Consolidation (L. 1903, ch. 30), § 1.

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 hereafter 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 franchises 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 corporation, 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 orporation incorporated under any private or local bill or act.

(8) Consolidation of domestic and foreign.

L. 1903, ch. 30. An act in relation to the consolidation of domestic and foreign railroad corporations. [In effect March 10, 1903.]

1. The consolidation heretofore effected of a domestic railroad corporation 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, or thereafter, 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.

In cities of over one million (L. 1891, ch. 4), § 4.

RAPID TRANSIT.

L. 1891, ch. 4. An act to provide for rapid transit railways in cities of over one million inhabitants. (C. & G. Gen. Laws, p. 3208.)

Constitutionality. The rapid transit act is not unconstitutional as to the owners of property abutting on the streets through which the underground railroad is constructed. March v. City of New York, 69 App. Div. 1, 74 N. Y. Supp. 630, 1151.

Erection of temporary structures in streets. The erection outside of the line of the subway and partly in a square adjacent thereto, of buildings and structures for the storage of tools and machinery used in the construction of a section of the subway requiring three or more years to complete, and for the generation of compressed air power for use along the whole line of work on the section, are permanent structures with reference to the completion of the work of construction of such subway. The maintenance of such structures is not the enjoyment of temporary privileges within the meaning of subdivision 5 of section 4 of the Act of 1891, chapter 4. Bates v. Holbrook, 171 N. Y. 460, aff'g 67 App. Div. 25, 73 N. Y. Supp. 417.

Modification of plans by providing for electricity as motive power.The rapid transit commissioners are authorized to direct the increased excavation necessary for the installment of electricity as the motive power. Such increased excavation is chargeable to construction and the contractor constructing the subway was entitled to be paid therefor. He was also entitled to extra pay for the construction of vivified ducts constructed in the outside wall of the tunnel, rendered necessary by the adoption of electricity as a motive power. Matter of McDonald, 80 App. Div. 210, 80 N. Y. Supp. 536, aff'd 175 N. Y. 470.

L. 1891, ch. 4, § 4 (C. & G. Gen. Laws, p. 3209), amended by L. 1904, ch. 564, in effect May 3, 1904, as follows:

§ 4. Board to determine necessity; plan; routes; consents; parks and streets excepted. The said board upon its own motion may proceed, 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 conveyance 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

In cities of over one million (L. 1891, ch. 4), § 4.

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 determine 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 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 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 construction. 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 bounded on and the consent also of the local authorities having control of that portion of a street, bridge, viaduct, or highway, 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 general term of the supreme court in the district of the proposed construction, given after 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 consent 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 De Bevoise place, Irving

In cities of over one million (L. 1891, ch. 4), § 4.

place and Leffert's 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 provisions 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 locate 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 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 under, or under and along, any of said streets or avenues now so occupied or so excepted in this act. Nothing in this act shall authorize 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 purposes 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 th westerly side of Fourth avenue; nor Eleventh street, west of Seventh avenue, nor any part of Bank street; Nassau street; Printing House square, socalled, south of Franklin street; Park row, south of Tryon row; Broad street and Wall street. (Amended by L. 1894, ch. 528; L. 1895, ch. 519; L. 1900, ch. 616, and L. 1904, ch. 564, in effect May 3, 1904.)

L. 1900, ch. 616, § 2. The provisions of the said section four 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 commissioners of any city and for the municipal construction of which a contract 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.

In cities of over one million (L. 1891, ch. 4), § 5.

The above section of the Act of 1900 is re-enacted by Laws of 1904, chapter 564, amending Laws of 1891, chapter 4, section 4, apparently being regarded as a part of that section.

L. 1891, ch. 4, § 5 (C. & G. Gen. Laws, p. 3211), amended by L. 1904, ch. 564, in effect May 3, 1904, as follows:

§ 5. Transmission of plans; approval and consent of council; consent of local authorities, etc.- After any determination by said board of any such route or routes and of any general plan of construction of said railway or railways, the said board shall transmit to the common council of said city a copy of said plans and conclusions as adopted. It shall be the duty of such common council 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 consideration of such plans and conclusions, and the said common council shall, on 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 four weeks after the copy of such plans and conclusions adopted by the board of rapid transit railroad commissioners shall have first been received by said common council, a final vote shall be taken thereon, by ayes and nays, 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 common council and the approval of the mayor, and in the case of the refusal or failure of the mayor to approve such resolution, then by a two-thirds vote of all the members of the common council, the said plans and conclusions shall be deemed to have been finally consented to and adopted, and such consent shall be deemed to be the 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 common council 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 common council