in one or more newspapers,.
if any, published in the town, that such assessment roll has been
finally completed and stating that such certified copy has been
so filed. The said original assessment roll shall on or before the
first day of October be delivered to a supervisor of the tax dis-
trict embraced therein.

(Thus amended by L. 1901, ch. 358.)

[Revisers’ Note.— R. S., pt. 1, ch. 18, tit. 2, § 27; L. 1880, ch. 269, § 9,
without change of substance. ]

Assessors to apportion valuation of railroad, telegraph, telephone, or
pipe line companies between school districts.

§ 39. The assessors of each town inewhich a railroad, tele-
graph, telephone or pipe line company is assessed upon property
lying in more than one school district therein, shall, within fif-
teen days after the final completion of the roll, apportion the
assessed valuation of the property of each of such corporations
among such school districts. Such apportionment shall be signed
by the assessors or a majority of them, and be filed with the town
clerk within five days thereafter, and thereupon the valuation so.
fixed shall become the valuation of such property in such school
district for the purpose of taxation. In case of failure of the
assessors to act, the supervisor of the town shall make such ap-
, portionment on request of either the trustees of any school dis-
trict or of the corporation assessed. "The town clerk shall furnish
the trustees a certified statement of the valuations apportioned
to their respective districts. In case of any alteration in any
school district affecting the valuation of such property, the offi-
cer making the same shall fix and determine the valuations in the-
districts affected for the current year.

(L. 1867, ch. 694, §§ 1-5, without change of substance.)
Provisions APPLICABLE TO CoRPORATIONS. 809

 

The Revised Tax Law.

 

Assessment of special franchises.

§ 42. The state board of tax commissioners shall annually fix
and determine the valuation of each special franchise subject to
assessment in each city, town, or tax district. After the time
fixed for hearing complaints the tax commissioners shall finally
determine the valuation of the special franchises, and shall file
with the clerk of the city or town in which said special franchise
is assessed a written statement duly certified by the secretary of
the board of the valuation of each special franchise assessed
therein as finally fixed and determined by said board; such state-
ment of valuation shall be filed with the town clerk of the re-
spective towns within thirty days next preceding the first day of
July in each year; and with the clerks of cities of the state
within thirty days before the date set opposite the name of each
city in the following schedule. In the city of New York such
statement shall be filed with the department of taxes and assess-
ments.

SCHEDULE OF DATES FOR FILING OF ASSESSMENTS
OF SPECIAL FRANCHISES.

Name of city. Date. Name of city. Date.
Rochester. April 1st. Jamestown. April ist.
Ithaca. April 1st. Buffalo. Dec. st.
Gloversville. , April 1st. Auburn. May 1st.

’ New York City. April 1st. Schenectady. June Ist.
Corning. June Ist. Hornellsville. June Ist.
Oswego. June Ist. North Tonawanda. July Ist.
Olean. July ist. Syracuse. July 1st.
Coboes. July ist. Ogdensburgh. July 1st.
Dunkirk. July 1st. Troy. July 1st.
Rome. July 1st. Watertown. July ist.
Elmira. July 1st. Lockport. July 1st.
Utica. July 1st. Poughkeepsie. July 1st.
Little Falls. July Ist. Watervliet. July ist.
Niagara Falls. July 1st. Kingston. July 1st.
Newburgh. July 1st. Hudson. July 1st.
Amsterdam. July 1st. Binghamton. July 1st.
Geneva. July 1st. Middletown. July 1st.
Johnstown. July 1st. Yonkers. Oct. 1st.
New Rochelle. Oct. 1st. Albany. Oct. Ast.
Mt. Vernon. Oct. 1st. Rensselaer. July Ist.
Oneida July 1st. Cortland July 1st.
Fulton July ist. Plattsburgh July 1st.

Tonawanda July 1st.
810 Provisions APPLICABLE TO CORPORATIONS.

 

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Each city or town clerk shall, within five days after the receipt
by him of the statement of assessment of a special franchise by the
state board, deliver a copy of such statement certified by him to
the assessors or other officers charged with the duty of making
local assessments in each tax district in said city or town and to
the assessors of villages and commissioners of highways within
their respective towns and villages. The valuations of. every
special franchise as so fixed by the state board shall be entered
by the assessors or other officers in the proper column of the
assessment roll before the final revision and certification of such
roll by them, and become part thereof with the same force and
effect as if such assessment had been originally made by such
assessor or other officer. If a special franchise assessed in a town
is wholly within a village, the valuation fixed by the state board
for the town shall also be the valuation for the village. If a part
only of such special franchise is in a village, or is in a village
situated in more than one tax district, it shall be the duty of the
village assessors to ascertain and determine what portion of the
valuation of such franchise, as the same has been fixed by the
state board, shall be placed upon the tax roll for village purposes.
The valuation apportioned to the town shall be the assessed valu-
ation for highway purposes, and in case part of such special
franchise shall be assessed in a village and part théreof in a town
outside a village, the commissioners of highways of the town and
village shall meet on the third Tuesday in August in each year
and apportion the valuation of such special franchises between
such town outside the village and such village for highway pur-
poses. In case of disagreement between them the decision of the
supervisor of the town shall be final. The town assessors shall
make an apportionment among school districts at the time and in
the manner required by section thirty-nine of this chapter. The
valuation so fixed by.the state board shall be the assessed valua-
tion on which all taxes based on such special franchise in the city,
town or village for state, municipal, school or highway purposes
shall be levied during the next ensuing year. It shall not be
necessary for the state board of tax commissioners to give notice .
to any person, co-partnership, association or corporation of the
valuation of a special franchise located in any village for village
purposes except in a case where such valuation is requiréd to be
made for such village purposes by the state board of tax com-
missioners. The assessors or other taxing officer, or other local
Provisions APPLICABLE TO CoRPORATIONS. 811

 

The Revised Tax Law.

officer in any city, town or village, or any state or county officer,
shall on demand furnish to the state board of tax commissioners
any information required by such board for the purpose of de-
termining the value of a special franchise.

(Added by L. 1899, ch. 712, as am’d by L. 1900, ch, 254; L. 1902, ch. 112;
L. 1904, ch. 382.)

\

Report to state board of tax commissioners.

§ 43. Every person, co-partnership, association or corporation
subject to taxation on a special franchise, shall, within thirty days
after this section takes effect, or: within thirty days after such
special franchise is acquired, make a written report to the state
board of tax commissioners containing a full description of every
special franchise possessed or enjoyed by such person, co-partner-
ship, association or corporation, a copy of the special law, grant,
ordinance, or contract under which the same is held, or if pos-
sessed or enjoyed under a general law, a reference to such law,
a statement of any condition, obligation or burden imposed upon
such special franchise, or under which the same is enjoyed, to-
gether with any other information relating to the value of such
special franchise, required by the state board. The state board
of tax commissioners may, frém time to tirfle require a further
or supplemental report from any such person, co-partnership,
association or corporation, containing information and data upon
such matters as it may specify. Every report required by this
section shall have annexed thereto the affidavit of the president,
vice-president, secretary or treasurer of the association or corpora-
tion, or one of the persons or one of the members of the co-part-
nership making the same, to the effect that the statements con-
tained therein are true. §uch board may prepare blanks to be
used in making the reports required by this section. Every per-
son, co-partnership, association or corporation failing to make
the report required by this section, or failing to make any special

‘report required by the state board of tax commissioners within
a reasonable time specified by it, shall forfeit to the people of
the state the sum of one hundred dollars for every such failure
and the additional sum of ten dollars for each day that such
failure continues, and shall not be entitled to review the assess-
ment by certiorari, as provided by section: forty-five of this
chapter.

(New section, added by L. 1899, ch. 712.)

«
812 Provisions APPLICABLE TO CORPORATIONS.

 

S The Revised Tax Law.

Hearing on special franchise assessment.

§ 44. On making an assessment of a special franchise, the state board
of tax commissioners shall immediately give notice in writing to the
person, co-partnership, association or corporation affected, and to each
city or town in which such special franchise is subject to assessment,
stating in substance that such assessment has been made, the total
valuation of such special franchise, and the valuation thereof in each
“city, town or tax district; and that the board will meet at its office in
the city of Albany on a day specified in such notice, which must not be
less than twenty nor more than thirty days from the date of the notice,
to hear and determine any complaint concerning such assessment. But
no notice need be given any such town unless the supervisor thereof
shall at least fifteen days prior to. the time fixed for such hearing file
with said board a request in writing for notice thereof. Such notice
must be served at least ten days before the day fixed for the hearing;
and it may be served on a copartnership, association or corporation, by
mailing a copy thereof to it at its principal office or place of business
and on a person, either personally or by mailing it to him at his place
of business or last known place of residence; and on a city or town by
mailing it to the mayor of such city or the supervisor of such town at
the address specified in such request. A city or town entitled to notice
under this section, shall have the right to be heard and to file affidavits
and other proofs in respect to the valuation of such special franchise.
Section thirty-six of this chapter applies so far .as practicable to a
hearing by the state board of tax commissioners under this section.

(New, added by L. 1899, ch. 712, as amended by L. 1906, ch. 458.)

Making false statement respecting taxes is a misdemeanor. (Penal
Code, § 485.) Refusal to report, a misdemeanor. (Penal Code, § 611.)

Failure to report within thirty days does not create a forfeiture of the
right to the writ of certiorari under section 45. (People ex rel. N. Y.
& Queens Co. R. R. Co. v. Comrs., 55 App. Div., 218.)

Certiorari to review assessment.

§ 45. An assessment of a special franchise by the state board of tax
commissioners may be reviewed in the manner prescribed by article
eleven of this chapter, and that article applies so far as practicable to
such an assessment, in the same manner and with the same force and
effect as if the assessment had been made by local assessors; a petition
for a writ of certiorari to review the assessment must be presented
within fifteen days after the completion and filing of the assessment
roll, and the first posting or publication of the notice thereof as
required by law. Such writ must run to and be answered by said state
board of tax commissioners and no writ of certiorari to renew* any
assessment of a special franchise shall run to any other board or officer
unless otherwise directed by the court or judge granting the writ. An
adjudication made in the proceeding instituted by such writ of cer-

*So in the original law.
Provisions APPLICABLE TO CoRPORATIONS. 813.

 

The Revised Tax Law.

 

tiorari shall be binding upon the local assessors and any ministerial
officer who performs any duty in the collection of said assessment in
the same manner as though said local assessors or officers had been
parties'to the proceeding. The state board of tax commissioners on
filing with the city, town or village clerk a statement of the valuation
of a special franchise, shall give to the person, co-partnership, associa-
tion or corporation affected written notice that such statement has.
been filed, and such notice may be served on a co-partnership, associa-
tion or corporation by mailing a copy thereof to it at its principal
office or place of business, and on a person éither personally or by mail-
ing it to him at his place of business or last known place of residence.

(New, added by L. 1899, ch. 712; as am’d by L. 1900, ch. 254.)

Contents of return. (People ex rel. Buffalo Gas Co. v. Comrs., 55
App. Div., 186.) City and its assessors may be made parties. (41 Misc.,
545.) Writ returnable in third judicial district. (169 N. Y., 432, modi-
fying 63 App. Div., 128.) :

Designation of counsel by attorney-general.

§ 45-a. In any proceeding for the review of an assessment of a
special franchise made by the state board of tax commissioners, said

_ state board of tax commissioners is authorized to appear by counsel

to be designated by the attorney-general. The compensation of such
counsel and the necessary and proper expenses and disbursements,
including the expense of procuring the evidence of experts, incurred or
made by him in the defense of such proceeding, and upon any appeals
therein, shall when audited and allowed as are other charges against
such tax district, be a charge upon the tax district upon whose rolls.
appears the assessment sought to be reviewed. Where, in one proceed-
ing, there is reviewed the assessment of a special franchise in more
than one tax district, separate accounts shall be rendered for said
costs, expenses and disbursements to the proper officer of each of said.
tax districts and audited and allowed by him as aforesaid. For the pur-
poses of this section, the city of New York shall be deemed one tax.
district. :

(New, added by L. 1906, ch. 155.)

Deduction from special franchise tax for local purposes.

§ 46. If, when the tax assessed on any special franchise is due and:
payable under the provisions of law applicable to the city, town or
village in which the tangible property is located, it shall appear that
the person, co-partnership, association or corporation affected has paid
to such city, town or village for its exclusive use within the next pre-
ceding year, under any agreement therefor, or under any statute
requiring the same, any sum based upon a percentage of gross earnings,
or any other income, or any license fee, or any sum of money on account.
of such special franchise, granted to or possessed by such person,
co-partnership, association, or corporation, which payment was in the
nature of a tax, all amounts so paid for the exclusive use of such city,
town or village except money paid or expended for paving or repairing’
of pavement of any street, highway or public place, shall be deducted
from any tax based on the assessment made by the state board of tax
commissioners for city, town or village purposes, but not otherwise;
and the remainder shall be the tax on such special franchise payable
for city, town or village purposes. The chamberlain or treasurer of a
city, the treasurer of a village, the supervisor of a town, or other officer
to whom any sum is paid for which a person, co-partnership, associa-
tion, or corporation is entitled to credit as provided in this sec:
tion, shall, not less than five nor more than twenty days before-
a tax on a special franchise is payable, make and deliver to’ the
collector or receiver of taxes or other officer authorized to receive.
$14 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

taxes for such city, town or village, his certificate showing the
several amounts which have been paid during the year ending on
the day of the date of the certificate. On the receipt of such cer-
tificate the collector, receiver or other officer shall immediately
credit on the tax-roll to the person, co-partnership, association or
corporation affected the amount stated in such certificate, on any
tax levied against such person, co-partnership, associatibn or cor-
poration on an assessment of a‘special franchise for city, town or
village purposes only, but no eredit shall ive given on account of
such payment or certificate in any other year, nor for a greater
sum than the amount of the special franchise tax for city, town or
village purposes; for the current year; and he shall collect and
receive the balance, if any, of such tax as required by law.
(New section, added by &. 1899, ch. 712.)

Special franchise tax not to affect other tax.

§ 47. The imposition or payment of a special franchise tax as
provided in this chapter shall not relieve any association, co-part-'
nership or corporation from the payment of any organization tax
-or franchise tax or any other tax otherwise imposed by article nine
of this chapter, or by any other provision of law; but tangible
property subject to a special franchise tax situated in, upon, under
or above any street, highway, public place or public waters, as
‘described in subdivision three of section two shall not be taxable
except upon the assessment made as herein provided by the state
board of tax commissioners.

(New section, added by I. 1899, ch. 712.)

‘Correction of errors by board of supervisors.

§ 53. If it shall be made to appear to the board of supervisors
of any county, upon the verified petition of the assessors of any
tax district:

First. That any property taxable therein has, by mistake in
transcribing or copying the assessment-roll of the preceding year,
been placed on the assessment-roll delivered to the supervisor, at a
valuation less than actually appearing upon the original roll signed
by the assessors, such board shall insert in the assessment-roll of the
current year an assessment of the property upon the valuation
equal to the difference between the actual valuation made by the
‘assessors and the amount at which, by such mistake, the property
‘was placed upon the roll of the preceding year, and tax the same at
Provisions AppiicaBLe To Corporations. _ 815

 

The Revised Tax Law.

 

the rate per centum imposed upon property in such tax district in
the year in which the mistake occurred.

Second. That any taxable property therein has been omitted
from the assessment-roll of the preceding year, such board shall
place the same on the roll of the current year at its valuation for
the preceding year, to be fixed by the assessors in their petition, and
shall tax the same at the rate per centum of the preceding year.

Third. That taxable property has been omitted from the assess-
ment-roll, for the current year, such board shall place the same
thereon at a valuation to be fixed by the assessors in their petition,
and shall tax the same at the rate per centum of the current year.

A copy of the petition under the second or third subdivision of
this section, with a notice of the presentation thereof to the board
of supervisors, shall be served personally on the person alleged to
be liable to taxation for the land omitted from the assessment-roll,
at least ten days before the meeting of the board of supervisors;
and the board of supervisors shall take no action on such petition,
unless proof of the personal service of such petition and notice be
made to them by affidavit. The board of supervisors shall give to
the person alleged to be liable to taxation for such omitted land,
an opportunity to be heard, and on such hearing and review the
board of supervisors shall have,:as to such omitted property all the
powers of the assessors of a tax district in reviewing and correcting
the assessment-roll. _

The whole amount of tax levied upon lana or property omitted
in the tax levy of the preceding year shall be deducted from the .
aggregate of taxation to be levied on the tax district for the cur-
rent year before such tax is levied.

[L. 1865, ch. 458, §§ 2-4. The paragraph requiring notice to be served on

the person alleged to be taxable and giving him opportunity to be heard
by board is new.]

_Reassessment of property illegally assessed.

§ 54. Whenever by the final judgment of a court of competent
jurisdiction, it appears to the board of supervisors that any property
liable to taxation in any year was erroneously or illegally assessed,
and that by reason of such erroneous or illegal assessment, sich,
property did not become subject to taxation for such year, the
board shall place the same on the roll of the current year at the
valuation. thereof, if any, fixed by the assessors for such preceding
year; and in case no valuation was fixed by the assessors, such prop-
erty shall be assessed by the board at such valuation as they may
‘816 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

-determine for the preceding year. Before fixing such valuation,
‘the board of supervisors shall give to the owners of such property,
vat the time of the assessment by the board, a notice of at least five
-days and an opportunity to be heard, and on such hearing, the board
-shall have, as to such property, all the powers of the assessors of a
stax district in reviewing and correcting an assessment-roll. Such
‘property shall be taxed at the rate per centum of such preceding
year. The whole amount of tax on property levied in pursuance
-of this section shall be deducted from the aggregate of taxation to
be levied on the tax district for the current year, before such tax
is levied.

[New.]

‘Statement of taxes upon certain corporations by clerk of supervisors.

§ 57. The clerk of each board of supervisors shall, within five
days after the tax warrant is completed, deliver to the county treas-
‘urer, a statement showing the names, valuation of property and the
amount of tax of every railroad corporation and telegraph, tele-
phone and electric-light line in each tax district in the county, and
on refusal or neglect so to do, shall forfeit to the county the sum
of one hundred dollars, to be sued for by the district attorney in
the name of the county.

[Revisers’ Note.— County L. (L. 1892, ch. 686), § 53, without change of

‘substance, except that § 53 of the county law only requires the state.
ment to specify the town or city in which the corporation is assessed.]

Section 53 of the County Law is not repealed unless by implication.

‘Statement of valuation to be forwarded to comptroller.

§ 58. The clerk of each board of supervisors shall, on or before
-the second Monday in December, transmit to the comptroller, in the
form to be prescribed by such comptroller, a certificate or return
-of the aggregate assessed and equalized valuation of the real and
personal estate in each tax district as the valuation of such real
estate has been .corrected by such board, and the amount of tax
-assessed thereon for town, city, school, county and state purposes.
Also the names of the several incorporated companies liable to
taxation in such county, the nature of their business, the amount of
“the capital stock paid in and secured to be paid in by each, the
amount of real and personal property of each as put down by the
sassessors, or by it, the amount of taxes assessed on each, and
the amount of personal property on which each such corpora-
tion is exempt on account of the payment of state taxes on its
Provisions APPLICABLE TO CORPORATIONS. 817
The Revised Tax Law.

‘capital. In the city of New York such report shall be made by the
clerk of the board of aldermen, and for the purpose of making such
report he may require any department or board of such city to fur-
‘nish the necessary information.

[Revisers’ Note.— R. S., pt. 1, ch. 13, tit. 2, § 34; R. S., pt. 1, ch. 13, tit. 4,
§ 16, without change of substance, except that a date is fixed for the
transmission of the certifi¢ate, and the report is to be made on the basis
-of “tax districts” instead of towns and wards.]

-Notice by collector.

§ 70. Every collector, upon receiving a tax-roll and warrant, shall forth-
with cause notice of the reception thereof to be posted in five conspicuous
public places in the tax district, specifying one or more convenient places

‘in such tax district, where he will attend from nine o’clock in the forenoon
until four o’clock in the afternoon, at least three days, and if in a city, at
least five days, in each week for thirty days from the date of the notice,
which shall be the date of the posting or first publication thereof, which
-days shall be specified in such notice, for the purpose of receiving the
taxes assessed upon such roll. The collector shall attend accordingly, and
aly person may pay his taxes to such collector at the time and place so
designated, or at any other time or place. In a city, the notice in addition
to being posted shall be published once in each week, for two weeks suc-
-cessively, in a newspaper published in such city. On the written demand
of a non-resident. owner of real property included in such tax-roll, and the
‘payment by such owner to the collector of the sum of twenty-five cents,
.the collector shall within twenty-four hours after the receipt of such
-demand mail in a postpaid envelope directed to such non-resident owner,
to the orders to be furnished in such demand, a statement of the amount
of taxes assessed against such property with a notice of the dates and
places fixed by him for receiving taxes.

(Thus amended by L. 1899, ch. 342.)

Collection of taxes.

§ 71. After the expiration of such period of thirty days, the
-collector shall call, at ledst once, on every person taxed upon such
roll, whose taxes are unpaid, at his usual’ place of residence, if he
is an actual inhabitant of such tax district, and demand payment’
-of the taxes charged to him on his property. If any person shall
neglect or refuse to pay any tax imposed on him, the collector shall
levy upon any personal property in the county belonging to or in
the possession of any person who ought to pay the tax, and cause
the same to be sold at public anction for the payment. of such tax,
and the fees and expenses of collection; and no claim of property
to be made thereto by any other person shall be available to prevent
such sale. Public notice of the time and place of sale of the prop-
-erty to be sold shall be given by posting ie same in at least three

52
818 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

public places in the tax district where the sale is to be made, at
least six days previous thereto. If the proceeds of such sale shall
be more than the amount of such tax, the fees of the collection
and the expenses of the sale, the surplus shall be paid to the per-
son against whom the tax was assessed. If any other person
shall claim the surplus, on the ground that the property sold
belonged to him, and such claim be admitted by the person for
the payment of whose tax the sale was made, such surplus shall
be paid to such other person. . If such claim be contested by the
person for the payment of whose tax the property was sold, such
surplus shall be paid over by the collector to the supervisor of the
town, who shall retain the same until the rights of the parties
thereto shall be determined by due course of law, or by agree-
ment in writing made by them and filed with the supervisor.
The collector upon payment of the taxes shall state in the column
of the tax roll provided therefor, the date of such ee and
shall write his name after such date.

(Thus amended by L. 1901, ch. 159.)

[Revisers’ Note.— R. S., pt. 1, ch. 13, tit. 3, §§ 1, 3, 4, 5; R. S., pt. 1, ch.
‘13, tit. 3, § 2, as am. by L. 1892, ch. 196; R. S., pt. 1, ch. 18, tit. 4, § 17,
consolidated without change of substance, except.that the provision of
the last sentence allowing an agreement to be filed with the supervisor is
new. So, also, is the provision that the tax may be collected out of any
property in the county instead of the district. Section 265 of revisian,
provides the method by which a disputed claim to surplus is determined.]

It is a misdemeanor to interfere with a tax officer in the performance
of his duties. (Penal Code, § 475.)

Payment of taxes by railroad and certain other corporations.

§ 73. Any railroad, telegraph, telephone or electric-light com-
pany may, within thirty days after receipt of notice by the county
treasurer from the clerk of the board of supervisors, pay its tax,
with one per centum fees, to the county tfeasurer, who shall credit
the same with such fees to the collector of the tax district, unless
' otherwise required by law. If not so paid the county treasurer
shall notify the collector of the tax district where it is due, and
he shall then proceed to collect under his warrant. Until such
notice from the treasurer the collector shall not enforce payment
of such taxes, but may receive the same, with the fees allowed by
law, at any time.

[Revjsers’ Note.— L. 1870, ch. 506, §§ 2-5; L. 1886, ch. 659, § 5, without
change of substance. Section 56 of revision, provides for the filing of
statement by clerk of board of supervisors with the county treasurer.
Section 81 of revision provides the fees of collectors. ]

To sustain a suit to collect a tax the production of the assessment-roll

and warrant is not sufficient. A previous demand and default should be
proved. (Thompson y. Gardner, 6 Wend., 404.)

SS
Provisions APPLICABLE TO CORPORATIONS. 819

 

 

The Revised Tax Law.

 

Enforcement of tax against telegraph, telephone and electric-light
lines.

§ 74. Collection of tax against a telegraph, telephone or elec-.
tric-light line may be enforced by sale of the instruments and bat-
teries connected with such line, and in case there is not sufficient
personal property, together with such instruments and batteries, to
pay such tax and the percentage due the collector, he shall return a
statement thereof to the county treasurer as other unpaid taxes are
returned, and the county treasurer shall proceed to sell such part
of the line in the tax district where the tax was levied as may be
necessary to satisfy the unpaid taxes and percentage, in the manner
now provided by law for the sale of lands on execution, and upon
such sale shall execute to the purchaser a conveyance of such part
of said line, and the purchaser shall thereupon become the owner
thereof. Nothing herein contained shall be construed to prevent
collection of such taxes by any procedure now provided by law.

[L. 1886, ch. 659, §§ 3, 6, without change.]

Organization tax.

§ 180.

The tax prescribed by section 180 is not an annual tax, but a tax imposed
upon new corporations for. the privilege of organization. For the full text
of this section, decisions thereunder and table showing the tax payable
upon various amounts, see pages 73-75, ante.

License tax on foreign corporations.
§ 181.
For the text of the foregoing section, see pages 76, 77, ante.

Franchise tax on corporations.
§ 182. For the privilege of doing business or exercising its
. corporate franchises in this state every corporation, joint-stock
company or associatién, doing business in this state, shall pay to
the state treasurer annually, in advance, an annual tax to be com-
puted upon the basis of the amount of its capital stock, employed’
during the preceding year within this state, and upon each dollar
of such amount. The measure of the amount of capital stock
employed in this state shall be such a portion of the issued capital
stock as the gross assets employed in any business within this state
bear to the gross assets wherever employed in business. For pur-
poses of taxation, the capital of a corporation invested in the stock of
another corporation shall be deemed to be assets located where the
820 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

physical property represented by such stock is located. If the divi-
dends upon the capital stock amount to six, or more than six per
centum upon the par value of the capital stock, during any year
ending with the thirty-first day of October, the tax shall be at the
rate of one-quarter of a mill for each one per centum of dividends
made or declared upon the par value of the capital stock during
said year. If such dividend or dividends amount to less than six
per centum on the par value of the capital stock, and

(1) The assets do not exceed the liabilities, exclusive of capital
stock, or ,

(2) The average price at which such stock sold during said year, did
not equal or exceed its par value, or

(3) If no dividend was declared,

Then each dollar of the amount of cee stock employed in
this state, determined as hereinbefore provided, shall be taxed at
the rate of three-fourths of one mill. If such dividend or divi-'
dends amount to less than six per centum on the par value of the
capital stock, and 7

(1) The assets exceed the liabilities, exclusive of capital stock, by an
amount equal to or greater than the par value of the capital stock, or

(2) The average price at which such stock sold during said year
is equal to or greater than the par value,

Then the amount of capital stock, determined as hereinbefore
provided to be employed in this state, shall be taxed at the rate
of one and one-half mills on each dollar of the valuation of the
capital stock employed in this state, but such valuation shall not
be less than

(1) The par value of such stock,

(2) The difference between the assets and liabilities, exclusive of
capital stock,

(3) The average price at which such stock sold during said year.

If such corporation, joint-stock company or association shall
have more than one kind of capital stock, and upon one of such
kinds of stock a dividend or dividends amounting to six, or more
than six per centum upon the par value thereof,‘has been made or
declared, and upon the other no dividend has been made or de-
clared, or the dividend or dividends made or declared thereon
amount to less than six per centum upon the par value thereof,
Amendment of 1907.

. <Insert facing page 821. White on Corporations, 6th edition.)

Laws of 1907, chapter 734, amends the Tax Law, section 182, by adding
at the end thereof a new paragraph to read as follows:

All corporations not taxable under the preceding paragraphs of this section
shall be taxed in an amount not less than would be produced by an assess-
ment of one and one-half mills on each one dollar of the actual value of its
capital stock, determined to be employed in this state as hereinbefore pro-
vided, or one and one-half mills upon each dollar of such capital stock at
the average price at which said stock sold during the said year.

“The foregoing is apparently intended to supply a method of taxing certain
corporations, the taxation of which was not provided for in the amendment
of 1906, ch. 474.

0
me
Provisions APPLICABLE TO CORPORATIONS... 821
The Revised Tax Law. ,

 

 

‘then the tax shall be at the rate of one-quarter of a mill for each
-one per-centum of dividends made or declared upon the capital
stock upon the par value of which the dividend or dividends made
-or declared amount to six or more than six per centum, and in
addition thereto a tax shall be charged upon the capital stock

(1) Upon which no dividend was made ‘or declared, or

(2) Upon which the dividend or dividends made or declared did not
amount to six per centum on the par value,

At the rate as hereinbefore provided for the taxation of capital
stock upon: which no dividend was made or declared, or upon
which the dividend or dividends made or declared did not amount
to six per centum on the par value.

(L. 1896, ch. 908, § 182, as amended by L. 1901, ch. 558; L. 1906, ch. 474.)

The amendment of 1906 took effect on Octaber thirty-first of that year,.

  

‘Constitutionality of act.

The Tax Law has been declared constitutional under both the State
‘and the ‘Federal Constitution.’ The Legislature has undoubted right, by
virtue of its jurisdiction over domestic corporations, to levy such taxes
upon their business and privileges, aside from all property taxation, as in
its discretion it might deem just and proper in order to provide revenue
for the State. (People v. Home Ins. Co., 92 N. Y., 328; aff’d, Home Ins. Co.
v. New York, 134 U. S., 599; People ex rel. William J. Matheson & Co.,
Ltd. v. Roberts, 158 N. Y., 162; People ex rel. American Contracting &
Dredging Co. v. Wemple, 129 N. Y., 558; Matter of Tiffany & Co., 80 Hun,
486; People v. Gold & Stock Tel. Co., 98 N. Y., 67; People v. Equitable
‘Trust Co., 96 N. Y., 387.)

As to foreign corporations, a State may impose such terms and _ condi-
‘tions for the privilege of doing business within the State as it may deem
expedient. It may entirely exclude a foreign corporation from its limits,
.and may restrict its business to particular localities, and it may also dis-
-criminate in favor of corporations organized under its own laws. (Pem-
‘bina Mining Co. v. Penn., 125 U. S., 181; Horn Silver Mining Co. v. New
York, 143 N. Y., 305; Philadelphia Fire Assn. v. New York, 119 U. 8., 110;
New York State v. Roberts, 171 U. S., 658; Norfolk w W. R. R. Co. v.
‘Penn., 136 U. S., 114; Paul v. Virginia, 8 Wall., 168; Bank of Augusta
-y. Earle, 13 Pet. 519; Cooper Mfg. Co. v. Ferguson, 113 U. S., 727; Chris-
‘tian Union v. Yount, 101 U. S., 352; Wm. J. bfatheson & Co., Ltd. v. Rob-
erts, 158 N. Y., 162, aff’g 27 App. Div., 632; American Soda Fountain Co.
v. Roberts, 158 N. Y., 168, revsg. 29 App. Div., 585; People ex rel. Southern
‘Cotton-Oil Co. v. Wemple, 131 N. Y., 64; People v. Formosa, 131 N. Y., 478;
Demarest v. Flack, 128 N. Y., 205.)

Nature of the tax.

The tax imposed upon corporations under the Tax Law is a tax upon the
“‘ corporate franchise or business,” and is not a tax upon property. The
§22 PROVISIONS APPLICABLE TO CorporaTIONS.

 

The Revised Tax Law.

 

tax when imposed on a domestic corporation is a tax on its corporate
franchises, and when imposed on a foreign corporation is a tax on its
business, a distinction based on the fact that corporate franchises are
only taxable within the jurisdiction which creates them, and where alone
they can be said to have a situs. (People ex rel. Penn. R. R. Co. v.
Wemple, 138 N. Y., 1; Peoplé v. Home Ins. Co., 92 N. Y., 345; Home Ins.
Co. v. People, 134 U. S., 594; People v. Equitable Trust Co., 96 N. Y., 3873
People ex rel. Chicago Junction Rys. & Union Stockyards Co. v. Roberts,.
154 N. Y., 1; People ex rel. Am. Contracting & Dredging Co. v. Wemple,
129 N. Y., 558; People ex rel. United Verde Copper Co. v. Roberts, 156
_N. Y., 585.)

In respect to foreign corporations, we do not grant them their fran--
chises, but we permit them to do business here; and, as we should not
accord them superior advantages over domestic corporations, we try to-
impose the same rate of taxation upon them, and thus we tax them upon
their business, upon the same basis and scale. (People ex rel. Niagara.
River Hydraulic Co. v. Roberts, 30 App. Div., 180, aff’d, 157 N. Y., 676.)

Interstate commerce. , ay

The only limitation upon the power of a State to exclude a foreign cor--
poration from doing business within its limits, or hiring offices for that
purpose, or to exact conditions for allowing the corporation to do busi--

“ness or hire offices there, arises where the corporation is in the employ
of the Federal government, or where its business is strictly commerce,.
interstate or foreign. (Pembina Cons. Silver Mining & M. Co. v. Penn.,
125 U. &., 181; People ex rel. Southern Cotton-Oil Co. v. Wemple, 131
N. Y., 64; People ex rel. Penn. R. R. Co. v. Wemple, 138 N. Y., 1.)

The State is not permitted to tax a foreign corporation upon its busi-
ness carried on in this State, where it is exclusively the business of
interstate commerce. (People ex rel. Penn. R. R. Co. v. Wemple, 138-
N. Y., 1.)

Where a corporation is engaged partly in interstate commerce and’
partly in domestic or infrastate commerce, the imposition of a tax is
within the power of the State, as is also the power to prescribe the basis
of its measurement, if the corporation is doing business and employing
capital within the State, and in this respect there is no distinction
between domestic and foreign corporations. (People ex rel. Klipstein v.
Roberts, 36 App. Div. 597; aff’d, 167 N. Y., 617; People ex rel. Am. Soda
Fountain Co. v. Roberts, 158 N. Y., 168, revsg. 29 App. Div., 585; People
ex rel. Penn. R. R. Co. v. Wemple, 138 N. Y., 1; People ex rel. Southern
Cotton-Oil Co. v. Wemple, 131 N. Y., 64; People ex rel. Parke, Davis & Co.
v. Roberts, 91 Hun, 158; aff’d, 149 N. Y., 608; aff’d in U. S. Sup. Ct. in New
York State v. Roberts, 171 U. S., 658; People ex rel. Postal Tel. Co. v.
Campbell, 70 Hun, 507;-People ex rel. Eppens, Smith & Wieman Co. v.
Roberts, 51 App. Div., 152.)

The fact that the other business besides manufacturing carried on by
a corporation within the State was interstate commerce does not entitle:
it to exemption upon that portion of its capital invested in interstate com-
merce. (People ex rel. Am. Soda Fountain Co. v. Roberts, 158 N. Y., 168.)

A cab service maintained by a railroad company to take passengers to-
and ‘frdm its terminus in New York city for which the charges are
separate from those of other transportation and wholly for service
within the State of New York is not interstate commerce and the corpo-
ration is not exempt from tax. (Penn. R. R. Co. v. Knight, 192 U. S., 21,.
affg., 171 N. Y., 354; 67 App. Div., 398.)
Provisions APPLICABLE TO CORPORATIONS. 823

 

a The Revised Tax Law.

 

A tax or burden imposed by the statutes under consideration upon for-

‘eign corporations is laid not upon their property, but their business, and
eannot be lawfully imposed upon the business of interstate commerce of
‘transportation. (Gloucester Ferry Co. v. Penn., 114.U.S., 211. See, also,
Robbins v. Shelly Tax District, 120 U. S., 489; McCall v. California, 136
. U. S., 104; Savage v. Atlanta Home Ins. Co., 55 App. Div. 20.)

If the corporation is engaged in State as well as interstate business,
‘it is taxable upon both, and this is not in conflict with the Federal Con-
‘stitution. (People ex rel. American Soda Fountain Co. v. Roberts, 158
N. Y., 168, revsg. 29 App. Div., 585.)

‘Imported goods, capital invested in.

Where the original packages in which goods were imported have been
broken, and the goods taken therefrom and placed in a store on sale,
-thereby becoming mixed with other property, the restrictions of the Fed-
eral Constitution upon imposts on imports and upon the regulation of for-
-eign commerce do not apply, and the goods become subject to the taxing
-power of the State. (People ex rel. Wm.'J. Matheson & Co. v. Roberts,
“158 N. Y., 162, aff’g 27 App. Div., 632.)

A corporation, six-sevenths of whose business, carried on in the State

‘of New York, consists of importing goods from foreign countries and sell-_

ing the same in the original packages, and’ the balance in selling broken
-packages of its imported goods, and also some domestic goods, is taxable.
(People ex rel. Klipstein & Co. v. Roberts, 36 App. Div., 597; aff’d, 167
N. Y., 617.) :

A State can levy no tax upon exports or imports, and goods imported
from foreign countries and brought within a State cannot be reached by
‘its taxing power while in the hands of the importer in the condition in
which they were when imported, unless they have been mingled with
other property. (People ex rel. Penn. R. R. Co. v. Wemple, 138 N. Y., 9;
Low v. Austin, 13 Wall., 29; State Tax on Railway Receipts, 15 Wall,
284, 295; Waring v. Mayor, 8 Wall., 110, 121; Cook v. Penn., 97 U. S., 566,

573; Machine Co. v. Gage, 100 U. S., 679.)
The imposition upon a domestic corporation of the franchise tax com-

‘puted upon its dividends is not a tax upon property, and is not violative
of the restrictions of the Federal Constitution upon the taxation of
imports, even if a portion of the corporation’s property consists of
‘imported goods. (People ex rel. Wm. J. Matheson & Co., Ltd. v. Roberts,
158 N. Y., 162, aff’'g 27 App. Div., 632.)
~ Capital stock.” "Meaning of term.

The term “ capital stock,” in the Tax Law, does not mean share stock,
‘put means the property of the corporation contributed by its stock-
holders or otherwise obtained by it, to the extent required by its charter.
“Capital stock” and “capital” are practically the equivalent of each
vother when considered as a basis for a franchise tax. (Williams v.
‘Western Union Tel. Co., 93 N. Y., 162; People ex rel. Commercial Cable
‘Co. v. Morgan, 178 N. Y., 433; People ex rel, Am. Axe & Tool Co. v.
Roberts, 82 Hun, 313; Burrall v. Bushwick R. R. Co., 75 N. Y., 211; People
ex rel. Wiebusch & Hilger Co., Ltd., v. Roberts, 154 N. Y., 101, aff’g 19
. App. Div., 574, and cases there cited.)

4
824. Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

, Basis of tax on domestic corporations.

A domestic corporation is required to pay a tax upon its franchise and
business, to be measured by the amount of its capital stock found to be-
employed in this State. As to such corporations, the power to tax their-
franchises and business is undoubted and general; but as to corporations
which are created under the laws of another State or country, jurisdiction’
for taxing purposes is gained from the business which they do in this

- State, and the tax is one upon that business. (People ex rel. Am. Con.
tracting & Dredging Co. v. Wemple, 129 N. Y., 558; People ex rel. United
Verde Copper Co. v. Roberts, 156 N. Y., 585, revsg. 25 App. Div., 89;
People ex rel. Wiebusch & Hilger Co., Ltd. v. Roberts, 154 N. Y., 101, aff’g-
19 App. Div., 574; People ex rel. Edison Electric Light Co. v. Wemple, 148
N. Y., 690, revsg. 63 Hun, 444; People ex rel. Edison Blectric Light Co. v.
Campbell, 138 N. Y., 543.)

There must be some property or business within the State to justify a
tax upon a domestic corporation. If it has no property or business within
the State there is no basis upon which to compute the tax. (People ex
rel. Davis-Colby Co. v. Campbell, 66 Hun, 146.)

Stock owned by a domestic corporation in other corporations organized
under the laws of this State constitutes capital employed within the.
State, and so forms a basis for’ taxation; but as to the stock in corpora-
tions in other States, it is capital employed outside of the State and can-
not be taken into consideration. (People ex rel. Edison Electric Light Co..
vy. Campbell, ‘138 N. Xs 543; People ex rel. Edison Electric Light Co. v.
Wemple, 148 N. Y., 690, revsg. 63 Hun, 44.)

The stock of a foreign corporation, in which a portion of the capital
stock of a domestic railroad corporation is invested, is not capital stock
used in the State. (People v. Campbell, 88 Hun, 544, citing and following

138 N. Y., 543, supra.)
Although the income from capital invested outside the State is received:

by a domestic corporation at its home office in the State of New York,
and is there used in its business, such capital is not taxable. (People ex
rel. Am. Surety Co. y. Campbell, 74 Hun, 101; aff'd, 143 N. Y., 625,
approving 138 N. Y., 543, supra.)

That part of the capital stock of a railroad company which is invested
in freight cars, permanently engaged out of the State, is not subject to
a franchise tax. (People v. Campbell, 88 Hun, 544; Pullman Palace Car
Co. v. Penn., 141 U. S., 18; Commonwealth v. Del., L. & W. R. RB. Co., 145
Penn., 96.) 2

A railroad company is not entitled to be credited with the average
amount of its rolling stock employed outside the State, but only with
the amount used exclusively and continuously outside the State. (People.
ex rel. N, Y. C. & H.R. RB. RB. Co. v. Knight, 173 N. Y., 255; Same v.
Miller, 89 App. Div., 127.)

Bonds issued by foreign corporations and held by a domestic corpora-
tion affords a basis of taxation. Such bonds are presumably held by ‘a
domestic corporation at its office in this State and have their situs at
the domicile of the owner. (People ex rel. Edison Electric Light Co. v.
Campbell, 138 N. Y., 543; People v. Campbell, 88 Hun, 544.)

Where the amount of capital employed by a corporation within the State:
varies from time to time during the year, the assessment of the corpora-
: Provisions APPLICABLE TO CORPORATIONS. 825

 

The Revised Tax Law.

 

tion for that year should be fixed at the average amount of capital em-
ployed throughout the year and not at the highest sum employed at any
one time. (People ex rel. Brooklyn Rapid Transit Co. v. Morgan, 57 App.
Div., 335, modified as to amount of tax by 168 N. Y., 672.)

That the proper method of reaching the amount of capital employed
is by average is supported by authcrity. (People ex rel. Brooklyn Rapid
Transit Co. v. Morgan, 57 App. Div., 335, citing People ex rel. Tiffany &
Co. v. Campbell, 144 N. Y., 166; People ex rel. New England Loan Co. v.
Roberts, 25 App. Div., 16; aff'd, 156 N. Y., 688.)

Where the entire capital stock of a corporation has been issued in pay-
ment for an equity in mortgaged premises; the value of such equity less
the indebtedness of the corporation is the value of the capital stock.
(People ex rel. Lorena Co. v. Morgan, 55 App. Div., 265.)

In Pennsylvania it has been held that when the capital stock, of a cor-
poration has been increased during the tax. year, the tax on such increase
should be apportioned with regard to the length of time it has been in ex-
istence. (Commonwealth v. Machine Co., 2 Chester Co. Rep. [Pa.], 186.)
An apportionment of the tax should also be made when the corporation
has been organized less than a year. (Commonwealth v. Wyoming Val.
Coal Co., 50 Pa. St. Rep., 410.) Su as

The Comptroller in estimating the amount of the capital stock employed
within the State is not obliged to deduct real estate subject to local taxa- |
tion. (People ex rel. Postal Telegraph Cable Co. v. Campbell, 70 Hun, 507 )

Domestic corporation, when taxable.

The capital of a domestic corporation in order to be liable to assessment
for a franchise tax must be employed within the State. The capital of
such a company is employed where it is kept and used for the purposes
of the corporation. (People ex rel. Edison Hlectric Light Co. v. Campbell,
138 N. Y., 546; People ex rel. American Surety Co. v. Campbell, 74 Hun,
101; aff’d, 143 N. Y., 625.)

Portions of the capital stock of a domestic corporation, organized for
guaranteeing bonds, etc., invested in real estate in another State and in
United States bonds deposited under a deed of trust in a third State and
with the Minister of Finance in‘Canada, to enable the corporation to do
business in such States and Canada, are not to be deemed “ eapital stock
employed within this State” for purposes of taxation, although the in-
vestments are subject to claims of creditors of the corporation, and the
income therefrom is received at its home office in this State, and is there
used in its business. (People ex rel. American Surety Co. v. Campbell,
74 Hun, 101; aff'd, 143 N. Y., 625.)

A domestic” corporation, organized for manufacturing purposes, and
- earrying on all its manufacturing operations in another State, is not
exempt from tax. For the purposes | of taxation the average bank ac-

count of the company in this State and the average value of the goods
which it sends to and keeps in the State until they are sold represent the
826 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law. .

 

capital stock employed within the State. (People ex rel. Blackington Co.
v. Roberts, 4 App. Div., 388; aff’d, 151 N. Y., 652.)

There must be some property or business within the State to justify a
tax upon a domestic corporation. If it has no property or business
within the State there is no basis upon which to compute the tax. (Peo-
ple ex rel. Davis-Colby Co. v. Campbell, 66 Hun, 146.)

A domestic corporation engaged in business out of the State, but having
its office and bank accounts in the State, made annual reports to the
Comptroller for three years, by which it appeared that dividends were
declared and paid upon its capital during those years. The Comptroller
based his adjustment of taxes against such corporation upon the amount
of capital employed in this State, which he determined from the average
monthly balances in the New York banks, and the expenditures for the
maintenance of its office there. Held, that there was sufficient evidence
upon which the Comptroller could act in finding a basis for assessment;
and that the tax was properly imposed. (People ex rel. Am. Contracting
and Dredging Co. v. Wemple, 129 N. Y., 558, aff’g 60 Hun, 225. See, also
cases therein cited.) ,

It seems that capital of a casualty company deposited as security in
other States for those doing business with it in those States is employed
without the State so as to be entitled to exemption from taxation here.
(Am. Surety Co. v. Campbell, 64 Hun, 417.)

A corporation, in order to be liable for a tax, must have its capital
actively employed in this State in its corporate business and cannot be
taxed upon the passive holding of capital in the form of an unproductive
investment. (People ex rel. Niagara River Hydraulic Co. v. Roberts, 30
App. Div., 180; aff’d, 157 N. Y., 676.)

For other. cases respecting the taxability of domestic corporations, see
the cases cited under “‘ Basis of Tax on Domestic Corporations,” page 824.

Basis of tax on foreign corporations.

Foreign corporations coming into this State, for the purpose of doing
some part of their business here, are placed under the obligation to bear
some portion of the general burden of taxation, in return for the privileges
and benefits enjoyed. Taxation under the act as to such corporations is
limited to those “ doing business in this State,” and the tax'is upon that
business, to be computed upon the basis of the amount of capital em-
ployed by the foreign corporation in its business within the State. (Peo-
ple v. Equitable Trust Co., 96 N. Y., 387; People ex ref. Am. Contracting
and Dredging Co. v. Wemple, 129 N. Y., 558; People ex rel. Roebling’s
Sons’ Co. v. Wemple, 138 N. Y., 582; People ex rel. Chicago Junction Ry. ;
& Union Stockyards Co. v. Roberts, 154 N. Y., 1, revsg. 90 Hun, 474;
People ex rel. Singer Mfg. Co. v. Wemple, 150 N. Y., 46.)

The basis of taxation of a foreign corporation is the portion of its cap-
ital employed within the State, and it is represented by the actual value
of the property. (People ex rel. Seth Thomas Clock Co. v. Wemple, 133
N. Y., 323.)
Provisions APPLICABLE TO CORPORATIONS. 827

 

The Revised Tax Law.

 

Capital employed in this State by a foreign corporation cannot be
measured by comparing the sales made within the State with the total
sales, and assuming that the capital employed here bears the same propor-
tion to the capital of the corporation. (People ex rel. Seth Thomas Clock
Co. v. Weniple, 133 N. Y., 323.)

A foreign corporation which maintains an office in this State, and has
a stock of western securities which are sold and replenished in the course
of its business, the proceeds of which are deposited in a New York bank
and are subsequently sent out of the State to be reinvested, is subject
to taxation on its capital employed within the State represented by its
bank account and the amount paid out for salaries and rentals and the
securities through which it transacts business, less what may be deemed
income. (People ex rel. New England Loan & Trust Co. v. Roberts, 25
App. Div., 16; aff’d, 156 N. Y., 688.)

Whether a foreign corporation is doing business in this State is a ques-
tion that must be determined from the character of the business carried
on, not from the existence of any unexercised powers reserved to it by its
eontracts. (People v. Am. Bell Telephone Co., 117 N. Y., 24; People v.
Horn Silver Mining Co., 105 N. Y., 76; S. C., 143 U. S., 305.) The statute
does not require that the whole business of a foreign corporation shall be
done within the State in ‘order to subject it to taxation. (Horn Silver
Mining Co. v. New York, 143 U. S., 305.)

Cars of a foreign palace car company within the State, although em-
ployed in interstate commerce, are not exempt from taxation as property;
taking as a basis of assessment such proportion of the capital stock of
the company as the number of miles over which its cars run within the
State bears to the whole number of miles in this and other States over
which its cars were run, is a just and equitable method of assessment.
(Pullman Palace Car Co. v. Pennsylvania, 141 U. S., 18, aff’g 107 Pa. St.
Rep. 156.) ,

A foreign corporation, whose“capital is wholly invested in the stock
and bonds of an independent foreign corporation doing business wholly
out of this State, whose whole income isa@lerived fromi such investment,
and which maintains a leased office, with furniture, officers and clerks,
in this State, where it receives and distributes the dividends derived
from its investment, which constitutes its whole business, is not subject
to taxation under ‘chapter 542, Laws of 1880, since, although “ doing busi-
ness in this State,” no part of its capital is “ employed within the State,”
within the meaning of the statute. (People ex rel. Chicago Junction Ry.
& Union Stockyards Co. v. Roberts, 154 N. Y., 1; revsg. 90 Hun, 474.)

The amount of capital employed within the State is to be ascertained
by computing the value of the stock in trade here during the year, its
other personal property, the average monthly bank balance, and value of
the real estate ownéd and used in business here. (People ex rel. Roe
Dling’s Sons’ Co. v. Wemple, 138 N. Y., 582.)

The impositioniof a tax upon the privilege granted to a foreign corpo-
ration of doimg’ business in the State of New York, measured by the
828 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

amount of the capital employed in such business within the State, is en-
tirely within the power of the State, (People ex rel. Parke, Davis & Co.
v. Roberts, 91 Hun, 158.)

A, corporation organized under the laws of another State, where it was
engaged in mining and refining, shipped «ts bulliom for refining to the
United States assay office in this State, maintained an office in the city of
New York solely for meetings of directors, payment of dividends, and cor-
respondence with its superintendents at the mines and refineries. Held,
* that it was a foreign corporation doing business in this State, and subject
to tax as such; and that it could not claim exemption from taxation under
L. 1880, ch. 542, as amended by L. 1881, ch. 361, as a manufacturing com-
pany carrying on manufacture within this State. (People v. Horn Silver
Mining Co., 105 N. Y., 76, aff’g 38 Hun, 276.)

In Pennsylvania it has been held that when a railroad extends through
that and other States, the assessment of tax on its capital stock is to be
in the proportion its line in that State bears to its total length. (Com-
monwealth v. Cleveland, Painesville & Ashtabula R. R. Co., 29 Pa, St.
Rep., 370; Commonwealth v. Del., Lack. & West. R. R. Co., 145 id., 96;.
Pittsb., Ft. W. & Chicago R. R. Co. v. Commonwealth, 66 id., 73; Com-
monwealth vy. Erie R. R. Co., 98 id., 127.)

Foreign corporations, when taxable.

The jurisdiction to tax foreign corporations depends upon the existence
of two concurring conditions, namely, that the corporation sought to be
taxed shall be “ doing business” in this State, and, second, that its capi-
tal or some portion thereof shall have been “ employed within this State.”
(People ex rel. Harlan & Hollingsworth Co. v. Campbell, 139 N. Y., 685.
People ex rel. Chicago Junction Rys. & Union Stockyards Co. v. Roberts,
154 N. Y., 1, revsg. 90 Hun, 474.)

The question whether or not a foreign corporation is doing business in
this State must be determined from the actual character of the business
carried on, and not from the existence of any unexercised powers reserved
to it by its contracts. (People v. Am. Bell Telephone Co., 117 N. Y., 241;
People v. Horn Silver Mining Co., 105 N. Y., 76; Horn Silver Mining Co.
y. New York, 143 U. S., 305.)

A foreign corporation, having no office in this State, which merely
leases and licenses its telephones to domestic corporations, the business
in this State being entirely conducted by local companies, although the
rentals for instruments are collected in the name of the foreign corpora-
tion, is not doing business in this State, (People v. Am. Bell Telephone
Co., 117 N. Y., 241.)

A foreign corporation obtaining, through brokers carrying on business
in the State of New York, orders for goods which are ‘sent to it for ap-
proval at the home office, and when approved are filled by the transmis-
sion of the goods direct from its factory in the foreign State, is not doing
Provisions APPLICABLE TO CoRPORATIONS. 829

 

The Revised Tax Law.

 

business within the State of New York. (People ex rel. Southern Cotton-
Oil Co. v. Roberts, 25 App. Div., 13.)

The fact that a foreign corporation assigns a portion of its goods to:
brokers, who are its agents, and that sales are made within the State-
from such goods, either directly at.a price fixed by the corporation or in
fulfillment of orders approved by it, the proceeds being deposited to the
credit of the corporation in a bank in the State of New York, and the-
charges of the brokers being paid by check after the deposit, instead of
being deducted before the deposit, does not render the corporation subject.
to taxation. (People ex rel. Southern Cotton-Oil Co. v. Roberts, 25 App..
Div., 13.) :

Where a foreign corporation employs an agent to solicit orders in this:
State, but keeps no goods for sale here, and simply provides a place for
the agent to receive orders ‘and for the temporary deposit of goods, it is

not liable to a franchise tax. (Lembeck & Betz Eagle Brewing Co. v.

Roberts, 22 App. Div., 282.)
A foreign manufacturing corporation, whose business is conducted in.
another State, where all its contracts are made and its products are manu--

factured, sold and delivered, and which transacts none of its corporate bus--:

iness in this State, but bas an office herein in charge of a salaried agent,.
maintained merely as a convenient meeting place for its patrons for the.
discussion of questions preliminary to the making of contracts, the con-

tracts being executed at the home office, and the rent of the office and the-

salary of its agent paid by checks drawn on 4 bank in another State and

paid there, cannot, for the purposes of taxation, be regarded as employing:

any of its capital in this State. (People ex rel. Harlan & Hollingsworth
Co. v. Campbell, 139 N. Y., 68.)

A foreign corporation which solicits and obtains, through agents in this
State, orders which are filled by shipping goods from its factory in another-
State, and which leases an office in New York city, where it keeps samples.
of value of $4,000, and has a bank account of several thousand dollars,
is not taxable upon its business and franchise.’ (People ex' rel. H. B.
Smith Co. v. Roberts, 27 App. Div., 455.)

A foreign corporation which prints a newspaper outside the State and'
merely solicits and secures advertising patronage within the State and
collects upon contracts, which collections are deposited in a New York

bank to the extent of an average monthly balance of $6,000, and owns''

office furniture worth about $700, has no capital employed within the State-

within the meaning of the act. (People ex rel. Kellogg Newspaper Co. v. -

Roberts, 30 App. Div., 150.)

Office conveniences are permitted within the State to a foreign corpora-
tion doing business in another State for use in the work of soliciting orders.
to be executed in other States, without liability for the payment of a fran-
chise tax. (People ex rel. Kellogg Newspaper Co. v. Roberts, 30 App.
Div., 150.)

i
830 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

Where a foreign corporation rented part of a building in New York city,
in which its selling agent kept an office for the distribution of samples,
the payment of traveling agents and for the purpose of taking orders for
goods, which orders were sent for approval to the treasurer in Massachu-
‘setts, from which State all goods were shipped, it was held that the cor-
poration was not taxable, as doing business within this State. (People
ex rel. Washington Mills Co. v. Roberts,'8 App. Div., 201; aff’d, 151 N. Y.,
619.) The bank account of said corporation was not taxable, as the money
was sent to the State merely to pay an indebtedness of the company in
this State, and was not capital employed within the State. (Id.) The
fact that the corporation had an interest as lessee in a building for which
it paid rent did not make such an interest capital taxable within this
State. (Id.)

A corporation which maintains an office within the State in charge of
an agent, for the convenience of the corporation and its patrons, is not
employing capital within the State. The office furniture cannot fairly
be considered capital. (People ex rel. Harlan & Hollingsworth Co. v.
Campbell, 139 N. Y:, 68; People ex rel. Washington Miiis Co. v. Roberts,
8 App. Div., 201; aff’d, 151 N. Y., 619; People ex rel. Chicago Junc. Rys.
& Union Stockyards Co. v. Roberts, 154 N. Y., 1; People ex rel. A. N.
‘Kellogg Newspaper Co. v. Roberts, 30 App. Div., 150; People ex rel. H. B.
Smith Co. v. Roberts, 27 App. Div., 455.) .

Where it is shown that the only business carried on by a foreign corpo-
ration in this State was that of soliciting orders through agents, and that
when the orders were obtained, the goods were shipped from its factory
in another State to the purchaser, such a business cannot be taxed in this
State. (Brennan v. Titusville, 153 U. S., 289; Robbins v. Shelby Co.
‘Taxing District, 120 U. S., 489.)

A foreign corporation which establishes a place for the sale of its goods
within the State of New York, pays rent for the premises, employs agents
and employees to conduct its business, and sells its product from such
place of business, transacts business within the State. (People ex rel.
Parke, Davis & Co. v. Roberts, 91 Hun, 158.)

It is not necessary that the whole business of a foreign corporation
‘shall be done within the State in order to subject it to the taxing power
of the State. (Horn Silver Mining Co. v. New York, 143 U. S., 305.)

Sales made by a foreign corporation in this State from samples, the
goods being delivered to the purchaser directly from the factory in an-
other State, do not represent capital stock employed in this State and
could not constitute any element in the process of ascertaining it. (Seth
‘Thomas Clock Co. v. Wemple, 133 N. Y., 323.)

A foreign corporation is deemed to be engaged in business in this State
when it becomes a special partner in a limited partnership within the
‘State, which is the sole agent for the sale of its products in this country,
and is liable to taxation upon the amount of capital which it contributed
‘to the partnership, as capital stock employed in this State. (People ex rel.
PROVISIONS APPLICABLE TO CoRPORATIONS, 831
The Revised Tax Law.

Badische Anilin & Soda Fabrik v. Roberts, 152 N. Y., 59, aff’g 11 App.
Div., 310.) :

A foreign corporation, whose sole business consists in selling, under:
a contract of agency, the goods of another corporation in foreign coun-
tries through agencies in such foreign .countries, the orders for the
goods and purchase-price beihg sent directly to its principal, and which
maintains its principal office in New York city merely as a headquarters
for the transmission of orders to its agents, and for the receipt of
reports from them, does not employ capital within the State, and no.

_part of its good-will is taxable here. (People ex rel. Dutilh-Smith,.
McMillan & Co. v. Miller, 80 App. Div., 545.) ; y

A foreign investment company engaged in purchasing, holding and
selling stocks and bonds of other foreign corporations doing business.
outside of the State of New York maintained an office in New York city,
where its principal business was transacted, all the business relating
to the investment or reinvestment in said stocks and bonds being super-
vised at the New York office, where the company also paid annually
wages aggregating $23,000, and where it carried large monthly bank
balances and a large amount of financial securities, and also held a con-
siderable amount of bills and accounts receivable, is properly taxable
for a franchise tax and license fee. (People ex rel. North Am. Co. v.
Miller, 90 App. Div., -560.) ,

Basis of tax cannot exceed capital stock.

Where a foreign corporation had a fully paid capital stock authorized
by its charter of $5,000, and it employed in this State $40,000, from which
it realized a profit of $20,000 a year. Held, that the determination of the
Comptroller, fixing the amount of the capital stock employed in this
State at $40,000, was erroneous; that the capital stock, made by statute
the basis of taxation, however great the aggregate property, cannot
exceed in amount, though it may in value, the amount authorized by its
charter. (People ex rel. Railway Advertising Co. v. Roberts, 4 App. Div.,
288; aff'd, 151 N. Y., 621.) Such corporation might, if it chose, employ its
surplus’ in business instead of increasing its capital stock, and such
surplus would not be taxable. (Id.)

The basis of a tax imposed upon the business or franchise of a foreign
corporation cannot exceed the amount of capital stock authorized by its
chatter. (People ex rel. International Contracting Co. v. Roberts, 27
App. Div., 400; aff’d, 158 N. Y., 666.)

Surplus, exemption of.

Surplus earnings of a foreign manufacturing corporation carrying on
a portion of its business in this State, invested in real ‘estate in this
State leased by it to third parties, and not occupied by the corporation
or used by it in transacting its ordinary business, and taxable for
general State and local purposes, do not constitute capital stock; and,
while such investment influences: the amount of the corporation tax by
increasing the dividends or the valuation of the capital stock, it is not
taxable as “capital stock employed within this State.” (People ex rel.
Singer Mfg. Co. v. Wemple, 150 N. Y., 46, aff’g 78 Hun, 63.)
1832 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

The surplus profits and earnings of a corporation are not capital,
‘though they may be converted into capital. If no such conversion has
taken place, they furnish no basis for taxation, except incidentally as
“they aid in increasing the dividends. (People ex rel. Chicago Junc. Rys.
& Union Stockyards Co. v. Roberts, 154 N. Y., approving 146 N. Y., 46,
. Supra.) ,

A foreign corporation may employ its surplus in its business if it
‘chooses, instead of increasing its capital stock, and such surplus would
not be taxable. (People ex rel. Railway Advertising Co. v. Roberts, 4
_App. Div., 288; aff’d, 151 N. Y., 621.)

. Surplus earnings of a domestic corporation, or property purchased
with and representing such surplus, is not taxable; therefore, stock and
bonds of a railroad company, purchased as an independent investment
by such a corporation with its surplus, “which it might otherwise have
-distributed as dividends, cannot be regarded as a part of its capital
-stock employed within the State. (People ex rel. United Verde Copper
‘Co. v. Roberts, 156 N. Y., 585, revsg. 25 App. Div., 89.)

Bonds bought with surplus are not a basis for taxation. (People ex rel.
‘Com’l Cable Co. v. Morgan, 178 N. Y., 433, revsg. 86 App. Div., 577.) The
fact that assets exceed the share stock does not create the presumption
that stocks and bonds purchased by it were bought with surplus. (Id.)

‘Good will. ;

The good will of a foreign corporation, acquired and built up in this
‘State and having a market value here, where its business is carried on,
is not exempt from taxation, merely because it is intangible. (People
‘ex rel. A. J. Johnson Co. v. Roberts, 159 N. Y., 70, revsg. 35 App. Div., 624.)

Good will embraces at least two elements, the advantage of continuing
an established business in its old place, and of continuing it under the
old style or name; while it is not necessarily altogether local, it is
-usually to a great extent, and must, of necessity, be an incident to a
place, an established business or a name known to the trade. (People
-ex rel. A. J. Johnson Co. v. Roberts, 159 N. Y., 70, revsg. 35 App. Div., 624.)

Where a foreign corporation was incorporated to acquire and tontinue
the business of a firm doing business in the State of New York, the value
of the good will and name of the business acquired from such firm is a
Part of the capital stock employed within the State. (People ex rel.
-Journeay & Burnham Co. v. Roberts, 37 App. Div., 1.)

Good will embraces at least two elements, the advantage of continuing
an established business in its old place, and of continuing it under the
old style or name. It is not altogether local, but must, of necessity, be
an incident to a place, an established business or a name known to the
trade. (People ex rel. A. J. Johnson Co. v. Roberts, 159 N. Y., 70, revsg.

“35 App. Div., 624.)

Where a corporation which, although organized in another State, has
never done any business, owned any property or had an office there, but
which has carried on its business wholly in this State, where all its
tangible property is located, has acquired a good will created here, and
has built up the same by the exercise of its corporate franchises and

‘
Provisions AppLicaBLE To CoRPoRATIONS. 833

The Revised Tax Law.

 

through the increased value of its tangible property in this State, such
.good will is preperly taxable as capital employed here. (People ex rel.
-A. J. Johnson Co. v. Roberts, 159 N. Y., 70, revsg. 35 App. Div., 624.)

That benefit which rests only on good will and that kind and friendly
‘feeling of others. (Parsons on Partnerships, 4th ed., section 181.)

Good will seems to be that species of connection in trade which induces
-eustomers to deal with a particular firm. (Wedderburn v. Wedderburn,
"22 Beav., 84.) ‘

Evidence to the effect that the corporation could not put a price on its
:good will, and could not get anything for it is not sufficient to overcome
.4 statement in its balance sheet showing that the value of the good will
and name was $381,000, and the Comptroller in such case is justified in
taking the statement of the balance sheet as to the value of the good
‘will and name. (People ex rel. Journeay & Burnham Co. v. Roberts, 37
App. Div., 1.)

If a corporation is doing business both within and without the State,
the same proportion of the value of the entire good will should be taken
‘as the amount of the’ tangible property employed within the State bears
to the entire amount of tangible ‘capital employed both inside and out-
. Side the State. (People ex rel. Koechl & Co. v. Morgan, 96 App. Div., 110.)

Upon the sale of an established business its good will has a market-
-able value, whether the business is that of a professional man, or that

of any other person. But it is plain that good will has no meaning
.except in connection with a continuing business. (Lindley on Partner-
ships, vol. 2, page 439.)
Good will is the favor which the management of a business wins from
the public and the probability that old customers will continue their

‘patronage. (Chittenden v. Witbeck, 50 Mich., 401.) .

Good will may, properly enough, be described. to be the advantage or
benefit which is acquired by an establishment beyond the mere value of
‘the capital stock, funds or property employed therein, in consequence
‘of the general public patronage and encouragement which it receives
from constant and habitual customers, on account of its local position, or
-common celebrity, or reputation for skill or. affluence, or punctuality,

or from other accidental circumstances or necessities, or even from
ancient partialities or prejudices. (Story on Partnership, section 99.)

‘Capital not actively employed. '
A domestic corporation, in order to be liable for a tax imposed, must
have its capital actively employed in this State in its corporate business
:and cannot be taxed upon the passive holding of capital in the form of
an unproductive investment; therefore, a corporation whose entire
_capital stock was issued in payment for an island, consisting of
unimproved swamp land, is not taxable within the contemplation of
‘the statute. (People ex. rel. Niagara River Hydraulic Co. v.. Roberts,
:30 App. Div., 180; aff’d, 157 N. ¥., 676.)
A corporation composed only of tenants in common of unimproved
-eity real estate and organized solely to take title to property so as to
vraise funds by mortgage thereon to pay taxes and hold the property

33
’

834 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

until it can be sold is not liable to the franchise tax. (People ex rel.
Ft. George Realty Co. v. Miller, 179 N. Y., 49, revsg. 90 App. Div., 588.)

Deduction of debts. :

The basis for assessing the tax upon the capital stock employed in this.
State of a corporation which has paid no dividends, and of whose stock
there have been no sales, during the tax year, is to be arrived at by
ascertaining the actual cash value of such capital stock. The cash
value of the capital stock liable to be taxed is to be measured by the
assets of the corporation, after deducting its liabilities and the amount.
of its capital that is exempt, and adding to the sum then remaining the
value of the good will of the business. (People ex rel. Wiebusch &
Hilger Co., Ltd. v. Roberts, 154 N. Y., 101, aff’g 19 App. Div., 574.)

In determining the actual capital of a corporation for the purpose of
general taxation, the true value of its corporate assets, less the debts
and obligations, is the rule of assessment. (People ex rel. Roebling’s
Sons’ Co. v. Wemple, 138 N. Y., 582.)

When the corporate property and business of a foreign corporation is
in the State of New York, the amount of its debts must be deducted from
the amount of its assets in computing the amount of capital employed
here. (People ex rel. Journeay & Burnham Co. v. Roberts, 37 App.
Div., 1.)

A foreign corporation, in seeking a deduction for debts, is required to
show that the indebtedness was for the articles which entered into the
amount of assets located within the State. (International Contracting
Co. v. Roberts, 27 App. Div., 400; aff’d, 158 N. Y., 666.)

Where the entire capital stock of a corporation has been issued in pay-
ment for an equity in mortgaged premises, the value of such equity, less
the indebtedness of the corporation, is the value of the capital stock, and
the comptroller is not justified in arbitrarily assessing the corporation
an amount equal to the par value of the stock, less the amount paid for
interest on mortgages and taxes. (People ex rel. Lorena Co. v. Morgan,
55 App. Div., 265.)

The taxable capital of a domestic corporation conducting a large por-
tion of its business in another State and paying no dividends is to be
determined by first deducting from all its assets its liabilities, and
adding to the remainder the value of its good will, unless such good will
has been included in the value of its assets, and then assessing the tax
on such a proportion of such sum as is employed within the State.
(People ex rel. Hans Rees’ Sons v. Miller, 90 App. Div., 591.)

A domestic corporation is not entitled to have deducted from its gross
assets the assets employed without the State and together therewith its
total liabilities, leaving the balance as the amount upon which the tax
is to be computed. (People ex rel. A. G. Hyde & Sons, 90 App. Div., 599.)
The corporation is entitled to a reduction from the value of the assets,
employed in the State of only such proportionate amount of its liabilities
as is represented by the ratio of the assets employed within the State
to the entire pssets of the corporation. (Id.)

Dividends.

The statutes make no distinction between dividends earned within and.
outside the State; therefore, a foreign corporation is properly taxed
upon its capital employed within the State at the rate of dividends.
declared upon its stock, notwithstanding that its business in the State
was without profit. (People ex rel. New England Dressed Meat Co. v.
Roberts, 155 N. Y., 408, revsg. 20 App. Div., 521.)

Where a corporation, after the condemnation of its property under
eminent domain, makes no use of the property and does no business
except such as is incident to its,corporate organization and to the con-
demnation proceedings, and subsequently distributes the award made
to it among its stockholders, the amount so distributed in excess of the
capital stock cannot be treated as a dividend in assessing the tax.
(People ex rel. Jerome Park Co. v. Roberts, 41 App. Div., 21; People v.
Albany Ins, Co., 92 N. Y., 458.)
Provisions APPLICABLE TO-CoRPORATIONS, * 835 .

 

The Revised Tax Law.

 

The taxes imposed upon corporations by the Tax Law are taxes upon
franchises, not upon property, and the fact that dividends, a portion of
which are derived from securities exempt from taxation, furnish the
basis for computing the amount of the tax, does not invalidate the
statute. (People v. Home Ins. Co., 92 N. Y., 328; Home Ins. Co. v. People,
134 U..8., 594.)

_The division of a surplus earned before 1880 is not to be considered a
dividend within the méaning of Laws of 1880, chapter 542, section 3,
which made the dividend the measure of the value of the franchise for
taxable purposes. (People v. Albany Ins. Co., 92 N. Y., 458.) t

The return of money advanced by stockholders to increase the surplus
is not a dividend. (People ex rel. North Am. Trust Co. v. Knight, 96
App. Div., 120.)

Section 182 must be read in connection with section 190; therefore,

-when the dividends amount to less than six per-cent. per annum the

assessment is to be upon the actual cash value of the capital employed
within the state. (Peo. ex rel. N. Y. & East River Ferry Co. v. Roberts,
168 N. Y., 14, revsg. 35 App. Div., 625.)

Appraisal of capital stock. .

When no dividend has been declared the franchise tax is based upon
the amount of appraised capital employed within the State, and as ap-
praised capital means the average value of the share stock, if there have
been sales of the share stock during the year, it is not necessary for the
Comptroller to ascertain the intrinsic or actual value of the stock in cash,
unless such intrinsic value exceed the market value, as, under the statute,
he is obliged to appraise’it at a sum not less than the average price at
which the stock sold during the year. (People ex rel. Brooklyn Elevated
R. R. Co. v. Roberts, 90 Hun, 537.)

The tax upon the business carried on in this State by a foreign corpora-
tion is a specific tax, consequently no apportionment or appraisal is rr
quired. (People v. Equitable Trust Co., 96 N. Y., 387.) But where the
corporate property and business are within the State an appraisal is
poet (People ex rel. Journeay & Burnham Co. v. Roberts, 37 App.

iv., 1.) ‘

The basw for assessing the tax upon the capital stock employed in this
State of a corporation which has paid no dividends and of whose stock
there have been no sales, during the tax year, is to be arrived at by as-
certaining the actual cash value of such capital stock, and such actual
value is the value of its assets, after deducting its liabilities, and adding
to the sum then remaining the value of the good will of the business.
(People ex rel. Wiebusch & Hilger Co., Ltd. v. Roberts, 154 N. Y., 101,
aff’g 19 App. Div., 574.)

In determining the value of the capital employed within the State the
Comptroller is not bound by an appraisal of the stock of the corporation,
made by the officers thereof. (People ex rel. Schwarzschild & Sulzberger
&o. v. Roberts, 11 App. Div., 449; aff’d, 156 N. Y., 690.) ;

‘This section provides that “if dividends amount to less than six per
eentum of the par value of the capital stock, the tax shall be at the rate
ot one and one-half mills upon such portion of the capital stock at par as
the amount of capital employed within the State bears to the entire cap-
ital of the corporation,” but it is held that this section must be read in
eonnection with section 190, and, therefore, when the dividends amount
to tess than 6 per cent. per annum, the tax is to be one and one-half mills
upon such portion of the capital stock at its actual value as the amount
of capital stock employed within the State bears to the entire capital of
the corporation. (People ex rel. N. Y. & East River Ferry Co. v. Roberts,
168 N. Y., 14, revsg. 35 App. Div., 625.) foe woud

he provisions of section 190, that in case no dividend has been declared

by a corporation, association, or joint-stock company liable to pay a tax

i

A

under section 182 of the act, the treasurer or secretary shall “ appraise
gio capital stock of Sucb company upon which no dividend has been de-
‘
836 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

clared, or upon which the dividend amounted to less than six per centum
at its actual value in cash; not less, however, than the average price which
said stock sold for during said year,” authorize the Comptroller to assess
a corporation which has declared no dividend upon the basis of the actual
value of its stock, estimated, at the ‘‘ average price which said stock sold
for during said year,” although such average price exceeds the par value
of the stock and the surplus of the corporation is thus indirectly assessed.
(People ex rel. Colonial Trust Co. v. Morgan, 47 App. Div., 126; aff’d, 162
N. Y., 654.)

In applying the provisions of the Tax Act that when the dividends de-
clared by a corporation during the year “ amount to six or more than six
per centum upon the par value of its capital stock, then the tax to be at
the rate of one-quarter mill upon the capital stock for each one per centum
of dividends,” the tax is properly assessed upon the capital stock at its
par value, as distinguished from its appraised capital. (People ex rel.
Jewelers’ Circular Publishing Co. v. Roberts, 155 N. Y., 1, aff’g 19 App.
Div., 632.)

The amount of the tax to be levied upon a corporation is dependent
upon its business prosperity, as evidenced by its capacity to declare divi-
dends, and is not dependent upon the value of the corporate property.
(People ex re]. Staten Island Rapid Transit R. R. Co. v. Roberts, 4 App.
Div., 334; People v. Home Ins. Co., 92 N. Y., 328.) ;

The words “ capital stock’? do not mean the “share” stock, but refer
to the authorized capital stock, paid in or contributed by the stockholders.
(People ex rel.’ Am. Ax and Tool Co. v. Roberts, 82 Hun, 313.) The Comp-
troller may properly hold, in the absence of any satisfactory explanation,
that the value of the capital stock of a corporation is equal to the sum
paid into its treasury; and, on that assumption, he may well doubt the
truth of the report of the officers of the corporation in estimating that its
stock had so shrunken in value as to be worth only one-quarter of its par
value. (Id.) He is justified in doubting the reliability of the appraise-
ment made by the officers of the corporation which makes its capital stock
employed within the State less “than the conceded value of its real estate
therein. (Id.) He is made by the statute an assessor, and he has the right
to estimate the value of the stock of a corporation according to such in-
formation as he can obtain, or upon his own judgment. His decision in
such case, unless clearly shown to be erroneous, will not be disturbed.
did.) It is for the corporation, on an application for a rehearing, to estab-
lish the fact that the conclusion of the Comptroller in fixing the value of
its property within the State was erroneous. (Id.)

The value of the capital stock of a corporation which was entirely in-
vested in an apartment-house, leases of apartments in which were given
to stockholders who were only to pay deficiencies in expenses and which
leases were appurtenant to the stock, where there is no depreciation of
the property, and the rentals, if apartments of stockholders were included,
would have produced a fair dividend, is properly fixed at the amount of
Provisions APPLICABLE TO CORPORATIONS. 837

 

The Revised Tax Law.

 

tthe paid-up authorized capital stock. (People ex ze. Gramercy Co. v.
-Roberts, 91 Hun, 146.)

Stocks and bonds.

Stocks held by a domestic corporation in other corporations organized
under the laws of this State constitute capital employed within the State
-and are a basis of taxation. (People ex rel. Edison Electrie Light Co. v.
Campbell, 138 N. Y., 543.) :

Stocks in foreign corporations held by a domestic corporation have no
situs here, but constitute capital employed outside the State, and should
‘not be included in the computation of the domestic corporation’s annual
tax. (People ex rel. Edison Electric Light Co. v. Wemple, 148 N. Y., 690;
“People ex rel. Edison Electric Light Co. v. Campbell, 138 N. Y., 543.)

The stock' of a foreign corporation, in which a portion of the capital
stock of a domestic railroad corporation is invested, is not capital stock
used in the State. (People v. Campbell, 88 Hun, 544, citing and following
138 N. Y., 543, supra.)

Bonds of a foreign corporation acquired by a domestic corporation con-
stitute capital employed in this State subject to taxation. The bonds
were presumably held at the office of the corporation in this State, and
“such bonds, as well as choses in action, unless kept, employed, or used
‘outside of the State, have their situs.at the domicile of the owner.
(People ex rel. Edison Electric Light Co. v. Campbell, 138 N. Y., 543;
People v. Campbell, 88 Hun, 544.) fe

A foreign corporation, whose capital is wholly invested in the stock and
bonds of another foreign corporation doing business wholly out of this
State, whose whole income is derived from such investment, and which
maintains a leased office, with furniture, officers and clerks, in this State,
where it receives and distributes the dividends derived from its invest-
ment, which constitutes its whole business, is not subject to taxation,
-since, although doing business in this State, no part of its capital is
‘employed within the State,” within the meaning of the statute. (People
‘ex rel. Chicago Junction Rys. & Union Stockyards Co. v. Roberts, 154
N. Y., 1, revsg. 90 Hun, 474.)

‘United States bonds.

It is not necessary to deduct the amount of capital which a corporation
‘holds in United States bonds from the total amount of its capital stock,
and to compute the tax only upon dividends derived from the remainder,
since the tax is upon the franchise, and not upon the property. (People
v. Home Ins. Co., 92 N. Y., 328; aff’d in Home Ins. Co. v. New York, 134
‘U. &., 594.)

Bonds of the United States, purchased with capital, as distinguished
from surplus, and held within the State are to be treated as capital ém-.
ployed within the State and furnish a poe basis for taxation. (Peoplé
ex rel. Com’! Cable Co. v. Morgan, 178 N. Y., 433, revsg. 86 App. Div. 577.)

Patents and copyrights.

A patent is an incorporeal right, a franchise conferred by the sovereign
‘power upon the patentee, It is personal to him, and until he is divested
of the title thereto, like other personal rights, it attends his person ‘and

_ exists where he is or where he puts it to use; therefore, the Comptroller
‘may include in the capital of a domestic corporation, to be estimated for

/
838 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

taxation, its patents, since their situs is at the domicile of the owner. (Peo-
ple ex rel. Edison Electric Light Co. v. Campbell, 138 N. Y., 543, distinguish-
ing 117 N. Y., 246; People ex rel. Edison Electric Light Co. v. Wemple, 148
N. Y., 690.)

The Court of Appeals has held that capital of a corporation employed in this
State, consisting of copyrights granted by the United States, cannot be
assessed for the purpose of the State franchise tax. (People ex rel. A. J. John-
son Co. v. Roberts, 159 N. Y., 70.) In reaching this conclusion the court cited
People ex rel. Edison El. Illg. Co. v. Assessors, 156 N. Y., 417, relating to a
local tax, which is a tax on property and not # franchise tax. The decision in
138 N. Y.,-543, supra, seems to have been disregarded, and, also, the case of
People v. Home Ins. Co., 92 N. Y., 328, in which latter case a domestic cor-
poration was held liable for franchise taxes on capital invested in United
States bonds.—Ep.

Since the above paragraph was written the question at issue in the case
decided in 159 N. Y., 70, supra, has again been presented to the court and the
principle established in the earlier cases has been re-affirmed that the capital
of a corporation invested in letters patent, United States bonds or copyrights
may be appraised for the purpose of ascertaining the amount of franchise tax
the same as other property. (People ex rel. U. 8. Aluminium Printing Plate-
Co. v. Knight, 174 N. Y., 475.)

Tax for future enjoyment of franchise.

It has been held that the Tax Acts are prospective in their operation, and
the tax thereby imposed is payable annually, not for the past, but for the fu-
ture enjoyment of the franchise. (People v. Albany. Ins. Co., 92 N. Y., 458; Peo-
ple v. Spring Valley Hydraulic Gold Co., 92 N. Y., 383; People ex rel. Mutual
Trust Co. v. Miller, 85 App. Div., 211.) In another case the court held that the ex-
pression that the tax is imposed for the future enjoyment of a franchise, means
that the act of 1880, chapter 542, was prospective in its application,’and not
retroactive; that it was intended as a tax for the enjoyment of the franchise
after the passage of the act and not enjoyment before its passage. The case
of People v. Albany Ins. Co., and People v. Spring Valley Hydraulic Gold
Co., supra, were both controlled by chapter 542, Laws of 1880, which was
essentially different from the wording of section 182 of the present Tax Law.
The capital stock was the thing assessed by the law of 1880, while, by the
present Tax Law, “the appraised capital employed within the state” during
the preceding year is the subject of taxation. People ex rel. Brooklyn Rapid
Transit Co. v. Morgan, 57 App. Div., 335, modified as to amount of tax by
168 N. ¥., 672.)

Assignment of tax credit.

Section 195 of the tax law, as amended by chapter 642, Laws of 1903, permits:
a tax credit to be assigned to another corporation and applied to the pay-
ment of taxes assessed against the corporation to which such credit was
assigned. Said amendment of 1903 supercedes the decision in People ex rel.
Western Union Telegraph Co. v. Roberts, 30 App. Div., 78, in which it was
held that tax credits could not be applied to the payment of taxes assessed
against another corporation. ,

Bridge company.

A bridge company owning a bridge which spans a stream forming a.
boundary between two States is taxable upon one-half of its capital stock
Provisions APPLICABLE TO CORPORATIONS. 839

 

The Revised Tax Law.

 

‘in each State. (Easton Bridge Co. v. Northampton County, 9 Pa. St. Rep.,
“415; Commonwealth v. Delaware Trenton Bridge Co., 9 Am. L. Reg., 298.)

Determination of Comptroller.

E In determining the amount of capital employed by a foreign corpora-
tion within the State, the Comptroller cannot arbitrarily reject uncon-
tradicted and not improbable testimony of an employee of the corpora-
tion familiar with its assets. (People ex rel. Journeay & Burnham Co. v.
Roberts, 37 App. Div., 1.)

The determination of an assessing officer that the assessment for one
particular year should be canceled for the reason that the property was
not subject to the tax, is not conclusive upon succeeding officers against
assessments for subequent years upon thé same property or franchise.
(People ex rel. New England Dressed Meat & Wool Co. v. Roberts, 155
N. Y., 408, revsg. 20 App. Div., 521.) Therefore, when the Comptraller,
through misapprehension or otherwise, has granted. a cancellation of
taxes assessed against a corporation for the years 1890, 1891 and 1892,
upon the ground that it was a manufacturing corporation, when in fact
its business within the State was not that of manufacturing, a succeeding
Comptroller will not be prevented from assessing such corporation for a
corporate tax for the years 1894, 1895 and 1896, as provided by statute,
merely because the former Comptroller erroneously decided that the cor-
poration was not liable to be assessed for the previous years. (Id.)

Bank balances. gf

.The cash bank balance arising from the proceeds of the sale of bonds
is taxable. (People ex rel. B’klyn R. T. Co. v. Miller, 85 App. Div., 178.)

‘Bills receivable.

Where a domestic corporation operated a tannery in another state, bills
receivable for merchandise sold out of the state which merchandise never
ame within the state did not constitute capital to be assessed for the
franchise tax within the state, although the bills for such merchandise
were made out and entered at the New York office of the corporation.
(People ex rel. Hans Rees’ Sons v. Miller, 90 App. Div., 591.)

Portion of year, tax for.

A corporation which has been in existence for only a part of the year
for which a tax is assessed should not be required to pay the tax for the
‘full year, but only for such part of the year as it has exercised its cor-
porate franchises. (People ex rel. Mutual Trust Co. v. Miller, 177
N. Y., 51.

Where _ domestic corporation was organized in October, 1901, but
possessed no capital until June 2, 1902, except $500 derived from the sale
-of shares of stock, and after the latter date the corporation began active
business and issued its entire capital stock, it is subject to taxation only
for such portion of the year 1902 as it conducted an active business.
(People ex rel. Hans Rees’ Sons v. Miller, 90 App. Div., 591.)

Certain corporations exempt from tax on capital stock.

§ 183. Banks, savings banks, institutions for savings,. title
guaranty, insurance or surety corporations, every trust company
incorporated, organized or formed, under, by or pursuant to a
law of this state, and any company authorizéd to do a trust com-
pany business solely or in connection with any other business,
under a general or special law’ of this state, laundry corporations,
manufacturing corporations to the extent only of the capital
-actually employed in this state in manufacturing, and in the
840 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

sale of the product of such. manufacturing, mining corporations
wholly engaged in mining ores within this state, agricultural and
horticultural societies or associations, and corporations, joint-stock
companies or associations owning or operating elevated railroads
or surface railroads not operated by steam, or formed for supply-
ing water or gas for electric or steam heating, lighting or power
purposes, and liable to a tax under sections one hundred ‘and
eighty-five and one hundred and eighty-six of this chapter, shall
be exempt from the payment of the taxes prescribed by section one
hundred and eighty-two of this chapter. But such a laundrying
manufacturing or mining corporation shall not be exempted from
the payment of such tax, unless at least forty per centum of the
capital stock of such corporation is invested in property in this
state and used by it in its laundrying, manufacturing or mining
business in this state.

(L. 1896, ch. 908, as am’d by L. 1897, ch. 785; L. 1901, ch. 558; L. 1906,
ch. 474.)

In 1906 the amendment inserted the words “ owning or” in the fourth
line of this page.

For form of affidavit by a manufacturing corporation, see post, form No. 126.

* The exemptions from annual State taxation heretofore granted to laun-
dry and mining corporations and to manufacturing corporations to the
extent of the capital actually employed in this State in manufacturing
have been retained in the foregoing section, as amended, but upon modi-
fied terms, for a new condition restricting the exemption was prescribed
in the amendment of 1901, by the addition of the provision to the effect.
that “such a laundrying, manufacturing or mining corporation shall not
be entitled to the exemption unless at least forty per centum of the capital
stock of such corporation is invested in property in this State and used
by it in its laundrying, manufacturing or mining business in this State.”

Heating and mixing refined asphalt, oi], sand and limestone and thus
producing a new and distinct substance which is used as a paving com-
pound, a purpose for which none of the raw materials alone is of any
value, constitutes manufacturing. (People ex rel. Eastern Bermudez As-
phalt Paving Co. v. Morgan, 61 App. Div., 373.)

The preparation of a street for the purposes of laying an asphalt pave-
ment thereon and the placing of such pavement thereon is not a process
of manufacturing. (People ex rel. Syracuse Improvement Co. v. Morgan,
59 App. Div., 302.) |

A corporation which makes paints by mixing, in definite proportions,
dry colors manufactured by itself, with linseed *oil and turpentine, and
with other ingredients not manufactured by it, stirring the mixture by
machinery and afterward grinding the resulting mass, none of the sepa-
rate ingredients being capable of use for any of the purposes for which
the mixed paint is used, is engaged in the manufacturing business, within
the meaning of the statute exempting capital so invested from taxation.
(People ex rel. F. W. Devoe & C. T. Raynolds Co. v. Roberts, 51 App. Div.,
77.) Such corporation is taxable upon that portion of its capital em-
ployed in other than manufacturing business, although so employed in:
violation of its charter. (Id.)

Under the Tax Act of 1880, chapter 542, it is held that the other busi-
ness besides manufacturing carried on by a corporation within the State
which was interstate commerce, did not bring the corporation within the
exemption, confined to manufacture solely, prescribed by that act as
amended. (People ex rel. American Soda Fountain Co. v. Roberts, 158.
N. Y., 168, revsg. 29 App. Div., 585.)

A corporation which publishes a newspaper, but does not own or oper-
ate any plant for printing it, and takes no part in the work of printing,
\

Provisions APPLICABLE TO CoRPORATIONS. 841

 

‘The Revised Tax Law.

 

is not a manufacturing corporation, within the meaning of the exemption
in the Tax Act. (People ex rel. Jewelers’ Circular Publishing Co. v. Rob-
erts, 155 N. Y., 1, aff’g 19 App. Div., 632.) z

Purchasing sheep, slaughtering them, pulling the wool from the hides,
selling it and the hides, converting the offal into fertilizer, reducing the
carcasses to a temperature which will retard decomposition, and shipping
them to the place of delivery, does not constitute manufacturing. (People
ex rel. New England Dressed Meat & Wool Co. v. Roberts, 155 N. Y., 408,
revsg. 20 App. Div., 521.)

A corporation conducting a department store and employing a portion
of its capital in manufacturing is entitled to a deduction to the extent of
capital invested in its manufacturing business. (People ex rel. Journeay
& Burnham Co. v. Roberts, 37 App. Div., 1.) But under the amendment
of 1901, a deduction on account of manufacturing is not to be allowed
unless at least 40 per cent. of the capital of the company is thus em-
ployed.— Ep. ©

A corporation organized for the purpose of the manufacture and sale,
within the State, of a patented fountain pen, which purchases the con-
stituent parts of its fountain pens partially ready for use, and by means
of skilled workmen resets each gold pen and shapes the.holder to it, and
by adjusting the feed and the pen produces the peculiar feature which
distinguishes its fountain pen from others, the completed work being four
times more valuable than the parts purchased by the corporation, is a
manufacturing corporation. (People ex rel. L. E. Waterman Co. v. Mor-
gan, 48 App. Div., 395. See, also, the opinion in People ex rel. Seth
Thomas Clock Co. v. Wemple, 133 N. Y., 323, in which the court said, “ Un-
less the corporation produces the whole or some part of the article in this
State from the original material, by means of labor, machinery and op-
eratives, such as are usually applied to manufacturing operations, it is not
within the exemption.”)

A corporation engaged in making and selling kindling wood produced
from slabs taken in their natural state, sawed into strips and securely
compressed in bundles of kiln-dried wood of a specific size and shape, is
engaged in manufacturing. (People ex rel. Standard Wood Co. v. Rob-
erts, 20 App. Div., 514.)

Where the having of an office and office furniture are mere incidents
to a manufacturing business, the value of the one and rental of the other
do not constitute capital separate and apart from the manufacturing busi-
ness, and the amount so used is, therefore, not taxable. (People ex rel.
Standard Wood Co.'v. Roberts, 20 App. Div., 514.)

A manufacturer is “a person engaged in the business of working raw
materials into wares suitable for use.” (Webster’s Dictionary.)

The collection, storage, preparation for market, and transportation of
ice is not a manufacture, but the production of ice by artificial means is,
(People v. Knickerbocker Ice Co., 99 N. Y., 181.)

“ Manufacture” is defined as “anything made from raw materials by
842 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

the hand, by machinery, or by art, as cloths, iron utensils, shoes, machin-
ery, saddlery,” ete. (Webster’s Dictionary.)

The process of manufacture is supposed to produce some new article
by the application of skill and labor to the raw material. (People ex rel.
Union Pacitic Tea Co. v. Roberts, 145 N. Y., 375.)

The business of refining crude petroleum is manufacturing. (Common-
wealth v. Atlantic Refining Co., 2 Pa. Co. Ct. Rep., 62.)

A company engaged in finishing and shaping material so as to make
bridges, and selling and erecting the same, held to be manufacturing.
(Commonwealth v. Keystone Bridge Co., 156 Pa. St. Rep., 500.)

Dyeing and finishing woolen and cotton goods is manufacturing. (Com-
monwealth vy. Quaker City Dye Works, 5 Pa. Co. Ct. Rep., 94.) ;

The United States Circuit Court has held that cutting grass, converting
it into hay, pressing it in bales and transporting it to market did not result
in the production of a manufactured article. (Frazee v. Moffitt, 20 Blatchf.
[U. S.] Cir. Ct. Rep., 267.)

The Supreme Court of the United States held that shells cleaned by
acid and then ground on an emery wheel, and some of them afterwards
etched by acid, and all of them intended to be sold as ornaments, as shells,
were not dutiable as manufactures of shells. (Hartranft v. Wiegman, 121
U. S., 609.) ’

A cooper who makes barrels, hogsheads, and similar articles of wood,
such as coopers usually make, is a manufacturer. (New Orleans v. Le
Blanc, 34 La. Ann. R., 596.)

In the District of Columbia it was held that a corporation engaged in
the business of printing and publishing a newspaper is not a manufacturer
within the meaning of the Bankruptcy Law. (In re Capital, Publishing
Co., 3 McArthur’s Rep. [D. C.], 405.) ,

The mere appropriation of an article which is furriished by nature is not
a manufacture. Thus, the liberation of natural gas or oil from the earth,
and its transportation to consumers, is not a manufacture. (Common-
wealth v. Northern Elec. Light & Power Co., 145 Pa. St. Rep., 117.) '

In a case relative to the payment of excise duties in Great Britain it
was held that a printer of calicoes was not a manufacturer. (The King
v. Tregoning, 2 Younge & Jervis, 132.)

The printing, publishing and selling of books, and job printing, consti-
tute a manufacturing business. (People ex rel. Frederick A. Stokes Co.
v. Roberts, 90 Hun, 533; Press Printing’ Co. v. State Board of Assessors,
51 N. J. L., 75; Evening Journal Assn. v. State Board of Assessors, 47
N. J. L. R., 36.)

Printing and publishing a newspaper is not manufacturing. (Press
Printing Co. v. State Board of Assessors, 51 N. J. L. R., 75; Evening Jour-
nal Assn. v. State Board of Assessors, 47 id., 36.)

A manufacturer is not one who creates out of nothing, for that sur-
passes human power; neither is he one who produces a new article out of
materials entirely raw. He is one who gives new shapes, new qualities,
Provisions APPLICABLE TO CoRPORATIONS. 843

 

The Revised Tax Law.

 

new combinations to matter which has alreddy gone through some arti-
ficial process. A shoemaker is none the less a manufacturer, because he
does niot tan the leather; the tanner is none the less a manufacturer of
leather, because he does not breed and raise the bullocks from which the
raw hides are taken. The tanner makes leather to sell, but does not buy
hides to sell again. He produces the article of the leather, and depends
for his profit upon the labor which he bestows upon the raw material.
{City of New Orleans vy. Le Blanc, 34 Téa. Ann. R., 596.)

A domestic corporation engaged fin slaughtering cattle, preparing the
‘same and the various products thereof for market, a portion of which
‘business is carried on in this State and a portion elsewhere, is not wholly
engaged in manufacturing in New York State. (People ex rel. Schwarz-
‘schild & Sulzberger Co. v. Roberts, 11 App. Div., 449; aff’d, 156 N. Y., 690.)

A corporation engaged in manufacturing beer in New York and New
Jersey, employed an agent to solicit orders in New York city and Brook-
lyn, the moneys collected by the agent being deposited in a Brooklyn bank,
the average balance being $500. The corporation did not keep any goods
-on sale in the State of New York, but shipped them from Jersey City di-
rectly to the purchaser. It did, however, have a place in Brooklyn, where
its agent might take orders, and where goods, not exceeding in value $100
at any one time were temporarily stored. Held, that the corporation was’
not doing business other than manufacturing within the State. (People
ex rel. Lembeck & Betz Eagle Brewing Co. v. Roberts, 22 App. Div., 282.)

A corporation engaged in the sale of spices, baking powder, coffee and
tea, purchased these articles in bulk. The spices and baking powder were
merely put up in packages and sold. Various kinds of-tea were mixed
and sold as “combination tea.” The coffee was roasted and ground.
Held, that this was not manufacture, and the corporation was not ex-
empt from taxation as a manufacturing corporation. (Péople ex rel. Union
Pacific Tea Co. v. Roberts, 145 N. Y., 375.) .

The courts have decided that the exemption in favor of manufacturing
corporations applies only to such corporations as create some new and
artificial product within the State. (People ex rel. Brush. Hl. Mfg. Co. v.
Wemple, 129 N. Y., 543; People ex rel. Edison El. Ill. Co. v. Wemple, 129
N. Y., 664; People v. Horn Silver Mining Co., 105 N. Y., 76; People v.
Knickerbocker Ice Co., 99 N. Y., 181; People v. N. Y. F. Dock Co., 92 N. Y.,
487.) ; :

A foreign corporation claiming exemption as a manufacturing corpora-
tion must show that some substantial portion of its manufacturing is
-earried on in this State. (People ex rel. Roebling’s Sons’ Co. v. Wemple,
63 Hun, 452; aff’d, 138 N. Y., 582.)

A manufactuing corporation of another State cannot bring its products.
here, and by putting the several parts together and adjusting them ‘to
each other, or by performing upon the article some slight operation, though
it may involve labor that may be necessary before using it or exposing it
for sale, and thereby obtain exemption from taxation on the ground that
844 Provistons APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

it is carrying on manufaeturing within this State. (People ex rel. Seth.
, Thomas Clock Co. v. Wemple, 133 N. Y., 323.)

The Comptroller, in imposing a tax upon a foreign corporation, ascer-
tained the total sales made by it and the sales made in this State, and
decided that the capital stock employed in the State was in proportion to
the whole capital, as the amount of sales made here was to the total
amount of sales. It appeared that a large part of the sales made here
was by sample, the goods being delivered to the purchaser direct from
the manufactory of the corporation in another State. Held, that sales so
made did not represent capital employed in this State, and that the basis.
so adopted was erroneous. (People ex rel. Seth Thomas Clock Co. v.
Wemple, 133 N. Y., 323.)

Decisions affected by amendment of 1901.

The Tax Law in existence prior to the enactment of the present law,
to-wit: the Tax Law of 1880, ch. 542, as amended by Laws of 1889, ch. 353,
extended an exemption to manufacturing companies only when they were
“wholly engaged in carrying on manufactures within the State,” and the
points passed upon in the following cases have reference to said act of
1880. :

A foreign corporation conducting a manufacturing business in this State
and also purchasing and selling general electric supplies not manufac-
tured by it, is not wholly engaged in carrying on manufacture within the
State, and, therefore, is not exempt from taxation on the amount of its
capital employed here. (People ex rel. Western Electric Co. v. Campbell,
145 N. Y., 587, aff’g 80 Hun, 466, and distinguishing People ex rel. Tiffany
& Co. v. Campbell, 144 N. Y., 166.)

The provision exempting from taxation manufacturing corporations
“wholly engaged in carrying on manufacture” within this State, had in
view corporations whose corporate powers were confined to the exclusive
business of manufacturing, and the limiting words “ wholly engaged in,”
were intended to distinguish between such corporations and corporations
which embraced a wider scope of power, but which included the power
to engage in the business of manufacture. These latter corporations were
not exempted, unless their actual business was confined to the exercise of
this specific power. (People ex rel. Tiffany & Co. v. Campbell, 144 N. Y.,
166, aff’g 80 Hun, 486.) The statute was not aimed at, and did not con-
template the exercise by.a corporation of powers ultra vires: therefore, if
a manufacturing corporation is engaged in business outside of its cgrpo-
rate powers, in connection with its manufacturing business, it does not
cease to be ‘wholly engaged” in the business of manufacture; that is
to say, its only legal and authorized business was that of manufacture,
and it subjected itself to taxation upon that portion of its capital so il-
legally used, but nevertheless it remained a corporation which, so far as
it exercised its legal powers, was “ wholly engaged” in manufacture, and
entitled to exemption as to its manufacturing business. (1d.)

A corporation, which is neither a manufacturing corporation nor one
Amendment of 1907.

(Insert facing page 845, White on Corporations, 6th edition.)

Laws of 1907, chapter 734, amends the Tax Law, section 184, to read as
‘follows: ae ;

‘$184. Additional franchise fax on transportation and transmission cor-
orations and associations.— Every corporation and ‘joint-stock association
ormed for steam surface railroad, canal, steamboat, ferry, express, naviga-
ion, pipe line, transfer, baggage express, telegraph, telephone, palace car or
leeping car purposes, and all other transportation corporations not liable
o taxation under sections one hundred and eighty-five or one hundred and
fighty-six of this chapter, shall pay for the privilege of exercising its cor-
porate franchises or carrying on its business in such corporate or organized
capacity in this state, an annual excise tax or license fee which shall be
equal to five-tenths of one per centum upon its gross earnings within this
state, which shall include its gross earnings from its transportation or trans-
mission business originating and terminating within this state, but shall not
include earnings derived from business of an interstate character.

The amendment of 1907 omits and thereby repeals the last sentence of the
former section, which reads as follows:

All settlements for such taxes heretofore based by the comptroller upon
gross earnings excluding earnings from interstate business, have been
ratified and confirmed, except that the accounts for taxation under section-
six of,chapter three hundred and sixty-one of the laws of eighteen hundred
and eighty-one, for the years eighteen hundred and ninety-two and eighteen
huridred and ninety-three, shall be settled and adjusted by the comptroller
by excluding the earnings of an interstate character. as provided by this

section.
23
Provisions APPLICABLE TO CORPORATIONS. 845.

 

The Revised Tax Law.

 

wholly engaged in carrying on manufacture within the State, is liable to-
taxation. ‘(People ex rel. Union Paéific Tea Co. vy. Roberts, 82 Hun, 352.)

A corporation, organized for the purpose of printing, publishing and.
selling books, and all business appertaining to a general bookselling busi-
ness, which annually uses a small part of its capital in the purchase and
sale of foreign books, is not a corporation * wholly engaged” in carrying:
on a manufacturing business. (People ex rel. Frederick A. Stokes Co. v.
Roberts, 90 Hun, 533.)

The Comptroller has the right to settle.an account for taxes against a
corporation after the fifteenth day of January in the year when the tax.
becomes due and -payable. (People ex rel. Frederick A. Stokes Co. v..
Roberts, 90 Hun, 533.) ; .
Additional franchise tax on transportation and transmission corpora-

tions and associations. :

§ 184. Every corporation and joint-stock association formed.
for steam surface railroad, canal, steamboat, ferry, express,.
navigation, pipe-line, transfer, baggage express, telegraph, tele-
phone, palace car or sleeping car purposes, and all other trans--
portation corporations not liable to taxes under sections one hun-
dred and eighty-five or one hundred and eighty-six of this chap-
ter, shall pay for the privilege of exercising its corporate fran-
chises or carrying on its business in such corporate or organized.
capacity in this state, an annual excise tax or license fee which

- shall be equal to five-tenths of one per centum upon its gross earn-
ings within the State, which shall include its gross earnings.
from its transportation or transmission business originating
and terminating within this state, but shall not include earnings.
derived from business of an interstate character. All settlements’
for such taxes heretofore based by the comptroller upon gross:
earnings excluding earnings from interstate business, have been’
ratified and confirmed, except that the accounts for taxation under:
section six of chapter three hundred and sixty-one of the laws of
eighteen hundred and eighty-one, for the years eighteen hundred.
and ninety-two and eighteen hundred and ninety-three, shall be
settled and adjusted by the comptroller by excluding the earnings.
of an interstate character as provided by this section.

[Revisers’ Note.— L. 1881, ch. 361, §§ 6, 11, as am. by L. 1894, ch. 562,
without change of substance, as originally reported. The Legislature,
however, excepted from the section elevated railroads and street surface
railroads not operated by steam, a new system for taxing such -corpora-
tions being provided by section 185. The Legislature also added to the
corporations subject to the tax “transfer” and “ baggage express” cor-
porations.] ‘ .

For form of report, see post, form No. 127.

A railroad company is not liable for a tax upon its gross earnings de-
rived from carrying United States mail where they include domestic, in-
terstate and foreign mail and it is impossible to ascertain the proportion
which originates and terminates within the State. (People ex rel. N. Y.
C. & H. R. R. R. Co. v. Morgan, 168 N. Y., 1, aff’g 57 App. Div., 302.)

By the term “gross earnings from its transportation or transmission.
846 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

business,” it is intended that a corporation embraced within the pro-
visions of the act shall pay a tax upon all receipts arising from or grow-
ing out of the employment of its capital, whether that capital is employed
in the transportation or transmission business or otherwise. (People ex
rel. N. Y. C. & H. R. R. R. Co. v. Roberts, 32 App. Div., 113.)

The tax imposed by this section is legally applicable to the gross earn-
ings, arising from the carriage of goods or passengers within the State or
New York, of a consolidated railroad corporation created under the laws
of New York and of an adjoining State, whose line is from a point in the
State of New York to a point in such adjoining State, and which at each
terminus connects with roads running to other States, although such car-
riage within the State of New York is a part of “interstate business,”
that is, of business which originated in this State arj terminated in
another State, or originated: in another State and terminated in this
State, or both originated: and terminated-in another State. (People ex
rel. Dunkirk, Allegheny Valley & P. R. R. Co. v. Campbell, 74 Hun, 210.)

In such a case the tax is not a tax imposed by the State on interstate
commerce, but is simply a tax on a domestic corporation, created by the
State, for the privileges and franchise granted to it by the power which
created it; and such a tax may be legally and constitutionally imposed
‘by the State. (Id.)

The imposition of such a tax upon the gross earnings of a domestic cor-
poration for the carriage of goods or passengers within the State of New
‘York, where the beginning or termination of such business is in another
State or country, is not within the prohibition upon State legislation aris-
ing from the “interstate commerce” clause Of the Federal Constitution.
(Id.)

The power conferred by the Federal Constitution upon Congress to
regulate commerce with foreign nations and among the States, does not
reach so far as to prohibit a State from imposing a franchise tax upon
a corporation created by and doing business in such State, as to all busi-
ness done by it in the State in the transportation of property or persons
coming from or going to any other State or country. (Id.)

A railroad which is a link in a through line, by which passengers and
freight are carried into a State from other States, and from ‘that State
to other States, is engaged in interstate commerce, and a tax for keeping
the office of such railroad in the State is unconstitutional. (Norfolk &
W.R. R. Co. v. Penn., 136 U. S., 114.)

A tax by the State upon the business of a foreign corporation carrled
on in this State,, where it is exclusively the business of interstate com-
merce, is a regulation of commerce and the power to regulate commerce
‘between the States is vested exclusively in Congress. (People ex rel.
Penn. R. R. Co. v. Wemple, 138 N. Y., 1.) °

. The transportation of goods and passengers by continuous carriage
from one place to another in the same State, although part of the route is
‘over the soil of another State, is not interstate commerce, and it is, there:
fore, within the power of the State to impose a tax upon such business.
(Lehigh Valley R. R. Co. v. Penn., 145 U. §., 175.)

The United States Express Company, an unincorporated joint-stock
association, doing business jn this State, is subject to taxation under this
act. (People ex rel. Platt v. bile he a N. Y., 136.)

Telegraph companies are only taxable on gross receipts f:
transmitted wholly within the State. (Western Union Tel, Oe. me Bere
sylvania, 128 U. 8., 39, overruling 110 Pa. St. Rep., 405.) A tax levied
upon the receipts for messages from points within to points without the
State, and from points without to points within the State, and from points
without, through the State, to points beyond, according to the average
proportion of line in the State over which the messageg are sent is un-
constitutional and void. ay .

A statute requiring a railroad corporation operating raiir
the State to pay an annual tax for the privilege of exerciniig tito
Amendment of 1907.

‘(Insert facing page 847, White on Corporations, 6th edition.)

Laws of 1907, chapter 734, amends the Tax® Law, section 186, to read as
follows: ‘

§ 186. Franchise tax on water-works companies, gas companies, electric or
steam heating, lighting and power companies——Every corporation, joint-
stock company or association formed for supplying water or gas, or for
electric or steam heating, lighting or power purposes, shall pay to the state
for the privilege of exercising its corporate franchises or carrying on its
business in such corporate or organized capacity in this state, an annual tax
which shall be five-tenths of one per centum upon its gross earnings from all
sources within this state, and three per centum upon the amount of divi-
dends declared or paid in excess of four per centum upon the actual amount
of paid-up capital employed by such corporation, joint-stock company or
pssociation. The term “gross earnings” as used in this section of the tax
law means all receipts from the employment of capital without any deduction.

The last sentence is new, added in 1907.
24
Provisions APPLICABLE TO CoRPORATIONS. 847

 

The Revised Tax Law.

 

chises therein, to be determined by the amount of its gross transportation.
receipts, and which provides that, when applied to a railroad lying partly
within and partly without the State, or to one operated as a part of a
line or system extending beyond the State, to be ascertained in the man-
ner provided by the statute, does not conflict with the Constitution of the
United States. (Maine v. Grand Trunk Ry. Co., 142 U. S., 217.)

Held, in Pennsylvania that a State tax may be imposed upon the gross.
receipts of railroad companies, for transportation by continuous carriage
from one point in that State, through another State, to another point in.
Pennsylvania. (Commonwealth v. Lehigh Valley R. R. Co., 129 ne
St. Rep., 308.)

The tax upon the entire gross receipts of an express company is a
illegal double taxation, although the amounts paid by such company to.
railroad companies for transportation, are included in the gross receipts.
of the railroad company and taxed as such. (Commonwealth v. U. §.
xp. Co., 157 Pennsylv. St. Rep., 579.)

Franchise tax on elevated railroads or surface railroads not operated:
by steam.

§ 185. Every corporation, joint-stock company or association
owning or operating any elevated railroad or surface railroad not.
“operated by steam shall pay to the state for the privilege of exer~
cising its corporate franchise or carrying on its business in such’
corporate or organized capacity within this state, an annual tax
which shall be one per centum upon its gross ‘earnings from ‘all
sources within this state, and three per centum upon the amount
of dividends declared or paid in excess of four per centum upon
the actual amount of paid-up capital employed by such corporation,
joint-stock company or association. Any such railroad corporation
whose property is‘leased to another railroad corporation shall only
be required under this section to pay a tax of three per centum
upon the dividends declared and paid in excess of four per centum
upon the amount of its capital stock.

(L. 1896, ch. 908, as am’d by L. 1906, ch. 474.)

In 1906 the words “ owning or” in the second line were inserted’ and
the last Sentence was materially changed.

The foregoing section was first enacted as a part of the Tax Law in
1896 (ch. 908). Such corporations theretofore paid a capital stock tax,
and also ‘a gross earnings tax of one-half of one per cent. Section 183
exempts them from the capital stock tax, and they are now subjeet to
the tax above imposed for State purposes.

The franchise to build and operate a street railway is property and is.
subject to taxation. (New-Orleans City & L. R. Co. v. New Orleans, 143
U. &., 192.)

Franchise tax on water-works cempanies; gas companies, electric er
steam heating, lighting and power companies.

§ 186. Every corporation, joint-stock company or association

‘formed. for supplying water or gas, or for electric or steam heat-'
848 Provistons APPLicaBLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

‘ing, lighting or power purposes, shall pay to the state for the privi-
lege of exercising its corporate franchises or carrying on its busi-
ness in such corporate or organized capacity in this state, an annual
tax which shall be five-tenths of one per centum upon its gross earn-
ings from all sources within this state, and three per centum upon
the amount of dividends declared or paid in excess of four per
centum upon the actual amount of paid-up capital employed by
-such corporation, joint-stock company or association.

* This section is new. Such corporations heretofore paid a capital stock

tax only, based upon dividends. Section 183 exempts them from such tax
.and they are now subject to this tax for State purposes.

For form of report, see post, form No. 129.

§§ 187, 187a, 187b, 188.

These sections relate to tax on insurance and trust companies and
banks, and, therefore, are not inserted in this work.

Reports of corporations.

§ 189. Corporations liable to pay a tax under this article shall
report as follows:

1. CorPoraTIONS PAYING FRANCHISE TAX.— Every corporation,
“association or joint-stock company liable to pay a tax under sec-
‘tion one hundred and eighty-two of this chapter shall, on or before
_November fifteenth in each year, make a written report to the
‘comptroller of its condition at the close of its business on October
‘thirty-first preceding, stating the amount of its authorized capital
stock, the amount of stock paid in, the date and rate per centum
-of each dividend declared by it during the year ending with such
day, the entire amount of the capital of such corporation, and the
-eapital employed by it in this state during such year.

2. ‘TRANSPORTATION AND TRANSMISSION CORPORATIONS.— Every
transportation or transmission corporation, joint-stock company or
association liable to pay an additional tax under section, one hun-
dred and eighty-four of this chapter, shall also, on or before August
‘first in each year, make a written report to the comptroller of its
condition at the close of its business on June thirtieth preceding,
.stating the amount of its gross earnings from all’ sources and the
amount of its gross earnings from its transportation or transmission
business originating and terminating within this state.

3. ELEVATED AND SURFACE RAILROAD conporations.— Every
corporation, joint-stock company or association liable to pay a tax
under section one hundred and eighty-five of this chapter, shall,
Amendment of 1907. \ '

(Insert facing page 849, White on Corporations, 6th edition.)

Laws of 1907, chapter 734, amends the Tax Law, section 190, to read as
follows:

‘

§ 190. Value of stock to be appraised— If the dividend or dividends

‘amount to less than six per centum on the par value of the capital stock, or
no dividend is declared, the president, treasurer or secretary of the company
liable to pay a tax under the provisions of section one hundred and eighty-
.two of this chapter, shall, under oath, between the first and fifteenth days of
November in each year, estimate and appraise the capital stock of such
company at its actual value.
.,And shall forward the same to the comptroller with the repoxt provided for
in'the last section. If the comptroller is not satisfied with the valuation so
made and returned he is authorized and empowered to make a valuation
thereof, and ‘settle an account upon the valuation so made by him, and the
taxes, penalties und interest to be paid the state.

As amended this section is restored in a measure to its condition prior
to the amendment of 1906, although this new form of the section is more
favorable tv the corporations than the statute which governed appraisals
prior to the enactment of the 1906 amendment.

25

.
Provisions APPLICABLE TO CoRPORATIONS. 849

 

The Revised Tax Law.

 

-on or before August-first of each year, make a written report to the
comptroller of its condition at the close of its business on June
‘thirtieth preceding, stating the amount of its gross earnings from
business done in this state, the amount of dividends of every nature
‘declared or paid during the ytar ending June thirtieth, the author-
‘ized capital of the company and the amount of capital stock actually
issued and outstanding.

4. WarTeR-WoRKS, GAS, ELECTRIC, STEAM HEATING, LIGHTING
AND POWER CORPORATIONS.— Every corporation, joint-stock com-
‘pany or association liable to pay a tax under section one hundred
and eighty-six of this chapter, shall, on or before December first
-of each year, make a written report to the comptroller of its con-
‘dition at the close of its business on October thirty-first preceding,
‘stating the amount of its gross earnings from business done in this
‘state, the amount of dividends of every nature declared or paid
-during the year ending with October thirty-first, the authorized.
capital. of the company and the amount of capital stock actually
issued and outstanding. -

5. Insurance corporations.— (Omitted.)
6. Forzten Banxers.— (Omitted.)

“Value of stock to be appraised.

§ 190. If the dividend or dividends amount to less than six per centum
on the par value of the capital stock, and

(1) The assets exceed the liabilities, exclusive of capital stock, by an
amount equal to or greater than the par value of the capital stock, or

(2) The average price at which such stock sold during said year is
equal to or greater than the par value of the capital stock,

Then the president, treasurer or secretary of the company liable to,
pay a tax under the provisions of section one hundred and eighty-two.
of this chapter, shall, under oath, between the first and fifteenth day
of November in each year, estimate and appraise the capital stock of
such company at a value which value shall not be less, however, than
' (1) The average price at which such stock sold during said year,

(2) .The difference between the assets and liabilities, exclusive of
eapital stock,

(3) The par value thereof,

And shall forward the same to the comptroller with the report pro-
-yided for in the last section. If the comptroller is not satisfied with
the valuation so made and returned he is authorized and empowered to
make a valuation thereof, and settle an account upon the valuation so
-made by him, and the taxes, penalties and interest to be paid the state.

(L. 1896, ch. 908, as am’d by L, 1906, ch. 474.)

The amendment of 1906, which radically changed the provisions of this
section, took effect October thirty-first of that year.

54
850 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

Further requirements as to report of corporations.

§ 191. Every report required by this article shall have annexed
thereto, the affidavit of the president, vice-president, secretary or
treasurer of the corporation, association or joint-stock company or
of the person or one of the persons, or thie members of the partner-
ship making the same, to the effect that the statements contained
therein are true. Such reports shall contain any other data, infor-
mation, or matter which the comptroller may require to be included
therein, and he may prescribe the form in which such reports shall
be sini and the form of oath thereto. When so prescribed such
form shall be used in making the report. The comptroller may
require at any time a further or supplemental report under this
article, which shall contain information and data upon such mat-
ters as the comptroller may specify.

[Revisers’ Note.— L, 1881,’ ch. 361, § 1; L. 1881, ch. 361, § 5, as am. by
L. 1895, ch. 425; L, 1881, ch. 361, § 7; L. 1882, ch. 409, § 322, as am. by L.
1894, ch. 196; L. 1886, ch. 679, § 2, without change of substance, except
that all reports are required to be verified.]

Powers of comptroller to examine into affairs of corporation.

§ 192. In case any report required by any of the preceding
sections of this article shall be unsatisfactory to the comptroller, or
if any such report is not made as herein required, the comptroller
is authorized to make an estimate of the dividends paid by such
corporation and the value of the capital stock employed by it, from
any such report or from any other data, and to order and state an
account according to the estimate and value so made by him for ithe
taxes, percentage and interest due the state from such corporation,
association, joint-stock company, person or partnership. The comp-
troller shall also have power to examine or cause to be examined
in case of a failure to report or in case the report is unsatisfactory
to him, the books and records of any such corporation, joint-stock
association, company, foreign banker, person or partnership, and
may hear testimony and take proofs material for his information,
either personally or he may appoint a commissioner by a written
appointment under his hand and official seal for that purpose.
Every commissioner so appointed shall be authorized to make such
examination and take such testimony and hear such proofs and
report the proofs and testimony so taken and the result of his exam-
ination so made and the facts found by him to the comptroller. The
comptroller shall, therefrom, or from any other data which shall
be satisfactory to him, order and state an account for the tax due
the state, together with the expenses of such examination and the
Provisions Ae aie TO CoRPORATIONS. 851

 

The Revised Tax Law.

 

taking of such testimony and proofs. Such expenses shall be fixed
and adjusted by the comptroller.

[L. 1881, ch. 361; L. 1882, ch. 409, §§ 322, 323; L. 1895, ch. 196, without
change of substance. The power to subpoena witnesses and the punish-

ment for contempt previded by L. 1881, ch. 361, § 13, is covered by Code
Civil Procedure, § 854ff.]

Notice of statement of fax; interest.

§ 193. Upon auditing and stating every account for taxes or
other charges under this article, the comptroller shall forthwith
send notice thereof in writing to the person, partnership, company,
association or corporation against whom the same is made, which
notice may be mailed to the post-office address of such person, part-
nership, association, company or corporation. All accounts so
audited and stated shall bear interest upon the-total amount found
due thereon to the state, for taxes, percentage, interest and other
charges, from the expiration of thirty days after sending. such
notice until payment thereof shall be made.

[L. 1895, ch. 501, without change of substance, but extended to foreign
bankers taxable under the above article.]

Payment of tax and penalty for failure.

§ 194. A tax imposed by. section one hundred and eighty-two
or one hundred and eighty-six of this chapter, shall be due .and
payable into the state treasury on or before the fifteenth day of .
January in each year. A tax imposed by section one hundred
and eighty-four of this chapter on a transportation or transmission
corporation, or by section one hundred and eighty-five, on ele-
vated railroads or surface railroads not operated by steam shall
be due and payable into the state treasury on or before the first
day of August in each year. A tax imposed by section one hun-
dred and eighty-seven of this chapter on an insurance corporation
shall be due and payable into the state treasury on or before the
first day of June in each year. A tax imposed by section one
hundred and eighty-seven-a or one hundred and eighty-seven-b
shall be due and payable into the state treasury on or before the
first day of September in each year. A tax imposed by section
one hundred and eighty-eight of this chapter on a foreign banker
shall be due and payable into the state treasury on or before
February first in each year. If such tax in any case is not paid
within thirty days after the same becomes due, or if the report
of any such corporation is not made within the time required by
852 Provisions AppLicaBLe TOo“OCoRPORATIONS.

 

* The Revised Tax Law.

this article, the corporation, association, joint-stock company, per-
son or partaership, liable to pay the tax, shall pay into the state
treasury in addition to the amount of such tax, a sum equal to
five per centum thereof, and one per centum additional for each
month the tax remains unpaid, which sum shall be added to the
tax and paid or collected therewith. Every corporation, associa-
tion, joint-stock company, person or partnership failing to make
the annual report required by this article, or failing to make any
special report required by the comptroller, within any reasonable -
time to be specified by him, shall forfeit.to the people of the
state the sum of one hundred dollars for every such failure, and
the additional sum of ten dollars for each day that such failure.
continues. Such tax shall be a lien upon and bind all the real
and personal property of the corporation, joint-stock company or
association liable to pay the same from the time when it is pay-
able until the same is paid in full.
(Thus amended by L. 1901, chs. 118, 182 and 558.)

_[Revisers’ Note.— L. 1881, ch. 361, §§ 4, 5, 6, 7; L. 1882, ch. 409, § 322, as
am. by L. 1895, ch. 196; L. 1886, ch. 679, § 1, as am. by L. 1895, ch. 418.
The existing law in each instance imposes a penalty of 10 per centum if
the tax is not paid within thirty days after it becomes due. This sec-
tion of.the revision imposes a penalty of 5 per centum if the tax is not
paid within thirty days after it becomes due, and 1 per centum for each
month throughout the calendar year, and interest, if not paid during such
Yyear.]

For cases involving penalties for failure to make annual reports under
the former statute see People ex rel. Edison El. Ill. Co. v. Wemple, 61 Hun,
53; People ex rel. Brush El. M. Co. v. Wemple, 15 N. Y. Supp., 718; 39
St. Rep.,-614. See, also, 129 N. Y., 664 and 543, cases reversed on other

points.

Revision and readjustment of accounts by comptroller.

§ 195. The comptroller may, at any time within one year from
the time any such account shall have been audited and stated, and
notice thereof sent to the person, partnership, company, associa-
tion or corporation against whom it is stated, revise and readjust
such account upon application therefor by the party against whom
the account is stated or by the attorney-general, and if it shall
be made to appear upon any such application by evidence sub-
mitted to him or otherwise, that any such account included taxes
or other charges which could not have been lawfully demanded,
or that payment has been legally made or exacted of any such
Amendment of 1907. >

 

Insert facing page 852, White on Corporations, 6th edition.) ,

Laws of 1907, chapter 734, amends the Tax Law, section 195, to read as
follows: ;

§ 195. Revision and readjustment of accounts by comptroller. If an ap-
plication be filed with the comptroller by the party against whom the account
is stated or by the attorney-general within one year from the time any
auch account shall have been audited and stated, the comptroller may at any
time, upon notice thereof sent to the person, partnership, company, associa:
tion or corporation against whom it is stated, revise and readjust such
‘account and if it shall be made to appear upon any such application by
‘evidence submitted to him or otherwise, that any such account included taxes
‘or other charges which could not have been lawfully demanded, or that
payment has been legally made or exacted of any such account, he shall
resettle the same according to law and the facts, and charge or credit, as
the case may require, the difference, if any, resulting from such revision or
resettlement upon the accounts for taxes of or against any such person,
partnership, company, association or corporation. Such credit, whether
allowed before or after the passage of this act, may be, by the person, part-
riership, company, association or corporation in whose favor it is allowed,
assigned to « person, partnership, company, association or corporation liable
to pay taxes under article nine of this act and the assignee of the whole
or any part of such credit on filing with the comptroller such assignment
shall thereupon be entitled to credit on the books of the comptroller for the
amount thereof on the current account for taxes of such assignee in the
same way and with the same effect as though the credit had originally
been allowed in favor of sugh assignee. The comptroller shall forthwith
send written notice of his determination upon such application to the appli-
cant, and to the attorney-general, which notice may be sent by mail to his

oost-office address.
The first sentence was remodeled in 1907. The second and third sentences

cemain unchanged.
26
Provisions APPLICABLE TO CORPORATIONS. 853

 

The Revised Tax Law.

account, he shall resettle the same according to law, and the facts and charge
~or credit, as the case may require, the difference if any, resulting from such

revision or resettlement upon the accounts for taxes of or against any such
person, partnership, company, association or corporation. Such credit, whether
allowed before or after the passage of this act, may be, by the person, part-
nership, company, association or corporation in whose favor it is allowed,

assigned to a person, ag ape company, association or corporation liable
‘to pay taxes under article nine of this act and the assignee of the whole or
any part of such credit on filing with the comptroller such assignment shall

thereupon be entitled to credit on the books of the comptroller for the amount

‘thereof on the current account for taxes of such assignee in the same way

and with the same effect as though the credit had originally been allowed: ims
favor of such assignee. The comptroller shall forthwith send written notice
-of his determination upon such application to the applicant, and to the attor-
“ney-general, which notice, may be sent by mail to his post-office address.

(Thus amended by L. 1903, ch. 642.)

The provision permitting the assignment of a credit is new, having been
added by the amendment of 1903.

/
ERevisers’ ie L. 1881, ch. 361, § 19, as added, L. 1889, ch. 463, without
‘substantial change, except that the readjustment must be within one year
‘after notice of the audit of the account has been served on the person or cor-
poration, instead of “at any time.”]

Taxes once paid into the treasury under this law cannot be paid back with-
-out an appropriation by the Legislature. All the Comptroller may do is to
resettle the account and credit or charge the difference, if any, “ upon the
current account.” (People ex rel. Edison El. Ill. Co. v. Wemple, 133 N. Y.,
617.) s ;

This section contemplates but one revision by the Comptroller. (People ex
rel, Am. Surety Co. v. Campbell, 64 Hun, 417.) .

In proceedings to revise and readjust an account for taxes the Comptroller
is not empowered, even if upon the readjustment the original assessment shall
appear to have been too small, to increase such original assessment. (People
-ex rel. Eppens, Smith & Wieman Co. v. Roberts, 51 App. Div., 152; People v.
Miller, 84 App. Div., 166.)

The fact that the State Comptroller, upon the revision and readjustment of
the tax assessed against a corporation during several years, finds that in some
of such years excessive taxes were collected, reduces the amount pro tanto,
does not authorize him to increase the amount of the tax assessed against
‘the corporation during other years. (People ex rel. Syracuse Improvement Co.
v. Morgan, 59 App. Div., 302.) vi

Where the amount of the capital stock of a foreign corporation employed:
within the State has been fixed by the Comptroller, after a report has been
made by the corporation to him, such amount will not be changed on a re-
hearing’ before the Comptroller on which it is claimed that the debts exceed:
the assets, where it is not satisfactorily shown why the whole indebtedness
was not stated in the first report, or how the debt arose. (People ex rel. In-
ternational Contracting Co. v. Roberts, 27 App. Div., 400; aff’d, 158 N. Y., 666.)

‘Review of determination of comptroller by certiorari.
§ 196. The determination of the comptroller upon any appli-

-eation made to him by any person, partnership, company, associa-
tion or corporation for a revision and resettlement of any account,
-

854 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

as prescribed in this article, may be reviewed both upon the law
and the facts, upon certiorari by the supreme court at the instance
of any person, partnership, company, association or corporation
affected thereby, and in the name and on behalf of the people
of the state. For the purpose of such review the comptroller
shall return, on such certiorari, the accounts and all the evidence
before him on such application, and all the papers and proofs
upon the original statement of such account and all proceedings.

. thereon. If the original or resettled accounts shall be found erro-
neous or illegal, either in point of law or of fact, by the supreme.
court, upon any such review, the accounts reviewed shall then be
corrected and restated, and from any determination of the su-
preme court upon any such review, an appeal to the court of
appeals may be taken by either party.

(L. 1881, ch. 361, as added, L. 1889, ch. 463, without change of sub-
stance.)

The return of the Comptroller to a certiorari should show all the facts
so that the court may determine whether the action of the Comptroller
was erroneous or illegal, and, if it were, that the court itself might make
the proper determination. (People ex rel. Staten Island Rapid Transit
R. R. Co. v. Roberts, 4 App. Div., 334.)

When the return of the Comptroller to a certiorari to review his deter-
mination contains all the evidence and proceedings before him, including
his decision, he will not be required to add items and particulars to such
decision and then to return them. (People ex rel. Wiebusch & Hilger Co.,
Ltd. v. Roberts, 18 Misc., 530.)

On certiorari to review the action of the Comptroller in imposing a tax
the burden is upon the relator to show error or mistake. (People ex rel.
Brooklyn Elevated R. R. Co. v. Roberts, 90 Hun, 537.)

The decision of the Comptroller as to an assessment and taxation will
not be disturbed unless it is clearly shown to be erroneous, hence the party
seeking a revision or readjustment of a tax settled by the Comptroller
must produce evidence showing the error of such settlement. (People.
ex rel. Roebling’s Sons’ Co. v. Wemple, 138 N. Y., 582; People ex rel.
Postal Telegraph Cable Co. v. Campbell, 70 Hun, 507. See, also, People:
v. Wemple, 129 N. Y., 523, sustaining this remedy.)

In proceedings to review the decision of the Comptroller in assessing a
tax the burden is upon the corporation to show that the Comptroller erred.
in imposing the tax of which it complains. (People ex rel. Western Elec.
Co. v. Campbell, 80 Hun, 466.)

The office of Comptroller of the State is a continuous office, and while-
the term of office of a particular incumbent may, and does by the tenure
fixed by law, expire as to such incumbent, the office, nevertheless, devolves.
\

Provistons APPLICABLE TO CORPORATIONS. 855.

 

The Revised Tax Law.

 

‘on his successor and is perpetual, and such successor succeeds to the
records and papers of the office; therefore, a writ of certiorari is properly
directed to the Comptroller of the State under section 2129 of the Code of
Civil Procedure, although the determination of the Comptroller sought to
‘be reviewed was made by a Comptroller in office preceding the one to
whom the writ was directed, and the predecessor in office is not a neces-
‘sary party to the proceeding in order to obtain a review of such deter-
mination. (Matter of Tax against Tiffany & Co., 80 Hun, 486; reversed on
other grounds by 144 N. Y., 166.)

It seems that the return of the Comptroller to a certiorari to review his
‘appraisal should set forth the items of the appraisal, instead of simply
giving the total, and making the evidence a part of the return. (People
ex rel. Union Pacific Tea Co. v. Roberts, 145 N. Y., 375.)

‘Regulations as to such writ of certiorari.

§ 197. No certiorari to review any audit and statement of an
‘account or any determination by the comptroller under this article,
shall be granted unless notice of application therefor is made
within thirty days after the service of the notice of such de-
termination. Eight days’ notice shall be given to the comptroller
of the application for such writ. The full amount of the taxes,
percentage, interest and other charges, audited and stated in such
account, must be deposited with the state treasurer before making
the application and an undertaking filed with the comptroller in
such amount ,and with such sureties as a justice of the supreme
‘court shall approve, to the effect that if such writ is dismissed or
the determination of the comptroller affirmed, the applicant for
the writ will pay all costs and charges which may accrue against
him, or it in the prosecution of the writ, including costs of all
‘appeals.

(L. 1881, ch. 361, § 17, without change of substance.)

The ‘Comptroller cannot, without legislation, return to a corporation a
deposit of an assessment made by it, under section 197 of the Tax Law, for
‘the purpose of reviewing the same and which the Appellate Division sub-
‘sequently declared to be illegal, as section 21 of article 3 of the State
‘Constitution forbids it. (Matter of L. E. Waterman Co., 33 Misc., 569.)

“Warrant for the collection of taxes.

§ 198. After the expiration of thirty days from the sending by
‘the comptroller of a notice of a statement of an accountasprovided
in this article, unless the amount of such account shall have been
paid or deposited with the state treasurer, if an appeal or other pro-
856 Provistons APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

ceeding have been taken to review the same, and the undertaking:
given as provided in this artidle, the comptroller may issue a war-
rant under his hand and official seal, directed to the sheriff of any
county of the state, commanding him to levy upon and sell the real
and personal property of the person, partnership, company, asso-
ciation or corporation against which such account is stated, found
within his county for the payment of the amount thereof with
interest thereon and costs of executing the warrant, and to return
such warrant to the comptroller and pay to the state treasurer the
money collected by virtue thereof, by a time to be therein speci-
fied, not less than sixty days from the date of the warrant. Such
warrant shall be a lien upon and shall bind the real and personal
property of the person, partnership, company, association or cor-
poration against which it is issued, from the time an actual levy
shall be made by virtue thereof. The sheriff to whom any such
warrant shall be directed shall proceed upon the same in all respects,
with like effect, and in the same manner as prescribed by law in
respect to executions issued against property upon judgments of a
court of record, and shall be entitled to the same fees for his services.
in executing the warrant, to be collected in the same manner.

[L. 1885, ch. 501, § 18; L. 1882, ch 409, § 322, as am. by L, 1894, ch. 196,.
without change of substance.]

Information of delinquents.

§ 199. It shall be the duty of any person having knowledge of
the evasion of taxation under this article by any corporation, asso-
ciation, joint-stock company, partnership or person liable to tax-
ation thereunder, for any omission on their part to make the reports
required by this article, to make a written report thereof to the
comptroller of the state, with such information as may be in his
‘possession as may lead to the recovery of any taxes due .the state
therefrom. If, in his opinion, the interests of the state require it,.
the comptroller may employ such person to assist in the collectiom
and preparation of evidence and in the prosecution and trial of
actions for such taxes, and so much of the same, not exceeding ten
per centum thereof, as may be collected from any such delinquent
corporation, association, company, partnership or person, by reason
of such report and such services, as shall have been agreed upon
between such person and the comptroller or attorney-general as a
compensation therefor, shall be paid to such person, and nothing
shall be paid to such person for such report or services unless there
shall be a recovery of taxes by reason thereof.

TL. 1886. ch. 266, all, without change of substance.]
i Amendment of 1907.

‘

 

(Insert fasidg page 857, White on Corporations, on edition.) .

Laws of 1907, al 121, ‘amends the ‘Tes Lew, section 202, ‘to read as
‘follows :

tt.

§ 202. Exemptions sei other state: taxation.— The acai property of:
every corporatign, company, association or partnership, taxable under . this
article, other than for an organization, tax, shall be exempt from assessment’ ae
and’ taxation upon its personal property i state purposes, if’all taxes due
and payable under this article have béen paid thereby. The personal’ prop-
erty of every corporation taxable unter section one hundred and eighty. .
seven-a of this'artiele, other than for an organization tax, and as provided in |
ishapter thirty-seven of the general laws, shall he exempt ‘from assessment
and taxation for all other purposes. The personall property of a private or
individual panker, actually employed in his business as auch banker, shall
be exempt ‘from. taxation for state purposes, if such private or individual, .
banker ' shall have’ paid all taxes due and payable under this article. Such, '
gorporation and private or individual banker shall in-no other respect be *
relieved from assessment and taxation ‘by reason of the. provisions of this
artide. “The owner and holder of stock. in an incorporated trust company
liable ‘to taxation, under the provisions of this act shall not be taxed as an
individual for, such: stock. }

*. By the amendment ‘af 1907 the words ~ if all taxes due and payable under
this article have been paid thereby,” which were formerly, at the end of the

second sentence were transposed a the end of the first sentence, ee

'

27 (« mn % :
Provisions APPLICABLE TO CORPORATIONS. 857

 

The Revised Tax Law.

 

Action for recovery of taxes; forfeiture of charter of delinquent
corporation.

§ 200. An action may be brought by the attorney-general, at
the instance of the comptroller, in the name of the state, to recover
the amount of any account audited and stated by the comptroller
under the provisions of this article. If any such account shall
remain unpaid at the expiration of one year after notice of the state-
ment thereof has been sent as required by this article, and the comp- _
troller is satisfied that the failure to pay the same is intentional, he °
shall so report to the attorney-general, who shall immediately bring
_ an action, in the name of the people of the state, for the forfeiture
of the franchise of any corporation, joint-stock company or associa-
tion failing to make such payment, and if it is found that such
failure was intentional, judgment shall be rendered in such action.
for the forfeiture of its franchise and for its dissolution, and there-
after such franchise shall be annulled.

[L. 1881, ch. 361, § 2; L. 1882, ch. 409, § 322, as am. by L, 1894, ch. 196;
L. 1886, ch. 679, § 3, without change of substance.]

Reports to be made by the secretary of state.

§ 201. The secretary of state shall transmit on the first day of
each month to the comptroller, a report of the-stock corporations
whose certificates of incorporation are filed, or of the foreign stock-
corporations to whom a certificate of authority has been issued to do
business in this state, during the preceding month. Such report
shall state the name of the corporation, its place of business, the
amount of its capital stock, its purposes or objects, the names and

laces of residence of its directors, and, if a foreign corporation,
its place of business within the state. The comptroller may ‘pre-
scribe the forms. and furnish the blanks for such reports. The
secretary of state shall make like reports to the comptroller when-
ever required by him relating to any such corporations whose cer-
. tificates have been filed or to whom a certificate of authority has.
been issued prior to the time when this article takes effect, and dur-
ing any period of time specified by the comptroller in his request:
for such report. ke

{Revisers’ Note— New, in substitution for L. 1881, ch. 166, which
requires each supervisor to-report to the Comptroller a list of corporationa
doing business in his town.]

Exemptions from other state taxation.

§ 202. The personal property of every corporation, company,
association or partnership, taxable under this article, other than for
858 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

an organization tax, shall be exempt from assessment and taxation
upon its personal property for state purposes, and the personal prop-
erty of every corporation taxable under section one hundred and
eighty-seven-a of this article, other than for an organization tax, and
as provided in chapter thirty-seven of the general laws, shall be ex-
empt from assessment and taxation for all other purposes, if all taxes
due and payable under this article have been paid thereby. The per-
sonal property of a private or individual banker, actually employed
in his business as such banker, shall be exempt from taxation for state
purposes, if such private or individual banker shall have paid all taxes
due and payable under this article. Such corporation and private or
individual banker shall in no other respect be relieved from assess-
ment and taxation by reason of the provisions of this article. The
owner and holder of stock in an incorporated trust company liable to
taxation under the provisions of this act shall not be taxed as an
individual for such stock.

[Revisers’ Note.— L. 1881, ch. 361, § 8; L. 1886, ch. 679, § 4, as amended
by L. 1891, ch. 218, without change of substance.]

(Thus amended by L. 1902, ch. 172.)

Application of taxes.

§ 2038. The taxes imposed by this article and the revenues thereof
shall be applicable to the general fund of the treasury and to the
payment of all claims and demands which are a lawful charge thereon.

[Revisers’ Note.— L. 1881, ch. 361, § 9; L. 1886, ch. 679, § 5; L. 1882, ch.
409, § 327, without change of substance.]

Contents of petition.

§ 250. Any person assessed upon any assessment-roll, claiming
to be aggrieved by any assessmeent for property therein, may pre-
sent to the supreme court a petition duly verified setting forth that
the assessment is illegal, specifying the grounds of the alleged ille-
gality, or if erroneous by reason of overvaluation, stating the extent
of such overvaliation, or if unequal in that the assessment has’ been
made at a higher proportionate valuation than the assessment of other
property on the same roll by the same officers, specifying the instances
in which such inequality exists, and the extent thereof, and stating
that he is or will be injured thereby. Such petition must show that
application has been made in due time to the proper officers to correct
such assessment. Two or more persons assessed upon the same roll
who are affected in the same manner by the alleged illegality, error or
inequality, may unite in the same petition.

(Source of section, L. 1880, ch. 269, § 1.)
Provisions APPLICABLE TO CORPORATIONS. 859

 

The Revised Tax Law.

 

Allowance of writ of certiorari.

§ 251. Such petition must be presented to a justice of the
supreme court or at a special term of the supreme court in the
judicial district in which the assessment complained of was made,
within fifteen days after the completion arid filing of the assess- |
ment-roll and the first posting or publication of the notice thereof
as required by this chapter. Upon the presentation of such peti-
tion, the justice or court may allow a writ of certiorari to the
officers making the assessment, to review such assessment, and
shall prescribe therein the time within which a return thereto
must be made and served upon the relator’s attorney, which shall
not be less than ten days, and may be extended by the court. or
a justice thereof. Such writ shall be returnable to a special
term of the supreme court of the judicial district in which the
assessment complained of ,was made. The allowance of the writ
shall not stay the proceedings of the assessors or other persons
to whom it is directed or to whom the,assessment is delivered, to
be acted upon according to law.

(Source of section, L. 1880, ch. 269, §§ 1, 3.)

The requirement that a petition for a writ of certiorari to review an as-
sessment, for taxation must be presented within fifteen days after the
completion and filing of the assessment-roll and the first posting of pub-
lication of the notice thereof, as required by law, has no application to
assessments in New York city, since this section refers to provisions of
the Tax Law which apply to.the State generally, but not to the city of
New York. (People ex rel. Thompson v. Feitner, 168 N. Y., 441, aff’g 61
App. Div., 117. See also cases therein cited.)

Return to writ.

§ 252. The officers making a return to such writ shall not be
required to return the original assessment-roll or other original
papers acted upon by them, but it shall be sufficient to return
certified or sworn copies of such roll or papers, or of such por-
tions théreof as may be called for by such writ. The return
must concisely set forth such other facts as may be pertinent and
material to show the value of the property assessed on the roll
‘860 Provisions APPLICABLE TO CoRPORATIONS.

 

The Revised Tax Law.

 

and the grounds for the valuation made by the assessing officera
and the return must Le verified.

(Source of section, L. 1880, ch. 269, § 3.)

Proceedings upon return.

§ 253. If it shall appear upon the return to any such writ that.
the assessment complained of is illegal or erroneous or unequal
for any of the reasons alleged in the petition, the court may order
such assessment, if illegal, to be stricken from’ the roll, or if
erroneous or unequal, it may order a re-assessment of the prop-
erty of the petitioner, or the correction of his assessment upon
the roll, in whole or in part, in such manner as shall be in accord-
ance with law, or as shall make it conform to the valuations and
assessments of other property upon the same roll and secure
equality of assessment. If upon the hearing it shall appear to
the court, that testimony is necessary for the proper disposition
of the matter, it may take evidence or may appoint a referee to
take such evidence as it may direct, and.report the same to the
court, with his findings of fact and conclusions of law, which shall
constitute a part of the proceedings upon which the determina-
tion of the court shall be made. A new assessment or correction
of an assessment made by orden of the court shall have the same
force and effect as if it had been so made by the proper officers
within the time prescribed by law for making such assessment.

(Source, L. 1880, ch. 269, §§ 4, 5.)

Costs.

§ 254. Costs shall not be allowed against the officers whose
proceedings may be reviewed under any such writ unless it shall
appear to the court, that they acted with gross negligence or in
bad faith or with malice in making the assessment complained
of. If the writ shall be quashed or the prayet of the petitioner
denied, costs shall be awarded against the petitioner, not exceed-
ing the costs and disbursements taxable in an action upon the
trial of an issue of fact in the supreme court. .

(Source. L. 1880, ch. 269, § 6.)

Appeals.

§ 255. An appeal may be taken by either party from an order,
judgment or determination under this article as from an order,
/

f

Provisions APPLICABLE TO CORPORATIONS. 86L.

 

 

The Revised Tax Law.

and it shall be heard and determined in like manner as appeals.
in the supreme court from orders. All‘issues and appeals in any
proceeding under this article shall have preference over all other-
civil actions and proceedings in all courts. ‘

(Source, L. 1880, ch. 269, § 7.) ,

Limitations of time.

Ԥ 282. The provisions of the code of civil procedure, relative:
to the limitation of time of enforcing a civil remedy, shall not
apply to any proceeding or ‘action taken to levy, appraise, assess,
determine or enforce the collection of any tax or’ penalty pre--
scribed by articles nine or ten of said chapter, and this act shall
be construed as having been in effect as of date of the original
enactment of the corporation and inheritance tax law, provided,
however, that as to real estate in the hands of bona fide purchasers,
the transfer tax shall be presumed to be paid and cease to be a
lien as against such purchasers after the expiration of six years
from the date of accrual. This act shall not affect any action or
proceeding now pending.

(New, added by L. 1899, ch: 737.)

The enactment of the foregoing section supersedes the decision in

People ex rel. N. Y. Loan & Impt. Co. v. Roberts, 157 N. Y., 70, revsg. 22:
App. Div., 630. (

Commutation oF Lasor on Hierways.
: The Highway Law, L. 1890, ch. 568, § 62,
§ 62. Every person and corporation shall work the whole-
number of days.for which he or it shall have been assessed, ex-

ro cept such days as shall be commuted for, at the rate of one dollar

per day and such commutation money shall be paid to the over-
seers of highways of the district in which the labor shall be:
‘assessed, within at least twenty-four hours before the time, when
the person or corporation is required to appear and work on the.
“highways; but any corporation must pay’ its commutation money
on or before the first day of June in each year to the commissioner
or commissioners of highways of the town in which the labor shall
be assessed, and such commutation money shall be expended by
the commissioner or commissioners of highways upon the roads.

and bridges of the town as may be directed by the town board.
362 Provisions APPLICABLE TO CORPORATIONS.

 

The Revised Tax Law.

 

except that in the counties of Albany, Dutchess, Fulton, Hamilton,
Greene, Herkimer, Lewis,. Montgomery, Putnam, Richmond,
Rockland, Schoharie, Suffolk, Tompkins, Ulster, Westchester and
Yates, the commissioner or commissioners shall pay the same to
the overseers of the districts, respectively, in which the labor com-
muted for was assessed.

(Thus amended by L. 1895, ch. 579; L. 1896, ch. 973; L. 1897, ch. 334; L.
1899, ch. 345; L. 1900, ch. 153; L. 1902, ch, 105; L. 1903, ch. 27; L. 1904,

ch. 495.)
)
JOINT-STOCK ASSOCIATIONS.

 

Laws or 1894, Onaprer 235.

“ An Act in relation to joint stock associations, constituting chapter
forty-five of the general laws,” as amended.

Tue Jornt-stock Assocration Law.

Section 1, Short title.
2. Definitions.
3. Contents of articles of association.
4, Certificate to be filed within sixty days and annually there-
after. Penalty. Evidence.
5. Dissolution.
6. Power to take and convey real property.
%. Changing articles of association.
8. When officer or stockholder not privileged from testifying.
9. Laws repealed.
10. When to take effect,

Short title.

Szction 1. This chapter shall be known as the joint stock asso-
ciation law. ‘

Definitions.

§ 2. As used in this chapter, the term joint stock association
includes every unincorporated joint stock association, company or
enterprise having written articles of association and capital stock
divided into shares, but does not include a corporation; and the
term stockholder includes every member of such an association.

The distinction between joint-stock companies and corporations and the
essential characteristics of each, are very fully discussed in People ex rel.
Winchester, as Treasurer, etc., v. Coleman, 133 N. Y., 279. In that case
it was held that the National Express Company, a joint-stock company,
is not subject to local taxation under the provisions of the Revised
Statutes (1 R. S., title 4, chap. 13, part 1), which enacts that “all monied
or stock corporations deriving an income or profit from their capital or
otherwise, shall be liable to taxation on their capital,” etc. (People éx rel.
Platt v. Wemple, 117 N. Y., 186.)
864 Articies or Assooration ; ANNUAL CERTIFIOATE.

 

Joint-Stock Associations.

 

In view of the reasoning of the court in People ex rel. Winchester v.
‘Coleman, above cited, it very clearly appears that joint-stock associations -
are not liable to the tax for the privilege of organization under L, 1896,
-ch. 908, § 180. (See said section, ante, pages 73, 74.)

Joint-stock companies are, however, subject to annual taxation under
the State Tax Law. (People ex rel. Platt v. Wemple, 117 N. Y., 186.)

Under section 1919 of the Code of Civil Procedure, which provides for
-actions against the presidert and treasurer of unincorporated associa-
‘tions consisting of more than seven members, upon any cause of action
for which the plaintiff could maintain an action against all the associates,
the plaintiff must allege and prove, and it must be found that all the
members of the association were liable jointly or severally to pay his
-elaim. (McCabe y. Goodfellow, Treas., etc., 183 N. Y., 89.)

Contents of articles of association.
§ 3. The articles of association of a joint stock association may:

1. Provide that the death of a stockholder thereof or the trans-
fer-of his shares of stock therein, shall not work a dissolution of
the association.

2. Prescribe tne number of its directors, not less than three, to
have the sole management of its affairs;

8. Contain any other provision for the management of ite
affairs, not inconsistent with law.

This act fails to provide for the filing of the articles of association in
any public office.

Certificate to be filed within sixty days and annually thereafter;
penalty; evidence.

*§ 4. Every joint stock association transacting business within
‘this state shall, within sixty days after its formation, and in each
January thereafter, file with the secretary of state, and with the
clerk of the county in which its principal business is carried on,
a written certificate, signed and verified by its president and treas-
urer, stating the name and date of organization of such association,
the number of its stockholders, the names and places of residence
of its officers, and its principal place of business. Such certificates
shall be recorded in such offices respectively. Any such certificate,
the record thereof, or a certified copy of such certificate, or record
shall be presumptive evidence of the truth of all facts therein
stated, against such association, its officers and stockholders. The
officers of a joint stock association who fail to comply with the
provisions of this section shall be jointly and severally liable to pay
to the people of this state a penalty of fifty dollars for each day
‘such failure continues.

For form of certificate wnder the above section, see post, form No. 180.
Dissotution ; Conveyance or Reat Properry. 865

 

Joint-Stock Associations,

 

-Dissolution.

§ 5. A: joint stock association shall not be dissolved except in
‘pursuance of its articles of association, or by consent of all its stock-
holders, or by judgment of a court for fraud in its management, or
for good cause shown. :

One or more members of a joint-stock association may maintain an
-action for its dissolution whenever a proper occasion arises rendering it
legitimately desirable to wind up its affairs, and the right. to bring such
_an Bction is not confined to the Attorney-General, as is the case where
it is sought to dissolve a corporation. (Snyder v. Lindsey, 92 Hun, 452.)

Power to take and convey real property.

§ 6. A joint stock association. in the name of its president, as
such president, may purchase, take, hold and convey such real
property only,

1. As may be necessary for its immediate accommodation in the
convenient transaction of its business. ;

2. As may be mortgaged to it in good faith by way of security
‘for loans made by or moneys due to it.

. 8. As it may purchase at sales under judgments, decrees or
‘mortgages held by it.

‘Changing articles of association. -

§ 7. Any change in the articles of association of a joint stock
association, not inconsistent with law, may be made with the con-
sent of all its stockholders, or otherwise as the articles of association
may provide. Unless the articles of association of a joint stock
-association contain provisions to the contrary, its directors may be
increased or reduced to not less than three; its capital stock may be
increased or reduced; or the term of its existence may be extended,
-with the consent of its stockholders owning at least two-thirds of
its stock issued and outstanding, on the following terms and condi-
tions: The consent of the requisite number of stockholders must
be given by vote, or by writing presented and filed, at a regular
-or regularly called special meeting. Notice of the time and place
-of such meeting with notice of the proposed change must be per-
‘sonally served on each stockholder of the association at least thirty
-days before the meeting, or by mailing it to such stockholder at his
last-known post-office address at least sixty days before the meeting.

‘The amount of its capital stock shall not be redtced below the
amount of its paid-up capital stock, nor shall it be reduced if the
abilities of the association exceed its assets.

55 ,
866 OrriceR or SrockHoLDER Testiryine; Laws REPEALED.

 

Joint-Stock Associations.

 

When officer or stockholder not privileged from testifying.

§ 8. An officer or stockholder of a joint stock association is not
privileged from testifying in an action or proceeding against such
association or any stockholder thereof as to its existence, the mem-
bers composing it, or any fact relating to its organization.

Laws repealed. . ~

§ 9. The following laws are repealed:

Of the laws of 1854, chapter 245.
Of the laws of 1867, chapter 289.
Of the laws of 1885, chapter 505.

§ 10. This act shall take effect immediately. :

Relative to actions, et cetera, by or against associations of seven or
more persons.

§ 1919. An action or special proceeding may be maintained, by
the president or treasurer of an unincorporated association, con-
sisting of seven or more persons, to recover any property, or
upon any cause of action, for or upon which all the associates
may maintain such an action or special proceeding, by reason
of their interest or ownership therein, either jointly or in com-
mon. An action may likewise be maintained by such president
or treasurer to recover from one or more members of such as-
sociation his or théir proportionate share of any moneys lawfully
expended by such association for the benefit of such associates,
or to enforce any lawful claim of such association against such
member or members. An action or special proceeding may be
maintained, against the president, or treasurer of such an as-
sociation, to recover any property, or upon any cause of action,
for or upon which the plaintiff may maintain such an action or
special proceeding, against all the associates, by reason of their
interest or ownership, or claim of ownership therein, either
jointly or in common, or their liability therefor, either jointly or
severally. Any partnership, or other company of persons, which
has a president or treasurer, is deemed an association within the
meaning of this section.

(Code of Civil Procedure, § 1919, as amended by L. 1900, ch. 184.)
FORMS.

 

No. 1.
Petition by a Stock Corporation for Change of Name,
See §§ 2411-2414 of the Code of Civil Procedure.

Supreme Court, Stare or New York, Country ov

 

In THE Marrer oF THE APPLICATION
OF THE

[tnsert name] Company ror AUTHORITY TO
Cuaner 1Ts NAME To THE [insert name]
Company.

To the Supreme Court of the State of New York:

The petition of the [insert name] Company respectfully shows
to this court, as follows:

That it is a corporation duly incorporated under a general law
[or by a special law] of this state, to wit: [State the law], and that
‘the objects for which it was formed are: [Znsert objects}.

That its principal business office is situated in the city [or village]
of » in the county of , and State of New York.

That the present name of your petitioner is the [insert name]
Company, and that the name it desires to assume is the [snsert
same] Company.

That the following are the grounds of this application, namely:
[Lnsert same].

That this petition for an order for such change of name of said
corporation has been duly authorized by a resolution of its board,
of directors adopted at a meeting of said board held on the
day of 189 .

That annexed hereto is a certificate of the secretary of state,
that the name which said corporation proposes to assume is not the
name of any other domestic corporation or a name which he deems
so nearly resembling it, as to be calculated to deceive.
868 Cuanes or Corporate Name.

 

Forms — No. 2.

 

‘Wherefore, your petitioner prays for an order of the court
authorizing it to change its corporate name from the [insert name]
Company and to assume instead thereof the corporate name, the
[ensert proposed name] Company.

Dated 189 .
The [nsert corporate name] Company,
(na By [signature] President.

Strate or New Yor, m
County of : } sai

[Insert name of president], being duly sworn, says, that he is
the president of the [¢nsert corporate name] Company, the peti-
tioner above named; that he has read the foregoing petition, by
him ‘subscribed, and knows the contents thereof; that the same is
‘true to the knowledge of the deponent; that the seal affixed to said
, petition is the corporate seal of said company and was affixed
thereto by the authority of the board ot directors of said com
pany, and that he signed said petition on behalf of said company,
by the like authority. —

 

[Signature of president.]
Sworn to before me this
day of 189 }
[Signature of notary.J
No. 2.

Notice of Application for Order to Change Name.
See §§ 2411-2414 of the Code of Civil Procedure.

i Notice is hereby given that the [insert corporate name] Come
pany, a domestic corporation, having its principal business office in
the city [or village] of , county of , and State of
New York, will apply to the supreme court of the State of New
York, at a special term thereof, to be held at , in the city
[or village] of , county of , on the day
of , 189, at o’clock in the forenoon of that day,
or as soon thereafter as counsel can be heard, for an order author-
Cuaneu or Corporate Nama. 869

 

Forms — Nos. 3, 4.

 

izing said corporation to change its corporate name to the [insert
proposed name] Company.
Dated, Albany, N. Y., »189 .

The [ensert corporate name] Company,
By [signature of] President.

 

, ' No. 38.
Resolution of Directors Authorizing Application for Change of Name.

Resolved, by the board of directors of the [insert eorporate name]
‘at a meeting duly convened this day of ,18  , that
it is desirable that the corporate name of said.company should be
‘changed from that of the [insert name] to the name, [insert pro-
posed name), for the following reasons, to wit: [State them];

Therefore, Be It Resolved, by said board of directors, that appli-
-eation for an order of the supreme court to authorize the said
company to assume the name, [énsert-name] be made in the manner
required by law, and that the president be and is hereby directed to
sign and verify a proper petition for that purpose, and to affix the
seal of the corporation thereto.

 

No. 4.
Order Changing Corporate Name.
See §§ 2411-2414 of the Code of Civil Procedure.

Ata Special Term of the Supreme Court of the State of
New York, held at the in the city of , on
the day of , 189 .

Present: Hon. E. L. F., Justice.

[Insert title, as in form No. 1.]

Upon reading and filing the petition of the [¢nsert corporate
-name| Company, a domestic stock corporation, duly verified
by , its president, wherein said petitioner prays for an
order authorizing it to assume another corporate name, to wit, the
name [insert new name] Company, and upon filing the certificate
of the secretary of state annexed thereto, certifying that the name
-which such corporation proposes to assume is not the name of any
870 Cranes or Corporate Name.

 

Forms — No. 4

 

other domestic corporation or a name which he deems so nearly
resembling it, as to be calculated to deceive, and upon filing due
proof by affidavits showing that notice of the presentation of said
petition has been duly published for six weeks in the [ensert name
of paper], the paper at Albany in which notices by state officers are
authorized by law to. be published, and in the [¢nsert name of
paper], a newspaper of the county of , in which county
such corporation has its business office [or ¢f the corporation be
located in the city and county of New York, that such notice has
been so published in two daily newspapers in such county], and the
court being satisfied by said petition, and by the affidavits and cer-
tificate presented therewith, that the petition is true, and that there:
is no reasonable objection to the change of name proposed, and that.
the petition has been duly authorized, and that notice of the pre-
sentation of the petition, as required by law, has been made ;

Now, on motion of , attorney for the said petitioner,
no one opposing, it is .

‘Ordered, that said petition be and the same hereby is granted,
and that the petitioner herein, the [insert corporate name] Com-
pany, be and it hereby is authorized to assume another corporate-
name, to wit, the name [énseré same], on and after the day
of , 189 , and it is further ordered and directed that.
this order be entered, and the papers on which it is granted be filed,.
within ten days from the date hereof, in the office of the clerk
of county, the county in which the certificate of incor-
poration of said corporation is filed, and that a certified copy of this.
order, within ten days after the entry thereof, be filed in the office
of the secretary of state, and further, that a copy of this order be
published once a week for four successive weeks in the [name of
newspaper], a newspaper in the county of , beginning
within ten days after the entry hereof.

The foregoing order is to be filed and recorded in the office of the County Clerk,
who is entitled to a filing fee of six cents, a recording fee of ten cents a folio and
for a certified copy eight cents a folio. Such certified copy must be filed in the-
office of the Secretary of State. No fee is payable at the latter office for such
filing.

If the proceedings are for the change of name of a railroad corporation the:
petition must be approved by the board of railroad commissioners. See page 12,
AMENDED CrrtiFicaTE TO Correct Derecrt. 871

A

Forms — No. 5.

 

 

 

ante ; see also provisions as to the designation by said board of a newspaper in.
which the notice is to be publishsd, ante, page 14. It should also be noted that
‘a certified copy of the order in such cases must be filed in the office of said board,
sas well as in the office of the Secretary of State,

No. 5.
Amended Certificate to Correct Informality or Defect
See the General Corporation Law, § 2%.

AMENDED CERTIFICATE OF THE Company.

We, the undersigned directors [or corporators] of [insert name
of corporation] for the purpose of correcting an informalfty in the
original certificate of incorporation of said corporation consisting
of [2 g., an omission to state in said ccrtificate the term of cor-
porate existence of such corporation).

[Ir for the purpose of striking out matter not authorized by
law to be stated in the original certificate of incorporation of said
eorporction, as follows, to wit: State unauthorized matter’.

[Or for the purpose of correcting a defect in the proof or
acknowledgment appended to the original certificate of tncorpora-
tion of said corporation], do hereby make and file this amcade.
certificate, pursuant to the General Corporation Law of the State of
New York, section 7, and for such purpose, do certify and declare
as follows: :

[Here insert the recitals for the supplying or correction of
which the amended certificate is made; or omitting the matter un-
authorized by law to be stated; or by making the desired cor-

a

rection. |

In Wirness Wurrzor, we have made and filed this amended
certificate in duplicate, and have hereunto subscribed our names,

Dated this day of. 189
[Stgnatures.]
872 AMENDED CERTIFICATE To Correct Derscrt.

2. -

Forms — No. 6.

 

State or New York, :
County of ; co

On this day of 189 , before me personally
came [insert names], known to me to be the individuals described
in and who executed the foregoing amended certificate, and they
severally acknowledged to me that they executed the same for the
uses and purposes therein mentioned.

[Segnature of notary.)

The fees upon filing this certificate are: Oftice cf Secretary of State, fifteen.
cents a folio for recording ; office of County Clerk, filing, six cents, recording,
ten cents a folio,

 

No. 6.
Amended Supplemental Certificate to Correct Informality or’ Defect.
See the General Corporation Law, § 7.
AMENDED SUPPLEMENTAL CERTIFICATE OF THE Company.

We, che undersigned, directors of [insert, corporate name] Com-
pany, do hereby certify that in the certificate of reduction of capitab
stock of such corporation from $150,000 to $100,000, filed in the

office ot the Secretary of State on the day of ‘
189, and in the office of the clerk of the county of on
the day of , 189 , an informality exists, as fol.

lows, to wit: ‘

[Set forth the informality. ]

Therefore, we the undersigned directors of the [insert corporate
name] Company aforesaid, do hereby make and file this amendéed
certificate for the purpose of correcting such informality or defect,
pursuant to the provisions of the General Corporation Law, sec-
tion 7, and for such purpose do certify and declare as follows:

[Here set forth the amendment. ]

In Witness WuereEor, we have made and aclnowledged this
amended certificate in duplicate, and have hereunto set our hands
this day , 189

[Signatures of directors, |

e
AmenbdeD CrErtiricaTE To Correct Derercr. 873

 

Forms— No, 7.

 

Srare or New Yorx, .
County of j f mae

On t' iis ' day of , 189 , before me personally
came [insert ncomes of she directors], known to me to be the indi-
vidual; described in and who executed the foregoing amended
certificate, and they severally acknowledged td me that they exe-
euted the same for the nscs and purposes therein mentioned.

eee ere ee aes terre sewn.

Notary Public,

County, WV. Y.
(As to fezs see note to preceding form.)

 

No. 7.

Petition to Court to Amend Certificate of Incorporation which Fails
to State True Objects of Corporation.

See thc General Corporation Law, § %.

Supreme Court, County.

 

In tae Martteror THE PETITION
OF THE
[énsert corporate name] Company, To AMEND
ITs CERTIFICATE oF INCORPORATION.

 

 

 

To the Supreme Court of the State of New York:

The potition: of the [insert corporate name], the above-named
petitioner respectfully shows to this court that it is corporation,
duly incorporated, organized and existing under and by virtue of
the laws of the State of New York.

That annexed hereto and marked “Exhibit A” is a copy of the
original certificate of incorporation of said corporation, which, as
your petitioner is informed and verily believes, was duly filed and
recorded in the office of the Secretary of State of the State of
New York, on the day of 189 ,and a duplicate
original (or a certified copy] thereof was also on the day
of 189 , duly filed and recorded in the office of the

clerk of . county.
874 AMENDED CrERtiFicats To Correct DsFect.

 

Forms — No. 7.

 

That such certificate of incorporation, so filed as aforesaid, fails
to express the true object and purpose of the corporation, so as to
truly set forth such object and purpose, That it is and has been
ever since the filing of said certificate of incorporation the inten-
tion and purpose of the incorporators to, and the true object and
purpose of said corporation is, to [state same].

That annexed hereto and marked “Exhibit B,” is a proposed
amended certificate of incorporation duly signed and acknowledged
by the directors of said corporation for the first year as named in
the original certificate of incorporation. That said proposed
amended ‘ertificate expresses the true object and purpose of said
corporation as hereinbefore set forth, and the petitioner prays for
an order of this court amending said original certificate so as to
truly set forth such object and purpose, and permit your petitioner
to file for record with said Secretary of State and County Clerk
of county, said certificate so amended.

The [insert corporate name] Company,
[Par] By [signature] President.

Strate or New Yorx, ;
County of ‘ t ao

[Name of president], being duly sworn, says that he is the
president of the [insert corporate name], the petitioner named in
the foregoing petition; that the foregoing petition is true of his
own knowledge, except as to the matters therein stated to be alleged
upon information and belief, and that as to those matters he believes
it to be true’ that he affixed the corporate seal of said corporation
to said petition and signed the same on behalf of said corporation
by the authority of its board of directors.

[Signature of president.)

Sworn to before me this
day of 189 , ;

[Signature of notary.)
AmeENDED. CertTiIFICATE TO Correct Drrsct. 875

 

 

Forms — No. 8.

No. 8.
Notice of Application to Court for Correction of Objects.
Bee the Gensral Corporation Law, § 7.

- State or New Yorx, Suprems Court.

 

\

In tak Marter or THE PETITION
OF THE

{insert corporate name] To AMEND 1Ts CERTIBI-
caTE or INCORPORATION,

 

Sir:—
Please take notice, that upon the petition, with a copy of which
you are herewith served, a motion will be made at the next Special

Term of this court, appointed to be held at the in the city
[or village] of in and for the county of , on
the day of 189 , at the opening of the court on

that day, or as soon thereafter as counsel can be heard, for a rule
or order in this proceeding, amending the original certificate of
incorporation of the [¢nsert corporate name], filed and recorded in
the office of the. Secretary of State, and also in the office of the
-clerk of county, on or about the day of i
"189 , so as to truly set forth the true object and purpose of said
corporation as stated in said petition, and permitting the petitioner
to file said amended certificate and to have the same recorded in
the office of the Secretary of State, and also in the office of said

clerk of county, in the manner required by law, or for
such other or further order of relief in the premises as shall be just.
Dated the day of , 189

Yours, etc.,

ee er

Attorney for the Petitioner.

Office address: ..ccceccccccioes
®

To Hon. ..ccccccsceesess
Attorney-General.
876 By-Laws ror Stock Corporations.

ee

 

Forms — No, 9.

 

*

No. 9,
By-Laws for stock Corporations.

See the General Corporsticn Law, § 11.
BY-LAWS OF THE COMPANY.

Articte J.— Mretines or STOCKHOLDERS.

Section 1. The annual meeting of the stockholders of this com
pany shall be held at the office of the corporation, in the
of , on the [e. g., second Monday in January] of each and
every year, at 12 o’clock, noon, for the election of directors and
such other business as may properly come before said. meeting.
Notice of the time, place and object of such meeting shall be given
by publication thereof, at least once in each week for two succes
sive weeks immediately preceding such meeting, in the manner
required by the Stock Corporation Law, section 20, and by mailing,
at least . days previous to such meeting, postage prepaid, a
copy of such notice, addressed to each stockholder at his residence '
or place of business, as the same shall appear on the books of the
corporation. No business, other than that stated in such notice,
shall be transacted at such meeting without the unanimous consent
of all the stockholders present thereat, in person or by proxy.

Section 2. Special meetings of stockholders, other than those
regulated by statute, may be called at any time by a majority of the
directors. It shall also be the duty of the president to call such
meetings whenever requested in writing, so to do, by stockholders

owning of the capital stock. A notice of every special
meeting, stating the time, place and object thereof, shall be given
by mailing, postage prepaid, at least days before such meeting,

a copy of such notice addressed to each stockholder at his post-
office address as the same appears on the books of the corporation.

Section 3. At all meetings of stockholders there shall be present,
either in person or by proxy, stockholders owning of the
capital stock of the corporation in order to constitute a quorum,
except at special elections of directors pursuant to section 25 of the
General Corporation Law.
KS os

By-Laws ror Stock Corporations. 877

 

Forms — No. 9.

 

Section 4. At all annual meetings of stockholders the right of
any stockholder to vote shall be governed and determined as pre-
scribed in-the General Corporation Law, sections 20, 21 and 22.

Section 5. If, for any reason, the annual meeting of stockholders.
shall not be’held as hereinbefore provided, such annual meeting
shall be called and conducted as prescribed in the General Corpo-
ration Law, sections 24, 25 and 26. .

Section 6. At all meetings of stockholders, only such
persons shall be entitled to vote in person and by proxy who appear-
as stockholders upon the transfer books of the corporation for
days immediately preceding such meeting.

Section 7. At the annual ne of stockholders the ee
shall be the order of business, viz.

1. Calling the roll.

. Proof of proper notice of meeting.

. Report of President. /

. Report of Treasurer. -
Report of Secretary.

Report of Committees.

Election of Directors.

Miscellaneous business.

DIS KH wo

Section 8. At all meetings of stockholders all questions, except
the question of an amendment to the by-laws, and the election of’
directors and inspectors of election, and all such other questions,
the manner of deciding which is specially regulated by statute,
shall be determined by a majority vote of the stockholders present
jn person or by proxy; provided, however, that any qualified voter
may demand, a stock vote, and in that case, such stock vote shall
immediately be taken, and each stockholder present, in person or
by proxy, shall be entitled to one vote for each share of stock
owned by him. All voting shall be viva voce, except that a stock
vote shall be by ballot, each of which shall state the name of the-
stockholder voting and ‘the number of shares owned by him, and
in addition, if such ballot be cast by a proxy, it shall also state the-

name of such proxy.
878 By-Laws ror Srock CorpoRaTIONs.

 

Forms — No. 9.

 

Section 9. At special meetings of stockholders the provisions of
sections 20, 21, 22, 25 and 26 of the General Corporation Law
shall apply to the casting of all votes.

Articte II.— Drreorors.

Section 1. The directors of this corporation shall be elected by
baliot, for the term of one year, at the annual meeting of stock-
holders, except as hereinafter otherwise provided for filling vacan-
cies. The directors shall be chosen by a plurality of the votes of
the stockholders, voting either in person or by proxy, at such annual
election as provided by section 20 of the Stock Corporation Law.

Section 2, Vacancies in the board of directors, occurring during
the year, shall be filled for the unexpired term, by a majority vote
of the remaining directors at any special meeting called for that
purpose, or at any regular meeting of the board.

Section 3. In case the entire board of directors shall die or resign,
any stockholder may call a special meeting in the same manner that
the president may call such meetings, and directors for the unex-
pired term may be elected at such special meeting in the manner
provided for their election at annual meetings.

Section 4. The board of directors may adopt such rules and regu-
lations for the conduct of their meetings and management of the
affairs of the corporation as they may deem proper, not inconsistent
with the laws of the State of New York, or these by-laws.

Section 5. The board of directors shall ‘meet on the [e. g., second
Monday] of every month, and wuenever called together by the
president upon due notice given to each director. On the written
request of any director the secretary shall cail a specia! meeting of
the board. :

Section 6. All committees shall be appointed by the board of
directors.

Artiote III. — Orricrrs.

Section 1. The board of directors, immediately after the annual
meeting, shall choose one of their number by a majority vote to be
president, and they shall also appoint a vice-president, secretary
and treasurer. Each of such officers shall serve for the term of
one year, or until the next annual election.
By-Laws ror Stock CoRPoRATIONS. 879

 

Forms — No. 9.

 

Section 2. The president shall preside at all meetings of the
board of directors, and shall act as temporary chairman at, and call
to order all meetings of the stockholders. He shall sign certificates
of stock, sign and execute all contracts in the name of the.
company, when authorized so to do by the board of directors;
countersign all checks drawn by the treasurer; appoint and dis-
charge agents and employes, subject to the approval of the board
of directors, and he shall have the general management of the
affairs of the corporation and perform all the duties incidental to.
his office.

Section 3. The vice-president shall, in the absence or incapacity
of the president, perform the duties of that officer.

Section 4. The treasurer shall have the care and custody of all
the funds and securities of the corporation, and deposit the same in
the name of the corporation in such bank or banks as the directors
may elect ; he shall sign all checks, drafts, notes and orders for the
payment of money, which shall be countersigned by the president,
and he shall pay out and dispose of the same under the direction of
the president; he shall at all reasonable times exhibit his books and
accounts to any director or stockholder of the company upon appli-
cation at the office of the company during business hours; he shall
sign all certificates of stock signed by the president; he shall give
such bonds for the faithful performance of his duties as the board
of directors may determine. :

Section 5. The secretary shall keep the minutes of the board of
directors, and also the minutes of the meetings of stockholders; he
shall attend to the giving and serving of all notices of the company,
and shall affix the seal of the company to all certificates of stock,
when signed by the president and treasurer ; he shall have charge of
the certificate book and such other books and papers as the board may
direct; he shall attend to such correspondence as may be assigned
to him, and perform all the duties incidental to his office. He
shall also keep a stock-book, containing’ the names, alphabetically

-arranged, of all persons who are stockholders of the corporation, .
showing their places of, residence, the number of shares of stock
held by ‘them respectively, the time when they respectively became
the owners thereof, and the amount paid thereon, and such book
-880 : By-Laws ror Stock CoRrPoRaTIoNs.

 

Forms — No. 9.

-shall be open for inspection as prescribed by section 29 of the Stock
Corporation Law. ‘

Arntioty [V.— Carrtrau Sroox.

Section 1. Subscriptions to the capital stock must be paid to the
treasurer at such time or times, and in such installments, as the
board of directors may by resolution require. Any failure to pay
an installment when required to be paid by the board of directors
shall work a forfeiture of such shares of stock in arrears, pursuant
to section 48 of the Stock Corporation Law.

Section 2. Certificates of stock shall be numbered and registered

in the order they are issued, and shall be signed by the president
or vice-president and by the secretary or treasurer, and the seal of
the corporation shall be affixed thereto. All certificates shall be
‘bound in a book, and shall be issued in consecutive: order there-
from, and in the margin thereof shall be entered the name of the
_ person owning the shares therein represented, the number of shares,
and the date thereof. All certificates exchanged or returned to
the corporation shall.be marked canceled, with the date of cancel-
lation, by the secretary, and shall be immediately pasted in the
certificate book, opposite the memorandum of its issue.

Section 3. Transfers of shares shall only be made upon the books
of the corporation by the holder in person or by power of attorney
duly executed and acknowledged’ and filed with the secretary of
the corporation, and on the surrender of the certificate or certifi-
cates of such shares.

Section 4. Whenever the capital stock of the corporation is
increased, each bona fide owner of its stock shall be entitled to.
purchase, at the par value thereof, an amount of stock in propor-
tion to the number of shares of stock he owns in the corporation
at the time of such increase.

ArtioLe V.— Drvipenps.

Section 1. Dividends shall be declared and paid out of the surplus
profits of the corporation as often and at sitch times as the board of
directors may determine, and in accordance with section 23 of the

Stock Corporation Law.
StaTemeEnt, ETO., BY Foreicn Corporation. 881

 

Forms—Nov. 10.

 

y
Article V1.— Lysrrcrors.

Section 1. Two inspectors of election shall be elected at each
annual meeting of stockholders to serve for one year, and if any
inspector shall refuse to serve or shall not be present, the meetin
may appoint an inspector in his place. ,

ArtioLe VII.—Szat.

Section 1. The seal of the corporation shall be in the form of a
circle, and shall bear the name of the corporation and the year of
‘its incorporation.

Articte VITI.— Amenpments.

Section 1. These by-laws may be amended at any stockholders’
meeting by a vote of the stockholders owning a majority of the
stock, represented either in person or by proxy, provided the pro-
posed amendment is inserted in the notice of such meeting. A
copy of such amended by-law shall be sent to each stockholder
within ten days after the adoption of the same.

,

By-laws are not requited to be filed in any public office, After adoption they
should be entered in the book of minutes of the corporation.

 

No. 10.

Statement and Designation by a Foreign Stock Corporation under the
General Corporation Law, section 16, and the Code of Civil Procedure,
section 432.

See the General Corporation Law, ante.

Pursuant to the provisions of section 16 of the General Corpora-
tion Law of the State of New York, and section 432 of the Code
of Civil Procedure of said State, the [insert corporate name]
‘Company, a stock corporation, organized and existing under and by
virtue of the laws of the State of [or Kingdom
of, a8 the case may be] does hereby makeva statement and designa-
tion under its corporate seal, to be filed with the annexed sworn
copy of its charter or certificate of incorporation, as follows, to wit:

Finst. That the business or objects of the said corporation which
it is engaged in carrying on (or which it proposes to carry on),

56
882 SraTEMENT, ETC., BY Foreign Corporation.

 

Forms — No. 10.

 

within the State of New York, is (or are) as follows: [State
business or objects. ]

Second. That the place within the State of New York which is
to be its principal place of business is [¢nsert location].

Third. That said corporation hereby designates [insert name
of person] as a person upon whom a summons may be served
within the State of New York, or any process or other paper,
whereby a special proceeding is commenced in a court, or before
an officer, except a proceeding to punish for contempt, and except
where special provisions for the service thereof is otherwise made
by law. * ,

Fourth. That said [insert name of person], so designated, has
an office or place of business at No. street, in the city [or
village] of »* the place where said corporation is to
have its principal place of business within the State of New York.t

Fifth. That the written consent of said [insert name] to such
designation, duly signed and acknowledged, is hereunto annexed.

Siath. That a sworn copy of the charter [or certificate of incor-
poration] of said incorporation is hereunto annexed.

In Wirvess Wuexzor, the [¢nsert corporate name] Company,
the corporation hereinbefore mentioned and described, has caused
this instrument to be executed by its president [or vice-president, '
or other acting head], and has caused its corporate seal to be

hereunto affixed this day of , 189
THE [insert corporate name] COMPANY,
(ner By [signature] President [or vice-
president, or title of other acting
head of corporation). ,
STATE OF ae
County of ‘
On the day of in the year , before
me personally came , to me known, who, being duly
sworn, did depose and say that he resided in ; that he

 

*If it is within the city, the street and street number, if any, or other suitable
designation of the particular locality should be stated.

+ The person so designated must have an office or place of business at the place
where such corporation is to have its principal place of business within the State.
StaTEMENT, ETC.,'BY ForEIGN CoRPORATIONS. 883

 

Forms — No. 10.

is the [president or other officer] of the [name of corporation],
the corporation described in and which executed the above instru-
ment ; that he knew the seal of said corporation ; that the seal affixed
to said instrument was such corporate seal; that it was so affixed
. by order of the board of directors of said corporation, and that he
signed his name thereto by like order.

[Signatur’ and office of officer taking acknowledgment.]

Consent to be Attached to Foregoing Certificate.

I, [insert name], the person designated in the foregoing instru-
ment as a person upon whom a summons or any process, as therein
mentioned, against the [isert name of corporation] may. be
served within the State of New York, do hereby consent to such
designation.

In Witness Wuerzor, I have hereunto set my hand this

day of , 189 .
[Signature.]
Starz or New Yor«x, bes ;
County of
On this day of , 189 , before me personally
came , to me known to be the person described

in and who signed the foregoing consent, and he acknowledged to
me that he signed and executed the same for the uses and purposes
therein mentioned.

Notary Public,
County, N. ¥.
RR4 STATEMENT, ETC., BY ForEIGN CoRPORATIONS.

 

Forms — No. 11.

 

Sworn Copy of Charter or Certificate of Incorporation to he Attached
to Foregoing Certificate.

[Here append copy of the charter or certificate of incorporation. |]

Oath to be Annexed to Copy of Charter or Certificate of Incorporation.

Srave oF ; { ae
County of ‘ 7

[Insert name], being duly sworn, deposes and says, that he is
the secretary [or other officer] of [insert name of corporation]
Company, a corporation organized under the laws of the State
of ; that the foregoing is a true copy of the charter
[or certificate of incorporation] of said corporation, and of the
whole thereof. .

[Signature.]
Sworn to before me this }

day of , 189
[Signature of Notary.]

The foregoing papers should be attached so as to constitute one complete
instrument, and filed with the Secretary of State, who will thereupon issue the
certificate of authority,

The fees at the office of the Secretary of State are eleven dollars. (Executive
‘Law, L. 1892, ch. 683, § 26, subds. 7 and 13.) :

A certified copy of the certificate of incorporation will not suffice. The act
requires a sworn copy.

In case an acknowledgment or affidavit is taken before a notary public or justice
of the peace in another state, the act of such person should be authenticated by .
the certificate of the county clerk. No certificate of a county clerk is necessary
‘when such acknowledgment or affidavit is taken in another state by a commis-
sioner of deeds acting under appointment from the Governor of the State of New
York.

No. 11.
Resolution of Board of Directors of a Foreign Corporation.

Resolved, That the president [or vice-president, or as the case
may bv,] of the [insert corporate name] be and he is hereby author-
ized and directed to execute in the name and on behalf of said
corporation the statement required to be filed by foreign corpora-
= '
StaTEMENT, Ero., BY Fornian Corporations. 885

 

Forms — No. 12.

 

tions under the provisions of the General Corporation Law of the
State of New York, to attach the seal uf the corporation thereto,
and in said statement to designate [insert name of person] in the
manner prescribed by the Code of Civil Procedure as the person
‘upon whom process against the corporation may be served within
the State of New York, and further to do all acts and things neces-
ary to comply with the provisions of law in said State.

 

No. 12.

Revocation and New Designation by a Foreign Corporation.

Pursuant to the provisions of section 16 of General Corporation
‘Law of the State of New York, and section 432 of the Code of
‘Civil Procedure of said State, the [insert corporate name] Com-
_ pany, a stock corporation organized and existing under and by
virtue of the laws of the State of , does hereby certify
.as follows: ’

That said corporation hereby revokes the designation by it
heretofore made of [insert name of person], as the person upon
whom process against the said corporation may be served within -
‘the State of New York. :

That in the place and stead of said designation, hereby revoked,
‘the said [insert corporate name] Company hereby designates
[insert name of person] as the person upon whom a summons

‘against said corporation may be served within the State of New
York, or any process or other paper, whereby a special proceeding
is commenced in a court, or before an officer, except a proceeding
to punish for contempt, and’ except where special provision for the
‘service thereof is otherwise made by law. ’

That the said [¢nsert name], hereby designated, has an office or
place of business at No. : street, in the city [or
village] of , the place where said corporation is to
have its principal place of business within the State of New York.

That the written consent of said [insert nume] to such designa-
tion, duly signed and acknowledged, is hereto annexed.
886 Statement, ETc., By Forrian Corporations.

 

Forms— No. 18.

 

In Wirness Wuereor, the [insert corporate name] Company, '
the corporation hereinbefore mentioned and described, has caused
this instrument to be executed by its president [or vice-president,
or other acting head], and has caused its corporate seal to be here-

unto affixed ‘this day of , 189
; THE [¢nsert. corporate name] COMPANY,
[ax By [signature] President [or vice-

president or title of other acting
head of corporation. |
[Attach proof of execution, consent of person designated and’
acknowledgment asin form No. 10.]

This certificate, when properly executed, is to be filed in the office of the.
Secretary. of State. No fee is payable.

 

No. 13.
Certificate of Removal of Office of Designee.
See the General Corporation Law, § 16. ‘

Tuts 1s To certiFy, That I, , the person desig--
nated by the Company, a stock corporation.
organized and existing under the laws of the State of
by a certain certificate filed in the office of the Secretary of the
State of New York on , 18 ,as the person upon whom
process against said corporation, may be served within the State of:
New York, have removed my office and place of business within.

the State of New York from No. street in the city [or-
village] of , to No. street, in said city,.
[or village] and that from and after the day
of , 18 , my office and place of business will be at:
said No. street in the city [or-willage] of

In Wrrness Wuerzor, I have hereto set my hand at
this day of gi8 %

La

[Signature]
Proxy From A STOCKHOLDER, 887

 

Forms— No. 14.

Strate or New A aa
le @

County of 5
On this day of , 18 , before me personally
appeared , to me known to be the person described in

and who executed the foregoing certificate and acknowledged to

me that he executed the same for the uses and purposes therein set
forth.

[Signature of Notary Public.]

The foregoing is to be filed in the office of the Secretary of State. No fee ie
payable.

 

No. 14.
Form of Proxy from a Stockholder.

See the General Corporation Law, § 21.

~

Kwow ALL MEN By THESE PRESENTS, That I, <<"
do hereby constitute and appoint C. D. to be my lawful attorney,
substitute and proxy for me, and in my name to vote upon all the
stock held by me in [énsert name of corporation] at the annual
meeting of stockholders of such corporation [or at a special
meeting of such corporation, as the case may be,] to be held on
‘the day of , 189 , and at any adjourned
meeting thereof, as fully and with the same effect as I might or
-eould do were I personally present at'such meeting; and I hereby
revoke any proxy or proxies heretofore given by me to any person
or persons whatsoever. .

In Wirness Wuerxror, I have hereunto 'set my hand and seal
this day of » 189+.

[Signature] [n8.]
In presence of

_All proxies must be filed in the office of the corporation,
888 Proxies; OatH oF CHALLENGED VOTER.

 

Forms — Nos. 15, 16,°17.

No. 15.
Form of Proxy from a Bondholder.
See the General Corporation Law, § 21,

Know aLL MEN BY THESE PRESENTS, That I [insert name], do.
hereby constitute and appoint C. D. to be my lawful attorney,
substitute and proxy for me, and in my name to vote upon all the
bonds held by me in [insert name of company], at a meeting of
the bondholders of such: corporation, to be held on [proceed as.
in form No. 14].

See note to preceding form.

No. 16.
Form of Proxy from a Member of _a Non-Stock Corporation.
See the General Corporation Law, § 21.

KNow ALL MEN BY THESE PRESENTS, That I [insert name], do
hereby constitute and appoint C. D. to’ be my lawful attorney,
substitute and proxy for me, and in my name to vote at the annual
meeting [or at a special meeting, as the case may be,] of the
members of [insert name of corporation], to be held on the [pro-
ceed as in form No. 14].

See note to form No. 14.

No, 17.
Oath of Challenged Voter.
See the General Corporation Law, § 22.
State or New York, bs
County of

I do solemnly swear that in voting at this election I have not,.
either directly, indirectly or impliedly, received any promise or-
Proxies; Oaru or Onatteneup VoTER. 889
= burns — a. a

any sum of money, or daything ae value to iathacties the giving of
my vote or votes at this meeting, or as a consideration therefor.
[Signature of Voter.]
Subscribed and sworn to. before me, ’
this day of , 19 \

Inspector of Election.

The oath taken as above must be filed in the office of the corporation.

No. 18.
Oath of Challenged Proxy.
See the General Corporation Law, § 22.

Stats or New York,
88:
, County of

I do solemnly swear that I have not, either directly, indirectly or.
impliedly, given any promise or any sum of money or anything of
value to induce the giving of a proxy to me to vote at this election, |
or received any promise or any sum of money or anything of value
to influence the giving of my vote at this meeting, or as a con-
sideration therefor. c $

. [Signature of Proxy. ]

Subscribed and sworn to before me,
this day of , 19 y

eee eee eee ene ee reny *

I nspector of Election.
. The oath taken as above must be filed in the office of the corporation.

\
\
890 SproraL Exzcrion or Drrectors.

 

‘Forms — Nos. 19, 20.

 

No. 19.
Notice of Special Election of Directors.
See the General Corporation Law, § 24+

To the stockholders * of the [insert corporate name]:

Notice is hereby given that the election of directors for the
[insert corporate name] not having been held on the day designated
in the by-laws, a meeting of the members of said corporation, for
the purpose of electing directors thereof, will be held at the oftice

of said corporation, No. street, in the [city or
village] of , on the day of 189 ,
at o’clock in the noon, °
Dated » 190
' A. B.,
Secretary.
No. 20.

Notice of Special Election by a Stockholder.

See the General Corporation Law, § 24.

To the stockholders * of the [énsert corporate name]:

Notice is hereby given that the election of directors for the
[insert corporate name] not having been held on the day designated
in the by-laws, and the directors not having within one month
thereafter called a special election [or the meeting held on (insert
date) having resulted in a failure to elect directors], a meeting of
the members of said corporation for the purpose of electing
directors thereof will be held at the office of said corporation,

No. street, in the of » on
the day of » 189 , at o’clock in
the noon,
Dated 3190 .
A. B.,

Stockholder * of said Corporation.

 

*Use the word “member ™ if a non-stock corporation.
Petition to:Ser Ase Exection. 891

 

Forrhs — Nos. 21, 22.

 

No. 21.
Sworn Statement of Voter.
See the General Corporation Law, § 26,

Starz or New Yorx, me
County of j =;

A. B., being duly sworn, deposes and says, that he is a member
of the [insert corporate name]; *that the number of shares of
stock owned by him and standing in his name on the books of such
corporation is [state number], and that the whole number of shares
of stock of such corporation outstanding is ‘Lor 4s

unknown to deponent].
° A. B.
Sworn to before me this day

of » 190
[Segnature of notary. |

The imspectors must file such statement, with a certificate of the result of the
election, verified by them, in the office of the clerk of the county in which the
election is held. For form of inspectors’ certificate, see forms Nos. 39 and 40. .

 

No. 22.
Petition to Set Aside Election of Directors.
See the Genera? Corporation Law, § 27.
.
In THE Marrer’ or tax ELECTION oF
Drrecrors :
OF THE

[insert corporate name] CoMPaNny.

 

To the Supfeme Court of the State of New York:

The petition of [insert name], a stockholder in, the [insert name
of corporation], respectfully shows to this court: That the [cnsert
corporate name] was on the day of , 189 , and
still is, a corporation duly organized and existing pursuant to and
by virtue of the provisions of [state the act] of the State of New

 

* Omit all succeeding the * if a non-stock corporation.
892 Petition to Ser Asipe Exzction.

 

Forms — No. 22.

 

York, and the acts amendatory thereof and supplemental thereto,
for the purpose of [state business] and is now carrying on such.
business. '

That the principal place of business of such corporation is located
at [insert location].

And the petitioner further shows that on the day
of , 189 , at the office of such corporation, an election
of directors for such corporation was assumed to be held by virtue:
of its by-laws, and the following persons were assumed to have been
elected such directors thereat, to-wit: [Jnsert names], and claiming
to be directors by virtue of such alleged election said persons
organized as a board, and assumed to act as such, and that hereto
annexed and marked “Exhibit _” is a copy of the record of such
alleged election. :

That at said alleged election other persons, stockholders of such
corporation, and qualified to act as directors thereof, to-wit: [Znsert
names], each of whom then was and now is the lawful owner and
holder of at least shares of its capital stock, were voted for by
duly qualified voters.

That said alleged election and the proceedings, acts and matters
touching the same were illegal and invalid for the following
reason: [Set forth the irregularities].

And the petitioner further shows that at the time of such alleged
election and for more than ten days previous thereto, the petitioner
was, ever since has been and now is a stockholder in such corpo-
ration, being the lawful owner and holder of shares of the
capital stock thereof, that he was present and objected to the said
illegal proceedings and acts at such election.

That your petitioner is aggrieved by, and complains of, such
election and the proceedings, acts and matters touching the same,
and alleges that his right to vote was infringed by such illegal
proceedings and the value of his stock has been injuriously affected
by the acts of said persons assuming to act as directors by virtue of
said illegal proceedings.

That notice of days to the adverse party, or to those to
be affected by this application, and to said corporation has been given
as appears by the affidavit hereto annexed, marked “ Exhibit -
Extension or Existence. 893:

 

Forms — No. 23.

 

Wherefore the petitioner prays that such election may be declared.
by this court to be irregular and of no effect, and be set, aside and.
the offices of all such directors be deelared to be vacated, and that.
all such persons assuming to be directors cease to act as such, and.
that a new election for the directors of such corporation be ordered
by this court, and that inspectors for such election be appointed.
by the court, and for such further relief as right and justice-
may require. ,

A. B,
Attorney for Petitioner,

, - Office and post-office address :

State or New Yor, t is
County of

[Insert name], being duly sworn, says that he has read the:
foregoing petition, and knows the contents thereof, and that the-
same is true of his own knowledge, except as to the matters therein

‘stated to be alleged upon information and belief, and as to those-

matters, he believes it to be true. :
[Signature.]}
Sworn to before me this day }
of - , 18
[Signature of Notary.]

 

No. 23.
. Certificate of Extension of Corporate Existence.

See the General Corporation Law, § 32, ~

We, the undersigned [insert name], President [or a vice-presi-
dent] and [insert name] Secretary [or an assistant secretary] of
the [name of corporation], a domestic stock corporation, do hereby
certify, under the seal of said corporation, as follows, to-wit: ~

" That the consent of the stockholders of said corporation owning
at least two-thirds in amount of its capital stock has been given
in writing [or by vote at a special meeting of the :stockholders:
called for that purpose, upon the same notice as that required for
the annual meetings of the corporation] to extend the existence of

= f .
894 Extension oF EXISTENCE.

 

Forms — No. 23.

 

said corporation for a term of years beyond the time
specified in its original certificate of incorporation [or for a further
term of years beyond the time spectfied in a certificate of,
extension of corporate existence heretofore filed].

That such written consent [or that a copy of such written con-
sent, if desired] of said stockholders is hereto annexed.

[Or, in case of a vote, that a copy of the resolution adopted at
said meeting of stockholders is hereto annexed. |

In Wityess Wuereor, This certificate under the seal of said

corporation has been subscribed by us, this day of :
190 .
Corporate cad ilies President [or a vice-president].
seal Jaret Secretary [or an assistant secretary].

Srate or New York, re

County of

On this day of , 190 , before me person-
ally came and , to me known and known

to me to be the individuals described in and who executed the fore-
going certificate, and they severally acknowledged to me that they
executed the same.

Notary Public, '
County, N. Y.

é
The fee at the office of the Secretary of State upon above certificate is fif-
teen cents for each folio of 100 words contained therein. At the county clerk’s
office the fee is six cents for filing and ten cents per folio for recording.

Form or Consent in WRITING.

We, the undersigned, being stockholders of the [ensert corporate
name], a domestic stock corporation, and each owning the number
of shares of stock in such corporation set opposite our respective
signatures hereto, and together owning at least two-thirds of the
eapital stock of such corporation, to-wit, shares of the total
of shares into which such capital stock is divided, do hereby
certify, pursuant to the General Corporation Law of the State of .
New York, that we severally consent that the corporate existence
Consent TO MortTe@ace. 895.

 

Forms — No. 24.

 

of such corporation be extended for the term of years be-
yond the time specified in its original certificate of incorporation
[or for a further term of years beyond the tume speci-
fied im a certificate of extension of corporate existence heretofore:
filed].
’ In Witwess Wuereor, We have hereunto set our hands to this
consent in duplicate, and the number of shares of stock owned by
us, respectively, in such company, this day of

190. :

[Signatures of Stockholders.]

ResouurTion For Extension or. EXISTENCE.

REsoLvep, That we do hereby consent that the corporate exist-

ence of the ~Company be extended for the term of

years beyond the time specified in its original certificate

of incorporation [or for a further term of years beyond the time .

specified in a certificate of extension of corporate existence here-
tofore filed].

No. 24.
. Consent to Mortgage.

t See the Stock Corporation Law, § 2.

We, the undersigned stockholders of [insert name of company},
a stock corporation organized and existing under and by virtue of
the laws of the State of New York, having a capital stock of
[insert amount] dollars, divided into [insert number] shares of
the par value of [insert amount] dollars each, and being stock-
holders owning at least two-thirds of the stock of said corporation,
- Do Heresy ,Consent that said ‘corporation may make, execute
and deliver a mortgage or deed of trust constituting a first lien
upon all its property and franchises to [insert name], as trustee,
said mortgage or deed of trust to be dated on the | day
of ,,190 , and to be for the sum ‘of [insert amount]
dollars, and aonditiowted as security for the payment of [insert
amount] in bonds to be issued by said [insert corporate name] as
follows, to-wit: [Insert number] bonds of dollars each,
-896 Consent To Morreace.

 

Forms — No. 24.

 

“numbered from to , inclusive, and bonds
of dollars each, numbered from to 5
inclusive. Said bonds to be dated the day of ;
190 , and to become due and payable in years from said
date, and to bear interest from the day of :
190 , until the maturity thereof, at the rate of per cent
per annum, payable semi-annually on the first day of
and in each year. .

In Witness WHEREor, we have hereunto set our hands and the
_number of share8 of stock owned by us, respectively, in said cor-
poration.
Dated this day of , 190,
[Signatures of Stockholders. ]

‘State or New Yorx, 2
County of

On this day of , 190, before me person-
ally came A. B., C. D., E. F. and G. Ha, to me known and known
to me to be the persons described in and who made and signed the
foregoing certificate and severally duly acknowledged to me that
they had made, signed and executed the same for the uses and
purposes therein set forth. ‘
Notary Public,

County, N. Y.

State or New York, bs:

County of

A. B., being duly sworn, deposes and says that he is the treasurer
of the [insert corporate name of company], referred to in the fore-
going consent; that he is the custodian of the stock book of such
corporation; that the persons, who have subscribed the foregoing
consent and acknowledged the execution thereof, are the owners
upon the books of such corporation of the number of shares of
stock therein set opposite their respective signatures to the fore-
Consent to Morteace; Snort Form. 897

Forms — Nos. 25, 26.

going consent, being at least two-thirds in amount of the capital
‘stock of such corporation. A. B.
Sworn to before me, this day

of , 190.

[Signature of Notary. ]

The foregoing affidavit of the custodian of the stock book is not a statutory
requirement, It was prepared by the author and first appeared in his “ Man-
ual of Corporation Laws” (1890), and has since been quite generally adopted.

 

No. 25.
Short Form of Consent to mortgage.

We, the undersigned, stockholders, owning at least two-thirds of
the stock of the [insert corporate name] do hereby consent to the
execution and delivery by said corporation of a mortgage upon all
its property and franchises to [insert name], as trustee, to secure
the payment of the bonds of said corporation to the amount
of dollars.

In Wityvess WHEREOF, etc., as in form No. 24.

[Add acknowledgment and affidavit as above stated. ]

 

No. 26.
Certificate of Consent to Mortgage.

Tuts 1s To Crrriry that the holders of not less than two-thirds
of the capital stock of the [insert corporate name] Company, a
corporation organized and existing under the laws of the State of
‘New York, having its principal place of business in the city of

, county of . , and State of New York,

‘have given their consent to the mortgage or deed of trust made and
-executed by the [insert corparate name] Company to the 7
as. trustee, bearing date the day of 7 180»

and that such consent was given by such stockholders in writing

[or by a vote at a special meeting of the stockholders called for

that purpose, upon the same notice as that required for the annual
meetings of the corporation], in.pursuance of the provisions of sec-

‘ 57
898 Corporation MorrTeaae.

 

Forms — No. 26.

 

tion 2, chapter 36 of the General Laws of the State of New York,
known as the Stock Corporation Law.

In Witness Wuereor, the Company has caused
this certificate to be subscribed and acknowledged by its president
[or vice-president] and by its secretary [or assistant secretary],
and its corporate seal to be hereunto affixed, attested by its secre-
tary, the day of , 190.

[Insert corporate name] Company,
' By [Signature],
President [or vice-president].

[Seal.] [Signature],
Attest : Secretary [or assistant secretary].
[Sigrtature.]
Secretary.
Srate or New York, F
88.2
County of
On this day of , in the year one thousand
nine hundred and » before me personally came
, and , to me known, who being by me
duly severally sworn, did depose and say, each for himself, that
the said resided in the city of , and State of
. and the said "resided in , State of
; that the said is the president of the
‘Company, and the said is the secretary of

Company, the corporation described in and which executed the
above instrument; that he knew the seal of said corporation; that
the seal affixed to said instrument was such corporate seal, and
was so affixed by order of the board of directors of said corpora-
tion, and that he signed his name thereto by like order.

Notary Public.
Strate or New York, bs ;

County of
On this day of , 190 , before me person-
ally came [insert names of subscribers to certificate], to me per-

’
Corporation Mortaace. 899

 

Forms — No. 27.

 

sonally known to be the persons described in and who made and
signed the foregoing certificate and severally duly acknowledged
to me that they had*made, signed and executed the same for the
uses and purposes therein set forth,

[Signature of Notary.]

No. 27.

Corporation Mortgage.

This Indenture, made this day of , 190 ,
by and between the [insert corporate name], a stock corporation
duly organized and existing under and by virtue of the laws of the
State of New York, and located and having its principal office in
the of ny county of '  , State of New
York, party of the first part, and , as trustee, for
the purpose hereinafter set forth, party of the second part.

Witnesseth :

Whereas, The said party of the first part desires to raise money
for the purpose of discharging and paying certain debts against
said corporation, heretofore necessarily ineurred in its business,
and to borrow money for the transaction of its business and for
the exercise of its corporate rights, privileges and franchises,
and for other lawful purposes of its incorporation, has, by a reso-
lution of its board of directors [or trustees], authorized the mak- .
ing and issuing of its negotiable coupon bonds, each of the denomi-
nation -of dollars ($ ), numbered consecu-
tively from C 1 upward, and of its registered bonds, each of the
denomination of dollars ($ ), or multiples
of $ , numbered consecutively from R 1 upward, such
coupon and registered bonds to amount in the aggregate to ‘
dollars ($ ), and to bear date the day of. ;
190 , payable years from their date in gold coin of the

~
900 Corporation Mortaage.

 

Forms — No. 27.

 

United States of the present standard of weight and fineness, and
bearing interest at the rate of per cent per annum, payable
in like gold coin semi-annually oa the first days of

and , Tespectively ;

And, Whereas, All of said bonds are to be sealed with the cor-
porate seal of said company, signed by its president
or vice-president, and secretary, with the certificate of the trustee

, hereunder indorsed thereon, and each of said coupon bonds to
have interest coupons attached, which said bonds, coupons and cer-
tificates are all to be substantially of the following tenor, that is
to say:

[For forms of bonds, coupons and certificates, see forms Nos.
28, 29, 30 and 31.]

And, Whereas, The written, consent of the stockholders owning
-at least two-thirds of the stock of said Company has
been given to the execution of this mortgage or deed of trust and
to the issue and execution of said bonds, and a certificate under
the seal of said Company that such consent was so
given, subscribed and acknowledged by the president and secretary
of said Company has been filed and recorded in the
office of the clerk of the county of , in which said
county said company has its principal place of business [or the
consent of the stockholders owning at least two-thirds of the stock
of said Company has been given to the execution of
this mortgage or deed of trust and to the issue and execution of
said bonds by vote at a special meeting of the stockholders
of said company called for that purpose, upon the same no-
tice as that required for the annual meeting of the corpora-
. lion, and a certificate under the seal of said
Company that such consent was so given, subscribed and ac-
‘knowledged by the president and secretary of said
Company has been filed and recorded in the office of the

-
Corporation Mortcace. 901

 

Forms — No. 27.

 

clerk of the county of —. , in which said county said com:
pany has its principal place of business. |

And, Whereas, At a meeting duly called for that purpose, this
anortgage or deed of trust was submitted to the board of directors

{or trustees] of the Company, and it was then and there
duly resolved that this mortgage or deed of trust be executed by
the president of said Company, in its name and on its

behalf, and that the corporate seal of said company be hereunto
affixed and attested by the secretary, and that this mortgage or deed
of trust be duly delivered an behalf of said ey to

trustee, herein mentioned.

Now, therefore, this Indenture Witnesseth: That, in order to
secure the payment of the principal and interest of the bonds afore- —
said at any time outstanding according to their tenor and effect, and
the fulfillment of the conditions and covenants hereinafter con-
‘tained, and irrespective of their time of issue and tor and in’
consideration of the purchase and acceptance of said bonds by the
holders thereof, and of the sum of one dollar to it duly paid by
the trustee, party of the second ‘part, at or before the ensealing
of these presents, the receipt whereof is hereby acknowledged,
the Company, party of the first part, has granted, bar-
gained, sold, aliened, remised, conveyed and confirmed, assigned,
transferred and set over, and by these presents does grant, bargain,
sell, alien, remise, convey and confirm, assign, transfer and set over,
unto the said trustee, the party of the second part, and to his suc-
cessor or successors, forever, all and singular the following described
properties: [Jnsert description.]

Together with all and singular the tenements, hereditaments and
appurtenances belonging to the property hereby conveyed, or in
anywise thereto appertaining, and the reversions, remainders, tolls,
incomes, rents, issues and profits thereof; and also all the estate,
right, title, interest, property, possession, claim and demand what-
‘soever, as well in law as in equity, of the party of the first part of,
in and to the same, and any and every part thereof with the appur-
tenances; and also all and every other estate, right, title and
interest, property and appurtenances which the said party of the
Jjrst part may hereafter acquire.
i

3 di

fed ba: sit

902 Corporation Morreace.

 

Forms — No. 27.

 

To have and to hold the said above-described premises, property,
| nights, franchises and appurtenances, unto tlfe said party of the
second part, and his lawful successor or successors, forever.

But in trust, nevertheless, for the benefit, security and protection

of the persons and corporations, firms and partnerships who may be
or become holders of the aforesaid bonds and interest eoupons, or

:

be any-ore éithér of them;and for enforcing the payment thereof, when
~, «.« payable, according to the true intent and meaning of the stipula-
3 tions of this mertgage-er deed of trust, and of said bonds and said

>

interest eoupens, and without preference, priority or distinction as:

£ Se lien or otherwise of any of said bonds over any of the others, by

Ads fee

reason of priority in the time of the issue or negotiation thereof,
or otherwise; provided, however, and these presents are upon the
(ex ress condition, that if the party of the first part, its successors
or-assigns, shall well and truly pay, or cause to be paid, unto the
holders of the bonds to be issued hereunder, the principal and
interest to become due thereon to said holders at the times and in
the manner stipulated in said bonds and in-said interest-coupons.
according to the true intent and meaning thereof, and shall well
and truly keep, observe and perform all and singular the covenants,
promises and conditions in the said bonds hereby secured and in
this indenture expressed to be kept, observed and performed by or
on the part of the said party of the first part, then these presents.
_and the estate and right thereby granted shall cease, determine and |
be void, otherwise to remain in full force. And it is hereby
expressly covenanted and agreed, by and between the parties hereto,
and the company, for itself, its successors and assipns,.
doth hereby covenant and agree, and the trustee covenanting for:
himself, his successor or suecessors in the trust hereby created, with
and on behalf of the respective persons, corporations, firms: and
partnerships who shall hold any of said bonds er eouporns, that the
further trusts, uses, purp sep, conditions and covenants upon which
the said property and~franchises- hereby mortgaged-and conveyed
are to be held by the trustee and subject to which the said bonds.
secured hereby are to be issued and to be held by each and every
holder thereof, are as follows, that is to say:
First. This mertgage~or- deed of trust is to be a continuing lien
to secure the full and final payment of the principal and interest.
Corporation Mortage. 9038

 

Forms— No. 27. as

 

of all bonds alieh may em time to time be issued and negotiated

‘bonds so issued and negotiated shall not exceed $ 2 c.c<., and to
‘be issued upon the terms and of the denominations, and ie mature

aS
ander the. same, but so that the total aggregate amount of said . i

times hereinbefore stated, with interest payable as so stated.

Second. The coupon bonds and—registered_bonds- intended to « >

‘be secured ‘hereby shall, from time to time, be executed by
thefret fA) a+; company and delivered to the trustee, to be. ¥

certified and delivered by him, and only such of said bonds as shall g

be so certified by the trustee, by signing the certificate indorsed “~
thereon, shall be secured. by this mortgage-or deed of trust or be 3 ‘g
entitled to any lien or benefit’ thereunder; and such certifi¢ate of .
the trustee shail be conclusive evidence that the bonds so certified “
have been duly issued hereunder and are entitled to the benefit, OE is
the trust hereby created. bank oe trede ofa’ ae ee

83

a

Fhavd., The of pants Company covenants and agrees that oe

will fully and’entirely pay off and satisfy the whole of said bonds
to be issued hereunder, principal and interest, according to the
terms thereof, without delay and without deduction from either
said principal or interest for any taxes, assessments and govern-
mental or other charges now or hereafter imposed upon the said
bonds or any interest thereon, either by the United States, or by

any State, county or municipal'authority, whiclr the= _.-Com=.

eer ee We io a ee oe

Fowrth, Until default shall be made in the payment of the
principal or interest of any of the bonds hereby secured, or any’
part Cherest. as and when the same shall become due and payable,’ .
-or in the performance or observance of any condition, covenant,
agreement or \requirement of said bonds or of this mortgage or
deed of trust, the trustee shall permit and suffer the Com-
pany, its successors and assigns to possess, operate and enjoy the
real and personal \property hereby mortgaged, with the appurte-
nances thereunto bélonging, in any manner not inconsistent with

‘ these presents, and to receive and use the ae incomes, rents,
issues and profits thereof, /

Fifth. When and as the interest coupon or—te-be

An
snnexed—ie- the bonds secured hereby hate: are paid by
©

904 Corporation Morte@ace.

‘ Forms — No. 27. ‘bie.
the faa! ~a!, Company or by any person or cprporation for it or
on-is behalf, they shall be cancéled. All &Supons-maturing before.
the delivery of bonds by the party of the second part shall be ext
offand canceled by the party of the second part before the delivery
of such bonds.

+ Stath. oe cake Company covenants and agrees thatit-\
shall and will, from time to time, pay and discharge, before the
same shall fall into arrears, all taxes, water rates, assessments and
governmental charges, lawfully imposed upon the franchises and
lands, and other hereby mortgaged premises, or upon any part.
thereof, the lien of which might or could be held to be superior to.

 

‘the lien hereof, and will pay and discharge all claims of every kind.

and nature which may hereafter become a lien upon the hereby
mortgaged premises, or any part thereof, prior to the lien hereof,
so that the priority of this mortgage may be duly preserved, and
will keep said mortgaged premises in good order and repair and
shall not, and will not, create or suffer to be created any mechanics’,
laborers’ or other lien or charge whatsoever upon the mortgaged
premises or any part thereof, which might or could be prior to the
lien of these presents, or do or sutfer any matter or thing whereby
the lien of these presents might or could be impaired, until the
bonds hereby secured, with all interest accrued thereon shall be
fully paid and satisfied.

Seventh. The Company further covenants and agrees
that it shall and will at all times, until said bonds, hereby secured,,
with all interest accrued thereon, shall be fully paid and satisfied,

‘keep such parts of the said mortgaged premises or property as are:

liable to be destroyed or injured by fire, insured against loss by fire
in some solvent fire insurance company or companies authorized to-
transact business in the State of New York, and approved by the
trustee, to an amount equal to the insurable value of said property,
payable in case of loss to the trustee; and all moneys collected from
such insurance shall be held by the trustee for the further security
of the bondholders hereunder until the Company shall,,
after the fire, have applied an equal sum of money to the recon-
struction or repair of the part of the premises destroyed or injured,
or to the erection of other permane: it improvements upon such
Corporation Morteaae. 905

 

Forms — No. 27.

 

mortgaged premises ; “Whereupon from such insurance moneys held
by the trustee there shall be paid to the said Company,
from time to time, an amount equal to the amount so applied by it,
after the fire, to such reconstruction, repair or erection..

Kighth. The said fal po Gempany shall and will, from time
to time during the continuance of this trust and-mortgage, make, .
execute and deliver all such further instruments and conveyances as
may be necessary to vest in said trustee, and his successor or suc-
-eessors, the within described and-alsubsequently-acquired property
and-rights of property to facilitate the execution of said trust.

Ninth. It is further covénanted and agreed that the personal
property hereinbefore described and hereby conveyed, or intended
so to be, shall be real estate for all the purposes of this instrument, «
and shall be held.and taken to be\fixtures and appurtenances of the
mortgaged premises, and as a part thereof, and are to be used and
sold therewith and not separate therefrom, except as herein expressly
provided. |

Tenth. The said Company shall be permitted to alter,
remove, sell or dispose of any buildings, fixtures, machinery or other
appliances upon the mortgaged premises which cannot be advan-
tageously used in the judicious operation and management of the -
business of said company, provided that no such ‘sale shall be made
if it exceeds the sum of $ | , unless the written assent of the
trustee shall have first been jobtained, and, provided always. that ,
the said Company shall, and it hereby agrees that in such
ease it will, replace any buildings, fixtures, machinery or other appli- Pigs
ances removed, sold, or otherwise disposed of, by acquiring, subject
to this mortgage, other real estate, or placing upon the mortgaged
property, subject to this mortgage, other buildings, fixtures,
machinery or other appliances. equal in value to the value of the
property so removed, sold, or otherwise disposed of, or by paying
to the trustee the appraised value of such property, and any sum so
received by the trustee shall, upon request of said ' Com-
pany, be invested in bonds secured by this mortgage, or in bonds,
mortgages or securities authorized by law for the investment. of
funds of savings banks in the State of New York, which bonds,
‘mortgages or securities shall be held for the further security of the
906 Corporation Morteaae.

 

Forms — No. 27.

 

bonds secured by this mortgage; but until default in the payment
of the principal or interest of the bonds secured hereby, or some
part thereof, the interest.and income of sajd bonds, mortgages or
securities shall be paid to the Coimpany.

Eteventh. In case default shall be made in the payment of any
interest on any of said bunds secured hereby, as and when such
interest shall become due and secured, such default shall continue
for months, or in case default shall be made in the payment
of the principal of any of said bonds when the same shall mature or
otherwise become payable, then, and in every such case, the trustee
may, and upon the request of the holders of ~ in interest of
the bonds hereby secured and then outstanding, by an instrument
or concurrent instruments in writing, signed by them or by their

attorneys in fact duly authorized for that purpose, shall, with or’

without-entry, sell all the premises, estate, property, rights and
franchises-hereby conveyed, or so intended to be, at public auction
at , or other suitable place in the city of after

giving notice of such sale as required by law, and also notice by:

publication in at least two newspapers published in , at
least once a week for consecutive weeks next preceding |

thik cake

-such sale, and from time to time to adjourn such sale or sales in his Gi

v discretion, and without further notice to hold such adjourned sale
or sales, and upon any sale or sales hereunder to make and deliver

to the purchaser and purchasers of the premises, estate, property, re

rights and franchises so sold a good and sufficient deed or deeds for
the same, which sale shall be a perpetual bar, both in law and in equity
against the said u “, .' Company-and all persons and corporations
lawfully claiming, or 40 claim by, through or under it, and, upon
the making of any such sale, the principal of all the bonds hereby
secured and then outstanding shall forthwith become due and pay-
able, anything in said bonds to the contrary notwithstanding, and
upon the making of any such sale, the said trustee shall apply the
proceeds thereof as follows, to wit:

1. To the payment of the costs and expenses of such sale or

¢

sales, including a reasonable compensation to such trustee, hiss’

agents, attorneys and counsel, and all expenses, liabilities and
advances made and incurred by such trustee in managing and
Corporation Morteace. 907

Forms — No. 27.

maintaining the property hereby conveyed, or intended to be, and all
taxes and assessments superior to the lien of these presents.

2. To the payment of the whole amount of principal and interest
‘which shall then be owing or unpaid upon the bonds secured
hereby, without any preference or priority whatever, whether the:
said principal by the tenor of said bonds, be then due or yet to
become due; and in case of the insufficiency of such proceeds to
pay in full the whole amount of such principal and interest owin
and unpaid upon the said bonds, then to the payment of suc,
principal and interest pro rata, without preference or priority, but
ratably, to the aggregate amount of such principal and accrued
and unpaid interest.

3. To pay over the surplus, if any, to whomsoever. maybe

és

lawfalty entitled to receive the same: (f. + peer! park, Poise Fae Von cages SS

“Fwelfth, It is further declared and saisel that the Baas of
the trustee, who shall make the sale, hereinbefore authorized, shall
_ be a sufficient discharge to the purchaser or purchasers at such sale
for his or their purchase money ; and such purchaser or purchasers,
his or their heirs or assigns, or personal representatives, shall not,
after paying such purchase money and receiving such receipt of
the trustee therefor, be obliged to see to the application of such
purchase money upon or for the trusts or purposes of these
presents, or be in anywise answerable for any loss, misapplication
or non-application of such purchase money by the trustee.

th. In case default shall be made in the payment of the
principal or interest of any of-said bonds when the same shall
become due and payable, or in the observance or performance of
any covenant or condition in said bonds or herein contained on the
part of the party of the first part, and such default shall continue

for months, it shall be the duty of, and it is hereby made
obligatory upon the trustee, upon the request in writing of the
holders of in interest of said bonds hereby secured and

then outstanding, and upon proper indemnification, to proceed
forthwith to enforce the rights of the said trustee and of the bond-
holders hereunder by sale or entry,. or both, according to such
requisition, or by judicial proceedings for such purpose, as he, being

PALES os eo

oe

ae Fete Ty Con,

Cr
908 Corporation Morre@ace.

 

Forms — No. 27.

 

advised by counsel learned in the law, shall deem most expedient in
the interests of the holders of the bonds secured hereby.

Fourteenth. The several remedies granted hereunder shall be
cumulative and not exclusive one of the other, and shall be in
addition to all other remedies to enforce the lien of these presents.

Fifteenth. In case of any default on its part, as aforesaid, the
party of the first part shall not, and will not, apply for or avail itself
of any appraisement, valuation, stay, extension or redemption laws,
now existing, or which may hereafter be passed, in order to prevent’
or hinder the enforcement or foreclosure of this mortgage or the
absolute sale of the premises hereby granted free from any right of
redemption, or the final and absolute putting into possession thereof
immediately after such sale the purchaser or purchasers thereof, but.
hereby waives the benetit of all guch laws.

Sixteenth. Upon the filing of a bill in equity or other commence-
ment of judicial proceedings to enforce the rights of the trustee or
of the bondholders under these presents, the said trustee shall be
entitled, as a matter of right, to the appointment of a receiver or
receivers of the property hereby mortgaged, and of the earnings,
income, rents, issues and profits thereof, pending such proceedings.

Seventeenth. Upon payment, when due, of all the principal and -
interest of all the bonds which shail have been issued hereunder, the
trustee shall, upon the written request of the ail fe 4< Company,
forthwith enter satisfaction~ of~this_mortgage npon—the—reeords,

and shall do, make, execute and deliver such deeds, acts, instruments
or assurances as may be it eee o vest all the mortgaged premises—
and property in the said 41. / », Company, its successors-and
assigns, free and discharged in te Nien of these presents.

Eighteenth. It is covenanted and agreed that the trustee shall
not be answerable for anything exeept gross negligence or willful
misconduct in the discharge: of tris“duties. And it is further cove-
nanted and agreéd that the trustee may resign and discharge

-Chitnself = the trust hereby created by notice in writing to
the frat ps. & Company to be given at least months before
such’ mignon shall take effect. And whenever notice of such
Corporation Morreaae. , 909

 

Forms—WNo. 27.

 

resignation is so given or a vacancy in the office of trustee hereunder:
shall occur, a new trustee shall be appointed as follows:

The Company covenants and agrees that it will pay to-
the trustee hereunder his reasonable fees and expenses in the
execution of the trusts hereby created.

Lastly. The trustee, party of the second part, hereby accepts.
the trust hereby, created and covenants faithfully to execute
the same. ‘

iy Wirness Wuereor, the party of the first part has caused
these presents to be signed by its president, and its corporate seal
to be hereunto affixed and attested by its secretary, and the party of
the second part, in token of his acceptance of the trust and obliga-
tions hereby imposed upon him, has signed and sealed the same, the:
day and year first herein written. ;

(ae | THE....... Reuse COMPANY.

BY acsiis Nese eiete , President.
[Signature of Trustee.] [L. 8.]

i pei ioie eae , Secretary.

State or New Yorx,

88. :

County of ‘

On the day of , in the year , before:
me personally came » to me known, who,

being by me duly sworn, did depose and say that he resided in

; that he is the (president or other officer) of
the (name of corporation), the corporation described in and which.
executed the above instrument; that he knew the seal of said cor-
poration; that the seal affixed to said instrument was such corporate

\
910 Morreagzs, Bonps, Ere.
Forms ~ No. 28.

seal; that it was so affixed by order of the board of directors of said
corporation, and that he signed his name thereto by like order.

Notary Public,
«spas. County, N. ¥.

If such corporation have no seal, that fact must be stated in place ef the
statements required respecting the seal.

[Add acknowledgment of Trustee.]

 

No. 28.
Form of Coupon Bond.

Unirep Srates or AMERIOA,
State of New York.
The [insert corporate name] Company.

First Mortgage Gold Coupon Bond. ~
NOs ss $

Know ALL MEN BY THESE PRESENTs, that the Company
is indebted, and for value received promises to pay to the bearer
hereof, or to the registered holder of this bond, if the same be

registered, the sum of dollars ($ ) in gold coin of the
United States of the present standard of weight and fineness, on
the day of , 18 , at the office of said company,
in the city of , with interest at the rate of per cent
per annum, payable semi-annually at said office, in like gold coin,
on the first days of and in each year, upon

surrender of the annexed coupons therefor as they severally mature.

* Both the principal and interest of this bond are payable with-
out deduction for any United States, State, municipal or other tax
or taxes which said ‘ , Company may be required to pay or
deduct therefrom under or by reason of any present or future law,
the said company hereby agreeing to pay such tax or taxes.
Morteace Bonps, ETO. 911

 

Forms — No. 28.

 

This bond is one of @ series of coupon and registered bonds of
the ” Company, bearing interest at the rate of per
cent per annum, issued or to be issued in pursuance of and subject
to the terms of the mortgage or deed of trust hereinafter referred
to, but so that the ageregate amount of said bonds, both coupon and
registered, shall not exceed the total sum of $ . Allof
said bonds are equally secured by a mortgage or deed of trust,
dated , 189 , executed by said Company
to of the city of , as trustee, conveying
the property and franchises of the Company men-
tioned in said’ mortgage or deed of trust, to which reference is
hereby made for a description of the property and franchises
mortgaged, and the nature and extent of the security, and the
rights of the holders of said bonds under the same, and the terms
and conditions upon which said bonds are issued and secured.*
This bond may be registered, in the name of the owner, on the
books of the company, such registration to be indorsed hereon, and
thereafter no transfer shall be valid unless made on the books of
the company by the registered owner and similarly indorsed ‘hereon,
but said bond may again be made payable to bearer by like transfer,
and thereafter pass by delivery until again registered. Notwith-
standing such registration the coupons hereon shall remain ‘and be
negotiable by delivery and payable to bearer on presentation.

This bond shall not become obligatory for any purpose until it
shall have been authenticated by the certificate, hereon indorsed, of
the trustee under said mortgage or deed of trust.

In Witness Wuunzor, the Couiany has. caused
these presents to be signed by its president or vice-president, and its
corporate seal to be hereunto affixed, and to be attested by its secre-
tary, and coupons for said interest, with the engraved signature of

its treasurer to be attached hereto, this day of , 189
oe THE .s2sc00a0 ase kes COMPANY.
; By scivuvuvewwen ning £ resident,

Attest :

erereuisiahe sete +, Secretary.
912 e Morraace Bonps, ETC.

 

Forms — Nos. 29, 30, 31.

No. 29.
Form of Interest Coupons, of Which the First is to be Payable ........--
eelacises ee 1, 18.....
On the first day of ,189 ,the © Company will
‘pay the bearer, at its office in the city of 8 in gold

coin, free from all taxes, being six months’ interest then due on its
First Mortgage Coupon Bond, No.

iA MN 2 f Treasurer. -
No. 30.
Form of Trustee’s Certificate.
This bond is one of the series of bonds described in the within
‘mentioned mortgage or deed of trust executed by the Com-

‘pany to the undersigned and duly recorded, and the holder hereof
is entitled to the benefit of the trust thereby created.

 

‘Trustee.
No. 31. f
Form of Registered Bond.
Umitep States or AMERIOa.
: State of New York.
The [insert corporate name] Company.
First Mortgage Gold Registered Bond,

NGinein nes Dist hiss

KNow ALL MEN BY THESE PRESENTS, that the Company
is indebted, and for value received, promises to pay to or
assigns the sum of dollars ($ ) in gold coin of the
United States of the present standard of weight and fineness, on
the day of » 19, at the office of said company
in the city _ , With interest at the rate of per cent

per annum, payable semi-annually at said office in like gold coin on
‘the first days of and in each year. [Follow form
Morteace Bonps, Ere. 913

 

Forms — Nos. 32, 33.

of coupon bonds between the * *,] This bond is transferable
by the holder hereof only in person or by attorney, duly authorized,
upon the books of the company at its office in the city of

‘This bond shall not become obligatory for any purpose until it ai
have been authenticated by the certificate thereon indorsed of the
trustee under said mortgage or deed of trust.

In Witness Wuereor, the Company has caused
these presents to be signed by its president or vice-president and its
corporate seal to be hereunto affixed, and to be ae by its

_ secretary, this day of , 189
(eat) TELE racecars .--.. COMPANY,
BYé vgisie s oi vescsery President.
Attest :

+ as ase aisle veug BOCHELTY.

 

No. 32.

Resolution Authorizing Corporation Note.

Resolved, That the president be and hereby is authorized to

 

‘make a contract for the purchase of for the use of this
-eorporation, and is hereby authorized in carrying out such purchase
to give notes of this corporation to the amount of dollars.
No. 38.
Promissory Note of Corporation.

Bisse wd Azzany, N. Y., , 5189

Four months after date, the [insert name of corporation]
promises to pay to the order of [name of payee], ; dollars,
at the Bank, Albany, N. Y.

Value received.
THE [insert corporate name] COMPANY,
By [signature], President.
_ Attest:
[Signature], Secretary.
58

\
914 CERTIFICATE OF INDEBTEDNESS.

 

Forms — No. 33a.

No. 33a.
Certificate of Indebtedness.
See Stock Corporation Law, § 40.

The Company, a stock corporation duly organized
and existing under and by virtue of the laws of the State of New
York, having its office and. place of business at the city of

in the county of , and State of New
York, hereby certifies that it is indebted unto in the
sum of dollars, for moneys loaned and advanced unto
it, which amount it hereby promises, covenants and agrees to pay
at its office, in the said city of , five years from date
hereof, on presentation and surrender of this certificate, with the
right, privilege and option, however, on the part of said company
to pay the whole or any part of the sum hereby agreed to be paid,
at any time prior to the expiration of said term of five years, with-
out notice, and upon such payment in full to demand delivery
and cancellation hereof.

Tus CrertiricaTe is transferable only on the books of the
company by the holder thereof, in person or by attorney, on the
surrender of this certificate.

In Witness WueEreor, the Company has caused
these presents to be executed for it and in its name, by its presi-
dent and treasurer, pursuant to a resolution of the board of direct-
ors of said company, duly adopted.

 

Whine Nene SRA Company,
BY Maw aie ae a » President.
And: by soo. setae , Treasurer
State or New York,
County of a
On the day of in the year , bee
fore me personally came , to me known, who, eae

duly sworn, did depose and say that he resided in

that he is the [president or other officer] of the [name of shepden
tion], the corporation described in and which executed the above
instrument; that he knew the seal of said corporation; that the
seal affixed to said instrument was such corporate seal; that it
was so affixed by order of the board of directors of said panporation,
and that he signed his name thereto by like order.

[Signature and office of officer taking acknowledgment. |

If such corporation have no seal, that fact must be stated in place of the
statements required respecting the seal. (L. 1896, ch. 547, § 258.)
4

CERTIFICATE OF REORGANIZATION. 915

 

Forms — No. 34.

 

No. 34.

Certificate of Incorporation by Purchasers of the. Property and Franchises
‘of a Stock Corporation. ’

See Stock Corporation Law, § 3.

We, the undersigned, two-thirds of whom are citizens of the

_United States ‘and at least one of us being a resident of the State

of New York, desiring to become a corporation, pursuant to the
provisions of the Stock Corporation Law, and to take and possess
the property and franchises of a domestic stock corporation sold
as hereinafter stated, do hereby make, acknowledge and file this
certificate for that purpose, and certify, as required by section 3
of said law, as follows:

That the property and franchises of [insert corporate name], a
domestic stock corporation, organized under chapter of the laws
of 19 , of the State of New York, entitled “ An act, ete. [stating
title], were, on the day of , 189 , duly sold
under and by-virtue of a judgment or decree of the Supreme Court
of said State of New York, rendered in an action in said court

between , plaintiffs, and , defendants,
dated and entered in the clerk’s office of the county of .
onthe ' ‘day of , 190.

The following is a brief dageei pion of the property thus sold:
[Insert description. ]

That at such sale the anderstonad, A. B., C. D., and E. F., be-
came the purchasers of and acquired the sronerty and fianclines
sold, and have associated with themselves the following persons:
[Insert names of associates, if any.]

That the name of the new corporation intended to be formed by
the filing of this certificate shall be [insert name of company].

That the place where its principal office is to be located is
[insert name of village, town or city].

That the maximum amount of its capital stock shall be -[insert
amount of capital stock], and the number of shares into which the
same shall be divided is [insert number of shares],* of which
i[insert amount]. dollars or. [insert number] shares shall be com-
mon stock, and [insért amount] dollars or [insert number] shares
shall be preferred stock. That the rights pertaining to each class
shall be as herein specified, to-wit: [Example given.]

The preferred stock herein provided for shall be entitled. to
non-cumulative annual dividends, at the rate of five per cent per
916 CrrtiFicaTE oF REORGANIZATION.

 

Forms —No. 34,

 

annum, out of the net earnings of all the properties of the new
corporation, as and when declared by the board of directors thereof,
in preference to any dividend or dividends upon the common
stock; and after said preferred stock shall have received five per
cent per annum, as above provided, the common stock shall be
entitled to a dividend for the same year, out of the like net
earnings as and when declared by said directors, up to five per’
cent, and any funds applicable to dividends in the same year, in
excess of the dividends as above provided, shall be divided equally,
per share, among the holders of the preferred and common stock,
as and when declared by said directors.*

That the number of directors who shall manage the affairs of
the new corporation shall: be [insert number, not less nor more
than the number required by law for the old corporation], and the
names and post-office addresses of the directors for the first year
are as follows:

Name. Post-office Address.
Me Bisidigtnes wbecmibertegueeieee, Bee aaemeensacess
O Dor cs eainsss Sa eraBrebrs asl eulaea es , a Seid wise wi vi ais’ ree
Wy Boss wie teocete wanes ois ava ei are ae ere Riis atone eaceeeceaneteests
Goce ten teke Reais demas e dies edietaarsie’ Paeowese oe
WL dechscush cca earela ware 6d wieterctals sieiecels pie w sees ears sicmusialicg ersialeies
6 ee ee eee 3 wes ob Sa iiaisial afateia a Sere eich Z
IMG Nevis wie ania iajess biaenateee aie moet 0 Wisiaie sedi ae eee se “eae
N Opneucea aise os ae eC Haeraeaire eee Mon bled eeteeusie ts aes
PQ cake en ed sue Gauiuedadckereraveiateet ate bwinipircwrarecazeiseteess

That the following plan or agreement was entered into at or
previous to such sale in anticipation of the formation of a new
corporation, and such purchase was made pursuant to it.

[ Here insert such plan or agreement, if any.]
In Wirness Wuereor, we, the undersigned, the said purchasers
and their said associates [¢f any] have made this certificate in dupli-

cate and have hereunto subscribed our names this ‘day of

, 189.
[Signatures of purchasers and associates.}

 

*If the corporation {s to have only one class of stock, omit the matter between the * * , and
etate that all the stock is to be common stock.
CerriricaTe or REoRGANIZATION. 917

 

Forms — No. 35.

 

i .
State or New Yorx, as

County of :
On the day of , in the year one thousand eight
-hundred and , before me personally came [znsert names

of purchasers and associates], to me known to be the individuals
‘described in, and who executed the foregoing certificate of incor-
poration, and_severally acknowledged that they executed the same
for the uses and purposes therein expresséd.

The number of purchasers and associates executing the above certificate
‘must aggregate not less than the number required by law for the incorporation
-of the kind of company to be formed by the filing of this certificate.

The fees, upon filing this certificate, are: Office of Secretary of State —
‘filing (except railroads), ten dollars; railroads, twenty-five dollars; recording,
fifteen cents per folio. County clerk’s office — filing, six cents; recording, ten
ents per folio. In addition to such payments an organization tax of one-
twentieth of one per cent upon the capital stock must be paid to. the State
“Treasurer.

No. 35.
Form of Notice of Election of Directors,
See the Stock Corporation Law, § 20.
Notice is hereby given that a meeting of the stockholders of
[insert name of company] will be held at the office of the com-
pany [state location of office] ou the day of 189 ,

at o’clock a. m. [or p. u.] for the purpose of electing [énsert '

number| directors for the ensuing year, and [énsert number]

inspectors of election to sérve at the next annual meeting, and.

for the transaction of such other business as may properly come
‘before said meeting. Polls will remain open [state length of

time] Transfer. books will be closed from , 189 ,
to ,189 .
Axsany, N. Y., wiBD .

Secretary.

1B
918 CuassiFicaTion oF DrrEcTors.

 

Forms — Nos. 35a, 35b, 35c.

3

 

No. 35a.
Form of Classification of Directors.
See Stock Corporation Law, § 20.

As soon as practicable the directors shall divide themselves into.
three classes, of which the first class shall consist of four directors,
each of whom shall hold his office for one year, or until the next.
annual election; the second class shall consist of four other di-:
rectors, each of whom shall hold his office for two years, or until
the second annual election; and the third class shall consist of
five other directors, each of whom shall hold his office for three:
years, or until the third annual election; and thereafter each and
every director chosen at any annual meeting shall hold his office
for the term of three years, and until another director is chosen:
and qualified in his stead.

No. 36b.
Form of Classification of Directors.
See Stock Corporation Law, § 20.

The directors shall be classified with respect to the time for-
which they shall severally hold office by dividing them into three
classes, each consisting of one-third of the whole number of the:
board of directors. The directors of the first class shall be elected
for a term of one year; the directors of the second class for a term
of two years; and the directors of the third class for a term of
three years; and at each annual election the successors to the class.,
of directors whose term shall expire in that year shall be elected
to hold office for the term of three years, so that the term of office-
of one class of directors shall expire in each year.

XN

 

No. 85c.
Form of Classification of Directors.
See Stock Corporation Law, § 20.

The board of directors of said corporation shall be classified,
relative to the period of time for which the directors shall sever-
ally serve, into four classes, as follows, to-wit: The first class’
shall be elected for a term of four years; the second class shall be
elected for a term of three years; the third class shall be elected’
’

CERTIFICATE TO Cuancr Numper or Drrectrors 919

 

Forms — No. 36. °

 

for a term of two years; the fourth class shall be elected for a
‘term of one year; and at each annual election after the first, the
‘successors to the class of directors whose term expires in that year
shall: be elected to hold office for the term of four years, so that
ithe term of office of at least ene class shall expire in each year. |

 

No. 36.
Certificate to Increase (or Reduce) Number of Directors.
' See the Stock Corporation Law, § 21.
‘Certiricats To Increase (on Repuce) tas Numper or Directors
oF [insert corporate name] Company.

We, the undersigned, do hereby certify that the following is a
correct transcript of the minutes of proceedings of a meeting of
stockholders of the [insert name of corporation], held pursuant to
“the Stock Corporation Law,” article 2, section 21, to wit:

~ seaiiakerass i ee eee 5 LBD cs
A special meeting of the stockholders of [insert name of corpo-
vation), a stock corporation, was held this day at o'clock A. M.

for P. I], to determine whether the number of directors shall be
increased [or reduced].

Such meeting was held at the office of the company, the usual
place of meeting of its directors, on two weeks’ notice in writing to
each stockholder of record; such notice having been served per-
sonally, or by mail, postage prepaid, directed to each stockholder
at his last known post-office address.

Pursuant to such notice the meeting was held at the time and
place mentioned, stockholders owning more than a majority of the
‘stock of the corporation being present in person or by proxy.

Such meeting was duly organized by choosing C. B as president

and A. B. as secretary thereof.

The notice of the meeting ‘and proof of the due service thereof
were read and filed in the office of the corporation at the time of
‘such meeting.
920 CrrtiFicats To Coanaz Noumser or Directors.

 

- Forms — No. 36.

 

On motion of E. F., duly seconded, the following resolution was.
offered for adoption :

“Resolved, That the number of directors of [insert name of
company] be increased [or reduced] from ........ , the present:
number, to ......... ef .

Upon a canvass of the votes cast upon said resolution, it was found
. that stockholders owning shares of the stock of the corpora-
tion, being more than a majority of the stock thereof, voted in favor
of said resolution, and stockholders owning shares of stock
of the corporation, voted against its adoption.

[Or, No stockholder voted against its adoption, as the case
may be.]

Such resolution was thereuvon declared duly adopted, and the.
meeting adjourned.

In Wirness WuEreor, we have made, signed and verified this.
certificate in duplicate, this day of , 189

C.'D., President.

A. B., Secretary..
Srare or New Yorx, } acd

County of ;

C. D. and A. B.,.being severally duly sworn, depose and say, and
each for himself deposes and says, that he, the said C. D., was the
president, and that he, the ‘said A. B., was the secretary, of the
meeting of stockholders of [¢nsert name of corporation], held to
determine whether the number of directors thereof shall be increased
[or reduced]; and that the foregoing is a correct transcript of the
proceedings of such meeting entered in the minutes of the cor
poration.

C. D., President.

A. B., Secretary.
Sworn to before me this t
day of , 189 .
‘
(Fs, Fling

Notary Public,
County, N. Y.
The fees upon filing and recording the above certificate are as follows: Office of

Secretary of State —recording, fifteen cents per folio; county clerk — filing, six.
cents; recording, ten cents per folig
Crrtiricate to Coane Noumser or Directors. 921

 

Forms — Nos. 37, 38.

 

No. 37, ‘
Notice to Stockholders of Meeting to Change Number of Directors.

See the Stock Corporation Law, § 21.
To the stockholders of the [insert corporate name]:

Notice is hereby given that a special meeting of the stockholders
of [insert name of corporation] will be held at the office of the
company at No. street, in the city [or village] of

, on the ' day of ,189 ,at  o’élock
in the noon of that day to determine whether the number
of its directors shall be increased [or reduced].

Dated Albany, N. Y., ,189 .

A.B,
Secretary of [insert name of corporation).

 

No. 38.
Proof of Service of Notice.
See the Stock Corporation Law, § 21.
Strate or New York, } a
County of a

A. B., who is upwards of eighteen years of age, being duly sworn,
deposes and says, that on the . dayof - , 189 ,he
served a notice in writing, of which a true copy is hereto annexed,
upon the following persons, stockholders of record of [insert cor:
porate name), namely : [Mame persons served] by delivering to and
leaving with each of them personally a copy of said notice. That
on the day of , 189 , he served the said notice
upon the following persons, stockholders of record of said corpora-
tion, namely: [ame persons served] by mailing to each of them a
copy of said notice at the post-office in the city [or village] of

; inclosed in a sealed envelope and directed to each stock-
holder at his last known post-office address, and prepaying the
proper postage on each of said envelopes so mailed.

A. B.

Sworn to before me this
day of , 189 .
[Signature of notary.]
929 Crrtiricate or Inspectors, tv.

 

Forms— No. 39. O

‘
No. 39. a

Certificate of Inspectors of Election. = ,
See the Stock Corporation Law, § 28, x ‘)

We, the undersigned, inspectors of election of aes name of
corporation], a stock corporation, duly chosen as such inspectors, do
hereby certify as follows:

That a meeting of the stockholders of said corporation was held

at _ , on the day of , 189 , at o'clock,
. M., pursuant to due notice.

That before entering upon the discharge of our duties, we were
severally sworn to faithfully execute the duties of inspectors at such
meeting with strict impartiality, and according to the best of our
ability, and the oath so taken has been subscribed by us and is hereto
annexed. .

That the result of the vote taken at such meeting for the election
of directors of said corporation for the ensuing year was as follows:

As Bisesekeisseepeeeie  ‘“wieisiaceies Votes
Oeste ca orate iat Joes  “Aeaigwwieeewes Votes
See aca nae aees =, gabe ent aca Votes

That said A. B, CO. D, and E. F. having received a plurality of
the votes of the eocllioldens voting at such election for directors,
were declared by us duly elected directors of said corporation for
the ensuing year.

That the resnlt of the vote taken at such meeting for the election
of inspectors of election of said corporation was as follows:

TeMe ceva tae tees theives Votes.
IN Obie iesieisatesieee: Ideas Qined Votes
RiSescecaciceew ese ekeee,  —«. hab erwanderets Votes

That said L. M., N. O. and. R. 8. having received a majority [or .
plurality, ax by-laws provide] of all the votes cast for inspectors of
election of said corporation, were declared by us duly elected as such.

Ix Wiryess Wuereor, we have made and signed this certificate
this day of : , 189

[Signatures of inspectors.
Crrriricate or Lyspxcturs, Eto. 923

e Forms— No. 40.

 

Srarz or Nuw. Yorx, st
County of ms

rs \

On this day of , 189 , before me personally
came [names of inspectors], to me known to be the individuals
described in and who executed the foregoing certiticate and veer
acknowledged to me that they executed the same.

[Signature of JL. otary, ]
>.

 

No. 40.

Oath of Inspectors to be Annexed to the Foregoing Certificate.
See the Stock Corporation Law, § 28.

.

Strate or New Yor, } ane
County of

We, the undersigned inspectors of election, duly appointed to
act at the meeting of the stockholders of the [insert name of cor-po-
ration], to be held at , on the: day of _
189 , being severally duly sworn, do depose and say, and each for
himself deposes and says, that he will faithfully execute the duties
of inspector at such meeting with strict impartiality, and according
to the best of his ability.

Wore rccscccscesey

eeoeeeenseeeneeeees 3
Tnepectore.
Severally sworn to before me }
this day of 189 .

Notary, etc.

The foregoing certificate, with the oath 4nnexed thereto, must be filed in the
office of the clerk of the county in which the election was held.
924 Stock Boox; Annual Report.
Forms — Nos. 41, 42.

 

No. 41.
Stock-Book of Stock Corporation.
See the Stock Corporation Law, § 29.

Stocx-Boox or THE [insert corporate name], PURSUANT TO THE:
Stock Corporation Law or tHE Strate or New York.

 

Number of Time each Amount

Names of Places
stockholders, of residence. eo bee paid thereon.

 

 

Section 29, above referred to, requires the names to be ‘‘alphabetically
arranged,” hence the pages of the stock-book should bear the letters of the
elphabet in successive order, and each entry should be made upon the page
bearing the appropriate letter, thus: ‘‘ John Anderson” on page ‘“A;” “John
Brown” on page *‘B,” etc.

 

No. 42.

Annual Report of Stock Corporations. other than Monied or Railroad
Corporations.

See the Stock Corporation Law, § 30.

Annvat Report
OF
Tux [¢nsert corporate name] Company.

Pursuant to the provisions of section 30 of the Stock Corpora-
tion Law of the State of New York, I, the undersigned, ‘
president [or a vice-president, or the treasurer, or a secretary}
of the [msert name of corporation], a domestic [or a foreign]
stock corporation, do hereby make a report ae of the first day of
January, 190 , as follows, to-wit:

1. The amount of its capital stock is [¢nsert amount] dollars,
and the proportion actually issued is [insert amount] dollars.
ANNUAL REPORT. 7 925.

 

Forms— No. 42.

 

2. The amount of its debts does not exceed the sum of [insert
amount] dollars.

3. The amount of its assets is at least the sum of .[insert-
amount] dollars.

4. The amount of its 'stoek issued for Pecpetly purchased is.
[insert amount] dollars.

5. The names and addresses of all the bi sultans and officers of’
the company are as follows:

Directors: [insert names and addresses. ] ‘

Officers: President, [insert name and address].
Secretary, [insert name and address |.
Treasurer, [insert name and address].

(In case of a foreign corporation insert also the following:)

6. The name of the person designated in the manner prescribed!
by the code of civil procedure, as a person upon whom process
against the corporation may be served within the State is

» whose address is

In Witness Wuereor, I have signed this report this
day of , 190.

" President.
[or a vice-president, or the

treasurer, or a secretary,
oo “ as the case may be.}

The recitals contained in paragraphs 5 and 6 of this form constitute
new matter required by the amendment of 1905.

Under the practice prevailing prior to the amendment of 1901, it was.
necessary to file the report during the month of January each year. It
was also necessary to make such report in duplicate, one of which was
to be filed in the office of the Secretary of State, and the other in the
office of the clerk of the county in which the principal business office of
the corporation was located. It was*also required to be signed by a
majority of the directors of the corporation and to be verified by the:
oath of the president or vice-president and treasurer or secretary.

Under the law as now modified the execution and filing of one report ,
is sufficient, duplicate reports being unnecessary because the report is.
required, pursuant to the amended law, to be filed only in the office of
the Secretary of State. It is to be signed by only one of the executive.
officers, either the president or a vice-president or the treasurer or a
secretary. The report is not required to be sworn to, and need not be
made or filed until an officér of the corporation has been requested in
, writing so to do by a creditor or by a stockholder of the corporation.

No fee is payable at the office of the Secretary of State for filing the
report.

In relation to annual reports of railroad companies, see the Railroad
- Law, §§ 57 and 158, respectively.

For statutes governing reports to the Comptroller by all corporations.
liable ta direct State taxation, see Taxation.

°
926 * Extension or Business.

 

Forms —No. 44.

 

No. 44.

Certificate of Extension of Purposes, etc.
See the Stock Corporation Law, § 32.

We, the undersigned ———, president and ————, secre-
tary of the [insert corporate name], a stock corporation organized
under [state the law], desiring to‘alter its certificate of incorpora-
ticn so as to include therein other purposes [powers or provisions],
pursuant to the provisions of the Stock Corporation Law of the
State of New York, do hereby make and file this amended cer-
tificate for such purpose, and do certify as follows:

That the name of the corporation, whose certificate of incorpora-
tion is hereby altered, is [insert corporate name].

That the alteration proposed and intended to be effected by the
execution and filing of this amended certificate, consists of an
extension of purposes [powers or provisions], so as to include the
following, to-wit:

[State same. ]

That the aforesaid alteration has been duly authorized by a vote
of stockholders representing at least three-fifths of the capital stock
of said corporation, at a meeting of the stockholders, called for the
purpose, in the manner provided in section 45 of the Stock Cor-
poration Law, as more fully appears in a copy of the proceedings
of such meeting, verified by the affidavit of one of the directors
present thereat, annexed hereto and filed with this amended cer-
tificate,

In Witness WHEREOF, we have made and executed this cer-
 tificate in duplicate, and have hereunto set our hands this
day of , 190.

Secretary.
=T

Extension or Business. 92

 

Forms --- No, 44,

 

Srare or New York, } aces 3
_ County of

On this - day of , 189 , before me per-
sonally came [esert names], to me severally known to be the
persons described in and who made and signed the foregoing
certificate and severally duly acknowledged to me that they had
made, signed and executed the same for the uses and purposes
therein set forth. :
[Signature of Notary.]
Cory or ProcrEpines or Meeting, To pz ATTACHED To THE ForE-

Going CERTIFCATE.

Minutes of a special meeting of the stockholders of the [insert
corporate name] Company, held at the office of the company at

, on . ,18 , at o’clock in the

noon, for the purpose of considering a proposition to alter

its certificate of incorporation so as to include therein other pur-
poses [powers or provisions].

The meeting having been called to order, stockholders appeared
in person. or by proxy, representing [imsert number] shares of
stock, being at least three-fifths of the capital stock of said corpora-
tion, and organized by electing and ¥
directors of the corporation, as chairman and secretary, respect-
ively, of said meeting. :

The chairman [or secretary] read the notice of the meeting,
which notice stated the time, place and object thereof and the pro-

posed extension of purposes, powers and provisions of the corpora-

tion, and also read the proof that such notice was published once
a.week, for at least two successive weeks, in [insert name of
paper], a newspaper in the county of , the county
where the principal business office of the corporation is located,
and that a copy of such notice was duly mailed to each stock-
holder at his last known post-office address at least three weeks
before the meeting.

Upon motion, duly seconded, a vote was taken upon the follow-
ing resolution ;

Resolved, That the purposes, ‘powers and provisions of the [in-
sert corporate name| Company be extended as follows: [State
same] and that the president and secretary of this corporation be

AN
1928 Extension or BUSINEss.
Forms — No. 44.

 

 

-authorized and instructed to execute and file proper certificates, as
provided by law, and to take such other steps as may be necessary
to carry out and effect the object and purposes of this resolution.

Thereupon, stockholders representing [insert number] shares of

. stock, being at least three-fifths of the capital stock of said corpora.
tion, voted, in favor of such resolution, and no stockholder voted

-against its adoption, and thereupon such resolution was declared

‘duly adopted and the meeting adjourned.
A. B., Chairman.

C. D., Secretary.
‘State or New Yor, } ae

County of

C. D., being duly sworn, says that he is one of the directors of
‘the [insert corporate name], and was present at a special meeting
of the stockholders of said company, held at its office, at ;
-on , 1893, , at o’clock in the fore-
noon, and that the foregoing is a true copy of the proceedings of
. such special meeting and of the whole thereof.

Oo. D.
, Sworn to before me this }
day of ,18 .
[Signature of Notary.]

Upon filing and recording the foregoing amended certificate in the office of the
. Secretary of State the fees are fifteen cents per folio for recording. At the county

. clerk’s office the fees are: Filing, six cents; recording, ten cents per folio.
4

Noticrt or MEertina.

‘To the stockholders of [insert corporate name]:
Notice is hereby given that a special meeting of the stockholders

of said corporation will be held at , in the
- of , on the day of y 1902, at
o’clock, M., to act upon a proposition to alter its

- certificate of incorporation so as to include other purposes, powers

-or provisions, to-wit: [isert same], in addition to those now set

‘forth in the certificate of incorporation of said corporation.
Dated, , N. Y,, , 19

Secretary.
CrrtiricaTe oF Stock. 929

 

Forms—No. 45.

‘State or New York, } Bae

County of
. , being duly sworn, says, that on the day
-of , 189 , he deposited in the post-office , at the city
-of , 8 copy of the annexed notice to stockholders of the,

[¢nsert corporate name], contained in a duly post-paid wrapper
‘directed to each stockholder of said company at his last-known
post-office address. : r
7 [Signature]
‘Sworn to before me this } ‘
day of , 189
[Signature of Notary.) :

[Annex here afidavit of publication.)

 

No, 45.
Certificate of Stock.

Gee the Stock Corporation Law, § 40,

NO. can : No. of shares....... vee
Par value of each $.....

PG: sii sa se he tanaseh aust Company.
(incorporated under the Laws of the State of New York.)
This is to certify that is the owner of
‘shares of the capital stock of The Company,

transferable only on. the books of the company by the holder
‘thereof, in person or by attorney, on the surrender of this certificate,

In Wirness Wuzrezor, the said company has caused its cor-
porate seal to be affixed hereto and this certificate to

[ear] be signed by its president or vice-president and
secretary or treasurer.-
Albany, N. Y., ‘ ,i89 .
Seeaweoee -, President [or Vice-President].
bs ai ava dhvapauslaceueiesa ys , Seeretary [or Treasurer].
930 CERTIFICATE OF STOCK.

 

Forms — No. 45a.

 

On the reverse side-of the certificate of stock should be printed a blank
transfer, as follows:

For value received, I hereby sell, assign and transfer unto
dice bMeaenr es shares of the within mentioned stock, and do
hereby irrevocably constitute and appoint my true
and lawful attorney to transfer the same on the books of the com-
pany.

Witness my hand and seal, this day of . , 189 .

a Relea PRE Sapient ear [Seal.]

Witness : :

The provisions of section 26 of the Stock Corporation Law may also be
printed on the back of each certificate of stock, if desired.

For form of certificate of preferred stock, see page 944.

No. 45a.
Certificate of Common Stock.
No, scan No. Shares ....
(Par Value One Hundred Dollars each.).
TAGS aacingth ees Company.

(Incorporated under the Laws of the State of New York.)

Tus 1s To Cerriry that is entitled to,
fully paid, non-assessable shares of one hundred dollars each in
the common capital stock of The } Company, trans-

ferable only on the books of the corporation, in person or by at-
torney, on the surrender of this certificate. The common stock
of the corporation is subject in all respects to the prior rights of
the holders of preferred stock as provided in the certificate of in-
corporation.

* This certificate is not valid, nor is its issue complete until
after registration thereof by the registrar of the corporation and
notation thereof hereon.

'
.* Omit this in case stock is not to be registered.
* CERTIFICATE OF Stock. 931

 

“Forms — No. 45b. '

 

In Witness Wuereor, the corporation has caused this certifi-
cate to be signed by its president [or vice-president] and its sec-

retary [or. assistant secretary], at. .~ > this
day of , 19
Libauie KeRKew ewes
: President.
Te ee ee ee 5
Secretary.
[Across left-hand end:]
* Registered this day of ,19 .
eeustekeeeaties ee
_ Registrar.
(Form of Indorsement.)

For value received, hereby sell, assign and trans-
fer unto ; shares of the capital stock repre-
sented by the within certificate, and do hereby irrevocably con-
stitute and appoint attorney, to transfer the said

stock on the books of the within-named corporation, with full
power of substitution in the premises.

Dated, , 19

In presence of

[Across right-hand end.]

Notice.— The signature to this assignment must correspond with the name
as written upon the face of the certificate in every particular, without altera-
tion or enlargement, or any change whatever.

 

No. 45b.
Certificate of Common Stock.

Incorporated under the Laws of the State of ............

TRG. essa wee Company.
’ . Authorized capital stock, $20,000,000.
Preferred stock, $9,000,000. Common stock, $11,000,000.
INO. ces Par value, $100 each. No. shares, ....

 

* Omit this In case stock is not to be registered.
 

932 CERTIFICATE oF STOCK.

Forms — No, 45.

 

Tuts CERTIFIES to be entitled to full-
paid shares of the common stock of The Company,
transferable only on the hooks of the company by the holder, in
person or by attorney, on surrender of this certificate. The
preferred stock, as more fully provided in the certificate of incor-
poration, is entitled, in preference to the common stock, to cumu-
lative dividends at the rate of per centum yearly, and
to payment of its par value and the amount of such cumulative
dividends then unpaid in any distribution of assets, but to no
other dividend or payment.

* This certificate will not be valid unless countersigned by the
transfer agent and registered.

Wirness the signatures of the president and
treasurer of said company, this day of | , 19

Treasurer.
[Across left hand end:] [Across right hand end:]
* Registered this day * Countersigned this
of . ¢ 12? day of , 19
Trust Company, =... . se eee ee eee ‘
Registrar. Transfer Agents.

Secretary.
(Form of Indorsement.)

For value received, hereby sell, assign and trans-
fer unto shares of the capital stock represented by
the within certificate, and do hereby irrevocably constitute and
appoint attorney to transfer the said stock on the

 

* Omit this in case there fs to be no Registrar or Transfer Agent.
DemaNnp FOR TRANSFER OF STOCK. 933
é

Forms — No. 46.

books of the within named company, with full power of substitu-
tion in the premises. ’
Dated, , 19

In presence of

[Following or at right of indorsement:]

Notice.— The signature to this assignment must correspond with the name
as written upon the face of the certificate in every particular, without altera-
tion or enlargement, or any change whatever.

For form of certificate of preferred stock, see page 944.

No. 46.

Form of Demand for Transfer of Stock.

4 ‘ow

See the Stock Corporation Law, § 29.

"To the Company, and its directors, officers and agents:
You will take notice that I am ‘the legal owner of certificate
number’ _for _ shares of stock of the said

‘Company, and that said certificate was issued to :
and’ has been duly transferred by him to me, said original certifi-
-eate and transfer being herewith exhibited to you. I hereby offer
to surrender to you said certificate on receiving a new certificate
-for said. * shares of stock, and do demand that you forth-
‘with transfer said _ shares to me on the books of said

‘for in my name.
' Dated, Albany, N. Y., , 18.
a 4 ‘ ' : [Signature.] z

Company, and issue to me a new certificate. there- *

me
934 Increase og Repuction or Capita Stock.

 

Forms — Nos. 47, 48.

 

No. 47.
Form of Subscription to Stock.

See the Stock Corporation Law, § 41.

We, the undersigned, hereby subscribe hereto our respective
names, post-office addresses and the number of shares of stock, at
the par value of dollars ($ ) each, which
we respectively agree to take in [insert corporate name], a pro-
posed corporation to be organized under the laws of the State of
New York, with a capital stock of $ » consisting of
i shares, and we hereby severally agree to pay for such
stock, at such times and in such installments as the board of direct-

ors of such company may by resolution require.

No. of shares:
Name of subscriber, Post-office address. subscribed.

Ce i or

Ce ee eeosererreeenvereree oevovere

No. 48.
Certificate of Increase [or Reduction] of Capital Stock.
See the Stock Corporation Law, §§ 44, 45, 46.

.

We, the undersigned, A. B., chairman, and C. D., secretary,
respectively, of a special meeting of the stockholders of [insert
corporate name], a domestic stock corporation, held for the pur-
pose of increasing [or reducing] its capital stock, do hereby certify :

That prior to such meeting a notice, stating the time, place and
object thereof, and the amount of the increase [or reduction] pro-
posed, signed by the, president [or a vice-president] and the sec-
retary, was published once a week, for at least two successive
weeks, in [insert name of paper], a newspaper in the county where
the principal business office of such corporation is located.

That the following is a true copy of such notice:

[Insert here copy of notice as given in Form No. 49.]
Increase o8 Repuction or CapitaL Stock. 935

 

Forms — No. 48.

 

That a copy of such notice was also duly mailed, postage pre-
paid, to each stockholder of such corporation, at his last known
‘post-office address, at least two'’weeks before the meeting.

[Or, That a copy of such notice was personally served at least
five days before said meeting upon the following named stock-
holders :}

That at the time and place specified in such notice, stockholders

appeared in person or by proxy, in numbers representing at least a
majority of all the shares of stock of such corporation, and organ-
ized said meeting by choosing from their number the undersigned,
A. B., as chairman, and C. D., as secretary thereof.

That the notice of the meeting and proof of the proper publish-
ing and mailing [or service] thereof was presented.

That, upon motion, a vote was then taken of those present in
person or by proxy upon the following resolution:

Resolved, That the capital stock of [insert name of company], °
be increased [or reduced] from the present amount thereof, to-wit:
[insert amount] dollars, consisting of [insert number] shares of
the par value of [insert par value] dollars each, to [insert amount

‘to which stock is increased or reduced] dollars, to consist of [in-
sert number] shares of the par value of [insert par value] dollars
each. ‘

Resolved, further, That the chairman and secretary of this
‘meeting be, and ,they are hereby authorized and directed to make,
sign, verify_ and acknowledge the certificates of proceedings re-
quired by statute and cause one of such certificates to be filed and
recorded in the office of the clerk of .......... county, and a
duplicate thereof in the office of the secretary of state, and to do
all acts and things that may be necessary to comply with the pro-
visions of law applicable to and regulating such increase [or
reduction] of capital stock. :

That stockholders owning [insert number] shares of stock, being
at least a majority of all the stock of the corporation, voted in
favor of such resolution; and stockholders owning [insert num-
936 Increase or Repuction oF Capita Srocx.

Forms — No. 48.
ber] shares of stock voted against its adoption. [Or, “and no
stockholder voted against its adoption,” if such be the case. ]

That a sufficient number of votes having been cast in favor of
. such increase [or reduction], such resolution was declared duly
adopted.

That the amount of capital of said corporation heretofore author-
ized is [insert amount] dollars and the proportion thereof actu-
ally issued is [insert amount] dollars; and that the amount of the
increased [or reduced] capital stock is [insert amount] dollars.

* [That the whole amount of the ascertained debts and liabili-
ties of the corporation is % «|

_In Witness WueError, We have made, signed, verified and
acknowledged this certificate in duplicate. Dated this
day of ’ 190 .

 

 

A. B., Chairman.
OC. D., Secretary.
State or New York, La
County of
A. B., chairman, and C. D., secretary, respectively, of the afore-
said meeting, being severally duly sworn, do depose and say, and
each for himself deposes and says, that he has read the foregoing
certificate subscribed by him, and knows its contents, and that the

same is true.

A. B., Chairman.
C. D., Secretary.

Sworn to before me, this
day of 5 190 .

E. F.,
. Notary Public,

idibenesrnes County, N. Y.
Attach acknowledgment. See next page.

 

* This paragraph is to be inserted only in cases of reduction of capital stock.
Inorease on Repvorion or Oarrrat Sroox. 937

 

Forms —- No. 49.

 

Stats or New York, guise
County of — ‘ 7

On this day of 189 , before me personally came
A. B. and C. D., to me personally known to be the persons described
in and who made, signed and verified the foregoing certificate and
severally duly acknowledged to me that they made, signed and
verified the same for the uses and purposes therein set forth.

E. F.,
Notary Public,
soosseee County, VN. ¥.

At the office of the Secretary of State the fee upon the foregoing certificate
is fifteen cents for each folio of 100 words contained therein. At the county
clerk’s office the fees are: ‘Filing, six cents; recording, ten cents per folio. In
addition to such fees, in case of an increase of capital stock, there must be
forwarded to the State Treasurer (not to the Secretary of State) one-twentieth
of one per cent upon the amount of such increase, simultaneously with the
transmission of the certificate to the Secretary of State.

Certificates of reduction of capital stock of other corporations than railroads
must have endorsed thereon the approval of the State Comptroller, and such cer-
tificates should be sent to the Comptroller’s office for approval prior to their pre-
sentation for filing in the office of the Secretary of State, or of any county clerk.
Proper information in the form of an affidavit must be furnished the Comptroller
to enable him to endorse upon the certificate the statutory approval. For such
purpose a form of affidavit, designed to contain the essential proof and to meet
. the requirements of the Comptroller’s office has been prepared. See form No. 50.

In the case of any increase or reduction of capital stock of a railroad corpora-
tion, the certificate of such increase or reduction must have indorsed thereon the
approval of the Board of Railroad Commissioners. No form of proof to be pre-
sented to obtain such approval of the railroad commissioners is inserted here, as
the requirements of such board in relation thereto are subject to such alterations
and amendments as the exigencies of each application may require.

No. 49.

Notice of Meeting to Increase or Reduce Capital Stock.
= See the Stock Corporation Law, § 45.

J

Notice to SrockHoLpDERs.
siSlacoieletaweo tie gone Miay: ties os Say 168

A special meeting of the stockholders of [insert name of
com pany] will be held on the » day of , 189

-

’

' .
938 IxcrEeasz og Repuction or Carrrau SToox.

 

 

Forms — No. 50.
at o'clock p.m. [or a. M.] at the office of such company, at
No. street, in the city [or village] of - for

the purpose of voting upon a proposition to increase [or reduce] its
-eapital stock from [insert amount of present capital stock], con-
sisting of [insert number of shares] shares of the par value of
[insert par value] dollars each, to [énsert amount to which stock ts
proposed to be increased or reduced] dollars, to consist of [ensert
number of shares] shares of the par value of [énsert par value]
dollars each.

Secretary.

 

No. 50.
Proof for the State Comptroller’s Information upon an Applicatios
for Approval of a Reduction of Capital Stock.

See the Stock Corporation Law, § 46.

Sratz or New York, ae

County of

A. B. and ©. D., treasurer and secretary, respectively, of [imsert
name of company], being severally duly sworn, do depose and say,
and each for himself deposes and says: That the said A. B. is the
treasurer of [insert name of company], and the said CO. D. is the
secretary thereof; that such company is a domestic stock corpyra-
tion other than a railroad corporation, or a monied corporation;
that a capital of [¢nsert amount to which the capital stock is
reduced] dollars is sufficient for the proper purposes of the corpora-

tion, and is in excess of its debts and liabilities.
A. B., Treasurer.

C. D., Secretary.

Sworn to before me, this t
day of 189
‘ E. F.,

Notary Public,
eee County, N. Y.
Repvuction or Capitan Stock. 939

 

Forms — No. 50a. ‘

 

The foregoing affidavit should not be attached to the other papers, as it is
to be retained by the Comptroller for filing in his office.

The fee for each certificate of approval furnished by the Comptroller is one
‘dollar, as provided in the Executive Law (L. 1892, ch. 683), § 32, subd. 3.

No form of certificate of approval is appended here, as a printed blank Bre?
pared by the comptroller is used by that official.

No. 50a.

Certificate of Reduction of Capital Stock, Authorized at a Meeting Held
Pursuant to a Waiver of the Stockholders of a Corporation having both
Preferred and Common Stock.

(This form may readily be adapted for an increase of capital stock.)

We, the undersigned, [insert name] chairman, and [insert
name] secretary, respectively, of a special meeting of the stock-
holders of the [insert corporate name] company, a domestic stock
corporation, held for the purpose of reducing its capital stock, |

Do Heresy Certiry as Foitows:

That prior to such meeting, all the stockholders of such com-
pany waived notice thereof, and unanimously consented that such
meeting be held at the time and place at which the same was held,
by an instrument in writing duly signed by all the stockholders
of said company, and duly acknowledged by them, which insiru-
ment duly acknowledged and accompanied by an affidavit of the
custodian of the stock book of the company, showing that the
signers thereof are all the stockholders of the company and holders
of the entire issued and outstanding capital stock thereof, is at-
tached to this certificate and made part thereof.

That on the day of , 19 , at
o’clock in the noon, at , in the
there appeared in person all the stockholders of said [insert tbe
porate name] company, holding [insert number] shares of the ©
capital stock of said company, the total number of shares issued
and outstanding being [msert number].

That the meeting was organized by choosing the undersigned,
'Tinsert name], as chairman, and the undersigned, [insert name],

as secretary thereof.
940 Repvuction oF Capirat Stock.

 

Forms — No. 50a.

That, upon motion, a vote was then taken, upon the following
resolution :

Resolved, That the capital stock of the [insert corporate name }
company, amounting to [isert amount], divided into [insert
number] shares of the par value of [insert amount] each, [insert
number] of such shares being preferred stock and [wsert num-
ber] of such shares being common stock, be reduced to [insert
amount], to consist of [insert number] of the par value of [in-
sert amount] each, of which reduced capital stock [insert amount ]
consisting of [insert number], is to be preferred stock and [insert
amount] consisting of [¢nsert number] shares, is to be common
stock; the rights attached to the two classes of stock to be as stated
in the certificate of incorporation of said company.

All the stockholders voted in favor of such resolution, and the
same was declared duly adopted.

That the amount of capital of said corporation heretofore au-
thorized was [insert amount], and the proportion thereof actually
issued was [insert amount], that the amount of the reduced capital
stock is [¢nsert amount], and that the whole amount of the ascer-
tained debts and liabilities of the corporation is [insert amount].

In Witness WHEREOF, we have made, signed, verified and ac-
knowledged this certificate in duplicate.

Dated this _ day of , 19
gas sha aac al ace , Chairman.

Site sin euesemsae , Secretary.
Sratze or New York, bss ‘

County of New York.

{Insert name], chairman, and [¢nsert name], secretary, re-
spectively, of the aforesaid meeting, being severally duly sworn,
did depose and say, and each for himself deposes and says, that
he has read the foregoing certificate subscribed by him, and knows
its contents, and that the same is true.

Sgt eeeeeeee Chairman.
anncanacnaviny MOCTOUTY.
Sworn to before me, this
day of , 19

Notary Public.
Repvuction or Capitan Srocx. 941

 

Forms — No. 50a.

 

*

County of New York

On this day of , 19 , before me person-
ally came [isert name]. and [isert name], to me known and
known to me to be the persons described in and who made, signed
and verified the foregoing certificate and severally duly acknowl-
edged to me that they made, signed and verified the same.

State or New York to

Notary Public.

Waiver or Notice or Mreting anp Unanimous CoNnsENT :TO
Repuce Tae Capitat Srocx or [insert corporate name}.

We, the undersigned, stockholders of the [insert corporate
name] company, hereby waive notice of a special meeting of the
stockholders of said‘ company to pass upon a proposition to re-
duce the capital stock of said company from [insert amount] to
[insert amount], to consist of [insert amount] in preferred stock,
divided into [insert number] shares of the par value of [insert
amount] each, and [insert amount] in common stock, divided into
[insert number] shares of the par value of [insert aneoindé each,
and hereby consent that said meeting of stockholders for such pur-
pose be held at the office of the company [insert address], in the
city [insert. place], on the day of , AD»
at o'clock in the noon; and we also consent: that the
capital stock of said company be reduced, as aforesaid, to [insert
amount] divided into [insert number] of the par value of [insert
amount] each, of which [insert number] shall be preferred stock
and [insert aunber! shall be common stock, the rights attached to
the two classes of stock to be as stated in the certificate of incor-
poration of said company.

Dated, , 19

; (Signatures. ]
Starz or New ae ;
County of New York. ses

On this day of ,19 , before me person-
ally appeared [isert names}, to me known and known to me to
be the persons described in and who executed the foregoing in-
strument, and they severally acknowledged to me that they exe
cuted the same.

[Signature.]  .
Notary Public.
942 Increase og Repuction oF CapitTaL Stock.

 

Forms — No. 50b.

 

State or New Yorx,)_.
County of New York. is

[Insert name], being duly sworn, says, that he is the treasurer
of the [insert corporate name] Company, the corporation referred
to in the foregoing instrument; that he is the custodian of the
stock book of such corporation; that [insert names], the persons
who have subscribed the foregoing consent, are all the stockholders
of said company, and are the holders of the entire issued and out-
standing capital stock thereof; that they are all persons known to
me and that the signatures attached to the foregoing instrument ,
are their genuine signatures.

[Signature. |
Sworn to before me, this
dayof ,19..
[Signature.]
Notary Public.

ed

No. 50b.

Unanimous Consent of Stockholders to Increase or Reduce Capital Stock.

We, the undersigned, being stockholders of the [insert corporate
name] Company, a stock corporation organized.and existing under
the laws of the State of New York, do hereby consent that the
present authorized capital stock of said corporation, to-wit: [Jn-

sert amount] dollars, consisting of shares of the par value
of one hundred dollars each, be increased [or reduced] to [insert -
amount] dollars, to consist of shares of the par value of

dollars each, and we do hereby authorize such increase

[or reduction] of capital stock; and empower the officers of the
corporation to do all acts and things necessary to effectuate such
increase [or reduction] of capital stock.

And we do hereby certify as follows:

‘hat the amount of capital of said corporation heretofore au-
thorized is [insert amount] dollars;

That the proportion thereof actually issued is [insert amount]
dollars ;

That the amount of the increased [or reduced] capital stock
is [msert amount] dollars;
Increase on Repuction or CarrraL Srock. 943
Forms — No. 50b.

 

 

*That the whole amount of, the ascertained debts anit liabilities

of the corporation is $ ‘
In Witness WHEREOF, we have signed this instrument in dupli-
cate. Dated, this day of , 19

[Signatures of ‘Stockholders, ]
Sratz or New York, \ ‘e

County of
On this day of | ', 19 , before me person-
ally came , to me known, and known to me to be the

individuals. described and who exectited the foregoing instru-
ment, and they severally acknowledged to me that they executed
the same.
Notary Public.
Strate or New Yors, ;
‘County of | be.

{Insert name], being duly sworn, deposes and says: That he
is the secretary [or treasurer] of the [insert corporate name |
Company, ‘the corporation mentioned in the foregoing instrument ;
that he is the custodian of the stock book, containing the names of
the stockholders of said corporation ; that [insert names of stock-
holders], the persons who have signed the foregoing instrument,
are all the stockholders of said corporation, and that they are the
holders of the entire capital stock of said corporation issued and
outstanding.

[Stgnature.]
Sworn to before me, tet
day of , 19

Notary Public.

 

* This paragraph is to be inserted only in cases of reduction of capital stock.
944 CERTIFICATE OF PREFERRED STOCK.

 

Forms — No. 51.

‘ No. 61.

Certificate of Preferred Stock.
See Stock Corporation Law, § 47.

(Par Value, One Hundred Dollars each.)

DNC isn sian eae ss Company.
(Incorporated under the Laws of the State of New York.)
NG. enaces No. of shareg .......-

~

This is to certify that is entitled to
fully paid, non-assessable shares of the par value of
one hundred dollars each in the preferred capital stock of the
: Company, transferable only on the books of the
corporation in person or by attorney, upon the surrender of this
certificate. The holders of preferred stock are entitled out of any
and all surplus net profits, whenever ascertained, to cumulative
dividends at the rate of and not exceeding six per cent per annum,
in the year beginning on the first day of , 1900, and in
each and every year thereafter, payable in quarterly installments,
in preference and priority to any payment of any. dividend on
the common stock for such quarter.* This certificate is not valid
nor is its issue complete until after registration thereof by the
registrar of the corporation and notation thereof hereon.
In Wrrness Wuereor, the corporation has caused this certifi-
cate to be signed by its president; or vice-president, and its :secre-

tary or assistant secretary, at ., New York, this
day of , 190 , ob ge pe
President.
Secretary.
[Across left-hand end:] me!!! ek
*Registered this day of , 190 ,
Registrar.
(Form of Indorsement.)
For Varvur Recerven, hereby sell, assign and
transfer unto ; shares of the capital stock rep-

resented by the within certificate, and do hereby irrevocably con-

 

* Omit this In case stock {s not to be registered.
AvutHorizinc CiassrFication or Stock. 945

 

Forms — No. 52.

stitute and appoint , attorney, to transfer the said
Stock on the books of the within-named corporation, with full
power of substitution in the premises,

Dated, , 190.

In presence of:
[Across right-hand end :]

Norice.— The signature of this assignment must correspond with the name
as written upon the face of the certificate in every particular, without altera-
tion or enlargement, or any change whatever.

 

No. 52.
Certificate Authorizing Classification of Stock.

See Stock Corporation Law, § 47.

We, the undersigned, , president, and §
secretary, respectively, of the [insert corporate name] Company,
a domestic stock corporation, do hereby make the following certifi-
cate of the proceedings of a meeting of the stockholders of said
company, held pursuant to section 47 of the Stock Corporation
Law of the State of New York, for the purpose of obtaining con-
sent to classify the capital stock into preferred and common as
follows, to-wit:

A special meeting of the siodkholders of the [insert corporate
name] Company was held at the office of the company [or as the
case may be] in the city [village, or town] of , county
of -, State of New York, on the day of

, 19 , at o’clock in the noon of that. day,
for the purpose of voting on a proposition to classify into com-
mon and preferred stock the authorized increase of capital stock
of the company, amounting to $

The meeting was called for that purpose upon notice, such as is
required for the annual meeting of the corporation, namely: [JIn-
sert manner of calling meeting. |

60

,

Ww
946 AUTHORIZING CLASSIFICATION oF STOCK.

 

Forms — No. 52.

 

The following is a true copy of said notice:

Notice is hereby given that a special meeting of the stockholders.
of the [insert corporate name] Company will be held at -
in the of , on the day of y
19 , at o’elock, M., to act upon a proposition to classify
into common and preferred stock the authorized increase of capital
stock of said company, amounting to $ , 80 that $
thereof shall be common stock, and $ thereof shall
be preferred stock. Said preferred stock to be entitled to prefer-
ence and priority over the common stock as folloys: [State the
same. |

At the time and place specified in such notice, stockholders of
record appeared in person or by proxy owning at least two-thirds
of the capital stock of the company and organized by electing from
their number A. B., as chairman of the meeting, and C. D., as.
secretary thereof.

Upon a call of the roll of stockholders of record, the follow-
ing were found to be present, in person or by proxy, viz.: [In-
sert names. ]

Upon motion duly made and carried, the proxies presented were
ordered to be placed on file.

Proof that the meeting was called upon notice such as is re-
quired for the annual meeting of the corporation was read and
ordered placed on file.

Upon motion, a vote was then taken of those present, in person
or by proxy, upon the following preamble and resolution, to-wit :

Wuerzas, the stockholders of this corporation have duly au-

thorized an increase of: the capital stock from $ . > tle
present amount, to the sum of $ , to consist of
shares of the par value of $ , each;

Anpv Wuenrzas, the present capital stock of the corporation con-
sists wholly of one class of stock, and it has been found desirable
to elaesify the new stock into common and preferred ;

Now, Tuererore, Resotven, that said authorized increase of
capital stock, amounting to [insert amount] dollars, be classified.
AvuTHoRIZzING CLASSIFICATION OF STOOK. 947

 

Forms — No. 52.

 

so that [imsert amount] dollars thereof, consisting of [insert num-
ber] shares of the par value of $ , each, shall be common
stock, and so that [isert amount] dollars thereof, consisting of
[insert number] shares of the par value of $ , each, shall
be preferred stock, and that said preferred stock shall be entitled
to preference and priority over the common stock in manner fol-
lowing: .[State same. ]

Resotvep, Furrurr, that the president or the vice-president,
and the secretary or the assistant secretary of this corporation be,
and’ they are hereby authorized and directed to execute and file
proper certificates of the proceedings of this meeting in the of-
fices, respectively, of the Secretary of State and the county clerk
of the county of , and to take all proceedings and
do all acts and things that may be necessary to comply with the
provisions of section 47 of the Stock Corporation ‘Law of the State
of New York, as amended and applicable to and regulating the
issuing of preferred and common stock.

A sufficient number of votes, to-wit, the votes of stockholders
owning shares of stock of the corporation out of a total of

~ © shares of stock issued and outstanding, having been cast
in favor of the foregoing resolutions, the same were declared duly
adopted. '

On motion, duly made and carried, the meeting was then ad-
journed. |

“In Witwess' WHEREOF, we have made, signed and sworn to
this certificate in duplicate.

Dated, , 19

Seerctary.
948 Increasine ok Repucinc Numser or SHaRkeEs.

 

Forms — No. 53.

 

Srate or New York, ae
County of fas

[Insert name], and [insert name], being duly sworn, do de-
pose and say, and each for himself deposes and says, that said
[insert name] is the president of the Company,
the corporation above mentioned, and said [insert name] is the
secretary thereof, that he has read the foregoing certificate of the
proceedings of the meeting of stockholders of said corporation,
and that the same is true.

Sworn to before me, this
day of , 19

Notary Public,
County, N. Y.

No. 58.
Certificate Increasing [or Reducing] Number of Shares.

See the Stock Corporation Law, § 56. %

We, the undersigned, chairman and secretary, respectively, of a
special meeting of the stockholders of [insert corporate name], a
domestic stock corporation, held for the purpose of increasing
Lor reducing] the number of shares into which its capital stock is
divided, without increasing [or reducing] the amount of capital
stock of such corporation, do hereby certify :

That prior to such meeting a notice stating the time, place and
object thereof, and the increase [or reduction] of the number of
shares proposed, signed by a majority of the directors, was pub-
lished once a week, for at least two successive weeks, in [insert
name of paper], a newspaper in the county where the principal

usiness office of such corporation is located.

That the following is a true copy of such notice:

Notice to stockholders: A special meeting of the stockholders of
the [insert corporate name] Company, will be held at the office of
the Company at No. street, in the city [or village]
of , on the day of , 18 , at o’clock,

M., for the purpose of considering and voting upon a proposition
to increase [or reduce] the number of shares into which the capital
Inorvasine og Repvcina Numer or SHares. 949

 

Forms No. 58.

 

stock shall be divided, without increasing [or educing] the amount
wf such capital stock, so that hereafter such capital stock shall be
divided into — shares of the par value of _—_ dollars each.

Dated Albany, N. Y., 18
A. B.,

©. Di, .
Majority of Directors.

»

That a copy of sueh notice was also personally served upon or
duly mailed, postage prepaid, to each stockholder of such corpora-
tion at his last known post-office address, at least three weeks before
the meeting. :

That at the time and place specified in such notice, stockholders
appeared in person or by proxy, in numbers representing at least
two-thirds of all the shares of stock of the corporation, and organ-
ized by choosing from their number the undersigned A. B., as
chairman, and C. D., as secretary thereof.

That the notice of the meeting and proof of the proper publish-
ing and mailing thereof was presented.

That, upon motion, a vote was then taken of those. present in
person or by proxy upon the following resolution:

Resolved, That the number of shares into which the capital stoc:.
of the [insert corporate name] Company is divided be increased
[or reduced] from the present number, to wit: shares of the
par value of dollars each, to the following number, to wit:

shares of the par value of dollars each.

That stockholders owning [insert number] shares of stock, being

at least two-thirds of all the stock of the corporation, voted in favor:
of such resolution ; and stockholders owning [énsert number] shares.
of stock voted against its adoption. [Or, “and no stockholder voted
against its adoption,” as the case may be.]

That a sufficient number of votes having been cast in favor of
such resolution, the same was declared duly adopted, and the meet-
ing adjourned.

Ix Wrrness Wuerror, we have made, signed, verified and
acknowledged this certificate in duplicate.

Dated this day of 18
: A. B., Chairman.
C. D., Secretary.

\
950 Business Corporations ; INcoRPORATION OF.

Forms— No. 54.

State or New York,
88

County. of ;

A. B., chairman, and C. D., secretary, respectively, of the afore
said meeting, being severally duly sworn, do depose and say, each
for himself, that he has read the foregoing certificate subscribed by
him, and knows its contents, and that the same is true.

‘ [Signatures of officers.)
Sworn to before me this }
day of 518.
[Signature of Notary.)

State or New Yorx, } sas
County of ; ~
On this day of 18 , before me personally came
A. B.and C. D. to me personally known to he the persons described
in and who made, signed and verified the foregoing certificate and
severally duly acknowledged to me that they made, signed and

verified the same.
[Signature of Notary.]

 

No, 64.
Certificate of Incorporation of a Business Corporation,
See the Business Corporations Law, § 2.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the United States, and at least one of
us a resident of the State of New York, desiring to form a stock
corporation, pursuant to the provisions of the Business Corporations
Law of the State of New York, do hereby make, sign, acknowledge
and file this certificate for that purpose, as follows:

First, The name of the proposed corporation is [insert corporate
name. | ee

Second. The purposes for which it is to be formed are [insert
statement of objects; see specimens of object clauses, pages 952-
985.]

Third. The amount of the capital stock is [insert the amount]
dollars. [If any portion be preferred stock, state the preferences ;
see examples of preference clauses, pages 1098-1105.]
Business Corrorations; Incorporation oF. 951

 

Forms — No. 54.

 

Fourth. The number of shares of which the capital stock shall.
consist is [the number fixed must be such that the par value shall
not be less than five dollars nor more than one hundred dollars
each], of the par value of $ each, and the amount of capital
with which said corporation will begin business is [state a definite
amount, but not less than five hundred dollars. ]

Fifth. Its principal business office is to be located in the [city,
village or town] of , in the county of
State of New York. [If in the city of New York insert also the
name of the borough. ]

Sixth. Its duration is to be [insert number of years, or say per-
petual if desired.)

Seventh. ‘The number of its directors is to be [insert a definite
number, but not less than three. ]

Eighth. The names and post-office addresses of the directors for
the first year are as follows:

Names. Post-office addresses.

Ninth. The names and post-office addresses of the subscribers
to the certificate and a statement of the number of shares of stock
which each agrees to take in the corporation are as follows:

Names. ‘  Post-office addresses Number of shares.

Tenth. [If desired the certificate may contain any other pro-
visions for the regulation of the business and the conduct of the
affairs of the corporation and any limitation upon its powers and
upon the powers of its directors and stockholders which does not
exempt them from any obligation or from the performance of any
duty imposed by law. For some examples of such provisions, see
‘pages 993, 994, 997.]

I~ Witness WHEREOF, we have made, dicted: acknowledged
and filed this certificate in duplicate.

Dated, this day of , 190.

[Signatures of incorporators, not
less than three in number. |
952 Business Corporations; Osyect Causes.

 

Forms — A.

State or New York, :
County of é a

On this day of , 189 , before me person-
ally came [insert names of subscribers to certificate], to me per-
sonally known to be the persons described in and who made and
signed the foregoing certificate and severally duly acknowledged
to me that they had made, signed and executed the same for the
uses and purposes therein set forth. :

[Signature of Notary. ]

Upon filing and recording the certificate of incorporation in the office of the
Secretary of State, the fees to be paid are: Filing, ten dollars; recording,
fifteen cents per folio. Upon filing and recording a certified copy or duplicate
original thereof in the office of the county clerk, the fees to be paid are:
Filing, six cents; recording, ten cents per folio. In addition to such payments
an organization tax of one-twentieth of one per cent upon the amount of the
capital stock must be paid to the State Treasurer. See the statutes regulating
such payments and further information relative thereto, ante.

FORMS OF OBJECT CLAUSES UNDER THE BUSINESS CORPORATIONS.
LAW.

Advertising.

To conduct a general advertising business, both as principals
and agents; including the preparation and arrangement of ad-
vertisements and the manufacture and construction of advertis-
- ing devices and novelties; to erect, construct, purchase, lease or
otherwise acquire fences, billboards, signboards, buildings and
other structures suitable for advertising purposes; to carry on the
businesses of printers, publishers, painters and decorators in con-
nection with the advertising business, and to make and carry out
contracts of every kind that may be necessary or conducive to the
accomplishment of any of the purposes of the company.

Agency Company.

The objects for which it is to be formed are to act as agent or
representative of corporations, firms and individuals, and as such
to develop and extend the business interests of firms, corpora-
tions and individuals.

Air Power Motors.
The manufacture, purchase, use, leasing and selling of self pro-
-pelling, or horseless vehicles, motors, engines, movable or station-
ary, propelled, operated or actuated by compressed air and gas,
Business Corporations; Opszct Cuauses. . 953

 

Forms — A.

 

either in combination or separately, or by any other suitable and

available power, and any and all other machines, devices, con- .

trivances and appliances, for the use and employment of air and
gas, compressed or otherwise, either in combination or separately,
for any uses and purposes to which the same can be applied; the
acquiring, holding and owning of inventions and patent rights
pertaining to or available for such vehicles, motors and engines,
machines, devices, contrivances and appliances, or the manufacture
and use of the same, as well as licenses under inventions and
patents pertaining to or available for such vehicles, motors, and
engines, to manufacture, use, lease and sell the same thereunder ;
the selling of any and all such inventions and patent rights and the
granting of any and all licenses thereunder; the manufacturing,
purchasing, acquiring, using, leasing, selling or otherwise dispos-
ing of all articles or materials necessary or useful in connection
therewith ; the manufacturing, selling or disposing of compressed
air, gas or other means or medium of actuating engines or motors
in connection therewith.
Air Power Motors.

The purposes for which such corporation is to be formed are
the manufacture, purchase, use, leasing and selling self-propelling,
or horseless vehicles, motors, engines, movable or stationary, pro-
pelled, operated or actuated by compressed air and gas, either in
combination: or separately, or by any other suitable and available
power, and any and all other machines, devices, contrivances and
appliances, for the use and employment. of air and gas, compressed
or otherwise, either in combination or separately, for any uses and
purposes to which the same can be applied; the acquiring, holding
and owning of inventions and patent rights pertaining to or avail-
able for such vehicles, motors and engines, machines, devices, con-
trivances and appliances, or the manufacture and use of the same,
as well as licenses under inventions and patents pertaining to or
available for such vehicles, motors and engines, to manufacture,
use, lease and sell the same thereunder; the selling of any and all
such inventions and patent rights and the granting of any and all
licenses thereunder; the manufacturing, purchasing, acquiring,
using, leasing, selling or otherwise disposing of all articles or
materials necessary or useful in connection therewith; the manu-
facturing, selling or disposing of compressed air, ‘gas or other
means or medium of actuating engines or motors in connection
therewith.
954 Business Corrorations; Ossect CLavszs.

 

Forms — A.

Ammonia.

Buying, selling, dealing in and manufacturing anhydrous am-
monia, aqua ammonia, other ammoniacal and kindred products,
and all materials and appliances used in such business.

( Asphalt.

To carry on the trade or business of mining, manufacturing,
producing, adapting and preparing, and buying and selling and
otherwise dealing in asphalt and cement; and any articles or prod-
ucts in the manufacture or composition of which asphalt or ce-
ment is used, including the acquisition by purchase, mining, manu-
facturing or otherwise of all materials, supplies, and other articles
necessary or convenient for use in mining, manufacturing, pro-
ducing, adapting and preparing asphalt and cement and such other
articles or products; also to quarry, dig, mine, deal in and sell any
and all kinds of minerals, stone and other products of the earth;
- also to pave, construct, repair, improve and maintain streets, high-
ways and roads and any and all public or private works, and gen-
erally to carry on any other manufacturing, trading, or contract-
ing business, exporting or importing, which can conveniently be
carried on in connection with any of the matters aforesaid; also
to purchase, acquire, hold, use and dispose of patent rights, let-
ters-patent, processes, devices, inventions, brands, labels, trade-
marks, and other rights, and also to do and transact all acts, busi-
ness and things incidental to or relating to or convenient in carry-
ing on its business as aforesaid.

Audit Company.

To examine, inspect and audit books of account, to report and
certify the results of such examination, inspection and audit, to
guarantee the correctness of such reports and certificates, and of
any facts, particulars, knowledge, information and data, pub-
lished, deposited, sold, exchanged, furnished or otherwise dis-
posed of by it.

Automobiles.

The purposes for which, or either of which, said corporation is
to be formed are the manufacture and sale of various kinds of
motors, engines, machines, or other machinery or contrivances for
the generation of steam, electricity, gasolene or other forms of
power now known or which may hereafter be discovered ; the manu-
Bustness Corporations; Ossect Causes. 955

 

Forms — B.

 

facture and sale of cars, carriages, wagons, boats, and vehicles of
every kind and description, for the transportation of passengers
or goods, whether the same shall be propelled by motors, engines,
machines or other contrivances operated by means of steam, elec-
tricity, gasolene or other forms of power; the manifacturs and
sale of machinery, machine supplies, and engineering appliances,
whether incidental to the construction of motor vehicles or not;
and the acquisition and sale of inventions, patent rights, letters-
patent_and trademarks covering any and all of the articles to be
manufactured or dealt in by said corporation; the carrying on of
any other lawful trade or business incident to the aforesaid pur-
poses or either of them. The said corporation may also acquire,
hold and dispose of stocks, bonds.and other evidences of indebted-
ness of any corporation, domestic or foreign, and issue in ex-
change therefor its stock, bonds or other obligations.

Bakery.

The making and selling of bread, cake, pies, crackers, ice-cream
and confectionery, and all other commodities usual in the‘ baking
business; and the purchasing, leasing, managing and operating
of stores, bakeries, factories and baking plants and the selling
thereof.

Baking Powder.

The objects for which the corporation is formed are manufactur-
ing, buying, selling, importing, exporting, refining, and dealing
in baking powders, argols, cream of tartar, tartaric acid and all
other chemicals which are or may be component parts of baking
powder, or may be conveniently produced or dealt in in con-
nection therewith, and generally to carry on any manufacturing
or other business which can conveniently be carried on in conjunc-

- tion with any of the matters aforesaid.

Bicycles.

To carry on the business of manufacturers of cycles, bicycles,
tricycles, velocipedes, and carriages of all kinds, and of all articles
and things used inthe manufacture, maintenance, and working
thereof, and also all apparatus and implements and things for use
In sports or games.

Bicycles and Automobiles.

To manufacture and sell bicycles and all parts and accessories

thereof, and to carry on any trade or business incidental thereto
956 Business Corporations; Osgsect CLavses.

 

Forms — B.

or connected therewith ; to manufacture and sell automobile vehicles.
and electric and other motors, and to carry on any trade or busi-
ness incidental thereto or connected therewith; to carry on any
manufacturing or mercantile business lawful in the place where
such business shall be carried on; to apply for, purchase, or other-
wise acquire, hold, own, use, operate, sell, assign, and grant or
conduct licenses in respect to any and all inventions, improve-
ments, and processes used in connection with or secured under
letters-patent of the United States or elsewhere; to acquire and
undertake all or any part of the business, assets and liabilities.
of any person, firm, association or corporation; to take, acquire,
purchase, hold, own, rent, lease, sell, exchange, mortgage, improve,
cultivate, develop, and otherwise deal in and dispose of any and
all property, real and personal, of every description incidental, to
or ‘capable of being used in connection with the aforesaid busi-
nesses or any of them.
: Biscuits and Crackers.

The business and objects of said corporation, which it proposes
to carry on, are the manufacture, purchase, sale and export of
biscuits, crackers, cakes, Italian paste, confectionery and other
food products. ,

Brick.

The manufacturing, buying, selling, dealing and trading in
any and every kind of bricks, stone and building materials, goods
and merchandise by land or water, and for that purpose to pur-
chase, own, charter and operate steamboats, steam tugs, barges and.
other boats, also to take, acquire, purchase, hold, own, rent, ex-
change, mortgage, improve, cultivate, develop and otherwise deal
in and dispose of any and all property, real and personal, of every
description, incident to or capable of being used in connection with
the aforesaid businesses, or any of them.

Brickmakers,

To carry on the business of manufacturers of bricks, tiles, pipes,
pottery, earthenware, china and terra cotta, and ceramic ware
of all kinds.

To carry on the businesses of pavers and manufacturers of and
dealers in artificial stone, whether for building, paving, or other
purposes.
Business Corporations; Ossecr CLavsEs. 957

 

Forms — B.

 

- Brewery.

To carry on the business of manufacturing, brewing and bot-
tling all kinds of ale, beer, porter and other beverages, and to pur-
chase, sell and deal in malt and hops and the products thereof.

Bridge Builders. °

To manufacture and sell bridges and bridge and structural work ;
to buy, sell, manufacture and trade in steel, iron and other metals,
and their by-products, and to store and transport the same; also
to construct, acquire, maintain, work or operate, lease, sell or other-
wise dispose of any lands, appurtenances, plants, businesses, good-
will, mills, furnaces, factories, engines, boilers, machinery, appa-
ratus, tools, appliances, and conveniences; also to buy, sell, manu-
facture and trade in structural iron and steel, plates, materials,
supplies, or articles made partly or wholly from metals of any
kind; also to buy, sell, manufacture and trade in such other raw
materials, products or merchandise as may be conveniently or
advantageously used or sold in connection with said business in
any of its branches or otherwise; also to apply for, purchase, ac-
quire, hold, own, use, operate, sell, assign or dispose of any or
all inventions, improvements and processes used in connection
with or secured under letters-patent of the United States, or other
countries, or otherwise, and to acquire or grant licenses and rights
in respect thereof, or otherwise; and, with a view to the working
or development of the same, to carry on any similar business,
whether manufacturing or otherwise, calculated, directly or indi-
rectly, to effectuate the objects of such corporation.

Bronze.

Manufacturing and dealing in silicon and aluminum and other
bronzes, and all kinds of metals and metallic compounds, and arti-
cles composed wholly or in part of metal, and electrical supplies,
and purchasing, holding, selling, exchanging, leasing, pledging,-
and mortgaging, either directly or indirectly, through agents or
trustees, real estate, personal assets, patents, patent rights and
other rights, easements, interests, stocks and franchises, which
and in such manner as may be advantageous or convenient in: the
prosecution of its business and authorized by the statute laws of
the State.
958 Business Corporations; Ossect CLausEs.

 

Forms — C.

Brushes.

To purchase, manufacture or dispose of, by sale or otherwise,
all kinds of brushes, brooms and dusters; to purchase, manufac-
ture and dispose of, by sale or otherwise, other articles incident
to the making of said brushes, brooms and dusters; to acquire and
hold, sell or otherwise dispose of, such real estate or other property
as the busihess of the company may require, and in general to
perform all the functions intended by law or usage to a manufac-
turing corporation.

Building Company.

The purchasing of real estate, the making and purchasing of
materials for the construction of buildings, the erection of build-
ings, and the owning, managing, operating, leasing and selling
of buildings.

Cash Registers.

To manufacture, buy, sell and deal in cash registers, check
printing registers, slip printing registers, tape-printing registers,
autographic registers, adding machines, calculating machines,
registering machines, and any and all similar registers, machines,
apparatus and devices and to do all acts and things and to trans-
act all business necessary or proper in connection with the said
. objects, or incidental thereto, or in any wise connected therewith;
and, in general, to carry on any other business, whether snanintae-
turing or otherwise, for the furtherance of the said objects.

Cattle.

To buy and sell at wholesale and retail, any and all kinds of
cattle and live stock, and any and all kinds of meats, and such
goods, wares and merchandise pertaining and belonging to the
cattle, live stock, meat and butcher business; and to possess, lease,
own, hold, erect and maintain abattoirs for the slaughter and kill-
ing of all kinds of animals and cattle usually used for food; and
to prepare in any and every manner the carcasses of such antitialle
and cattle into merchandise for the butcher and meat business;
and to manufacture such into merchantable and vendible arti-
cles; and tq manufacture provisions, sausages and other articles
and merchandise made of meats and fat, and all kinds of goods
kindred to the meat and butcher business; and to buy and sell,
convey, hold, acquire, and mortgage all personal and real ‘prop-
erty necessary or pertaining or in any wise belonging to the meat,
Business Corporations; Opsect CLavsEs. 959

 

Forms — C.

 

butcher, cattle and live stock business, or to carry on any part of
said business.
Cattle.

To carry on the business of buying, breeding, grazing, pastur-
ing, dealing in and selling cattle, sheep, hogs, horses, and other
live stock, and all business incidental thereto.

Cement.

The objects for which said corporation is to be formed, includ-
ing the nature of its business, are the following: Manufacturing,
selling and dealing in Portland cement and other cements, lime
and brick, and manufacturing, dealing in, selling and laying side-
walks and pavements, and drain, sewer and other kinds of pipes.

Cereals.

For the purpose of dealing in all kinds of cereals and of manu-
facturing and dealing in the products thereof and of doing all other
things incident thereto.

Chemists.

To carry on the business of chemists, druggists, dry-salters, oil
and colour men, importers and manufacturers of and dealers in
pharmaceutical, medicinal, chemical, industrial and other prepara-
tions and articles, compounds, cements, oils, paints, pigments and
varnishes, drug, dyeware, paint and colour grinders, makers and
dealers in proprietary articles of al] kinds, and of electrical, chemi-
eal, photographical, surgical, and scientific apparatus and mate-
rials.

Coal.

Buying, selling, dealing in and transporting coal of ell kinds.

Coffee.

The purchasing, selling, curing, ripening, polishing and burn-
ing or browning, raising, cultivating, or in any manner r dealing,
treating, corny or handling coffees.

Cold Storage.

The carrying on and conducting the business of storage, cold
storage refrigeration, freezing and ice making and dealing in
plants for said purposes; the manufacturing, producing and sup-
plying in any manner cold air, refrigeration, ice and freezing
compounds in any form for use, distribution and application for
960 Business Corporations; Ossect Ciausss.

 

Forms — C.

 

any and all purposes; the constructing, purchasing, acquiring,
equipping, owning, maintaining, operating, selling and leasing
plants, machines, equipments, machinery, apparatus, general sup-
plies, inventions, patents and processes, together with all other
property, rights and privileges for any of said purposes, or a part
thereof.

Commission Merchants.

To do a general commission merchants and selling agents busi-
ness; to buy, hold, own, manufacture, produce, sell and otherwise
dispose of, either as principal or agent, and upon commission or
otherwise, all kinds of personal property whatsoever, without limit
as to amount; to buy, sell, hold, own, manufacture, produce, sell
and otherwise dispose of, either as principal or agent, all articles
of furniture, household or otherwise, without limit as to amount;
to make and enter into all manner and kinds of contracts, agree-
ments and obligations by or with any person or persons, corpora-
tion or corporations, for the purchasing, acquiring, manufacturing,
repairing and selling of any articles of personal property of any
kind or nature whatsoever, and generally with full power to per
form any and all acts connected herewith or arising therefrom
or incidental thereto, and all acts proper or necessary for the pur-
poses of the business. ©

Contractors and Builders.

To carry on the business of general contractors; to construct,
-equip, improve or work upon any or all kinds of roads, ways,
tramways, railroads, railways, branches or sidings, bridges, reser-
voirs, watercourses and wharves; to build, construct, and repair
sewers, tunnels and subways; to build, erect, and repair plants
for furnishing, by electricity or otherwise, light, heat and power;
to install systems, machinery, appliances and devices for the gen-
eration, accumulation and distribution of electrical force and
energy of every kind and nature; to purchase or otherwise acquire,
hold, operate, repair or license the use and the disposal of systems
for the equipment, operation and repairing of railways, railroads
and tramways with steam, compressed air, or gas power, or by
electric motor power applied by means of overhead and under-
ground wires, trolleys, third rail or third way and under running
contacts, storage batteries, or any other means of transmitting
and utilizing motive power not inconsistent with the Business Oor-
porations Law of this State, and to acquire any inventions and
improvements relating thereto.
Business Corporations; Ossecr Causes. 961

 

Forms — C.

 

Confectionery.

To manufacture, buy, sell, deal in and deal with candy, syrup
and confections of all kinds, and the raw material from whieh they
are made and products made therefrom, and all like or kindred
products; to manufacture and prepare for market; to market and
sell candy, syrups, confections and kindred produetay ; and all other
articles or products whatsoever used in their manufacture or com-
‘position; to acquire by purchase, manufacture or otherwise, all
materials, supplies and other articles necessary or convenient for
use in connection with and in earrying on the business herein
Mentioned or any part thereof.

Contracting and Building.

The erection, repairing, raising and improvement. of buildings; ;
the building or repairing of bridges; the making of street improve-
ments, whether above or beneath the surface, and the business of
general contracting; such as is usually done by contractors.

Cordage.

The manufacture and sale of cordage and binder twine, and
any and all similar commodities, including the acquisition by pur-
chase, ‘manufacture or cultivation of all materials, supplies, ma-
‘chinery and other articles necessary or convenient for use in con-
nection with and in carrying on the business of manufacturing
and selling as aforesaid; the taking, acquiring, buying, holding,
owning, selling, leasing, mortgaging, improving, cultivating and
otherwise dealing in and disposing of real estate; manufactories,
‘buildings, and improvements necessary or convenient in carrying
-on said business.

Cotton Oil.

To carry on the business of manufacturing cottonseed oil and
other vegetable oils, and each and every product of cottonseed,
.and all edible fats, and other oleaginous substances, and all articles
of use as food or otherwise, of which cottonseed or cottonseed
-oil or any product of either forms a component part or may be
in any way utilized into any condition, combination, connection,
‘article, substance, or form whatsoever; crushing, refining, treat-
‘ing, buying, selling, dealing and trafficking in any of the articles,
products, or ‘substances herein mentioned or referred to; com-

‘pressing and manufacturing cotton into any form, anfetange: ar:
61
962 Business Corporations; OssEect CLavses.

 

Forms — D.

ticle or condition whatsoever, and trafficking in the same, erecting,
purchasing, or acquiring, operating, equiping, maintaining, selling,
leasing, letting, and in any way utilizing or disposing of mills,
refineries, compresses, lands, warehouses, vessels, cars, manutfac-
tories, merchandise, inventions, patents, processes, machines,
plants, business, good will, trademarks, brands, and branches im:
connection with any of the purposes herein referred to.

Department Store.

(1) To establish and conduct a general department store.

(2) To carry on all or ahy.of the businesses of dry goods mer-
chants, cloth manufacturers, furriers, haberdashers, hosiers, manu-
facturers, importers, wholesale and retail dealers of and in textile
fabrics of all kinds; milliners, dressmakers, mantua-makers, tail-
ors, hatters, clothiers, furnishers, outfitters, glovers, lace manufac-
turers, feather dressers, boot and shoe makers; manufacturers and
importers and wholesale and retail dealers of and in leather goods,
household furniture, ironmongery, china and glassware, crockery
and other household fittings and utensils, ornaments, bric-a-brac,
stationery, notions and fancy goods; dealers in meats and provi-
sions, drugs, chemicals and other articles and commodities of per-
sonal and household use and consumption; and generally of and
in all manufactured goods, materials, provisions and produce.

(3) To carry on any of the businesses of coach and carriage
builders, saddlers, harness-makers, house decorators, sanitary engi-
neers, electrical engineers, and contractors in all of the branches
thereof; gasfitters, coal and wood dealers, land, estate, and house
agents, builders, contractors, auctioneers, cabinet‘makers, uphol-
sterers, furniture removers, owners of depositories, warehousemen,
carriers, storekeepers ; manufacturers of and dealers in hardware,
jewelry, plated:goods, perfumery, soap, toilet articles of all kinds,
and articles required for ornament, recreation or amusement;
gold and silversmiths, dealers in precious stones, watchmakers,
newspaper proprietors, booksellers, dealers in musical instruments,
manufacturers of and dealers in bicycles, tricycles and motor car-
riages, and sporting goods of all kinds; and also refreshment con-
tractors, restaurant keepers, wine and liquor dealers, tobacconists,
and dealers in mineral, aerated and other liquors; barbers and’
hairdressers, farmers, dairymen, market gardeners, nurserymen:
and florists, photographers and dealers in photographic supplies,.
printers, lithographers and engravers, dealers in domestic, trained:
and fancy animals,
Business Corporations; Ossect CLauses, 963

 

Forms — D.

 

(4) To buy, sell, manufacture, repair, alter and exchange, let
on hire, export and deal in all kinds of articles and things which
may be required for the purposes of any of the said businesses,
or commonly supplied or dealt in by persons engaged in any such
businesses, or which may seem capable of being profitably dealt
with in connection with any of the said businesses.

(5) To provide and conduct refreshment-rooms, newspaper-
rooms, reading and writing-rooms, dressing-rooms, telephones, and
other conveniences for the use of customers and others.

(6) To grant to other persons or corporations the right or privi-
lege to carry on any kind of business on the premises of the com-
pany on such terms as the company shall deem expedient or .
proper.

Distillers. :

The objects for which the said corporation is to be formed are
the carrying on of the general business of distilling spirits, in-
cluding the distilling, redistilling and rectifying of wines, alcohol,
spirits, gins and whiskies of all kinds and description, and dealing
in the same and the by-products thereof throughout the United
States and elsewhere; also malting and dealing in malt; and the
purchasing, acquiring, leasing, holding and disposing of sual real
estate and personal property as may be necessary or proper for
the safe, convenient and profitable conduct of such business, and
the doing of any other business incident to the main purpose of
the Peer

Dock and Terminal Company.

To earry on the business of freighting, elevating, lighterage,
storage, wharfage, warehousing, forwarding, docking, storing and
berthing of ships, steam vessels, boats and every other kind of
water craft; receiving, unloading, loading, transferring, storing,
warehousing, elevating and forwarding by car, float, boat, and in
any’ other way, all kinds of goods, wares, merchandise and any
other commercial commodity or thing of value, and the doing of
any act or thing connected therewith or incidental to such busi-
ness, act or thing; erecting, constructing and maintaining eleva-
tors, coal bins, pockets and chutes, bulkheads, piers, basins, float-
ing and other docks, warehouses, terminal, transfer and other
facilities; buildings for manufacturing and trafficking, the pur-
chasing, acquiring and holding property, rights, privileges and
franchise necessary or incidental to the convenient transacting
‘quire any and all property, real and personal, incidental to the
964 Business Corporations; Osgect CLavusss.

 

Forms — F..

 

and conducting of the aforesaid business, and of selling, leasing,
mortgaging and conveying the same or any part thereof; the
issuing of storage, dock and warehouse receipts negotiable and
non-negotiable, covering all kinds of goods, wares, merchandise
and any other commercial commodity or thing of value; the pur-
chase and sale of ships, steamers, vessels and every other kind
of water craft, and all goods, wares, merchandise, or any other
commodity or thing of value; the making and manufacturing of
engines, boilers, launches, boats, water crafts of all kinds, or any
other article or thing of value; the collection and receipt of dock-
age, wharfage and storage dues and other compensation; the
loaning of money on the pledge of goods, wares, merchandise
and other property, or on the pledge of storage, dock or ware~
house receipts therefor; and the advancing of freights, duties,
fire and marine insurance and liens of every kind and nature upon
goods, wares and merchandise or other property received on stor-
age, or for the purpose of being warehoused or forwarded upon
the pledge of said goods, wares, and merchandise or other prop-
erty, or upon the pledge of storage, dock or warehouse receipts

therefor.
Drugs.

To manufacture, import, purchase, sell and deal in drugs, medi-
cines, paints, chemicals, oils, dyestuffs, glassware, toilet articles,
fancy goods, druggists’ sundries, perfumeries, surgical apparatus,
physicians and hospital supplies, and general merchandise.

Dry Goods.

To do a dry goods and notions, jobbing and commission busi-
ness; and generally to do a mercantile business in the State of
New York, throughout the United States of America, and
elsewhere. ;

Electrical Work.

The purposes for which it is to be formed are the following,
viz.: To carry on a general. contracting business; to do electri-
cal work of every kind and description, including the business of
electricians, electrical.and mechanical engineers and dealers,
either as principals or agents, in electric motors, dynamos, and
electrical machinery, appliances, plants and supplies of any nature
or kind whatsoever; to construct, erect, install, alter, repair, equip
and deal in works, plants, instruments and machinery for supply-
Business Corporations; Ossect Ciavsss. 965

 

Forms — E.

 

‘ing and: distributing electricity for light, heat, power or other —
purposes, street and other railways. for operation by electricity
-or otherwise, telephone and telegraph lines including all instru-
ments, poles, fixtures, wires and appliances for connecting elec-
tric apparatus at a distance with other electric apparatus as well
‘as electric exchanges or centres, subways, conduits and ducts,
power supply works, warehouses and buildings, public or private,
tunnels, bridges, viaducts, docks, harbors, piers, wharves, canals,
‘reservoirs, and all other works of public or private use; to make
or otherwise acquire and carry out any contracts for or in rela-
‘tion to the construction, erection, equipment and improvement
‘of public or private works or buildings, and to undertake, execute,
carry out, dispose of or otherwise turn to account the same; to con-
‘struct, repair, alter, trade and deal in and with any or all ma-
‘-ehinery, appliances and supplies used in the manufacture,
‘generation, storage, accumulation, transmission or distribution
of any or all types of electric current, and any or all manner of
electric machinery, apparatus or supplies of any nature or kind
whatsoevery to buy, sell, deal in, repair, alter, or lease fixtures,
‘chandeliers, electroliers, brackets, lamps, globes and other sup-
‘plies and appurtenances used for or in connection with the manu-
‘facture, generation, accumulation, storage, transmission; distri-
bution, or use of electric current for light, heat, or power; to
“buy, sell and trade in other machinery, supplies and merchandise
and to do any and every act or thing that may be appurtenant,
incidental to or necessary in connection with the foregoing
purposes.
Elevators.
‘ To manufacture, erect, build, furnish, equip, construct, repair,
maintain, operate, buy, sell, and in general to utilize and deal
_ In and deal with elevators and all kinds of hoisting machinery,
including the acquisition by purchase, manufacture or otherwise
of all materials, supplies, machinery and other articles necessary
or convenient for use in connection with and in carrying on the
business herein mentioned,.or any part thereof.

To manufacture, purchase, or otherwise acquire, hold, own,
mortgage, sell, assign, and transfer, invest, trade, dealin and
deal with pants wares and merchandise and property of every
_ class and description, including any and all kinds of engines,
-dynamos, generators, pumps and any and all kinds of machinery,
966 Busryess Corporations; Opsect Causes.

 

Forms — E.

 

any and all kinds of implements or articles of manufacture, and.
any and all kinds of mechanical apparatus.

Enameled Goods.

To manufacture dials of all kinds for watches, clocks, meters,
indicators and all other purposes; also to, manufacture all kinds of
‘enamel, enameled goods and articles, ingredients, mixtures or
compounds necessary for the above or for any other purpose; also
to do all kinds of enameling and printing; also to manufacture
any other articles or things incidental or appertaining to the -
above; and also to buy and sell any of the above, or any articles.
incidental or appertaining thereto.

Explosives.

The purposes for which it is formed are to conduct the busi--
ness of manufacturing, buying, selling and dealing in, and other--
wise acquiring and disposing of, apparatus, tools, machinery,.
appliances, explosives; chemicals, compounds and other goods,
wares and merchandise of every kind and description, used or
capable of being used, in connection with mining or quarrying
ores and minerals; also to manufacture, buy, sell, deal in and.
use alkalies and chemicals of every kind, and all articles and
things used in the manufacturing, maintaining and working
thereof.

Express Business.

To transfer, carry and transport goods, wares and merchandise:
and personal property of every kind and description, from or to
any points or places in the United States or elsewhere, by means.
of electric cars or vehicles, steam cars or vehicles, horses, wag-
ons, boats, or any other means or method of transportation ; to con-
tract or arrange with railroads, ferries, steamboats or other com--
panies, and with individuals to transfer, carry and transport such
personal property for and on behalf of this corporation; and gen-
erally to do and transact an express ‘and transportation business,
with all the rights, privileges and powers necessary or desirable-
for the transaction of such business or incident to the conduct
of the same. f

To carry on a general transfer and express business in the city
of New York and elsewhere; to purchase, lease or otherwise ac-
c

Bustness Corporations; Osszot Cuavses. 967

 

Forms — F.

 

‘said business, and to do any and all acts incidental to or connected
therewith.
Live Stock Express,

To buy, sell, equip and maintain cars, and any and all other
vehicles by land and water, for the purpose of transporting live
- stock, and to transport the same by any and a means of trans-
portation by land and water.

Fisheries.

To catch, cure, can, purchase, ‘sell, and otherwise acquire, dis-
‘pose of and deal in and with fish and sea food of all kinds; to
-cut, manufacture, store, and deal in ice, natural and artificial;
to do a general cold storage business in and of commodities, as
principal, agent or consignee; to build, construct, purchase or
otherwise acquire and operate any and all works, appliances and
facilities and equipments useful or convenient in connection with
any objects of the company, including the marketing of its com-
modities and products.

Fisheries.

To carry on the business of catching, buying, selling and deal-
ing in fish of all kinds; manufacturing such kinds of fish as are
particularly suited thereto, into fish oil and fish guano; manu-
facturing fertilizer and other products capable of being made from
fish guano or other guano, or other materials customarily used
‘in manufacturing fertilizers, and dealing in all such products and
all other materials, articles and products capable of being manu-
factured or used in connection with the manufacture and sale of
any of the above-named products; to establish and maintain fac-
tories, agencies and depots for the manufacturing and sale of
fish oils, guano, fertilizers and any and all products capable of
being made therefrom; to carry on the business of storing, pack-
ing, salting, canning and otherwise preserving and dealing in all
‘kinds of food fishes.

' Fisheries.

The catching, purchasing and selling of all kinds of fish, con-
-ducting a general cold storage husiness, the manufacture and sale
of: fish and animal products, and doing a general commission
“business.

Gas Fixtures and Lamps.

To manufacture, buy, sell, lease, and let gas fixtures, chande-

‘liers, electroliers, brackets, lamps, globes, any and all of which
/
968 Business Corporations; Ossect Cuauszs.

 

Forms — G.

 

may be of any form, kind or description; and to manufacture,.
buy, sell, lease, and let any other supplies or appurtenances used
for or in connection with the use of gas, electricity or any other
power, or material used for heating or lighting purposes; and to
make, manufacture, buy, sell, lease, let any and all things, ma-
terials, substances, machines, tools, buildings and anything what-
soever necessary for the carrying on of the business under its.
charter.
Glass.

Manufacturing glass and glass ware of any and all kinds and
description; to manufacture such machinery and appliances as:
are or might be useful in connection with the preparation of glass
ware; to produce, as opportunity offers, whatever crude materials.
are necessary for the manufacture of glass; to buy such lands and
erect such buildings as are needed for the purpose of carrying
on the business of the corporation, and to sell and dispose. of the
same as authorized by law; to buy, own, and sell the plant or
plants of other companies heretofore carrying on a similar
business.

Gold and Silver Ware.

To carry on the business of manufacturers of, dealers in and
contractors for the sale, purchase and exchange of gold and silver
ware, gold and silver plated ware, glass ware, crockery, cutlery,
leather goods, tools, machinery, wooden ware and silks, and gen-
erally to manufacture, buy, sell, exchange and deal in the above
specified products and in all materials used in the manufacture
of each, any and all of such articles.

To carry on as principals, agents, commission merchants or:
consignees, the business of manufacturing and dealing in gold
and silver ware, gold and silver plated ware, metal ware, glass
ware, crockery ware, cutlery, leather saat, tools, machinery,
wooden ware and silks, and all materials used in the manufacture
of each, any and all of such articles, and to carry on as principals,
agents, commission merchants or consignees any other business
which may be conveniently conducted in conjunction with any of.
the matters aforesaid.

Grain Elevator.

Elevating, storing and transferring grain of all kinds, and

building, constructing, purchasing, leasing or otherwise aequir-
Business Corporations; Ossect CLavsEs. 968

 

Forms — H.

 

ing, using, managing and operating an elevator or elevators for
the above purposes, and for the transaction of all such business
_ as is, or may be, in any way connected therewith, or incidental
to the foregoing purposes.

Graphite.

To manufacture graphite, purify carbon, prepare graphite and
carbon for paints, foundry facing, electrotyping and other pur-
poses; to manufacture, buy, sell, deal in and deal with graphite,
paints, stove polish, crucibles and other forms of graphite and
carbon articles. ,
‘ Hardware.

To carry on the trade or business of manufacturing, produc-
ing, ‘adapting, preparing, buying and selling and otherwise dealing
in, hardware and hardware supplies incident thereto, and any
articles | in the manufacture or composition of which metal is a
factor; and to manufacture, produce, purchase, adapt, prepare,
use, sell or otherwise deal in, any materials, articles and things
required for or in connection with, or incidental to the manufac-
ture, use, purchase and sale of any and all of the aforesaid wares
and articles; and also to carry on any other manufacturing or dis-
tributing business such as commission merchants, factors, agents
or otherwise, which can conveniently be carried on in ‘conjunc-
tion with any of the matters aforesaid.

Hotel.

To carry on the business of hotel and innkeepers, restaurant-_
keepers, caterers, keepers of iivery-stables and stables for horse-
less conveyances of all kinds, warehousemen, tobacconists, deal-
ers in provisions, wine and liquor dealers, barbers and hairdressers,
newsdealers, and proprietors or managers of theatres, opera Nouses
and other places of public entertainment.

To purchase, lease, hire or otherwise acquire, to hold, own,
maintain, improve, alter, and to sell, convey, mortgage, or other-
wise dispose of real estate and personal property and any interest
therein, in or out of this' State, and in such place or places in
the several States and Territories of the United States, the Dis-
trict of Columbia, colonial possessions or territorial acquisitions
of the United States and any foreign countries, as shall from time
to time be found necessary and convenient for the purposes of
the company’s business; to have one or more offices and to carry
970 Busrtness Corporations; Ossect Causes.

 

Forms — I.

on all or any part of its operations and business in any State or
Territory of the United States, and in any foreign country or
place.

Hotel.

To buy and sell hotels, restaurants and boarding-houses; to
manage and conduct hotels, restaurants, cafes and boarding-
houses, and to lease and hire the same; to build and construct
hotels, apartment and other buildings, and generally to do.and
perform everything necessary for the aforesaid purposes.

Ice.

Manufacturing, preparing, cutting, gathering, collecting, har-
vesting, storing, preserving, packing, buying, selling, dealing in
and transporting all kinds of ice; to erect, establish, manufacture,
make, construct, acquire, hold, operate, buy, sell, trade and deal
in all kinds of refrigerating plants, ice machines, ice-making
apparatus and refrigerating processes; to construct, purchase,
charter or otherwise acquire, and to hold, own, use, equip, oper-
ate and dispose of any and all steamships, steamboats, sailing,
ships, barges or vessels of any class, kind or nature whatsoever
which may be necessary, useful or convenient in or about the
operations or business of the said company.

Ice Machines.

To manufacture, buy, sell and lease ice machinery and other
articles; to own, control, buy and sell patents and to license there-
under; to own, buy, sell, lease and mortgage real estate and per-
sonal property; and to do all acts that may be convenient or
necessary in a general manufacturing business.

Inspection of Elevators.

The protection, keeping in order, operation and the guaranteed
inspection of freight and passenger elevators in apartment-houses,
office buildings, hotels, and any buildings where elevators may be
used and maintained.

Iron and Steel.

To manufacture iron, steel, manganese, coke, copper, lumber
and other materials, and all or any articles consisting, or partly
consisting, of iron, steel, copper, wood or other materials, and
all or any products thereof.
Business Corporations; Ossecr Cxavszs. 971

 

Forms — J., K., L,

 

To acquire, own, lease, occupy, use or develop any lands con-
taining coal or iron, manganese, stone or other ores, or oil, and
any wood lands, or other lands for any purpose of the company.

To mine, or otherwise to extract or remove, coal, ores, stone
and other minerals and timber from any lands owned, acquired,
leased or occupied by the company, or from any other lands.

To buy and sell, or otherwise to deal or to traffic in, iron, steel,
Imanganese, copper, stone, ores, coal, coke, wood, lumber and
other materials, and any of the products thereof, and any articles
consisting, or partly consisting, thereof.

Jewelry.

To manufacture, buy, sell and deal in watches, diamonds, jew-
elry, ornaments and fancy articles of various kinds, and other
kinds of merchandise and property, and likewise to buy and sell,
patent rights and licenses for any and all useful improvements
in jewelry, ornaments and fancy articles.

4

Knit Goods.

The manufacture and sale of hosiery, underwear and other
goods for human use, from wool, cotton, flax, hemp or any other
material that can be spun into a thread, and the manufacture and
sale of garments, or cloth of any description.

Lamps.

To manufacture, use, sell and deal in lamps, machinery and
appliances for the production, use or application of light or heat,
also to manufacture, use, sell and deal in all articles and things
to which the same may be applied or which may be necessary
or convenient in connection therewith; to own, hold, purchase,
acquire, mortgage, sell or otherwise dispose of all such tools,

_machinery, patterns and other personal or real property; and to
apply for, purchase, or otherwise acquire, and to hold, own, use,
operate, and to sell, assign or to otherwise dispose of, to grant
licenses in respect of, or otherwise turn to account any and all
‘such inventions, improvements and processes used in connection
with or secured under letters-patent of the United States or else-
where, as may be necessary or convenient for furthering the
‘business of the corporation.
972 Business Corporations; Ossect Causes.

 

Forms — L.

 

Laundry.

To carry on the business of a steam and general laundry, and
to wash, clean, purify, scour, bleach, wring, dry, iron, color, dye,
disinfect, renovate, and prepare for use all articles of wearing
apparel, household, domestic and other linen, and cotton and
woolen goods and clothing, and fabrics of all kinds, and to buy,
sell, hire, manufacture, repair, let on hire, alter, improve, treat
and deal in all apparatus, machines, materials, and articles of
all kinds, which are capable of being used for any such purposes.

Lead.

The objects for which said company is formed are as follows,
viz.: To acquire by purchase, lease or otherwise, and to own,
sell, lease, mortgage, convey, develop, improve and operate mines;
to own, acquire, construct, enlarge, improve, operate and carry
on works for smelting, parting, refining or working any base or
precious metals, or the products thereof, and factories for the
manufacture of lead in any and all commercial and medicinal
forms and qualities, and for the manufacture of pyroligneous
acid, ‘acetate of lime and charcoal by the process of destructive
distillation, carbon dioxide, magnesia and the products thereof,
together with factories or works for the purpose of’ producing,
refining or manufacturing linseed and castor oils and vegetable,
mineral or other oils and the products thereof, and composi-
tions, articles and apparatus from and. in connection therewith,
and to manufacture the products of said mines and said substan-
ces; and generally to carry on such manufacturing or other busi-
ness as may be necessary or convenient for the business and
operations of the company, or any part thereof; to buy, sell, trade
and deal in the products of said mines, factories, works and prop-
erties in their crude form, or in any state or stage of production
or manufacture, as well as the properties themselves, including
base and precious metals, lead and oils of every kind and quality,
and in any form or condition, and such other substances, prod-
ucts and materials as are commonly or conveniently used,
manufactured, bought or sold in connection with said business or
businesses, or any part or parts thereof, or as are necessary or
convenient in and about or connected directly or indirectly with
the transaction of the business of the said company,
f

Bustness Corporations; Onsect OLavszs. 973:

 

Forms — L.

 

Lead and Oil. ;

To mine lead and any other mineral or minerals and to sell or-
lease to others the right to mine such lead and other mineral or-
minerals; to acquire, deal in, buy, sell and otherwise dispose of -
ores, minerals‘and metals and to smelt, reduce, refine, mill and.
otherwise treat ores, minerals and metals; to corrode lead and.
other metals and to produce, manufacture, acquire, deal in, buy,
-sell and otherwise dispose of all products and compounds of lead
and all combinations into which lead or any of its elements enters;
and all products and compounds of other minerals, and all com-
binations into which any other mineral or any element thereof
enters; to atquire, hold and deal in oil lands, and search for, win,
get, produce, refine, manufacture, acquire, deal in, buy, sell and.
otherwise dispose of mineral, vegetable or other oils and any
liquid, chemical or drug useful in connection with the said pur-
poses or either of them, and in connection with the products,
combinations and compositions thereof; to purchase, acquire, own,.
erect, construct, lease, sell, supply, hold or hire and maintain any
lends, plant, plants, machinery, business or other things inci--
dental to or connected with any of the purposes aforesaid.

To grow, handle, buy, sell,'deal in, deal with and mill flaxseed
and other agricultural products; to acquire, own, hold and deal
dn lands or any interest therein suitable for growing flaxseed and
other agricultural products; also to acquire, own, hold, buy, sell
and deal in lands, buildings, elevators, tanks, mills and other
structures suitable or advisable for storing, treating, handling,
purchasing, selling, dealing in, milling and otherwise dealing
with and utilizing in any manner whatsoever flaxseed, linseed oil
and other agricultural products, and all things of whatsoever
nature useful or necessary in the growing, purchasing, selling,
owning, treating, handling, dealing in or dealing with, milling
and otherwise utilizing flaxseed, linseed oil and all other products.
thereof and other agricultural products, and to.buy, sell, produce,
deal in, deal with and refine linseed oil and all other products.
-or by- products of flaxseed.

Leather.

Manufacturing and selling leather, lumber, and belting, in-
cluding the acquisition and use in the manner and to the extent.
permitted by law, of all necessary and convenient lands, timber,
bark, mills, plants, machinery, supplies and other articles and
974 Bustxess Corporations; Ossect Cxauszs.

 

Forms — M.

 

property necessary to or convenient in connection with the manu-
facturing and sale of leather, lumber and belting, as aforesaid;
and in general to engage in any lawful business whatever, which
“may be found convenient or necessary in connection with the
business of manufacturing and selling leather, lumber and belt-
ing, as aforesaid.

Lumber.

To acquire by purchase or otherwise, own, buy, sell and deal
in standing timber and timber lands, and to buy, cut, haul, drive
and sell timber and logs, and to saw and otherwise work the
same, and to buy, manufacture and sell lumber, bark, wood, pulp
and all products made therefrom.

: Machinery. °

Manufacturing, buying and selling engines, boilers, machinery,
. tools, machine shop, foundry and factory supplies, and all kinds
of heavy hardware.

Malt.

Manufacturing, selling and dealing in malt and its by-products
or products incidental thereto, and all other products in the manu-
facture of which malt is or may be used, and the business incidental
thereto.

Mining.

To purchase, take, on lease, or otherwise acquire, any mines,
mining rights, and metalliferous land, and any interest therein,
and to explore, work, exercise, develop, and turn to account the
same. (2) To crush, win, get, quarry, smelt, calcine, refine, dress,
amalgamate, manipulate, and prepare for market, ore, metal, and
mineral substances of all kinds, and to carry on any other metal-
lurgical operations which may seem conducive to any of the com-
pany’s objects. (3) To buy, sell, manufacture, and deal in min-
erals, plant, machinery, implements, conveniences, provisions, and
things capable of being used in connection with metallurgical oper-
ations, or required by workmen and others employed by the com-
pany. (4) To construct, carry out, maintain, improve, manage,
work, control, and superintend any roads, ways, tramways, rail-
ways, bridges, reservoirs, watercourses, aqueducts, ‘wharves, fur-
naces, sawmills, crushing works, hydraulic works, electrical works,
factories, warehouses, ships, and other works and conveniences
which may be necessary, directly or indirectly, in connection with
Business Corporations; Opsect CLavszs. 975

 

Forms — O., P. ;

 

any of the objects of the company, and to contribute to, subsidize,
or otherwise aid or take part in any such operations. :

Oil.

To produce, purchase, store, refine and deal in petroleum and
its products at both wholesale and retail, and to manufacture all
,or any of the products of petroleum, and packages for holding the
same. .The corporation may also purchase, acquire, hold and dis-
pose of the stocks, bonds and other evidences of indebtedness of
‘any corporation, domestic or foreign, and issue in exchange there-
for its stock, bonds or other obligations.

Paper.

The purposes for which said corporation is formed are the main-
taining, conducting and managing in the State of New York and
elsewhere, ‘the business of manufacturing, producing, purchasing,
selling and dealing in any and all kinds of paper, and in all ingre-
dients, products and compounds thereof, and in any and all ma-
terials that now are or hereafter may be-used in, or in connection
with such manufacture, including the manufacture and produc-
tion of wood pulp and any other fibre, and, as a part of and inci-
dent to such business, mining of iron pyrites, clay, sulphur, coal,
agolite and in fibrous minerals and materials; the purchase, lease
or other acquisition and the development of woodlands, and the
manufacture, sale and disposition of any surplus products of said
woodlands; and the production and sale of any surplus or by-
products in such business; with the right in connection with its
business to purchase or acquire, and to own, use, sell and assign
patents, patent rights, inventions and processes connected with the
manufacture of wood-pulp or paper, or of any other materials and
products used in or connected with such manufacture, or with
any other lawful business of the corporation or resulting there-
from ; to purchase, acquire, build, own and rent or sell dwellings ;
to gatablish, own and carry on stores for the selling of merchan-
dise; to purchase, acquire, hold, sell and convey in the State of
New York and elsewhere in the United States and Canada or else-
where, such real estate and personal property as may be necessary
or proper for the business or purposes of the corporation; and
generally to do any and all things which may be necessary or
proper in connection with said business, and which may not be
contrary to law.
976 Bustness Corporations; Ossect CLavsEs.

 

Forms — P.

 

Passenger and Baggage Transfer.

The purchase and sale of horses, the manufacture, purchase
and sale of carriages, whether drawn by animal power, or pro-

_pelled by steam, electricity or other motive power, the leasing and

hiring of buggies, carriages, coupés, coaches, carts, wagons, auto-
mobiles, motor vehicles, whether drawn by animal power or pro-
pelled by steam, electricity or other motive power; the leasing
and letting for hire of horses; the transferring, delivering and
‘storing of all kinds of freight, baggage and other commodities;
the boarding of horses and other animals; the storage and care of
all kinds of vehicles; the conducting and carrying on of a general
livery; boarding stable, and passenger, baggage and freight trans-
fer business at the city of , and. at
various other cities, towns and villages in the State of New York,
together with all other business connected therewith, or in any
‘way incidental thereto.
Photography.

To engage in and conduct a general photographic business; to
buy, sell, own, hold, deal in and deal with all materials of any
and every character necessary or useful in connection with the said
business; to buy, sell, own, hold, deal in and deal with works of
art, pictures and prints of all kinds and description, brie-a-brac,
objects of vertu, statuary, glassware, china ware, furniture, tapes-
tries, laces, gold and silver ware and other ornamental metal ware,
-and faney goods of every kind and description.

Pottery.
To manufacture, buy, sell and deal in pottery, ceramic and earth-

- enware generally, and to mine, manufacture, prepare, buy, sell

and deal in all products and atevtals bace in or pertaining to
-such manufacture.

Poultry Farm.

Raising and selling of poultry, selling of eggs, and manufactur-
ing and selling of chicken food.

\ Powder.

Manufacturing powder, dye stuffs and chemicals, and to manu-
facture goods, wares and fabrics of wood, metal, glass, leather,
Business Corporations; Opsect OCLavszs. 977

 

Forms — P.

 

‘paper, wool, cotton, silk or other material, and for the purposes
aforesaid may construct, repair and maintain upon their own
lands suitable dams, canals, watercourses, machine shops, build-
ings and machinery, and may purchase and hold such real estate

and personal property as may be necessary to effect the objects
-of the corporation.

Powder.

Manufacturing and selling gun and blasting powder of all kinds,
_ also all kinds of explosives and iron explosives, and the transac-
tion of any and all business and the doing of any and all acts or
things connected with the transaction of a general manufacturing
-business.

4

Prismatic Glass.

To manufacture, sell, barter, trade in, repair and in any man-
‘ner whatsoever to deal in all kinds and descriptions of glass, prisms,
prismatic lights, illuminating tiles of all kinds, vault and sidewalk
lights and prisms, skylights, ornamental and- stained glass of' all
kinds, metallic bars, all plain and ornamental iron work, sash, and
generally to do all manner of acts that may lawfully be done in
relation thereto.

Public Work Contractors.

To construct, erect, build, equip, improve, and repair public
works and conveniences of all kinds, including railways, tramways,
docks, harbors, piers, warehouses, wharves, canals, tunnels, sub-
ways, reservoirs, embankments, irrigation systems, reclamation, im-
provement, sewage, drainage, sanitary, water, gas, electric light,
telephonic, telegraphic, and power supply works, and hotels, ware-
houses, markets and public buildings, and all other works or con-
‘veniences of public utility; to purchase, or otherwise acquire, any
contracts and concessions for or in relation to the construction,
‘building, erection, equipment, improvement and repair of public
works and conveniences, and to undertake, execute; carry out, dis-
pose of, or otherwise turn to account the same; to. carry on the
‘business of miners, metallurgists, builders and. contractors, engi-
neers, farmers, graziers, shipbuilders, merchants, importers and
exporters, and to buy, sell and deal in property of all kinds.

62
978 Bustness Corporations; Ossect CLavsEs.

 

Forms — Q., R.

 

Quarry.
To quarry, manufacture and prepare for market and for all
building and other purposes, marble, granite, stone and building
materials of every name and nature.

To enter into contracts for the erection, construction and com-
pletion of buildings and structures of all kinds.

To do a general quarrying, construction and building business,
and everything in-the line thereof.

To import, export, buy, sell, manufacture, merchandise, trade
and deal in marble, granite, and stone and other building mate-
rials, and other goods, wares and merchandise.

To take, acquire, buy, build, construct, erect, hold, own, sell,
lease, and mortgage any land, real estate or interest in real estate,
quarries, buildings, factories, plants, engines, machinery, imple-
ments, and other works and conveniences which may seem directly,
or indirectly, conducive to any of the business of the company.

To carry on any other business of the same general character,
whether manufacturing or otherwise, which may seem to the com-
pany capable of being conveniently carried on in connection with
the above, or ealculated, directly or indirectly, to enhance the value
of the company’s property or rights.

Railway Cars.

The manufacturing and selling of railway cars, passenger,
freight and street cars; the manufacturing and selling of car
trucks, car wheels, and any and all parts of cars or car trucks, in-
cluding truck frames and all the accessories thereof, and all car
equipments and appliances and apparatus; the manufacture and
sale of all of the products of steel, or all iron or all other metals,
and of wood, or all other materials; the manufacture and sale of
iron castings, steel castings, machine bearings, malleable iron; the
manufacture and sale of all kinds of springs, including car springs ;
the manufacture and sale of all kinds of water pipes and gas pipes,
or other pipes; to manufacture, purchase or otherwise acquire, to
hold, mortgage, pledge, sell, assign and transfer or otherwise dis-
pose of, to invest, trade, deal in and with the products, materials,
goods, wares and merchandise and property of every class and
description, including the right to enter into or upon any and
Business Corporations; Onsect CLAusEs. 979

 

Forms — R.

 

all mercantile business or businesses, and for that purpose to ac-
quire by purchase, lease or otherwise, stores or property available
therefor, and to operate and maintain any and all stores or ware-
houses or business houses necessary or expedient for such pur-
poses; to make, purchase, sell and deal in manufactured articles,
and to acquire and dispose of rights to make and use the same;
to purchase, lease, or otherwise acquire all or any part of the
business and assets of any person, firm or corporation now or here-
after engaged in a business similar to that proposed to be carried
on under this certificate of incorporation, and in the purchase of
any such business or assets to assume any and all liabilities that
may be then existing upon any such business or assets so pur-
chased ; to purchase or otherwise acquire mines and mining lands;
to mine any and all metals; to engage in mining in all of its
branches, and to sell or dispose of the products of such mining;
to engage in smelting in all its branches; to purchase or otherwise
acquire lumber lands; to cut and mill lumber; to establish and
operate lumber mills, and to sell and dispose of and deal in lum-
ber, and to, engage in the lumber business in all of its branches;
to establish and. operate rolling-mills; to acquire by lease, pur-
chase or otherwise any and all real estate necessary and conve-
nient for the establishment and operation of rolling-mills, and to
operate and maintain the same.

Real Estate.

The purpose or purposes for which it is to be formed are the
buying, selling, renting and exchanging of real property, im-
proved and unimproved, the building, construction and alteration
of houses thereon, and the management and development of real
property generally; to purchase, manufacture, acquire, hold, own,
mortgage, pledge, lease, sell, assign and transfer, to invest, trade,
deal in and deal with goods, wares and merchandise and property
of every kind and description, and to carry on any of the above
business or any other business connected therewith, wherever the
same may be permitted by law, either manufacturing or otherwise,
and to the same extent as the laws of this State will permit, and
as fully and with all the powers that. the laws of this State con-
fer upon corporations and organizations under this act, and to do
any and all of the business above mentioned and set forth to the
game extent as natural persons might or could do.
980 Business Corporations; Ospgsect CLavses.

 

Forms — R., S.

Real Estate Agency and Brokerage.

To transact a general real estate agency and brokerage business,
including the management of estates; to act as agent, broker or
attorney in tact for any persons or corporations in buying, sell-
ing, and dealing in real property and any and every estate and
interest therein, and choses in action secured thereby, judgments
resulting therefrom, and other personal property collateral thereto,
in making or obtaining loans upon such property, in supervising,
managing and protecting such property and loans and all interests
in and claims affecting the same, in effecting insurance against
fire and all other risks thereon, and in managing and conducting
any legal actions, proceedings and business relating to any of the
purposes herein mentioned or referred to; to register mortgages
and deeds of trust of real property or chattels real and all other
securities collateral thereto; to investigate and report upon the
credit and financial solvency and sufficiency of borrowers and
sureties upon such securities; to purchase and hold real property
and any and every estate and interest therein, and choses in action
secured thereby, judgments resulting therefrom, and other per-
sonal property collateral thereto; to improve, manage, operate,
sell, mortgage, lease and otherwise dispose of any property so ac-
quired; to loan upon such property, and to take mortgages and
assignments of mortgages of the same; and to transact all or any
other business which may be necessary or incidental or proper to
the exercise of any or all of the aforesaid purposes of the corpora-
tion.

Rubber.

Making, purchasing and selling rubber boots and shoes and all
goods of which rubber is a component paft, and the various mate-
rials entering into the manufacture of any and all such goods, and
also the acquiring and disposing of the right to make and use
such goods and materials, and the doing and transacting all acts,
business and things incident to or relating to or convenient in
carrying out its business as aforesaid, which are authorized by
law.

Sanitarium. :

To establish and maintain an institution or institutions for the
treatment and eare of the sick, and to establish and maintain a
school or schools for the training of nurses for the care of the
sick.
Business Corporations; Ossect CiavsEs. 981

 

Forms — 8.

 

Saw Mills.

To carry on business as timber merchants, sawmill proprietors,
‘and timber growers, and to buy, sell, grow, prepare for market,
manipulate, import, export, and deal in timber and wood of all
kinds, and to manufacture and deal in articles of all kinds in the
manufacture of which timber or wood is used, and to carry on busi-
ness as shipowners, and, so far as may be deemed expedient, the
business of general merchants, and to buy, clear, plant, and work:
timber estates, and to carry on any other businesses which may
seem to the company capable of being conveniently carried on in
connection with any of the above, or calculated directly or indi-
rectly to render profitable or enhance the value of the company’s
property or rights for the time being.

Securities.

To loan money secured by mortgages on personal property or
‘real estate; also to buy, sell and deal in bonds, notes, loans secured
by mortgages or other liens on personal or real estate, also to pur-
chase, hold, improve, sell or exchange real estate, also to pur-
chase, sell and deal in notes, bonds, stocks, securities or investments
of any kind, with full power to borrow such moneys as it may re-
-quire for the purpose of its business.

Soap.

To carry on the business of manufacturers of soap, candles, per-
‘fumes and toilet articles; to buy, sell, manufacture, refine, pre-
pare and deal in all kinds of oils and oleaginous and saponaceous
substances, and all kinds of unguents and ingredients; to manu-
facture all kinds of boxes and cases either wholly or partly of
-eard, wood, metal or otherwise. a

Slaughtering Cattle.

To carry on the business of slaughtering cattle, calves, pigs,
‘sheep, lambs and other animals for food purposes, and dealing
in and contracting for the purchase and sale of all kinds of prod-
ucts, hides, oil, fat, offal, horn, glue, fertilizers and other by-prod-
ucts arising out of the slaughtering of animals for food purposes
‘or in connection therewith, and to manufacture, buy, sell, ex-
change and deal in the above specified products and in all mate-
rials used in the manufacture of food products, fertilizers, or in
any of the matters aforesaid.

‘
ee
on
to

Business Corporations; Ossect Causes.

 

Forms — §.

To carry on as principals, agents, commission merchants or
consignees, the business of buying and selling all kinds of live.
stock, and the business of manufacturing oils, fats, tallows, fer-
tilizers, glue, bone business, and dealing in hides, fats, offal, horn
and any of the materials used in the manufacture of the products.
therefrom, and to carry on as such principals, agents, commission
merchants or consignees any other business which may be con-
veniently conducted in conjunction with any of the matters afore-
said.

Slate and Tile.

To buy and sell slate, tile, marble, and all kinds of building: »
materials, and to manufacture and sell marble, tile and slate fix-
tures and articles, and to furnish buildings and structures with.
the same, and likewise to erect, improve and alter buildings.

Stationers, etc.

To carry on the businesses of stationers, printers, lithogra-
phers, stereotypers, electrotypers, photographic printers, photo-
lithographers, engravers, die sinkers, bookbinders, account book.
manufacturers, dealers in parchment, dealers in stamps, advertis-
ing agents, designers, draughtsmen, ink manufacturers, booksell--
ers, publishers, paper manufacturers, and dealers in the materials.
used in the manufacture of paper, and dealers in or manufacturers.
of any other articles or things of a character similar or analogous.
to the foregoing, or any of them, or connected therewith.

Steam.

The objects for which the corporation is formed are the manu--
facturing, producing, vending, and supplying of hot water, or
steam, hot air or other aeriform fluids for motive power, heating,
cooking or other useful applications i in the streets, public places,
public and private buildings in the city of » and
manufacturing and laying of mains and pipes as conductors for
conveying such hot water, hot air or steam or fluids from the-
streets, avenues, lanes, alleys, squares and highways of said city,..
for the purpose of supplying the same to the city and its inhab--
itants.

Storage Batteries.

To manufacture, buy, sell, lease and rent all kinds of storage
batteries, all kinds of élocivieal machinery and appliances and
all kinds of machines and machinery and all kinds of property
Business Corporations; Ospsect Causes. 983

 

Forms — S., an:

 

cand any material in any way used or to be used in or about said

articles or said business.
Sugar.

To manufacture, refine, purchase, sell and deal in sugar, mo-
lasses and melada, glucose, syrup, starch, feed and such other prod-
“ucts and by-products as are incidental thereto.

To propagate, cultivate and develop the different varieties of
‘the grape, and to manufacture sugar, wines and brandies there-
from, and to cultivate sugar cane, sugar beets, cotton, tobacco,
‘indigo, rice, wheat, rye, oats, corn and other products of the earth ;.
‘to manufacture and prepare the same for market, and to buy
‘sell, deal in and transport the same. :

Theatrical.

The purposes for which it is to be formed are as follows: To.

‘encourage and cultivate a taste for music, literature and the arts,
-and to erect, maintain, purchase or rent. one or more buildings
for that purpose; to give or cause to be given in the cities of New
‘York and Boston, and any other cities or towns in the United
“States and elsewhere, operatic or dramatic representations, con-
-eerts and other entertainments; to acquire, equip and maintain
‘by purchase, lease or otherwise, one or more theatre or opera
“houses; to acquire all necessary costumes, scenery, properties, mu-
-sical libraries, and other material for use in connection with the
giving of operatic or dramatic entertainments.

Theatrical.

To purchase, ee own and manage theatres, opera houses
and similar places of amusement; to sell, mortgage, let or other-
wise dispose of such theatres, said other places of amusement, and
‘to carry on the business of managers-and proprietors of hentres,
opera houses and other similar place of amusement; to employ
singers, musicians and other persons for the purposes ‘at the busi-
“ness ; to acquire, own and dispose of plays, copyrights and dramatic
and musical productions and rights of every kind therein for the
purposes of the business, and generally to aequire, hold, manage
‘and dispose of property of every kind pertaining to such business,
and to do everything necessary and proper to the conduct of such
‘business.

Theatrical.

To carry on the business of theatre proprietors and managers,

cand in particular to provide for the production, representation

1
984 Busrness Corporations; Ossect Cravsss.

 

Forms — T., W.

 

and performance of opera, stage plays, operettas, burlesques, vaude-
villes, ballets, pantomimes, spectacular pieces, promenade and other
concerts, and other musical and dramatic performances and enter-

tainments.
Tobacco.

To carry on the businesses of manufacturers of and dealers in
tobacco, cigars, cigarettes, matchlights, pipes, and any other arti-
cles required by or which may be convenient for smokers, and of
snuff grinders and merchants and box merchants, and to deal in any
other articles and things commonly dealt in by tobacconists.

Tobacco.

The purposes for which it is formed are to cure leaf tobacco,.
and to buy, manufacture and sell tobacco in all its forms and to-
purchase and establish factories and establish agencies and depots
for the sale and distribution of tobacco in all its forms, and to
transport or cause the same to be transported, as an article of
commerce, and to do all things incidental to the business of trad-
ing and manufacturing aforesaid.

Trucking.

To carry on a general trucking, contracting wend stevedore busi-
ness, and to that end, to manufacture, acquire, deal in, advertise:
and dispose of trucks, carriages and other vehicles and kindred.
appliances, and to trade and deal in draft animals and apparatus:
and other things properly appertaining and belonging to said

business.
Water.

To acquire water by purchase, development or otherwise; to:
construct reservoirs or water towers, erect pumping machinery,
laying of water mains, pipes, gates, valves and hydrants; to fur-

nish and sell water to manufactories,- private corporations and
individuals for fire protection, manufacturing and domestic use,
and collect payment or rentals for the same.

(See section 16 of the Business Corporations Law and notes

thereunder. )
Wharf and Warehouse.

To carry on the business of storage, wharfage, wardhinitag and
forwarding, end the doing of each and every act or acts, thing or
things, incidental to or growing out of, or connected with said
business, including the owning, leasing, holding, erecting and
maintaining of docks, bulkheads, piers, basins and warehouses;
the storage of all kinds of goods, wares and merchandise; the:
Business Corporations; Incorporation OF. 985

 

Example of Certificate of Incorporation.

 

exorage and docking of ships, steam vessels and boats of every
kind and deseription ; the loading and unloading thereof ; the issue
of storage, dock and warehouse receipts, negotiable and non-nego-
tiable, covering all kinds of goods, wares and merchandise ; the pur-
chase and sale of goods, ware and merchandise, ships, sigamiers,
vessels and boats of all kinds; the collection and receipt of dockage,
wharfage and storage dues and other compensation ; the purchasing,
holding, acquiring, selling, leasing, mortgaging and conveying real
estate and personal property necessary for the convenient conduct-
ing of the aforesaid business; the loaning of money on the pledge
of goods, wares, merchandise and other property or on the pledge
of storage, dock or warehouse receipts therefor; and the advanc-
‘ing of freights, duties, fire and marine insurdnce and liens of
every kind and nature upon goods, wares and merchandise received
on storage or for the purpose of being warehoused or forwarded
upon the pledge of said goods, wares and merchandise or upon .
the pledge of storage, dock or warehouse receipts therefor.

Woolen and Worsted.

To carry on the trade or business of manufacturing, producing,
adapting, preparing, buying and selling and otherwise dealing in
woolen and worsted goods and other fabrics, and to manufacture,
produce, purchase, adapt, prepare, use, sell or otherwise deal in
any materials, articles or things required for, in connection with,
or incidental to, the manufacture, use, purchase, sale of, or other
dealing in woolen and worsted goods and other fabrics; and gen-
erally to carry on any other manufacturing business which can
conveniently be carried on in conjunction with any of the matters
aforesaid.

EXAMPLES OF CERTIFICATES OF INCORPORATION.
* Certificate of Incorporation of The Almada Sugar Refineries Company.
Under the Business Corporations Law, § 2.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the United States, and at least one
of us a resident of the State of New York, desiring to form a
stock corporation, pursuant to the provisions of the Business Cor-

 

_*For general form of certificate of incorporation pursuant to section 2 of the Business
Corporations Law, see form No. 54.
986 Business Corporations; IncoRPoRATION OF.

 

Example of Certificate of Incorporation.

 

porations Law of the State of New York, do hereby make, sign,
acknowledge and file this certificate for that purpose, as follows,
to-wit:

First. The name of the proposed corporation is

Tur Avumapa Sucar REerrnerreEs Company.

Second. The purposes for which it is to be formed are as
follows:

To manufacture, refine, purchase, sell and deal in sugar, mo-
lasses and melada, glucose, syrup, starch, feed and such other
products and by-products as are incidental thereto.

To propagate, cultivate and develop the different varieties of
the grape, and to manufacture sugar, wines and brandies there-
from, and to cultivate sugar cane, sugar beets, cotton, tobacco,
indigo, rice, wheat, rye, oats, corn and other products of the earth,
to manufacture and prepare the same for market, and to buy,
sell, deal in and transport the same.

To purchase or otherwise acquire, hold, sell and deal in landed
property in the United States of America or in any colony, de-
pendency or district thereof, in Mexico, or in any foreign or
other country, and to develop the resources and to turn to ac-
count the lands, buildings and rights for the time being of the
company in such manner as may be deemed desirable, and in
particular by clearing, draining, irrigating, fencing, planting,
building, improving, farming, grazing and mining.

To conduct and carry on the business of farmers, grazers, meat
and fruit preservers, brewers, planters, miners, metallurgists,
quarry owners and operators, brickmakers, builders, contractors
for the construction of works, both public and private, merchants,
importers and exporters, printers, publishers, brokers, shipbuild-
ers, shipowners, and the business of using, hiring and operating
ships, boats, steam, sail and other vessels in connection with the
operations of the company.

To acquire water by purchase, development or otherwise; to
construct dams, reservoirs, water towers and water ways, laying
of water mains, pipes, gates, valves and hydrants; to furnish and
sell water to manufactories, private corporations, associations,
firms and individuals for fire protection, manufacturing, power,
irrigating and domestic purposes, and collect payment of rentals
for the same.
Business Corporations; [ncoRroraTIon oF. 987

 

Example of Certificate of Incorporation.

 

‘To coristruct, equip, improve and develop public and private
works of all Andie including railways, railroads, docks, harbors,
piers, wharves, eaunles reservoirs, sewage, drainage, sanitary,
water, gas, power supply works, warehouses, and buildings, pub-
lic or private, tunnels, bridges, conduits, viaducts and all other
works of public or private use or utility, and also to build, own,.
purchase or otherwise acquire for its own use and operation rail-
ways and railroads, but such use and operation to be solely in
connection with and appurtenant to the business of the corpo-
ration as herein set forth and not for public purposes.

To manufacture, purchase, or otherwise acquire, deal in, hold,
own, manage, sell, pledge, transfer, or otherwise dispose’ of,
goods, wares, fecha ice and property of any and every class
and description.

To acquire the good will, rights and property of any person,
firm, association or corporation, and to pay for the same in cash,
the stock of this company, bonds or otherwise, and to hold or in
any manner dispose of the whole or any part of. the property so
purchased; or to conduct in any lawful manner the whole or any
part of the business so acquired, provided such business is within

_the authorization of the Business Corporations Law, and to ex-
ercise all the powers necessary or convenient in and about the
conducting and management of such business. .

To purchase or otherwise acquire, hold, own, mortgage, pledge,
sell, assign, transfer, and generally to invest, trade and deal in
personal property of every class. and description. '

To buy, sell, deal in, lease, hold or improve real estate, and
the fixtures and personal property incidental thereto or connected
therewith, and, with that end in view, to acquire, by purchase,
lease, hire or otherwise, lands, tenements, or hereditaments, or
any interest therein, and to improve the same, and generally to
hold, manage, deal “with and improve the property of the com-
pany, and to sell, lease, mortgage, pledge or otherwise dispose of
the lands, tenements, and hereditaments or other property of the

company.

To apply for, obtain, register, purchase, lease or otherwise to
acquire and to hold, use, own, operate and introduce, and to sell,
assign or cihtermiss dispose of, any trademarks, tradenames,
patents, inventions, improvements and processes ned f in connec-
tion with or secured under letters-patent of the United States,

, a
988 Business Corporations; INcoRPORATION OF.

 

‘ Example of Certificate of Incorporation.

 

or elsewhere or otherwise, and to use, exercise, develop, grant.
licenses in respect of, or otherwise. turn to account any such
trademarks, patents, licenses, processes and the like, or any such
property or rights, provided always that the terms “use” and

“ operate ” shall not be deemed to include any business except.
such as is permitted by the Business Corporations Law.

To purchase, acquire, hold and dispose of the stocks, bonds, and
other evidences of indebtedness of any corporation, domestie or
foreign, and issue in exchange therefor its stock, bonds or other
obligations, and, while owner of any such stock, bonds or ‘other
obligations, to possess and exercise in respect thereof, all the
rights, powers and privileges of individual owners or holders
thereof, and to exercise any and all voting power thereon.

To make, purchase, or otherwise acquire, deal in, and to carry
out any contracts for or in relation to any of the foregoing busi-
nesses that may be necessary and lawful under the act pursuant
to which this corporation is organized.

To make any guarantee respecting dividends, stocks, bonds,
contracts or other obligations so far as the same may be permitted
by corporations organized under said Business Corporations Law.

To do all and everything necessary, suitable and proper for
the accomplishment of any of the purposes or’ the attainment of
any of the objects or the furtherance of any of the powers here-
inbefore set forth, either alone or in association with other cor-
porations, firms or individuals, and to do every other act or acts,
thing or things incidental or appurtenant to or growing out of or
connected with the aforesaid business or powers or any part or
parts thereof, provided the same be not inconsistent with the laws
under which this corporation is organized.

Third. The amount of the capital stock is three million five
hundred thousand dollars ($3,500,000).

Fourth. The number of shares of which the capital stock shall
consist is thirty-five thousand (35,000), of the par value of one
hundred dollars ($100) each, and the amount of capital with
which said corporation will begin business is one thousand dol-
lars ($1,000).

Fifth. The principal business office of the corporation is to be
Jocated in the city of New York, county of New York, State of
New York, but the corporation shall have power to eon its
business in all its branches, or any part thereof, in any of the
Bustness Corporations; IncorPoraTion oF. 939+

 

Example of Certificate of Incorporation.

 

States, territories, colonies and dependencies of the United States,..
in the District of Columbia and in any and all foreign or other:
countries, to have one or more offices therein, to hold, purchase,
mortgage and convey real and personal property without limit as.
to amount, in any such State, territory, colony, dependency, dis-
trict or foreign or other country, but always subject to the laws.
thereof. -

Sixth. Its dation 4 is’ to be perpetual.

Seventh. The number of its directors is to be —— and it is
hereby provided, pursuant to law, that directors are not required.
to be stockholders.

Eighth. The names and post-office addresses of the directors.
for the first year are as follows:

Names. Pust-office addresses.

eee ee we ee ee ee ewe hmmm wm ee wwe rw eee

eee ewe wee ee eee hhh ee wm we we we ee

Ninth. The post-office addresses of the subscribers of this cer~
tificate and a statement of the number of shares of stock which.

each agrees to take in the corporation, are as follows:

Number
f Names. Post-office addresses. of shares.

In’ Witness WHEREOF, we have made, signed and acknowledged.
this certificate in duplicate.

Dated, this 8th day of October, 1901.

[Here follow signatures of the incorporators and acknowledg-
ment. |

*Certificate of Incorporation of the Company.
Under the Business Corporations Law, § 2.

 

We, the undersigned, all being of full age, at least two-
thirds being citizens of the United States and at least one
of us a resident of the State of New York, desiring to form
a stock corporation pursuant to the provisions of ‘the

 

* For general form of certificate of incorporation pursuant to section 2 of the Business
Corporations Law, see form No. 54,
'
290 Business Corporations; INcoRPORATION OF.

 

‘Example of Certificate of Incorporation.

 

Business Corporations Law of the State of New York, do hereby
make, sign, acknowledge and file this certificate for that purpose
as follows:

One. The name of the proposed corporation is the
x
Nationat ABRAsivE Manuracturina Company.

Two. The purposes for which it is to be formed are the fol-
lowing:

1. To purchase, lease and otherwise acquire mines, mining
rights and lands in North Carolina and in any other State or
territory and to hold, work, develop, lease and sell the same; and
to mine, quarry and take out corundum, garnet, kaolin, copper,
iron and all other abrasives, abrasive materials, earths, ores, met-
als, and minerals, and to crush, clean, reduce, smelt, refine, treat,
dress, prepare for market, market and sell the same, and (as
principal, agent, commission merchant or consignee), to manu-
facture, sell and deal in all articles and products in the manu-
facture or composition of which the same or any of them are
factors, and all things necessary or convenient for use in connec-
tion therewith.

2. To buy and sell standing timber and timber lands and to
buy, cut, haul, drive and sell timber and logs, and to saw, and
otherwise work the same, and to buy, manufacture and sell lumber,
bark, wood, pulp and all products made therefrom or to ne used
thereby.

3. To establish, own, maintain, sell, lease, and grant ieee
with respect to providing parks, game preserves, and fisheries,
and to preserve, protect, take and sell game and fish of all kinds.

4. As principal, agent, commission merchant or consignee, to
buy, sell and deal in machinery, implements, provisions, liquors,
clothing and all materials and things which can be advanta-
geously dealt in by the corporation.

5. To buy, lease or otherwise acquire the whole or any part :
of the business, good will, money and assets of any person, firm,
association or corporation (either foreign or domestic), engaged
in a business of the same general character as that for which this
corporation is organized, and other personal property of every
kind and wherever situated.

6. To buy, lease. or otherwise acquire, own and hold for invest-
N

Business Corporations; Incorporation oF. 991

 

Example of Certificate of Incorporation. |

 

ment or otherwise, develop, improve, mortgage, sell and deal in
lands and interests in lands of all kinds in the State of North
Carolina, and in any other State or territory, and upon its own
lands or otherwise to build, own, maintain, use, operate, lease
and sell dwellings, hotels, inns, sanitariums and resorts, and ware-
houses, shops, stores, distilleries, factories, mills, plants, works,
and machinery of all kinds suitable for any mining, manufactur-
ing, agricultural or mercantile purposes, so far only as may be
necessary or proper for carrying out the purposes for which this
corporation is organized; and to grant to other persons, firms or
corporations the right or privilege to carry on any kind of busi-
ness on the lands or premises of the corporation on such terms
as it shall deem expedient or proper.

7. To buy or otherwise acquire any inventions, improvements
and processes and any letters-patent, licenses and trademarks
of the United States or other countries, and to use, exercise, de-
velop, sell and grant licenses in respect to the same. ,

8. To purchase, subscribe to, acquire, hold and dispose of the
-stocks, bonds and other evidences of indebtedness of any corpo-
ration, domestic or foreign, for whatever purpose organized and
in whatever business engaged, and in particular the corporations
for and engaged in mining, manufacturing or dealing in abrasive
materials and the products. thereof, and articles and supplies use-
ful and ‘connected therewith, or owning, conducting and operating
mines, factories, works or plants, used in the mining, manufac-
‘turing or transportation of such materials, products, articles and |
supplies; to issue in exchange for such stock, bonds and other
evidences of indebtedness its own stock, bonds and other obli-
gations, or to pay therefor in cash or otherwise; to hold for in-
vestment, own, sell, deal in, guarantee, dispose of and turn to
account any such stock, bonds or other securities, and while own-
ers or holders thereof to exercise all the rights and powers of
ownership, including the right to vote thereon for any purpose;
‘to do any acts or things necessary or proper for the protection
or development of any such corporation or for the preservation,
improvement or enhancement of the value of any such stocks,
bonds or: other securities, and any acts or things designed for
any such purposes; and to control and manage the affairs and
take and carry on all or any part of the business or property, and.
to guarantee or assume any liability of any such corporation; and
“992 Bustness CorporaTions; INCORPORATION OF.

 

Example of Certificate of Incorporation.

 

the corporation is authorized to do any and all of said acts or
things.

9. To engage in any other: mining, agricultural, manufactur-
ing, mercantile or construction business of any kind or character
whatsoever, other than the business of a moneyed corporation or
a corporation provided for by the Banking, the Insurance, the
Railroad and the Transportation Corporation Laws.

10. To conduct any or all of its business and to do anyone
or more of the acts and things herein set forth as its purposes
outside of the State of New York and in the State of North
Carolina, and in other States, territories and dependencies of the
United States and in foreign countries; and the corporation may
conduct its said business and do the said acts and things or any
of them in any of said States, territories, dependencies or for-
eign countries, and may have one or more offices out of the State
of New York, and may hold, purchase, mortgage or convey real
or personal property of every kind out of the said State.

And the corporation shall have power to make and carry out
and contract and to do any act and exercise any power which
a copartnership or individual person could lawfully do and exer-
cise, so far only as may be necessary or proper for carrying out
the purposes for which this corporation is organized; but the
corporation shall not do any act or thing forbidden by law to a
corporation organized under the Business Corporations Law of
said State.

Third. The amount of the capital stock is one million five
hundred thousand dollars ($1,500,000). The capital stock may
be increased from time to time as may be permitted by law. No
preferred stock shall be created or issued without the consent of
the holders of record of a majority of the capital stock outstanding.
‘ Fourth. The number of shares of which the capital stock shall
consist is fifteen thousand, and each of said shares shall be of the
par value of one hundred dollars ($100). The amount of capital
with which said corporation will begin business is one thousand
dollars ($1,000).

Fifth. The location of its principal business office is in the
borough of Manhattan, in the city, county and State of New York.

Sixth. Its duration is to be one hundred years.

Seventh. The number of its directors is to be eleven:

The directors need not be stockholders of the corporation.
Business Corporations; Incorporation oF. 993

 

Example of Certificate of Incorporation.

 

A majority of the stockholders shall be necessary to constitute
-a quorum for the transaction of business at any meeting of the
‘board, but a less number may adjourn.

The directors may hold their meetings and have an “Office out-
‘side the State of New York.

The board of directors, by an affirmative vote of a majority
of the whole board, may appoint an ‘executive committee of five
stockholders, of whom a majority shall constitute a quorum.
Whenever the board of directors is not in session such commit-
‘tee shall have. and may exercise any and all powers of the board
-of directors, including the power to cause the seal of the corpo-
ration to be affixed to all papers that may require it. The term
of office of each member of said committee shall continue until
the expiration of his term as director and until his successor shall
be elected. Vacancies in this committee may be filled by the con-
current vote of three members of the committee or by like vote
of a majority of all of the directors.

The directors shall not make any dividends except from the sur-
plus profits arising from the business of the corporation. The
directors may, in any year, set apart from such surplus profits
‘the amount thereof to be determined by them as working capital
or as a reserve or surplus fund to meet liabilities or contingencies,
‘before declaring any dividend on the capital stock.

Stock in other corporations or associations held by this cor-
poration shall be voted in the name of this corporation by such
of its officers as the board of directors shall designate by majority
-vote of their whole number, or by a proxy thereunto duly author-
ized by like vote of said board, except as otherwise ordered by
-vote of the holders of a majority in interest of the capital stock
issued and outstanding.

Eighth. The names and post-office addresses of the directors
for the first year are as follows:
Names. ‘ Post-office addresses.

ecm ee weet ewe ee we ee ee eee eo ew eee dU te
994 Bustness Corporations; [ycorporaTIoNn OF.

 

‘ Example of Certificate of Incorporation.

 

Ninth. The names and post-office addresses of the subscribers
to the certificate and the number of shares which each agrees to
take in the corporation are as follows:

Nam:s. Post-ofiice addresses. of shares.

a
eee ewe me ee ewe wee we eee te ee ee he et ee ee eee Ul le

The directors shall be divided, with respect to the time for
which they shall severally hold office, into three classes, each
consisting of one-third of the whole number of the board of direct-
ors as it may from time to time be constituted, unless the number
of the directors be not a multiple of three, in which case each
class shall consist as nearly as possible of one-third of such number.
The directors of the first class shall be elected for a term of one
year, the directors of the second class for a term of two years
and the directors of the third class for a term of three years; and
at each annual election the successors to the class of directors whose
terms shall expire in that year shall be elected to hold office for
the term of three years so that the term of office of one class of
directors shall expire in each year. The directors named in this
certificate shall within thirty days after the filing hereof classify
themselves by lot into such classes, the first and second. classes
to consist of three directors each, and the third class of two
directors.

In case of any increase in the number of the directors the addi-
tional directors shall be elected as may be provided by law or in
the by-laws, by the directors, or by the stockholders at an annual
or special meeting, and the directors so elected shall be so dis-
tributed among the three classes that each class shall, as nearly as
possible, constitute one-third of the whole number.

In case of any vacancy in any class of directors, the remaining
directors may by affirmative vote of a majority of the board of
directors elect a successor to hold office for the unexpired portion
of the term of the director whose place shall be vacant, and until
the election of a successor.

Any stockholder may by an agreement in writing transfer his
stock to any person for the purpose of vesting in them the right
to vote thereon for a time not exceeding five years, upon terms
and conditions set forth in such agreement; and such transferees
shall in all things act, during the time limit in such agreement
and in such manner and by such part of their number as it shall
provide, and shall exercise such discretion in formulating or carry-
ing out policies and plans of action as may be granted to them
“ '
Business Corporations; Incorporation OF. 995

 

~ Example of Certificate of Incorporation.

 

by such agreement, and may elect one or more of their number
directors of the corporation.

In Witness WHEREOF, we have made, signed, acknowledged
and filed this certificate in duplicate.

[Here follow signatures of theincorporators and acknowledg-
ment. | ‘

* Certificate of Incorporation of the American Diesel Engine Company.

Under the Business Corporations: Law, § 2.

We, the undersigned, all of full age, and citizens of the United
States, and + two or more of us residents of the State of New
York, desiring to become a corporation, pursuant to the provisions
of the Business Corporations Law of the State of New York,
-hereby certify:

First. The name of the proposed corporation is

American Diese, Encinr Company.

Second. The. purposes for which it is to be formed are:

To manufacture, purchase, or otherwise acquire, and to deal in,
use, repair, sell and otherwise dispose of “ Diesel’ and other en-
gines and machinery, motors, cars, trucks, vehicles, machines, tools,
implements and utensils, and also to manufacture, purchase or
otherwise acquire, and deal in, use, sell and otherwise dispose of,
materials and products useful in the manufacture, Tepair or use,
of any of the foregoing.

In aid of, or in connection with, the foregoing, in the use, man-
agement, improvement, or disposition of its property, and in addi-
tion to all other powers conferred by ‘ay, the corporation shall
have also the following powers:
~ To mine, quarry, extract, dig, cut, prepare for use, buy and
seil ores, minerals, metals, wood, coal, stone, peat, marl, clay, oil,
gas and raw materials gerierallly, and ‘their products ; :

To purchase, lease, or otherwise acquire, improve, develop, hire
and use, and let, sell or otherwise dispose of, real estate, and
titlés and interest in, or in respect to, real estate, water or water
rights ;

To construct, purchase, lease, or otherwise acquire, to hold, use,
improve, maintain, and to operate, and to let, sell and otlierwise

 

*¥or general form of certificate of incorporation pursuant to section 2 of the Business
Corporations Law, see form No. 54.
+ Only one incorporator is required ‘to be a resident of the State. (Gen. Corp. Law, § 4.).
996 Business Corporations; Incorporation oF.

 

Example of Certificate of Incorporation.

 

dispose of, factorics, mills, works, structures and improvements;
and to make, acquire, sell and dispose of, foods, beverages, mate-
rials, supplies, goods, wares and merchandise;

To apply for, obtain, register, acquire, give licenses under, and
dispose of, rights in respect to manufacture, use, business or trade,
including inventions, processes, patents, trademarks and trade-
names. :

The corporation may do any of the things hereinbefore enume-
rated for itself, or for account of others; may make and perform
contracts for doing any thereof, and may carry on any business or
operation deemed advantageous, incidental or accessory to any
thereof.

The corporation may purchase, acquire, hold, and dispose of,
the stocks, bonds and other evidences of indebtedness of any cor-
poration, domestic or foreign, and issue in exchange therefor its
stock, bonds or other obligations.

Third. The amount of the capital stock is two million five hun-
dred thousand dollars ($2,500,000).

Fourth. The number of shares of which the aforesaid capital
stock shall consist is twenty-five thousand shares, of the par value
of one hundred dollars ($100) each. Twelve thousand five hun-
dred shares thereof shall be preferred stock, and twelve thousand
five hundred shares thereof common stock. The preferred stock
shall be entitled, in preference to the common stock, to cumulative
dividends at the rate of six per cent yearly, payable quarterly,
half yearly, or yearly, and dividends shall not be paid on the
common stock, except when all dividends to which the preferred
stock is entitled, at full rate to date, are paid or set apart for pay-
ment, and both classes of stock shall share equally per share in
any addition to the profits of any fiscal year of the company in ex-
cess of the dividends required to be paid on the preferred stock
and six per cent upon the common stock. Such excess dividends
shall not be offset against any subsequent deficit in dividends upon
the preferred stock thereafter, as all dividends shall be the same
as if such excess dividends had not been made.

In distribution of assets other than profits, there shall be paid,
so far as the same will go, first, upon the preferred stock to the
amount of the par thereof and its six per cent cumulative divi-
dends that are unpaid, if any, less the amount, if any, paid thereon,
in any previous distribution of such assets; next, upon the com-
mon stock, to the amount of the par thereof, less the amount, if
Business Corporations; INcoRPORATION, OF. 997

 

’ Example of Certificate of Incorporation.

 

any, paid thereon in any previous distribution, df such assets, and
then upon the two classes of stock, equally per share.

The amount of capital with which said corporation will begin
business is seven hundred dollars ($700).

Fifth. The principal business office of the company shall be in,
the city of New York, in the county of New York, in the State of
New York.

Sixth. The duration of the corporation shall be one hundred
years.

Seventh. The number of its directors’shall be seven.

_Eighth. The names and post-office addresses of the directors for
the first year are as follows:

Names. Post-office addresses.

i

Ninth. The names and post-office addresses of the subscribers
+o the stock of the corporation and a statement of the number of
shares of stock that each agrees to take, all such shares being pre-
ferred stock, are as follows:

Number
Names. Post-office addresses. of shares.

er SY

Tenth. All corporate powers shall be exercised. by the board of
directors except az otherwise provided by statute or by this certifi-
cate. By-laws: may be made by the board of directors except as
otherwise provided by} law, and may be altered in such manner
as may be therein provided. x

Eleventh. An increase in the number of directors shall be deemed
to create vacancies in the board, to be filled in the manner pro-
vided by the by-laws.

Twelfth. An executive committee may be appointed by or from
the board of directors in such manner and subject to such regula-
tioris as may be provided in the by-laws, which committee shall
hhave and may exercise all the powers of such board during the
intervals between the meetings of said board, subject to such limi-
tations as may be provided in the by-laws or by resolutions of the

 
t

998 Busrness Corporations; INcoRPORATION OF.

 

Forms — Nos. 55, 56.

 

board. The board of directors shall determine the compensation
of the members of the executive committee and of the board.

Thirteenth. Stockholders shall have no right, except as con-
ferred by statute or by the by-laws, to inspect any books, papers,
or accounts of the corporation.

Fourteenth. The transfer books of the company may be closed
by order of the board of directors or the executive committee for
thirty days, or any shorter time, before any meeting of stock-
holders and until the day after the final adjournment of such
meeting. ,

In Witness Wuereor, we have hereunto set our hands and
seals this 2d day of December, 1901.

[Here follow signatures of incorporators and acknowledgment. }

 

No. 56.
Certificate of Incorporation of a Full Liability Business Corporation.

See the Business Corporations Law, § 6.

We, the undersigned, all being persons of full age, at least ‘two-
thirds of whom are citizens of the United States, and ‘one of us a
resident of the State of New York, desiring to form a full liability
corporation, pursuant to the provisions of the Business Corpora-
tions Law of the State of New York, do hereby make, sign, ac-
knowledge and file this certificate for that purpose, as follows:

First. The name of the proposed corporation is to be [insert
corporate name] Company.

' [Here insert remaining recitals of form No. 54]

As to fees payable upon filing and recording the-certificates of incorporation,
see notes to Form No. 54.

”

No. 56.

Short Statement for Non-cumulative Preferred Stock.

The preferred stock of said company shall be entitled to a divi-
dend of not exceeding five per.cent in any one year, which dividend
shall be non-cumulative and payable out of the net earnings be-
fore any dividend is paid upon the common stock.

For other forms of ‘preferences, see pages 1098-1105.
Business Curporations; RemncorPoration. 999

 

 

Forms — No. 57.

No. 57.
Certificate for Reincorporation of an Existing Business Corporation.

See the Business Corporations. Law, § 4.

We, the undersigned, A. B., chairman, and OC. D., secretary,
respectively, of a special meeting of the stockholders of [snsert
corporate name], a corporation heretofore organized, held for the
purpose of voting upon a proposition to reincorporate pursuant to
the Business Corporations Law, do hereby certify :

That such corporation was organized for [Aere insert the objects
as set forth in its certificate of incorporation].

That the directors of the corporation called a meeting of the
stockholders thereof. by publishing a notice, stating the time, place
and object of the meeting, signed by at least a majority of them, in
the [insert name of paper], a newspaper published in the city [or
willage] of , in the county of , being the county
in which the principal business office of such corporation is situated,
for at least thtee successive weeks, and by serving upon each stock-
holder at least three weeks before such meeting a copy of such
notice, either personally or by depositing it in the post-office,
postage prepaid, addressed to such stockholder at his last known
‘post-office address. :

That a copy of said notice is hereto annexed, marked “ Exhibit
A,” and is hereby made a part of this certificate.

That at the time and place specified in such notice stockholders
appeared in person or by proxy representing more than a majority
of all the stock of the corporation.

That the meeting was then organized by such stockholders by
choosing the undersigned A. B., one of the directors, as chairman,
and the undersigned O. D., a stockholder, as secretary.

That a vote was then taken of those present in person or by
[proxy upon the proposition to reincorporate under the Business
Corporations Law.

That the following resolution was offered :

“Resolved, That [insert corporate name] be reincorporated
under the provisions of the Business Corporations Law of the State
of New York, and that the officers of this meeting be empowered
1000 Business Corporations ; REINCORPORATION.

 

Forms — No. 87.

 

and directed to execute proper certificates of such reincorporation
and file the same, in the manner prescribed by law.”

That votes representing a majority of all the stock of said corpora-
tion were thereupon cast in favor of such resolution, to wit: Votes
representing shares of stock. ;

That such resolution was thereupon declared duly adopted.

That we further certify as follows, to wit:

[Here insert the recitals as contained in Form No. 54.)

In Wrrnzss Wuxreor, we, the undersigned, the chairman and
secretary, respectively, of said meeting of stockholders, hereby
execute this certificate in duplicate, and hereby certify that the
foregoing is a true and correct certificate of proceedings of said
meeting.

Dated, this day of . » 189

eee eceeceseseesy Chairman,
ween ceee cece ceesy NECIEtAry.
’

Starr or New York, t aes
County of ’ es

, chairman, and , Secretary, being
severally duly sworn, do depose and say, and each for himself
deposes and says, that he has read the foregoing certificate of pro-
ceedings of the meeting of stockholders of the [insert name of
corporation], subscribed by him, and knows the contents therecé,
and that such certificate is correct and true.

ide eee cece seeey Chairman,
ee eee cece soeey NOCKEtATY.

f

Severally sworn to before me, ;
this  dayof ,189 .

[Signature of Notary.]
Business Corporations; Payment One-HAtF Capitan. 1001

 

Forms— No. 58.

 

Srate or New Yor, } sais

County of ;

On this day of » 189 , before me personally
came [insert names of chairman and secretary], to me severally
known to be the persons described in and who executed the forego-
ing certificate, and severally acknowledged to me that they executed

the same. ’
[Signature of Notary.)

“Exurstr A,” REFERRED To IN THE Forzgorne CERTIFICATE.

Norticz To SrooKHOLDERS.

A meeting of the stockholders of the [insert corporate name] to
vote upon a proposition to reincorporate such company under the
provisions of the Business Corporations Law, will be held on the

day of , 189 , at o’clock in the noon,
at the office of said company at No. street, in the city
[or village] of , in the county of
Dated, 5189 .

[Insert names of directors, signing notice.]

The payments to be made at the office of the Secretary of State upon the pre
ceding certificate are ten dollars for filing and fifteen cents per folio for each 100
words contained therein for recording. A filing fee of six cents and recording
fees of ten cents per folio are payable at the office of the county clerk,

¢

 

No. 58.

Certificate of Payment of One-half Capital Stock of a Business Corpora-
. tion.

See the Businesss Corporations Law, § 5.

a

We, the undersigned, being a majority of the directors of the
[insert corporate name], a corporation formed under the provisions
1002 Business Corporations; Payment One-natr Caprran.

 

Forms — No. 58.

 

of the Business Corporations Law of the State of New York, do
hereby certify:

That the amount of the capital stock of said corporation is
[insert amount] dollars, and that one-half thereof has been paid in,
$ having been paid in cash, and § in property.

In Witness WHEREOF, we have made, signed and acknowledged
this certificate in duplicate, and have hereunto set our hands this

day of , 189.
[Signatures of majority of directors. ]

Stats or New Yor, } 2
County of ,

On this day of , 189 , before me personally
came [name directors signing certificate] to me personally known
and known to me to be the persons described in and who executed
the foregoing certificate, and severally acknowledged to me that
they executed the same.

[Signature of Notary.]

Srate or New York, ! S35
County of ; “s

[Insert names, of president (or vice-president) and secretary (or
treasurer)], being severally duly sworn, each for himself, deposes
and says, that he, the said is the president [or vice-
president] of the [énsert corporate name], and that he, the said

is the secretary [or treasurer] thereof, and that the
statements contained in the foregoing certificate are true.

[Signature of President, or Vice-President.]
[Signature of Secretary, or Treasurer.}

Sworn to before me, this }
day of , 189 .

[Signature of Notary.}

Upon filing and recording the foregoing certificate the fees are as follows:
Office of Secretary of State, a recording fee only of fifteen cents per folio. At
the county clerk’s office, six cents for filing and ten cents per folio for recording.
Business Corrorations; Fou. Liasiyrry Corporation. 1003

 

Forms — No. 59.

 

No. 59.
Supplemental Certificate by a Business Corporation to Becomea Fuil
Liability Corporation.

See the Business Corporations Laws, § 6.

We, the undersigned, the president and treasurer, respectively,.
of the [insert name of corporation], a corporation formed under
the Business Corporations Law of the State of New York, do
hereby certify, pursuant to the provisions of said law, in order that
said corporation may become a full liability corporation, as follows :

That hereafter said corporation intends to be a full liability cor.
poration. Z

That, pursuant to said law, we have annexed hereto a copy of a
resolution, adopted by a two-thirds vote of the board of directors
of said corporation, and. the written consent.of all the stockholders
of said corporation, authorizing and consenting to the change of
said corporation to a full liability corporation, marked, respectively,
“Exhibit A” ‘and “ Exhibit B.”

In Witness WHEEEOF, we have made, executed and acknowl-
edged this certificate in duplicate, and have hereunto set our hands
this day of ,189

egies: Bieatonareleneua eines President.

- seseceeeceescoeey Lreasurer.
Strate or New York, t mae

County of 5

On this day of , 189 , before me personally
came [names of president and. treasurer], to me known and known
+o me to be the persons described in and who executed the fore-
going certificate and severally acknowledged to me that they
executed the same for the uses and purposes therein mentioned.

[Signature of Notary.
Exuisir A.

“Resolved, That this board does hereby authorize and consent
to the obenge of the [insert corporate mama to a full liability cor-
poration.”

I hereby certify and declare the foregomg to be a true and cor-
rect copy of a resolution duly adopted by a two-thirds vote of the
XN
1004 Business Corporations; Fury Liasrrry Corporation.

 

Forms— No. 59.

 

board of directors of the [¢nsert corporate name] at a meeting of
said board, held at » on the day of , 189 .

Secretary.
Exursit B.

We, the undersigned, stockholders of the [énsert corporate
name], do hereby, severally, give our written consent, authorizing
and consenting to the change of said corporation to a full liability
corporation. .

In Wirness WaERE0R, we have hereunto set our hands to this

consent in duplicate, and the number of shares of stock owned by
each of us in said corporation.

Dated, the day of , 189 .
A. B., shares.
C. D., shares.
E. F., shares.
Stare or New Yor, a
County of ; :
On this day of , 189 , before me personally

came [insert names], to me known to be the persons described in
and who executed the foregoing consent and severally acknowl-
edged to me that they executed the same.

[Signature of Notary.].
Sratrs or New Yorg, } Bae ‘

County of ;

A. B., being duly sworn, deposes and says, that he is the treasurer
[or secretary] of the [insert corporate name], the corporation
referred to in the foregoing consent, and that he is the custodian
of the stock-book of said corporation; that the persons who have
subscribed the foregoing consent are all the stockholders of said
corporation, and owners of the entire capital stock thereof.

A. B.
Sworn to before me this |
day of , 189 .
[Signature of Notary.)

Upon filing and recording the above certificate the fees payable are as noted
under form No. 58.
Business Corporations ; ConsoLiDATION OF. 1005
Forms— Nos. 60, 61. ,

\

 

 

No. 60.
Stockholder’s Waiver of Notice of a Meeting.
See the General Corporation Law, § 38. '

I, the undersigned, a stockholder of the Company,
hereby admit due and timely service of a notice of which the fore-
going is a true copy, and I hereby waive any further notice of the
meeting therein mentioned and the lapse of any prescribed period
of time, and I do hereby authorize and approve the proposed

 

increase of capital stock of said company from $.......... to °
ee (or, as the case may be).
No. 61.

Agreement for the Consolidation of Business Corporations.
See the Business Corporations Law, §§ 8, 9, 10, 11, 12.

THIS AGREEMENT, made the day of , 189 ,
between the -Linsert corvorate name] Company,
party of the first part, and the [insert corporate

name] Company, party of the second part, under the corporate
seals of said .companies,

Wirvessera: That [ensert corporate name] Company, said party
of the first part, is < corporation organized under the laws of the
State of New York, for the purpose of carrying on the business of
[state objects for whicl. the corporation was formed].

That |¢nsert corporate name] Company, said party of the second
part, is a corporatior organized under the laws of the State of New
York for the purpose of carrying on the business of [state objects
Sor which the corporation was formed].

That, in consideration of the mutual covenants and agreements
herein contained, the said parties hereto, do hereby merge and con-
solidate such corporations into a single corporation under and in
pursuance of the laws of the State of New York, in such case made
and provided, and by these presents,

THEY DO HEREBY COVENANT AND AGREE upon and prescribe the
terms and conditions of such consolidation and the mode of carrying
the same into effect, which said terms and conditions and mode of
carrying the same into effect they mutually covenant and agree to
observe, as follows, to wit:
1006 Business Coxporations ; CoNSULIDATION OF.

 

Forms — No. 61.

 

 

 

First. That the name of the corporation hereby formed by said
consolidation shall be [insert corporate name] Company.

Second. That the number of directors who shall manage its
affairs shall be [state definite number, not less than three nor
more than thirteen].

Third. That the names and post-office addresses of the directors
of such new corporation for the first year are as follows, to wit:

Names of directors, Post-office addresses.

eee ere reese e ence sees eees reese jseeeeeeerers sense seeseereser

Fourth. That the term of existence of such new corporation shall
be [insert term, not exceeding fifty years].

Fifth. That the names of the town [or towns], county [or
counties], in which the operations of such new corporation are to
be carried on are [insert names].

Sixth. That the name of the town [er city] and county in this
state in which its principal place of business is to be situated is the
town [cr city] of in the county of

Seventh. That the amount of the capital stock of such new cor-
poration is to be [insert amount, which must not be larger than
the fair aggregate value of the property, franchises and rights of
the constituent corporations}.

Eighth. That the number of shares into which such capital stock
is to be divided is [insert number].

Ninth. That the manner of distributing such capital stock among
the holders thereof shall be as follows: [Hxample given: The
capital stock of each of the corporations, parties hereto, shall be
convertible into the capital stock of said new corporation hereby
formed, share for share, and upon presentation and surrender of
any outstanding certificates of stock in either of said constituent
corporations, parties hereto, certificates for like amounts of stock in
said new corporation shall be issued to the holders thereof.)

Tenth. [Jf the constituent corporations, or either of them, shall
have been organized for the purpose of carrying on any part of its
business in any place out of this State, and such new corporation
_, shall propose to carry on any part of tts business out of this Stute,
 

Bustness Corporations; ConsoipaTIon oF. 1007

* Forms—No. 61.

 

the agreement shall so state, with such other particulars as may be
deemed necessary. |

In Txstrmony Wuzregor, the said parties of the first and second.
parts have executed this agreement in duplicate, and have hereunto
set their respective signatures, and have caused to be hereto affixed
the corporate seals of their respective corporations, of which they
are respectiyely the directors, the day and year first aforesaid.

Directors of the .:.......... Company.
[ome Attest —.sunewiedaiae secs , President.
Hee ea aw Baws Secretary.
Ouse dew dane «eats i
eo piah'a yeahs Rear aveito's Sea ;
Searle nie ve Ries ;
‘@ewep ee ene ea mee ‘e >
eevueoee “ema seeneeaeee 9
Directors of the adda Sea wares Company.
[O-ear ' PGESE- = Sand Sedesia aves , President.
tdccesyaicohe yaaa oie: ec cha's Secretary.
Starz or New York, aad
County of j
On the day of , in the year , before
me personally came y to me known, who,

being by me duly sworn, did depose and say that he resided in

; that he is the (president or other officer) of
the (name of eomporation’; the corporation described in and which
executed the above instrument; that he knew the seal of said
corporation; that the seal affixed ‘to said instrurnent was such cor-
porate seal; that it was 80 affixed by order of the board of directors
- 1008 Bustness Corporations; ConsoLIDATION OF.

 

Forms—No. 61.

 

of said corporation, and that he signed his name thereto by like
order.
(Signature and office of officer taking acknowledgment.)

If such corporation have no seal, that fact must be stated in place of
the statements required respecting the seal.

[Prepare in the same form as above, proof of execution by the
secretary of the other constituent corporation, and annex the same. |

Strate or New York, {ss
County of j

On this day of , 189 , before me personally
came [insert names of the directors of first constituent compuny],
directors of [insert name of company], to me severally known to
be the persons who severally exccuted the foregoing agreement,
and severally acknowledged to me that they executed the same for
the uscs and purposes therein expressed.

[Signature of Notary.]

[Prepare in the same form as above, acknowledgment by directors
of the other constituent corporation, and annex the same.]

Sworn Cory or Procrrpines or Meetinea.

A special meeting of the stockholders of [insert corporate name]
Company, for the purpose of submitting to said stockholders the
annexed agreemcnt, dated , 18 ,for the consolidation
of [insert corporate name] Company with [insert corporate name]
Company, under the name of [znsert name of new corporation]
Company, was held at the office of said first-named corporation

[or as the case may be] in the city [village or town] of ;
county of ,onthe , day of ,18 ,at
o’clock in the noon of that day.

Said meeting was called upon notice of at least two weeks,
specifying the time, place and object thereof, and addressed to each
stockholder at his last known post-office address, and deposited in
 

Business Corporations ; ConsoLiDATION oF. 1009
e

Forms — No. 61.

 

the post-office, postage prepaid, and published for at least two suc-
cessive weeks in [insert name of paper], one of the newspapers
of county, in which county said corporation, the [insert
corporate name] Company has its place of business, and also in
{insert name of paper), one of the newspapers of county,
in which county said corporation, the [insert name of other corpor-
-ation| Company has its place of business.

Pursuant to such notice the stockholders of the [insert corporate

name| Company met at in the city [village or town]
of , county of , on the day of ;
18 ,at .  o’clock in the noon.

There were present at such meeting in person or by proxy stock-
holders owning — shares of the stock, being at least two-thirds
of the stock of said corporation.

The meeting was organized by the election of as
chairman, and , a8 secretary thereof.

Proof by affidavit of the due service of the notice of the meet-
ing and publication thereof was read and is hereto annexed.

The annexed agreement was thereupon submitted to said stock-
holders for their approval and, after being considered, a vote was
taken. by ballot upon the question of approving or rejecting the
same, pursuant to statute.

The said ballots were duly cast in person or by proxy, and upon
‘a canvass of such ballots 1t was found that the votes of stockholders
owning shares of stock were cast in favor of the approval of
said agreement for consolidation, and votes of stockholders owning
t shares of stock were cast: against the approval of said agree.
ment [or no votes were cast against the approval of said agreement
.as the case may be]. ‘

The whole number of shares of the capital stock of said corpora-
tion is , and the votes of stockholders which were so cast
in person or by proxy in favor of the approval of said agreement
of consolidation constitute at least two-thirds of the stock of said
corporation.

Thereupon said agreement of consolidation was declared duly
approved and adopted and the meeting. adjourned.

64 ‘
1010 Ferry Corporations; [NcoRPORATION OF.

 

Forms — No. 61,

 

In Wrrness Wuerror, I have made, signed and sworrt to
the foregoing copy of proceedings in duplicate this day
of , 18

see cee eececeeey HECrEtAry.
Srate or New York,

| s,s
County of 5

[Insert name], being duly sworn, deposes and says that he was
elected to act, and did act, as secretary of a special meeting of
the stockholders of the [insert corporate name], held for the
purpose of considering the annexed agreement of consolidation,
dated , 18 ; that the foregoing is a copy of the pro-
ceedings of said meeting, ‘and is, in all respects, a correct copy of
such proceedings, and of all the proceedings of said meeting, and
that notice of said meeting was given, as aforesaid, pursuant to
statute.

[Signature of Secretary. |
Sworn to before me, this \ ‘eas
day of , 18
[Signature of Notary.)

[Prepare in the same form as above, the certificate of the secre-
tary of the other constituent corporation, and annex the same. |

[Attach also proof of publication and service of notice. |

Upon filing and recording the consolidation papers in the office of the Secretary
of State fees are payable as follows: Filing, ten dollars; recording, fifteen cents
a folio. The fees in the office of the county clerk are: Filing, six cents; recording,
ten cents a folio. In addition to such fees an organization tax of one-twen-
tieth of one per cent must be paid to the State Treasurer upon the amount;
of capital stock of the new corporation, in excess of the aggregate capitaliza-
tion of the constituent corporations. See statutes and decisions relative to
fees, organization tax, and transmission of same, ante.

 

No. 62.
Certificate of Incorporation cf a Ferry Company.
See the Transportation Corporations Law, article 1, § 2, ante.
We, the undersigned, all being persons of full age, and at least
two-thirds ‘being citizens of the United States, and a majority
residents of the State of New York, desiring to become a corpora-
Ferry Corporations; Incorporation oF. 1011

 

' Forms — No. 62.

 

tion for conducting and managing a ferry, pursuant to the pro-
visions of article one of the Transportation Corporations Law of the
State of New York, do hereby certify as follows, to wit:

' First. The name of the corporation is to be [énsert corporate
name | Company.

Second. The places from and to which the ferry established [or
to be established] shall run are: From to

Third. The term for which the corporation is to exist is [¢nsert
number of years not exceeding fifty] years. :

Fourth. The amount of its capital stock is to be [¢nsert amount]
dollars, and the number of shares thereof is to be [inseré number
of shares] of the par value of dollars each.

Fifth. The number of directors of such corporation is to be
[insert number, which, however, must be fined between the limit of
three and fifteen].

Sixth. The names of the directors for the first year are [imseré
names of the directors).

AG es

In Wirness Wuereor, we, the undersigned, have executed and

acknowledged this certificate in duplicate, this day of
,189 .
A. B.
C. D.
E. F.

Strate or New York, t gs
County of - , 7

On this day of , 189 , before me "personally
came A. B.C. D. and E. F., to me severally known to be the
persons described in and who made and signed the foregoing certi-
ficate, and severally duly acknowledged to me that they had made

, y auly y made,
signed and executed the same for the uses and purposes therein
set forth. ;

[Signature of Notary.)

The fees in the office of the Secretary of State are: Filing, ten dollars;
recording, fifteen cents a folio for each 100 words. The fees in the county
clerk’s office. are: Filing, six cents; recording, ten cents a folio. In addition
to such payments, an organization tax of one-twentieth of one per cent upon
the capital stock must be paid to the State Treasurer. For text of the
statutes regulating such payments and information relative to remittances,
see ante. .
1012 Ferry Corporations; One-saur Capitan Stock

 

Forms— Nos.. 68, 64.

No. 63.
Affidavit as to Payment of One-half the Capital Stock ofa Ferry Company.
See tlie Transportation Corporations Law, article 1, § 3, ante.

Srate or New Yorx, ee
County of *

>

A. B., C. D. and. E. F., being, severally duly sworn, depose and
say, and each for himself deposes and says, that he is.a director of
[insert corporate name] Company, and that. said A. B., ©. D. and.
E. F. constitute a majority of the direetors thereof; that such com-
pany is a ferry corporation. organized! under the. Jaws of the State
of New York; that.at least: one-half the capital. stock of such com-
pany has been actually paid in. —
A. B.,, \
oO. D.,
E. F.,

Directors.
Severally sworn to before me, t
4

this day of Py ae
[Signature of Notary] .
Fexs. —In the office of the Secretary of State a recording fee of fifteen cents a

folio; in the county clerk’s office, six cents for filing and ten cents a folio for
recording. ,

 

No. 64.

Application for Ferry License by a Corporation Owning the Land.
See the Highway Law, § 170, ante..

To the County Court of the county of [or, the City Court
of the city of , in the county of Jz

The petition of [insert name of corporation] respectfully shows,
that the petitioner is a domestic corporation, duly incorporated
under the provisions of the Transportation Corporations Law of the
. State of New York, for the purpose of conducting and managing a
ferry from (describe the place] to [describe the place] the county
of , and is the owner of the land situated on the bank of
the river through which that part of the highway adjoin-
ing to the proposed ferry runs; and that d ferry ought to be estab-

-
Ferry Corporations; APPLICATION FoR License. 1013

 

Farms— No. 65,

 

lished for the convenience and accommodation of the. public, across
the said river at the place aforesaid.

Wherefore your petitioner prays that this court will grant'it, the
said corporation, a license to establish and keep said ferry, pursuant
to the. provisions of the statutes in such case made and provided.

Dated. this day of , 189
The [insert corporate nina Company,
[.comperate’) By [signature], President.

Starz or New York, t ate
County of ; o

A. B., of , being duly sworn, deposes and says, that he
is the president of. the [onsert corporate nae Company, the peti-
going petition, by him subscribed, ‘and a the contents thereof ;
that the same is true to the knowledge of deponent, except as to
tthe matters therein stated to be alleged on information and belief,
and as to those matters he believes it to be true; and, further, that
he signed said petition as president of said company by the authority
.of its board of directors and affixed the corporate seal of said com-

pany thereto by the like authority. :
[Signature of Notary.|

 

No. 65.

_Application for Ferry License by a Corporation not Owning the Land.
See the Highway Law, $170, ante,

‘To the County Court of the County of [or the City
Court of the City of , in the county of ie

~The petition of [insert name of corporation] respectfully shows,
that the petitioner is a domestic corporation, duly incorporated
under the provisions of the Transportation Corporations Law of
the State of New York, for the purpose of conducting and manag-
ing a ferry from [describe the place}, in the county of to
{describe the place], in the county of , and that ©. D. is
the owner of the land situated on the bank of ihe river
1014 Ferry Corporations; Apprication ror License.

 

Forms — No. 66.

‘

through which that part of the highway adjoining to the proposed
ferry runs; and that a ferry ought te be established for the con-
venience and accommodation of the public, across the said

river at the place aforesaid.

That the said C. D., the owner of the land through which the

said part of said highway runs, as aforesaid, is not a suitable per-
son to keep said ferry, for the following reasons :
[or, has neglected to apply for a license to keep such ferry, after
being served with eight days written notice from the petitioner of
the time and place at which the said petitioner would apply for
such license (or, has heretofore obtained a license to keep said ferry,
but has ueglected to comply with the conditions of the said license:
or, to maintain said ferry) ].

That due service of notice of the time and place of this appli
cation has been made upon said C. D., as more fully appears from
a copy of said notice and the affidavit of service thereof, which
are hereto annexed.

Wherefore your petitioner prays that this court will grant it, the
said corporation, a license to establish and keep said ferry, pursuant:
to the provisions of the statutes in such case made and provided.

Dated this day of , 189
‘ The [insert corporate name] Company,
a By [signature], President.

[Add verification by petitioner as in the preceding Form No. 64,
and annex notice and proof of service, Forms Nos. 66 and 67.)

 

No. 66.
Notice to Owner of Lands of Application for a Ferry License.
See the Highway Law, § 170, ante.

IDO sete ta aie carat 3

Take notice, that the undersigned will make application to the
County Court of the county of (or, to the City Court
of the city of , in the county of ], at a

term thereof to be held at the court-house, in the city [or wiiage]
of , on the day of 18 , at the
Ferry Corporations; AppiicaTion ror Liczensz. 1015

 

Forms — Nos. 67, 68.

opening of the court [or, at o'clock m.] on that day, or as
soon thereafter as a hearing can be had, for a license to keep a ferry
across the river, from the termination of the highway
running through your lands to [give particular description of loca
tion of the ferry]. .

 

Dated this day of g18 «
The [insert nacne] Company.
BY sancses cade » President.
No. 67.

Proof of Service of Notice.
See the Highway Law, § 170, ante.

Srate or New Yorkx, { gba
County of ~ *).

G. W., being duly sworn, says, that he is more than 18 years of
age, that on the day of 18 , at the village of
, in the county of ,he personally served on
the notice hereto annexed, by delivering to and

leaving with him a true copy thereof.

 

G. W.
Sworn to before me, this
day of eoke — eee
[Signature of Notary.]
No. 68.
License to Keep a Ferry.
See the Highway Law, § 170, ante. .
At a term of the County Court of county, held at
the city [or village] of . , in said county, on the
” day of ,18 ~~.
Present: Hon. , County J udge.

An application having been made by the [insert corporate name]
Company, a domestic ferry corporation, for a license to keep a
ferry across the [name stream] at [describe the place], and the
provisions of the statutes in such case made and provided having
1016 Ferry Corporations; Apptication For Licznss.

 

Forms — Nos. 69, 70.

 

been complied with, it is hereby ordered and determined that this
license be granted to said [¢xsert corporate name] Company to
keep a ferry at the said place, in said town, for the term of five
years from this date, and the said Company is allowed.
to collect and receive ferriage for the transportation of travelers,
property and effects, over and across the said ferry, at and after the
following rates, and for no greater sum or sums for such trans-
portation, viz.: [state the rates].

 

No. 69.

Clerk’s Certificate to be Annexed to a Copy of License for Licensee..

See the Highway Law, § 17v, ante,

Srare or New York, | ss ;

County of ; ;

. » Clerk of Court, do hereby -certify,.
that I have compared the annexed copy of a license with the
original license, entered in the book of minutes of said court by
me this day, and that the same is a correct copy thereof and of the
-whole of said original.

In Wirness Wuereor, I have hereunto affixed my name, and
my official seal, this day of ,18 .

[eRe aaa ccs bineentnes , Clerk.

No. 70.
Undertaking Upon Application for License to Keep a Ferry.

See the Highway Law, § 171, ante,

Sratz or New York, } a ®

County of i

Whereas, the [insert corporate name] Company, a domestic cor-
poration, duly incorporated under the provisions of the Transporta-
tion Corporations Law of the State of New York, for the purpose
of conducting and managing a ferry has made [o7, 28 about to make]
application to the County Court of the county of [or, to the
City Court of the city of , on the county of } for
Ferry Corporations; Appuivasion For Licunss. 1017
i
Forms—— No. 70.

a license to keep a ferry across the [name stream] from the termine.
tion of the highway running through the lands of to
[describe location of ferry] ;

Now, therefore, we.the said [imsert corporate name] Company
and as its surety [or sureties, as the case may be], do
hereby jointly and severally undertake, in the sum of dollars,
to and with the people of the-State of New York, that the said
[insert corporate name] Company shall attend such ferry with suffi-
cient and safe boats and other implements, and so many men to
work the same as shall be necessary during the several hours in each
day, and at such rates as the court shall direct.

Dated, this day of . , 189
The Company,
(omporae By 5 President.
[i 8] [Also signatures of sureties.

Srarz or New York, } ae

County of :
On this day of , 189 , before me personally
came , the president of the Company, to

me personally known, who being by me duly sworn, said that he
knows the corporate seal of said company; that the seal affixed
to the above instrument is such corporate seal, and was affixed
thereto by the authority of the board of directors of said company,
and that he executed the said instrument as president of said com-
pany by the like authority.

‘Signature of Notary.)
Srare or New Yorx, i oT
County of ;
On this day of ,189 , before me personally
appeared . to me known to be the persons described in ~

and who executed the foregoing undertaking, and severally acknowl.
edged that they executed the same. .
[Signature of Notary].
1018 Navigation Corvoration ; LycorPoration oF.

 

Forms— Nos. 71, 72, 78.

No. 71.
Affidavit of Justification.
Starz or Nzw York, aes
County of 5
L. M. and , being severally duly sworn, each for him-

self, deposes and says, that he is one of the sureties named in the
foregoing undertaking ; that he is a resident of and a householder,
or freeholder, within the State of New York, and is worth the sum
of dollars [twice the amount named in the undertaking]
over and above all debts and liabilities which he owes or has
incurred, and exclusive of property exempt by law from levy und
sale under execution.

 

/ Signatures of sureties.
Sworn to before me, this t t 7 ]
day of ,189 .
[Signature of Notary.]
No. 72.
Approval.

I hereby approve of the foregoing undertaking, and of the suffi-
ciency of sureties therein named.

Dated, this day of , 189 .

eee er cee sess tees 9

County Judge.

 

No. '73.

Certificate of Incorporation of a Navigation Corporation.
See the Transportation Corporations Law, article 2, § 10, ante.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the United States and one of usa resi-
dent of the State of New York, for the purpose of becoming a
navigation corporation for the objects hereinafter specified, pursu-
ant to the provisions of article two of the Transportation Corporations
Law of the State of New York, do hereby certify as follows, to wit :

First. The name of the corporation is to be [insert corporate
name] Company.
Navigation Corporations; [corporation oF. 1019

 

\

Forms— No. 73.

 

Second. The specific objects for which it is formied are the fol-
lowing, namely: For the purpose of building for its own use,
equipping, furnishing, fitting, purchasing, chartering, navigating or
owning steam, sail or other boats, ships, vessels or other property,
to be used in business, trade, commerce or navigation, and for the
carriage, transportation or storing of lading, freight, mails, property
or passengers.

Third. The waters to be navigated are [insert name of waters to
be nawigated. Example given: The waters, bays and inlets of the
Hudson river and tributaries thereof’ ].*

Fourth. The amount of its capital stock is to be [¢nsert amount
at not less than $5,000 nor more than $4,000,000, which are the
limits fimed by statute).

Fifth. The term of its existence is to be [insert number of years
not exceeding fifty].

Sixth. The number of shares of which the capital stock shall
consist is to be [énsert number of shares].

Seventh. The corporation is to have [insert number, but not less
than fwe nor more than thirteen] directors.

Eighth. The names of the directors for the first year are [insert
the names].

Ninth. The principal office is to be situated in the city [o~ town]
of , in the county of ‘

Tenth. The number of shares of stock which each subscriber of
this certificate agrees to take in such corporation is as follows: f

Names. Number of Shares Subscribed.

wee m eee e reese sse ees ere ne eee ee see reresereeseese oe esaee sues

‘
In Wirwzss WueEreor, we have made, signed and acknowledged
this certificate in duplicate this day of , 189

[Signature of Incorporators.]

 

* In case of ocean steamers, the ports between which the vessels are to be navigated must also
‘be stated. .
ve cTne ageregate of such subscriptions must oonal ten per cent of the capital and at least ten
per cent of such subscriptions must be paid in cash.
1020 Navigation Corporations; Capitan Stoox.

 

Forms— No. 74.

State or New York, } pas
County -of ; :

On this day of » 189 , before me personally
came [state names of incorporators], to me severally known to be
the persons described in and who made and signed the foregoing
certificate and severally duly acknowledged to me that they had
made, signed and executed the same for the uses and purposes

therein set forth,
[Signature of Notary.)

Starz or New York, } :
88. $

County of ‘

[Insert names of at least three directors], being severally duly
sworn, depose and say, and each for himself deposes and says, that:
he is one of the directors named in the foregoing certificate; that:
at least ten per cent of the amount of capital stock named therein
has been in good faith subscribed and at least ten per sent of such
subscriptions has been paid in cash.

[Signatures of at least three durectors.]

Severally sworn to before a
this day of , 189
[Signature of Notary.]

The above certificate of incorporation must be executed by at least seven
persons.

As to payments to be made upon filing and recording the certificates of incor:
poration, see the notes under Form No. 62.

 

No. 74.

Certificate by a Navigation Corporation of Full Payment of Capital
Stock.

See the Transportation Corporations Law, article 2, § 12, ante.

We, the undersigned, the president and a majority of the direct
tors of [¢nsert corporate name] Company, a nayigation corporation,
do hereby certify, pursuant to the provisions of article 2 of the
Transportation Corporations Law, as follows, to-wit :
 

Navigation Corporations ; Caprrau Stoox. 1021

Forms — No. 74.

 

That the amount of the capital stock of such corporation is
‘[ensert amount] dollars.
That the whole amount of such capital stock has been paid in.

iy Wirness Wuereor, we have made.and signed this certificate
in duplicate, this | day of , 189
[Signature of president.)
[Signatures of majority :
of directors. |
Srate or New York, | sae
County cf

A. B., O. D. and ,E. F., being severally duly sworn, do depose
and say, and each for himself, deposes and says, that said A. B. is .
the president of [¢nsert name of corporation], and that said A. B.,
C. D. and E. F. are directors of such company, and a majority
thereof; that he has read the foregoing certificate and knows ‘the
contents thereof, and that the same is true.

[Signatures of President and
majority of directors. |
Severally sworn to before me, this t
day of Pes eee

[Stgnature of Notary.]

Stare or Nuw York, } ae
County of . Og

On this day of , 189 , before me personally
appeared A. B., O. D. and E. F., to me severally known to be the
persons described in, and who made, signed and verified the fore-
going certifi¢ate, and they severally acknowledged to me that they
made, signed, executed and verified the same for the uses and pur-

jses therein expressed. i ;
a = [Signature of Notary.]

The fees payable upon filing and -reeording the above certificate are: At the
office of the Secretary of State, a recording fee of fifteen cents per folio. At
the county clerk’s office, six cents for filing and ten cents per folio for recording.
1022. Stage Coacn Corporations; INcorroration uF.

 

Forms — No. 75.

No. '75.

Certificate of Incorporation of a Stage Coach Corporation.

 

Seeé the Transportation Corporations Law, article 3, § 20, ante.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the United States, and one of us a resi-
dent of the State of New York, desiring to become a corporation
for the purpose of establishing, maintaining and operating a stage
or omnibus route or routes [or for the purpose of maintaining and
operating a stage route or routes already established, as the case
may be}, for public use in the conveyance of persons and property
elsewhere than in the city of New York, pursuant to the provisions
of article three of the Transportation Corporations Law of the
State of New York, do hereby certify:

First. The name of the corporation is to be [insert namie]
Company.

Second. Such corporation is to continue for a term of [insert
term] years.

Third. The route or routes upon which it is intended to run, as
near as practicable, are [state route].

Fourth. The number of directors is to be [insert number, not
less than three nor more than fe].

Fifth. The names of such directors for the first year are [insert
names].

Sixth. The amount of its capital stock is to be [¢nsert amount]
dollars, divided into [¢nsert number] shares.

Seventh. The place of residence of each subscriber hereto and
the number of shares of stock he agrees to take in such corporation

are as follows:
No, of shares

Names. Place of residence subscribed.
As. Bie ve sats ee ee eee SAUER eae ARG eres shares,
C.D astemies. Gueeeees Sevateleon ate Riese Sees shares,
Ls. Pascuoeewusws: Sedewascnsee Cieedeateee. Wacebax shares.
Gi Acs alee as oi Gee a eee toud Seeleee) alee .- shares.
Te dice eneies aiere EP casalicvalsetdsure lay eneveye iotwleave clos Sieers semen . shares.

In Wrrness Wuereor, we have made, signed and acknowledged
this certificate in duplicate this day of 718.
[Signatures of incorporators, not less than fwe in number.]
Stage Coacu Corrorarions; Extension or Routz. 1023

 

Forms — No. 76.

 

Srarse or New York, } ae
County of .

On. this day of , 189 , before me personally
came [insert names], to me severally known to be the persons
described in and who made and signed the foregoing certificate,
and severally and duly acknowledged to me that they had made,
signed and executed the same for the uses and purposes therein
set forth.

[Signature of Notary.|

Relative to the payments to be made upon filing and recording the above cer-
tificate, see the notes under Form No. 62. ‘

 

No. 76.

Certificate of Alteration or Extension of Route of Stage Coach Corpora-
tion.

See the Transportation Corporations Law. “ 21, ante.

We, the undersigned, the directors of the [insert corporate name]
Company, a stage coach corporation, organized under the provisions
of article three of the Transportation Corporations Law of the State
of New York, do, for the purpose of altering [vr extending] the
route [or routes] of said corporation as designated in the certificate
of incorporation thereof, hereby certify as follows, to wit:

That by a vote of two-thirds of the directors of said corporation,
at a meeting of said directors held at ° ; on the
day of , 189 , the route [or routes] designated in the
certificate of incorporation of: said [insert corporate name] Com-
pany was [or were] altered [or extended] as follows, to wit: [state
alteration or extension).

In Witness Wuzreor, we have made, signed and acknowledged

this certificate in duplicate, this day of , 189
‘ : [Scgnatures of directors. ]
Stars or New Yorg, } Big
County of a:
On this day of , 189 , before me personally

came [insert name], to me severally known to be the persons
described in and who made and signed the foregoing certificate,
1024 Tramway Corporations ; [NcoRPORATION oF.

 

, Forms — No. 77.

 

and severally-and duly acknowledged to me that they had made,
signed and executed the same for the uses and purposes, therein
set forth.

[Signature uf Notary.]

The fees;upon filing and recording the above certificate are the same as. those
mentioned under Form No, 74,

 

No. 77.
Certificate of Incorporation of a Tramway Corporation.
See the Transportation Corporations Law, article.4, § 36, arte.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the United States and one of usa resi-
dent of the State of New York, desiring to become a corporation
for constructing, maintaining and operating an elevated tramway,
constructed of poles, piers, wires, rods, ropes, bars or chains, for
the transportation of freight in suspended buckets, cars or other
recepticles, for hire, pursuant to the provisions of article 4 of the
Transportation Corporations Law, do hereby certify:

First. The name of the corporation is to be [imsert name]
‘Company.

Second. The number ‘of years such corporation is to continue is
to be [insert period] years.

Third. The places from and to which such tramway is to be con-
structed, maintained and operated, are as follows: From
to .
Fourth. The length of such tramway, as near as may be, is to be
[state length].

Fifth. The name of each county through or in which it is
intended to be made is [state each county].

Sixth. The amount of its capital stock is to be [insert amount]
dollars.

Seventh. The number of shares into which such capital stock is
to be divided is to be [insert number].

Eighth. The number of directors thereof is to be [state sein
but not less than three].

°
‘ s
Tramway Corporations; IncoRPoRATION. OF. 1025.

 

Ferms — Na. 77.
‘

Ninth. The names and places of residence of the directors for
the first year are as follows: ,

ae Names. Places of residence,
.
sewers eee eee scene se eee ee es ose @eseeeeeens soe Be eeeenees eeoce sense
\
emcees ereene ee cee ens CC meee tree e wer eee soeesere
Tce ee ee ee ee ae Cord ee Rete mewn nee reese rene

Tenth, The place. of residence. of each subscriber hereto, and
the number of shares he agrees to take in such corporation, are. a8

follows:::
Number of shares

Name, Place of:residence, subscribed.
di Se aeites REGS Wiech aieeRe Ga euiccs Suenes
De Sea RENEE RTC BERS ose ese De ERS. Goede sees shares,
OL sins mpenidue Sa mtan Aaveitmed pieiereae nese heee Eanes
A cy a wate eRe” ie whe hae Me HE Re Nee ogee BETES,
Dg gisin avd Ga ius Siw Hal ~ se lal arbiter ne einidaereiel “andioaiey «eB Ares,
G5, oweeiuaes ae eesee. SSE aE eieeae Se. .Ga does tliares:
Tes ace WESTER REL GREER AI ER RAw Ra, Auieen Shares.
ee eee ee eee ee ee ee shares.
i lage suka aman ak bot arematudiel, wasters “ys are shares.
10. Gani Wesel lakes sec ontasaeandens Teowlaineaws shares,
Aes eos ecb cuenta siierece:. nie aianaye cnet es x Sah cca ge ee Se shares,
DS cee Raisia ate Soawalee, algtiiieaeias MEGS: desde ares.
DB sess. selon ne ateietss ate Sid gual yahoo ee aww ets cease yp ees Shares,

Iw Wirntss Wuereor, we have made, signed and acknowledged
this certificate in duplicate this day of , 1k
[Signatures of ineorporators, at °
least thirteen in number.) |

Stare or New ae ae .
County of :
On this - day of , 189 , before me personally

ame [insert names of the persons subséribiny, certificate], to. me
‘severally known to be the persons described in and who made and
signed the foregoing certificate, and severally duly acknowledged
‘to me that they had made, signed and executed the same for the
uses and purposes therein set forth.

[Signature of Notary.)

Relative to the payments to be made upon ling and recording the above
certificate, see the notes under Form No. 62. ;

65
4
1026 Pivz Line Corporations ; Ivcoxporation oF.

 

Forms— No. 78.

No. 78,
Certificate of Incorporation of a Pipe Line Company.

See the Transportation Corporations Law, article 5, § 40, ante.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the United States, and one of us a resi-
dent of the State of New York, desiring to become a corporation
for the purpose of constructing and operating for public use, except
in the city of New York, lines of pipe for conveying or transport-
ing therein petroleum, gas, liquids or any products or property [or
for maintaining and operating any line of pipe already con-
structed and owned by any corporation, person or persons, for the
public use], pursuant to the provisions of article five of the Trans.
portation Corporations Law, do hereby certify :

First. The name of the corporation is to be [ensert name of
company).

Second. Such corporation ig to continue for a term of [insert
term] years. ;

Third. The places from and to which such pipe line is to be con-
structed [or maintained and operated] are the following, viz.:
[tnsert names of places].

Fourth. The length of said pipe line, as near as may be, is to be
[state length).

Fifth. The name of each county through or into which it is to
be constructed is as follows [insert names of counties).

Sixth. The amount of the capital stock of such corporation isto
be dollars. [The capital stock must not be lese than fifteen
hundred dollars for atery mile of pipe constructed or proposed to
be constructed].

Seventh. The number of shares of which such capital stock shalt
consist is to be shares.

Eighth. The number of directors of such corporation is to be
[here insert the apecific number of directors, not less than seven. |

Ninth. The names and places of residence of such directors who
are to serve for the first year, are as follows, viz. :
Pier Line Corrorations; Incurpukarion oF. 1027

 

Forms— No. 78.

 

Name, ’ Places of residence.
D. . aieidiae SOS ek oe Aten Sioisen’ “aiean' bk S56 sare oe cere obs laiesidiw os
Ds: Sep RRORNa Mia SPACES Wawel DOSES Raat be oye eee eee ee a
DS: S005 ale buy wes win fu elie es a olat'a ale 'as'. “Vac eyu iapeiecaiip epevaue Male ayalere aris wioneraiaeea
Be tcucRies ee aNesettn Rysehceuqia Nee Rem ease ees ;
De ANeeae sted keileeceeees Sewiel Kode eeuis wake aees bie ele tiee
Go sien wie erotica sie ecate ss. Geainelgleeieineld okie Oeil gel aia aig
Me easy ie meade ees eucevs pebeeree hieigassvinenteaawaesode

Tenth. The place of residence of each subscriber and the num-
ber of shares he agrees to take in such corporation, which in the
aggregate equal ten hundred and fifty dollars for every mile of
pipe constructed or proposed to be constructed, and twenty-five per

cent of which has been paid in cash, are as follows:
eo. Number of shares

Name. Place of residence. subscribed. ,
TeeGate See ee SRWeN Sea Gane eee shares,
2s gees Sree Ra eels ea, esas os Ssaee sense eesaceues 5 Shares,
Ou aire oe sctetletalereranel. 6 isetab eid sta lstaievays aie ae vanea cas shares.
Acne eae eee SERRDeke se eeKueR eee NaeY shares.
DC tonseeaueeedceetese ah ackveaiade ayer comers,
Op cease estela-eeinlassie' ee arty). “Sige bese GSES eile SieRGS Cisle Rra'etee ees shares.
Te pice Stee wsvecsseee GseeeeerwNUNves ees wks cam, sBAATER
O. ieee LAC Niei eee Cen sone see e sibs! Geaaewtinine shares,
Vc Lumgeewetiuabeces: Senedduemdedatewna, Sereda ss nines
1 cupeseaiosieas:. Gass meesee sees. ceaaeneaen shares.
Te eee SESGaeeiGekass unions sis woes Said. «tees Sistas shares
DDS séosb Sein ae a) deena ore Sst, cuales catcSineam enters isa ateieceuos shares.

In Wirwess WueEreor, we have made, signed and acknowledged
this certificate in duplicate this day of ‘189.

, Coe [Signatures of incorporators. ]
State or New York, t Beek

County of ; ,

On this day of , 189 , before me personally

came [insert names of the subscribers to certificate] to me severally
known to be the persons described in and who made and signed the
foregoing certificate, and severally duly acknowledged to me that
they had made, signed and executed the same for the uses and

purposes therein set forth.
[Signature of Notary.)
1028 Pier Line Corporations; Firing Map, Ete.

 

Forms — No. 79.

 

Starz or New Yor, an
County of ‘ is

[Insert the names of at least three of the directors named in the
certificate], being severally duly sworn, depose and say, and each
for himself deposes and says, that he is a director named in the
foregoing certificate of incorporation; that at least ten hundred
and fifty dollars of stock for every mile of line proposed to be con-
structed, or maintained and operated, has been in good faith sub-_
scribed and twenty-five per cent paid in money thereon ; that it is
intended in good faith to construct [or to maintain] and operate
the line of pipe mentioned in such certificate, and that such cor-
poration was not projected or formed with the intent or for the
purpose of injuring any person or corporation, nor for the purpose
of selling or conveying its franchise to any person or corporation,
nor for any fraudulent purpose.

[Signature of directors making affidavit.)

Severally sworn to before me this }
day of 189
: [Signature of Notary.]

Lines of pipe cannot be constructed or operated in the city of New York
under the provisions of this act.

At least twelve persons must sign and acknowledge above certificate.

For amount of fees and organization tax, payable upon filing and recording
the certificates of incorporation, see the the notes under Form No. 62.

 

No. 79.

Notice to Owners and Occupants of Lands of Filing Map and Survey of
Pipe Line.

See the Transportation Corporations Lav-. § 41, ante.

To A. B., C. D., E. F. and » owners and occupants of lands
through which the route of pipe line located and mapped by
the [insert corporate name] Company, passes :

Take notice, that a map and survey of the route adopted and
located by said [tnsert corporate name] Company for the laying of
& pipe line hasbeen filed in the offices of the clerks of the counties
of , on the day of , 189 , and that such
route passes over or across the lands owned or occupied by the per
Pips Line Corporations; Retocation or Ling. 1029

 

Forms—WNo, 80.

 

sons, respectively, to whom this notice is directed, and ‘that the
route thereof is indicated thereon by a line of stakes consecutively |
numbered and equally distant, and not more than twenty rods from
each other.

 

Dated, ,189 .
Yours, ete.,
The [name of corporation}.:
By . , Secretary.
No. 80.

Notice of Application for Appointment of Commissioners to Reloeate
Pipe Line by Occupant or owner of Lands.

See the Transportation Corporation: Law. § 41, anie,

‘To the [¢nsert name] Company, and to A. B.:

Take notice, that on the day of ,» 189 ,ata
Special Term of the Supreme Court, to be held at in
the village [or city] of , in the county of , at

the’ opening of said court on that day, or as soon thereafter as coun-
‘sel can be heard, an application will be made, pursuant to law, for
the appointment of commissioners to relocate the line of route,”
adopted and located by said corporation for the laying of its pipe
line, where the same passes through the land owned ‘or occu~
pred) by OC. D., as said line is designated on a map and survey
of said route, filed by said corporation in the office .i the clerk
of county, on the day of , 189 , and
for such other or further relief as may be proper; that A. B., one
of the persons to whom this notice is addressed, is an owner [or
occupant] of lands to be affected by the alteration to be proposed
in said application; that said application will be made upon said
map and survey, and notice of filing thereof served: upon scid OC. D.
-on the day of , 189 , and also upon the petition of
said C. D., a copy of which is hereto annexed and served upon you.

Dated, 189.
Yours, etc.,

Xi Z.,
Attorney for C. D.
Office address, .......+..-00

[Attach petition as in form No. 81.]
1030 Pipz Line Corporations; Retocation or Lang.
Forms — No. 81.

 

T

No. 81.

Petition by Owner or Occupant of Land upon an Application for the
Appointment of Commissioners to Relocate Pipe Line.

Sée the Transportation Corporation Lew, § 41, ante.

i LO viii voesiwee wees!

The petition of C. D. respectfully shows, that the [¢sert corporate
name | Company, a domestic pipe line corporation, has made a map-
and survey of the route adopted and located by it for the laying of:
a pipe line in the county of , which map and survey have-
been certified by the president and engineer of said corporation and.
filed in the office of the clerk of said county, on the day of

, 189 ; that on the day of , 189 ,.
said corporation gave written notice to your petitioner of the filing-
of such map and survey, and stating that said route passes over or
across lands owned [or occupied] by your petitioner; that your
petitioner is the owner [or occupant] of the lands designated on.
said map and survey, through which the route of said pipe line is.
designated to pass, the title to which lands has not been acquired
by purchase by said corporation. ,

That your petitioner feels aggrieved by the proposed location of
said ronto, and that his objections to said route are as follows:
[insert came], and that the routo to which it is proposed by him to-
alter the same is as follows: [¢nsert description].

Wherefore your petitioner prays, that the court will, pursuant to-
section 41 of the Transportation Corporations Law of the State-
-of New York, appoint three disinterested persons commissioners to-
examine the route located and the proposed alteration thereof, and
direct the mode of proceeding, and that the court will make such.
order as it shall deem proper in relation to such alteration, and
determine the location of such line, and grant such other or further
‘ielief as may be proper and agreeable to law.

Dated, , 189 .
C. D.
Pres Linz Corporations; Rztocarion or Loz, 1031

 

Forms— No, 82.

 

‘Strate or New York, t ack

County of ;

C. D., being duly sworn, deposes and says, that he is the petitioner
named in the foregoing petition; that he has read the foregoing
petition, by him subscribed, and knows the contents thereof; that
‘the same is true to the knowledge of deponent, except as to the

-mnatters therein stated to be alleged on information and belief, and

-as to those matters he believes it to be true. OD

Sworn to before me, ‘this t
day of f180
[Signature of Notary.)

 

No. 82,

“Order eee Commissioners to Examine Propesed Alteration of
Pipe Line,

See the fniieneatie Corporations Law, § 41, ante.

At a Special Term of the Supreme Court, held at :
in the city [or village] of » on the day
of , 189 .

Present: Hon. E. L. F., Justice.

 

In toe MattTer
OF THE
APPLICATION OF C.D. FoR AN ALTERATION
or Tam Prez Line Rovrts or THE [énsert\
corporate namé] COMPANY.

 

On reading and filing the petition of C. D., dated . ‘
189 , praying for the appointment of commissioners, pursuant to
section 41 of the Transportation Corporations Law of the State of
New York, to examine the route of pipe line located by the
[insert name] Company and the proposed alteration thereof,
together with notice of this application thereon at this time and

place, with proof of due service on the said [insert name} Com-

pany and upon A. B. and owners or occupants of lands to
‘be affected by the alteration proposed by said petitioner, eae on

e
1032 Pies Love Corporations; Rexocation or Line.

 

Forms— No. 83.

 

motion of G. H., counsel for said petitioner, and after hearing
L. M., of counsel for the [insert name] Company, and P. Q., of
counsel for A. B., it is hereby

Ordered, That T. RB, N. L. and J. R.,, of jthree disin.
terested persons, be and they are hereby appointed as commis.
sioners to examine the route located for said pipe line by said.
[insert name] Company, and the proposed alteration thereof, and
that said commissioners shall [here direct the mode of proceeding*),
and that said commissioners do report to the court the facts relating
thereto and their opinion as to the proposed alteration, and what,
if aay, alteration should be made in such line.

 

No. 83.

Report of Commissioners Appointed to Examine Proposed Alteration of
Pipe Line.

See the Transportation Corporations Law, § 41, ante.

 

In THE MATTER
OF THE

APPLICATION OF C, D. For AN ALTERATION
or THE Pree Line RovrE oF THE [insert
corporate name] COMPANY.

 

To the Supreme Court of the State of New York:

We, the undersigned, commissioners appointed in the above-
entitled proceeding, by an order of said court, made at a special.
term thereof, at the of , on the day of

, 189 , do hereby respectfully report as follows:

That [report facts relating to examination of the route located
and the proposed alteration thereof}.

That our opinion as to the proposed alteration is as follows, to wit :.

And we do hereby further report that in our opinion the fol-
lowing alterations should be made in the route of said pipe line,
namely : [state alterations].

All of which is respectfully submitted.

Dated, ,189 .
[Signatures of commissioners.]

* See the Transportation Corporations Law, § 41, ante.
Piet Linz Corporations; Rexocation or Linz. 1033

 

2 Forms — No. 84.

 

No. 84.

Order of Court upon Report of Commissioners Appointed to Examine an
Alteration of Pipe Line Route.

See the Transportation Corporations Law, § 41, ante.

At a Special Term of the Supreme Court, held at
in the city [or village] of , on the day
of , 189.
Present: Hon. D. C. H., Justice.

 

In THE MatTTER
OF THE
APPLICATION oF C. D. FoR AN ALTERATION

or THE Pree Line Route or THE [¢nsert
corporate name] es

 

On reading and filing the report, dated 189 , of ’
commissioners appointed in the above-entitled prdebeding ‘to’ report
as to the alteration of the route of the pipe line of the [esert cor-
porate name| Company, with notice of motion to confirm said
report, and for the order of the court thereupon, with affidavit of
due service of said notice upon and , and upon
motion of G. HL, of counsel for C. D., and after hearing L. M., of
counsel for the [imsert corporate wae Company, and P. Q., of
counsel for A. B., in opposition thereto, it is hereby

Ordered, That said report be and the same is hereby in all respects
confirmed, and thatthe location of theroute of said pipe line be and
the same hereby i is altered and determined as follows, to wit: [Jnseré
* Location], and that the costs, fees and charges of the commissioners,
above mentioned, are hereby fixed and adjusted at [insert amount],
and that the costs and charges of the proceedings in this matter are
hereby fixed and adjusted at [insert amount] dollars, and it is
hereby-directed that the amount of said costs, fees and charges of
said commissioners and the amount of the costs and charges of this
proceeding be paid by the said [cnsert name] Company, [or by sacd
A. B. as the case may be] to said commissioners end to said C..D.,

respectively.
1034 Pies Ling Corporations; Rexocation or Livz.

 

Forms — No. 85.

No. 85.

Petition of Pipe Line Corporation for Permission to Coustruct its Line
Across, Along or Upon a Highway, or Across or Upon a Bridge, or Inte
and Through the Streets of an Incorporated Village or City

See the Transportation Corporations Law. §§ 45 and 46, ante.

To the General Term of the Supreme Court of the
Judicial Department :

The petition of the [¢nsert name] Company respectfully shows :
That said company is a corporation, duly incorporated under article 5
of the Transportation Corporations Law of the State of New York for
constructing and operating for public use lines of pipe for eonvey-
ing or transporting therein petroleum [or gas, or as the case may be].

That it is necessary that the pipe line of your petitioner shali be
constructed across [along or upon] the pubic highway known as

the , located in the town of , in the county
of [or across or upon the bridge known as the ;
located in the, etc., or into or through the village of , begin-
ning at and running, ete.], a8 appears by the map of the
route of said pipe line, filed , 189 , in the office of the
clerk of county, pursuant to said article 5 of the Trans-

portation Corporations Law.
That your petitioner has applied to the commissioners of high-

ways of the said town of [or has applied to the board of
trustees of said village of , or to the common council of
said city of ] for their consent to the construction of said

pipe line across [along or upon] said highway [or across or upon
such bridge, or through said streets, in case of villages or cities],
upon such terms as might be agreed upon with said commissioners
[or said board of trustees, or as the case may be]; but that such
consent of said commissioners [or board o trustees, etc.,| cannot be
obtained by your petitioner.

Your petitioner, therefore, prays ie this court will grant an
order, pursuant to said law, permitting the said corporation, your
petitioner, to construct its line of pipe across, ete.

Dated , 189 .
THE [insert corporate name] COMPANY.
[Pee By [signature], President.

’

[Add verification as im form No. 1.} '
i

Piper Live Corporations; Reztooation or Lins. 1035

 

Forms— No. 86.

 

No, 86.

Notice of Motion by Pipe Line Corporation for Permission to Construct.
its Line Across, Along or Upon a Highway, or Across or Upon a Bridge,
or Into or Through an Incorporated Village or City.

See the Transportation Corporations Law, ¥§ 45 and 46, anie,
‘ In THE MatTrer
: OF THE

»
APPLICATION OF THE [insert corporate name]
CoMPANY FOR PERMISSION To ConsTRUCT
Irs Pree Linu Across, ETC., THE [name the

 

; highway or bridge.]

To and , commissioners of highways of the town
of , in the county of [or direct to the municipal
authorities of village or city}.

Take notice that on the —- day of , 189 , ata General

Term of the Supreme Court to be held at , in the village

{or erty] of. , in the county of , at the opening of

said court on that day, or as soon thereafter as counsel can be heard,
an application will be made, pursuant to law, for an order per-
mitting the [¢nsert corporate name] Company to construct its pipe
line across [along or upon] the public highway known as the
[describing it], and located in the town of , etc., [or across
or upon the bridge, etc., describing same], upon such terms as the
court may direct, and for such other or further relief as may be
proper. ;

That said application will be made upon the petition of said
{insert name] Company, a copy of which is hereto annexed.

Dated, , 189 .
Yours, etc.,

Attorney for the................ Company.
Ollice address. i6.c%0ws cee cesses is cose eens
1036 Pipz Linz Corvorations; Rexocation or Linz.

 

Forms — No. 87.

No. 87%.

Order of Court Permitting a Pipe Line to be Constructed Across, Along
or Upon a Highway, or Across or Upon a Bridge, or Into er Through
the Streets of an Incorporated Village or City.

See the Transportation Corporations Law, §§ 45 and 4t. ente.

At a General Term of the Supreme Court, held at

in the village [or city] of , on the day of
, 189 , in and for the Judicial:
Department.
Present: Hon. , Presiding Justice; and
Hons. and » Justices,

 

In THE MATTER
OF THE
APPLICATION OF THE [insert corporate name}
Company FOR PERMISSION TO CoNSTRUCT
irs Pree Ling Across, ETc., THE [name
the highway, or bridge, or as the case may be].

 

On reading and filing the petition of the [insert corporate name]

Company, dated » 189, praying [state prayer of' peti-
tion], together with notice of motion and proof of due service
thereof upon and , and after hearing ;
of counsel for said petitioner, for the motion, and , of

counsel for [the commissioners of highways of the town of
or as the case may be] in opposition thereto,

It is hereby ordered, that the said [insert corporate name] Com-
pany be’ and is hereby permitted to construct its pipe line across.
[along or upon] the public highway, known as [describing it],
located in the town of in the county of » [or
to construct its pipe line across or upon the bridge known as the
(describing it), or into and through the Jollowing streets of, etc.,],
in the manner and upon the terms herein directed, as follows,
to wit: [Znsert the manner and terms of such construction].
Reporr sy Prez Linz Company. 1037

 

Forms — No. 88.

No. 88.
Monthly Statement by Pipe Line Corporation.

See the Transportation Corporations Law, § 52, anée.

The [¢nsert corporate name] Company hereby makes the follow-
ing statement for the month of , 189 , pursuant to the
provisions of section 52 of the Transportation Corporations Law of
the State of New York, to wit:

The amount of all commodities received by said corporation
during said month was [énsert amount. ]

The amount of all commodities delivered by said corporation
during said month was [insert amount.]

The stock on hand of said corporation on the last day of said:
month was [¢nsert same], of which stock [énsert amount] is, repre-
sented by outstanding certificates, vouchers, receipts or orders, and.
[tnsert amount] in credit balances on the books of said corporation..

Dated , 189

THE [tnsert corporate name] COMPANY.
By [signature], President.
- [signature], Secretary.
State or Nuw York, } re
Couuty of ‘

and , being severally duly sworn, each for
himself, deposes and says: That the said is the president.
of the [insert corporate name| Company, and said is the:
secretary thereof; that the foregoing statement subscribed by him
is in all respects true and correct.

[Signatures of President and Secretary.)

Sworn to before me ao
day of , 189.

[Signature of Notary.
1038 Gas anp Exzotric Ligur Corrorations.*

 

, Forms—No. 89.

 

No. 89.
‘Certificate of Incorporation of a Gas or an Electric Light Corporation.

See the Transportation Corporations Law, article 6, § 60, ante.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the United States and one of usa resi-
dent of the State of New York, desiring to become a corporation
for the purposes herein specified; pursuant to the provisions of the
‘Transportation Corporations Law, article 6, do hereby certify :

First. The name of the corporation is to be [msert corporate
name] Company.

Second. Its objects are to be: Manufacturing and supplying
gas for lighting the streets and public and private buildings of
[here insert the name of any city or town or cities and towns, nm
this State, in which the business of the company is to be carried
on. |

[* Or, in case of an electric light corporation state as follows,
to wit:

Second. Its objects are to be: Manufacturing and using elec-
tricity for producing light, heat or power, and in lighting streets,
avenues, public parks and places, and public and private build-
ings of cities, villages and towns within this State, as followe, to
wit: (name places)).

Third. The amount of its capital stock is to be [insert amount]
dollars.

Fourth. The term of its existence is to be [wmesert the number of
years, not exceeding fifty).

Fifth. The number of shares of which the stock shall consist is to
be [insert number of shares].

Sixth. The number of directors is to be [imsert the number
definitely, but such number must not be less than three nor more
than thirteen].

Seventh. The names and places of residence of the directors who
are to serve for the first year are as follows, viz. :

 

* Or the corporation may be formed for both gas and electric lighting.
Warer-worxcs Corporations, 1039:

 

Forms — No. 90.

Names. Places of residence,

weeeeeesecerwenecane

bo

eoeeese ee oe weer eae erseeeneceosreevcecce.
"

3. eeoeeeneeapeeeneneaece eeoaeenveee eevee eeoeeeceeeneeee eee eeeeseoese

Eighth. The name of the town and county in which the opera-
tions of the corporation are to be carried on is [insert name of town.
and county). ,

In Wirnzss Wuerzor, w we have made, signed and acknowledged.
this certificate in. duplicate, this day of , 189

[Signatures of incorporators, at least
three in number.] ,

Starz or New Yorx, } is \
County of : s
On this day of , 189 , before me personally

came [insert names of the persons signing certificate], to me
severally known to be the persons described in and who made and
signed the foregoing certificate and severally duly acknowledged
to me that they had made, signed and executed the same for the
uses and purposes therein set forth.

[Signature of Notary.]

For amount of fees and organization tax to be paid upon filing and recording
the certificates of incorporation, see the notes under form No. 62.

 

No, 90, ‘
Certificate of Incorporation of a Water-works Company.
See the Transportation Corporations Law, article 7, § 80, ante.

We, the undersigned, all bemg persons of full age, and at least
two-thirds being citizens of the United States and one of usa resi-
dent of the State of New York, desiring to become a corporation
for the purpose of supplying water to cities, towns or villages and
the inhabitants thereof in this State, pursuant to the provisions of
the Transportation Corporations Law, article 7, do hereby certify:

First. The name of the corporation is to be [insert corporate
name| Company.

Second. The amount of its capital stock is to be [insert amount}
dollars.
‘1040 Water-works CorPoRATIONS.
. td

 

Forms — No. 90.

 

Third. The number of shares into which such capital stock is to
*be divided is [insert number of shares].

Fourth. The location of the principal business office of such cor-
poration is to be [insert the name of the city, village or town, and
.the county].

Fifth. The number of its directors is to be [insert the definite
-number, but not less than seven]. ‘

Sixth. The names and places of residence of the directors for the
first year are as follows, viz. :

Names. Places of Residence.
Ty curate Melai chases ei aeies Sileaisialahwlss eae’ [aketeereuienwevse a Sie Gee eo own ees
Dd leiaieie's ale Geers ois. sige vesloveneieew'e Sele. Soisinate Sera sistas Sia si'e Shajoiies ia
Dis eles es Oana es aharalnterae ona ee ee gf Si8kg S elewe evel niaia
Be, sicaisiae gaa cae eis oie Dew Bw IRS Slace sie weet re cetees Se WeSralanesée So
Dips daa on toe sisi iete oi aveare” — WW ste. a alee icine Howe Wawa
Os cae baie wie Gide ates one Sue lene gya wiejes, [etaihiengusutegeuetie sprees ois die oe
DT aera eles hase chicas knissisae: ies bineaae Uae aana teaGary

Seventh. The names of the city [town or village, or cities, towns
-and villages, as the case may be], which it is proposed to supply
with water are [insert names].

Eighth. The permit of the authorities of such city [town, or
village, or cities, towns and villages, as the case may be] has been
_ granted, as more fully appears from such permit, which is annexed
to this certificate and is hereby made a part thereof.

Ninth. The post-office address of each subscriber, and the number
-of shares he agrees to take in such corporation, the aggregate of
which at least equals one-tenth of the capital stocx, and ten per
-centum of which has been paid in cash to the directors, are:

Number of shares

Names Post-office address. subscribed.
Ae Bisse eee kee Senate ieee caewawa kee. (Seen keies shares.
Cn wesw sine writers cameo mk ede eoee ee. Shares,
Be cEeaiet os weesie: (ieee ees eee Ldaeepetieee- lees . shares.
Gs Hiiceeceaw ches GIG G tA ceeaiawin vseeiuG oc BDATES.
We Dnieinet tr rah Qiated: Chalgsevetave ersressiesshevesieteve straits oss eee... Shares,
Ki. Dosa orcad tele Siu ace ishels See aceis SEMEN. ete «+... shares.
AMO Neiacttsenetivece: cettes i LAGER SiG Ree eee Psieegu a celaress
Water-works Corporations. 1041

 

Forms — No. 90.

In Witness Wuerreor, we have executed and acknowledged this
certificate in duplicate.

Dated, this day of , 189

[Signatures of incorporators, at

least seven in number.)
Strate or New York, } a :

County of

On this day of , 189, before me personally came
[insert names], to me severally known to be the persons described
‘in and who made and signed the foregoing certificate, and sever-
ally duly acknowledged to me that they had made, signed and
executed the same for the uses and purposes therein set forth.

J [Signature of Notary.]

‘Starz or New York, ; Bes
County of

| Here insert the names of at least three of the directors], being
severally duly sworn, each for himself, deposes and says that he is
a director named in the foregoing certificate of incorporation ;
that at least one-tenth of the capital stock mentioned in such certi-
ficate has been subscribed; that ten per cent of such subscriptions
has been paid in cash to the directors.

[Signatures of the three directors aie afidavit.]

‘Severally sworn to before me this }
day of , 189.
[Signature of Notary.]

PERMIT Rererrep 1o iv tae Forscome. CaRrisioaTs oF Inoor-
PORATION.
We, the undersigned, being a majority of the board of trustees
-of the incorporated village of , in the county of
[or, being a majority of the officers holding the offices ‘of super-
visor, justice of the peace, town clerk and highway commissioners

of the town of , m the county of . } or, being the
-board of water commissioners of the city of , in the county
of ], having received from [insert names of the persons

66
1042 Warter-worxs Corporations.

 

Forms— No. 90.

Sorming the corporation] an application for a permit authorizing
them to form a corporation for the purpose of supplying such vil-
lage [or town, or city, as the case may be] with water, do hereby
grant such permit, authorizing the formation of such corporation
for the purpose of supplying such village [or town, or city] with
water.

In Wrrness Wuureor, we have signed and acknowledged this
permit in duplicate this day of , 189

[Or, A. B., Supervisor.

C. D., Justice of the Peace.

E. F., Town Clerk.

G. H.,

I. J., Commissioners of Highways.
Or,

Ob
yO

sy
“9,
9,

Water Commissioners of said city.)

Strate or New Yorx, } ak
County of ; =

On this day of , 189 , before me personally
came [insert the names of subscribers to the permit], to me severally
known to be the persons described in and who made and signed the
foregoing certificate and severally duly acknowledged to me that
they had made, signed and executed the same for the uses and

purposes therein set forth.
[Signature of Notary }

For information as to the fees and organization tax to be paid upon filing and
recordsng the certificates of incorporation, see the notes under form No. 62.
 

> TRLEGRAPH AND TELEPHONE CoRPORATIONS. 1043

Forms— No. 91.

 

No. 91.
Certificate of Incorporation of 2 Telegraph and Telephone Company..
See the Transportation Corporations Law, § 100, ante.

We, the undersigned, all being persons of full ‘age, and at least
two-thirds being citizens of the United States and one of us a resi-
dent of the State of New York, desiring to become a corporation
for the purpose of constructing, owning, using and maintaining a
line or lines of electric telegraph [or telephone] wholly within or
partly beyond the limits of this State, pursuant to the provisions of
article 8 of the Transportation Corporations Law, do hereby certify:

First. The name of the corporation is to be [tmsert corporate
name| Company.

Second. The general route and the points to be connected are as
follows, viz.: [state route and points to be connected].

Third. The amount of its capital stock is to be [insert amount]
dollars.

Fourth. The number of shares into which such capital stock is to
be divided is [tnsert nuniber of shares].

Fifth. The term of existence of such corporation is to be [insert
term] years. :

Sixth. The number of its directors is to be [¢nsert the specific
number, but not less.than sever}.

Seventh. The names and residences of the directors for the first .
year are as follows, viz. :

Name. Residence.

6. cane eT eer ee eee oe eo ort desley

%. seve seen eeree econ eeee sess see ec eter creer essence Ce eave seas
VVVVV

#
1044 TELEGRAPH AND TELEPHONE CoRPORATIONS.

 

Forms — No. 92.

 

Eighth. The post-office address of the subscribers and the number
of shares which each agrees to take in such corporation are as
follows :

Name, Post-office address, ee
Le aieeeeeae Sean cess scecwee sate, Sedisareds tesox Shares:
Os. Rive eRe ales Geese Weasieenck’s ECan eNotes ewes shares.
Boia Vialedn GENER SY Welsee ead Sale seis en eesccccecesss Shares,
Ds. alee stews RR eS ta we ROMEO ee? coooeeendwreharest
Or dreecismetee sewer ote se diepeaeanaee:. outlets wets shares.
le SAGER SRR SEER. Wes ke elee Gewese uaders Boise ... shares.

In Wrrness Wuerror, we have made, executed and acknowl-
edged this certificate in duplicate this day of , 189 .

[Signatures of incorporators, not less

than seven in number.
Srarz or New Yor, gas

County of ‘

On this day of , 189 , before me personally
came [insert the names of the subscribers to the foregoing certificate]
to me known to be the persons described in and who made and
signed the foregoing certificate and severally duly acknowledged to
me that they had made, signed and execyted the same for the uses
and purposes therein set forth. .

‘ [Signature of Notary.]

For information as to the fees and organization tax to be paid upon filing and
recording the certificates of incorporation, see notes under Form No, 62.

 

No. 92.
Certificate for Extension of Lines of a Telegraph or Telephone
Company.
See the Transport:..ion Corporations Law, article 8, § 10i, ante.

We, the undersigned, being at least two-thirds of the directors of
[énsert name] Company, do hereby certify that the written consent
of the persons owning at least two-thirds of the capital stock
_ thereof having been procured, as appears by the affidavit of three
” of the directors annexed hereto, marked “ Exhibit A,” and which
a

TELEGRAPH AND TELEPHONE CoRPORATIONS. 1045

 

Forms — No. 92.

 

‘is hereby made part of this certificate, such ‘corporation desires to
-construct, own, use and maintain a line of electric telegraph [or
telephone], not described in its original certificate of incdrporation
[or desires to join with another corporation in constructing, leasing,
owning, using and maintaining such line ; or to hold or own any
enterest therein ; or to become lessees thereof, as the case may be.]

That we do hereby, for such purpose, pursuant to the provisions
of the Transportation Corporations Law, article 7, section 101,
execute this amended cértificate as follows, to wit:

[Here insert all the recitals contained in the original certificate,
including in the description of the route both the line or lines
specified in the original certificate’ and the route of the proposed
extension, and designating the extreme points connected thereby. |

In Witness Wuereor, we have executed and acknowledged this
amended certificate in duplicate, and have hereunto set our hands,

this day of 189.
[Signatures of at least two-
thirds of the directors. ]
State or New York,
' County of ; ; ae
On this day of , 189 , before me personally came

[insert the. names of the directors signing the certificate}, to me
known to be the persons described in and who made and signed the
foregoing amended certificate, and severally duly acknowledged to
me that they had made, signed and executed the same for the uses
-and purposes therein set forth.
[Signature of Notary.]
“ Exurerr A,” REFERRED To IN THE Forxcoine CERTIFICATE.

‘Srate or New Yorx,
“County of ‘ { ae

[insert names of at least three directors], being severally duly ,
‘sworn, each for himself, deposes and says that he is a director of
[insert name of company]; that the persons who have signed and
executed the foregoing certificate constitute two-tlirds of the
directors of such company; that the written consent of persons
-owning at least two-thirds of the capital stock of such company has
1046 Brier anp Tournprke CogPoratTIons.

 

Forms —No. 93.

 

been obtained for the carrying out of the objects set forth in the

annexed amended certificate.
[Signatures of three directors. ]
Severally sworn to before me, }

this day of 189.
. [Signature of Notary.]
Upon filing and recording the foregoing certificate in the office of the Secretary °

of State the fees will be fifteen cents per folio. At the county clerk’s office:
Filing, six cents; recording, ten cents per folio.

No. 93.

Certificate of Incorporation of a Bridge Company.

¢

See the Transportation Corporations Law, article 9,.§ 120. ante.

We, the undersigned, all being persons of full age, and at least:
two-thirds being citizens of the United States, and one of usa
resident of the State of New York, desiring to become a corpora-
tion for the purpose of constructing, maintaining and owning a
bridge [or causeway, as the case may be], pursuant to the pro-
visions of the Transportation Corporations Law, article 9, do.
hereby certify :

First. The name of the corporation is to be [insert corporate
_ name] Company.

Second. Its duration is to be [ensert here a definite number of
years, not exceeding fifty.

Third. The amount of its capital stock is to be [¢msert amount
dollars.

Fourth. The number of shares of its capital stock is to be [insert
number. |

Fifth. The number of its directors is to be [¢nsert number).

Sixth. The names and post-office address of the directors for the
first year are as follows, viz.:

Names, Post-office addreas.

ee re ae ee i cc
Briper anp Turnprke Corporations. 1047:

 

Forms— No. 93.

 

Seventh. The location and plan of such bridge are as follows,
‘viz.: [insert location and plan).

Eighth. The post-office address of each subscriber, and the num-
ber of shares of stock which he agrees to take in such corporation,
“are as follows:

Number of shares
Names. Post-office address. subscribed.

dle ieeh day ere danceugs avec Gis Meeiedh Ces akieseeSokueawes waidsiescscsbarés:

In Wirness Wuerxor, we have signed and acknowledged this
certificate in duplicate.
Dated, this day of , 189
, [Signatures of incorporators, at
least five im number.)

‘Statz or New Ss F
BS.
County of ;

On this day of , 189 , before me personally
came [insert names of subscribers to certificate], to me known to
be the persons described in and who made and signed the fore-
going certificate, and severally duly acknowledged to me that they
had made, signed and executed the same for the uses and purposes
therein set forth.

‘ [Signature of Notary.]

Sratz or New Yor, hes :
County of -

[ Here insert the names of at least three directors], being severally
duly sworn, each for himself, deposes and says, that he is a director
named in the foregoing certificate of incorporation ; that the aggre-
gate of the subscriptions to the capital stock is not less than one-
fourth of the amount of the capital stock fixed and stated in such

/
1048 Bripce anp Turnpike CoRPoRATIONS.

 

Forms— No, 94.

 

certificate, and that five per cent of such subscriptions has been:
actually paid in cash. ;
[Signatures of at least three directors. ]
Severally sworn to before me this }
day of , 189
[Signature of Notary.]

For information as to fees and organization tax to be paid upon filing and:
recording the certificates of incorporation, see notes under Form No. 62.

 

No. 94.
Certificate of Incorporation of a Turnpike (or Plank-road) Company.
See ihe Transportation Corporations Law, article 9, § 120, ante.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the United States and one of usa resi-
dent of the State of New York, desiring to become a corporation
for the purpose of constructing, maintaining and owning a turnpike-
[or plank-road, as the case may be], pursuant to the provisions of
the Transportation Corporations Law, article %, section 120, do.
hereby certify :

First. The name of the corporation is to be [insert the corporate:
name| Company.

Second. Its duration is to be [imsert here a definite period of
years, not exceeding fifty.)

Third. The amount and number of shares of its capital stock is.
to be [insert amount] dollars, consisting of [¢aser¢ number] shares.
Fourth. The number of its directors is to be [insert number].

Fifth. The names and post-office address of the directors for the-
first year are as follows, viz

Name. Post-office address.

tem weavese acer ee wre eem eee eeeee wee ee ee mee ee eee eee ewes eens

Sixth. The termini of the proposed road are [state terminal:
points].
Seventh. its .ength is to be [state length].
Briper anp Turnpike Corporations. 1049

Forms — No. 94.

Eighth. The name ‘of each town, city or village into or ‘Bisough
which such road is to pass is as follows [¢nsert names of places].
Ninth. The post-office address of each subscriber, and the number

of shares of stock which he agrees to take in such corporation are

as follows:
Number of shares

m4 Names, Post-office address. subscribed.
Sacaya ate uasgteceyets grelwe Nebel deeds se8eatiee Weeeae Se ees0en Shares,
sie Bians ktwd wien sé 840 eae Gok sieioeteneoe. Lee ecenares,
aie evbiaiatesnienae pivetuees: GateeRsadegiwecrsees sean ces 8NAnes
ee ee i SRGRSY cGebeee test deeekeae, seteesesBaares.
More asker uceiee wesc Satan. wasecuuin shares.
In Wirness WHEREOF, we have made, signed and acknowledged

this certificate in duplicate, this day of 189 .

[Signatures of incorporators, not

less than fwe in number. ]

Starz or New York, a8
County of :

_ Onthis day of , 189 , before me personally came
[ensert names of subscribers to orb fiesta to me severally known
to be the persons described in and who made and signed the fore-
going certificate and severally duly acknowledged to me that they
had made, signed and executed the same for the uses and purposes
therein set forth.
[Signature of Notary.]
Sratz or New York, ig 3
County of ‘

[Here insert the names of at least three directors] being severally
duly sworn, each for himself, deposes and says, that he is a director
named in the foregoing certificate of incorporation ; that the aggre-
gate of the subscriptions to the capital stock is at least five hundred
dollars for every mile of road to be constructed, and that five per
cent of such subscriptions has been actually paid in cash.

[Stgnatures of at least three directors.]
Severally sworn to before me, :

this day of 189. 3)

[Signature ‘of Notary.| .

For information as to fees and organization tax to be paid upon filing and
recording the certificates of incorporation, see notes under Form No. 62.

1
1050 Bripge anp TurRNPIKE CoRPORATIONS.

 

Forms—WNo, 95.

 

No. 96.

Certificate of Extension of Corporate Existence of a Turnpike, Plank-
road or Bridge Corporation.

See the Transportation Corporations Law, § 151, ante.

CERTIFICATE oF EXTENSION or CorporaTe EXISTENCE OF THE
unattsir ake e ComPany.

We, the undersigned, being stockholders of the [¢nsert corporate
name| Company, a turnpike [plank-road or bridge] corporation,
duly organized and existing under and by virtue of the laws of the
State of New York, to-wit: Chapter 210 of the Laws of 1847 [or
the Transportation Corporations Law, article 9, as the case may
be], each owning the number of shares of the capital stock of said
corporation set opposite our respective signatures hereto, and
together owning at least two-thirds of the capital stock of said cor-
poration, to-wit: [¢sert number] shares of the total of [esert
number] shares, into which such capital stock is divided, do hereby,
pursuant to the General Corporation Law, and also pursuant to the
Transportation Corporations Law, section 151, consent that the
corporate existence of said corporation be, and the same hereby is,
extended for the term of [insert term of extension] years from the
expiration of the time fixed in the certificate of incorporation of
said corporation [or from the expiration of the time fimed in a cer-
tificate of extension of corporate existence, filed in the office of the
Secretary of State on the day of ,18 , and being
for the term of years from the expiration of the period
originally fixed in its certificate of incorporation for the duration
of its corporate existence].

In Wrrness Wuereor, we have hereunto signed our names and

written opposite our respective signatures the number of shares of
stock owned by each o* us in said corporation.

Dated , 18

Signatures. Number of shares.

eee e eee e cece reese Hc we ee ewe wees eee ee ee — tw ee het tet th tw et cee
ewe w et me ewe nme ere eee e ee ee re ee ee ee ee oe eee eee ee te ee ew ete

Ce cr
Brivgr anp Turnpike Corporations. 1051

 

Forms — No, 96.

 

Strate or New Yors, gue
County of. “

On this day of ,18 , before me personally
came [isert names], to me known to be the persons described in
and who signed the foregoing certificate and severally duly
acknowledged to me that they signed and executed the same for

the uses and purposes therein set forth.
_ [Signature of Notary.)

“Resotution oF Boarp or SUPERVISORS.

Resolved, That this board, pursuant to the Transporation Cor-
porations Law, particularly section 151, hereby gives its consent to
an extension of the corporate existence of the [insert corporate
name] Company for the period of years from the: expira-
tion of the time specified in the certificate of incorporation of said
corporation [or for the period of years from the expiration
of the time specified im the certificate of extension of its existence,
filed in the office of the Secretary of State on the day of

51 I.

OFFicE oF THE CLERK oF THE Boarp } Be
or SUPERVISORS OF County.

I, [insert name], clerk of the board of supervisors of the county
of , do hereby certify that the foregoing resolution was
duly adopted ,by the board of supervisors of county at a

meeting of said board, held at their rooms, in :
in said county, on the day of ,»18 ,amajority.of
‘said board being present.

In Witness Wuereor, I have hereunto set my hand and affixed

the seal of office of the said board of supervisors this day of

18
[Sead.} [Signature],
Clerk of the Board of Supervisors of _—- County.

Veririep Sratemenr To Bz APPENDED To THE ForEgoIne
CERTIFICATE.

We, the undersigned, the president and treasurer of the [insert
corporate name| Company, a plank-road corporation |or as the case
1052 Bripce anD TURNPIKE CORPORATIONS.

 

Forms — No. 95.

may be], make the following statement for the purpose of extending
the corporate existence of said corporation, to wit:

That the actual capital expended upon the construction of the
road of said corporation amounts to the sum of dollars,
exclusive cf repairs.

That the name of each town or ward through or into which the
road passes is [¢nsert same].

That said road extends from the village [or city] of , in:
the town of , passing through the towns [or wards of the
city of ] of , in the county of , and into-
the town [or ward, etc.,] of , in the county of , in

which last-mentioned town [or ward] said road terminates.

That no part of such road has been abandoned [or as the case
may be], and that the whole route mentioned in its articles of asso-
ciation [or certificate of incorporation] has been operated and main-
tained by said corporation.

. Ly Wrryess Wuereor we have subscribed our respective names

‘hereto this day of 18.
[Signature] President.

[Stgnature] Treasurer.
Strate or New York, ss 5 be

County of

[Insert name], being duly sworn, deposes and says, that he is the
president of the [insert corporate name] Company, mentioned and
described in the foregoing statement subscribed by him; that he
signed such statement as president of said company, and that the
same is in all respects true; that stockholders owning at least two-
thirds of the capital stock of said corporation have duly signed and’
acknowledged a consent that the corporate existence of said cor-
poration be extended for the period of | years; that such
consent and a copy of the resolution of the board of supervisors
of county, giving its consent to such extension, duly certified
by the clerk of such board, are annexed to this instrument.

[Signature] President.
Sworn to before me this }
day of , 189 .
[Signature of Notary]
[Attach a like affidavit of the Treasurer.)
Stream Rartroaps; Incorporation oF. 1053:

 

Forms — No. 96.

No. 96.
Certificate 6f Incorporation of a Steam Railroad Company.

See the Railroad Law, article 1, § 20, ante.

We, the undersigned, all being persons of full age, and at least
two-thirds being citizens of the _ United States and one of usa.
resident of the State of New York, desiring to become a corpora.
tion under and by virtue of the provisions of the Railroad Law, for:
the purpose of building, maintaining and operating. a railroad [or-
of maintaining and operating a railroad already built, not owned
by a railroad corporation, or for both purposes], do hereby certify
as follows:

First. The name of the corporation shall be [insert name of:
company].

Second. The number of years it is to continue shall be [insert
number of years].

Third. The kind of road to be built and operated [or operated] |
shall be [state character of road to be built. Examples given:
a railrond of standard gauge, to be operated by locomotive steam
power ; or a steam railroad of narrow gauge, to wit: Jeet:
and anches |.

Fourth. Such railroad is to be built, maintained and operated [or
muintained and operated, if already built] fromthe city [or
willage| of to the city [or village] of , which.
places will be its termini, and its length will be imiles.

Fifth. The county [or counties] in which any part of it is to be-
located is [or are]:

Sixth. The amount of the el stock a be ae amount
‘of capital stock] dollars.

Seventh. The number of shares into which the capital stock is.
‘to be divided shall be [¢nsert nwmber] shares.

Eighth. [Jf the capital stock is to consist of common and pre-
ferred stock, the amount of each class and the rights and privileges
of the latter over the former should be inserted. here.|
' Ninth. ‘The names and post-office addresses of the directors of

‘the corporation who shall manage its affairs for the first year are as:
follows, namely [not less than nine]:
1054 Steam Rartroaps; INcoRPORATION OF.

 

Forms— No. 96.

 

Name. Post-office address.

[> A icwoma pase wee igi uesGed Ghee sacs i sekieenusededeawes
De A Nae oias welders ar Gate eae: Rade bemtiies levereewsenes
dhe Se las alge alaressiais ee sis ieee ws aww wa we
Be Ge vss bbe sian sa a ee ir ee ee eons
Bo dy Vines ein ee ee ie ewse ee oi ar asta arn Marae alow si at iene oes
6, Ky Lis ca esia'wn wins oe ae Ce ee re eee
Dy Niwesekase siewaw sets ohhh Ode Mae NER Sone enee nes
SF. Os vivagee amet nes de + Meaewe lease wee ce eee eases
DA Reece Se eE De NGA e Oe. deny ve eens Gaukese wee ou nenee

Tenth. The place where its principal office is to be located is the
-eity [or village] of » county of » State of New
York. =“

Eleventh. [Jf 7 ts to be a railway corporation, specified in
article 5 of the Railroad Law, the statements required by
section 126 of that article should be inserted here.|

Twelfth. The name and post-office address of each subscriber to
this certificate, and the number of shares of stock he agrees to take
in such corporation are as follows:

No. of shares

Name. Post-office address. subscribed.

Ty As Beciiaeic xigeb Rive Wiese Oise ec eon sak ee es .... shares
9 C.D atu 8 in SSTa Se Watt aOR Olas pe Sere -... shares
Bx We CBeksiwhee tee ieee ee ctegnaecie ee eaieaes ..-. shares
Bs Ge Aso seteSesieteh + eieilalav'oic toi glave Wy eee aie eave. gh aia aie yea .... shares
Bad. distvsess seseb sew aales ea ewas sees Bases ... shares
Ge Ke Iie eerlewe. alates emer se mare waaswees .... shares
Mj IMeNicss eieies), Sbeoietensie's @ heiress teearaeeeimomett .... Shares
8. Pe Qicsanieaien. 35 Lenace phate wae eae wes .... shares
On Ris sca. Sienerere’et) yi vial abn veo Wiwiel'oialaheoaelsTeceie le io eiers .... shares
10. Te U ieicasee 26 Siesis Wise sea ai wiele ce Ww Bera Bre ww .... Shares
Ld Vie Wie. ee ites talesinsn Mewes Meee nes .... Shares
LOGY ceieven aah. Gidea eeerae cee wee eieeieeis @rstee .... shares
13. Xr Biase) Bald sega oda Getewseen Won .... shares
As Ves Lise esariereisn) weileioiate wvelecacalorettens aes dere eos teers 6 .... shares
POO NSOM eeaaSer ie einese tase gis oe acea als Selela es .... shares
ft ee
Steam Rartroaps; INcoRPORATION OF. - 1055.

 

Forms — No. 96.

 

In Wirness WuEreor, we have executed and acknowledged this.
certificate in duplicate, and have subscribed our respective names
hereto.

Dated, the day of , 189.

[Signatures of incorporators, not

less than fifteen in number.]
State or New York, ; ues

County of * ;
On this day of , 189 , before me personally came
[insert the names of the subscribers to the certificate], to me known
to be the persons described in and who executed the foregoing cer-
tificate, and severally duly acknowledged to me that they executed -

the same for the purposes therein mentioned.

[Signature of Notary.]

Strate or New York, tk

County of

A, B, O, D, and E, F, being severally duly sworn, each’ for
himself, deposes and says, that he is a director named in the fore-
going certificate of incorporation ; that at least $1,000 of capital
stock for every mile of road [bwilt, in case of w road already built]
proposed to be built has been subscribed thereto, and paid in good
faith, and in cash, to the directors named in the certificate, and that
it is intended in good faith to build, maintain and operate the road
mentioned therein. :
[Signatures of the three directors by
wham the affidavit is made.]
Severally sworn to before me, this t :

day of , 189 .
[Signature of Notary.]

Upon filing and recording the certificate of incorporation in the office of the
Secretary of State, the fees to be paid are: Filing, twenty-five dollars;. recording,
fifteen cents per folio. Upon filing and recording a certified copy or duplicate
original thereof in the office of the county clerk, the fees to be paid are: Filing,
six cents; recording, ten cents per folio. In addition to such payments an
organization tax of one-twentieth of one per cent upon the amount of the
capital stock must be paid to the State Treasurer. See the statutes regulating
such payments, decisions and further information relative thereto, ante.
’
1056 Street Rarrroaps; IncorProration or.

 

Forms — No. 97.

 

No. 97.
Certificate of Incorporation of a Street Surface Railroad Company.
See the Railroad Law, § 2, ante.

We, the undersigned, all being persons of full age, and at least
‘two-thirds being citizens of the United States and one of usa
resident of the State of New York, desiring to become a corpora-
‘tion, under and by virtue of the provisions of the Railroad Law, for
the purpose of building, maintaining and operating a railroad, do
hereby certify as follows:

First. [Same as “ First” in form No. 96. ]

Second. [Same as “Second” in form No. 96.]

Third. The kind of road to be built and operated [or operated]
shall be a street surface railroad to be operated by horse power
[cable or electricity].

Fourth. Such railroad is to be built, maintained and operated

[or maintained and operated, if already built] from in
the city [or village] of , to in the city [or
village] of , which places will be its termini, and its
length will be miles.

Fifth, Sixth, Seventh, Eighth, Ninth and Tenth. [Proceed as
-in corresponding clauses of form No. 96.]

Eleventh. The names and description of the streets, avenues
and highways in which such railroad is to be constructed, are as
follows: : [Znsert route.]

Twelfth. [Same as “ Twelfth” in Jorm No. 96. }

‘In Wiryess Wurrxor, we have executed and acknowledged thie
certificate in duplicate, and have subscribed our respective names
hereto.

Dated, the day of ,189 .

[Signatures of incorporators, not
less than fifteen in number.]

[Add here the acknowledgment as in form No. 96.}
[Add also the affidavit of three directors as in form No. 96.)

For information relative to payments to be made upon filing and recording the
-certificates of incorporation, see the notes to Form No. 96.
i

Raiiroaps ; SUPPLEMENTAL’ CERTIFICATE. 1057-

 

Forms — No. 98.

No, 98.

Supplemental Certificate Containing Names and Places of Residence of
Directors, Omitted from Certificate of Incorporation of a Railroad
,Company.

See the Railroad Law, § 3, ante.

We, the undersigned, the subscribers to the certificate of incor-
poration of the [imsert corporate name] Company, do hereby make
and file this supplemental certificate, pursuant to the provisions of
section three of the Railroad Law of the State of New York, and
for that purpose do hereby certify. as follows:

That the names and places of residence of the directors of the
[msert corporate name] Company were omitted from the cértificate
of incorporation of said corporation when the same was executed
and acknowledged.

That thereafter the requisite number of directors were chosen at
a meeting of the subscribers to said certificate, held at » on
the » day of » 189

That at said meeting the persons whose names and places of resi-
-dences are as follows were chosen as directors of said corporation,
namely:

/
Names. : Places of residence.

[Insert names and places of residence. |
In Witness Wuereor, we have executed and acknowledged this
-certificate in duplicate.
' Dated, the day of , 189
[Signatures of subscribers.]

[Add here the acknowledgment as in form No. 96.]

lj

For information as to fees payable upon filing and recording the certificates,
:gee notes to Form No. 74, ‘

67
1058 Rartroaps; Location or Koutu.

 

Forms — Nos. 99, 100.

 

No. 99.

Notice to Occupant of Lands of Filing Map and Profile of Route.
See the Railroad Law, § 6, ante.
To [name of occupant]:

Take notice that a map and profile of the route adopted in the
county of by the Railroad Company, duly certified
by the president and engineer [or a majority of the directors] of
said company, as provided by law, were filed in the office of the
clerk of said county of , on the day of :
189 , at o’clock in the noon, and thatsuch route
designated thereby passes over the lands occupied by you.

Dated, 5 189
Yours, ete.,

THE [insert corporate name] RAILROAD COMPANY.
By [Signature], Secretary.

 

No. 100.

Certificate to Map and Profile of Route to be Filed with County
Clerks by Railroad Corporations.

See the-Railroad Law, § 6, ante,

We, the undersigned, the president and engineer [or a majority
of the directors] of the [insert corporate name] Company, do
hereby certify that the foregoing [or annexed] is a correct map

and profile of the route adopted in the county of by the
said Company, filed pursuant to the provisions of section
six of the Railroad Law of the State of New York.

Dated, , 189 .

‘Witness :

esveceeceesey President.
GGG re awese , Engineer.

{Or eRe eee eae ae 209,

9

: Majority of Directors.
Rarz0aps; Location or Route. 1059

 

Forms— No. 101.

No. 101.

Petition by Owner or Occupant of Land for Change of Location of Route
of a Railroad.

See the Railroad Law, § 6, ante.

 

SUPREME COURT, .......... COUNTY.
In THE MATTER
_ OF THE
APPLICATION OF FoR APPOINTMENT

oF CoMMISsIONERS To ExaMInE RovutsE oF
THE [insert corporate name] RarLRoap
ComPany.

 

To the Hon. E. L. F., a Justice of the Supreme Court in the
veseeeeesse. Judicial District.

“The petition of [insert name] respectfully shows, that he is the
occupant [or owner, or both, as the case may be], of certain pieces
or lots of land situate in the town of , county of )
and State of New York. That on or about the day of

, 189 , the [insert corporate name] Company served
upon your petitioner a written notice of the time and place of the
filing of a map and profile designating the route of its road, and
stating that such route. passes over the lands of your petitioner,
which lands are described as follows: [/nsert description.]. That
such lands have not been purchased by or given to said railroad
company.

Your petitioner further shows that he is aggrieved by the pro-
posed location of said route,'and that the petitioner’s objections tq
such route and location are as follows: [Znsert same.]

And your petitioner further shows, that the alteration of route
proposed by him is as laid down upon the survey, map and profile
annexed hereto, which said survey, map and profile show the route
designated by said railroad SomRey and the proposed alteration
thereof. '

Wherefore, your petitioner prays that your honor will appoint
three disinterested persons, one of whom shall be a practical civil
engineer, commissioners to examine the route proposed by said rail-
1060 Rattroaps; Location or Route.

Forms — No. 102.

 

road company, and the route to which it is proposed to alter the
same, and to adopt the proposed alteration, if found consistent with
the just rights of all the parties and the public. including the
owners or occupants of lands upon the proposed alteration, and that
your honor will grant such other or further relief as may be proper
and agreeable to law.

Dated, ~ 180°
[Signature of petitioner.]

[Add verification by petitioner, as in form No. 64.]
[Annex map, survey and profile of routes.)

 

No. 102.

Notice of Application for Appointment of Commissioners to Examine
Route of Railroad Corporation.

See the Railroad Law, § 6, ante,

SUPREME COURT, .......... COUNTY.

 

In THE Marrer
OF THE
APPLICATION OF FoR APPOINT-
MENT OF COMMISSIONERS TO EXAMINE
Rovure or THE RamRoaD
Company.

 

To the [imsert name] Railroad Company, and [insert names of
owners or occupants of lands to be affected by the proposed
alteration]. '

Take notice, that upon the petition, survey, map and profile,
copies of which are hereto annexed, an application will be made to
the Honorable E. L. F., a justice of the Supreme Court in the

judicial district at the chambers of said justice, in the

city [or village] of , on the day of , 189 ,

at o'clock, in the —_— noon, for the appointment of commission-

ers, pursuant to law, to examine the route proposed by the said
Railroad Company, and the route to which it is pro-
posed to alter the same, as set out in said petition, survey, map
Raitroaps; Location or Rourz. 1061

 

Forms —iNo. 103.

 

and profile, copies of which are herewith served upon you, and for
such order thereupon as may be in accordance with law.

 

Dated, , 189
Yours, etc.,
T. 8. F.,
Attorney for Petitioner.
Office address......... eiecenawe wis
No, 103.

Order Appointing Commissioners to Examine Route.
See the Railroad Law, § 6, ante,
(Insert title as in preceding forms. ]
On reading and filing the verified petition of dated
,189 , praying for the appointment of commissioners
pursuant to section six of the Railroad Law to examine the route of
the road of the [imsert corporate name] Company, and for such
‘other relief as may be proper, with notice of this application and
, proof of the due service thereof together with a copy of said peti-

aA

tion upon the said railroad company and upon owners or

occupants of lands to be affected by the alteration of route proposed

by said petitioner, and on motion of , counsel for said peti-

tioner, appearing for said railroad company, and

for said , it is hereby A
Ordered, That A. B., a practical civil engineer of the city [or

village] of * , and O. D. and E. F. of ', three dis-

interested persons, be and the same are hereby appointed commis-
sioners to examine the proposed route of the [insert corporate
name] Company, and the route to which it is proposed by the
petitioner to alter the same, and after hearing the parties to affirm

the route originally designated, or adopt the proposed alteration
thereof, a3 may be consistent with the just rights of all the parties

and the public, including the owners or occupants of Jands upon the
proposed alteratipn, and to make and certify their written determi- \
nation thereupon in accordance with law.

Dated, , 189
E. L. F.,

Justice of the Supreme Court.
 

1062 Rartroaps; Location or Route. '

Forms — Nos. 104, 105.

 

No. 104.
Oath of Commissioners.
See the Railroad Law, § 6, ante.

SUPREME COURT, ............ COUNTY.
(Insert title as in form No. 101.]

Strate or New Yorx, } ee
County of 7

We, the undersigned, duly appointed commissioners to examine
the proposed routes, respectively, of the petitioner and of the
[énsert corporate nume] Company in the above-entitled proceeding,
do solemnly swear that we will support the constitution of the
United States and the constitution of the State of New York, and
that we will faithfully perform the duties of such commissioners
and of said office according to the best of our understanding and

ability.

 

A.B
c. D
i E. F
Subscribed and sworn to before me \
this day of , 189
[Signature of Notary.]
No. 1085.

Determination of Commissioners Appointed to Examine Route.

See the Railroad Law, § 6, ante,

SUPREME COURT, w24s..ceuses COUNTY.

[Insert title as in form No. 101.]

We, the undersigned, appointed as commissioners in the above-
entitled proceeding by an order made by Hon. E. L. F., a justice
of the Supreme Court of the judicial district, dated

, 189 , do hereby make and certify our written determina-
tion, as follows, to wit :

That having, in conformity with the statute and in obedience
to the terms of said order, examined the route proposed by the
\

Ratziroaps; Location or Routes. 1063

 

Forms— No. 106.

 

, {insert corporate name] Company, and the route to which it is
proposed. to alter the same, and after hearing the parties we do
hereby affirm the route originally designated by said railroad com-
pany [or do hereby adopt the proposed alteration of such route as
set out in the petition of , and in the map and survey
annexed hereto and marked “Fihiint A.”’|

We do hereby determine that thc said route shall be and hereby
‘is located accordingly, and that said location is consistent with the
rights of all the partics and the public [¢ncluding the owners or
occupants of lands upon the proposed alteration. |

That the testimony takcn before us in this proceeding is annexed
hereto, marked “ Exhibit B.”

In Witness WuHereEor, we have made and signed this certificate ©
this ‘day » 189

[Signatures of commissioners.]

 

No. 106.

Notice of Appeal from Determination of Commissioners Appointed to

Examine Route.
t

See the Railroad Law, § 6, ante,

- SUPREME COURT, .... ..... ». COUNTY.
[Insert title as in form No. 101.]
"TO: tassawaccue'd ; Esq., attorney for ........... 9 MOD aie sear aoa ’
Esq., the county clerk of ............ county :

Take notice, that [¢nsert «ame of appellant] hereby appeals to
the General Term of the Supreme Court, from the decision and
determination of the commissioners, made in the above-ertitled

proceeding and filed in the office of the clerk of county
on the day of , 189
Dated, , 189
Yours, etc.,
M. N.,
Attorney for Appellant.

Office address........... aac
1064 Raitroaps; Location or Rovre.

 

Forms — Nos. 107, 108.

 

No. 107%.

Order of General Term Affirming or Reversing Determination of Com-
missioners Appointed to Examine Route.

See the Railroad Law, § 6, ante,

At a General Term of the Supreme Court in and for the
judicial department, held at in the city [or village}
of , on the day of , 189

Present: Hons. 8. L. M., Presiding Justice, and D. C. H. and
J. R. P., Justices.

[Insert title of proceeding as in form No. 101.]

The appeal of , in the above-entitled proceeding, from
the determination vf the commissioners sppointed by order of
, a justice of the Supreme Court in the judicial
department, dated , 189 , which determination was filed
in the office of the clerk of _ county, on the day of
, 189 , having been heard at this term, now, on motion

of , counsel for , the appellant [or respondent],
and after hearing , counsel for , the respondent

[or appellant], it is hereby

Ordered, That the determination of said commissioners be and
the same is hereby affirmed [o7, reversed, as the case may be], and
that the route of the road proposed by the said [¢nsert corporate
name] Railroad Company be and the same is hereby affirmed [or,

 

that the route of the road proposed by the petitioner, said ‘
be and the same ts hereby adopted].

And it is further ordered, that dollars [the compensation
and eapenses of the commissioners herein and] costs of this appeal
and disbursements for printing be paid by to :

No. 108,

Certificate of a Railroad Company for a Change of Route.

See the Railroad Law, § 18, ante.

The [znsert corporate name] Company, & domestic railroad cor-
poration, by its president and secretary, who are duly authorized to
/

Rartroaps; Location or Roure. 1065

 

Forms — No. 108.

 

make this certificate, does hereby certify, pursuant to the Railroad
Law, article 1, section 18 :

That a meeting of the board of directors of such company was
held at its office, at No. street, in the city [or village]
of , on the day of ~ . , 189 , at
o'clock, P. M. [or A. M.], all of the directors being present [or
more than tevo-thirds of the directors being present, as the case may
be].
That at such meeting the following resolution was offered :

“Resolved, That [insert corporaie name] Company, alter or
change its route [or a part of the route of tts road or its termini, or
locate such route, or a part thereof, or its termini in an adjoining
county, as the case may be] as follows, to wit :

[Here insert the proposed alterations or changes in the route or
termini of the road), and further

“Resolved, That the president and ee: of the com-
pany be and they are hereby authorized to make and execute a
proper certificate of such alteration or change of route and to file
such certificate in the clerk’s office of the proper’county, together
with a survey and map of such alteration or change.”

That such resolution was duly adopted at said meeting by a vote
of two-thirds of all the directors of said company.

In Wirvess WueErexor, we have made and executed this certifi-
cate, and have hereunto set our hands and affixed the corporate

seal of said company this day of 189
President
[ Oreporoee] Coeecccr esc anesene
Secretary.

Srarre or New Yorke, I ak
County of j

| Insert the name of secretary], being duly sworn, deposes and
says, that he is the secretary of said [insert corporate name] Com-
pany, mentioned in the foregoing certificate; that he is acquainted
with [insert name of the president] and knows him to be the
president of said company ; that the signature of [insert name of
1066 Rartroaps in Forrien Country ; Incorporation.

 

Forms— No, 109.

 

president), subscribed to said certificate as president of said com-
pany, is in the genuine handwriting of said [insert president’s
name], and was thereto subscribed by order of the board of directors
of said company; and the deponent subscribed his name thereto as

secretary, as aforesaid, and attached the corporate seal by virtue of —

a like order of said board of directors.

ee ee |

Secretary.
Sworn to before me this
day of 189. t
[Signature of Notary.]

The foregoing certificate is required to be filed in the county clerk’s office,
together with a survey and map of the alteration or change of route.

 

No. 109.

Certificate of Incorporation of a Railroad Company to Operate in a
Foreign Country.

See the Railroad Law, § 17, ante.

CERTIFICATE OF INCORPORATION OF Rartr0ap Company.

We, the undersigned, all being persons of full age, at least two-
thirds of whom are citizens of the United States and one of usa
resident of the State of New York, desiring to become and form a
corporation, pursuant to section seventeen of the Railroad Law, for
the purpose of constructing, maintaining and operating in a foreign
country, to wit: [Jnsert name of country] a railroad [or, for the
purpose of maintaining and operating in a foreign country, to wit :

, a railroad already constructed] for public use in the
transportation of persons and property, and of constructing, niain-
taining and operating, 1n connection therewith, telegraph lines and
lines of steamboats or sailing vessels, do hereby make, acknowledge
and file this certificate, and certify as follows, to wit:

First. The name of the corporation is to be [insert corporate
nam?| Company.

[Continue as in form No. 96.]
Raiiroaps; Consouipation. 1067

 

Forms— No. 110. f

 

No. 110,

Agreement for Consolidation of Railroad Corporations.
See the Railroad Law, §§ 70-71, ante,

This joint agreement, made the day of , 189 ,
between the directors of [insert corporate name] Company,
party of the first part, and. the directors of [insert corporate name]
Company, party of the second part, under the corporate seals of
said companies,

Witnesseth : That the [insert corporate name] Company, said
party of the first part, the capital stock whereof is $ :
isa railroad corporation organized under the laws of the State of
New York, and operating a railroad wholly within said State [or
partly within the State of New York and partly within the State
of , or whose lines or routes of road have been located,
but not constructed, as the case may be.]

That [insert corporate name] Company, said party of the second

part, the capital stock whereof is $ , is a railroad cor-
poration organized under the laws of the State of New York [or
ender the laws of the State of ], and operating a railroad

wholly within the State of New York [or within the State of
, or as the case may be}.

That the railroads of said companies [or branches, or parts
thereof, or the line or routes of their roads, tf not constructed]
form [or shall or may] form a continuous or connected line of rail-
road with each other [or by means of an intervening railroad ©
bridge, tunnel or ferry].

That, in consideration of the mutual covenants and agreements
herein contained, the said parties hereto do hereby. merge and
consolidate the capital stock, franchises and property of said par-
ties hereto so as to form one corporation under and in pursuance of
the laws of the State of New York, in such case made and pro-
vided, and by these presents, ere

They do hereby covenant and agree upon and prescribe the
terms and conditions of such consolidation, and. the mode of carry-
ing the same into effect, which said terms and conditions and mode
1068 Rarir0abs; ConsoLipaTION.

 

Forms — No. 140.

 

of carrying the same into effect, they <autually covenant and agree
- to observe, as foliows, to wit:

First. That the name of the corporation hereby formed by said
consolidation shall be [¢nsert corporate name] Company.

Second. That the number of directors of said new corporation,
hereby formed, shall be [state number, not less than nine |.

Third. That the names and places of residence of the [insert.
number) directors and the other officers of said new corporation,
who shall be the first directors and officers thereof, and shall
manage its affairs for the first year, or until others are chosen ir
their places, are as follows, to wit:

Name of directors. Residences.

Officers. Names. Residences.
President....... Belele Seok Sea eaieaa uuu

Wice: President seseniesicwwaa erase ciel aa oe Web aiwereece heos
FLYCASUPED icc ucsu) aire dacioa ee or Reee ta culetvonA moar abene Seete
Secretary cnvise <saesonaWer eases sesh RNR NRS See cee ies

Fourth. That the capital stock of said new corporation shall be
dollars, consisting of shares of the par value
of dollars each.*
Fifth. That the manner of converting the capital stock of each
of the companies, parties hereto, into the capital stock of said new
corporation shall be as follows :

[Example given: The capital stock of each of the railroad com-

 

*In no case shall the capital stock of ‘he corporation formed by such consolidation exceed the
sum of the capital etock of the corporations so consolidated, at the par value thereof. (Sce the
Railroad Law, § 71, subd. 1.)
Ratiroaps; Consonrpation. 1069

 

Forms —No. 110.

 

panies, parties hereto, shall be convertible into the capital stock of
sad consolidated company and new corporation, share for share,
and upon presentation and surrender of any outstanding certifi-
cates of stock in either of said companies, parties hereto, certificates
Jor like amounts of stock in said consolidated company.and new
corporation shall be issued to the holders thereof.)

Sixth. That time and manner of choosing directors and officers
shall be as follows: [Hxample given: That there shall be an elec-

tion for directors of the said new corporation on the day
of in the year 189, and there shall be an annual election
for directors of said new corporation on the day of

in each and every year thereafter. That the said directors shall be
chosen by a majority of the votes of the stockholders voting at such
election, in such manner as may be prescribed by the by-laws of the
said consolidated company, and they shall continue to be directors
of such consolidated company for one year from the date of thew
election and until others are chosen and qualified in their places. .
In such election each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock held by such
stockholder for ten days previous to such election. Vacancies
occurring in the board of directors shall be filled in such manner
as shall be prescribed by the by-laws of the said consolidated com-
pany. The president, vice-president, treasurer and secretury shall
be chosen by ballot by the directors immediately succeeding the
annual election of directors, and vacancies shall be filled as pro-
vided in the by-laws of said consolidated company. The directors
of the said new corporation may, from time to time, choose or
appoint such other officers as they deem advisable.|

And the parties hereto do further covenant and agree as follows,
to wit :
[Jnsert any special terms and conditions agreed wpon, and mode
of carrying the’ same into effect.)
In Tzstrmony Wuereor, the said parties of the first and second
parts have executed this agreement in duplicate, and have hereunto
set their respective signatures and have caused to be hereto affixed
1070 Raiiroaps; ConsoiDAtIon.

 

Forms — No. 110.

the corporate seals of their respective railroads, of which they are
respectively the directors, the day and year first aforesaid.

Directors of the ...........- Company.

poe) «ARES we eae ., President.
once rccescccccoe, Secretary.

Directors of the ............ Company.
[Crmerate Attesfi hae eaees , President.
jepawaimeaesaceas , Secretary. A
Srate or New Yorg, t oe .
County of ; =
On the day of » in the year , before
me personally came , to me known, who,

being by me duly sworn, did depose and say that he resided in

; that he is the (president or other officer) of
the (name of corporation), the corporation described in and which
executed the above instrument; that he knew the seal of said cor-
poration; that the seal affixed to said instrument was such corporate
Rartroaps; ConsoLrpaTIon. 1071

 

Forms — No. 111.

seal; that it was so affixed by order of the board of directors of
said corporation, and that he signed his name thereto by like order.
Notary Public,
--..-. County, N. Y.

If such corporation have no seal, that fact must be stated in place of
the statements required respecting the seal.

 

[Prepare in the same form as above proof of execution by the sec-
' retary of the other constituent company, and annex the same.]
State or New York, { oe

County of -

On this day of , , 189 , before me personally
came [¢nsert names of directors of first constituent company sign-
ing agreement], directors of [insert corporate name], to me sever-
ally known, to be the persons described in and who severally
executed the foregoing agreement and severally acknowledged
‘to me that they executed the same for the uses and purposes therein
expressed.
[Stgnature of Notary.]

[Prepare im the same form as above acknowledgment by direc-
tors of the other constituent company, and, annex the same.) *

 

In case stockholders owning two-thirds of all the stock of each of the consolidat-
ing corporations shall sign a consent in writing signifying their assent to the
consolidation, such consent of each constittitent corporation must be appended to
the agreement in the following form : ‘

No. 111.

Written Consent of Stockholders to be Annexed to Agreement for Con-
solidation.

.

We, the undersigned, stockholders of the [¢nsert corporate name]
Company, owning two-thirds of all its stock, do hereby sign this
consent, signifying our assent to the within and annexed agreement
of consolidation of said corporation with the [¢nsert corporate name}
Company.
1072 Rariz0aps; CoNnsoLmation.

 

Forms— No. 112.

 

Iw Wirness Wuerror, we have subscribed our names to this
consent and set opposite our respective signatures hereto the
aumber of shares of stock owned by each of us in said Company.

Dated, this day of , 189

Skee e Seek akN 8  weavewar shares.
ree uacemeeearneaie: araexendtuat shares.
MR wGieecees.  Jlaissetean shares.

[Attach acknowledgment of persons signing the consent, and the
affidavit of the custodian of the stock book as in form No. 23.)

 

If the consent in writing of stockholders owning two-thirds of the stock is not
obtained, such consent must be secured at a special meeting, and certificates to
that effect must be annexed to the agreement in the following form:

No. 112.
Certificate of Adoption of Agreement for Consolidation of Railroad
Corporation. ‘
{To be attached to agreement of consolidation in lieu of written consent, when
the latter is not obtained.)

I [insert secretary's name], secretary of [insert corporate name
of first-mentioned constituent company), a corporation duly organ-
ized and existing under the laws of the State of New York, do
hereby certify under the corporate seal of said company: That the
annexed agreement bearing date the day of , 189 ,
for the consolidation of the said [insert name of first-mentioned
constituent company] with [insert name of other constituent com-
pany| under the name of [insert name of the new corporation]
Company, as the corporate name of such new corporation, was sub-
mitted to the stockholders of said [¢nsert name of jirst-mentioned
constituent company], at a special meeting of such stockholders
called and: held at the office of [insert place of meeting], number

street, in the city [or village] of in the county
of and State of New York, on the day of ;
189 , for the purpose of takitig the same into consideration ; that
due notice of the time and place of holding such meeting, and the
object thereof, was given by the said [onsert name of first-men-
tioned constituent company] to its stockholders by written ot
Rariroaps ; ConsoLipatIon. 1073

 

Forms — No. 112. : .

printed notices addressed to each of the persons in whose name the
capital stock of such corporation at the time of giving such notice,
stood on the books thereof, and that such notice was delivered to
such persons respectively, or sent to them by mail, postage pre-
paid, when their post-office addresses were known to said corpora-
ation, at least thirty days before the time of holding such meeting,
and that a general notice of the time and place and object of such
meeting was published at least once a week for four weeks succes-
sively in [insert name of newspaper], being a newspaper published
and printed in the city of [or town or county of | , in which
said [insert corporate name] Company has its principal office or
place of business. That at such meeting of said stockholders the
aforesaid annexed agreement was considered ‘and a vote taken
by ballot for the adoption or rejection of the same, in pursuance
of and in conformity with the provisions of the statutes in such
ease made and provided, and said ballots were cast in person
or by proxy, and that upon said ballots, votes of the stockholders
owning at least two-thirds of all the stock of said corporation were
east for the adoption of said agreerhent for consolidation, there
having been cast for such adoption the votes of [ensert number |
shares, and that said [¢nsert number] shares constitute! more than
two-thirds of all the stock of said corporation. That such agree-
ment for consolidation was thereupon declared duly adopted.

In Wirvzss Wuereor, I [¢nsert secretary’s name], the said secre-
tary of [insert name of first-mentioned constituent company), have
hereunto certified the above facts upon the said agreement for con-
solidation, and hereunto set nty hand and affixed the corporate seal
of said [insert name of jirst-mentioned constituent company, this

day of , 189
Se seeeee econ sc asy Secretary;

; eccccccecesenes. Company.
68

[ Conpor ate |
1074 Rattroaps; Revarive to Lease.

 

Forms — No. 118.

 

State or New Yorx, } iis

County of F

On this day of , 189 , before me the under-
signed, a notary public in and for said county, personally appeared
[ensert name of secretury], to me personally known to be the same
person who signed the foregoing certificate as secretary of [insert
corporate name] Company, and known to me to be such secretary,
who, being by me duly sworn, did depose and say, that he
is the secretary of said [énsert corporate name] Company, and
knows the corporate seal thereof, and that the seal affixed to the
said certificate is such corporate seal, and was so affixed by order
of the board of directors of said company, and that he signed
his name thereto by the like order.

In Wrrvess Wuereor, I have hereunto set my hand the day and

year above set forth.
[Signature of Notary.]

[Prepare in the same form as above the certificate of the secretary
of the other constituent company, and annex the same.]

Upon filing and recording the agreement of consolidation of railroad corpora~-
tions in the office of the Secretary of State the fees are as follows: Filing, twenty-
five dollars; recording, fifteen cents per folio. In the county clerk’s office the
fees are: Filing, six cents; recording, ten cents per folio. No organization tax is.
payable to the State Treasurer; see organization tax act and decisions thereunder,
ante

No. 1138.

Notice of Meeting of Stockholders of Railroad Corporation to Consider
Lease of Road.

See the Railroad Law, § 78, ante,

To the Stockholders of the [insert corporate name]:

Notice is hereby given that a meeting of the stockholders of the
[¢nsert corporate name] Company will be held at , in the
city [or village] of , in the county of , and that
the object of such meeting is to consider a lease of the railroad
owned [or operated] by said company to the [insert corporate name}
Company for the term of years.

Dated, , 189 .
s(aieiede Sawa h wos , Secretary.
Rattroaps; Revative vo Luase. 1075

 

Forms — Nos. 114, 115.

 

No. 114.

Certificate of the Adoption of a Lease of a Railroad.
See the Railroad Law, § 78, ante,

a [insert name}, secretary of ‘hs [insert corporate name| Com-
pany, do hereby certify, as follows, to wit :

That a meeting of the stockholders of the [insert corporate
name| Company, one of the parties to the foregoing contract or
lease, was duly held at the office of the company, No.

‘street, in the city of ", on the- day of ;
189 , at o’clock- in the noon, for the purpose of
approving of said contract or lease.

That notice of the time, place and object of said meeting was
duly served, at least thirty days previously, upon each stockholder
of the said [insert corporate name], personally or mailed to him at
his post-office address; and such notice was also published at least
once a week for four weeks successively in the > 4
newspaper printed in the city of » where the said
[insert corporate name] Company has its principal office. *

That at the said meeting, by a vote of the stockholders owning
more than two-thirds of the entire capital stock of the said [insert
corporate name] Company, duly voting in person or ue proxy, the
foregoing contract or lease was duly approved.

In Wrrnsss Wuereor, I have hereunto set my hand as such
secretary, and affixed hereto the corporate seal of the said [insert

 

corporate name] Company, this day of , 189 .
[Stgnature.]
\ eomperatey Secretary.
: No. 115.

Record of Proceedings of Meeting of the Stockholders of a Railroad
Corporation for the Adoption of a Lease, to be Entered in the Book of

Minutes.
See the Railroad Law, § 78, ante.

Bo erage RecA ee , N. Y., , 189 .
A special meeting of the stockholders of the [insert. corporate
name] Company was held this day at o'clock, M., pur-’
1076 Steret Raitroaps; Consent to Construct.

 

Forms— No. 116.

 

suant to due notice, served at least thirty days previously upon
each stockholder personally, or mailed to him at his post-office
address and also published at least once a week for four weeks
successively in [¢nsert name of paper], a newspaper printed in the
city of , where such corporation has its principal office, of
which notice the following is a true copy, to wit:

[Lnsert copy of notice as given in form No. 113.]

Stockholders owning at least two-thirds of the stock of the cor-
poration appeared in person or by proxy, and organized by choos-
ing from their number , a8 chairman, and » as
secretary.

A certain contract or lease [describing it] was read by the secre-
tary of the meeting.

The following resolution was then offered :

“Resolved, That a certain contract or lease [describing it] be
and the same is hereby in all respects approved.”

Upon a vote of those present in person or by préxy upon such
resolution, stockholders owning shares of stock, being at
least two-thirds of the stock of the company, voted in favor of the
adoption of such resolution, and stockholders owning shares
of stock voted against its adoption [or, and no stockholder voted
against its adoption, as the case may be].

Such resolution was thereupon declared duly adopted, and said
contract or lease approved, and the meeting then adjourned.

 

No. 116.

Consent of Property Owner to Construction of Street Surface Railroad.
See the Railroad Law, § 91. ante,

I, the undersigned, owner of property in the city [or village] of

, fronting on the portion of street, situated

between and streets, do hereby consent to the con-
struction and operation of a street surface railroad by the [¢nseré
corporate name] Company through and along said street,
in said city [or village}, and to the construction by said company
Srrret Rattroaps; Consent to Construct. 1077

 

Forms — Nos. 117, 118.

 

of such switches, sidings and turnouts as may be necessary for the
convenient working of such road, and that said company may
operate said road by means and power of electricity, and may erect
poles and string wires on said street for that purpose.
Dated, , 189 . oe ne
[Attach acknowledgment.) ane eee ores

 

No. 117.
Consent to Use of Electricity by Existing Street Surface Railroad,
Sde the Railroad Law, § 91, ante,

I, the undersigned, owner of property in the city [or village] of

, fronting on the portion of street, situated

‘between and streets, along which portion of said

street the [insert corporate name] now operates by animal

‘power 2 street surface railroad, do hereby consent that said com-

pany may operate said railroad by the means or power of electricity,
and may erect poles and string wires for that purpose.

Dated, , 189

[Signature of property owner.]
[Attach acknowledgment.]}

 

No, 118.

Notice of Application to Local Authorities for Consent to Construct and
Operate a Street Surface Kailroad.

See the Railroad Law, § 92, ante.

Publie notice is hereby given, pursuant to the directions con-
tained in a resolution duly adopted on the day of
189 , by the common gouncil for board of trustees] of ;
and, approved by the mayor [or as the case may be] on the
, 189 , that an application in writing has been
made to the common council of said city of [or board of
trustees, etc.], by the [insert corporate name] Company for per-
mission to construct, maintain, use and operate ‘a street surface
railroad for public use in, through, upon and along the surface of
streets, avenues aud highways, as follows: [Jnsert same.]

t a
}
1078 Srreet Raitroaps; Consent To Construct.

 

Forms — No. 119.

Notice is, therefore, hereby given that the common council of the
city of [or board of trustees, etc.] will corvene at .
in said city [or village] on the day of , 189 ,at

o’clock M. of that day, at which time and place the
aforesaid application will first be considered by the said common
council [or board of trustees], and all persons who desire may be
heard relative thereto. .

Dated, 189 .

City Clerk, ete.

 

No. 119.

Application to Local Authorities for Consent to Construct and Operate a
Street Surface Railroad.

Sec the Railroad Law, § 92, ante.

To the Honorable the Common Council of the City of
[or the Board of Trustees of the Village of I:

The petition of the [insert corporate name] Company respect-
fully shows:

That your petitioner is a street surface railroad corporation, duly
erganized and incorporated under and in pursuance of an act of
the Legislature of the State of New York, entitled the Railroad
Law [or as the case may be].

That the said corporation proposes to build, construct, maintain —
and operate a street surface railroad for public use in the convey-
ance of persons and property in cars for compensation in the city

[or village] of , in the county of , upon and along
the surface of the following streets, avenues and highways in the
city [or village] of , to-wit: Beginning at, ete. [describing
route].

That the railroad proposed to be built, constructed, rafntained
and operated by your petitioner, as hereinbefore set forth, is
intended to be operated by any motive power, other than locomo-
tive steam power, which now or at any time hereafter may law-
fully be used and employed on its route.
Srreer Rartroaps; Consent to Constrrucr. 1079

 

Forms — No. 120.

 

Your petitioner further shows that, pursuant to the laws of this
State, it is necessary for it to obtain the consent of the common
council of the city [or the board of trustees of thé village] of
to enable it to construct, maintain and operate the railroad afore-
said, and accordingly your petitioner now applies to your honorable
body for such consent. -

Wherefore, your’ petitioner prays and makes application to the
common council of the city of [or as the case may be] for
its consent and permission to be granted to your petitioner, its
‘Successor, successors, lessees and assigns, to construct, maintain and
operate a street surface railroad for public use, through, upon and
along the avenues, streets and highways above set forth and
described, together with all necessary connections, switches,
sidings, turnouts, ‘turn-tables,, cross-overs and suitable stands for
the convenient working of said railroad, and for the accommoda-
tion of the company’s cars which may be run over said railroad by
your petitioner, its successors, lessees or assigns ; and also that con-
sent and permission be granted to your petitioner, its successors,
lessees or assigns to the erection upon said streets, avenues and
highways of the necessary poles and the stringing of wires, so that
the cars of said company may be moved by the means or power of
electricity. :

Dated, ; , 189

fis ee ee COMPANY,
BY suises eee ee , President.

[Attach proof of executign.]

\

No. 120.
Consent by Local Authorities to the Construction and Operation of
4 Street Surface Railroad.

See the Railroad Law, § 92,-ante.

Whereas, the [insert corporate name] Company, a street surface
railroad corporation, has made application by petition in writing to
the common council [or board of trustees, or as the case may be] of
the city [or village, or town] of , in the county of ‘
1080 SrrEeT Raitrvaps; Consenr to Consrruor.

 

Forms — No. 120.

 

for consent to construct, maintain and operate a railroad [or exten-
sions, or branches thereof, as the case may be], upon the surface of,
through and along certain streets and avenues [roads or highways}
of the said city [or village], as follows, to wit: [Jnsert the sasme],
and for consent to construct such switches, sidings, turnouts and
turn-tables and suitable stands as may be necessary for the con-
venient working of such railroad.

And, whereas, the said common council [or board of trustees],
before acting upon such application, gave public notice thereof,
and of the time and place when such application would first be con-
sidered, which notice was published daily in said city, pursuant to
law, for at least fourteen days in the and the , two
daily newspapers in said city [or, as the case may be, showing @
compliance with § 92 of the Railroad Law]. *

And, whereas, at the time and place named in said notice the’
said application was duly considered and the said railroad company
and the persons appearing at said time and place were heard in
relation to said application.

And, whereas, said common council [or board of trustees, etc.],
has determined that consent shall be given to the construction,
maintenance and operation of said railroad [or ewtensions, or
branches], and of such switches, sidings, turnouts and turn-tables
and suitable stands, as may be necessary for the convenient working .
of said railroad; therefore, be it

Resolved, That said consent be and the same hereby is given,
pursuant to law, to the said [¢nsert corporate name] to construct,
maintain and operate a railroad [or extensions, or branches] upon
the surfacé of, through and along the following streets and avenues
[or roads, or highways] of said city [or village, to wit: [Insert
the route], and consent is also hereby given to said company to con-
struct upon said streets and avenues such switches, turnouts and
turn-tables and suitable stands as may be necessary for the con-
venient working of said railroad; further

Resolved, That the foregoing consent is given upon the following
expressed condition [or conditions], to wit:

That the provisions of article four of the Railroad Law ertitient
thereto shall be complied with.
DissotuTion or Corporation. 1081

 

Forms — No. 121.

That this consent shall be filed in the office of the clerk of. the
county of [¢nsert name of county in which the railroad ts located).

That [|Z the case ts within the provisions of section 93 of the Rait-
road Law, insert the conditions therein reauired, or any other
conditions determined upon].

 

 

No. 121.’

Petition for Dissolution of a Corporation.

. See Dissolution and Receivers, ante.

To the Supreme Court of the State of New York:

The petition of » and respectfully shows to this
court :

That they are a majority of the directors [or trustees, as the case
‘may be], having the. management of the concerns of the [insert
corporate name] Company, a corporation created under the laws of
the State of New York, to wit: Under [state the law].

That your petitioners have discovered that the stock, effects and
other property of said corporation are not sufficient to pay all. just
demands for which it is liable, or to afford a reasonable security to
those who may deal with it (or, ¢ for other reasons, state them];
and they deem it beneficial to the interests of the stockholders that
the said corporation should be dissolved.

That the principal office of the said corporation is located in
[st-zte location].

That your petitioners have annexed to this petition a schedule, '
marked “Schedule A,” containing a statement of the matters
required by section 2421 of the Code of Civil Procedure, as far as
your petitioners know, or have the means of knowing the same.

Wherefore your petitioners pray for a final order of this court
dissolving the said corporation and appointing a receiver
of its property and effects, and for such other and further relief as
may be proper.

Dated, , 189
[Signatures of Petitioners. ]
1082 Dissotution oF CoRPORATION.

 

Forms—No. 121.

 

ScHEepULE To BE ANNEXED TO PETITION.
Scuepue A.

First. A full and true account of all the creditors of the corpora-
tion and of all unsatisfied engagements entered into by, and subsist
‘ing against, the corporation.

Second. A statement of the name and place of residence of each
creditor, and of each person with whom such engagement was
made, and to whom it is to be performed, if known; or, if either is
not known a statement of that fact.

Third. A statement of the sum owing to each creditor or other
person specified in the last subdivision, and the nature of each
debt, demand or other engagement.

Fourth. A statement of the true cause and consideration of the
indebtedness to each creditor.

Fifth. A full, just and true inventory of all the property of the
corporation, and of all the books, vouchers and securities relating
thereto. ;

Sixth. A statement of each incumbrance upon the property of
the corporation by judgment, mortgage, pledge or otherwise.

Seventh. A full, just and true account of the capital stock of the
corporation, specifying the name of each stockholder, his residence,
if it is known; or if it is not known, stating that fact; the number
of shares belonging to him, the amount paid in upon his share, and
the amount still due thereon.

State or New York, } ae
County of

[Insert names of petitioners], being severally duly sworn, each
for himself, says that the matters of fact stated in the foregoing
petition subscribed by him, and the schedule thereto annexed and
therein referred to, marked “Schedule A,” are just and true, so
far as he knows or has the means of knowing the same.

. [Signature of Petitioners.}
Sworn to before me this day
of ,18
[Signature of Notary.]
my :
Disso.utron or Corporation. 1083

 

Forms —WNo. 122,

 

No. 122. ‘
Order to Show Cause.
At a Special Term of the Supreme Court, held at an
the city [or village] of , on » 189

Present: Hon. D. C. H., Justice:

 

In THE Marter
OF THE ~
APPLICATION FoR A VoLunTary DissoLu
TION OF THE [tnsert corporate name] Com-
PANY.

 

On reading and filing the petition of and ;
as directors [or trustees as the case muy be] of [insert corporate
name] Company, a corporation created under the laws of this State,

‘having its principal office located at [insert location], this State,
and the schedule thereto annexed, duly verified by the petitioners
on the day of , 189 , and on motion of of
counsel for the petitioners,

Ordered, That all persons interested in said corporation show

cause, before this court, before , Esq., who is hereby
appointed referee for that purpose, at his office, No.
street, in the city [or village] of , N. Y., on the

day of , 189: , at o’clock, in the fore- [or after]

noon of the day, why the said corporation should not be dissolved.

And it is further ordered, that a copy of this order be published
at least once in each week of the three weeks immediately preced-

‘ing the said day of , 189 , in the [énsert name
of newspaper] and the [ensert name of newspaper], newspapers
published in the city [or village] of , in the county of

; wherein this order is entered.

4

peee tere eer es ece

Justice of Supreme Court.
1084 Disso.tution or CoRPoRATION.

 

Forms — No. 123.

No, 123.
Notice of Appointment of Receiver.
SUPREME COURT, ............ COUNTY.

 

In THE Matrer
OF THE
APPLICATION FoR A VoLUNTARY DrssoLv-
TION OF THE [insert corporate name] Com-
PANY.

Notice is hereby given that I have been appointed by the
Supreme Court of the State of New York receiver of all the prop-
erty assets and effects of the above-named corporation, for the
benefit of the creditors of said company and of the stockholders
thereof, and that I have duly qualified as such receiver, and I do

require :
First. All the persons indebted to said corporation to render an
.. account to me, at my office, No. , in the city [or village],
of , in the county of and State of New York, on
. or before the day of , 189, of all debts and sums

of money owing by them ‘respectively, and to pay the same to me.

Second. All persons having in their possession any property or
effects of such corporation to deliver the same to me on or before
the said day of , 189

Third. All the creditors of said corporation to deliver to me
their respective accounts and demands, duly proven by affidavit in
the usual form, on or before the said day of , 189

Fourth. Any person holding any open or subsisting contract of
said corporation to present the same in writing and in detail to me

at the place aforesaid, on or before the said. day of
__ 189
Dated, , 189
sista aaienieei eee ee Receiver.
Sgiia web dee -..+, Attorney for Receiver.

Office and post-office address ............
Report to State Comprrotier. 1085

 

Forms — No. 124.

 

No. 124.

Report Required by State Comptroller Under Chapter 542, Laws of
1889.

[Blanks for this report can be obtained by addressing the Comptrollet.]

Report of the Company for the year ending the
thirty-first day of October, A. D. 189 _, made pursuant to provisions
of section 182 of chapter 908, Laws of 1896. .

[ Give post-office address of company, street and number.] ‘

189
To the Comptroller of the State of New York:
Agreeably to law, as treasurer of the above company, I make the
following report, viz.: Js
1. This company began business in the State of New York in the
month of , 189
2. The last report made by this company to the Comptroller of
the State of New York under the provisions of the above
act was made for the year ending November 1, 189
8. Value of real estate and of interest or interests in
real property in New York State and where
BIER CCD ea ceaeececelace ous'ecg Pea), <esale eveiedsreaavs jaa Bided eevee.
Organized under the laws of the State of
Date of organization of the company,
Total authorized capital of company........... .
. Whole number of shares of stock authorized.
. Number of shares of stock issued,
. Par value of each share............0.ee eee
10. Amount paid into the treasury of the company
ON GACh AAPG ewan awe ne dewiedien ves Basa
11. Amount of capital paid in.............. 2.004
12. Amount of capital upon which dividends were
declared. 6 5 <aiesio-9 aise staresiow cre eine Wore es wes
13. Date of each dividend declared, :
14, Amount of each dividend declared..:........26 seeeees ee
15. Rate per cent per annum cf dividends... aie

(

SOI oR
1086 Report to Stare CoMPTROLLER.

 

‘Forms — No. 124.

16. The business transacted by this company in the State of New
York for the year ending November 1, 189 , was as fol-
lows, viz.: [Giving nature of business and how carried on.|

“17. And such business was carried on at the following named
place or places. [Give street and number.]

18. Capital stock employed in New York State, $

[Preceding line need not be filled out by companies whose
capital is all employed in this State.]

19. If not in New York State, where and how employed? ;
20. Highest price of sales of stock during the year aforesaid
21. Lowest price of sales of stock during the year aforesaid.

Treasurer.
Statz or New ey cat ;
County of ; iz
On, this day of , A. D. 189, personally

appeared before me, a-notary public in and for the county of

, treasurer of the above-named com-
pany, who, Geiae duly sworn aeoprding to law, did depose and say,
that the foregoing report is just, true and correct, according as the
accounts stand in the books of the company, and that it includes all
dividends, whether cash, stock, scrip or of any other character or
description, declared by said company during the year ending on
the thirty-first day of October, A. D. 189

‘ ‘ Treasurer
Sworn to and subscribed before me, t

' the day and year aforesaid.

[u. 8] Notary Public.
Reporrs to Stars ComprroLiEr. 1087

 

.Forms— No. 1244.

 

No. 124%.

Report and Appraisement for Year in which no Dividend or a Dividend
‘of Less than Six Per Cent has Been Declared, as Shown by Report
under Form No. 124. ,

Report and appraisement of the Company, for the year
ending the thirty-first day-of October, 189 .

Srate or New York, ; ee

County of

On this day of A. D. 189 , before me, the
subscriber, a notary public in and for the county of > per-
sonally appeared — treasurer, and secretary of the

above-named company, who being by me severally duly sworn, did
say that the amount of capital paid in of said company is $

and that said company declared no dividend in cash, stock, scrip,
or of any other: character or description during the year ending
the thirty-first day of October, 189 , save the dividends herein
reported, and that they will with fidelity, according to the best of
- their knowledge and belief, estimate and appraise the capital stock
of said company at its actual value in cash, not less, however, than
the average price which said stock sold for during said year.

Treasurer.
SSCP KSCSCASE Sees ee ey
Secretary.
Sworn to and subscribed before me,
the day and year aforesaid.
[Signature of Notary.]
OFFICE OF THE ........+4-. ‘Company,
: eke hii Oak G2 , 189

We, the undersigned, being the treasurer and secretary of the
above-named company, do certify that, in pursuance of our afore-
said oaths, we have estimated and appraised the capital stock of
said company, at its actual value in cash as follows, viz.:
shares at dollars and cents per share, amounting in
the whole to dollars.
1088 Reports To Srate ComPprroLLER.

 

Forms — No. 125.

 

In Wirness Wuereor, we have hereunto set our hands the day
and year aforesaid.

Secriany

This report should be filed in the State Comptroller’s office on or before
November fifteen, annually. The tax based on the report is due January
fifteen. Accounts for the same will be sent from the Comptroller’s office
about January first.

[Both forms 124 and 125 are to be used in all cases where no dividend
has been declared, and where the dividends declared do not amount to
six per cent on the whole capital stock. Where the dividends are equal
to or greater than six per cent, the first form, when apecneely: filled, will
be a sufficient report.]

Whenever no dividend is made or declared, and the stock is appraised
at a lower value than the previous year, or no value at-all, an explana-
tion of the fact should be made in the report.

Railroad companies using this blank for report should always be care-
ful to answer Question 22. :

Companies whose dividends are six per cent or over need not answer
Questions 20 and 21.

Penalties provided by section 194 of chapter 908, Laws of 1896, will
be enforced. . '

No. 125.

Report by Foreign Corporations and for Supplemental Report of
Domestic Corporations.

To the Comptroller of the State of New York:
WINS She ayes te aid estates eno Of thei wncees cess ,Company,

ee

I make the following report of such Company for the year end-
ing October 31, 189 , pursuant to the provisions of chapter 908,
Laws of 1896:

1. This company began business in the State of New York in
the month of ...... dap oc ehh 18

2. The last report made by this company - the Comptroller of
the State of New York under the provisions of the above
act was made for the year ending October 31,18 .

8. Value of real estate and of interest or interests
in real ae in mene York State, and
where situated... ............ aR tar Ge site SoD av bhangra ree whale
Reports to Stats Comprroiier. 1089

 

Forms — No, 125.

 

13.
14.
15.
16.

1%.

18.

19. °

20.

21,

22.

23.

Organized under the laws of the State of .
Date of organization of the company,
Total authorized capital of the eompany..... cccccceces
Whole number of shares of stock authorized.
Number of shares of stock issued, :
Par value of each share.......... eee sccesecees
Amount paid into the treasury of the company
OM GaGH HMA oxides anwrianaeeedaeer! Geaa ee es .
Amount of capital paid in..............6. cece eee wee
Amount of capital on which dividends were
MGCIUICH, 4c segrdewaueeweeeniviceeeee, Shu eewete .
Date of each dividend declared, é
Amount of each dividend declared.........  .s.eee eee
Rate per cent per annum of dividends......  ..........
The business transacted by this company in the State of New
York for the year ending October 31,18 , was as follows:

[giving nature of business and how carried on. ]

And such business was carried on at, the following named
place or places. [Give street and number. |

Nature of business transacted and amount invested outside
New York State, at..............-000. WD steigs terete tee

The total amount of sales made in, through all

offices, and by our agents or officers in the

State of New York, for the year ending

October 31, 189 , was the sum of....... Biccccccece
The actual or approximate value of the average

amount of stock in trade, carried by. this

company in the State of New York, during

the year ending October 31,189 , = the

sum of. . ia ae Tae aa RE SGN co Ha ep ca BE ata ea Say 8 eo eoneceecoccesi.
And such Bink was located [give street and |

number |.
The value of stock in trade manufactured in

the State of New York by this company for

the year ending October 31,189 , was the

SUI Of 6d os Skee yeh bese eaea teeeee Area ie
The value (approximate) of personal property,

other than stock in trade, used by this com-

69
1090 Reports to State CoMrrro.uER.

 

Forms — No. 125.

pany in the State of New York during the

year ending October 31, 189 , was the

SUM, Ole ero) Gea peaeeaecw see ane wes isveveanses
24, Average of miumthly bank balances carried in

the State of New York for year ending

Octohen BE IRG: cicceanaceiniaucbes voc ce cece
25. Total amount of rentals paid in New York

State for year ending October 31,189 ... .scccccecce
26. Average amount of stocks, bonds, loans on

call, or other financial securities held in the

State of New York, by the company against

other corporations, joint-stock companies,

associations or individuals, during the year

ending October 31, 189: ..........-44. se cevccvee
27, And held by [give name of individual asso-

ciation, corporation or company holding

same].

At [giving place, street and number where

same are held].
28. Total salaries paid to persons employed by this

company in the State of New York for the

year ending October 31,189 .......... te eeececee
eeeeseseseeseeneay
Treasurer.
Stare oF ’ ; :
County of =
On this day of A. D. 189, personally

appeared before_me, a notary public in and for the county of

treasurer of the above-named com-
pany, who, being duly sworn according to law, did depose and say,
that the foregoing report is just and true, and the answers therein
set forth are correct according as the accounts stand in the books.
of the company, and to the best knowledge, information and belief
of deponent, and that it includes all dividends, whether in cash,
stock, scrip or of any other character or description, declared by said
company during the year ending on the thirty-first day of October,
A.D.189 .

eoeeeeeee ee csn eee 9

Treasurer.
Reports Tt» Stare CompTRuLieEr. 1091

 

‘Forms — No. 126,

 

Sworn to and subscribed before me, t
the day and year aforesaid.

[L. 8.] ivined seadaewe«
Notary Public.

The answer to Question 3 should be the net interest.

If the company has more than one kind of stock it should be stated in
the report.

 

No. 126.

Statement and Affidavit of Corporation Claiming Exemption from
Direct State Taxation.

See State Tax Law..

[Blanks for this report can be obtained by addressing the Comptroller.]

Statement and affidavit of of company claiming
exemption from making reports, and the payment of tax, as levied
and assessed under chapter 908, Laws of New York, 1896.

1. Full name of the corporation, joint-stock company or
association. :

2. Name and title of officer making this statement.

3. Under what law of what State or country was the corpora-
tion, joint-stock company or association, incorporated, organized or
formed, and date of organization?

4. For what purpose?

5. Nature of business now transacted?

6. Ifa mining company state where the mines are located?

7. Tf an agricultural company, state where the company’s plant
is situated?

8. If a manufacturing company, state where the factory is
located?

9. Does the company maintain, own and operate the mine,
plant or factory? *

10. Does the company actually manufacture within the State
of New York, all the goods, wares or merchandise sold or used by
the company in its business in this State?

11. Does the company lease to other parties the right of manu-
facture of goods sold by it?
1092 Reports to State CoMPTROLLER.

 

Forms — No. 127.

 

12. Does the company cause any of its products to be manu
factured by any other person, partnership, association or corpora-
tion within or without this State, that it uses or sells in this State?

13. Location of main business office of the company?

Remarks:
[Signature.]
Srate or New Yor, } Bee :
County of ; :

[Insert name], President [or Treasurer], of the [insert cor-
porate name] Company, being duly sworn, deposes and says, that
the answers to the above questions as set down by him and remarks,
are true and correct. ;

[Signature. ]
Sworn to and subscribed before me, }
this day of , Lees
[Signature of Notary.]

 

No. 127.

: Franchise Tax on Express, Baggage Express, Transfer, Steamboat, Canal,
Pipe Line, Ferry, Palace or Sleeping Car, Transportation or Naviga
tion Company.

Report of the gross earnings in the State of New York of the

company, for the year

ending June 30,189 , made in accordance with the requirements
of chapter 908, Laws of 1896, section 184.

OumiGu OF TH ceeccsawar ies Company,
[Give P. O. address with No. and street. ]
meats dale vient iog DOO Ys
1. Gross earnings derived from all sources during
the above period... 2... ee cee eee ee eee De see Se dee!
2. For tolls and transportation............see. o Sevewwiese e's)
8. For telegraph and telephone business........ ceinieeieniowne
4, For express business. . ............ ec ee ee
Taxable gross receipts. . .........6.5 Peters te onete Gas
This report includes the gross earnings received from lines
of road leased by .......-.ecee cece ee eeee ene _Company,.

and for which said Company is liable to the State for the tax
on gross earnings.
5. Names of Companies leased:

.
Reports to State Comprroier. , L093

 

Forms— No. 128,

 

State or New York, } Sa
County of ; v3

On this day of A. D. 189, personally

appeared before - a notary public in and for the county of

, treasurer of the company,

who being duly sworn according to lowe did depose and say that
‘the foregoing report is true and correct.

‘

eeceeecee eeeeecey

Treasurer.
‘Sworn to and subscribed before me, \
the day and year aforesaid.

 

[L. S.J Miguaee ewes
Notary Public.
No. 128.
‘Franchise Tax on Elevated Railroads or Surface Railroads not Operated
by Steam.

Report of the gross earnings in the State of New York of the

Company, for the year

ending June 30,189 , made in accordance with the requirements
-of chapter 908, Laws of 1896, section 185.

OFFICE OF THE ........0005. Company
[Give P. O. address with No. and street. ]

Senses eT Os - 189 .
‘1. Organized under the laws of the State of
2. Date of organization of the company
‘8. Total authorized capital of company........ $B. ccvcccee:
4. Whole number of shares of stock authorized,
5. Number of shares of stock issued
-6. Par value of each share.............02.2- 0 06 ais hues
‘7. Amount paid into the treasury of the company
ON, GACH; SHARC. 6 esi eka ace ee oeew es isle leieier eee e:
8, Amount of capital paid in......... ke cece eee
9.. Amount of capital upon which dividends were
d6Clared.: 6 4 sues esse uteednkeeweuste! Sales cocoee
10. Date of each dividend declared,
11. Amount of each dividend declared...... Dah GARE OER

12. Rate per cent per annum of -dividends,
13. Gross earnings derived from all sources during
the above period... .........6. wens ene Pion eneee'e
1094 Reports to State ComMprroLier.
Forms — No. 129.

 

 

This report includes the gross earnings received from lines of
mond: lensed: by wie ai adexercns oauvee eae seu eee Company,
and for which said Company is liable to the State for the tax on
gross earnings.

Names of companies .eased:

lee@eeeveeenaneeoseene >
Treasurer.
State or New York, ; ans
County of ‘ =
On this ; day of A. D. 189, personally

appeared before me, a notary public in and for the county of

ie , treasurer of the above-
named company, who, being duly sworn according to law, did
depose and say, that the foregoing report is just, true and correct.
according as the accounts stand in the books of the company, and
that it includes all dividends whether cash, stock, scrip or of any
other character or description, declared by said company during:
the year ending on the first day of November, A. D. 189

Treasurer.
Sworn to and subscribed before me, i
the day and year aforesaid.

[L. S.J uc, Reese eeeesaes
Notary Public.

 

No. 129.
* Franchise Tax on Water-Works, Gas, Electric or Steam Heating, Light-
ing or Power Companies.
Report of the gross earnings in the State of New York of the
Company, for the year
ending November 1, 189 , made in accordance with the require-
ments of chapter 908, Laws of 1896, section 186.

OFEICE: OF THE fo. seen ewes Company,

[Give P. O. address with No. and street.]

1. Organized under the laws of the State of
2. Date of organization of the company
8. Total authorized capital of company...... re fee
Rerorts to Starz Comrrrouier. 1095

 

Forms — No. 129.

 

4. Whole number of shares of stock authorized, '
5. Number of shares of stock issued,
» 6. Par value of each share,
7. Amount paid into the treasury of the aonipalty
on each share... 1... eee eee eee eee eee was ieee sess
&. Amount of eapital paid Wis scenycasoeseee apes jane
9. Amount of capital upon which dividends were
declareds.¢ svdieesicacabieasewnees Saalees seeeee
‘iQ. Date of each dividend declared, é
‘11. Amount of each dividend declared’ oatiadd ornate Sala eiee ws

12. Rate per cent per annum of dividends,
‘18. Gross earnings derived from all sources during
the above period... 1... cece ee eee eee cece eee nee

This report includes the gross earnings received from property or
“plants leased! DY. s.0:ts00.9-4:-06 doe pied svadien isles @ec > Company,
and for which said Company is liable to the State for the tax on
gross earnings.

Names of companies leased:

er ee eeove 5

Treasurer.
‘State or New Yor, bss,
County of 5
On this ‘day of A. D. 189, personally
-appeared before me, a notary public in.and for the county of
: , treasurer of the above-

named company, who, being duly een according to law, did
‘depose and say, that the foregoing report is just, true and correct
according as the accounts stand in the books of the company, and
‘that it includes all dividends whether cash, stock, scrip, or of any
other character or description, declared by said company during
‘the year ending on the first day of November, A. D. 189

eeeveane @eeeveeevae 3
: Treasurer.
Sworn to and subscribed before me, t
the day and year aforesaid

[L. 8] Seiden lento
Notary Public.
1096 Annuat Report or Joint-Stock ASSsocrAaTION.
Forms — No. 180.

 

 

For form of Notice of Waiver referred to under section 38 of the Gen-
eral Corporation Law as form No. 130, see form No. 132.

No. 1380.
Annual Certificate of Joint Stock Association.
See the Joint Stock Associatoin Law, § 4, ante.

We, the undersigned, the president and treasurer of the [insert
name of association], a joint stock association, do hereby, pursuant
to section 4 of the Joint Stock Association Law, certify as follows:

That the name of such association is the [state name].

That the date of organization of such association is [insert date].

That‘ the number of its stockholders is [insert number].

That the names and places of residence of its officers are as.
follows:

President and director, A. B. [insert residence].
Treasurer and director, C. D. = e

Secretary and director, E. F. “ #
Director, G.H. “ es
“ di K. “ “
“ Tes M. “ “
ce N. O. c 14
That the principal place of business of such association is at
No. street, in the city [or village] of » State:
of ‘New York.
Dated Albany, N. Y., , 189 .
’ , [Signature of President.]
Starz or New York, | aay [Signature of Treasurer. |
County of ; :

A. B. and C. D., being each for himself severally sworn, says;
the said A. B., that he is the president of the [insert name of asso-
ciation], and the said C. D., that he is the treasurer of said com-
pany, and that the statements contained. in the foregoing certificate
are true.

[Signature of President.]
Sworn to before me this } [Signature of Treasurer.]
day of 189
_ [Stgnature of Notary.]

Upon filing and recording the above certificate annually in the office of:
the Secretary of State, the fee to be paid is fifteen cents per folio for
recording. At the office of the county clerk the fees are: Filing, six
cents: recording, ten cents per folic.

‘
Liutration or Powers; Warver or Notice or Meerine, 1097

 

Forms — Nos. 1381, 182.

 

No. 1381.
Example of Regulation and Limitation of Powers.

See the General Corporation Law, § 10, and the Business Cor-
porations Law, § 2.

Provisions for the regulation of the business and the conduct
of the affairs of the corporation, including limitations upon its
powers and upon the powers of, its directors and stockholders, to
wit:

(a.) Business shall be closed, books balanced and inventory
taken on the day of , in each year hereafter, to’
ascertain the condition thereof ;and dividends shall be paid annually
on the stock so long as the business shall show a profit.

(b.) No surplus exceeding per cent of the whole amount
of capital stock can be accumulated and kept for any purpose.

(c.) The president of this corporation shall receive no salary
[or as the case may be].

(d.) ‘For the first year the salaries of the other officers shall be
as follows: Secretary, $ ; treasurer, $ ;
superintendent, $ 5 :

(e.) After the first year, the salaries of said officers shall be
deterfnined by the board of directors; except that the aggregate
amount of annual salaries of officers shall not exceed. the sum of

$ ;
(f.) Any or all the provisions marked respectively (a), (b), (c),
(d) and (e) of subdivision may be enlarged, changed or modi-
fied at any time by the board of directors, with the consent of
stockholders representing per cent of the entire authorized

[or outstanding] capital stock of said corporation.
See other examples on pages 993, 994, 997.

 

No. 1382.

Stockholder’s Wafver of Notice of a Meeting.
See the General Corporation Law, § 38.

We, the undersigned, being all the stockholders of the ........
A anni s orate eeceete Company, together owning the entire capital
stock of said company, to wit, [insert number] shares, do hereby
authorize the directors of said company to hold a special meeting
of the stockholders of said company on the day of ‘
189 , at _ o’clock in the noon, at the office of said
1098 Warver or Noricz or Merrine; Stock PRrererEnog.
Forms— Nos. 183, 134. :

 

 

company, No. street, in the of

for the purpose of voting upon a proposition to [state purpose],
and we do and each of the subscribers hereby does.expressly waive
the giving of notice of such meeting required by law, and waive
any and all other statutory prerequisites to such meeting.

In Wirness Wurreor, we have hereunto set our hands and the
number of shares of stock in said company severally owned by us.
Dated , 189

 

No. 1383.
Reference to Waiver of Notice to be Inserted in Certificate of
Proceedings.
See the General Corporation Law, § 38.

That the directors of said corperation have called a meeting of
the stockholders thereof at this time, without giving the notice te
said stockholders and without the lapse of time prescribed by law,
the said action of said directors having been authorized and
approved, and said statutory requirements having been waived in
writing by every stockholder of said corporation, pursuant to sec-

‘tion 38 of the General Corporation Law; said waiver having been
produced at said meeting and the following being a true, copy
thereof [or state, “and a true copy thereof is hereto annexed ”’]:

 

No. 134.
Example of Stock Preference.
See the Stock Corporation Law, § 47,

The preferred stock is entitled to preference and priority over
the common stock in manner following, to wit: To receive cumu-
lative dividends at the rate of per cent per annum payable
on the day of , in each year, before any dividend
on the common stock shall be paid, and, upon dissolution, after all
of the debts of the corporation shall have been paid, the assets,
property and effects shall first be applied to the payment’of the
said preferred stock at par, with any unpaid accumulations thereon,
and before any payment is made to the holders of the common,
and the balance to the payment of the said common stock. The
common stock shall be entitled to all net earnings and profits in
excess of the cumulative dividends of per cent per annum
payable on the preferred stock.

4
- Examere or Steck Prererenon. 1099

 

Forms — Nos, 135, 136.

No. 1365.
Example of Stock Preference.
See the Stock Corporation Law, § 47.

The preferred stock shall entitle the holder to receive a cumula-
tive dividend in each year at the rate of per cent, payable
semi-annually out of the net earnings of the company before any
dividend shall be declared or paid on the common stock and, on
dissolution, shall be entitled to a preference and a priority of pay-
ment over the common stock in any distribution of the property
of said corporation. _

\

No. 136,
Example of Stock Preference.
See the Stock Corporation Law, § 47..

The amount of the capital stock is $ , divided into

shares of the par value of $ each, and all shares

of this original issue shall be of one uniform kind and subject to
the same terms, limitations and provisions.

The corporation may at any time hereafter have both seared
and common stock, provided, however, that in such case the capital
shall be increased, and provided further, that the division of the
capital stock when increased into two classes, preferred and com-
mon, shall have been authorized, by the written consent or by a
vote, of stockholders owning and representing at least 4 majority
of the stock of the corporation taken at a meeting of stockholders
specially called for that purpose.

In such ease and at the same time the stockholders shall deter-
mine whether the new issue or the original issue shall be made the

referred stock.

The dividends on thé preferred stock shall be limited to
per cent per annum, and such dividends are to be cumulative, so
that if for any periods the same cannot be safely paid or may not
be paid the right thereto shall accumulate as against the common
stock, and all arrears thereof so accumulated must be paid before
dividends can be commenced or resumed on the common stock.

or
1100 Examrte or Stock PREFERENCE.

 

Forms — Nos. 137, 138.

 

No. 187.
Example of Stock Preference.
See the Stock Corporation Law, § 47.

The preferred stock shall receive in each year out of the earn-
ings of the corporation declared as dividends by the board of direc-
tors, non-cumulative dividends up to per centum of the
outstanding preferred stock, before any dividends are paid in such
year upon the common stock and, in addition, an amount equal to

per centum of all earnings declared as dividends in such
year upon the common stock.

The common stock shall be entitled to all the earnings of the
corporation declared as dividends, except as above provided with
respect to dividends upon the preferred stock.

Upon the dissolution of the corporation and distribution of its
assets, the preferred stock shall be paid in full at par before any
amount shall be paid on account of the common stock, and the
common stock shall be entitled to receive all assets remaining after
such payment of the preferred stock.

No. 138.
Example of Stock Preference.
See the Stock Corporation Law, § 47.

The amount of capital stock is to be [insert amount] dollars, of
which [state amount] dollars is to be preferred stock, and [state
amount] dollars, common stock. The said [insert amount] dollars
of preferred stock shall be entitled to receive dividends at the rate
of per cent per annum, payable semi-annually on the first
days of and in each year, out of the earnings
of said company in preference to any dividends upon the common
stock, and said dividends shall be cumulative so that any deficiency
in the dividends to be paid on said preferred stock in any year shall
be made good out of the earnings of subsequent years before any
dividends shall be paid upon the common stock. Such preferred
stock shall not, however, be entitled to participate in any other or
additional earnings or profits, but shall be entitled to be repaid in
full upon any distribution of the assets of said corporation in the
event of insolvency or dissolution, before any distribution of capital
shall be made to the common stock; and the amount of said pre-
Exampie or Stook PREFERENCE. 1101.

 

Forms— No. 139.

 

ferred stock: shall not be changed or altered by any reduction in:
capital of said corporation without the consent in writing of the-
holders of a majority thereof. The control and management of the.
said corporation is to be in the hands of the holders of the common
stock so long as the business of the’ company is able to pay from its.
earnings, or reserve, dividends of ‘per cent per annum on
all the preferred stock, the holders of such preferred shares to have.
no voting power so long as said dividends on all the preferred shares.
are so paid. In case, however, said dividends on ‘said preferred
shares shall not be earned and paid for a period of years,
then and in such case the preferred stock of said corporation shall,
upon the expiration of ‘said years, but in no event earlier
than [insert time], have the same voting power as the common.
shares, to wit, one vote for each share of stock.

 

No. 189.
Example of First and Second Stock Preferences.
See the Stock Corporation Law, § 47.

The amount of the capital stock of such corporation shall be
dollars, divided into shares. Said capital
stock shall consist of shares of non-cumulative four
per cent First Preferred Stock, of the par value of one hundred
dollars each; © shares of non-cumulative four per cent
Second Preferred Stock, of the par value of one hundred dollars.
each, and shares of Common Stock, of the par value
of one hundred dollars each..

Tue First Prererrep Stock shall be entitled to non-cumulative:
dividends, at the rate of, but not exceeding, ‘per cent per
annum, in each and every fiscal year beginning after the day
of , 18 , in preference and priority to any payment, in or
for such fiscal year, of any dividend on other stock; but only from
undivided net profits of the company when and as determined by
the board of directors, and only if and when the board shall declare
dividends therefrom. If, after providing for the payment of full
dividends for any fiscal year on the First Preferred Stock, there
shall remain any surplus undivided net profits, the board out of
such surplus may declare and pay dividends for such year upon the
Second Preferred Stock.

Tor Szconp PrererrED Stock shall be entitled to non-cumula-
tive dividends, at the rate of, but not exceeding, per cent
1102 Examp.e or Stoox PreFrEReNnce.

 

Forms — No. 140.

 

per annum, in each and every fiscal year beginning after the

day of , 18 , in preferénce and priority to any payment, in
or for such fiscal year, of any dividend on the Common Stock; but
only from undivided net profits of the company remaining after
providing for the payment of the full dividends for such fiscal
year on the First Preferred Stock, when and as such undivided net
profits shall have been determined by the board of directors, and
only if and.when the board shall declare dividends therefrom.

Tue Common Srocx shall be subject to the prior rights of holders
of all classes of Preferred Stock at any time outstanding, according
to the preferences thereof.

If, from the business of any particular fiscal year, excluding
undivided net profits remaining from previous years, after pro-
viding out of the net profits of such particular fiscal year for the
payment of the full dividends for such fiscal year on the First and
Second Preferred Stock, there shall remain surplus net profits, the
board of directors may declare, and out of such surplus net profits
of such year may pay, dividends upon any other stock of the com-
pany. But no dividends shall in any year be paid upon any such
other stock out of net profits of any previous fiscal year in which
the full dividends shall not have been paid on the First and Second
Preferred Stock.

The new corporation shall have the right to redeem at any time
either or both classes of its Preferred Stock at par in cash, if such
redemption shall then be allowed by law.

All classes of stock of the new company (except such number
of shares as may be disposed of to qualify directors), are to be
vested in voting trustees in the manner and for the period of time
and subject to the terms and conditions set forth in the plan of
readjustment and reorganization hereinafter mentioned.

 

No. 140.

Example of Stock Preference, with Privilege of Increasing Preferred
Stock.

See the Stock Corporation Law, § 47.

The amount of authorized capital stock of such corporation shall
be dollars, divided into shares of the par
value of dollars each. Of the shares authorized,

shares shall be Preferred Stock, all to be now issued, +

~
Exampte oF Stook PREFERENCE. 1103

 

* Forms—No. 140,

 

with the privilege to be increased as hereinafter provided, and
shares shall be Common Stock.

' The terms, conditions, limitations and provisions upon which

said preferred stock is issued are these:

(1.) The holders thereof shall be entitled to receive out of the
net profits a fixed minimum dividend at the rate of per cent
per annum, to be payable at such periods as the directors may deter-
mine, before any dividend can be set apart or paid on the common
stock for the period theretofore elapsed; and the principal or par
value of said preferred stock with accumulated per cent
dividends shall be paid in full in preference to the common stock
in the event of any liquidation of the company, whether through
insolvency or the termination of its corporate existence or other-
wise. The minimum preferred dividends thereon are to be cumv-
lative, so that if for any period or periods the same cannot be safely
paid or may not be paid, the right thereto shall accumulate as
against the common stock, and all arrears thereof so accumulated
must be paid before dividends can be commenced or resumed on
the common stock. a

In any calendar year or quarter year after payment of dividends
at the rate of per cent per annum on the preferred stock,
the holders of common stock shall be entitled to all profits dis-
tributed as dividends up to per cent per annim on their
stock. In any calendar year when dividends aggregating
per cent shall have been paid on the common stock, if it be desired
by the directors to pay out any profits in further dividends, the
same shall be distributed pro rata between the common and the
preferred stocks up to the amount of per cent additional
in the aggregate for such calendar year on each class of stock, but
all profits which may be paid by way of dividends in any calendar
year in excess of per cent on the preferred stock shall be
distributed wholly upon the common stock.

(2.) The preferred stock is issued to and accepted by stock-
holders upon the express understanding, made and entered into
between said company and the present and all future stockholders
thereof, that the preferred stock of said company may hereafter
be increased as follows:

(a.) It may be increased from time to time in an amount not
exceeding dollars, par value, in the aggregate, making
an issue of dollars altogether, of said preferred stock,
1104 Exampre or Stock PREFERENCE.
Forms — No. 140,

 

 

~upon the vote or written consent of a majority of the company’s
board of directors, and of a majority in interest of the stockholders,
-together with a compliance with the requirements of the laws of
the State of New York made and provided with reference to
-the increase of capital stock of corporations of this nature.

(b.) After the issue, if such be made, of such additional pre-
ferred stock, making dollars in all, there may be
‘issued from time to time additional amounts, not exceeding"
-dollars in amount, making a total issue of preferred stock of
-dollars, but such last mentioned increase of dollars can
only be made upon the written consent or vote of a majority of the
board of directors, and the written consent or favorable vote of
‘persons holding a majority of each of the two classes of stock, pre-
ferred and common, outstanding at the time, together with a com-
pliance with those requirements of the laws of the State of New
York ‘made and provided with reference to the increase of the
‘capital stock of corporations of this nature.

(c.) After the issue of dollars of preferred stock as
aforesaid, if so much should be issued, there may be issued addi-
tional amounts from time to time, provided an equal amount of
common stock shall have been issued at par for cash or its equiva-
lent in property at a cash value, and provided there be obtained:
in favor of such increase, the written consent or vote of a majority
of the directors, and the written consent or favorable vote of per-
sons holding a majority of each of the two classes of stock, pre-
ferred and common, outstanding at the time; and said preferred
‘stock shall not be increased beyond said limit of dollars
excepting after and upon compliance with all the provisions and
conditions in this paragraph (c.) contained, in addition to those
‘requirements of the laws of the State of New York made and pro-
vided with reference to the increase of capital stock of corporations
-of this nature.

(3.) With the new issues of preferred stock as herein provided,
-or any part thereof, the directors may, in their discretion, lower the
minimum rate of preference dividend, and also limit the maximum
dividends to be paid thereon provided that no such new preferred
‘stocks shall on that account be disposed of at less than par.

(4.) Any holder or holders of preferred stock may at any time
and from time to time upon his or their written request, exchange
‘the preferred stock so held by him or them for common stock, share
for share, subject to the provisions of law in such case made and
Procerepines For Votuntary Disso.vtion. 1105

 

Forms — No. 141.

 

‘provided, and to the by-laws of the company, whereupon the certifi-
-eates for the preferred stock so surrendered shall be canceled and
the issue of preferred stock as so reduced shall be limited accord-
ingly, and certificates for common stock shall be issued in lieu
‘thereof.

(5.) The company shall have the option of retiring preferred
.stock in whole or in part at any time and from time to time at a
premium of . per cent; in other words, at the price of
‘dollars per share cash, in addition to dividends accumulated and
-acerued. Such retirement shall be effected either by payment out
of the surplus fund, if any, of the company, or from proceeds of
-common stock that may be issued in lieu of the preferred stock’so
to be retired, or’ by an exchange of the common stock so to. be
‘issued in place of the preferred stock so to be retired, but in case
any preferred stock shall be retired and canceled without the
issue of at least an equivalent amount of common stock, steps must
be taken for the reduction of the capital stock of the company as
‘provided by law, and in no case shall any such preferred stock be
‘redeemed for cash under circumstances which would produce any
impairment of the capital stock of the company.

‘But such retirement or redemption of stock can only be effected
‘on one month’s notice after drawing by lot, and the preferred stock-
holders affected thereby shall have the option during that time of
converting, the stock so drawn into common stock by exchange as
.above provided.

 

No. 141.
Proceedings for Voluntary Dissolution,
See the Stock Corporation Law, § 57.

_ We, the undersigned, » president [or vice-prest-
dent], and , secretary [or treasurer], respectively,
of [insert correct corporate title], a stock corporation organized
under the laws of the State of New. York, do hereby, for the pur-
pose of complying with the provisions of section 57.of the Stock
Corporation Law in relation to voluntary dissolution of corpora-
tions, make and attest this certificate, and attach the consent, veri-
_ fied statement and proofs required by said section, as follows, to wit:

That the board of directors of such corporation at a meeting
walled for that purpose, held at , in the city, [village or

70
1106 Procrrpines For Votuntary Disso.vrion.
Forms— No. 141.

 

 

town] of , on the day of 189 ,at o’clock P M.,
of which meeting at least three days notice was given to each, as
appears by the affidavit of , hereto annexed and forming
part hereof, by a vote of a majority of the whole board adopted the
following resolution:

“Resolved, That in the opinion of this board of directors it is
advisable to dissolve this corporation forthwith, pursuant to section
57 of the Stock Corporation Law, and that a meeting of the stock-
holders be called to be held at the office of the corporation-at
on the day of , 189 [not less than 30 nor more
than 60 days after the adoption of the resolution], at o’clock
p. M., for the purpose of voting upon a proposition that the cor-
poration: be forthwith dissolved;

“ Resolved further, That the secretary cause a notice of such meet-
ing to be both published and served, or mailed, according to law;
that the secretary or treasurer, and the president or vice-president
of the corporation execute a certificate showing the adoption of this
resolution, and setting forth the proceedings of the meeting to be
held by the stockholders, and that they also attest the written con-
sent of the stockholders that the corporation be dissolved.

“ Resolved further, That such officers cause such certificate and
consent, with the powers of attorney of stockholders executing
such consent by attorney, to be filed in the office of the Secretary
of State, together with a duly verified statement of the names and
residences of the existing board of directors and the names and
residences of the officers of the corporation and proofs of publica-
tion and service of all statutory notices.”

That notice of a meeting of the stockholders of the said corpora-
tion for the purpose of voting upon a proposition that such cor-
poration be forthwith dissolved, w2s published in
a newspaper published and circulating in county, that
being the county wherein such corporation has its principal office,
once a week for three weeks successively next preceding the time
appointed for holding such meeting, as appears by the proof of
publication of said notice which is hereto annexed and forms part
hereof.

That on or before the day of the first publication of such notice,
to wit, on the day of , 189 , a copy thereof was
served personally on each stockholder or mailed to him at his last
known post-office address, as more fully appears by the affidavit
of , which is hereto annexed and forms part hereof.
Procrrpines ror Votuntary DissoLvurion. 1107

 

Forms— No. 141.

That pursuant to such notice a meeting of the stockholders was
-held on the day of , 189 , at o’clock
Pp. M., at the principal office of the corporation in [state place] that
being the city, [town or village] in which the last preceding an-
nual meeting of the corporation was held.

That at such meeting the holders of more than two-thirds in
amount of the stock of the corporation, then outstanding, appeared
in person or by attorney and organized said meeting by choosing
the undersigned, A. B., as chairman, and OC. D., as secretary
thereof.

That the notice of the meeting and proof of the statutory publi-
cation and service thereof were presented and read.

That, upon motion, the following resolution was adopted by the
affirmative votes of holders of more than two-thirds in amount of
the stock, to wit:

“ Resolved, That the action of the board of directors favoring the
dissolution of this corporation forthwith be and the same is hereby
approved, and that we, the stockholders-of the ji
consent that such dissolution shall take place, and signify such con-
sent in writing in conformity with the statute in such case made
and provided.” ;

That the votes of holders of at least two-thirds in amount of the
stock of the corporation then outstanding, having been cast in favor
of such resolution, the same was declared duly adopted.

Thereupon the consent in writing that such corporation be dis-
solved forthwith was executed either in person or’ by attorney by
the holders of two-thirds in amount of the stock of the corporation,
then outstanding, to wit, the holders of shares did go signify
their consent, which consent, together with the powers of attorney
signed by such stockholders executing such consent by attorney, is
hereto annexed and forms part hereof,

In Wirvess WuErzor, we have made and signed this certificate
‘this <« day of , 189
[Signature of President or Vice-President.]
[Signature of Secretary or Treasurer.]
o

Srarz or New York, | ss?
County of .
[Insert names of president (or vice-president) and secretary (or
treasurer) ], being severally duly'sworn, each for himself, deposes
and says that the said is the president [or vice-president] of
1108 Procrrepines ror Votuntary Disso.urion.

 

Forms — No. 141.

 

the Company, and the said is the secretary
[or treasurer], and that the foregoing certificate signed by them,
respectively, is true according to the best of the knowledge, infor-
mation and belief of each of said deponents.

Deponents further say, and each for himself says, that the
annexed written consent of the stockholders of the said corporation
executed either in person or by attorney, consenting to the disso-
lution forthwith of said corporation, was so executed at said meet-
ing of stockholders held as in said foregoing certificate mentioned
on the day of , 189 , and that the number of
shares set out opposite each signature to such consent is the number
of shares standing on the books of the corporation in the name
of such consenting stockholder, and that the total number of shares
outstanding issued by said corporation is [insert number], and that
the number of consenting shares is in excess of two-thirds in amount
of the stock of said corporation so outstanding as aforesaid.

[Signatures of officers.]
Sworn to before me this }
day of , 189 .

[Signature of Notary.]

Consent or StockHoLpEers REFERRED TO IN THE ForEGoING
CERTIFICATE.

We, the undersigned, stockholders of [insert corporate name],
being the holders of at least two-thirds in amount of the stock of
said company, now outstanding, have consented and do hereby
signify our consent that the said [insert corporate name] shall be
forthwith dissolved, and we do hereby sign this instrument for the
purpose of signifying such consent in writing as required by sec-
tion 57 ofthe Stock Corporation Law.

In Witness WueEREor, we have hereunto set our hands and
opposite thereto the number of shares of stock held by us, respec-
tively, this day of , 189

[Signatures. ] ‘ [Number of shares.]

_Attested by:

se ccceccevoee,, President [or Vice-President].
[OP]. wwe cone ececeey Secretary [or Treasurer].
Cuanes or Puace or Bustness. 1109

 

Forms— No. 142.

 

Statement REFERRED To IN THE ForEGorng CERTIFICATE.

)
The following is a statement of the names and residences of
the existing board of directors of [insert corporate name], and of
the names and residences of its officers:

Names of directors. Residences.
er ir eeencee eee ncescences seccees,
eer ecenenccce cess Cee cree ener sc vccvese
Preece ene nrnnsesccce Corr eccreesencons eon

Names of officers. ; Residences,
steer eereeeeeeceee, President, eee eee ceceenecaeeee
doce secccevccccceccy HECTEtALY, Bio:a oe ieibe aie; sia ee ater slacey
sec ccceecceeccececeey Lreasurer, oi = evaiieiosp rete: wiesers ereieaueve’

Strate or New Yorx, |
88
County of ;

A. B., being duly sworn, says that he is the secretary [or treas-
urer, or president] of [insert corporate name], and that the fore-
going statement of the names and residences of the existing direc-
tors and officers of said company is true.

Sworn to before me this s
day of , 189 .
Notary Publig,
County, N. Y.

' [Attach Powers of Attorney, if any, and affidavits of publication
and service of notice. ]

 

No. 142,
Certificate of Change of Place of Business.
See the Stock Corporation Law, § 59.

We, the undersigned, being the president and secretary, and a
‘majority of the directors of [insert corporate name] Conipany, a
stock corporation organized under the laws of the State of New
York, do hereby certify, pursuant to the provisions of section 59
-of the Stock Corporation Law, as follows, to wit:

That a duly called special meeting of the stockholders of said
corporation was held at the principal office in the city [or village] of
1110 CuaneeE or Puace or Business.
Forms— No. 142.

 

 

, on the day of , 189 , at which stock-
holders owning shares of the stock of such corporation.
were present in person or by proxy.

That at said meeting the following resolution was duly adopted:

“ Resolved, That the principal office and place of business of this.
corporation be changed from to , and that the presi-
dent, secretary and directors be authorized, and they hereby are
authorized and directed to effect such change pursuant to law.”

We further certify:

First. That the name of said corporation is

Second. That its principal office and place of business was origi-

nally and is still in the city of , county of
Third. That it is desired to change its said principal office and’
place of business to the city of , county of , and that

it is the purpose of-said corporation to actually transact and carry
on its regular business from day to day at such place.

. Fourth. That such change has been authorized by a vote of the
stockholders of said corporation, at a special meeting of the stock-
holders called for that purpose, as above set forth.

Fifth. That the'names of the directors of said corporation, and
their respective places of residence are as follows, to wit:

Names, Residences.

In Wirness WHEREOF, we make, sign and verify this certificate.

in triplicate, this day of , 189
UeGhWa kaw eee as , President.
S Ue bead eschew es , Secretary.
A Majority of Directors.
Strats or New Yor, } wi
County of ; “+4

[Insert the names of the president, secretary and directors sign-
ing the certificate], being duly and severally sworn, each for him-
self, deposes and says that he has read the foregoing certificate and:

. knows the contents thereof; that the same is true to the best of his
knowledge, information and belief; that said is the
president of [insert corporate name], the corporation mentioned -
Extension or Rovrs or Srreet RarroaD. 1111

 

Forms — No. 143.

 

and described in said certificate; that said [insert name] is the secre-
tary thereof, and that [insert names] are a majority of the directors
thereof.

[Signatures of the President, Secretary and

- Majority of the Directors.]
Sworn to before me this }
day of , 189
[Signature of Notary.]

 

No. 1438. ,
Statement of Extension of Route of Street Railroad. (Short Form).
See the Railroad Law, § 90.

[This is the form followed by two of the large street railway systems
in New York city.]j

The [insert corporate name] Company, a street surface railroad
corporation organized and existing under the laws of the State of
New York, proposes to extend its road and to ‘construct a branch or
extension thereof, and it hereby states the names and description
of the streets, roads and highways in, along or upon which it pro-
poses to construct, maintain and operate such branch or extension,
“viz: .

[Insert description of extension.]

The length of said proposed branch or extension will be [state

dength]. :

Dated , 189 ..
[Name of Corporation.] °
[oar] By
e President [or Vice-President].
Attest:
Secretary.

Srare or New Yorx, } nace

County of 5

On the day of in the year , before
me personally came , to me known, who, being by me
-duly sworn, did depose and say that he resided in ; that

he is the [president or other officer] of the [name of sicepiaton 5
‘the corporation described in and which executed the above instru-
1112 Exrension oF Rours or Street Ratzoap.
Forms— No. 144. ©

 

 

ment; that he knew the seal of said corporation; that the seal
affixed to said instrument was such corporate seal; that it was so
affixed by order of the board of directors of said corporation, and
that he signed his name thereto by like order.

[Signature and office of officer taking acknowledgment. |

 

No. 144.
Statement of Extension of Route of Street Railroad. (Long Form).
See the Railroad Law, § 90.

The [insert corporate name] Company, a street surface railroad
corporation organized and existing under the laws of the State of
New York, by its president, who is duly authorized to make this
statement, hereby certifies, pursuant to section 90 of the Railroad
Law, as follows:

That upon due notice thereof a meeting of the board of directors
of such corporation was duly held at , in the city [or village]
of , on the day of , 189 , at o’clock

P. M., at which a quorum of directors was present.

' That at such meeting the following resolution was adopted:

“ Resolved, That this corporation extend the route of its road by
constructing a branch or extension thereof, and that the names and
description of the streets, roads, avenues, highways [and private
property] in or upon which it is proposed to construct, maintain.
or operate such extension or branch are as follows:

[Insert description of extension.]

“ Resolved further, That the president of this corporation be and.
he is hereby authorized to make and sign, in duplicate, a proper
statement of such extension of route or branch, and to.affix the
corporate seal thereto, and to file said statement in the office of the
Secretary of State, and a duplicate thereof in the office of the clerk
of the county of , in the State of New York.”

In Wirvess Wuereor, this statement has been made and exé-
cuted in duplicate, and the corporate seal of said corporation affixed:
thereto, this day of , 189

[Name of ‘Corporation.]
Fee] By

; President.
[Attach here proof of execution as in form No. 143.]
Execution or Instrumenr; Repurr to Assessors, 1113

 

Forms — Nos. 145, 146.

 

S No. 145. _
Proof of Execution of an Instrument by a Corporation.
See the Real Property Law (UL. 1896, ch. 547), § 258.

x

Srate oF ; ‘

County of 5 on

On the day of in the year , before
me personally came , to me known, who, being duly
sworn, did depose and say that he resided in ; that he

is the [president or other officer] of the [name of corporation], the
corporation deseribed in and which executed the above instrument;

that he knew the seal of said corporation; that the seal affixed to
said instrument was such ‘corporate seal; that it was so affixed by
order of the board of directors of said corporation, and that he
signed his name thereto by like order.

[Signature and office of officer taking acknowledgment. |

If such corporation have no seal, that fact must be stated in place of
the statements required respecting the seal. (L. 1896, ch, 547, § 258.)

 

No. 146.

Report of Corporatien to Assessors,
See the Tax Law, -§ 27.

L , president [or other proper officer] of the |
Company, do hereby, pursuant to section, 27 of

the Tax Law, make this statement as follows:

1. The real property owned by said company consists of
[describe same], situated in the town of [or as the case ey be],
and the sum actually paid therefor was $

2. The capital stock actually paid and secured to be paid in is’
$ ; the sums paid for real property amount to $
and the amount of such capital stock held by the State and by uy
incorporated literary or charitable institution [if any] is $
3. The principal office of the company is situated in [specify
the town or ward].
[Signature of officer. |
1114 Bonp or InpEemnity.

 

Forms — No. 147.

 

State or New Yor, }
County of .

[Insert name], being duly sworn, deposes and says that he is
the president of the Company, the corporation
mentioned in the foregoing statement; that he made such state-
ment as such officer, and that the same is in all respects just and
true.

[Signature of officer.]
Sworn to before me this t
day of , 189 .

[Signature of Notary.]

A railroad corporation is not required to state the sum paid for rea)
property. ‘

 

No. 147.
Bond of Indemnity in Case of Lost Certificate.

See Stock Corporation Law, § 50.

Know ALL MEN BY THESE PRESENTS, That we, [insert name]
of the city of , in the county of » and
State of New York,,and [imsert name of surety] of
are held and firmly bound unto the [insert corporate name] Com-
pany, a corporation organized and existing under and by virtue
of the laws of the State of , in the sum of [insert
amount of penalty] dollars, good and lawful money of the United
States, to be paid to the said [insert corporate name] Company,
its successors or assigns; for which payment well and truly to be
_ made we do bind ourselves, our heirs, executors and administrators
jointly and severally by these presents.

Sealed with our seals:
. Dated this day of zo

Wuergas, a certificate for ten (10) shares of the preferred
stock of the [imsert corporate name] Company, in the name of
[insert name], numbered and dated , of the par
value of one hundred dollars ($100) a share, to-wit, one thousand
($1,000), indorsed.in blank by the said [insert name], is claimed
by the said [tsert name] to have been lost and cannot now be pro-
duced by him; and
Crrtiricate oF Partity Par Stock, 1115

 

Forms — No. 148.

 

Wuereas, at his request and upon the promise of the parties
hereto to indemnify and save harmless the said [insert corporate
name] Company in the premises, and to deliver up the said cer-
tificate when found to the said [insert corporate name] Company
to be canceled, the said [insert corporate name] Company is about
to issue a new certificate in the place and stead of the one thus
claimed to have been lost.

Now, THE CONDITION.OF THE ABOVE OBLIGATION IS SUCH, that if
‘the shore bounden [insert name] and [insert name of meh,
their heirs, executors and administrators, or any of them, shall
well and truly indemnify and save hamiileae the said [imsert cor-
porate name] Company, its successors and assigns from and against
the said certificate claimed td have been lost, and from any holder
thereof, or the claim of any holder thereof, gad from any and all.
damages, costs, charges and expenses, anit all actions or suits,
whether groundless or otherwise, by reason of said certificate, and
also deliver or cause to be delivered up the same when and so soon
as the same shall be found, to be canceled, then this obligation, is
to be void; otherwise to remain in full forac

[Signature.] [Seal.]
[Signature.] [Seal.]
Strate or New York, bs

‘County of 5
On this day of , 19 , before me the
undersigned, personally appeared and , to

me known and known to me to be the persons described in and who
executed the above instrument, and severally duly acknowledged
that they executed the same.

No. 148.

Certificate of Partly Paid Stock
See the Stock Corporation Law, § 62.

INOS. S53 No. of shares ........
DHS weeaduaeeaetn Company.
(Incorporated under the Laws of the State of New York.)
Authorized capital stock Bows cae vece “Shares, $......... each.
This certifies that is the owner of shares
of the partly paid capital stock of The Company,

transferable only on the books of the company in person or by at-
1116 CERTIFICATE oF Partty Parp Stock.

 

Forms — No. 148.

 

‘torney on surrender of this certificate. Ten per cent of the par
value has been paid in cash on the shares of stock named in this
certificate. The above-named holder of this certificate accepts the
same subject to liability for the payment upon said shares of all
instalments, not noted as paid upon the face or reverse of this
certificate, which shall be called by the board of directors, prior to
the transfer of this certificate upon the books of the company.

In Wirnress Wurreor, The said company has caused its cor-

porate seal to be affixed hereto and this certifi-

| Gospunite cate to be signed by its president or vice-presi-
seal,

dent and secretary or treasurer, this day
of , 190.
gas ee eae ats , President [or, Vice-President].
Pe cuaiee cen , Secretary [or, Treasurer].

On the reverse of the certificate should he printed blank instal-
ment receipts and a blank transfer as follows:

2d. Instalment........ @. cPaidionpeaiawais Sarid :
3d. Instalment........ Bo PRs sckeueeckel Saw weoewes
4th. Instalment........ G “PalOgiicsued ete Saeiisy shies ye
5th. Instalment........ @, -Paidsewossgewiik: “aw se esses .
6th. Instalment........ a Pailcviwetnen axaeeenes
7th. Instalment........ @ Pads sve Sain seaihes Guests
8th. Instalment........ % “Pal eetienGis,  seonieaaes
9th. Instalment........ @ Pade ce vicweeged Wemerewesys
10th. Instalment........ > NPaides tog omectswes. Bdeieruaneies

For value received hereby sell, assign and trans-
fen unto shane of the capital
stock represented by the within certificate, and do hereby irrevo-.
cably constitute and appoint , attorney to transfer

the said stock on the books of the within-named company with full
power of substitution in the premises.

Dated, ,19 .
In presence of
Votine Trust AGREEMENT, 1117

 

Forms — No. 149.

 

No. 149. :
Voting Trust Agreement.

See General Corporation Law, § 20.

AGREEMENT made the day of , 19 _, be-
tween all the stockholders of the [imsert name of company] who
shall become parties to this agreement by signing the same, here-
inafter called the stockholders, parties of the first part, and [in-
sert names], hereinafter called the voting trustees, parties of the
second part: i

Wuereas, the parties of the first part deem it to their interest.
to act together, concerning the management of the
Company, of which they are respectively-stockholders, and to that
end to unite the ‘voting power held by them as such stockholders,
and to place the same in the hands of the voting trustees, as here-
inafter provided ;

Now, THIS AGREEMENT, made-in consideration of the premises,
of the mutual covenants herein contained, and of one dollar by
each of the parties to the others in hand paid, witnesseth as follows:

First. Each party hereto of the first part, holding shares of the
capital stock of the Company, to the number set
opposite his, her, or its name as hereunto subscribed respectively,
hereby severally agrees to deposit’ the same and the certificates
therefor, with sufficient transfers thereof ,in favor of the persons.
hereinbefore named as voting trustees, with the Trust
Company of the City of New York, and to receive in exchange
therefor the certificates hereinafter referred to, which deposit shall
continue for the period of. five years from the date of this agree-
ment, that is to say, until the day of ylQ §
and upon the making of such deposit all shares represented by the
stock certificates so deposited shall be transferred upon the books.
of said Company, to the names of said voting trus-
tees, who are hereby fully authorized and empowered to cause such
transfers to be made, and also to cause any further transfers of
said shares to be made which may become necessary through the
occurrence of any change of the persons holding the office of voting:
trustee as hereinafter provided: And during the said period of
five years the voting trustees shall possess and be entitled to exer-
cise all rights of every name and nature, including the right to
vote, in respect of any and all such shares deposited ; it being, how-~

1
1118 Votine Trust. AGREEMENT.

 

Forms — No. 149.

 

ever, understood that the holders of the trust certificates of either
class to be issued by the voting trustees shall be entitled to receive
payments equal to the dividends, if any, collected by said voting
trustees upon shares of such class standing in their names.

Second. The voting trustees do hereby promise and agree witlf
the stockholders and with every holder of certificates issued as
-hereinafter provided, that from time to time, upon request, they
will cause to be issued to the several stockholders in respect of all
stock deposited by them, certificates to an aggregate amount equal
to the amount of all stock so deposited, and which certificates as to
the two classes of stock of said company, preferred and common,
shall be in substantially the following forms respectively:

The ityisacedsen Company.
Prererrep Stock Trust CEerriricate.

THis 1s To CERTIFY, that on the day of ;
19 , [insert name of stockholder] will be entitled to receive a
certificate or certificates for full paid shares of one hun-
dred dollars each in the preferred stock of the Com-

pany, and in the meantime to receive payments equal to the divi-
dends, if any, collected by the undersigned voting trustees upon
a like number of such shares of preferred capital stock standing in
their names; and until the said day of
19 , the voting trustees shall possess and be entitled to ee
cise all rights of every name and nature, including the right to
vote, in respect of any and all such stock; it being expressly stipu-
lated that no voting right passes to the holder hereof by or under
this certificate, or by or under any agreement, express or implied.
This certificate is issued pursuant to the terms of an agreement

in writing, dated , 19 , made and entered into be-
tween stockholders of said oonipany and said voting trustees, which
agreement is on file with the Trust Company of
New York.

This certificate is transferable only on the books which shall
be kept for that purpose by said voting trustees, by the registered
holder, either in person or by attorney duly authorized, accord-
ing to rules which shall be established for that purpose by said vot-
ing trustees, and on surrender hereof; and until so transferred,
said voting trustees may treat the registered holder as owner hereof
for all purposes whatsoever, except that delivery of said certificates
hereunder shall not be made without the surrender hereof.
Votine Trust AGREEMENT. _ 1119

 

Forms — No. 149.

 

This certificate is not valid unless signed by the duly authorized
agent of the votirig trustees and also countersigned and registered
by the ‘ Trust Company of New York as registrar.

In Witness Wuereor, said voting trustees have caused this
certificate to be signed by their duly authorized agent, this
day of , 19 i

A. B,
C.D.
E. F,,
G. H.,
lL J.

"9

Voting Trustees.
By their agent hereunder,

Countersigned and registered this day of gD
” Gea eae nee Trust Company,
: Registrar,
By
SU wea wees Company.

Common Srocx’ Trust, CertiFicaTs.

Tus 1s To Crertiry, that on the 2d day of January, 1901,
[name of stockholder] will be entitled to receive a certificate
or certificates for full-paid shares of one hundred
dollars each in the common capital stock of the Com-
pany, and in the meantime to receive payments equal to the divi-
dends, if any, collected by the undersigned voting trustees upon
a like number of such shares of common capital stock standing in
their names; and until the said © day of
19 , the voting trustees shall possess and be entitled to exer-
cise all rights of every name and nature, including the right to
vote, in respect of any and all such stock; it being expressly stipu-
lated that no voting right passes to the holder hereof by or under
this certificate, or by or under any agreement, express or implied.

This certificate is issued pursuant to the terms of an agreement

- in writing, dated , 19 , made and entered into be-
tween stockholders of said eungnae and said voting trustees,. which
agreement is on file with the Trust Company of

New York.
1120 Voting Trust AGREEMENT.

 

Forms — No. 149.

 

This certificate is transferable only on the books which shall
be kept for that purpose by said voting trustees, by the registered
holder, either in person or by attorney duly authorized, accord-
ing to rules which shall be established for that purpose by said vot-
ing trustees, and on surrender hereof; and until so transferred,
said voting trustees may treat the registered holder as owner hereof
for all purposes whatsoever, except that delivery of said certificates
hereunder shall not be made without the surrender hereof.

This certificate is not valid unless signed by the duly authorized
agent of the voting trustees and also countersigned and registered
by the Trust Company of New York as registrar.

In Witness WuEREOF, said voting trustees have caused this
certificate to be signed by their duly authorized agent, this
day of , 19

Cc. D.,
E. F,,
G.. Hy
#0, alley
Voting Trustees.
By their agent hereunder,

ee

Countersigned and registered this day of ,19 .
china ea aes Trust Company,
Registrar,
By
Third. On the second day of , 19 , the voting

trustees, in exchange.for and upon surrender of any of their trust
certificates then outstanding, will in accordance with the terms
hereof deliver proper certificates of equivalent kind and amount
of stock of the- Company.

Fourth. From time to time, after this agreement shall have
taken effect, the voting trustees may receive any additional full-
paid shares of the capital stock of the Company,
either preferred or common, upon the terms and conditions of
this agreement; and in respect of all such shares so received, will
issue’ and deliver certificates similar to those above mentioned,
entitling the holders to all the rights above specified.
Votine Trust AGREEMENT. 1121

 

Forms — No. 149.

 

Fifth. Any voting trustee may, at any time, resign by deliver-
‘ing to the other voting trustees in writing his resignation, to take -
effect ten days thereafter; and in every case of death, resigna-
‘tion or vacancy arising through other cause, the vacancy so oc-
curring shall be filled by the appointment of a successor or suc-
-cesgors, to be made by the other voting trustees by a written in-
" strument; and the term “ Voting Trustees,” as herein used, shall -
-apply to the parties of the second part and their successors here-
under.

Sixth. All questions arising between the voting trustees shall,
from time to time, be determined by the decision of the greater
number of those then acting as voting trustees, either at a meet-
‘ing, or by writing, with or without meeting, and in like manner
they may establish their rules of action. The decision or act of
a majority of the voting trustees shall, for the exercise of the
voting power, and for. all purposes of this agreement, be deemed
‘the decision or act of all the voting trustees.

Seventh. In voting the stock held by them, the voting trustees
will exercise their best judgment, from time to time, to select
‘suitable directors, to the end that the affairs of the company shall
be properly managed, and in voting on other matters which may
come before them at any stockholders’ meeting will exercise like
judgment; but it is understood that no voting trustee incurs any
responsibility by reason of any error of law or of any matter or
thing done or omitted under this agreement, except for his own
‘individual malfeasance.

Eighth. This agreement. may be simultaneously executed in
sevéral counterparts, each of which so executed shall be deemed
to be an original; and such counterparts shall together constitute
but one and the same instrument.

Ninth. This agreement shall not be binding upon the parties
until the same shall have been signed by the stockholders repre-
senting a majority of the capital stock of the company.

In Wiryess Wurreor, the several parties Hereto have here-
‘unto set their. hands and seals the day and year first above men-
‘tioned, and the voting trustees'have hereunto set their hands and
‘seals in token of their acceptance of the trust hereby created.

71
1122 Votine Trust AGREEMENT.

 

‘Forms — No. 149a.

No. 149a.

Voting Trust igreement.

THIs AGREEMENT made on the day of -
1901, between owners and holders of shares of the
capital stock of the Company, a corporation organ-
ized and existing under the laws of the State of ‘
and any other owners and holders of shares of the capital stock
' of the said company who may hereafter become parties or assent
hereto, each for himself and not for the others, hereinafter called
“the stockholders,” parties of the first part and the
Trust .Company, hereinafter called “the trustee,” party of the
second part.

Wuersgas, the Company has but recently come
into existence and the success or failure of the business enter-
prise depends largely upon the management and policy of the
said company during the first years of its existence; and,

Wuenreas, the said parties of the first part believe that it is
essential for the success of said company, and for the best inter-
ests of all the stockholders thereof, that the said company shall
be managed and directed during the first five years of-its exist-
ence under a definite and fixed policy, and to secure a union of
all interests in order to properly develop the rights, privileges,
franchises and property owned by the said corporation; and,

Wuereas, the said stockholders have this day transferred and
delivered to-the voting trustee certificates for fully paid shares
of one hundred dollars each of the capital stock of the
Company, as follows:
ee ee ee ee ee ee eee shares,
sda eG datah a anh sah Sve ae avi lah dau ouab ayaa lati cecoraleres atresia shares,
which certificates, together with such other similar certificates as
may hereafter from time to time be delivered hereunder by the
other stockholders of said company, are hereby received and will
be received by and are to be held and disposed of by the voting.
trustees under and pursuant to the terms and conditions hereof.

Now, THEREFORE:

1st. The voting trustee does hereby pron.ise and agree with
the aforesaid stockholders individually that the voting trustee
will cause to be issued and delivered to each of said stockholders

‘
Voting Trust AGREEMENT. 1123

 

‘Forms — No. 149a. ©

 

individually, a certificate for the number of shares transferred
and delivered to the voting trustee as hereinbefore set forth in
substantially the following form:

pao weasels Company.

Common Stocx Trust CERTIFICATES.

THIS Is TO CERTIFY, that as hereinafter provided

will be entitled to receive a certificate or certificates for
fully paid shares of the par value of one hundred dollars

each, in common stock of the capital ‘stock of the
Company, on the day of ,19 , and
in the meantime to receive payments equal to the dividend, if any,
collected by the undersigned voting trustee upon a like number
of such shares standing in its name, and-until after actual delivery
of such stock certificates the voting trustee shall possess and shall
be entitled to exercise all rights of every name and nature, in-
cluding the right to vote in respect to any and all such stock, it
being expressly stipulated that no voting right passes by or un-
der this certificate or by or under any agreement express or
implied.

This certificate is issued under and pursuant to the terms and

conditions of a certain agreement dated the day of

, 1901, by and between certain of the stockholders
of the Company and the undersigned voting
trustee.

This certificate is transferable only on the books of the under-
signed voting trustee, by the registered holder either in person
or by attorney duly authorized, according to the rules established
for that purpose by the undersigned voting trustee, and on sur-
render hereof and cancellation or transfer the undersigned voting
trustee may treat the registered holder as owner hereof for all
purposes whatsoever, except that the delivery of stock certificates
hereunder shall not be made without the, surrender hereof.

In Wirness WueErxor, the undersigned voting trustee has exe-
cuted this certificate this day of - , 190
; Voting Trustee.

2d. That on the day of , 19 , the

voting trustee in exchange for and upon the surrender of the

aforesaid trust certificates then outstanding will, in accordance
1124 Votixe Trust AGREEMENT.

 

Forms — No. 149a.

 

with the terms thereof, deliver or cause to be delivered proper
certificates of equivalent amount of stock of the

Company.
3d. The voting trustee shall cause the above-mentioned de-
posited shares of the capital stock of the Company

to be transferred on the books of said company to the name of
the voting trustee.
4th. From time to time hereafter the voting trustee will re-
ceive such additional fully paid shares of the capital stock of the
Company as any and all other stockholders of
said company may tender and deliver to said voting trustee here-
under, and in respect of all such shares so received will issue and
deliver certificates similar to those above mentioned, entitling
the holders to all rights above specified.
5th. In voting stock held by it, the voting trustee shall exer-
cise its best judgment from time to time to select suitable di-
rectors to the end that the business and affairs of the
Company shall be properly managed, and in voting on
any other matters which may come before it at any stockholders’
meeting, will exercise like judgment, but it assumes no respon-
sibility in respect to such management or in respect of any action
taken pursuant to its vote so cast, it being understood that the
voting trustee incurs no responsibility by reason of any error of
judgment or by law in any matter or thing done or omitted under
this agreement, except for its own gross negligence or wilful
malfeasance.
6th. This agreement shall be open for inspection at the office
of the voting trustee in the city of during ordi-
nary business hours to any stockholder of the said
Company.

In Witness WuEREor, the several parties hereto have ‘here-
‘unto set their hands and seals in the city of New York the day
and year first above written.

In the presence of:
GuARANTEE OF Bonps. 1125

 

Forms — Nos. 150, 151.

 

No. 150.

Guarantee of Corporate Bonds.
See Stock Corporation Law, § 40.

For VALUE RECEIVED, The Company hereby guar-
antees the payment by the Company, of the principal
of the within bond at the maturity thereof, and of all interest
thereon, according to the tenor of the coupons belonging thereto,
as they severally become due, and also the payment of all amounts
payable under the sinking fund provisions in the indenture of

trust to the Trust Company, by which the within
bond is secured, as the same becomes due, and for the purposes
aforesaid the said .Company hereby covenants and
agrees with the Company and the holder of this
bond, and with the Trust Company, to pay to the
said Trust Company, in the city of

‘semi-annually, on or before the first day of January and July in
each year, an amount in cash sufficient to pay the interest on all
the bonds issued under the indenture of trust herein referred to
at any time outstanding, and also all amounts that may from time
to time become due and payable under the provisions of the said
‘sinking fund created by and contained in the said indenture.

In Wirness Wuerror, The said Company has
caused its corporate name to be signed hereto by its president or
vice-president, and its corporate seal to be hereunto affixed by

its secretary, this day of gL
[Corporate Seal.] Company,
By ies nea mass
Attest: Presiden.
Sacreiany
No. 161.

Guarantee of Corporate Bonds.
See Stock Corporation Law, § 40.
The Evansville and Terre Haute Railroad Company, for a
valuable consideration, the receipt whereof is hereby acknowl-
edged, hereby guarantees the payment of the principal and in-
1126 CERTIFICATE aS TO TRaDE Name.

 

Forms — Nos. 152, 153.

terest mentioned in the within bond, according to the tenor and
effect thereof.

In Wiryess Wuerzor, The [continue as in preceding form. ]
(See Dougan v. Evansville & T. H. R. R. Co., 15 App. Div.
483.)

No. 152.
Guarantee of Corporate Bonds.

See Stock Corporation Law, § 40.

For a valuable consideration, the receipt whereof is hereby ac-
knowledged, the Evansville and Terre Haute Railroad Company
hereby guarantees to the holder of the within bond, the punctual
payment of the principal and interest thereof, when and as t‘ie
same shall become due and payable.

In Wrrnzss Wuereor, the [continue as in form No, 150.]

(See case above cited.)

 

No. 158.

Certificate as to Trade Name.-
See Penal Code, § 363-b.

We, the undersigned, do hereby certify, that we are conduct-
ing or transacting [or intend to conduct or transact] the business
of [state same] at in the county of .
and State of New York, under the name of [insert same] Com-
pany, and that the true or real full name [or names] of the per-
son [or persons] conducting or transacting [or who intend to con-
duct or transact] such business, with the post-office address of
said person [or persons] is [or are] as follows:

Names. Post-office addresses.
In Witness WHEREOF, have made this certificate
and subscribed name(s) hereto this day of
19
2

(Signatures. |
CERTIFICATE OF Mercer. 1127

 

Forms — No. .154.

 

State or New Yorx, ba

County of ;
On this day of ,19 , before me per-
sonally came , to me known, and known to me to

be the individuals described in and who executed the foregoing
certificate, and [severally] acknowledged to me that they executed
gece: === 8 =  kwheeduuertaag mes

Notary Public.

No. 154.
Certificate of Merger.

See the Stock Corporation Law, § 58.

The [insert corporate name] Company, pursuant to the pro-
visions of section 58 of the Stock Corporation Law of the State
of New York, hereby certifies, under its common seal, as follows:

First. That the [insert corporate name] Company is a stock
corporation organized and existing under the laws of the State of
New York, and that its certificate of incorporation was duly filed
and recorded in the office of the Secretary of State of said State

on the day of , 19  , and also in the

office of the clerk of county, in said State, on the
day of ,19 .

Second. That on and prior to ,» 19 ~~, the [insert

corporate name | Company was also a stock corporation organized
and existing under the laws of the State of New York, and that
‘its certificate of incorporation was duly filed and recorded in the

office of the Secretary of State of said State on the day
of ,19  , and in the office of the clerk of
county in said State on ,19~—Ct«;w

Third. That on said ,19  , the

[insert corporate name] Company, lawfully owned all the capital
stock of said [insert corporate name] Company, and on that day
the directors of the said [insert corporate name] Company, by a
resolution duly adopted, determined to and did merge said [insert
corporate name] Company, which resolution was in the following
words, to-wit:
1128 CERTIFICATE OF ALERGER.

 

Forms — No. 154.

 

Wuereas, the [insert corporate name] Company was organized
for and now is engaged in business similar [or incidental] to that
of the [insert corporate name] Company; and

Wuereas, the said [insert corporate name] Company has ac-
quired and now lawfully owns all the stock of said corporation,
and desires to merge the said [insert corporate name] Company,
and to be possessed of all the estate, property, rights, privileges.
and franchises of said corporation;

Resotvep, that the [insert corporate name] Company merge,
and it hereby does merge said [insert corporate name] Company}.
and further,

Reso.veEp, that the officers of this company be and they hereby
are directed to make and execute, under the common seal of this
company, and to file in the office of the Secretary of State, a
certificate of such ownership, and of the adoption of this resolu-
tion of the board of directors of this company, to merge the said
[insert corporate name] Company.

In Wrirness Wuereor, the [insert corporate name] Company
has caused these presents to be signed in its behalf by its presi-
dent, and its common or corporate seal to be hereunto affixed

and attested by its secretary, on the day of ‘
19
The [insert corporate name] Company,
BY? nia saGaw ee ee eee
[Corporate seal. ] President.
Attest:
Becretars)
State or New York, {
County of ; me
On the day of , in the year nineteen
hundred and , before me personally came
to me known, who, being duly sworn, did depose and say that
he resided in die city of ; that he is the

president of [insert corporate name] Conipan'y, the corporation
described in and which executed the above instrument; that he
knew the seal of said corporation; that the seal affixed to said
instrument was such corporate seal; that it was so affixed by order
of the board of directors of said corporation, and that he signed
his name thereto by like order, = ............
Notary Public,
County, N.Y.
Loaninc Mowry on PrrsonaL PROPERTY. 1129

 

Forms — No. 155.

 

No. 165.

Certificate of Incorporation.

Under L. 1895, ch. 326. See page 598.

We, the undersigned, all being persons of full age, at least two-
thirds being citizens of the United States, and at least one of us a
resident of the State of New York, desiring to organize and be-
come a corporation pursuant to “ An act to provide for the incor-
poration of associations for lending money on personal property,
and to forbid certain loans of money, property or credit,” being
chapter 326 of the Laws of 1895, and the acts amendatory thereof
and supplemental thereto, do herehy make, sign and acknowledge
this certificate in the form prescribed by the Business Corpora-
tions Law as follows:

First. The name of the proposed corporation is [insert corporate
name] Credit Company.

Second. The purposes for which it is to be formed are for aid-
ing such persons as shall be deemed in need of pecuniary assist-
ance, by loans of money at interest, not exceeding two hundred
dollars to any one person upon a pledge or mortgage of personal
property in the manner as set forth in said act of 1895, chapter
326, and acts amendatory thereof, and to transact such other busi-
ness as is now or may hereafter be permitted by such corporation.

{Continue the certificate in accordance with form No. 54.]

PATENTS.

A corporation can only acquire title to patents by assignment,
as it is not permitted to make an application in its own name.

An assignment, grant, or conveyance of a patent will be void
as against any subsequent purchaser or mortgagee for a valuable
consideration without notice unless recorded in the patent office
within three months from the date thereof.

The following are the official forms furnished by the United
States Patent Office:
1130 ASSIGNMENT OF PaTENT.

 

Forms — Nos. 156, 157.

 

No. 156.
Assignment of an Entire Interest in an Invention Before the Issue of Letters-
Patent.

Whereas, I, ,» of , county of >
and State of : , have invented a certain new and
useful improvement in , for which I am about to
make application for letters patent of the United States; and
whereas, , of , county of :
and State of , is desirous of acquiring an interest

in said invention and in the letters patent to be obtained therefor:
Now, therefore, to all whom it may concern, be it known that,
for and in consideration of the sum of dollars to me in
hand paid, the receipt of which is hereby acknowledged, I, the said
, have sold, assigned, and transferred, and by these

presents do sell, assign, wud transfer, unto the said
the full and exclusive right to the said invention, as fully set forth
and described in the specification prepared and executed by me on
the day of , 19 , preparatory to obtain-
ing letters patent of the United States therefor; and I do hereby
authorize and request the Commissioner of Patents to issue the

said letters patent to the said , as the assignee of my
entire right, title. and interest in and to the same, for the sole
use and behoof of the said and his legal representa-
tives.

In Testimony Wuereor, I have hereunto set my hand and af-
fixed my seal, this day of , 19

i GeGia eesislasesdns ees [us 8c]
In presence of:

[Add acknowledgment.]

No. 157.
Assignment of the Entire Interest in Letters-Patent.

Whereas, I, , of , county of
State of , did ‘pbtaitn letters patent of the Tnited
States for an smiprovamient 3 in , which letters patent are
numbered , and bear date the day of , in
the year 19 ; and whereas, I am now the sole owner of said

patent and of all rights under the same; and whereas, 5
ASSIGNMENT OF PaTENT. 11381

 

Forms — No. 158.

 

of , county of , and State of ;
is desirous of acquiring the entire interest in the same:

Now, therefore, to all whom it may concern, be it known that,
for and in consideration of the sum of dollars to me in
hand paid, the receipt of which is hereby acknowledged, I, the said

, have sold, assigned, and transferred, and by these
presents do sell, assign, and transfer unto the said ‘
the whole right, title, and interest in and to the said improve-
ment in and in and to the letters patent therefor
aforesaid ; the same to be held and enjoyed by the said
for his own use and behoof, and for the use and behoof of his legal
representatives, to the full end of the term for which said letters-
patent are or may be granted, as fully and entirely as the same
would have been held and enjoyed by me had this assignment and
sale not been made.

In Testrmony Wuereor, I have hereunto set my hand and af-

fixed my seal at , in the county of » and
State of , this ‘day of ,19 .

In presence of: = == aeeae i ee eee eco LIne

[Add acknowledgment. ]

No. 158.
Assignment of an Undivided Interest in Letters-Patent.

Whereas, I, » of , county of
State of , did obtain letters patent of the United
States for an improvement i in * , which letters-patent are
numbered , and bear date the day of a
the year ; and whereas, , of ;
county of , State of , is desirous of ac-

quiring an interest in the same:

Now, therefore, to all whom it may concern, be it known that,
for and in consideration of the sum of dollars to me in
hand paid, the receipt of which is hereby acknowledged, I, the said

, have sold, assigned, and transferred, and by these
presents do sell, assign, and transfer unto the said
the undivided one-half part of the whole right, title, and interest
1132 ASSIGNMENT OF PATENT.

 

Forms — No. 159.

 

in and to the said invention and in and to the letters patent there-
for aforesaid; the said undivided one-half part to be held and en-
joyed by the said , for his own use and behoof, and
for the use and behoof of his legal representatives, to the full end
of the term for which said letters patent are or may be granted,
as fully and entirely as the same would have been held and en-
joyed by me had this assignment and sale not been made.

In Testimony Wuereor, I have hereunto set my hand and af-

fixed my seal at , in the county of , and
State of , this day of , 19
In presence of: jeGtred igislea) iets awe, PB Bead
[Add acknowledgment. ]
No. 159.
Assignment of Territorial Interest after Grant of Patent.
Whereas, I, » of , county of
State of , did obtain letters-patent of the United
States for provement in , which letters patent are
numbered , and bear date the day of » in

the year 19 ; and whereas, I am now the sole owner of the said
patent and of all rights under the same in the below-recited terri-
tory; and whereas, , of , county of

, State of , is desirous of acquiring an
interest in the same:

Now, therefore, to all whom it may concern, be it known that,
for and in consideration of the sum of dollars to me in
hand paid, the receipt of which is hereby acknowledged, I, the said

, have sold, assigned, and transferred, and by these
presents do sell, assign, and transfer, unto the said
all the right, title, and interest in and to the said invention, as
secured to me by said letters patent, for, to, and in the State of

, and for, to, or in no other place or places; the same
to be held and enjoyed by the said within and through-
out the above-specified territory, but not elsewhere, for his own
use and behoof, and for the use and behoof of his legal representa-
tives, to the full end of the term for which said letters patent are
or may be granted, as fully and entirely as the same would have
‘ ASSIGNMENT OF PATENT. 1133

 

Forms — Nos. 160, 161.

 

been held and enjoyed by me had this assignment and sale not been
made.

In Testimony Wuereor, I have hereunto set my hand and af-

fixed my seal at , in the county of , and
State of , this day of , 19

In-presence Off = 888 Svewenunvey seamen [u. s.]

[Add acknowledgment. ]

No. 160.
License — Shop-Right.

In consideration of the sum of dollars, to me paid by

the firm of ,of , in the county of
, State of , I do hereby license and em-

power the said to manufacture in said
[or other place agreed upon] the improvement in ;
for which letters patent of the United States No. ‘were
granted to me the day of ,inthe year 19 ,

and to sell the machines so manufactured throughout the United
States to the full end of the term for which said letters patent are
granted.

Signed at , in the county of and State
of , this day of , 19
In presence of: enteorsreeseeeeenenesaeseneee
[Add acknowledgment. |
No. 161.
License — Not Exclusive —With Royalty.
This agreement, made this day of re (ae
between , of , in the county of
and State of , party of the first part, and ;
of » in the county of and State of
, party of the second part, witnesseth, that whereas,
letters patent of the United States No. , for an improve-
ment in , were granted to the party of the first part

on the day of ,19 ; and whereas, the party
1134 ASSIGNMENT OF PATENT.

 

Forms —No. 161.

 

of the second part is desirous of manufacturing con-
taining said patented improvement:
Now, therefore, the parties have agreed as follows:

I. The party of the first part hereby licenses and empowers the
party of the second part to manufacture, subject to the conditions
hereinafter named, at their factory in , and in no
other place or places, to the end of the term for which said letters
patent were granted, containing the patented im-
provements, and to sell the same within the United States.

II. The party of the second part agrees to make full and true
returns to the party of the first part, under oath, upon the first days
of and in each year, of all
containing the patented improvements manufactured by them.

III. The party of the second part agrees to pay to the party of
the first part dollars as a license fee upon every
manufactured by said party of the second part containing the
patented improvements ; provided, that if the said fee be paid upon
. the days provided herein for semi-annual returns, or within
days thereafter, a discount of ~ per cent shall be made from
said fee for prompt payment.

IV. Upon a failure of the party of the second part to make re-
turns or to make payment of license fees, as herein provided, for

days after the days herein named, the party of the first
part may terminate this license by serving a written notice upon
the party of the second part; but the party of the second part shall
not therebv be discharged from any liability to the party of the
first part for any license fees due at the time of the service of said
notice.

Iy Witness Wuereor, the parties above named have hereunto

set their hands the day and year first above written at .
in the county of and State of
Tmpresenceoft = 8 §é  .Sgumeniveyevace suas

[Add acknowledgment.] aiorave MEL Sade ea aioe
INDEX TO FORMS.

Acknowledgment: Page.
proof of execution of a corporate instrument ..............20000e 1113

Adoption of Trade Name: .
CORLER CALE: 108 ais. cies wevisiws sieges Greig aig demon a NS oa abeG sa kialE ba hie « 1126

Alteration or Extension of Purposes, Powers or Provisions:
COPLINCA LS: LOT ace cs ais dawalne: Pia 66 Bawde wided we GaN E eNOS SEE 926

Amended Certificate:
‘ defect or informality, to correct ......... ce cece cece cence 871, 872

Annual Reports:
corporations, other than moneyed or railroads ............s00000. 924.

Bonds Secured by Mortgage:

COUPON: 2 swig. ts pHs eh ee eee ee Awe ee 6 Wee oe a Goes salad Yas sade HA OE 910
Fepistered, oases ae eee Seen at Piaxileiiacai fa Sjanah ass teyaeiek sass entapdielte re 912:
INtENeSt: COUPON ii jc horas See SMV EKE DEES WE Lo BHR S TRUE Te 912
guarantee of corporate bonds ............. 2... cece e eee cece eeens 1125.
Business Corporations: :
certificate of incorporation, limited liability, general form.......... 950
examples of certificates of incorporation .................. 985-998.
Pall ability 160M) ssa acca snag ov nals Gans dee Cae Weed a mle eR ee 998.
consolidation, agreement for ............ 0c cece cece ee eens sees 1005.
extension of business, certificate Of ...... 0... ccc cee cece eee 926.
object clauses, examples of (alphabetically arranged) .......... _ 952-985:
payment one-half capital, certificate of ........... lta a Besse Brees 1001
reincorporation, certificate for ........... eee ete eee teen eee 999
supplemental certificate to change to full liability ............... 1003
Bridge Corporations: ;
certificate of incorporation ......... 0c cee cece eee renee eee e nes 1046
By-Laws:
stock corporation, for use by ..........cc ccc ce eee ee tenet an eeuees 876
Capital Stock:
increase or reduction, certificate of ......... At eevee Leep a ede has 934
WMMeStING LOM, MOLWCE OF 2.6) 6c.. choice whine «Heels Aire ee ene) wo 937
proof for comptroller, in case of reduction ..............000- 238
proceedings where notice is waived ................000- Guava’ 939
payment of one-half of, by business corporations ................ 1001
ferry COrporation. ci csc casas diovds Mew est Res ea eEN Fe Khaw on "1022

navigation corporations, full payment ............. cece cece aee 1020
1136 INDEX TO FORMS.

Capital Stock (Continued): Page.
shares, number of, change of, certificate for ......eeceeeeecceesss 948
unanimous consent to increase or reduce ......-cseccccccececsess 942

Certificate of Incorporation:

bridge corporation ........ ae Liaaieleteneanronvee cares ccccevesecceess 1046
business corporation, limited liability, general form..... a elaraiers: see 950

examples of certificates of incorporation .............e06. 985-998

full liability form ............. ccc cece eee eee eases 958

object clauses, examples of (alphabetically arranged)...... 952-985
ferry corporation ................005. 4 aaa e einen: ea sl acenatg ees -. 1010
gas or electric light corporations ............. ccc eee e eee eee eeee 1038
loan VoMpanieS 10.2... cee eee eee eee eee een ee eee e tees 1129
navigation corporation ....... 2... cc cece teen reece ene e eens 1018
pipe line corporation ...........cceeee ce eeencees ahihets. s.siaeaisiers! ae 3 1026
railroads, to be operated by steam power ...........0eseeeeeeeees 1053

street surface railroad ............ cece cee eee wees ceeeseee. 1056

foreign countries, roads to be operated in .................05. 1066
reorganization by purchasers of property and franchises .......... 915
stage coach corporation ...........eeeeeeeeeeeee Sia ceca evaehaiere Ge 1022
telegraph and telephone corporations ........ epigd a See ss isewwees 1043
tramway Corporation ...... cee cece cece cece e eee eee tee eeeeeeee 1024
turnpike or plank-road corporation ............. ase bReeeS seceeee 1048
water-works corporation ..... Det tee eet ee eee ees dime Perdeee aH «--. 1039

Certificate of Payment:

business corporation, half payment ........... ccc cece cece sence 100i
ferry corporation, half payment .......... scpverstouvads nievevaat ahaa: iauaiese 1012
navigation corporation, full payment ........... cc cc cece ee eeeee 1020

Certificate of Stock:

COMMON StOCK. wis diw se adawd stew see Hid seesaw adie tees 929-933
demand for transfer Of: a. gov wcatcceewnaieea See $ Sisieitere,. anata d Saree 933
lost certificate, bond of indemnity ............. 0... c eee eee ee eee 1114
partly paid stock ....... cece ceceeeeeee cree eeeceeeaeee aspect Sone 1115
preferred stock ...........2000e Sid savtvaonsyaeaa ear aien a sogdhai's veal ecaasa eta avatars 944
subscription for stock ........... sGiawey es Cre ee eee 934
Certificate of Indebtedness:
form! £0 2 isis ccqn esas eww sa eases SS Welw as iets ss WSS SUBIC Site Xs 914

Classification of Directors:
clauses for .......+..eeeee a le\gralaveisiaib:€ Te esaere eb ele(ere(sise-e'e saiiaeictecee eo. OLS

Classification of Stock:

certificate authorizing .......... cece cee ce eee eeeceeetseens ete O45

examples Of «0. scceeevccccconcecceserreersnessveseierens 1098-1105.
Challenges:

proxy, oath to be taken ............. s)dssioveunronevs d sonaiaiarg: syerieceneuelanaidle -889

stockholder, oath to be taken ............ OK HOWE ReSOeeoews. 88S
INDEX TO FORMS. 1137

Change of Corporate Name: Page.
notice of application ........ccccccoecccecccccnceeecsscesssecses 868
order of court authorizing change ............ scien a ceeev aces “BED
Petition, for sev. cnescsaed cada ies wees Saeed Jl YS Rae SO seevs 867
resolution of directors authorizing application ................00. 869

Consolidation:
business corporations ............ceeeeeee wiead euerseeaip: a apiacnue a syaneuess 1005
railroad corporations ....... Siu ek ponies eke see ceeceseecscveness, L067

Corporate Existence:
extension Of 6 sicec men a sues ses ereas a6 aVanoreis Seba 8 Soyareusy a ede tor 893

Defective Certificate:

COTTECHON OF sheds: xcs alse hE eK HORS SS sie eda Sie hte 871, 872

Directors (see also Election of Directors).
classification of, clauses for ............eece08 a lal gigia iavav'sl ues Garmawnes 918
increase or reduction of number ...........c.cceeeeeeeer eee eee 919

notice of meeting ............ ccc cece ee eens caveiaaaeve aie aiene teen 921
proof of service Of .......... scene cc ccensesecesccsceees 921
inspectors at election of, certificate by ............e eee e cece eee 922
OAL OF we icwwie sae winnes Suseetinedads eal ace tala ndpnres nha. sslavanete:a%e, Gnerspecdeaze 923

Dissolution of Corporations:
notice of appointment of receiver ......... cece cece eee e eee ee eee 1084
OTMEL ‘tO: SHOW CAGE seis cnt swiped aves pew gee Pele Gigs gies y Sate aT elee's 1083
petition fOr a isswaceisee ever dow se vannew ecsanseeewnees eo Mensa e 1081

schedule to be thereto annexed ..............eeeeeeeeeeee 2. 1082
voluntary dissolution, without court proceedings ................. 1105

Election of Directors:

inspectors of election, certificate of .......... cece eee etre eee 922

oath of, to be annexed to certificate .......... cc cece cee eee 923
notice for, annual election ............. ccc cece eee t eee eetecnes - 917
special election: 2. vicssacaesieautie we aee hee nee yeu eae oeee 890
stockholder, when given by ..........cceseeeee cece eceee 890

oath to be taken at, by challenged stockholder .................-. 888
proxy, to take, if challenged ........... 0. cece eee eee e eee neee 889
petition to court to set aside .......... ccc cece cece cece eee e eee 891
proxy at, from a stockholder ............eceeseeeescnceeccrecees 887
bondholder, if given by .......ceceeeceeaee i3 seeee ss gwen 888.

‘Execution of Instrument:
proof of ....... Sarre are re reer iisptedeh ees saug ALLIS

‘Extension of Existence: :

Certificate LOF* scp woins aes peewee a dyad weer shay sis Slpedae gcshadeasea ais 893
turnpike, plank-road or bridge corporation .............00. seeee 1050

‘Extension of Purposes, Powers or Provisions:

certificate by stock corporations generally ........ ere ree 926
copy of proceedings of meeting, to be attached ................ 927
notice of meeting ...............6.. Miveretwiceaew ase G2E
72
1138 INDEX TO FORMS.

Ferry Corporations: Page.
certificate of incorporation ...........eceseecenccecceeeseeeeess LOM
license to maintain @ ferry ..........ccccceececcesecncseneeeeees 1015

application for, by corporation owning the land ............. 1012
corporation by, not owning the land ............ sara gravee 1013.

notice to owner of lands .......... 0c see cece eer eeeeeeeee 1014

proof of service ........ cee cece cece teen eee ene 1015

undertaking to be given, upon application ............... 1016

r affidavit of justification ........... cece cece eee eens 1018
approval of undertaking ............. @ paises sa pegie ees 1018

clerk’s certificate to be annexed to copy of license ............. 1016
payment of one-half capital, affidavit of ..... Ki wesinesieeecwtenes, LOZ

Foreign Corporations:
certificate of removal of office of designee ...........0eeceeeeeees+ 886

revocation and new designation ............. Bs esheeeewaeees wees COO
statement and designation by .......... ie Desh s wesAhiNS ee aAeS, COL
consent to be attached ........ ccc e cece cece eee cece teenies 883
oath to be annexed to copy of certificate of incorporation...... 884
resolution of directors authorizing ....... ia Mewes stew y aes B84

Gas or Electric Light Corporations:
certificate of incorporation ........cceesccceseceeeeeereeesenees 1038

Guarantee of Bonds:

forms: MOF 2a caavasisg erode seen ss disiSeis sees ie a areaere oo AIZ5,, WU26:
Increase or Reduction of Capital Stock:

certificate LOK cocic daa ssa weae eens ale adatenaie e's enous orRwere ee aed 934

meeting for, notice of ...............005 Riese HeIess eens OST

proof for State Comptroller in case of reduction............+...+-- 938

proceedings, where notice is waived..............+... Mew oeseees, 939

unanimous consent to increase or reduce capital stock......... vee 942

{Increase or Reduction of Number of Directors:

COTLWCATS: POD 02% sosedadete dc dusis ace! dete duns leeevaanaelas 3 Aueieerene eraein GS ane da ea 919°
NOtice:Of MeetING cise iw asdcaie anes vecedicugyew de ga weln de seate es 921
proof of service .......... ccs e cece cence se veceeceesceesreee O21

Increase or Reduction of Number of Shares:

Certificate. Of 2: secscg causes stage ess eed ced mene et ecccececcecees 948.
Informality, or Defect:
amended certificate to correct ......... esau bas tieeeer geese detent, STL
amended supplemental certificate ......... a cececsevecrccecescess 872
Inspectors of Election:
certificate by, of result of election ......... Weds Mew ws Menace 922
oath to be annexed to ......... aushd = Eisleiess we eined-e'e view e-e cases) 92S

Joint Stock Associations:
annual certificate of ......

renee en ce cnc eer eeeecesceecerecesses LODGE:
INDEX TO FORMS. 1139

Limitation of Powers: Page.
example: Of ..ctua. tase eisai re wewea naw seaweed 993, 994, 997, 1097
Lost Certificate of Stock:
bond of indemnity for new certificate .........cccceceeeeeeeereeee 1114
Merger of Corporations:
Certificate: Of . oe sisis sacs ov wigieg/eis Scions ie eragia'e ote oie aides Sav owas 4 1127
Mortgage:
Consent: fOr sen sdecw nde sees eaies Rebus saaeaenead saetion wows 895
SHORE FORM: Sc gascnieamie hee danas ou VAMee eee Ae 4 ease Bees 897
certificate Of CONSENE: .cie ose giles aia Gow Hae Nee ae RE 897
Corporation MOrtgage ...... cece cece cece eee e ener eneeee eres cerns 899
coupon bond under ....... cece eect eee eee e eee eeerceee 910
interest COUPONS ......... cece ese ne cee eee ee erate eeens 912
registered bond under ...........ccccnccccececcceeeesseeecs 912
trustee’s certificate ....... pene 2:5 Sree seeceenae eoncecennes 912

Navigation Corporations:

certificate of incorporation .........ccecccccccnuseeecesesenneees 1018
payment of capital stock, certificate of............ aiig: 6 Sees esos 1020
Note:
corporation, given by .........cccceecccceses errr rere 913
resolution authorizing ........0..eeeeeees sisiebisie's seis save O18
Notices:
annual election of directors 1.1... ... cece vccceencecueecescseuees 917
change of number of directors, of meeting for..............see0e0 921
proof of service of notice .......... cece eee cece ewer eceee 921
extension of. business, of meeting for ..........-secececeeeeceees 928
increase or reduction of capital stock, of meeting for.............. 937
special election of directors, call for........... cece cee ceeeeeeenes ~ ‘890
stockholder, notice given by .......essccececceeeeeeeeeteees 890
Walver In (Certain Cases. wis cccwis 5 os 054 6 6908 8 ¥ adie s a maeE PHONE s 1005
waiver and consent to reduce stock ..........ccceeeceveceeeseeees 941
Oaths: ,
proxy, to be taken by, when challenged ...........0.eceeucceceess 889
voter, to be taken by, when challenged .........-eeeececceecvsees 888
special election, sworn statement ............eeeseeesrescerecnes 891

Objects Under Business Corporations Law:

clauses, examples of (alphabetically arranged) ....... seeecee. 952-985
Office:
change Of location ..... ccc ence eee e eens ene eeesceneeeeaseenes 1109
Objects:
correction of petition to court, for ...... dens Seven denise Madsaeiovers ». 873
notice of application, ...2 220 sre ss sees odnw creeds cauneee nee 875

extension of, certificate for ....ccvcccccccvscrcccvccevvereresssees « 926
1140 INDEX TO FORMS.
Payment of Capital Stock: Page.
business corporation, payment of one-half........+.seeeseeeseee++ LOO]

Partly Paid Stock:
COFLIMCATE NOL 2 cnnis 35a ne ec tunes Farnese Reape ood: duaverasdvaver alesse sueierouercovs, LIS

Par Value of Shares:

change of ............... siete 4 wa ievess onesie Aids otesbgeterseniene tae) 48s
Petition:

election of directors, to set aside...........eceeneeeee ogythaie agate 891
Patents:

assignments Of) sic. sigs scgis secu vcase's ssw Gomisre gins RE a sine Seeee yee «+ 1130-1132

licenses under ............eceeeeeee Soi wSGOS seninmmescamereds 133

Pipe Line Corporations:

certificate of imcorporation .......... ccc cece cece reece e eee es 1026
map and survey of line, notice of filing ............ 0... cess ee eee 1028
monthly statement by s.cccssvactaa ede se wea tes waa beieeecasews 1037
petition for permission to construct through streets, etc............ 1034
aggrieved owner, petition of ........... ccc eee cece e eee eens 1030
notice of MObION 262.3 n00 Kens ooo eas Sew E Es OS HEE HOS aie aig, Se es 1035
order of court, granting permission ............. 0... e eee 1036
relocation of line, petition for ............. 0... eee eee eee eee wien TOR
notice of application ............ cc cece eee eee eee roonek 1029
commissioners to examine line, order appointing ............. 1031
report of such commissioners .............cceeceeeeeeee 1032
order of court upon such report......... eeagniet ieee 1033
Powers:
extension Of ssc ccsene dees eee es eee en eee eee wins ages 926-928
Preferred Stock:
certificate Of ........ 0. ee eee Jieinwie ew shies ee ewes eared > O44
examples of statement for..................0000- S Adore sexe 1098-1105
authorizing classification, certificate.............00. secre erereees 945
Principal Place of Business:
CHAN Ge OF cee ges a csisials say slang wiaiiglala esse ee olen suetsieyerslews cistsematrne aes LOD
Proxies:
bondholder, when given by ..........-...... de Wierewiewiiedieie ele ain a4 888
member of non-stock corporation, when given by............ wisten a 888
oath, when challenged .......... Siavediah car iatint wit NIN hanged merece 889
stockholder, when given by ............ eeiaties temeesveocenssces. B87
Purposes: 7
extension Of .........0-c0 esse eeeeces etre ceeweeccccresccces 926-928
Railroad Corporations:
certificate of incorporation, steam railroad...... see eeceeeeeereesee 1053
foreign country, road to be operated in ..........ceceeeeeeeee 1066

street surface railroad ....
INDEX TO FORMS. 1141

Railroad Corporations (Continued): Page.

consolidation, agreement for .............cceeeee Ree eae EES TA 1067

consent of stockholders ...............44. Sars ohagiee Waa ae 1071

certificate in lieu of ............. bens eit dave ahead alae a a 1072

lease of road, notice of meeting to consider...............0-20000+ 1074

adoption of, certificate for ........ 0... cece eee eee eee eens 1075

meeting for, record Of ........... ce eee e cece eee eee eees 1075

steam railroads, map and profile of route, notice of filing.......... 1058

certificate to be attached to map and profile................-. 1058

route, location of, petition for change of.................... 1059

notice of application .......... 0. cece eee ees 1060

order appointing commissioners to examine route........ 1061

oath of commissioners ..............0 0c cece eee eee 1062

determination of commissioners ..............2..005 1062

notice of appeal from ............0eeceeeeeeeee 1063

order affirming or reversing determination....... 1064

route, change of, certificate for........... ae 2 eo Re RLS wie ees 1064

street surface roads, consent to construct.............0ce cece eeee 1076

consent to construct, by property owner................0005- 1076

local authorities, when given by ............. 0.0 cece eee 1079

APPL CATON: AOT «a csccaigie weeds Hine at Sac eee eee 1078

MObICE OF i. Pssideae SP saGands dusdee, vos Was seamed. a's sal 1077

route, extension Of ..........ccccc eee e eee e ee eeees 1111, 1112

electricity, consent to use Of ........ ec cece cere eee etn ees 1077

supplemental certificate to correct original ................ 0 0c eee 1057

Receiver:

notice of appointment .......... ccc ccc cee eee cece eee enes 1084

order to show cause ...... Hie MOET L Shew eLetters eee OBS

petition for appointment of .............00008 Shaccacar ty aN cca apavalie eae 1081
Reorganization:

certificate of, after foreclosure 6.1... .. cece cece eee er ee eeseeeees 915

existing business COrporation ......eceeeeecececcerseceeseres Vee. 999

Reports (see Annual Report).
Shares of Stock:

change of par value of ........... aishois © oiaybinte espera a oratenedleayaters 444 948
Stage Coach Corporations:

certificate of incorporation ....... i boven: 6 atanetain'a ateneeione eisssaaeia: s eRe 1022

route of, alteration or extension of ......... SR RRS agi e Screen a teks 1023

State Taxation:

reports for purpose Of ........ cc ccc ec cece eee r ee enees 1086-1095, 1113

statement for exemption ........... abate ied Seton ad uaa eD 1091
Stock: 5

classification, certificate authorizing .......... (sus Sestetaen 945

common, certificate of ............ oibehava acatose ee sh aio a a'9 Gans wie woe ea 929-933

demand for transfer Of ........cceccecccecacceseerccessenss ater Gia 933
1142 INDEX TO FORMS.

Stock (Continued): Page.
lost certificate, bond of indemnity ............ ccc e cece ee neees 1115
preferred, certificate of ............. iva ediere ie istcheds iisewsescws 944

examples Of ......... cc cee ceeee ee eeeeeees gestae . 998, 1098-1105
certificate authorizing classification ............eee sees ee eee 945
pooling’ agreements occs i csnes cs wee ees Hew a Kelas wee ae Hees 1117-1124
shares, number of, change of, certificate for...........0..000: vasa 948
subscription for .............. Bw sningadse: o aiiasdl gy hom. asdvodeunsdcaueisiy ein aes -. 9384

Stock-Book:

entries, form Of wack iia ecw ewe eae Ce Giob Gee ole Sele ae ww acd 924

Telegraph and Telephone Corporations:
certificate of incorporation ....... Piss MWR sewer Tee Vee ss 104F
extension of lines, certificate for ........ cece eee ee cece cece eee eees L044

Trade Name:
certificate of adoption of ......... Ua SAW ei wierwiat s eAiNaeeuele e's wieeet saa LIZ6:

Tramway Corporations:
certificate of incorporation ............0eeeeeee dais aod Daiene &-eIG IES 1024

Turnpike or Plank-Road Corporations:

certificate of incorporation ..............0.. ds Sa Slee 4S Reis aa UES 1048

extension of existence, certificate for....... tis srcpagiandiecavavsunneieeccaverews-¢: LOU!
Voluntary Dissolution: .

proceedings for .......... aHCRS Vie i caeet B84 5 BCR NRENT EES FREAD Baier te OD?
Voter:

oath, when challenged ..............0eeeeeee £63 4456 835 sw ae 888

sworn statement of, at special elections ....... Ueithws sama BOL.

Waiver of Notice:

permissible in certain cases, form for ......... Wee es OEE SAD 1005, 1097
reference to, in certificate ........... 0005 Gs tesarerteocke s caceseceroneiseses ce 1098
waiver and unanimous consent to reduce stock........ setevecsese D4

Water-works Corporations:
certificate of incorporation ....... ARO oleae a pieeliow 4 e464 ware conn L089!
permit of local authorities to be thereto annexed............. 1041

Voting Trust:
agreements fOr ....csesccccencccecarccnccccssccceccccccees LIIZ-1124
GENERAL INDEX.

Account: Page.
books of, to be kept ............ 0c. cece eee ieee nee acesas as. 123)

Accrued Rights:

amended certificate does not prejudice ........cececeeecnseeceeees 16
enforcement of, not effected by revision laws................. 58, 59

Acknowledgment:

authority of certain officers to take ..... se piieusaeses ade vests 752, 753
defective; how Cured, cs:i<<).66.sawe sis he a9 i OMG eRe Hes Heme LAS 6
_ definition of term .....esecceeeececeeeees 643 Meee etsy owes esa Sane 752
Actions:
attempt to COMMENCE ... ec siseceecce cere eeeee crisinieeeecedeess 648
SUMMONS, ETVICE. OF oi sve sc dogodiaced.¥ S.huane dd suapade Have Avenel dG have Byer nieces 648
collusively brought, stay in ....... ccc cece eee cee cece ee eee eeee 46
corporation, against, complaint in ................. gi sir eis Wares 658
corporate existence, proof of, when unnecessary..............60.. 658
evidence, admission of stockholder................-.-.-0 eee 657
books, presumptive evidence in.............eeee eee e ee ees 657
misnomer, when waived ....... 0.0... ee eee cece ee teenies 658
Mote, ACtION UPON ... cece eee cece eee teeter ete eeenees 659
preference of CAUSES ©... 6. cect cence ene e eee tens 656
foreign corporations, when maintainable by................... 25, 659
against, service of process...... Fie oe Bk ini Gs oae e aligpetne Sadpenaeed. as 32-34
designation by, of person to receive process ..... Bisincd ranensciaad 32-34
judgment against, how enforceable ........... 0 :cee ee ee cece 656
maintainable against, when to be....... 6.06. c cess cence eee - 660
process, person tO SEYVE ...... eee ee ec ee eee eens abeaebeds 32-34
requirements to be complied with ..........0. ccc eee eee e eee 32-34
pending not affected by amended certificate...........-.. eee ee ueee 16
effect of repeals UPON ........ cece cece eee eee ee tenn eens 58
receivers, misconduct Of ....... cc cece cece ee eee eee e ene e etre eens 96
stock book presumptive evidence ......... 6c cees ee ee cence eens 123

Acquisition of Property:

domestic corporations, acquiring in other States.................. 24

foreign countries, acquiring in.......... 0. cece eee 24

foreign corporations, may acquire in this state...............0000. 36

judicial sales, may purchase at .............005 Ce ree 37
Administrator:

liability, when subject to . LQ een ene enn tees 172

Agreement for Voting Stock:
authorized for period of five yearS......eccssececeeecceveneeenees 38
1144 GENERAL INDEX.

Alteration of Business:
certificate of; to be filed sacs esiccuss caress ssa, s seeus adareee snows’
form for .......... aia <00.relahdsai%e: 6m aisteiea,6"eiaveiese*ei8 6 418 sSW sw: 6. SRiaieCe Bisa
proceedings for .......... ed Wei SRS IIR Ae Hower eleipeet ae seus Cerees ss

Alteration or Repeal of Charter:

discretion of legislature ......... Seieeee wee aers cece rs ceersees
Amended Certificates:
accrued rights not prejudiced by ...........cececnceeeeeeereeees
defects cured by .........c sce ee ween cence eadahanne eee Bay Rsebce osecaneyatand
effect Of gaiwecrulmseben gees. edueu esd es deh oo Meno sede secant
‘fees payable in advance ...........- siratieesies 4 ireeevane es seeeees
filing and recording ............ cece ccc cece eennees So earewet
Annual Election (see also Elections). ............cceeeeeeeen eee ince
Annual Report:
contents of ........ er jaieies eyavavertvaubidias aasasiauaidiost sas aibiesa, oe: Sialerantuat eacay onic
false report, making of, a misdemeanor .................ee0 eee
filing Of 2225 scosiseiaus Stice «sisi shes Sh oni sec tale
form for ............ a Ba aan Sakae AoA DARI book eed Aap als
liability for not filing, after request so to do................ 128,
officer must file within ten days after request so to do............ -
verification nat required .........seeeee cere cneseecneeeeresecenes
Assets:
statement of, stockholders may require......... uatere-sravawt sveroueae «a
Assignments:
preferential, forbidden .......... ccc ces ccc cee er ence tenner erences
transfers in contemplation of, Void ..........ceeeeaceeecaes dediaa es
Attachments:
bonds and notes of @ Corporation... ..ccsssesseeeseeceaceeeeetees
causes for granting .............65+ oes aeleys (eae cemented
foreign corporations, when granted against..........e.ceeeeeeees
judgment, how enforced ..........-..+... aliitesalia. o's, Oude; B aSazelere Weve
shares of stock in a corporation ............ 000s eee iaieesgwne
certificate by the corporation ............+. $35 MEE PGES wals
refusal to give information ..........cccceseeeeeereeees
unpaid subscriptions due foreign corporations............... onelas a
Attorney-General:
application by, for removal of receiver ......... ses A Seale ee
directors, actions against .........-....- kichdue We Reel woes cole oveeGe a 58
dissolution of corporation ........... cece cece eeeneeaee 703, 710,
officer of corporation, removal of, action for.............ceeeeeeee
receivers, reports DY .......ceeeeeseeren cence syaibieis vic.gra's seer eeee

unlawful exercise of corporate franchises, action for........+++00

Banking Powers: ‘
granted only to corporations under the banking laws.............

Page.

131
926
131

61-

16
16
16.
7
7

107

128
624
128
924
129
128
129

169

158
158

655
652
652
656
655:
655
656.
654

726
700
714
716
723
661

37
GENERAL INDEX. , 1145:

Page.
Board of Railroad Commissioners (see Railroad Commissioners)... 446
Bonds:
AUtHOLItY [OP ISSUING: oes caelies sae SAE MGs eae ad eee Rees ORY 81
convertible into stock, when ........ sae dew SES BGS Ses eee wee we 81
consideration for issue for ....... 0... cece eect teen eee eet nes 148
defects, when cured ....... aa Gis sakeas eGuide ees Rand tee en eeee 103
forms for .............00- ia Sax sphege savau bandas ackge Supant suetenn tna Coates cone 910-912
guaranty of, by another corporation ..............cceeeee ee eeees 136
forms for ..... Bi Rik ROA ra, Eoin c dCs cued eal a Melee hain 1125
Street. TAMFORdS 2.4 vats. 2 dwaele cesta die eadegie.d slaw na aed 418, 419
issue of, for money, labor or property.......... cece cee ee eeees 148
mortgage, to SCCUTE ... 6... cece ccc eet een eet ene eneeee 81
non-negotiable, may be made ............0.0eeeee Siak baste wusracasieaiols 495
railroads, issue of bonds by ............. ee eevee dus euueiaccsen 296
reorganized corporation may issue ..........s+eeeeeeeeeeees seece 08
Books:
account; to. be-kept) so. secascnie ss tee es Ree Saw eo Haeee cowed 123
stock book to bé kept) c<< ac scveravnaswess es onnage ce wblene we denies as 128
evidence, presumptive to be taken aS .........--. ese e eee eees 123
extracts may be made from.........  ubsuloig eaten Aenea an oe 125
penalty for refusing to allow ........-...--.eeeeeeeeeee 123
fraudulent, entries IN. oy ecg ie isnieniea wed eee ceermnan eee has 624
inspection of, to be permitted .......... 00. eee e eee eee 123
penalty in case of refusal ............ cece eee eee eee ees 123
transfers of stock to be entered in .......... see cece ec eeeeeee 123
regulation CONCEPNING 1.0... e eee cee ce cee eee e eee ees 38
transfer agent of foreign corporation to exhibit............... 170
Borrowing Money: ;
AUTHOTIZED. 2.0. s cc dder crewed en dele eels Os be eleinin dS Rm Ra Nea eee eee 81
mortgage, AS SCCUTILY ©... .. ee eee eee cece eee tect ete e eee nnes 81
Bridge Corporations:
certificate of incorporation ......... cece cece ence rete eee ere tenes 252,
contents Of 2.0... cece eee e eee etre teenies vdiehiact BHvgovak Hee 252, 253
filing and recording Of ........c cece ee cece ence ner ee ne eencees 7
fees and tax upon ....... ee ee eC ee ee ee 1048
OVI: LOK: saree eee ras chet G a.c ce atalvoedan: & Seaysiie aus Se beaten we aA AM aeatue ete Nsag 1046
completion of bridge, certificate of..........-. 0... e eee eee ee aes 257
construction of bridge ....... 0. cece cece ce cee e eee e eee rete teenies 257
crossing of navigable stream ............ 0... essere eee e eee 277, 278
dissolution ........ Chia de ee ayevaaie ya aipialey abs Habla a Cie iene Bae Saat 267
extension of corporate existence .............--- ee esse eee eee eee 269
FOP POP ci cn dccre diss 6356s) WERRES LER E ete Bae ey ek A eas 1050
Jands, how procured ........ ces eee eee e eee e eee reece eee eenees 254
application to board of supervisors ........... sees cece sence 254

location of bridge .....s.ceceseeee rte e rece rere tenet e tet e ences 277
1146 GENERAL INDEX.

Bridge Corporations (Continued): Page.
penalty for fast driving ....... galsfe dene iiciaielelwis Ba cine'seee weeawcae ee; 208
running gate ............... eee MSdia a spoon’ ¢ Seid cebew eaten 260
purchase of bridge by county ............4- weaeat ose gninesiels iameted . 278
railway, operation by, in certain cases .........--:eee eee eee eens 277
TALES OR TOLL cece eicia wyodnasein adh maine Hi aimeaie ee ea ake Pace nee ss see 258
change of, by board of supervisors ............eeeeeeeeee 277, 278
exemptions ........ cece eee cee cree Gah TeeE Ree RES 258, 259
PON -SAteS oc ccracoieccs ction tesa OMe ais @4W eal orate dele aia deena aaa . 258
location and change of ........eseeeceeeeeees da eee eee ts 260
penalty for running ........ 0... cece eee eee cece een n en eeee 260
tollegatherers: esis siesiais ea cece acieinaiewies J Siw eveianie Seayauelele Getan led. au 259
unsafe toll-bridge ................. ie arog aa Awe nats oliace Sopigrerte- gg eae 276
Business:
extension Of 2 s.iassaciveaw esa vee ceed ears SEG Tes eae Re bie Gas 131
fori £00. < ccansesdaenhatiee (igs aekaaeok eae ee iad aR ees 926
location of, change of ......... Se eC ree 180
taxable, at principal place of .......... arnieraraanaiets au vee ys WaGRS s 782
Business Corporations:
additional powers . . .....ccccccceccccccsccccnscves $48 Barsiaiats so. 188
CA PItAall SOCK sy. o.s¢ sicacses snasseg vce h.g- 8-6 wa we dveia owigrenadieie sho gs eereredn ReaD SF 186
payment of one-half of . 2.1... ccc ec e ee ceee ee eee neta 196
certificate of, form fOF 6 csseeceecee nt eseesdewesaeeeeres 1001
SHALES: Of as begs wate hace sean eh ee a ea Hes es aah ae 187
certificate for formation of, contents ............. 0. cee ence enone 184
certificate of incorporation, filing, fees ............ cc cece eee eee 189
filing and recording . .........:c0ece cece cece eeee eee eeeeer ens 7
TOFS: TOR ..c-324 Gaede 4a shee Lee ee vege wae as 950, 985-998
classified as stock corporations .......... ccc csc ee eee e nee ee nee 3
commencement of business, restriction upon ................000- 194
consolidation, proceedings for . ......... 6c cece eee eens 199-202
certificate of; to be filed .scsscees camer yctamae oy ews ees beers 5 201
FOTDE. LOT 25, i ccea wenden asin YS so ea we GreNOauaels Eee ees Kea A 1005
creditors; Tights (Of 6. s.04 ssewwedids se cave serrate wees ean 203
POWERS. Of 4. << 20 5s ya enemas $2 eee euaieerder een tans see 202
remedy of objecting stockholder ...............eeeeeeees 201, 202
property, ftranster Of « csaneas.ore naa wees denies wee ew au aad 202
Supreme Court, powers respecting ............... cee ee eens 201
Corporate NAME . . .. ee cece cere eee e enter cette tees eet enenee 185
MiITECbOLS:s. bk Seng ed sade wemmiwwae.c abe idaouehes Wats, BUnaCNS oernearea tae are 187
number’ OF 6. 5 seis senses es esicgiaagtaus tote: base ae ninemele BPP 2 187
GUTAtION <2: Xa she eee a Ne et Sees eee oa sede aed 187
extension of business, proceedings for ................ ee eeeeeeuee 131
certificate to be filed: icc ccces seisiecaus te cee erste gene eeses sae 131
form fOr « Gasiosins Gravee se Qiong oor eee dnaek a deeas 926
fees and organization tax .........ce cece ence cece cece ee ee neee 189
filing and Teeording «. ii4.s cei dineae ose e ee re anauoeeseeee aad wees 189

FOYMAtION, Of. a css 0e ce etewm Yee rene Waew 44. AES eee eine’ dere ours 184
GENERAL INDEX. 1147

Business Corporations (Continued): Page.
full liability companies, formation of ...........ceeeeeceeecteree 197
fOrnt AOM 2.05 <5 eons he cadets nite Paadede Ween ee eee Maecenas 998
liability of stockholders in . ..............cceceeceaeeeee 197, 198
limited liability companies may become ..........-...2---00 197
certificate to be filed . 2.0... .. cece cece eee eee ences 197
form £08 6 6s ss cvsieeeddnees ed neliawaani ee casaueee es 1003
general corporation law, provisions of, applicable .............. 2, 183
informalities, correction Of 2 ...... ccc cece cece cette eeeeetenees 189
incorporators, qualifications Of /...... 0... cece cece cece eee eens 185
POD) OCT 55.952 oo ab 5.2 dave cteieense aa have S)gMee ed Meira s Galena OmmNaes 185
forms Of Clauses: iciisetudice saan Adaeuyige s? ox eeciedlamerne sy 952-985
payment of one-half capital stock ............. cece eee eee ee eee 196
form, for certificate of ............... Be Std tat atittge ea Geary 1001
principal office as ¢svcdasaGsvecessembaeedevnyid nawwee ed saehaeeas 187
PI OMMOCEES: sss; Fey weiss seseassna tier no vore eissdiapdegnatec big dae eaves Scbusionereleceae wore 189-191
real estate companies, condemnation ............. cee cece eee eee 207
TOOTPANIZATION vs, j gdew eds ceeds Qadineeed cee iasd waMeeEeeeeaeses 195
POP GT ON 2 ois whine eta eS abenee easier eA -e ace Minna eie see 999
restriction upon commencement ............. eee eee eee ee eee 194
certificate unnecessary (note) ....... cece eee eee eee e teens 194
steam Corporations . 2... .. kee cece cece eee ee tee ence ener eeeee 204
entry by agent to cut off steam ............ cece cece eee 205
meters, examination Of . ....... eee cee ccc cece eee nee enna 205
stockholders, liability of ©1000... cece cee terete eee eens 188
stock corporation law, provisions of, applicable.............. 80, 183
subscriptions to stock . ...... ccc ccc e eee a ences sence sense ee eens 191
Water COMpAaNles) % <)-s scien ideas Sse. en Gate es eee eee AS 206
‘formation of certain © 0... cece cece eee ee een e ens 206
Business Corporation Act of 1875, Chapter 611:
effect: of Tepeal) os. is..awedwaeiees se2 cy oe'sulanade wu sleds ee Manoel 5 58
Tepeall Of5 ws Faas aes os whee Vs HEA a en se “a eeeaaa 67
Business Corporations Law (see also Business Corporations):
business, certain kinds not authorized under .................... 184
general corporation law, provisions of, applicable ............. 2, 183
stock corporation law, provisions of, applicable ............... 80, 183
By-Laws:
directors, when to be made by ........... cee cece c eee eee eeeeee 47
election of time, and place, fixing of ............. ccc cece eens 107
duties of officers prescribed im ........ 0. ccc cece cee eee eee nee ees 105
form for. ..... wisthsSiainle gu uibeat alas els a atta aus Selena’ tei le ae ceeGamie ees 876
inspectors of election, regulating appointment of ...............0.. 122
neglect of directors to adopt, for annual election................. ill
publication in certain cases ......... 6c. cece eect eee eee ens 21
quorum at stockholders’ meetings, prescribing .................... 21
directors, at meetings Of ......... cece cece sec e eee e cee e ee eens 47
stockholders, power to make .......ccsccsecsccever see enee ne ereee 21
transfers of stock, regulating ........cccsc ccc ceeeeeeeeeeeene 21, 135
1148 GENERAL INDEX.

Canals: Page.
railroads near, supervision of...........---+++- Se eeewh see ws maser 292

Capital Stock (see also Stock):

classification of, as common and preferred ........... a vigiaigyyaeeherins 157
forms: AOP ssasdass nse dieetGs.2 Henshaies cake Medien ETRE 1098-1105
division of, as dividends, prohibited ................ see eee eee rene lll
imcrease or reduction .............c ee eee eee e eee rere ence enens 152-156
Forms: FOP jo ag esas poesaGe cgded  oeblanqmunand sa Se gas a4 934-938.
meeting’ fOr 6 visis cesses deiwasaeinn ees seer seteedas Dees eevee 155.
NOLICE OF. case danacdcuiind EVES ORDA GE SESSA Sew we Raw ee Heys 154

LOTMA AOR io deka cteaiers eons ausse. erarn sienesd eel eo 4 aes Aes 937

liabilities of holder of increase ............ cee e cece ee ene eeeee 152
payment of, in money, property or labor ............00-. ee eee e eee 148
judgment of directors, as to value of property, conclusive..... 148
preferred, exchange of, for common ...........6.-eeee eee e eee 157
relief act for certain corporation ...........:: cece cece eee e eens 600
subscriptions to, payment Of ........... ccc e cece cent een nee nee 150
forfeiture for non-payment ...........cccee eee eee ee eee teens 150
unlawful dividends upon .......... 0. cece cece ence n nee nee nnee lll
withdrawal of, by stockholders .................06- aaaggre acide lit

Certificate of Incorporation:

amended certificate to correct informality ...........ceeeeeeeeeee 16°
articles of association, term applies to .............. Se 4
bridge corporations .............. 5 SONG HE easvaghcslomeees 252
LOR POF oo. dice sesisiniiienaawe ates GA Geet Ve seeesieeeN aT FEES Te 1046
business corporations, incorporation ........ le Soe nachae bcomaianberssnGe tos 184
object: clauses .. wigscisiicewicine sae area ieeies Baten ateme Ate oe elals 952-985.
forms: f6F wo cassysaeeiGeewse never s vc ses Ganes ee pamenemes 950, 985
certified copy, application of term ............05.04- a aaieidrgwant ey 4
filing of, may be used in county clerk’s office ...............- 7
citizens of the United States, two-thirds who execute, must be.... 6
cumulative voting, may provide for ........c cece eee cece ee ennees 38
definition Of . 6.6... . cece cette eens sAeehcs ye eat a se 4
duplicate original, use of, for filing .............ceeeeeeees Ps vaeay anon 7
English language must be used in .......... eee eee cece ee ee eens 7
electric light corporations ...............seeee eee eeeeeeeenes eves 229
HOPI. “LOK a> sospisi dco edhe a aeacangeancia aaa Sees B55 a tiocavevesasciadeed soaSekecoweasase 1038
ferry corporations . 2... ... cece cece eee e eens veveeee 209, 210
form: fOr ¢ sssnisiinese ne neeeds Siesta sss as ss Ciweebee-a< coe 1010
filing and recording . ........... ccc cee tee eee eee atagatind sai 7
. fees and organization tax, statutes rapulating Ba Naty ca petlennlt 73-79
gas-light corporations. 62.0055 scsdeauddien ceed inweeee reece sages 220
form OP & acdsiae ve teas saeniee' teas. eesdae sb 25 Aleteiees iduke's 1038
lost certificate, how supplied ............. 0. cece cece eee ee eneee Wi
navigation corporations . ......... cece ee cece ee een eee ene e nes oe. 205

form for . ....... Se, A AadeapWteneeange Bos Bays eo esha hs er ree 1018
GENERAL INDEX. 1149.
Certificate of Incorporation (Continued): Page..
pipe-line corporations . .............cecceeeeeececes Hejenie els vee 221
form fOF y wateea devas aa eeweae s¥ 64 VESE TT aoe a eHRREE TRE BET 1026
plank-road corporations . 1.1.0.0... . ce eeeeeeeee cence eteestecees 252
preferred stock, certificate may provide for ..............6.+0006- 157
qualifications of incorporators ........... cece eee nee eee e ees 6
railroad corporations . ........ Sia Guam Seana ane enon anette 6
real estate corporations ............ ccc cece eee ee cttw teen nee 207
stage-coach corporations . .......... 6c ccc cece eect eee 217
FOPIN AON ooo. fi: ecceacieannigieuaig bea 4 'oup Salata ase a lbdsue oh accunenele wiacaserenasets 1022
steam Corporations . ..... cece ccc ccc cece nee n ee ee nn eeees 204
tax for the privilege of organization ............5 ccs cece seen eee 73
payment of, how to be made ...........0cccccecec eee eeeueees 79
table showing amounts payable ..............eceeeeeeeeeeeeee 75
telegraph and telephone corporations ........... cis cena ane camn 245
FOG TOR 3 3s jsnc se ascceoe eeraurmseneasid. coh 2088 Da sada einee Pars we etergyon mas eto 1043
tramway corporations © 20... .. ccc cece cee e eee n ence essence 219
form) fOr.) ccs xweead iwece ss POEM ES ease eenneetand oa eeu 1024
turnpike and plank-road sorpnee tiene Searels S ancbansanivge worn gama ege el 252
POPMS POR: iiss che cccesGianeeinpawwa 09 view sa eine telseetas See@iete aon laws 1048
water-works corporations .......... cee cece cece e cent eee es eens 239
form f0f wicesciestheadiet ea teuaas Poa ds teed ane a sete ae 1039
WAtET COMPANIES 6 ccc cued dds cui elem tieions een Weealsne dei eiaie aleveipis die aa 206
Certificate of Stock (see also Stock):
consideration for issue Of .......... cece cece cece een e een eneenaee 148
may be issued for SHE, labor done or property...........04+ 148
forms: FOr. a gelediga lek oe Seo a engEeead Sone w aw meee 929-933, 944, 1115
issue of, regulated . ........ ccc cece eee c nets ene nenene cera naene 135
lost: certificate, how replaced shia soft shesetesdckco? 0.55 oder esapwea te tensesa se OE so siete 167
partly PAG) SLOCK src ais sun leuhids ss Wea adaeiee mete sien apemine Semmes sa 182
certificate, form! Of i: ;esiceneeens cass uieecveuee cee ves waonees 1115
transfer of certificate 0.00.0... cece cece eee eee e ence ee eeenenees 135
form of demand for ..............50. seigvaudie iyerameewieie’e/e Slwnmiei este 933
Certificate of Payment of Capital Stock:
business corporation, half payment ...........cceeceesecreeencees 196
ferry corporation, half payment ....... Alecds 6 ¥ wearer ne were ees b's Stes 212
navigation corporation, full payment ...........s.eeeeereeceeeess 216
Challenges:
elections, right of, at ...........+644- sadist oe afkie Bacaaa ai Seset osese beeen 42
oath to be taken ...... cece cece ener cet eneeecrerenareeees 42
form OF a ag esses as eyaceds 64 5 849 4 8 MeAIB S o9'e-es siameeee Nee 6 a8 888
inspectors may admimister ..........--. sess e eee cece ee eeeee 42
Change of Business (see Business) ........-.e-eeeeeeereeeeerecee 131
Change of Name (see Corporate Name) ........ wosramaame/e te eiecesy | AQ
Change of Number of Directors (see Directors) ...........00.000: 110

Change of Number of Shares. (see Shares)....... A astcrdraleliche rea take tats 177
1150 GENERAL INDEX.

Citizens of United States: Page.

incorporators, two-thirds of, must be............eeee cece cence 6
qualifications generally .............+. ater e sae Ce salsa’ des 6

exceptions in certain CAaS€S.....ccseeeeeeee ee eceeeeeeeee 6
Classification:
directors, terms of....... Seite aaa ai estas Udeteewissaexaewens, LOT
stock, common and preferred...... 5s lalahatiareiesefaienstater ots scearhanueromeiie LOL:
Classification of Corporations: .
stock corporations . ......ceec eee e cece e en eeee sisiie0e a0 iwbsbibiane ie 3
business corporations . . ...... cece eee ences ieee os HESS RR 3
monied corporations .. ......sseeeeees dsliialaties sareing Secaiareee 3
transportation corporations .. ........ cent eee eeeeneenessees 3

Combinations:
prohibitions under State laws............ (4s sieeesewashs- S7-LOL,. 592
federal or Sherman act.......-:eeeeeeeee ce eee@iveee dea 20. 108
Commerce and Labor, Department of:
act of Congress establishing........... csaleaesiteaniee ese 002008:

Common Carriers (see also Railroads):
passengers, discrimination, 1 misdemeanor..... Bee ae soeavves 613
ejectment of, use of force permitted........... se Pateeeny eR « 610
persons addicted to intoxication, employment of, prohibited.... 282
Condemnation of Real Property:
abandonment of proceedings....csceccccccscererseresssssssevees 683

act, Short title......c.ccsseccecceccccreceeenes oaraccccesecceccss G66
additional provisions applicable............ee..0 seeaw es es ctien, (073
answer ‘to petition. 6s ccsiiierssresievoressieeninornes itawacvecee “O72
verification Of . 1 ...ceeeeceeeeene id ED Teorerancdeleminecreree eee OLS
appeal from fimal order...........cccccccceeeceecnceeees seceeees 684
New appraisal 5. s. sicivccoessses sees sedsoweuswrven ees seeeeees 686
appearance of parties...... wadigidie SC Sadie hb maeeueewun ye eae saute: | Ole
commissioners to ascertain compensatioD.......cs.seeeesteeeeee 674
compensation of ....... SOrH Eee Ceaeee REN ees eee OTS
duties of 2. ....eee eee A LEWES Heron ade wieeawie eremenesedeaains SOLD

oath to be taken by...... ‘aavsacanonsieenauietde ss aapmaareacee” (OTS
report by .......-... Saeeroeryeas chee cenccscccsscesnccessceses 675
Confirmation Of .. Lc. cece cece cece cece cweseersceccesvesee 878
setting aside report......ccsccccccccccccccccsceccccceses 678
conflicting acts, repeal Of........ccccceeecesccccccccctccesensees 690
conflicting claimants to compensaticH...cccccccccncsssercsssess 687
definitions ... ......... Cor rcccccercerscensscsesasecesccescvccee O66
final order, entry of...... §: Wid b:B Nee De wig bid eiebs oalsiebianeemiewees OCU, “O81,
appeal from: a swaiiev's'ss's snosiaaenwinied's.e sadarenslaewiew 6940's 004; 7 686
NEW APPTAisal . . os. cceccserccvcrccccccerescsscccsessees 686
judgment to be docketed........ccceccccccccccccccescecsrvecces O74
judgment, enforcement Of......ccccccccecccccccccccccscscseesses 682
WYit Of ASSISTANCE... ..ccceescecnaccaccrevccccesceresscssees O82
Mew appraisal . . ....cccscccecccccccsccccscccsccsscsccessesseess 886
GENERAL INDEX. 1151

Condemnation of Real Property (Continued): Page.
Offer LO. PUChASE 60:6 svainsweg acs Peasy eweeoe ceveees agra wel Gavdes 680
acceptance of Offer ...... cc. ccc eee eee eee ete eeeees we... 680
order, ‘fitial entity Ob sicis coerce wie eek edenguae eee 680, 681
orders, necessary to effect object of act, power to. grant .......... 690
OWNER, “GENTE! <<, cost ei imar wherein anes ous MOUaRoNs Hea eaagG Mania 666
compensation to, how ascertained .............. 060 c cence eee 674
payment of, order for 1.0.0... . 0c ccc cece cee eee eens 678
deposit of money for ................. bSetdartca Wuacipcnasaa 678
pendency of proceedings, notice of ............. 0c cece eee eee 689
petition to coyrt for .......... eee eee cece eee eeteneaeaes 668
notice of presentation ............ cece cece cee ee eee nee 670
BLVICe.Ofne adhere yen en game aaae ee hess aaa Se na 670, 671
verification Of . scaciviscapssasinwsasdase sags wee eanumadese’s 672
possession of property by plaintiff, how continued ............... 685
immediate possession after answer ..........0. ccs eece race eee 689
railroads may acquire lands by ........... io Ee 8 ARS 3 he Seth gk 290, 302
notice to occupantS ......... 6c cece cee eee ee tee eee 299
trial: Of 1ssties : wascicivaawaaaws tips sae ae amid eles elke d bed uae aes doe 673:
referee may be appointed ............ 0c cee e cece ee eee eres 673
WHE: OF ASSIREANCE: iciic ea sis wasis sateen hehe eo eS YE SOE ST Ea 682
Conflicting Corporate Laws:
CM CCE OF. cise goig ic eis gears tei vik Re aaiay drareecinse ss Ewha WAMRI TA anne BE 57
general corporation law yields to ........... 00. e eee ener eeeeee 57
stock corporation law yields to ............ cee eee eee eee ener eeee aT
Corporators (see Incorporators) .......... 26 ccc cece cee eens 6
Consolidation: 7
certificate of Secretary of State ......... cece cece e eee eee eee eee 591
business: corporations: .siccec cvs ceaeeuainacea gees cases ewe ereuans 199
FORM: LOM os be esd vias ace os.s Ma asda s wEieou aon yo dapadouies 1005
electric light corporations ............... 220 cece cece ere ence eee 232
gas-light corporations ............ 6c cece eee e ee erent e ene nees 232
railroad, corporations «23s savdeaae creer eae 64a eee seas 374-379
fOTWMS 160) Gia kee a eels Naan so ae Osa nudes aaseated 1053, 1056
telegraph and telephone corporations ................0c ce eseuuee 250
turnpike, plank-road and bridge corporations ..................44. 263
Constitutional Provisions:
corporations, creation Of ............ 6c cece cece eee eee eens 738
debts of, how secured ......... 0... e cece cece eee ce eee eens 738
definition: Of sissy is oP oe sesame ee os nd aeeeme ye sarees 739
municipal aid to corporations prohibited .....................40. 742
private bills prohibited ............. cece ccc cee cece teen eens 740
property for public use ...... Shr ag epee ee Sines wai s nee s 743
compensation for, required ...........:ecee cece eens eee eneee 743
amount, how determined ............ 0. cc cece cee eeeeeeee 744

public officers not to receive passes ........ cece cece cece ens ~. 745
1152, GENERAL INDEX.

Construction of Laws (see also Construction of Statutes): Page.
conflicting provisions, effect Of ..........cecce eens cee ee terete 57
general provisions . ........ cece cece eee e see eeeeeenns eideietie sees 59

Construction of Statutes:

application of act for ........ccccseee cee eee cece eeeeeeeeeeeneees 748
definitions and use of terms ............c eee eeeer en ceneeeene 748-759
acknowledge, acknowledgment ..........-..eeeceeseeeees 752-754
county clerk’s certificate 01.0.0... .. cee eee eee eee eee 754
AMGavIt % 4. sveocs shad canwan dean ey ese 55 ORNS Ee Hee Cee ees 751
APPOINt ©. Lecce ee cece te tee e eee e ee entree tenn ee eennees 755
board composed of one person .......... eee eee e eee e ects 755
bond, undertaking . 0.0... ... ccc e cee e ee eee eee een e ee nane 755
chattels: 2 (3222404 cheeiinse nin oie dek se eee e eee aS, 748
choose, elect, appoint ........... ccc cee eee ee ee eect ene eeenes 755
county clerk, register .............eeceeeeee rene scree Meee 736
day, mode of computing days ......-..---.see see eee een eens 758
LOGE 5. car 4 hiv a temvodsh wlapnla tuanegan sie bd wow im aud bande penicne Esse BRE MORES MN 755
POLO? a cision ieardteeei ence ete aaa Oe eae ree Mader e ean SaaS 750
following, last, preceding, next .........csceeeeeeeeeeeeeeeees 750
gender, number, tense ...........c ccc eee eee ce eee e weer eneee 749
hereafter, heretofore, NOW ....... 0. ccc cc eee cece eee eneeenes 750
holiday, half-holiday .......... cece eee ce cece eect e ee eneaees 756
JUd Ges ssrpsieteeweuiaa 2 Ue ke is Ges HAVE SEED 36 'ele Gite a's eens 749
liitiaeys “TdIOCy® we. sale ceoe oc5 8s AGAR Se IRS ORRES SOREN 749
meeting, quorum, powers of majority .............0ceeeeeeeee 755
MOND, 5. is/n5' 0s ogee says s Ra dare Deets oes Re E RAS ONS Sere eas 787
night ‘time: ; « yseceeeecees 4450 ta ass sesiaemwle acy eres eeerateles 758
notice, service of, upon body or board ........... eee cence ee 756
Oath, (SWEAR. disiaeue aed we acbitk nirelsciamia devia Na aaa ea dlaneeuni eee 751
PCTSON 25 ik Gide ee Oee Greaminciema ge eied ee a Ve ee Gale Lea S 749
personal property jas csicacecieees sv isess opdoeseererdeseaans 748
PLOPCIty. eis ike tates cones Sea ees eee se ears 748
QUOT UTI is. co. ccs onsietitin aliens ea a cana. otyeeaisian icoiaundere seas. abire padeeeaneee 755
Teal property . .... cece ccc eect cece e tee een e annette ne ceees 748
repealing statutes, limiting effect of .............0:eceeceeeee 759
repeal and re-enactment, effect of ............ ccc ce eee n een e eee 760
TEVISION; -EMECE Of scrdicinsaagsde ss ciawmowagun gts oa aa perewel 760
Beal: is Quay sees tess dees iseadid bo Slee Sicha ew ea EON ae aS 750, 751
BIONATUTE a5 genera sat dehogemm teas pote TA oNene ohas SAEAE eS 750
State, territory: ete seca neueteew weeds sont deioelelnenas eha 756
standard. time oo. csewin esa se oeley cewek oes se a ease ase dees 6 758.
titles and head notes, alterations of ............... ey eaae aaa 761
VINA ES. 5 73 dass. tcichs, suas anaiaiais lors. 6 A ayanseh crn nsalctan Geka Mor alae wessia iets 756
WHItIDG? fshay 2 Vie siete ulna ew ews eRe Saoieuigees eis Gare 750
Veal 2-2 rere ier Sechae sa ahteeeee sets. cet dedecls eaneese sates 157

Corporate Existence:
Extension: Of: csccephasereesansa dames dase ois eAaeeahe S eeEe 55, 56
form for .. 893
GENERAL INDEX. 1153

Corporate Laws: Page.
application Of ..... cc ccceeee ccc ceeneceeeeeeeee Sava scecenese atassie Ceara eelt 57
conflicting, effect of ........ UT ESeK alae es aeehG Seka eens COM
construction Of 2 .scscscsesteeasssadieaeds cencae ves Sead eve ss sone = 5D
GOH MITION . i..5.siias ne singe aie Sila, etch vedo a, Sod aoe MaLDIOOce a ante! aslapese cee tenes 5.
titles of:

general corporation law, the ............. Tietdasimepeee teed st 2
banking law, the (not in this work).

business corporation law, the ...........5. aoawemmieer'e eavaldes 183
banking law, the (not in this work).

railroad law, the ..........cecseceeceueees Senta Seton hears 283
stock corporation law, the ........... {Mma oesaraws “80
transportation corporations law, the ....... SRE Re 209

Corporate Name:

change of, proceedings for ..............000+ Sid voisratere a cos tbvexeparenotonsie 12-15
forms for . ........ la nsareeasies aes b vereiaees cee ceseeccsrecees 867-869
similarity of, not permitted .............. Wis wenseiecses. LO

Corporate Powers (see also Powers):
grant of general powers ........+..eeeeeee oe tc cee eeeceecesceasnes 21

‘Courts (see Supreme Court).

Creditors:
accounting to, for prohibited transfer ......... secesecoeses 158, 159
preference of, prohibited .......... 0... cc cece cere eee eee eeee 158, 159
protection against unlawful property transfer ............... 158, 159
remedy of, for unauthorized dividends .......... irahble Gia sprsvavchacsrel wat 111
loans, if made to stockholders ................2006- epcieterietets Ns 114
report, if false one be made ...........seeeeeeecereeeterens 130
‘Criminal Proceeding’s Against Corporations:
conviction and penalty .......... cc cece eee eee eee er ee 641-645
examination of charge . .........ceeseeeeeeecneeees sgihane ele eater es 643
grand jury, examination by ............ ccc cece cece eee e cree e eee 643
indictment, plea of guilty, how put im ........... cece cece eee eee ee 642
punishment for offenses .............eeeeeeenee ene poets ss 609, 641
summons, form Of ceieiswesees coos solseenowi ns eo 3a 90 gas wae Fe sE 643.
SOT VACE OF a. acacasracsaysuieace foe soaiog 4 drotntnlannnarece eo beayeceye Pedee sens sare O43,

‘Cumulative Voting:

certificate of incorporation, may provide for ............ avorauatoteunariene 38
number of votes, regulated .......... ccc cece cree eee e tence 38
right of, in certain corporations, restored to ....... ees tks Bice Manis 38
Debts:

amount, limitation abolished ..............+.200- scavdise Wal aeaeauaranonets 113
contracting, power Of ..........cceeeeeeeen eens demieryaeserseccae (81
mortgage may be given as security ..........:eccee cece sence tees BL
stockholders, when liable for ...........ccece esse eee eeeennaaees 172

imitation: 3) a scucagawien Weer aa Toxaway a's Sistise’s 68a eta tasvveas L7G
unauthorized debts, liability of directors for, abolished ........... 113

73
1154 GENERAL INDEX.

Defective Certificate: Page.
amended certificate to cure .......+.- see te cece ereacececeesecceees 16
Definitions:
certificate of incorporation ..... walicerene cece cece ener seencecee 4
corporate law or laws ......-..eeeeeeeees ibidis's oa SPORES See ete 5
GITECLONS: 2 6. ease eee was Fees Peete OS eee 4
domestic corporation . ........cece eee cece ee eeneneee ee eeee one 4
LOTEIGH: COPPOTAUON 6. ciaceaien ss odes gemunigiane cose SUR ETROE TT TES 4
member of a Corporation ......... 6. cee eee c cece eect erence teens 4
moneyed COrporationS ........... cece eee cere een e ten eneeennene 4
municipal corporation . ... cc cee eee eee e ce ee et eect terete ences 4
non-stock Corporation . ........ ccc cece ene eee eet e etter ee eees 4
Office of a corporation ..............0eeee eens ee eecenece seeeeees 5
Principal, Off6e .s. sucess aise c dae eer R eee es seins d Se aeGeR BS 654 o 5
stock corporation . ........ccce ee ee cece ee eeee anes oe eee aeeeneee 4
Designation:
foreign corporation must make ........ccccseeeceeee cen eeeeeeee 25-34
forma: for’ sce. Genesee tee Seda se eidaks sa es oe... 881-886
process against, service Of ............cceecccceneeeeneeees 25-34
Destroyed Certificate of Incorporation:
certified copy, filing of, to supply .......... cece ee cee cece cece eens 17
Destroyed Certificate of Stock:
replacing, procedure .........seeescecsccecens 8 aie ete Satovarslerewis 158, 159
Directors:
acts of majority binding ...........ccssecaee eee ec eeoceces auavecelee 47
quorum, majority of, powers Of ........ccccce cee ceeeeeer eres 61
actions collusively brought by, stayed ..........ceecee cere eens 46.
annual election of, neglect to adopt by-laws ............s:seeeeee lll
authority of, on dissolution ............ ccc cece reece eet e enone 51
board of, manages affairs of corporation ..:..........ceesee evens 47
representation in, by other corporations ................20000- 136-
by-laws, when to be made by ............ cece eee reece eee e nee 47
neglect to adopt for annual election, effect of ............0.0000 111
collusion. “by, sTeMedy -scccwiondacancae ves ga peceneae sees vale eee e Ory 46.
definition -s) : cess eee d ved sou aaa GuGieds Heewun 6 Hes aR see eee Se 4
dissolution, trustees, in case Of .......... cc cece cece eee e eee eeeee 51
alternative provisions . .......... 00. cece cee eee eee ee neon 51
election. Of oo gid Rew ba eGies 19698404 eee Easels aisles eaaaiee’ aa 107
books, evidence at cicccscseaeccssaewe de aseeeesciessennee 38, 39
by-laws, to designate day ..........cceeceeceecenseceees 42, 107
by-law regulating, publication of, if adopted by directors....... 21
certificate of inspectors, filing of ............ cc cee cece ee ceee 122
Challenge OF VOter s.s:cc ie tasatacetse grees vis ibigieie lg elalely susie e 6aie - 42
oath may be required ............ cece ee eee ete ee eees 42
ANG; OF scsccin don Gbiles s mane aly keead ook Rekws SeeS 42°
fOrM; FOF sssnw ixvsseeure sop eee es oa RD TEER ET Abe 42
proxy, form of oath ......... cece cee cence cece eeeeeeees 42
inspectors may administer ...............ecceeeeeae 42.
GENERAL INDEX. 1155

Directors (Continued):

election of (Continued) : Page.
eumulative voting at, how provided for........ceeeeccesecers 38
existing corporations, right restored to ........eseseeeees 38

court may order new election ........ccecee ccc cece ereeeeees 44
date, by-laws may fix ......... cece eee eee cee eeeeeees 42, 107
form of petition for new election ..........cceeeeeeseeeetneee 891
grievance at, redress by cCOUrL ....... cc eee eee ee cece tenes 44
inspectors, appointment Of ......... cece cece tence cece eeneee 122
oaths, may administer .......ccce ccc ce ee cece ener eeees 42

forms Of O8tD, ovis s cscs ce ewe ee see es eawe ee oe 888, 889

oath to be taken by .....cc cece cece cece er reece cceneeee iapiederes 122
TEPOre: OF ga Souci yi wees Sesiviedes Pov See Ve eg eNee sa Mead: 122
married women may vote at ....... ccc cece cece eee cence eee eees 590
misconduct at, a misdemeanor ... cc cece eee ee cere cece cece ences 625
neglect to choose at, effect ........ccece cece cece eee teeeereeeene 42
dissolution not effected by .........cceceeceeeeceeceeees Beers 42
special election to be called ......... 20 cece eee ere ene e eens 43
by-laws may be adopted at .........ccecececee ce ceevens 43

LOPM 100 siciee is Galas tees aeee sade t ae DTA O84 876

call for, members may issue ............ cece cece cence 43

form for ..............- pial avant. « suatenargceid-e sigtore sic ecitiere 890

publication: Of; ac..cs2c6eecontes cesses haa se 43

BET VICE OL: es isiaie iso: sraitesene aig 5 wioialecd ae. Giada, tack Wheltes a ana 43

certificate of result .........ccse ccs eccerecneenrnccsoee 44

county clerk’s office, filed in ........... cc cece eevee 44

HOPI OK erases his na seheitee sed ch weeds e/ay as mas BISA Sale ace gens 922

special election to be held ......... dpate 4G atlnal e oo acallare ue cetalmila tay ots 43
inspectors and directors, election Of ..........sceeeeeees 43

notice of, to be given ....... 2. ccc cee cece e ete ec ene enes 43

forms. fO% acess see vis een eees ee aaws dade gees aueD 890

office of corporation to be held at ............ eee eee eee 43
elsewhere, if access denied .............cseeee eves 43

procedure at) ¢isssexsasaav ss vee ven dea es bree be eee ee nied 43

QUOTUM At Loe cece rece ee eee e eee eee ne erent ere eanees 43

notice of, publication ........ 0... cece cece cece eee nen e eters 107
form. for ...4.. 08s avecwes dee ea ecenatattnen euiha Pa atunmeas aaa 921
number of directors, change Of ........... cee eee cere eect eeeeees 110
number of votes regulated ........ 0... cece eect e eee e ec eennee 38
one-fourth, at least, to be chosen annually ..........c.eececeeeeee 107,
proxy, voting by, not authorized.... 1.0... . ee eee e eee eee eee 48
filing of" dees s ses wesc ryeee ss yea seed Ss Samael aeekee sewS 4)
FOVMIS. LOR™ sh a.scave, 4 aoueys. ase Savin ak anapse: 95 Woosh a. wonchtene! Sly Gunna aaud soil e 887-889
place of holding, by-laws to fix ........ cece eect cece eee eee eeee 107
right to vote at, how determined ........-... see seeeeeees 38, 39
pledgor of stock qualified ...........csecereeseseenees 38, 39

time of, by-laws to fix 20... .. ce ceeee eee eee e tent e ene reece 107
voter at, qualifications .......... 0. cece cece ee eee eees 38, 39

execution of instrument by .........-sceeeseeeee pela dveaphandiele 6 61
1156 GENERAL INDEX.

Directors (Continued): Page.
increase of number of ............ esse eee eeeeees Jes oweeeseewes 110
certificate of ........... Sesion wieiesausiviebessiauniate:s taiesie sea Res 110
fOTMS FOB) sesiha's io Vise Bee es ata oe Aes Ves das Se eau Bese 919-921
judgment as to value of property, conclusive .......... ae baa Siena 148
knowledge of affairs of corporation, presumed to have............. 626
liability of ........ Mba eles HhMs Os e PANE Oe danUseeeees Paes 111-114
bonds for over-issue of (repealed) ............. 0. cee e eee eee 113
debts, for unauthorized (repealed) ...........-. 0. eee eeee 113
dividends, for unauthorized ............cce cence ee eeeee lll, 623
loans to stockholders 1.0.0... 0... cece cece cnet eee ene nee 114
prohibited transfers of property .............00+ Sse AeS Gwe 158
majority, powers Of ........ cece cece eee et teen eens sieleeieGue sack 47, 61
acts of, are acts of board ............. cc ee eee eee eens 47, 61
managers, term applies to ......... cece ee eee seen ce ete e ee euneeee 4
meetings of: board 4sccsa scaniwees cees deo Ree so uaes ee see oe 47, 61
quorum, majority constitutes ............ 0... cece e eee ee 47, 61
majority of quorum may act ......... 0. eee eee eee 47, 61
misconduct of, penalty ......... cece cece ce cece cece tenet e eens 625
actions thereupon .......... 0. ccc cece cece e cence 700, 701
attorney-general may bring ..........ceseeee rete ee eeees 702
number, change of ...........5seeeeee fb eels Ge A eA Saeed 110
officers, appointment by ......... 0... cee 115
qualifications of ...........+..- Sed esac ar asauaupualoue.e Hereveveienees seeee 47, 107
residents of State, one at least must be.............. cece eaee 47
stockholders, when not required to be ...... 2s Desa shai aa 107
quorum, majority of board constitutes ...............ee ee eeee 47, 61
action by a majority of a quorum ........... cece ee aaa haea ais 61
removal by court, when authorized ............ ec ee cece e ee eeee 716
residents of State, at least one must be............ 0. ec eee eee 47
security, from officers, may require .....-...... eee ee eee eee eeeee 115
stockholders, when not required to be.........cceeeeesereeeeeeces 107
term, right to hold over ....... 6... cece cece cece eee eee ete e ees 42
clasification of terms of office .......... eee eee ee eee e ee ceeee 107
transfers of property to, when prohibited ............... eee eeeeee 158
transfers of stock, may refuse, When ..........00eee cece eeereeeee 115
trustees, when term applies to .......... 2. cece c ee eee eee eee 4
trustees on dissolution .......cccc cece cece eeseeeees Miwewwecae BL
‘vacancies; filling Of 5 iccscc sewns « daass ¥ ieee i obo es Kae See Ee awe 107
by-laws, to provide for ........... [anes Mase eRe -.. 107
Dissolution (see also Dissolution and Receivers):
directors, to act as trustees in certain cases ............. eee enone 51
alternative provisions ...........6. ee eeeeceee ce eeeeee sivteiien BL
authority of, on dissolution ............ ccc cece eee e ene ceeee 51
failure to elect, corporation not dissolved ................... 42
special election to be called .............-eeceeeeeuennes 43
liability of, in such, case .. ccs .es ves ces ce ened eee be ew eee ee 51
voluntary dissolution by consent of stockholders .......... «e- 178
GENZRAL INDEX. 1157

Dissolution and Receivers: Page.
attorney-general, notice tO ........ cece eee cece ete eee ee ne eeen 124
dissolution, causes for ........... sebadneteaee 692, 693, 704, 710, 711

APPLICAHOD FOF cased vance escdialea vera da wide s eie sree so Goes 692, 705
acts of corporation thereafter, void ........... 0.0.0. eae 718
action triable by jury .......... ccc ccc cece eee eee eee ee 711
form for petition ............ cece e een ences 1081
leave (Of COUBL .2 hearths ntc oes tet Gia ehh ee ete 711
place of making application ........... cc cess eee ce eeuee 724

assets in certain proceedings ........... 0... cece eee cence 709

attorney-general, when required to bring action .......... 710, 714

exceptions relative to certain corporations ................+6+- 713

final. order .siscesssedzes dees aaicinws + Hs MENTE SS Vea yes sow eS 699

injunction, when granted ........ aeanisuaus drs sore:eveanastehein ote te Oaaleuniatiis 705

judgment of dissolution ........ eA wee fai ube pee 709, 711
injunction, issue Of ......... ccc cece cece eee eee 712, 713

requisites in certain cases .........eecseeee ee eeeeees 715

order to SHOW CAUSE cc. .eeee shone oie er seme esinwene ateeas 695
form for .......... Je Ustad aear tes sas HeeR es bee es 1083

PATtIES tO: ACEION: & socio cs ccaleie: cevedaUne'e sales a1Weis vig bale ga Ale eee 708
creditors may be brought in .........ccec sence ee ceeeeeees 714

petition,: ‘contents; Of si. soca iaede Sa eine ese ea eens 693, 694
form for ....... Noise Be ete Dernsers eelaisd a teeter ole w Orakene SH 1081
presentation to COUrt 1.0... cece cect e ee eet eee 695

Order Of COUT os iiidsce es Cteatiins Fo65 caeGes aT Ee Os 695

CATING UPON. ais ssidlacce Gomes ais aed 6 sande oa GeteeLaes 697

publication of ..... Eieulne vaule Maaaing a Selo diedels ae 697

SERVICE: OL ee assays evaitg panes ap sveues vam asbracepaceona ce Peal os 697

schedule to be annexed ....... cc cece eee e ee ccc ec ee ee enee 693

POPM AOF a.si.0-s saeies stews 64Us Sew ET AWE ORR RR EOS 1082

receivers, appointment of ........ ec cece eee e eee e eres 706, 715, 724

accounting to court ...... ibisterdmeanaiars ee ee ea 722,
reference Of accoUNtS ....... 0 cece c eee cece teen ees 722

_ settlement of accounts ....... cece cece eee erent eee ee nee 722

actions by or against, preference Of .............. 0c eee eeeeee 728

authority, when vested ........e0.ee00. WEIS Tas wERRs ye OWEN ES 718

commissions allowed tO ........ ccc cece cece ener eee eee eeeee 720

compensation Of ......... sees eeeeeee Seinen Pare naee ens 725

contracts, how canceled by ........cccceeeeeeeeeetccceeeeee 19

GOUTLy CONGO! OL cas sc seateudse vib % aie esauaw'sn oresaute-onods aie are: evececauese: bnbee wie 722

ereditors, calling meeting Of .......... cee eee e cece eens 719

debts not exhibited, not answerable for ............-ceeeaeees 721
payment, order of ......... eee eeeeeeeee Ties ins. aritions easerin les 720

debtors to account ..........05eee eee delaayewiae'e a nena e16 alain 3 719

deposit, place of, designation ...........0ceeeeeeeeeenneeeeee 725

dividends to stockholders ......... cece sees eect ceeceeees 720, 721

moneys retained for suits, application of...............e.0ees 721

notice given by receivers 11... 6.0. eee e eect ee eee e eter cenenes 718

fort TOP! a2 sacoh tes nea ee ae y beg OEE SEES oases Rae Redee e 1084
1158 GENERAL INDEX.

Dissolution and Receivers (Continued):

receivers (continued) : Page-
powers and duties of .......... seeccceevsccece 106, 718=722, 730
property to be tramsferred to .........eceee cece nce e ee eeeee 728
authority to hold ...... hy Saistendiae weiss alg. giahersiaelot vee 72%
referee, appointment by ..........ccceece cece rece cree eerie 719
removal by court ....... Satoamicete ote Sibley ethiadsidan's:dtavenasereieie e/sianecnie 722
application for ........ ccc eect eee eee eee e eee eee 723-726
place of making ...........e.eeeeee neces aie. gay shas 727
reports to he made by ........-. ee eee cece eee eee eee e nee 722:
security to be given ......... ce cece cece eee n sees eeneseeeeees 717
stockholders, surplus to ......... cece cece eee nee e eens 721
prosecution Of ..... ccc cee sce e eee cere ee eeee as aenieceaene 6 418
vacancy; how filled... cs0ccssees veces sed verses Weeds wee ee ey 722:
wages of employes, preference of ...........4-- Rte A eRe ee fiat T8L
sequestration of property ........... pia aititey Sav ee shige Byaieneted Viele se 703:
testimony of officers and agentS .........ee esse cece eee eeeee veee TIS
Dividends:
unauthorized, except from surplus profits ........0seeeeeeeeeeees 111
liability of directors for making .............05- cig aiiana Scatecera lll
dissenting directors, how relieved ...........0eeeeeees .. LIE
Domestic Corporations: =
definition ....... 00.0... eee diate eran’ Se Sahiseea vanes maa peaee aes 4

Duplicate Original Certificates:

county clerk’s office, filing in ........... ajuigl 8 ayeiatondiaie iene ce soe exeiclozere ow 7
certified copy, may also be filed in ......... wisi is Biahigve Gleevec eats T
Duration of Corporation:
Extension: Of iced esciwas os eae oe as Wenn pie tgua Ors Sualerece. ala dranenaie Oras 55
form: fOr” sos sceky ss eee pramen a toe essa wer swage ss sphgyane: k abe 893:
Election (see Directors) .............0ceeseeeeee elravaete Sajaekte eh oted 107
misconduct at, a misdemeanor ...........- cece eee ee eeee bieiercatewe 625

Electric Light Corporations (see Gas and Electric Light Corporations).
Electric Light and Power Corporation:

railroads, authority to build and use in certain cases.............. 318
Employes:
cash payments tO .... 6 ie eee cece eect eee nee eens oS ohnne en 490
labor organizations, joining, to be permitted ............. seeeees 609
liability of stockholders for wages Of .......... ccc cceecceeecuees liz
railroad or steamboat, intoxication, a misdemeanor.............. 616:
receivers, payable by, prior to other claims................e0eee> 731
reduction of, while voting, prohibited .................020-- coeees 609
steam engines, negligent use of, penalty..............-0ee eee eene 610°
steam boilers, liability of person in charge of.............. ceeeee 610
wages, liability of stockholders for ............. ccc ev eeeueee ee TZ

weekly payment of wages .........sececeesesecccccnccceceseses 490
GENERAL INDEX. 1159

Errors: Page.
amended certificate to correct ......... 0s ccc cece een eeee 58 588% 16
Evidence: ,
certificate, presumptive evidence of incorporation .........ee0028- 47
certified copy, use of ...... aut Saree Aa syalleaetars “iceoewe dy AS:
stock book, to be ...........- eee eee eee seeetessatiweewasenacesss 123
‘Executor:
‘liability, when subject to... ccc ccc cece ccc eee e eee eet enenee 172
‘Exercise of Corporate Powers:
prohibited, until payment of fees and organization tax............ 7
statutory powers ..........eeeeee eee e eee e eee che Gooey wixeae D8
provisions in addition to ........ 0... cece cette teens 18
-Existence:
corporate, presumptive evidence Of...... 0... cece cece eee e ee tecnees 17
GXCONSLON OF os 5 a.iaca2 sc gyre 0 9 seas la aia aseeid apogee asa on Goa aoe ea a deueE 55
form of ‘certificate .seiscevens siseeiie ave es EES Coed ee wees 893

‘Expiration of Corporation:
renewal after actc.cmciades sdert oaus ees se vek Gees bodes ene s 55
court may order, in certain CaS€S 0... . ccc eee eee cece ee ane 55

Extension of Business:

corporations generally ...... 6 cece e eect eee eet e teen etee tees 131
form for ........e cece eeee pee eee Se ere cc ee cee er 926
‘Extension of Existence:
FOV, FOP ie so in Ss Sah he PS EES ARG A eae E eee saa 893
proceedings for ..... cece ce cce nee een e ener ee eee setereeneees 55, 56
‘False Reports:
penalty for making ......... sae Snail thea lice hk hind bi ohana iCsetamaa ad id 624
False Books, ete.:
refusal to make proper entry im ...... ccc eeeeeeeeneeee ee oe 624
False Certificates, etc.: /
liability for issuing ......... cee cece cece eect cent e eee eeees 130
‘Fees: . :
BCS TELULACNG a aracae ad srsteiececa tse 8 keadavinaw woes loves ava Sal dh 9 dedi a 78, 79
corporate powers prohibited until paid .............eee ee eeeeeee 7
Ferry Corporations:
capital, half of, when to be paid in .........--- cscs cece eens 212
affidavit of such payment ........... cece eee e ee eee cet e en ees 212
form for .............5+ Bi Sa git iene ttt eetnauy Sareea aaa is dane ah 1012
failure to pay in capital, effect of ...... iiuleis sae e056 eee 22% 212
certificate of incorporation, provisions for .................... 209-214
filing and recording ......:e sce eee eee e eee ee teen eect te eeenes 7
FOP IM LOW 235 Sieslek cae oh CGN RAM TAN SASS bids mena aio aee i 1011

general corporation law, provisions of, applicable ................ 2
1160 GENERAL INDEX.

Ferry Corporations (Continued): Page.
license for keeping ferries ................ panies noe Ge ae opiate 213
application for ..........ccc cece ee eeeeeeee Dee awens sige oe. 213
ROUGE: OF ec vaiwc sec neases mee see Bea eR EER Sa 213

SeMvice Of es anges vida se eSae sas aaagle de temas ree de ds 213

form of proof of......... ccc cee cece enna 1015

mridertaking to: be: filed: ying ae wee giiea ate he sense aes 213
POWEFS) 22h 54 sews eed meee Fede i aas Wawel shee WN eee ee hee Seas 212
rates, schedule of, to be posted ........... 0.0.0 e ee eee 212, 214, 614
change of rates by supervisors ......... 0.0. cece eee e eee eeeee 279°
false schedule, penalty for posting ................ 0c eee eens 214
penalty for neglect to post ......... cece eee cece te teens 214
posting in New York city and Brooklyn .................2065 595
Tope! ferries wa ig vsnsese ds dive 828 ¥ eacsieweciews iwi Ve Ree eT wR 214
consent for maintaining ............ 0c. cee ee eee e eee eae 214
State lands, when may be leased to ........... cee e cece ener cree eee 214

stock corporation law, provisions of, applicable to

Filing and Recording:
amended certificates: «os .cscccs cece sstee ee ee de es uate t's a6 see a4 Glea 7

certificates of incorporation ..........0 cc cece n eee e eee e ene eeees 7
Financial Statement:
stockholders may require ........ 0. ccc eee e eee eee eee eee eens 169°
refusal to make, penalty ............. ay ase Wie ela G Ree e's sees 169
time to make, how extended ............... tube Reese eae des 169
Foreclosure (see Mortgage and Reorganization).
Foreign Corporations:
annual, ‘reports: ‘by scs2adic nase oa pee ond nde se ebee dees aod e 128°
fo [OY x adlsidishaciewee Ueasdadsaw vols sca aewssades Kae acess anns 924
actions, when maintainable by ............. 0. ccc cece eens 25-35, 659
actions against, authorized .......... cc ce eee eee teen eee neees 659, 660.
attachments against, when granted ................... 652, 654, 656
judgment, how enforced ......... 0. cece cece eee ec cence e eres 656.
authority to do business ......... 0. ccc cece eee eet e tener eees 25.
form of application for ........... ce cece ee cece eee eee eee eees 881
procedure ‘to Obtain. ¢ soa ss sapesaa we ese hide caaew sedan sas ec 32-35
bonds, over-issue of, liability for (repealed) .................044. 113
books of, transfer agent to exhibit ........... ee eee eee cece reece 170
MeNNITION 4-5 yas ena ete ss Fee Fes AS 2 wie Hide TRG Bie Bw aieaus Paani He Ales 4.
designation, process, person to receive ....... cece cece eeeeeeees 32-35.
fOrM LOT way oe a Ga e enews yee eS Wes aia ise eee <8 881
PEVOCALION)- acca odd cd ah akee 8 oo aha Role sueies Gensecdiag Quand 4 eomclew 32-35
wy dividends, when unauthorized, liability for ...................040, 111
debts, when unauthorized, liability (repealed)....... dative chef 113
/ false Teports, Liability FOr oc eccsee os datas cue avaun gota window eine e's sree eles 130:
judicial sales, purchase at ............ccceceeceeeeeees kecemeeeee | 38T

./ liabilities of officers, directors and stockholders................... 18}
GENERAL INDEX. 1161.

Bereign Corporations (Continued):
mortgage, foreclosure by .........+.eeeeeee aes ee
sale under, Way HUY Ab. wicadcowarc ewer esau ves sade vesaw ee es
process against, service Of ........ ccc eee cece e eee e cece eeeeee
property, real, may acquire .......... cece cece cece eee n ees
judicial sales, purchase ati ..........--cee ee ceeee JuatrSiguneecie
reports by, when to be filed ............ 0... cece eee eee eens
revocation and new designation, form for.............sceeeeeeeee
suits by; in. certain Cases: . ssc cseveeees eed eeadas ia dea aet eee cases
S€CULItY LOT COSTS: no. ane dices secareraieoe dalees-o o osecme vdiera sacccalnusra ue tafe
stock, may hold in domestic corporations................0005 135,
transfers by, when prohibited ................ MieS FESS Gels sae
unpaid subscriptions to, attachment of.............0 eee eee eens
tax for privilege of doing business .............2 ccc ee eee eaee 76,

Forfeiture:
corporate powers, for non-user ..........- ty suatehal ss case si eaeue
EXCePLIONS” ca. cdawyianees se esayiemuad sees Se ceaibalere.sateenei nate

Franchise: and Property:
BAGO «cia paacisteicnd aunensn atten BS eeibia sis lelenekecarecers aes ae as Sepsis eeans

Free Passes:
certain public officers to have ....secscccevccseccecccccseress ODI,

Gas and Electric Light Corporations:

certificate of incorporation ............ a So eaEGE ewes eve 229;

filing and TecOrding 6. sci caves eevee es weve es omnes cana eeee

form: LOP" smamtal ea Das veeecsed<'s'saoue eabnes a wisediate Gass tots
deposit for meter may be required ..........-- 20s eee cece cern eee
deputy inspectors of gas meters .........+5++-+0-- ge ieeew se. srneins
entry of buildings) <s622 010024 ones vee Sa¥ eG age Bee ern eemere es ae
gas meters, inspection Of .......... 0. ccc eee ene eters etna
general corporation law, provisions of, applicable to...............
injury to mains, etc., penalty .......-..... as quate eee ease neune
inspector of gas meters ........-.. cece ee eee eee teeter teens
interference with meter, etC..........cccccesescecetccccee svivawans
natural gas companies .......... ve seeee ee ccc creer ees ceenerne

formation Of ...... cece cee eee eeene abv didiewe e rerewre sleccein: 186,
payments to, refusal or neglect to make .....+..sscceeceseceeeeres
POWETS 2. cece eee cece reece een tenet nner e tt eenenes 231,
price of gas, regulated in certain cities.......... Salas iat Seg Secon
light must be supplied .......... 6 cece cece cence eee eee eee e eee
meters, rent for, not to be collected ............... ay apatavda\entve ssaan beh
stock corporation law, provisions of, applicable to.................

General Corporation Law, The:
application of, to existing corporations ........... se neeeneees 57,
conflicting provisions of other laws, effect....... MVeadee A wage
corporate laws, is one of the .......-.. see seen eect eee te ence eeees
provisions of, applicable to other corporate laws. ......+++sseeeees

136
158
654

17

53
53

132
594

230

1038
237
235
238
235

634
234
636
595
231
238
232
239
236
239

‘80
1162 GENERAL INDEX.

Grace: Page.
days of, abolished ...........cccccescerecoes a's lotletee etaleiae’s:4 Wate 91
Guaranty:
bonds of another corporafion ...........2.006 aisisielsetcwerserres: 190," 136
street railroads, authority for ........-.eeeeee- Ss mbniee% 418, 419
f OVS FOR ees eviews eaieeneracri a orasseeele ® vine winletsraeree wistelsts veseesases, 1120, 1126
Guardian:
liability, when subject to ...... ccc ccccccccccceeeneteeeeeeneeees 172
Incorporators:
qualifications Of 0... .. ccc cece cece eee e ee neee stuveisfeistouens Bares Hevea’ see 6
citizens of the United States, two-thirds must be ............- 6
exceptions in certain caseS ......... ccc cece e cece eee eeeeenees 6
natural persons of full age, must be............ee000- stsiateas 6
residents of this State, one must be.......... ccc eee cece cece eens 6

Increase of Capital Stock:

bonds upon conversion into stock ..... 62... cece cere ee ence ee eeees 81
certificate of increase ....... 0. cece ce cece eee e eee n eee eneee 155
contents and execution Of .......-..cee cece seen e ec eeees 155, 156
indorsement in certain caseS ........0- sees cece ee eeees 155, 156
FOPMIS. EOF” siesay se dvoid Us ene 4a BOS 2 caine a Sad seuarg ha seacguers ae 934-943
liabilities, of holder Upon ........ ccc cece cence ete ee een eeeeeceens 152
meeting {OF .. css scegscsdeeees VICES ae es HERE Ese Ree EE EES S 155
MOLIGE HOF eas cesiejeieress eee ga dey bosobie ieee tienen dd ee Beas OEE 154
unanimous consent without a meeting ................0eeeee 154, 155
form fOP és. sass ses stawases vii eee sees se Shereewes esa a gue yes 942
Increase of Number of Directors (see also Directors):
certificate of, filling .... 0... cle ccc cee e ee ee eee eeeenees 110
{OPN AOE: Sages weed Ceara es nobaweees ice tawase tad eo oes 919
meeting for, procedure ..... 0... esse cece eee reece eee w nen eenee 110

Indictment of Corporation:

AYTAIQNMENt UPON ... 6... .csva ve sicaees tems dee ews HROAOO Se REE 643
conviction, enforcement of penalty ........-eceeeee ee ecte rs ceeenes 645
grand jury, examination by ...... slcoparh Soesenianendece-@ Sie rg tosh tuatatare areas 643
plea of guilty, how put im ......... cece cece ee eet eee e ee eeenneens 642
SUMMONS tO APPEBE a sinic casiewdn saa hee wee Be edie oa Side eet eee 643

SETVICE Of sec Se ineie's'veis she ob ediewie's be See eyes de deca ee 643

Individual Liability of Directors (see Directors)
Individual Liability of Officers (see Officers)
Individual Liability of Stockholders (see Stockholders)

Informality:
amended certificate, to correct ........ ccc c ences cee seceee Ssweees 16
GENERAL INDEX. 1163 .

Injunctions (see also Dissolution and Receivers): Page.
action on undertaking ..1........2eee00+ oe eieatieree deccesccscserses 652
corporations, writs of, against ............ccceeeeneeesees ‘egarnles 651
State officers, writs of, against.......sccecceeseeeceneeetceeees 651

Interstate Commerce:
act of Congress regulating .............0..00 ware ccececceees 565-589
commerce and labor, act of Congress establishing ............-. 603-608

Inspectors of Election:

appointment of, by-laws prescribe....... Rees VMeieals sale eee ees 122
certificate by, of result of election .......... Siatetarerescase ica steve wee 44, 122
county clerk’s office, filed in ...........20- eieiel eigen ee Hout 44, 122
form, fOr «ei vs avons opieeews sia tees sista aea seat ci 922
compensation Of ....... cc cece cece eee eceeeeeens scidose eheidiate B44 122
misconduct of, a misdemeanor .......... siaieinn’e © 0.3 eran 6-8 hapayere wees 625
Oath: to be taksen: DY. sed so ied 6b: aisle esasrasee s baile sbeebs @asdiew ree mane 122
FOP: OF. aoa geaiswie ve asad Siviazeuiers aioe #6 ovo Bbiaveelwiale ss .arepaseie'e's is 923
oath of voter may be required by ............. Sie s WSN sac es aS 42
administered by inspectors ........cesseeee. siaidie steer sereesaceigere 42)
AYN OF: cdewisiad nswveraas ae wiere S54 Seiew dS pian « Soper Ko nalowe o eikveewe sbiars 42
forni for? a.4 weed nesses ears seater eee eee 888
proxy may be required to sWear .... ccc ese e cece crceeseeceee 41
form of oath Dy ... 1... ccceeccccccere nc ueer sees csescens 889

special election, may be chosen at.......... LiGad etme eee Rosi 43
statements filed by .......cecccceccesccncnccee sees o's ORES Rie ROS 44
transfer books, may require production Of..........e+.seeeees 38, 39
vacancy, how filled ......scccesseccecveccscvccecvecsccscssceces «- 122

Joint-Stock Associations:

ACTIONS: MAAINGH se og sicedie aie leiate oe Swiewwiolw gieisile's aisles’ e's aise e opeieare’s AGL 866
annual certificate to be filed .......... ecrcnccancccereccececscese 864

form of ...........04. in so ta as) ovb Goi 0'4 Gs sso sa'a 6a4a, 6 5’ $/o- ava: ay fale adeteuwse 6 o:0"S 1096
articles of association .......+.eee peeeenees jaisittelalere Bae acetv teste 864

CHANGES OT aes syewegalie os WOR FTES Sew ees Raw ea Os Os Shes 865
Gefinition Of 1... . cece ce cece cee e cece eee eee en ee ee ee ertseeees 863
dissolution ........... sie SeSaSD Bia ast cana piataMate aud aint alec ievaiare aie ghee 865
distinguished from corporations ............ce eee e eee eeeeeeceees 863
laws repealed by existing act ....... I er er esecvonens 866
real property, power to take and COnVey .......sessseecereseseeee 865
testifying, officers or stockholders not privileged from ............ 866

Jurisdiction of Courts:

civil actions against corporations...........cceceeeeeeeenees 646, 647
criminal proceedings against corporations.......... oMewelseats 641, 642
justices’ courts ....... ccc eee eee reece e teeter cere e eee n eens 662, 664

Justice of the Supreme Court:
clerk’s office, may designate in which to file certain certificates...... 7
1164 GENERAL INDEX.

Lending Money: Page.
corporations for loaning on personal ‘property......... sieiafetieeraneie ys 598:
Labor (see Employes).

Land:
acquisition by condemnation (see Condemnation of Real Property).

Laws:
COMMICCINE, “GH ECE -scaieiare acacia s sce aiiene ein, $: arated 5.4 apne idecocanwse Oot ae SE Es 57
CONSEBUCHION: | ates scans vcnaenkiae se eee eikinees +a diane uaeresne 59
repealed, schedule Of) 0. sisiee i. cung ode Ree AS SNR TEE OES CARON Da Sie 62-72,
FOVAVEM) | ave haved wea. 4ivereca lashes he Sa arancangieleo* wane tale ocapatavens & 2 anew ened : 60

Laws Repealed:

effect: Of s semynsk naa Seas Quidss Heed Gee Ts Moe ee esiele sa Hae tA 58
general corporation law, repeals by ..........2seeceeeeereeeeeeees 58
SCHAAUIC OP) scp tinted a-aaslt. ey wineries 6 a les Wik w Dislaes Sasererals weasel eos 62-72
Liability:
administrators, how incurred by ........:ccccceeeeeeeeeeeeee 172, 173
directors, liability for over-issue of bonds (repealed)............ 113
debts, liability for, if unauthorized (repealed)................ 113.
dividends, if unauthorized . ......... 0. ccc cece ee eee cee eee 111
false certificate, if made by ...........c ccc cece eee e eee eene 130°
loans to stockholders ......... ccc eee ence renee eee e re eenes 114
property, prohibited transfer of ....... 0... cc cece cece eee eee 158
executors, how’ incurred by .......... ccc cece cece teen ee eeeeeenes 182°
guardians, how incurred by ............cesceeeeee eee eeeeeeeaees 172
officer, for making false report ..............cc eee eeeeee eee eeees 130:
prohibited transfers of property, for making ................ 158
pledgor’ of stock: <1: .caacsvesves ans sewieceees vee tes cease ER 172, 178
reorganization, corporation formed by ..........eesceeeeeeeeee 91, 92
stockholders, unpaid subscriptions ...........: sees cece ee eneees 172:
full liability business corporations ........... esses eee ences 197
wages of employes. .....- Sha db Waeahatoind Hee ee Stes Saee eNO ee 72
trustee of estate, how incurred by .........eseceeseeneceeeeeeees 172
Liens:
conditional sale of railroad equipment .......... Kew wee Melee Pees 494
labor on railroads . .......sccece cence nsec eect ec eccerenee ies Sire 493
Loans to Stockholders:
unauthorized . . «1... eee een cence eeewieies @ Sidieisie;eieiete w ajeieie oie ele -. 114

Lost Certificate of Stock:

replacing, procedure ...........seeeecceee ee cccccees SWS sie ns 167, 168
Lost Certificate of Incorporation:

certified copy may be filed to supply ..........ccccececcceeceecees 17
Limitations:

corporate powers and necessary powers granted ...........,....+ 18

liability, for making false certificate ...........c.cccceeeeseceees 130

stockholders, liability of . 2... . cc ceeeeeceereeceerereeanes vonatete 176
GENERAL INDEX. 1165

Manufacturing Corporation Act of 1848, Chapter 40: Page.
act, repealed. scene etd saw ewceeesaet ak Serna dane eleva aoe emetek 62
manufacturing corporations now form under, business corporations

TRY ea hind Sawa Sale RESTS SE aca tarahaaa Re Biasw S Saar wielaannd ie eee ae 183

Married Women:
«vote, right to, at corporate elections .......sescccesescccccsees+» 596

Majority:
directors, powers of . ....... wee de sea iiWeeeres Seeie Aly ~O1

Meetings (see also Directors and Elections):

directors, by board Of . ...... cece cee eee ence eee eee east ebouiv 47, 61
QUORUM “ait 2. ts. al adap eeaaiatelelatinyed aus y os e's atte tereteeueniees se 47, 61
majority of, may act .......... 0c. cece eee sisveases 47, 61
qualifications Of VoterS 2 oe... cece cece cece eee c ee eee cece eeneeeee 38
stockholders’ meetings, to elect directors ............. Sooty 107
cumulative voting, how authorized .............0.eeeeeeeeees 38
proxy, voting by, authorized ......... cece cece eee ence ee eeee 41
qualifications of voters at ...... eertaaoine ata viseeieuts set ceeeeeees 38
quorum at, by-laws may regulate ..... is Sawa ele sees 21
voting at, regulated .......... cece eev eens ada eeeneeees 38, 39
voting agreements authorized ................ eRicistesewsionta he 38, 39

Member of Corporation:
GENRITION . ow isswnswesan war eonerewwn aiden stele ep Aiie Brom eureeaasn ave 4

Merger (see also Consolidation):

when authorized .. ............. $06 Gyaiibieselaveis.a Solewlers Sie sieisteca ease (OO
Misnomer:
effect of, in actions against stockholders ............-++---- 658, 716

Moneyed Corporations:

AeANITION fic kee eeisuheeeawie os «oes aaa eatewere aaa’ be efaleiaidiew stewie ee 6 4

Monopolies:
prohibitions, State laws ............ Sass eee ss acbravevars, Sistas @iaree een 97-101
United States or Sherman act .......... we ener sice sess LOT; 102

commerce and labor, act concerning .......eececsccessecees 603-608

Mortgage (see also Bonds):

amount, limitation stricken out (see note) ............eeee seen 82
authority for 2... cc cece cece eee nee tenn ene e eee eeeneeeeeees 81
bonds, under, when convertible into stock ..............--+0-+5- 81
certificate of consent, form .......... cece cece creer ee nee een res 897
consent of stockholders . ....... cece cece ete e nett ee eeeenees 8I

fOLMS HOF... akGeeee des anaes ded GSE REE eae ae 895-897
defects, when cured . ........ cece cece renee ener eee eet eran enasees 103
foreclosure under . . .......seceee eee eee ene eeeeee aisaadantvecace taletg ate 96
form for mortgage . ...cceeeee cece eee eee aeeee eee cece cece res 895-913
railroad mortgages, provisions regulating ............0.eeeeeeeeee 296
recording of certain mortgages ........sseeeceeee eee e eee een ees 82, 83

reorganization by purchasers under ...........0.eeseeesee eens 91, 92
1166 GENERAL INDEX.

Mortgage (Continued): Page.
sale of property under . .......ccecccececcseecs ee cecceereecerers 96
Supreme Court may direct . ......... Sseseisetesesereeveeane 08
receiver, possession Of . ........+06- oe cecocceneans seen coe = 98
Name of Corporation:
duplication of, prohibited . .......cc cece cece eee eeeneenaes sevises w 0.
EXCEPTIONS 6 2- a aesissocale aziandsd e.e-4 4 9-4 Geceapaige DAR ERTS sitieweraae AO
CHANGE: OF 0.6 cee wissen iaacin nia ceoeie le e's la'eissioiwlgapiigigiosie oe ONlawleerees ce Sas 12-15
FOKMS: TOT =< ceoviasaw paws svax ee sc 44 WoO Pew te es Melee es . 867-870
Natural Gas Companies:
formation under business corporations law .......... ales ee oe 186
statutes regulating . ...........cscceccncecccsccccsecccccsseeuce 595
Navigation Corporations:
additional ports, extending route to ..........eecceeneveeeeeees 216
capital stock, payment Of ........ ccc ec eee cere cent e eee etenneeenee 216
certificate to be fled .. 2160s .sesecwinicenwee veered caaavaen sng 216-
HOLM, TOF GS swerve sss ch seeker is oss wae sees 1020
penalty for non-payment ............. cece eee e eee cee e ences 216
certification of incorporation ..........cceece cece eee eee n en eenes 215
filing and recording . .......... ccc eee ee cece cette eee enone 7
form £OP ¢ wcmwaisd ces esos 0s soc eaioewerneaee ve Shs RES Fae Ble 6 1018
employment of persons addicted to intoxocation prohibited...... 281
ferries not to be operated ......... ccc cece eter e eee teen eee eceeeen 217
general corporation law, provisions of, applicable to ............... 2
game, transportation of, when prohibited ................. 280, 281
licenses to sell liquors ....... 0... cece cece cence eet teen e ene 281
railroads not to own stock in ........ ccc eee e cece e ween ee nee nees 215
steamboats connecting with railroads ...........eeeeeeeeeeee 345, 346
stock corporation law, provisions of, applicable to ...........+. 80, 81
ta EXEMPTIONS ©. weia ceded oss nai tae cede Law ew ee eanenedece we 175
tickets, statement to be printed thereon ...............eeeeeee eee 629
Non-User:
forfeiture of corporate POWeTS . ........c cece cece cece tteeeseeees 53
OXCOPLIONS 2... cere cccccerccecccccsareenesvons ass ewewte doe 53
Notices:
change of number of directors, meeting for ..........eceeeeeeeees 110
fOrM OF 4.4. aussie tea gs daa Reese aes bas aaeiaeee Rae bass oe. 921
proof of service Of ...........ccceeeeeaees Hevoisinaieveueigigacs 921
extension of purposes, etc., meeting for ............cceeseeeeeeces 131
form: Of 4:0 a4 ndsamawe vee ees taariseteaeee § Sibeeeatar eo ate we aetoueiees 928
extension of corporate existence .+.......... cee cece eee cece ever. = 55
false notice, penalty for making ...............-.000: eweean ee4 ee 130
increase or reduction of capital stock ...........ccceeeeec cence’ 154
TORM Of ices + oasaasaecihe aus sao asnni oat etl pe elemine ee yale sews 937
special election of directors ............ cece eeeceecceecereeerees 43
FORM Of: casccwa ss a8 aceasta i eine ex Sete Bie, what rest eieloreig Suaviiea 890
stockholder, notice given by ..........cc cece eeeeee cen 890
GENERAL INDEX. 1167

Notices (Continued): Page.
stockholders’ annual meeting . .........+ aetece sis esa Biahastao ews 107
LOK. (OL od ai iiioscentaan Giana euiwees so sevccdessewenecs Olt

waiver of, in certain caseS ..........se eee eeeeee Givin ao a wealetshs oleae sige 161

Number of Directors (see also Directors):

imerease or reduction ...............eeeeoeee Mi tamesewececcces LL
COREMICATE HOE: fo a. Man acscataislaidd tease ow Gearevovewevssn ee Ove eyecare 8s GEES 110
LOPOA LOT. sg cca. sa ei oe bc VieawawS Ee ew sis HeRgeiees wales 919

Number of Shares (see also Suny

increase or reduction . .......cisscc sce ccceccecscccscencceeeenes 1i7
certificate, form Of . 0.1... cece ce eeerceeces Sibialinw sid tele ipieieieie’s 948
Oath:
elections, may be required at ........cccccccccccccccceneerteeeeee 42,
inspectors of election may administer ...........eeeeeeeeeeeee 42
voter, when to take .......... cece eee e reece een eeeneeesees 42,
form fOV 5. a 6 sales Wieeie'e vocab erdleweGR 4 sss ts es eee 888
filing of, with certificate of election ............ccceeeeeeeee enone 122.
inspectors of election to take .........:cceeeeeeee etree ee neees 122
form: fot 6 +. as swingrawnwe ye cleeieerewnucs oes  dbuwaeun a bewoiunr 923
proxy, when to take’ ......... cece ccc e eee e cence eee ceee ee encee 42
for, FOF 6 es dseigccwns is cad sense ewe ames Je eo neeeerccesosaes 889
Obligations:
issue of, authorized .........ccccccccenccececes bciaransiseosrsiantiosincede 8h
mortgage tO SECUTE . .....eeeeeeeeeeeees eeeeeeee ercdevescerccces Sl
Objects:
clauses, forms fOF . .....ccccc ce ccccce rene rersccseeereenesens 952-985
extensions or alterations Of ......... ccc cece cece cere eee enenneee 131
LOL, LOM bcs atesaws yh saan eee eas TASER SES 926
Officers:
annual report, when to be made by ..............seeeeeecceeeeee 128
appointment and removal of, by directors...........+.s0eeeeeeeees 115
books, entries in, refusal to make, penalty .............0-00eeeeee 123
exhibition of, refusal to, permit, penalty .........6...eeeeeeeee 123
compensation of, power to fix ........ cece cece errr cece ence ete eee 21
election of (see, also, directors) ........c cee cee eee cesseeeeneeees 115
by-law regulating, to be published ...............eseeeseeeee 22
false report, penalty for making ................see eee eee eee eens 130
power to appoint .......... cece eee eee e eee e een eet e enn eneenees 21
powers and duties of ........... 66sec cee cence ene eterno een eeee . 116
prohibited transfers of property, liability for .................4.- 158
removal by directors .......... 2 eee eee e eee teeter eect en eneee 115
court, when authorized to make ...........+.cseeeeceneee soe 716

security, may be required from. .......++++++++ div ataaaweseaas sae 115
1168 GENERAL INDEX.

Office of Corporation: Page.
GEAMIGION. 4. o cccewrecsicisieinseisrespiotas e's) e'e'e etewaie S29 cipialg eiastiare SORES ST ROT 5
location, principal place of business, to be at .........seeeeeeeeee 5

CHANGE: OF ns aevd erase vawenwaaragoe st cdo Geese ee. ae eeees 180
form, £08 6) saaansewe nda Vee ese eSWeuietees siesta 1109

oath taken at election, filed in ......... 0. . see e cece eee nee ete ceeee 42.
proxy filed in 2 2.1... cc cece cece cece cence een ences ences 42
special elections to be held at .......... cece eee eee e reenter eens 43
elsewhere, if access denied ...........ceeeeeeceetencceneetees 43

Organization of Corporation:

fraud in, penalty © 2... .. cece eee cece ccc eee enter nen eeeeee 622, 623
‘Organization Tax:

AEE PERWATING 6 a5 4 svcinaveaucee hand we ddadds Minraeneouwed vs nee earn 73

corporate powers prohibited until paid .............. soguaaeas hy 8

State treasurer, payable to ....... cc see eee eee nee eeeeceeeeees 73, 79

table of amounts payable ........... ce eee eee cen rete reeeneeeteens 75

transmission of, regulations concerning .........eceseeeeeeeeeees 79

‘Parlor Cars (see Railroads).

Partly: Pard. Stock visciccccctwtaei e395 2 ss ea wie ewwwwe ss S60 ereelw aires 182
Par Value of Shares:

business corporations, maximum and minimum .............- 184, 187
change of, certificate for ..... ccc cece eee cere erence ce eeee tenes 177
EOP IE WOE, ~ 55 0, igsceiee jal exsyiord.s ad dom in Shona iassdie bie lovanato sendin scbinyaies eta a:8 Pao 948
Passes:
certain public officers to be supplied ...........ceeeeeeeeees 591, 594
public officers not to receive .......... cece cece enc eeereeeeeeees 745
Payment:
capital stock, half of, by business corporations ............0e+eee 196
certificate Of ¢ sscxceiwesnse ed tees 22 é eH cae be 8 es ea wiese'w 196
LORI: FON 8. ce a iecsisanisdict sande BSR GIRG MIRE A. SS SRR CA Roe ec 1001
ferry corporations, affidavit Of ........cc ec cecee ewer eee eeeees 212
form: LOG wi. 3s PaeeeNA ae eels ed EEG EW REG Wones 48 1012
navigation corporations, full payment .............eee eee eeee 216
certificate of, form for 1... . cece cece ee cee tee e eee eee 1020
corporations generally, payment of subscriptions .................- 150
mortgage debt, by stockholder (repealed) .......... SAGs da Vales 167
Penalty:
false report, for making .......... ccc ccc cece eee eee eee e ee eee eee 130
financial statement, refusal to make ..........ccccesecscecercuns 169
stock book, refusal to keep, or exhibit ............ ccc cee eee eeeee 123
extracts from, refusing to permit ............ceeeeeeeeeeneee 123
Pipe Line Corporations:
certificate of incorporation, requisites ............... enters e's ae gtatars 2211
filing and recording . ......... cece ccc eee eee denne eeeeeeees 7

PORT! LOT :o-4s.- agers Sao as any wlaveige ceva S Liash aualdee-ccobiatcets versal 1026-1033
GENERAL INDEX. 1169
Pipe Line Corporations (Continued): Page.
common carriers, liable a3 .......... cc ecceseerecccscvenescnceeees 227
condemnation of real property ............+ ec eeceeeeeenes aise alana 223
consent of local authorities for construction ...........cceseeeeeee 224
proceedings, forms for . ..........cceeeceesoees bye Pe aGie 1028-1033
construction over Indian reservations ...........cceeecee eee eneene 225
construction over State lands .........ce cece cece eee e eee e eens 226
construction through villages and cities ...............-.--0eeeee 225
crossing railroads, plank-roads, etc. ........ccc sees scence eee eeee 224
canals, rivers and creeks ........... cc cseece caters ecececees 224
delivery of property: ois css sasaasweeaveeiseaadet cor eaas soared 227
false certificates by, penalty . 00... .. ccc cece cece eee eee eee ees 631
fences, erection of, optional 1. 0.... 0... cc cece cece ee ee een eee 228
general corporation law, provisions of, applicable to .............. 2
TOCATLON: OF UNG: s, ccccmnaclewsiiee wis ea nee Ma SE a So cona Serene eie ata 222
forms for oss: sesenan gs eset es deeeeeeke eee eee eee ee eee 1028
misconduct. of officers: . ic icccss cs siierecsaeny scan ds aiagianseeng tes ae 625
powers, grant of additional .......... ccc cece cece ee eee ene nee 226
Fates and Charges ss sicsrvicsigicaiies 49's os waigreisinaieds 6 be eld ape eginies vee 227
Teceipts for property . ....ccccuccveccncerccseneeceecseesatecees 227
regulations relative tO .... cc cece cece ese e rece e cnet ee ennes 227
statements to be filed monthly ............ ccc cece eee eee eneens 228
form: for as, sexe ied den's pmduMee ees ee esus aarUnG dss eadeesd 1037
stock corporation law, provisions of, applicable to ................ 80
taxation of property . 2.0... cccceecee eee e rece ceceeesessessesecee 229
nse of line to be; pUble si ee iseisisiciows ge eed a asia ation bs es pales see's 227
vouchers, cancellation Of .......... sce e eee cece ee eee eee necenees 227
Plank-Roads:
crossings over by pipe lines ...........cseeec cece eceee ee eeetseees 224
tramways, regulations . .......... cee cece cece eevee ce neeee 220
Plank-Road Corporations (see Turnpike Corporations).
Pleadings:
verification by corporation . ........ceccee cece cece cecereeesecnees 650
Pledgees:
stockholders, not liable aS .......ccceeccseencceesncceensessseees 172
Pledgor of Stock:
liability as stockholder .........ssesseeeeeseecreeceeeeeeres 172, 173
vote, Tight £0 . ...cse cece eee erence een eenes cigiara ane vein Weateneierss aranseeca’e 38
Pools:
controlling transportation rates prohibited ..................04.. 592
agreements for voting stock authorized .............seeeeeeeeeeee 38
‘Powers:
banking prohibited, except by banksy sanigeae'ees aeveiemewaiey seen 37
bonds and stocks of other corporations, owning .............. 135, 136
borrowing money... -.--- ee egeak aD wMeG Feesaid Leen ehwiRaes 81
railroads . esse cess tees ee ee eee tn ee eeteneceees Seales es 296
1170 GENERAL INDEX.

Powers (Continued): Page.
corporate, prohibited until payment of fees and organization tax, 7, 8
debts, contracting 2 2... . ic cece cece e cece een e ne eeeeceneeees 81
directors, majority, powers Of .............ceeee segvioowesea 47, GL
extension Of pOWePS 266 si isos cvewewaa yee esse munereewse ote Beisisieee 131

PONE LOM siete. dic gies 3-0 Sader sence a eieracactdue se eee Hee Sepa N staan 926

. foreign corporations, authority to do business ...........eeeeeeees 25.
actions by, when maintainable ..............seseecevecccees 25:
property in this State, acquiring ...............cceeeeeeeeees 36.
real, purchase of, at judicial sales ............. cece eeeee 37

tax payable before doing business .............cecceeeeececeeeces 73:
forfeiture for non-user ............ cece eee e eer eeeeeeees Sap epaseesrisiee 53
general powers, grant: Of is. osiccsiee ce sees ceseweaeewe tise cesses 21
by-laws, may make . .......... cece cec cc neen an eeseeeeencers 21
officers and agents, power to appoint ..........0.eceeee eens 21
property, May hold 2.6... is swwsieasewd ence sesisiceeowuse ress 21
other States, acquiring in .......... ccc cee eee e cece ne eeens 24
mortgage of property and franchises .............0.cceeeeeeeveere 81
obligations, issuing . ....... ce cece cece eee ence n ee wee eens oe. 81
Teorganized corporation © © .....ee cece cece cece eects eeec coerce 91-95
seal, to have and alter . c.scccceccseccceteascccccessavesce avian ZY
statutory and necessary powers .........eeeeee Sawiab nassau cuales 18

Preferred Stock:
certificates, forms Of . 1... cece cece renee e ete e ener etecreeceeeers 944
classification of, permitted . .......... cece eee eee Srnwlecee ewan 157

certificate of, after incorporation, form for........ oe viata aparvtmers 945
exchange of, for common, how authorized ....... Sievesiaaie a ee ae eae 157

President of Corporation (see Officers).

Principal Office of Corporation:
EANITION. 6 4 dis0 54a cnrinnesuswowes s'baes somes sowess side sie wieisioras 5
location of, to be at principal place of business .........eeeseseees 5

Privileges (see Powers).

Process:
foreign corporations, service upon ......... iP éa's Katee se wenewaw seed 32-35
Promoters:
power to bind corporation . .........sseceeeseeereeeeenes so neeeee 189
liability Of © 6 ..ec cece eee cee cee cece eee e ence eens een teeeeneneees 190
Property:
acquiring, power Of . .......cee cece e eee e rene Wisieissteie''s sasiein's s saieieey 21
foreign corporation, may acquire ...........22cseceeeeeeeeees 36
other States, acquisition in . 2.2... .. cece eee eee cee en rene ceenees 24
mortgaging, regulations concerning . ......-..-seeeeeeeee eee eeeeee 81
transfers of, when prohibited . ....-.....ssceeecceeeeeeeerereees 158
Proxy: ‘
authority for ou cacsie susan eacitias esa e eee aneieae saweeseteseaas, ‘AI

by-laws, may limit, when ........... cece seccesevecccrsceres veces 41
GENERAL INDEX. 1171

Proxy (Continued): Page.

ehallénge 08% 6 eeadewsimuis svete kaw ahtauaaed sy ect aqeuiaw amen xe es'e seus 42

oath, form of ...... con canis tora rettisine bia sane a Sar aie Be ew eae 42

PU OL ais oatheiees-crch aceon ome teat giverealeneticien ee bad a hayes 42

inspectors may administer - ............ccceee ce ceeceeeee 42

UTA TION: 5-6 Peecisiates He ce wistayasedouslne oe Met eiaeacac eee SATA SPAT OE SNS 41

FOTMS) FOP > 0, casvers yp ceadean ies eanon aig. dee saw die Deen aa Ae ee 887, 888

‘filing Of 3.0 i suieauneselexkien genta eawsiestien sauteed eae aawacsee 42

members of corporation, right to hold, not confined to ............ 4

revocation of . .............005 Pia galas eb ares na ROM ENSS acu enn eieeels 41

vote upon, Tight tO .....ccccsecase cscs seen snec ence teeresacnsens 41
Qualifications:

directors, at least one must be a resident of State.............+-- 47

INCOLPOTACONS 59. -cioveie ce bg san oecsendisea wes 9 YG a ardrceaterpacasecn Sea Bo ays0 SMS 6

citizens of United States, two-thirds must be ................ 6

natural persons of full age, must be ..........cseeeeeeeeeeee 6

resident of this State, one must be ........... ccc eu sec cercceee 6

exceptions in certain caseS ......... cece eect e eee ee nes 6

president must be a director .......... cece cece eee e een eneneeene 115

voters at) Meetings e655: casacianeda net os aad eee aa ees es Hae 38

BOOKS, :CVIdEHCE 2 cae ct caves wine ee 46:65 aeoreeutiatone eee wed 38, 39

challenge Of 4: sg. fs ce erased di ieewaea ees Uae me oo yew et 42

oath, form Of c..icssdisrcead sc cen era cownesesa ei ess sass 4. 42

PUTA OLE sc: -acas seve avorsisca lavote i artve-axe oan woe Side pranetacee w AY Sea 42

inspectors may administer ............. ccc cec eee 42

number of votes regulated ........cc cece cece eect eee nena 38

cumulative voting .. 1.1... cece eee cece eee e rete e ee enees 38

pledgor of stock, deemed owner ..........0.e ccc eee eee e ences 38

apecial elections 6.66. y cendaeeeeuees bes sea siateuueNiels nd eR RR eS 44

Quorum:

by-laws, when to fix .... ec ccc cece cece eee eect eee eee ne ete eneeee 21

directors, majority of, constitutes ............ ccc cece ee eee 47, 61

a acts; of, bind) board: ws. ssecuswus, se secas'stacuwneeedess vee 47, 61

majority of w quorum, powers Of .......... sce cee e cece eee eeee 61

special elections, what constitutes at .............. cece eee eens 43

Railroads (see also Railroads, Miscellaneous Acts Relative to):
abandonment of part of route .......... cece cece eee eee e oneness
accommodations for transportation . ........... cece eee cece eee
accommodations to connecting roads ............. cece cece eee ees
adjoining State, railroad in ......... ce cece cece e eee e eee erences
animals, unlawful transportation of, penalty ..................06.
annial ‘reports: 2. «sdeseesersscs ahexeender ese se enemmdngee ct emanes

form of, to be prescribed by commissioners...................
automatic couplers, Penal Code provision ...........seesesceeeeee
badges, to be worn by employes ..........ssseeeeeeeeeceeseneece
~

1172 GENERAL INDEX.
Railroads (Continued): Page.
baggage, amount for each fare paid ........... Siar Kceiese atacwateieiieiereiee 1OORs
checks to be furnished . ............ cee cere reser eeesseeaesee 341
connecting steamboat lines . ...........cceceeeeebeenees .. 845
injuries to baggage, penalties .............c cece eee ee tenes 343
unclaimed, sale Of ...cinesewysiuewews nadia’ tae se endear enw 343
proceeds of sale: +. <a:..ccumauseasrsaccnmamederd ne tee 343, 344
bills of lading, if fictitious or false, penalty................... 631, 632
board of railroad commissioners (see Railroad Commissioners).
bonds, authority to issue . ....... sdaiineaen Aateateaamnae ne mme ate 296
brakes, automatic, when to be used .................04 349, 350, 482
brakemen, may be, policemen ............. 0. cece eee eee eee eee eee 355
bridges for highways: « c2<ssacsmeamanrarnnsanasamemonneees 366, 369
canals; Fallioads MEG? «sn ipidwancadtn nd do sha eeo eta ebmetne els 292
supervisory power over, by public works department...... 292, 293
312, 313
tracks over, change Of .............. cee cece eee eee nee 312, 313
capital stock, minimum amount of ........... ccc cece eee eee 284, 285
reduction authorized when route is shortened ................. 314
cars, disorderly conduct upon ........... ccc cece eee eee eee eens 639
Cattle: @ulrds, tC). cece te 4evaciawamidarada cia dest awwasien shied 324, 325
certificate of incorporation, requisites of ..................0.. 284, 285
filing and recording Of 2226635 ssmemsasmrereevees ses aseercas 7
forms: for ss 4 sest04a% 4 einsindiooaaea a eed cease oa ani 1053, 1056, 1066
supplemental certificate 2 2.0... cee cece eect eeee 289
Chautauqua assembly grounds, roads through, prohibited.......... 305
conductors, badges to be worn by ......... 2c. cece eee een eee 341
policemen, may be . ....... ec c ec cce eect e cence es 85S
qualifications ©. 6... cece eee eee eee eee scaled. SiG -osieiaane os SUanpurnanuevee ssi 340
common carriers, rights and liabilities as ............... 0c cece eee 347
connecting roads, accommodation of ............ eee ee eee eens 330
railroad commissioners, when to act ..........-..-..-005- 330, 331
constitutional restriction Upon 1.1.0.0... 6. cece eee eee e eens 740
EXCEPTION, = eycaes ra eeelneoased ee oswied ys easels ea esas godt 742
consent for construction of road by railroad commissioners........ 356°
railroad commissioners may grant ..........:..seeeeeeeeeeeee 356
refusal by, proceedings thereupon ...........-....+-.000e 356
tunnels, for construction Of ........ cece cece cree cee nee 314
local authorities, consent of ......-.... cee eee eee eee es 314
property owners, consent Of ..........6. cece cece eee eee 314
refusal by, proceedings thereafter ............. 314, 315
consolidation proceedings for ..............0ee0ee 48 Hiavriasocicees 374-379
certificate of, forms for . .22 2626.5 ssdsenecsereaeicsseees 1067-1074
WiSeting {ON 2: hav ceccwageshedene ads wees tr eecesesee 316
mortgages made by consolidated railroads, foreclosure........ 379
prohibited by parallel lines ............ceeeeeeeeeee eee eteeees 385
property vested in new corporation ..............eeeseeeeees 377

taxation of .........

AG eee Sea NsGkikee eeeangsewes: B29)
GENERAL INDEX. 1173

Railroads (Continued): Page.
construction of steam roads ...... shewaaiae eas sk oa ate eas CaS oS 322
beginning construction, limit of time .................6. 296, 297
consent of railroad commissioners provided for .............. 356
proceedings, when such consent is refused ................ 356
constitutional provisions . ........ cece eee eee eens 740-742
fences, farm crossings and cattle guards ................ 324, 325
grant of powers fOr ........cccceece ees eee see eeeeenettaanees 292
penalty for failure to construct ............ cece cee enone 296, 297
route, when common with another road ....................-- 314
streams, highways, etc........ 00. c cece eee eee eee ee eens 292
«tunnels;. consents: TOR 02. scence seu toed oa ayes eed one ee ned as 314
weight: of rail: sisi sp ee ie ceeae ewan Desa ee ee 324
contractor, employes of, Wages ........ 0.00. cece cece e eee eee 823
crossings, stops at, when to be made ...........-. eee eee eee 331, 332
damages caused DY .....-. sees eee e eee tence eee ener een tenes 306
flagmen to be stationed at certain ........... 00... eee ce eee 327
grade, to be avoided 11... .... cece cece cece cet e renee seens 363
pipe lines under, regulated ......... 0. cc ese e eect cece ee neees 224.
sign boards to be placed at .......... cee ee eceen cree SS anes 327
street crossings, manner of constructing..................... 364
tramways, CrossingS DY ..... cc cece cece ce cece eect teen ee enees 220
‘couplers, automatic, when to be used ..............0005 349, 350, 483
damages caused by crossingS ......... cece ccc ee eect eee eee nenene 306
ejection of passengers refusing to pay fare.......... cee eee wees 336
elevated railways; see rapid transit railways, infra.
emigrants, rates to, penalty for violation .............0 eee cceeeee 630
employes, badges must be worn by......... J eWaslihe sare newewew ee 341
intoxication of, a misdemeanor .............c cece ee ee eenenes 616
jurisdiction of court in such cases.....).......2.-eeeee ee 641
qualifications Of sa sccsuwncaciows cu tew sss ted oes was sane 340, 341
wages of, liability for, if not paid by contractor............... 323
engineer failing to ring bell at crossings ..............0-0e0ee eee 616
engineers, illiterate, employment of, a misdemeanor............... 615
fare, rate of, power to fix ..... ce cece eet e eee e ence eens 295, 332-334
alteration by legislature ........ 00... cece ee cece eee 334
Cable Toads: 2 -aves sides lon? ceases eevee see sara oe 332
extra, When payable... cscs sscns hd eee cea a denis eee eee 465
rebate tickets for ....... ccc cece esse eee eteesere ces 465, 466
general provisions .......... cece cece cece eee e eens 332, 333
_ mountain roads .............4. i Sia ee Haalalearas aes outers ace Seaweed Ne 333
New York Central Railroad............ 00.0 cece eee een 333, 499
penalty when excessive ............ bi Rhine pace teediews Guam $6 336
refusal to pay, ejection of passenger .............0ceee eee eee 336
short. roads, not in cities 2. ccc cs eece cece ee sares yee erees on 333
sleeping and parlor cars, extra fare upon............... 0.000 339
summer roads, maximum fare UPON ......e se eee eee ee ee reece 320
POnCS. Obes singin 5 ahd. as wd yA Ady ea RE eH Ne AEN Oia mee Mavs 324
barbed wire, use of, regulated ........-..seeeeeeeceseeeenees 324

‘ferries in New York harbor, operation of ............cceseeeeeee 353
1174 GENERAL INDEX.

Railroads (Continued): Page.
flagmen at crossings ....... fab sah eae sal dag vayneaaiw vey ang eas AG rece ecole etapa eer eee 327
foreclosure sale, mortgagee may purchase at .......eeeeeeeeeeenees 386:

certificates of stock may issue after................0 eee eee eee 386.
liabilities of reorganized corporation. ..........c0eeseeeseeee 386
foreign countries, formed for operation in .............eeee eee eeee 316
additional powers Of .........cecceceeesee eee eeeceenees 316, 317
certificate of incorporation, form for.............-.-..0e00s 1066.
location of principal office ........ ccc cece ce cece te eee eee ees 318
foreign railroads, powers Of ........ cece eee eect e eee tenes 380:
forfeiture of corporate POWeTS ........ cece eee ence eee e ence eaes 2961.
expenditure of ten per cent required ..........-...000005 296, 297
freight trains, riding upon ....... 0.0... cece cece eee tree ee eeee 618
freight, unclaimed, sale of 2.2... 0. c cece eee tee eee eee 343.
game, transportation of, when prohibited........... 0.000005 280, 281
general corporation law, provisions of, applicable to............... 2:
Grade, ‘Charige::Of  a5.0 o6c.4 cae aaa se x ene 2 F coal eames Sie 311, 312:
prade crossings, stops at: sa. cis cess csr cces wes esawex ces eens eas 331
construction of, to be avoided ......... cc. cece cee cette eens 363:
railroad commissioners may regulate .........-......0005 331, 332
watchinan ab: soi. cass ageais ie x es dae ek caer wae 331, 332
guard posts, erection of .......... 6. cece eee eee e eens 349, 617
highways, intersection Of scccs ss ssecweew ces esoese esas s Gua eaeaes 306
TEStORACION: Of 40s cased evaded nd Mean CAMs e HOC OTH Meee 306.
Indian lands, acquisition Of .......... ccc cece ee cece eee ences 305
intersection of other railroads .............ceeceeeecceeeseeseees 809
additional lands for intersection of highways................ 306
intoxication, persons addicted to, not to be employed........... 281, 282°
lands, acquisition by condemnation (see Condemnation Law).
State lands, acquisition of .......... eee ccc cee eee eee 304
lease of road, when authorized ........... cee cece eee ee eee tenes 381
parallel lines not to be leased ............ 6. cece cece e ees 385
proceedings to authorize lease .........cceeee een eeeees 381, 382
forms for sanvcccsemeias gorst sae Ms Swe Kee HOE Ss A 1074, 1075:
surrender of stock to lessee ...........0eee rene eyeseeeus aes 384, 385.
liability of railroads as common carriers ..........+06 gor ee eats 347
wages of employe of contractor, liability for .................. 323
mails, conveyance Of ..... 6... cece eee tee een eee cere eect eaeeees 354
mar bea ees ID sea gui stan aenarina id Wed aceon yee eno O a Nee Qiaw Bauer 296
obstructing Cars UPON ......... cece cee ee cence eee en eaee a eae aaa 633.
operation of summer roads .......... 06. e cece cece cere eee e eee eee 326
other States, railroads of .......... 0. cece cece ete eee eeeeee «-. 3880
parallel lines, lease or consolidation of, prohibited................. 385
parks; ‘use: of, prohibited: wicaeiswiaus sic Qos c ny aw aie ane oie adeets 426, 487
parlor cars 22 syoaaexe dscns ade wee eee MURR 23 Mee awed Ae 68s 339-
passengers, ejectment of, force may be used..............-0005 >++ 610
passenger cars, construction of .........-.seeeeeee ae ae wha Gia saeee 617
heating apparatus, regulations ............. ccs cece eee eens 617
placing in front of freight car a misdemeanor................. 617

tools: In. vinusds sisi ods e dete bo eae ve ems dae wee Pas 349, 350:
GENERAL INDEX. 1175

Railroads (Continued): Page.
platform, riding upon, forbidden .............. SG Sawa pda Deke 351
policemen, conductor and brakeman may be ...........seeeeeeeeee 355
powers, general ...... og Wiebe ledepaistinGr are 'ate: clavaee ara: dyaye einige veces ees 290-296

acquisition of real property ............ cece eee eee eee eee 290
condemnation proceedings authorized ............... 302, 303
borrowing money, eCtc........ 6... cece cece eee ee ete eee 296
buildings, etc., to erect 10... cee cee cece eee ee eee ee eaee 294
forfeiture, if road is not constructed................cee eure 296
POTEIPTE TAULOMOS: ei ages t tos causes Geers sain ase aeeien S08 Manad aged SR a eee A 380-
highways, intersection Of ......... cc cece ce cece cence eee e nee 306
Indian lands, acquisition Of ........ 2... cece cece eee eee ees 305
intersection of other railroads ............ cece eee e ee nee eee 293
CONBIS 6 sia wee eae 1G Oe SERENE eR Raw ong RA RONG HERS 292
highways ........506 Se VOGine PARES a SRS a aS 292
Plamle-TOwds! -. ales aiew carne Meade Ramee Maou aoyMelea a 292
SUNCAMS gee Ve tenes sae NGG Shed eae cseheetess 292
turmpikes: sid 2csd swine cine Mossman esd Paya Ne eae ae aaaak 292
public lands, acquisition Of ....... 0. cc cce eee ee eens Hoc ne 304, 305
purchase of lands and stock in other States .................. 295
real property, acquisition Of ............6 6c cece eee e eee tenes 290
condemnation, may be taken by ...............0005- 302, 303
survey, entry upon lands for ...........esceee sees eee 290
transportation of persons and property ..................05 295
transportation of persons and property, regulation of......... 295
‘property, interfering with, unlawful ............... siatesiasontnaiti 638

railroad commissioners (see page 1176).
rapid transit steam railways (see, also, Rapid Transit Railways in
Cities of over 1,000,000 Inhabitants).

abandonment of portion of route .......... 0... cece eee eens 467
APPUCAHON LOB s sic. ciwemewe Woda oe dew aa ommend caedeied wel 428
certificate, commissioners to deliver .............cceeceevees 435
affidavit of directors o... si sseeccseeeeass cesies seecswnet 435
eominissioners, appointment of .......... ccc cece eee ee eee 428
bond of .......... stbe cee jos Waeteuadesa's Helter fete veenvex 429
compensation Of ........ ccc ccc cece e eee eens 438
first meeting Of 2... cee reader rue dee eae baw HGR CL eas ee wd 429
NEW COMMISSIONETS ........ cece cece ee eee eens 439-443
POWETS Of ees aicews-c sales eee Sew see aeeee ne a yalnd 439-443

OGth. OF cain cea esdasew es $F tesioliesRyacqnaae aca doustione ove aners deabninees 429
QUOTUM ........+..00 ee been ener neee secon eens seer eeees 439
report, confirmation Of ......... ec eee eee ee eee e cree 437
filing of ........ sajay ahaueebaseaveceteaece, Rennes weeeee 487, 438
TeMOVA)! OF: pcs deg ae eee ha SHEE Aaa Tel etageemaR ss 439
term of office .........00005 amar ea sae Sido Hat maanes eee 439
vacancies ...... orate aig ibnaderd eideelatie, Sate Dey elanande abeiiee es gata Be 439
construction of road, when to be completed.......... a Rei BERS 431

damages, appraisal Of ....cccecescscceecetecetccrtreesseeees 482
1176 GENERAL INDEX.

Railroads (Continued):

rapid transit, steam railways (continued) : Page.
damages, deposit of securities for... .... Sioa S-oAtesned: te reae Seg sy AOR
increase of, when and how required ...... acahvenaaeae .. 444.
determination of necessity of road ............ cece ee eee eee 429.
directors, election Of ........... cece aeccceceeeaceee aah 434
fares Tate OF vcacyig is entaie Mids we seme ee eee Snes gates 431
franchises, proviso as to forfeiture 2.0.0.0... .. ccc cece eee ee eee 434
free transportation to policemen and firemen.............. 591, 594
PALES ON CATS: ice osaiens @ ee ae ewe TORS Oe eles salanecd ae 445
posting of section relative to........ ccc cece eee eee eee 445

HODES: OF LADO acs cs Se 5.505 aie i5-0 Ge sw Bias Beans SEE SI SSA Bre OE 489°
incorporation, certificate Of 1.06... ccc ccc ete cee eee 434
organization, meeting for ............ 0. cece eee cee ee eens 434
penalty for violation of article .......... ee acca ee eee eeee eee 445
posting of section relative to 0.0.0... . cece eee e eee ees 445

plans for construction .ciecsisavescageeeseteeeseeaw ces ones 431
adoption Of .........eeeeceee ee eeeee ede mean eneeceeeees 431

delivery Of Plans: 2.6 cc.cdsesceeed tease yoy Seabees 437

powers, grant of ........... scahahecelelevelale aineee areas east ee cans 435.
route, determination Of .......... cece cee eee eect nen eens 429
abARAONMENE OF ciiccvdses ve suuig dae sebiole seciuian ga oe 439-444

Portion tof civ yw dues peewee mes es ehtae ae Bee 467

coinciding with another .......... sein PL 5.4 OS RRR S Sa 436
crossing horse railroad track............ 0. cece eee eee 436.
location of, exceptions relative to .......... Saas Se 429, 430°

stops, trains must come to full stop............. 0. eee 444
posting of section relative to ....... ccc cece cece ee eens 445

wages, cash payment Of ........ cece cece e etree etn eee 490:
real property, acquisition Of .......... cece ee eee ece ene eens 302, 303
reports to railroad commissioners ............00e cece eee eeeee 354, 355.
restoration of streams, highways, etc.......... cc cece eee eee eee 306.
restriction upon construction of new road ..............+.05. 356, 357
rights as COMMON CArTieFS ....... 6... cece eee eens 347
route; location-Of #524520 csuid ses paw god's weed obs ewes cd sine eaten ~ 299
Proceedings fOr ....... cece cece tenet een e ere eset eteeeens 299:
FOPMS OR irom siscie ga sande iaveses tay Seal aeerg ace Gee ares Waele ads 1059-1064

route; change Of) sss rsa paar teecea yes deeds soi eaeene eames oo 46 311
route, location of part in adjoining States ..........0eeceeeeseeee 313;
route, location, if partly the same two roads .............00 see eee 314
safeguards, authority to use ......... ceaaWeage s eates Reanitne tes whe 349
signals to protect employes ......... 20: cece eee cece te eennneee 349:
signboards at crossingS .........seeeeeeeeece bea oe sie sae fg attire 327
sleeping and parlor CATS ....... see eee cece cere eet c eee eeeeeece 339°
stations, discontinuance of .......... eavecexeneesaasoyiy iss bine Phage weteaun 129
names of, regulated: oo. .sssed via eed edeue comune eee see veered 329°
steamboats, connecting, tickets and checks for ...............e00-- 345.
. stoves and furnaces, use of, forbidden AGosaeedeee es Beer oee eas 350, 351

exception relative to dining cars ............... ieee pails 350, 351
GENERAL INDEX. Liv?

Railroads (Continued): Page.
streams, restoration Of ..........0ceeceeeeees S8 eR SEs Kew Rae 306
streets, restoration Of .......cceceeeeseecnuece uaa yeneeend 9B Byaroenecee 306
street surface railroads .......... 0c cece eee eee eens 388

abandonment of part of route ..............0005 sediaders Genesta ats 421
Application, of ack tO» cscgscisc gaye eee ye ey eRe Seip yas ee 388
bonds, guarantee Of . oc cess is cee esc sce wecenssune cee was 418, 419
DPIdBES, WS OL, DY sv aicicce vw edema wee amine Be andes Sonate eee 418, 427
construction Of road: si: diwevadee ges See sees eeealdes see 388, 389
consent of local authorities 2.1... 00... cece cee eee eee 391-397
conditions in large cities ................... 399-404, 409
percentage of gross receipts may be required ........ 409
proceedings to obtain ........... cc eee cee eee eee 397

fOFINS LOL” yk ois Sete donee oar e hea hee 1078, 1079

property owners, consent of..........ee eee cece eae 391

failure to obtain, proceedings thereafter ......... 406

Forms LOL oc csec esses cece eect eee snscnerse ones 1076

failure to complete road ............ 00 cee weeee 296, 297, 424
limit of time fixed ............ cece cece eect ee eens 414
parks and public grounds .........cecc see eeer encores 426
street in which another road runs ......... Pabiscare sug tape eti 412
dissolution, effect upon consents to construct ............... 423
expiration of consents for construction .............-.000005 414
extension of route ..........220006> Foaceonceipvoasg Goats, oe weed soars 388-397
local authorities, consent of ...........-.. cece eee 391-397
conditions in large cities ...........0..008 |. 399-405, 409
proceedings to obtain ........... Growin, @ as avenie Gd asa ae 397

forms: £0 gs Sie ePhenes oes SAGE Rss OHS 1077-1079

property owners, consent of ..........00.00. dans aee ae 391
non-consent of, proceedings in such case............. 406

FOr LOL: pas vanmwied cs se SRe a eae es eawe se ee SE 1076

rivers, extending OVer ......... es eee e cent eee eee ees 411
extension heretofore made, operation of ............ 473, 474, 486
failure to complete road, effect Of ........ccc cesses enceeeees 424
ferries, may connect With ............. 0. cece eee eee eee 418, 419
FPANCHISE,? SAlE. “GF 5.2.6 sersieteow ghd HaMelae aaa beaceetenes eeee 399-405
free transportation to policemen and firemen.............. 591, 594
guarantee of bonds ........ 2c csc ccc eet e eee c ences eeene 418, 419
hours of labor upon ............. adeatsona  ocayusdetbier ace secesees 488, 489
ice and, snow, removal Of . pcssceesieeddasiangewewnw cise esac 412
lease of road ......... aii bas he wR ala Ra dates Gitawins’s ooee- 381
local authorities, expiration of consents from................ 414
motive power, and change Of ............. cece cece e reer eens 414
property dwhers, expiration of consents from..............++ 414
part of route, consent to construct ...........ece eee eee eee 362
rails, center-bearing not to be used ............ cece eevee 427
Sy PAGO OL. LATO 25g aus code aaa SAE OR EAT A eRe a5 416, 421
tevocation of consent to construct ............ Spaaleldtedahnaaiatsys 362

route, extension of (see Extension of Route).
1178 GENERAL INDEX.

Railroads (Continued):

street surface railroads (continued) : Page.
sand on tracks, use of ................ ee eee .. 426
streets, repair Of ....... cece cece cence ee eeeee ai St eierevavaiexe bays 412
tracks of other roads, use Of.......-..-0e cee eee eee eeee 412, 418
crossing of, by new road ......... cece cece ee eee eens 418

stock corporation law, provisions of, applicable to ................ 80
summer roads, additional provisions ..............0eee eee 353, 354
operation of, months designated .......... 0.0 cece eee eee ees 320
rates of fare UPON ....... eee eee ee eee ete cette reece ee neeeeee 320
supervision of roads near canals .............06065 292, 293, 312, 313
surrender of stock of leased road............. 000 0ee eee eens 384, 385
SWILCHES: suites os ee DF ade a REME Ve se SEW TERT sas ee eam eee 349
interlocking, at grade crossings ...........6.. es cee eee eee eee 331
tickets, forgery of, penalty ......... 0... cece cece eee eee eee 621
tickets, sale of, by unauthorized agents.............. 334, 335, 626-628
tickets, statements to be printed thereon .............. cece cen enee 629
thistles to be cut ......... 6s eee e eee eee eee Bini satis Ge PEA en ae 351
tracks, individuals may build and operate ...... ‘Mean Giga eR eA TS 318
injuries to. tracks 2: cisseesivawd cee etee sian 649s O94 be ES 633
walking upon, forbidden ........... cece cece ce cence e ee en eens 351
traffic, exchange Of siciscccsios ved eae a ea Sead ese eee Hae eee TS 309, 310
tunnels, construction, Of i. sos6cs sing oo Keine C20 dare lnesaee vanes 314-316
lighting and ventilation of ............. cc cece cece eee 468-470
uniform to be worn by employes .......... 6. ccc cc eee e een eee 618
wages of employe of contractor, liability for .................0.. 323
cash and weekly payments .......... 0.6 ccs ee scene cree eens 490
watchman at grade crossings ....... 0.0. ccse eee e cece et ee ees 331, 332
waters, acquisition of ........... ids Teenie ARS are a Sete NSE ah ged 302, 303
Weight: Of Tall scauusa.s'ssnnwoe vos magi eos tis Vem eS eee ee es MUTE S 324

Railroads, Miscellaneous Acts Relative to:

automatic couplers, use Of «2.2... 0... cece cece eee eee eee. 483, 484
air brakes, etc., use of .. siete nlc lie haves ina on ear alpaca oe 482, 483
baggage unclaimed, sale of .......... 0c ccc cesses e cence nee 343, 344
bonds of railroads, to make non-negotiable ................0-00 eee 495
bonded indebtedness, increase of .........-..0.eeeeeee oeaiainds 466, 467
canals and feeders, supervision of roads near ................ 292, 293
canals, corporations owning, may operate railroad ................ 463
cemetery lands, roads through, prohibited ................... 457, 458
conditional sale of personal property, filing of .............. 494, 495
corpses, transportation Of ............c eee e cece eee J Sad gacand 485
county roads, railroads upon, restrictions ....................05- 466
flat or grooved rail to be used ............ cece ee eee eee ee 466
paving between tracks ....... sigs eSolowea hewbw sa SaaGeieeeee 466
crossing highways, consent of commissioners ............ i sal si . 457
depots, lands held for, not to be crossed by streets ............... .. 478
election of directors, time, change of, in certain cases .......... «ee. 463
elevated railways, abandonment of portion of route ...... latch atthe . 467
GENERAL INDEX.. 1179

Railroads, Miscellaneous Acts Relative to (Continued): Page.
elevated railroads, to facilitate travel upon ...........0ecceeeeees 487
equipment and rolling stock, conditional sale of ............e00ee8 494
fare, extra, when payable ........... cc ccc ccc ccncccccevceceueees 465

rebate tickets for 22.0... 0. ccc cece cee c sce ceneeceeceeeeseees 465
forest lands, precautions against fire ............. 0. cece e eee eeaes 481
game, transportation Of ......... cece cece cece eee eeeeetees 280, 281
Page, Change! OF asic) eccon sree sword sarnoiee Haelne ss 4 owes ielenle 466, 467
intersections and crossings ............. cece eee cece tances 479, 480
highway and street crossings ........... 0. eceeeeee eee eeeeee 479, 480
hours of labor to constitute a day ...........-ce ese e ee eeee oes 488-490
immigrants, protection of ...............0.. Se Wcities anaes aie ee 459-461
liens upon railroads for labor .............ce eee eee vere neeee 493, 494
liquors, sale of, by common carriers .......... eee cece eeeeeeenens 281
Madison avenue, New York city, railroads upon ..............0006. 471
milk cans, regulations concerning ............. 00s eeeeeeeee eens 465
mortgage: by rallroads «css. seas cane ys speeds Hae 84 peels 6 ieee oe 296
municipal taxes payable to county treasurer ..............-+ 474, 475
New York city, construction of railroads in, regulated ............ 462
oils, regulations concerning .......... 0.0 c cece cece eee e nee eee 464
parades not to interfere with trains ............. ccc cere eee eeeees 462
parks, railways in and near ......... cece eee eee eect eeeee 471-473
parks in New York city, use Of .......0. cc ecececee cece nereteenees 487

Railroads (Miscellaneous Acts):

streets, use of certain, prohibited ............ cs ccc eee cee eneeeee 487
streets and highways across railroad tracks .............eseeeeeee 458
tramps, punishment Of ......... cece eee e eect e cece nee eeneee 399
tunnels, lighting and ventilation of ............ cee eceeeeeeeee 468-470
wages, cash payment Of ....... cc cece cece etc ee tee eeeeteeeesnes 490
Railroad Commissioners:
abandonment of route, approval by board ............seeeeeseseee 421
accidents, investigation Of ....... ccc cece eee e eee e reset eneenee 451
accountant, duties Of ....... ccc cece cece ect e eect eet een ee seeeaees 448
additional accommodations by railroads, duty relative to ..... 451, 452
annual report of board ....... 0. cece ccc eee cree eee n ee eneeeeeenes 454
application of the law .........-..0.-0+ Mid insta ee: dpattenseee aa Misia des 456
appointment of board ......... cece eee eee eee ee eee aeees 446, 447
award of prizes by board, for improved appliances ................ 456
clerical force, appointment Of .......... cc ccc eee e cence eee eeeees 448
eonnetting roads, powers respecting accommodations .............. 330°
construction of new road, consent for ...........ceceeseeeeee 356, 362
discontinuance of stations, consent for ...........cecceeeeeseeeees 329
eligibility of officers of board ...........-. +e cere eeesareeeeneees 448
engineers, appointment of ..........-. 2. essere ee eee ence e eee ees 448
evidence, copies certified by board, may be used a8 ...............- 454
fees to be collected by the board ............ceceeeeeee eee cunees 453
freight rates, change Of .......sssceeeceseeeeeees secceseves 451, 452
1180 GENERAL INDEX.

Railroad Commissioners (Continued): Page.
information to be furnished by railroads ............ceeeeeeeceees 453:
inspector, duties of ............0eceeeee eslerta se tele dydudi osteveceetnorcanaieceoaiese 448.
marshal, appointment of ............ § SANG S a Waser ste Geis See See ee 447
meetings of ........... dv szasha a cacaes ae ees ee eee 448.
misconduct of ........... susdeiece slavenera a aQtaue a 2,5 Wiunsle Os WAlade emma ard tna 615
OathuofioMee: sae ve ndos epg Pie Aue een da evel ane onmdiaeats ate 448
part of route, may certify ....... cece ccc eee ee eee eee eens 362:
passenger rates, change of .......... ccc ccc c eect e ence noone 401, 452
powers and duties of, generally ........ 0... c cee ee cece eee ee tenes 449:
principal office of board ............... Siaiede: dy lauaed dos Raa Fumanaes RO 448.
prohibited acts by board or clerks ......:...... 0c cee ee eeee 454, 455
quorum of board ,..... See an nile wo eee Caw ER eee naka Res 449
recommendations of board ........ 0... ccc cee cece cece eeeees 451, 452

enfovcermient Of, si63.ic susan sawiers aeesnue tun dagednetinay teas 452
repairs, duty relative to ......... 0. cece cece creer eee v ee eveees 451, 452
reports of railroads, to prescribe form of ............0 00 cee eeeee . 450:
reports to he filed by State Engineer (repealed)................... 471
revocation of certificate of consent ............ 0c cece eee cee aes 362
safeguards, approval of 2.040% sc asene ese des sa vewsk «5 Pee RST sme 350
salaries and expense of board ............. 0. eee e ence eees 455

assessed upon railroads ..........60. sees ee eee soot 455, 456.
secretary, appointment, powers and duties .............0-eeee eee 447
stations, may consent to discontinuance of .............eeeeee ees 329
subpoenas, issue of, by board .................40.. aylos aa si. asia 453
suspension from office .......... cc cece ccc cece sete eects neeeee 447
term Jof office: sc0.2 25 osersiex ca aesag ex a nose 6 o4siniey seaweed ees 446, 447
mnlaiwhl GHOPS: TO) sc ceaceie reseonsts ccs 44 Gueue grand diepas caw pie al aedhanere @eolecasa ea Goth 615
violations of law, duty relative to .......... cece eee eee eee 441
witness before the board, fees Of .......... ccc cece cece cette 453.

Railroad Law, The (see Railroads):
application of, to previous corporations ...............0.000e 59, 60:

Rapid Transit Railways in Cities of over 1,000,000 Inhabitants:
act for construction, operation and regulation of .............. 501-563:

Real Estate Corporations:
GOHAEMUALION: Dy? ose 9 cores sarnneaaneieninw de dias aver Nabeab aca ne ees «e.. 207

Real Property (see also Property):
acquisition by condemnation (see Condemnation of Real Property).

Receivers (see also Dissolution and Receivers) .................. 692-737
Reduction of Number of Directors (see also Directors) ............ 110-
Reduction of Capital Stock (see also Capital Stock)............. 152-156:

Reincorporation of Existing Corporations:
business corporations, proceedings for ..............cseeeeeeeees 195
qualifications of incorporators, exceptions in such cases....... isa &
GENERAL INDEX. 1181

Reorganization: Page.
corporation formed after foreclosure ..........cccceeccsceneececs 91
proceedings for organization ..........cccveccnrecnccceoeees 91-96
certificate, form for . ........... eee eee eee eee aides BS Ew eR Cue 915
Reports (see also Annual Report) .........cceceecee cen eeeeeeeneees 128

Residents of State:
directors, at least one must be ..........cccceeccccscececeeeesece 47
incorporators, one must be ......... cc cece ect e cee n eee eceesencnees 6
qualifications generally . ....... cece eee cence ee eeneeeenee 6
exceptions in certain cases ..... Grae eialae See So acne diate 6

Revival of Corporation:
court may order . ....... ec eee cece eeeeee eC Ore T COT er Mee LA

Rights Accrued:
amended certificate does not prejudice ..........ccccseseeccccneee 16
repeals of laws does not affect .......ccceccecccsccccsccees 58, 59

Sale of Franchise and Property:

AUCHOLItY FOR cade sccca oma bees tees Via e's waisldeee ad wieieleiee ey 132
consent of stockholders required ...........ccceeeee eee cee ences 132
dissenting stockholders, remedy of ...........-..ecceeeeernee 132, 133.

appraisal of stock Of ........ ccc cece cece eee ee tees 132, 133
supreme court, powers relative to ........c. cece eee eee eee vee. 182, 133

Saving Clause:

repeals, “Effect: Of :scc.c0c nanadin dense onubaeauee choeneey deteeeds 58
liabilities, not affected by ............ ccc ceee cece erences 58
rights, not affected, by os. csc. ccecvuseseeccustasnnveceasesces 58

Seal:
power to have and alter ........... Lan ye Sie SelGeaeeioncae eG 21
private seal, use of authorized .......... ccc cee eee cece enon ce reece 750

Secretary of Corporation (see Officers).
Secretary of State:

certificates filed and recorded in office Of ..........sceeeececreeee 7
copy certified by, filable in county clerk’s office.............eeeeees 7
evidence in court, may be used for.............ceceeceeeee 17, 18

fees, payable to in advance .:..........ce see eneeeeee ee ads teleieis 7
transmission of, information relative to.............eeeeeeeee 79

Shares:

number and par value of, may be changed...........seeeeeervers 177
proceedings for. ....... Wasp eee Ge eo areieeeeiies scoineeeat . 177, 178
Certificate, form, OF « essie assests os serene scaeeeeesis ve tes 948

Sleeping Cars (see Railroads).

Special Elections (see Elections).
1182 GENERAL INDEX.

Stage Coach Corporations: Page.
certificate of incorporation, requisites of............. be paasneeed ad 217
filing and recording ........... 0... esse ec cee eee e ee eees eats 7

fees payable for ......... cc cece cece ene terete ec eeneee 1023

LOTM LOT dentin Se ours soe hee eee ae eas ee kOe aan’ Gina 1022
classified as stock corporations ...........00. cc ee eee e eee ee eeees 3
existing routes and extensions ..............0..eecse evens istic v.20 218
general corporation law, provisions of, applicable to.............6 2
New York city, exception relative to ............ ccc eee e eee eee 217
powers, additional, grant of ............ cece cee eee eee aus atehe . 218
route, alteration or extension ..... Bie Ap aenne Guat dik od a Oe ee ST 217
Gertifieate: of s tc anaes wiinawn- a tat een wed ween Séwiaannes LL, 218

form f0F 4 secs sack nee scio yes deme pea gies secseece. 1023

stock corporation law, provisions of applicable to.........seeee+e. 80
Statement to Stockholders: ...........-.e-ee eee ieee eweeveeatries a (602
account of assets and liabilities .............-..00e ee ater sea aoe. 169
treasurer of corporation, when to furnish........ sularsueleneince: 06 169

refusal by, penalty . ............. eeeeaueen neegiwanges: 169

time to make, how extended .............. Gest Weaeeisisedawences 169

State Constitution (see Constitutional Law).

State Taxation (see also Taxation):

act relative to annual tax ......... sheen Meier k eieidlalaalewre sia oeeee 763-862
organization: tax: i. svcd iaels oases eeeeite vaa's atime ns errr 73
tax upon foreign corporations for license .............. eee e ees 76, 77

Statutory Construction Law (see also Construction of Statutes):

application. Of ‘act. « cicoreass se eyssarwebuee bee eee seleee waves gaa 747

PROVISIONS OF i. ciccdutw inane de 644444 sWeemEeE sIN se BSE e RAN a 5 Grae 747-762
Statutes Repealed:

schedules of:s .s.2¢ 33 saessevoiewsas eeeesid ss Somaews 62-72, 271-273, 762, 866
Stay of Proceedings:

actions collusively brought .................04 ives as heetaiene yes 46
Steamboats (see also Navigation Corporations):

connection of railroads with ...................- ade wedi 1 BAS

operation of, by railroads in foreign countries............seeeeeeee 316

Steam Corporations (see Business Corporations).
Stock (see also Capital Stock):

acquisition of, in other corporations .......... Sredeenwesgeeegden 18d
bonds, convertible into, when to be ............. se Gabe sieaweere 81
certificates, to represent ownership .............ce ec eeccceceenere 135
forgery of certificates, penalty ...............0... a Oy Seema 619
forms for certificates ............... aisan's waleeisle 244 3 1518 929-933, 944
issue of certificates .............0..0000. sivucsbiensueie etx aria necccayecs 135
fraudulent issue, penalty ................. cccvccaveee 621, 622

loss of, issue of new certificate ....... Wanipiew sevesseee-s 167; 168

proceedings in such case ........cecceeceecersvceesescrses 167, 168
GENERAL INDEX. 1183

Stock (Continued): Page.
classification of common and preferred, how provided for.......... 157
consideration for issue Of......... 0... cece cece cece ee eee ere eens 148

money, labor or property may be received for...............+- 148
increase or reduction of ......... 6c. cece eee e eee tenes 152-156
certificate to be filed icc svicvsweswesvecnss pews eres easier ves 155
VATIOUS LOTMS: POP ac wieaidee sw secchnsd os Nae seek AeGa 934-943
meeting of stockholders to authorize...... a Beacon 154, 155
notice to be given ....... cece cece cece ee ce een en eeneees 154

fOPM, JOP ye saved peor wa eid teehee eae EA EN A 937

unanimous consent without a meeting ................0e eee ee 154
money, labor done or property in payment FOF sciwineniia cadres ae 148
number of shares, change Of ........... ccc e eee e seen ee enereee 177
certificate to be filed ..... 0. cece eee cence enn e eet eeeee 177
LOVE TOP: a sais Segisak es dios SANG Pia ee oie eee Dae sae ae 948
ownership of, in other corporations .............. 0c cee e eens 135, 136
authority to acquire, how provided for............seeeeee 135, 136
partly paid stock, issue Of ........... ce ese ee eens IE ere eet eee 182
payment, when made, liability to cease...............0- cece eee 172
exception in case of full liability business corporation.......... 197
exception as to wages of employes ............-. see eee rece 172, 173
purchase of its own stock, when prohibited...............5---4-- 623
preferred, classification of, permitted .............:eeceeeeeeeenees 157
exchange of, for common, how authorized ..........-+--+++4+ 157
property, issue for .......-- 2 eee eee ee eee eee eet e ee ee ante 148
quorum, amount to constitute .......-....e eee e eee cece renee 21
by-laws may regulate ........ shod Se PoP aaaa Tee Meee see 21
subscriptions for, time of payment .........-..... see e ee eee ee eeee 150
forfeiture for non-payment ......... 0. cece cece teen sree tenes 150
reissue in SUCH CASC ....... cece cece eee e eee r eee teereee 150

form of subscription . ....... cece cee e cece ee eee e een neeeees 934
transfer of, regulations concerning ..........06.seesseecceeteeees 135
demand for transfer, form Of ...........ccseeereeeeeeeeeeee 933
entry to be made in stock book ...........--eseeeeeeeeereee 123
form: of transfer sj...) sic cesnesee ye ses es beter es eed des Bee e els 931
insolvency, transfer in contemplation of, prohibited........... 158
stockholder indebted to corporation, transfer by, how restricted, 115
voting purposes, transfer for ..........-.0 see eee e eee e eee eee 38

Stock Book:
corporations to keep ............ seen eee cence eee rece enseaees 123
entries to be made in ....... cc cece cece eee eee nee e nese enneenes 123
evidence, presumptive, to be ........... cece cece cere cece e ener eee 123
extracts from, fo be permitted ............-ceeeeeeeeue Rerinaenslea'e3 123

penalty for refusing ..........00-seee ee eee eee eee e teers mba 123
FOP FOR 6 eieed by grageard ese ee 6 Gani WS UE OM SAO RRS ep atom ees 924

Stock Certificates (see Stock).

Stock Corporations:
GLASSTACATTON “OE 6. ici ois te esses 2:08 eas Bee We a Sieile isa Ob Meaverecengiereinleve 3
efinition’ +=. sere sk dacesw eee oe we Se SeraN ees s oicarnile tire Seeceeems s 4
office of, where to be located Angustevens fg ue ¢o-24 Mare eed wis Wee whew. 5
1184 GENERAL INDEX.

‘Stock Corporation Law: Page.
construing, rule relative tO .........ceeeeeceeeseeecceecesrreees OD, 60
provisions of . ............. 0000 Haase wslains seceeeeesceces 80-182

application of, to other laws ..............+5 Criiswaieveones'cs | 80

Stockholders: _
administrators, etc., not liable as ........... Saceenirstss issaeewes LIZ, 178
accounting to, for prohibited transfers of property..............-- 158
by-laws, power to make .......... 0. eee ce eet eee e neces 21, 47
directors when not required to be ...........c cece eee eee eee eens 107
financial statement, when entitled to ........... cc cece ee eee eee 169
liability, when to cease ........2 0. cece cece een eee e tere ee eens 172

exception in favor of employes .............0.0 cee cece ees 172, 173
exception in full liability business corporations ............++ 197
limitations upon . ........ eee ee eee ee ee ee eee ida waaeoonisess 176
loans ‘to, prohibited. 2.56. 2 pes e deer ors a een ek eaies wie sili ails 114
misnomer, not available in actions against ............... .-.. 658, 716
mortgage debt, payment during foreclosure (repealed)....... eeeee 167
names of, to be entered on stock book ..............e eee eeeeeee 123
inspection of, by stockholders and judgment creditors......... 123
pledgors of stock, liable as stockholders .................00005 172, 173
preference of, over other creditors, prohibited ................005 158
property transfers to, prohibition of certain ............0c.es eee 158
quorum, number to constitute .......... cece cece e cae c eee sees 21
by-laws may regulate ........... 0. cece ee cece eee 004 Goan 21
remedy, for false certificate........... ccc eee eee svtcewenee 130

transfer of stock by, when indebted to corporation........
voting by (see Vote).

seeeees LIS

Subscribers (see also Certificate of Incorporation):
name in prospectus, inserting without authority, a misdemeanor.... 622
Penal Code provisions concerning fraudulent subscriptions......... 622

Subscriptions to Stock:
additional subscriptions, after incorporation, directors may receive, 145

ten per cent payable in cash in certain cases...............4.. 145
forfeiture for non-payment ....... 0.0... cee ee cee eee e eens 150
payments upon, time of, general provisions relative to............ 150

money, labor or property may be received for................. 148
pipe line corporations, amount for each mile of line ....... «Skeets 221

railroads, amount for each mile of road ......... 2... cece eee e ae 284
turnpike, plank-road and bridge corporations, amount required, 253, 254

water-works corporations, percentage required ........ Pieigers 239, 240
Succession: :
period of, for specified term .............. ee eee wacdingacaes “QI
perpetual, when to be ............... shikotitnenacelasays Ses arda Saigeush aoe 21
right of, conferred ...........0... eee ue dmaiie ne te Meee Ses 6 eae 21
‘Summons:
eriminal proceedings against corporations ............... ceceseeee 642
LOR, OF 6.0 felierenanaweeicdecsteehhcsaudawen yee ate etsseecccee. 648

GET VICE: Of o ssscrieehe tee s08 3 eGR as So sweeties wupnepabaeee $404 wees 643
GENERAL INDEX. 1185

Supplemental Certificates (see Certificate of Incorporation).

Supreme Court: Page.
actions collusively brought stayed by ...........sseseceseeencers 46
corporate property mortgaged, may direct sale of ..............0- 96
financial statement to stockholders, extending time to make...... 169
lost, ‘certificate of stock, ji 6s gsc 9s oo dauig ves cies eerie se oo he 88 167

application for relief ........... 0. cee cee eee cee eee eens -. 167
order for new certificate ..........0 2. cece cece n eee ee eeees 167

pond to be given ....... cee eee eee cnet eee e en enes 168

new election, may Order .......... cece eect cece tee tee ee eens 44
powers, respecting elections ............cecceee ee eeceees DoE ateae 44
revival of corporation by, in certain cases.............+-.. acaiernhs 55, 56

Taxation of Corporations:

annual by the State ......... ccc cence eee nee Siang 5 084 hasta cons 819-856

payable by certain domestic and foreign corporations...... 819-839
exemption of manufacturing and mining companies.... 839-845
consolidation of corporations tax Upon .......... eee eee erence 73
increase of capital stock, payable only in cases of............. 73
foreign corporations, tax for privilege of doing business.......... 76, 77
increase of capital stock, tax for privilege ...........-.seseeeeee 73
local tax upon domestic corporations ...........0.eeeeeeeeeee 769-819
exemptions: 2 ie witgaiee es we teaw are Ores eee daa canals 770-775
foreign cbsparations subject to taX acesecesvewseiee sees vena 776
organization of corporations, tax UPON ........ ccc eee cece ee eeeee 73
reorganization of corporations, tax UPON ..........e seen ence ees 73, 74
table of amounts payable for organization ...........0..eeceeeeee 75

Tax upon Organization (see also Taxation of Corporations):
act for, provisions Of 2.0... .. cece cece eee cece nett eteenneeeneees 73
corporate powers prohibited until paid ...............c cece ee eeees 7, 8
payment thereof to be made to State Treasurer .............0+ 73, 79
table showing amounts payable ...... Pied idea tere Boatatbys braves P ckavere si eteesiers 75
.transmission, regulations ...........+.seceseeeus wSeue sl eee eeek 79

Telegraph and Telephone Corporations:
certificate of incorporation, requisites Of ........ceceecsseveees ‘wee 245

filing and recording ............escce cece e ee eeeteeeeeteienes 7

fees and organization tax payable ..........0eceeeeee ees 1044

OLMIS LOT 5 hid. gas Teaeis ed boss cigtevdted tinea dykes deste esas iss Stan eeevene 1043
classified as stock corporations ..........+-..65 2 Susana weer eee 3
consolidations authorized ..........cce eect cee e ete center ee nataee 250
construction Of lines . ..... cee ccc cect e eee cet e eee eeer erences 247
compensation to owners ......-4+-++seee Digest ab Peek dersacws 247
condemnation law, when applicable ............:.ece sees 247
divulging contents of message, penalty ...........-. es sees eeeeee 635
extension of lines . 11... cece eee eee eee e ence eet teense eeeeecees 247
form fOr. s54 ewes S iees's SAR EY Siw eae es HERS ne oe oad ees 1044
‘free service to policemen and firemen .............ceeeeeeeees 591, 594
general corporation law, provisions of, applicable to............... 2
injury to property, penalty .......ceeeeeeeeeeee Sika ew eee eoee 684

75
1186 GENERAL INDEX.

Telegraph and Telephone Corporations (Continued): Page.
lease of property and franchises ............:-eecceeeeeeeseeeenes 250
sale of property and franchises .........-. +2 es seeeee ee eeeers eeeee 250
special policemen, employment by ....-..-.-.+s ees te cece ee eeeeee 251
stock corporation law, provisions of, applicable to ................ 80
transmission of dispatches .......+..e cece er ence tere eee e er ee eens 249

Term of Existence:
OX FENSION: OF 4 seia dag gwrdace wae ne alalen Sondbea ae a Hanaaee gesoarendca are 55
TOR FOF’ o Kua coeeoats fee sweden d os aa ete eee sete aate 893

Title of Corporate Laws (see Corporate Laws).

Tramway Corporations:

certificate of incorporation, requisites Of ......... 0... cece eee eeee 219
filing and recording « .. so. 200. seeneed cree ieee ss enweee eae a
fees and organization tax payable ................cceeues 1025.

EOEUD LOW fo. 5. esas suisse 2 oaisene: org: astamasrh eee dceve wuataneoee Grave acnuasauniuntia Gea jones 1024
condemnation, may acquire land by .............cceceeccecucceues 220
crossing railroad, highway, etc. ....... 0.0... ce cece eee cece ee eeens 220
general corporation law, provisions of, applicable to............... 2
POWETS,, CANT OF, CO sscecersyaie lea. e.ate eveceieiar ses tn sesacsuacs ace psais.i0 wiieuecaaeitie oO cae 220
stock corporation law, provisions of, applicable to .............00- 80.

Transfer Agent:

foreign corporation, books to be exhibited by ...........0.ceevees 170
penalty. for Tefusal aicescrgcgasawsspueuiseess veg idewe ean eee 170

Transfer of Stock (see Stock).

Transportation Corporations:

CLASS CAELON: OF go. sconivaseini a 9. ibieio lene come Gtareiaielanerdiayareiansté Sieve aoe eceerns . 3
railroad corporations included ............. cc ccceceecenecntesees 3
transportation corporations other than railroad included.......... 3

Transportation Corporations Law:
bridge corporations (see Bridge Corporations).

GONStEUCLION, OF BOs. nine cun a adiekiumandcveweleien wes a8 eels ste 270
corporations under, classified as stock corporations.............6++ 3
electric light corporations (see also Electric Light Corporations)... 22%
ferry corporations (see also Ferry Corporations) ............0005 209
gas-light corporations (see also Gas-Light Corporations) ......... 229
general corporation Taw, provisions of, applicable .............. 2, 209
laws repealed by, schedule of ............... cece cueeccuceees 271-273
navigation corporations (see also Navigation Corporations) natanae 215
pipe line corporations (see also Pipe Line Corporations) .......... 221
plank-road corporations (see also Plank-road Corporations) ....... 252
PYOVISIONS OF saci s akerou ow buyers waviness ames beine Pa Rea 209, 273

miscellaneous acts affecting ............0.:ceeeececcuees 274-282
SAVING! (CLAUSE! sean) ect endch yi p.ns adap eacate bee DS acaaaye < dea o omens» 270
stage coach corporations (see also Stage Coach Corporations) ...... 217
stock corporation law, provisions of, applicable ................ 80, 209

telegraph and telephone corporations (see also Telegraph and Tele-
phone Corporations)
GENERAL INDEX.

1187
‘Transportaticn Corporations Law (Continued): Page.
tramway corporations (see also Tramway Corporations) .......... 219
turnpike corporations (see also Turnpike Corporations) ..... eee’ 252
water-works corporations (see also Water-works Corporations)..... 239
‘Treasurer (see also Officers):
appointment of, by directors 2.0.0... ... ccc cece eee eee ener eee 115
‘financial statement, when to be niade by ...............0ees scene 169
refusal to make, penalty ....... 0... cece cece eee een eee eee 169
time to make, extension of .......... ccc cece cece cence ee eeeeeene 169
powers and duties of saw i. ide cscacs cdedeas oe sedatetsaa cewrmes eas 115
removal of ..... re er ee ee ee ee ee 115
‘Trustees:
application to, of the word directors .............cc eee eee ee eee 4
definition, ois cses cease evesa vy os gees sewed es aS Ss 4 Bias Sochaneten as 4
‘Trustees of Estate:
liability, when subject to ......... 0... cece eee eee neces 172, 173
Trusts:
prohibitions by State laws .......... Sie aikSaiehiana Woetolaae ba wRcaparen teeta 97-101
federal or Sherman act ........ 0. cece cece cnet eee eeeaee 101-103
investigation of, by department of commerce .......... eee. 603-608
Trusts (see Monopolies).
‘Turnpike Corporations:
abandonment of road, when authorized ........ 02.5 cece cece ee cees 264.
acts of directors, prohibition of certain ............. cece seen eee 266
actions for recovery of penalties incurred by corporations ......... 266
agreement for use of highways ........... ec cece cece ence eee 253
application to board of supervisors .......-......ee cece rece eee 254
certificate of incorporation, requisites of ...............6. eee eee 252°
filing and recording of .......... 6c bec c cece cece ene e en nes 7
fees and organization tax raya UPOD: 14:24 ose ceeiatase oh 1049
form fOr esi sey oe Bes dae C as oes sO NES HST een es 1048
commissioners to lay out roads ....... 6... cece cece tee eens 255
construction and width of road .............. eee eee eee eens 256
consolidations authorized ......... 0. cc cece eee cece weet eee eeu 9 263
corporate existence, when to cease ............ esses eee eee eee 267
erossing of road by pipe lines ...........seseeeeeeeeeeeeenennees 224.
tramways, crossings by .........-eseeeeee eee e rere cece en ees 220
directors, certain acts of, prohibited ..............e eee e eee eeeeee 266
stockholders, when all to be directors .........ccscueveveeeues 266
dissolution, what to constitute cause for ............e eee sence 267
expiration of existence by limitation of time ................ veeee 268
lands of corporation in such case, when town to pay for........ 268
extension of corporate existence .......-. ee eee eee eee eee eens 269
certificate thereof, to be filed ......... 0... cece eee eee ee eee cee 269
form for ..... edie wed alanitee es vacove oS oS et bias ep laiaml aaly Sola tole eae eso 1050
fences, encroachment of ........... up isumeeisiius se nee Greet ie 265
1188 GENERAL INDEX.

Turnpike Corporations (Continued): Page.
gates, rates of toll ......... 0. cece cece eee eee sieweaseewseeeace 208
changes of rates by board of supervisors ..........0-++eeee0- 27
exemptions from payment of toll ............0 cece cece nee e nee 258
location and change of ......... 00. cece cece cee teen eens 260:
penalty for running a gate .......... 6c cece cece rece erence 260
general corporation law, provisions of, applicable to............ 2, 209
highway labor upon line of .......... cece cece eee eee eens 268-
inspectors, their powers and duties ........... 0. cece eee eee ees 261
location of road, restrictions upon ..............008 oxees nvexend 253
logs and timber, hauling of ........ 0... cece cece cece eee eens 265.
mile stones, guide posts, etc. 2... .. 00. c cee cece te cece ete eee e rene 262
office of corporation, location Of ........... cece ce eee ee eee eee 263
penalty incurred by corporation, actions for ...................-- 266-
limitation of time for bringing ................ 0... c eee eee 266
proof of incorporation... scence Wade See Dei ee ae LE Rae 266.
public highways, use of .......-....eeeeeeeeeee siseiaye dt avons ie cvalarecivs 253
purchase of road by towns, when authorized .............-...000% 279:
rates of ‘toll regulated s/issssnce. sows s Wal ae sbe yea chews dato 258
change of, by board of supervisors ...............0--ee ee eee! 279°
exemptions from payment of toll ............. se RAGA ONES 258°
real estate, possession and title to ............... (ies tes 6948 eewen 255
roads, commissioners to lay out ......... cc cece ee eee e eee e eee cnes 255
route; Change Of ici vkcctase nadie ss ona ew nes tebe eae Haae seeee 262°
stock corporation law, provisions of, applicable to ............. 80, 209:
surrender Of Toad isdcciss Gee cca Hewes dw ELEAES EES Gea DO eR ERA 264
taxation and exemption ............ cc cece cece eee e teen eet eee 264
toll gatherers, regulations concerning ............0 0c ceeeee neces 259
use of turnpike by plank-road ........... 2. cece eee e ee eet eee 255
width of road ............ eee ee eee Peed cain ese We sate oa: 256.
United States Statutes:
interstate commerce act ...cceseeeeee ere cree terre eee cnteeeeee 565-589
monopolies, act prohibiting .........ssee eee eee wean wcerinaenaray 101-103.
investigation of, under federal act of 1903 ....... wise tresaress 603-608
Usury:
defense of, corporations prohibited from interposing .............. 90°
Vacancies:
directors, filling of .............. eee eee eens tvbe' e igheiel sie osha W 6.4 Wis 107
by-laws to provide for .................. sve cetaweece oe LOT
inspectors of election, how filled ..............0e.eeeeee teeenee. 12%
Voluntary Dissolution (see also Dissolution and Receivers):
stockholders may consent to ............ a artiaie's cs dees o:3's sianed eee 178
Vote:
books, evidence of right to ....... 2... eee c eee cece cece anes 38, 39
challenge Of acess iseovess dus 06 Wiad cate ie ada’ das Siaiecale oe avatergiave 42
cumulative system, number regulated ...............08 aie ¢ ataravenirs 38

existing corporations, restored to, certain ............. ee 38
GENERAL INDEX. 1189
Vote (Continued): Page.
oath may be required ..............c00ceeee LHeeuwnewareiereaie 42)
Ming Of wide es ners sere esos ha haa da cea ora sicathye aro /sagied sas . 42
fOrM Of vss dont siiciswavanness dens sg Giehie iS Wiel nde) ba ge a imaeteRs 42
inspectors may, administer ..........0....0005 Koes ek Mae 42
pledgor of stock, voting by ..............45 i biblleve b:dvoue veeee. 38, 39:
proxy, voting by ......... ccs seen ee eee se Seeeeiars icone sathe wee AL
GUEALION: i636 ca shales o whew culsive Oe Hews cit Wena en Bemew suena 41
PUTA SOR scission, ante acdcens onus gam aon aiavatatemain area ate sigenieee Ns 's'aes 8 42
TOVOCHEION : acon s tec-2Giew ia sacnie oe sWitewiase-w Lechotare aisitigee ciate s¢ AL
qualifications at special elections ............ccecceeeeeeee wissieiers 44
stockholders, one for each share, unless otherwise provided ......... 38
cumulative voting, when permitted ............... evenceceaee 38
voting trust agreements ..... i artis seeevecersererscoeseseces 38; 39
Waiver of Notice:
author‘zed in certain cases .......... J ARO eseea as deuce sade: GL
forms: for scncssgesccdtewseaadess scence eeceseccceees O41, 1005
Wages:
assignment of, when invalid ....c....ee0eee0e Wes Pe onea serine ese 492
cash payment of ....... UersyatsAeds cece tesescrescestnessccnecesens 490
liability of stockholders for ............ iol spatinietahsue eae evccae TZ, 173
receivers, payable by, prior to other claims .............. Anes 731
reduction of, while voting, prohibited ................ seceee 609, 641
weekly payment of ........00.0005 Jegueetagusy swe ceceeeee 490, 491
‘Water Companies (see also Water-works Corporations):
formation of certain, under Business Corporations Law............ 206
‘Water-works Corporations: ;
certificate of incorporation, requisite Of ............eeceeeee. 239, 240
filing and récording of .............5005. b breye na dialeies wae sa 4 7
fees and organization tax payable upon .......... seeeeee 1042
form for certificate 1... ... ccc cece cece eee Fever eegeee cede L089
permit of local authorities to be annexed ................ 289, 240
MORE POR ios 5 pee eee anes hasan 8 8 SRS, sreedin noite seewie wieae 1041
condemnation of real property ....... Qbisnavn ta Grenatie wo aiptio® esaseeaeewan 244
contracts for water with municipalities ......... ceeceecesees 241, 244
extension of operations .............0cceee eee cen cerseercescees 244
general corporation law, provisions of, applicable to ............. 2
highways, pipes, etc., im ......-..+..eeee stevens cecnveessccsccces 2G
lands to be taken by, survey and map of .......... f Sesiaiesovoerausee eves 248
local authorities may contract for water ..... Leng Teaver EL
expenses for supply, to be raised by tax ......-sseceeeereeees 241
map and SURVEY ~cephciencplacdranieenaua somone benames sesecsesssene 243
powers, grant Of ...... cesses e eee ences eee ee nee seseessecees 243
stock corporation law, provisions of, applicable to .............00. 80
survey and Map .......ceeeseeeee Caer anna enesenebecssessconens 24S
water must be supplied by ....cccsccsccccccccccccccescsevasesees 241
 

 

 

 

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