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for the successful maintenance and operation" of its railway; and by the Rapid Transit Act of 1875 (Chap. 606), every corporation formed thereunder had power, among other things, "to * * join and unite its railroad with any other railroad before constructed at any point on its route, and upon the grounds of such other railroad company, with the necessary turnouts and other conveniences in furtherance of the objects of its connections."

* * *

It is conceded that the Union Elevated Railroad Company and the present Brooklyn Elevated Railroad Company were organized under that act (Chap. 606, Laws 1875), and hence it necessarily follows that each took all the powers granted thereby.

The foregoing provisions of the Rapid Transit Act were re-enacted and continued in section 4, subdivision 5, of the Railroad Law (Chap. 565, Laws of 1890), in the same language, excepting that in the latter the power conferred is " to join, cr unite ", disjunctive in form, while in the former the language was conjunctive.

* * *

To join, to unite, to connect are synonymous terms and may be used interchangeably in the consideration of this question. Such right so to connect, under that section, may be granted and created by written agreement, and, if the corporations are unable to agree thereon, the right to necessary intersections and connections may be compulsorily enforced by proceedings under section 12 of the Railroad Law.

As was said by Mr. Justice Wilmot M. Smith, in Kunz v. Brooklyn Heights R. R. Co., 25 Misc. Rep. 335, "That the companies have the right to make such connection is not open to serious question. Railroad Law, § 12; Buffalo, B. & L. R. Co. v. New York, L. E. & W. R. R. Co., 72 Hun, 583; 25 N. Y. Supp. 263. If the tracks of the two companies were lawfully constructed, the curve is a necessary incident thereto, and no further consent or authority is necessary for its construction."

*

True, in that case, both were street surface railroads, while here one is an elevated road. That fact, however, involves no serious objection, for the reason that the right is " to join * * upon the grounds" of the other company, which, it must be conceded, is the purpose and intention here.

The two roads do not actually cross each other, but that is of no consequence, and affords no reason why they should not connect, if they "are contiguous, or so near each other in

*

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cities that the public interests require that the roads should grant facilities for the interchange of cars, freight and passengers." N. Y., L. E. & W. R. R. Co. v. Erie R. R. Co., 31 App. Div. 378. In that case the connection was 200 feet in length, while here it is admittedly a much less distance from the elevated structure into the Long Island terminal yard at Flatbush avenue.

For sixty years past it has been and still is "lawful

*

*

for any railroad corporation to contract "with any other railroad corporation" for the use of their respective roads or any part thereof (Laws 1839, chap. 218; Railroad Law, § 78), and such legislation has remained unaffected by the constitutional amendment of 1874, or the revised Constitution, as adopted in 1894. That power and right has not been limited or changed in anywise by any subsequent legislation, and the power acquired thereunder, so to contract, is a property right and a part of the franchise Ingersoll v. Nassau R. R. Co., 157 N. Y. 453; 52 N. E. Rep. 545.

The language is very comprehensive; it is any railroad corporation ", and hence all are included.

Upon the passage of the act of 1839, the Long Island Railroad Company, theretofore incorporated, acquired such right; it attached immediately to and became a part of its franchise, and upon the incorporation and organization of said elevated railroad companies, each took as a part of its franchise, and as one of its powers and rights such power and right so to contract. The act of 1839 was in full force, and is in nowise inconsistent with the Rapid Transit Act. That they are in harmony I believe, and will endeavor to show. It may well be claimed that at the time of the enactment of chapter 218 of the Laws of 1839, elevated street railroads were not in contemplation, but that statute remains unchanged until its reenactment and continuation in the Railroad Law of 1890.

The Rapid Transit Act contemplated the construction of elevated street railroads in cities, and, among other things, provided that any corporation formed thereunder may "join and unite its railroad with any other railroad before constructed at any point on its route, and upon the grounds of such other railroad corporation.” § 26, subd. 3.

If not for the purposes of a traffic agreement and the contract provided for by the act of 1839, why join at any point on its route or on the grounds of another railroad company? Can there be but one answer? Can it be said that it was not the legislative intent to

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give effect to the power conferred by the act of 1839, by permitting an elevated railroad company, organized under the act of 1875, to avail itself of the power and right so to contract?

*

In my opinion there is no question as to the power and right of an elevated railroad company, formed under that act (Laws of 1875, chap. 606) to so contract and to enter into a traffic agreement with any other railroad company, in the manner provided by section 78 of the Railroad Law, and I am not unmindful that by subdivision 5 of said section 26, it was provided that "no such corporation shall have the right to acquire * 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 that by section 129 of the Railroad Law it is provided that no such corporation shall construct a street surface railroad to run in whole or in part upon the surface of any street or highway "; but such limitations clearly have no application to the questions under consideration.

66

There was no contention on the argument that the Long Island Railroad Company has not the same right to the use of the railroad strip or right of way on Atlantic avenue as its predecessor, the Brooklyn & Jamaica Railroad Company had, and I see no room for any discussion on that point. The Brooklyn & Jamaica Railroad Company had the right to occupy and use the strip in question "for the purpose of railroad tracks and turnouts, to be used, traveled over, and employed by cars, carriages and locomotives, and otherwise in the same manner as the railroad tracks on the said ceded strip of land", that is, on the strip ceded to the city of Brooklyn.

That the Long Island Railroad Company can, on what is its own right of way, construct a viaduct for the purpose of completing such connection with the Brooklyn Elevated railroad and to carry into effect said traffic agreement, clearly railroad purposes, cannot be seriously questioned. The law, as stated by Mr. Justice Cullen in the Beekman case, 89 Hun, 15, is, I think, conclusive upon that proposition here, and if the Long Island Railroad Company has the right to connect its main line on Atlantic avenue with its freight yard by a turnout upon the surface of the avenue, then there can be no question as to its right to connect that freight yard by a viaduct, over the same street, with its structure or viaduct upon said right of way, if it has the right to make and maintain such elevated connec tion with the elevated railroad company. The purpose of the ele

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vated structure, in the Beekman case, was identical with that in this case, that is, to connect a steam surface railroad with an elevated railroad structure and railroad.

The consent of the municipality, by its municipal assembly, under sections 72, 73 and 74 of the charter of the city of New York, is not a necessary prerequisite to the making of such connection or the construction of such viaduct, nor is it to the operation of the cars of one company upon the tracks of the other company, under a traffic agreement, for no new franchise is created thereby (Ingersoll v. Nassau R. R. Co., supra), and the right to use the tracks of another company is of a contractual character. It is the power to so contract that attaches to the franchise and is the property right.

So it follows that title 1 of chapter III of the New York charter has no bearing upon this case, nor upon any of the questions presented.

By section 524 of said charter, the commissioner of highways has cognizance and control of the laying or relaying of railroad tracks in any public street, the form of rail used, character of foundation, method of construction, and the restoration of the surface of the streets after the doing of such work. There shall be no disturbance of the surface, except with his permission (§ 525), hence a duty was cast upon him, but his permit creates no franchise and cannot be construed as a consent by the city.

By the granting of the permits complained of, the commissioner acted legally and within his authority.

From the foregoing it appears that there has been no injury to or waste of public property, that the granting of the permits by the highway commissioner was not an illegal, unlawful, or dishonest official act; and, since, to quote the language of the late Mr. Justice Pratt, in the Beekman case, supra, "It is common knowledge, too plain to require proof, or to be disputed, that the proposed connection will greatly add to the public convenience, and that it falls within the settled rule of policy of the state to permit railroads to connect for the convenience of the traveling public," plaintiff's motion must fail.

It is unnecessary to comment upon the Eldert case, 28 App. Div. 451, cited by plaintiff's counsel, further than to say that that case has no bearing upon this, for there the incline was in the center and upon the bed of a public highway, not as here, upon private property and a railroad right of way. It was for some

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distance solid masonry, and plaintiff there, an abutting owner, sought its removal as a nuisance, not relief under the Taxpayers Act.

Plaintiff's motion is denied, and the temporary injunction dissolved.

Motion denied and injunction dissolved.

ERNEST THALMANN et al., Plaintiffs, v. THE HOFFMAN HOUSE et al., Defendants.

(Supreme Court, New York Special Term, April, 1899.)

1. Corporations - Appointment of receiver refused.

A receiver of the property of a corporation will not be appointed unless the litigants, who invoke such action, clearly establish that the remedy is necessary to protect their interests from imminent and serious injury.

2. Same-- Failure to file certificate of increase of stock Refusal to allow pledgees to vote.

Where the stock of a corporation has been increased in a legal manner, a failure to file the certificate of increase, in the manner provided by section 46 of chapter 688 of the Laws of 1892, until a motion has been made for the appointment of a receiver of the corporation, does not necessarily show that the directors in control withheld the certificate for a wrongful purpose; nor is bad faith shown by their refusal, under the 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.

MOTION by the plaintiffs at Special Term for the appointment of a receiver of the defendant corporation the Hoffman House, New York, and for an injunction restraining the defendants from interfering with the property of the said defendant corporation pendente lite.

The facts of the case, so far as they are material, are stated in the opinion.