ought to have been borne or paid by some other person, then it shall be lawful for the person paying the same, to sue for and recover the same, with interest and costs of suit, in any court having cognizance thereof, as so much money paid for the use of the person who ought to have paid the same; and the account of such expenses, certified as aforesaid by the city superintendent, and proof of payment, shall be conclusive evidence in such suit; and in all cases where there is no agreement to the contrary, the owner or landlord, and not the occupant or tenant, shall be deemed the person who in law ought to bear and pay such expenses.

public streets

S37. The said common council shall and may hereafter Opening of open and lay out public streets in the said city of any width less than four rods; and if in the opinion of the common council it shall be necessary to take any vacant ground or lots unoccupied, of any person, for the purpose of opening, widening, straightening, laying out or altering any street or slip, and the common council shall require the same, they shall give notice thereof to the owner or parties interested therein, or to his or their agent or legal representatives, and the said common council shall treat for such ground with such person; and if any such person shall refuse to treat for such ground, or the common council cannot agree for the same, it shall and may be lawful for the mayor or recorder, by a precept under their hands and seals, to command the sheriff of the county of Schenectady, to impannel and return, and he is hereby required to impannel and return, a jury, to appear before the court of common pleas of the county of Schenectady, at the next term thereafter, to inquire and assess the damages and recompense due to the owner or owners of such ground as aforesaid; at the same time to summon the owner or owners of such ground, or his or their agent or legal representative, by written notice to be left at his or their most usual place of abode, five days at least previous to the day of appearance specified in such precept, to appear before such court of common pleas on the day and at the place therein mentioned; upon which venire the said sheriff shall summon twenty-four good and lawful men, freeholders of the city of Schenectady; which jury, being first duly sworn faithfully and impartially to inquire into and assess the damages in question, and having viewed the premises, (if necessary,) shall inquire of and assess such damages and recompense, as they shall, under all the circumstances, judge fit to be awarded to the owner or owners of such ground for their respective losses, according to their several interests and estates there

in; and the verdict of such jury, and the judgment of the said 'court of common pleas, and the payment of the sum of money so awarded and adjudged to the owner or owners thereof, or tender and refusal thereof, shall be conclusive and binding against the said owner or owners, his and their respective heirs, executors, administrators and assigns, claiming any interest or estate of, in or to the same ground; and it shall thereupon be lawful for the said mayor, recorder, aldermen and commonalty, to cause the same ground to be converted to and used for the purposes aforesaid: provided always, that if such owner or parties shall be unknown to the common council, they shall cause notice as aforesaid of such intended appropriation, specifying therein the ground to be appropriated, to be published six weeks successively, in the newspaper printed by the printer to the state; and after the expiration of such notice, to cause the damages to be assessed in the manner aforesaid, without any other notice; and the sheriff in serving the venire aforesaid, instead of summoning such owner or parties to appear, may serve a notice in writing, of the time and place of return of such venire, by affixing the same on some conspicuous part of the premises, at least eight days before such return, which service shall be deemed a sufficient summons: and it shall also be sufficient to state in the venire, that the premises belong to persons unknown: and provided further, that the said common council may appropriate the, premises aforesaid in cases of unknown or non-resident owners or parties, before payment of the sum or sums assessed, and on such owner or owners or either of them, applying to the said court of common pleas, and on proving the extent of his or their interest in the premises appropriated, to the satisfaction of the said court, such court shall thereupon ascertain and determine the part or portion of the sum assessed to be paid to such owners and parties so applying respectively, and enter the same in their minutes; a copy of which entry, under the seal of the said court, and certified by the clerk, shall entitle the said owners or parties respectively, to the sum or sums so ascertained and determined; and in case of non-payment on demand, with interest, or, in cases where the owners or parties shall be known and named in the venire, the said common council shall refuse or neglect on demand, to pay the sum or sums assessed, with interest from the time of the judgment rendered upon such assessment, the said parties, or either of them, entitled to the same, may sue for and recover the same from the said mayor, recorder, aldermen and commonalty, in an action of debt, together with such interest and costs, in any court having cognizance thereof; and

the proceedings under the said venire, and antecedent thereto, shall be conclusive evidence against the defendants. Nothing herein contained shall be construed to extend to the taking or appropriating, without the consent of the owners, any dwelling-house or houses, or the ground on which the same is or are erected. Any person aggrieved by any such assessment made under this section of this act, shall have a right to appeal to the supreme court of this state, whose decision upon the same shall be final and conclusive.

fants.

S 38. Where any known owner or party residing in Rights of inthe said city, shall be an infant, without a guardian, and any proceedings shall be had under the preceding section, it shall be lawful for the said court of common pleas, upon application to them by the common council, or by such minor, to appoint a guardian for the faithful execution of his trust; and every subsequent notice and summons under the said section, shall be made and served on such guardian, instead of such infant; but if such infant reside without the said city, or be unknown, then proceedings shall be in like manner as against absent or unknown owners under the preceding section, and with like effect. $39. It shall be lawful for the said common council, Board of from time to time, to appoint so many of the members thereof as shall be thought necessary to form a board of health, to aid and assist the mayor of the said city to carry into effect the provisions of the several statutes which are or may be passed to preserve the health of the said city, and to prevent the introduction and spreading of infectious and pestilential diseases in the same: and further, that the members of the said board of health shall receive a reasonable compensation for their services, to be determined by the said common council, and paid by the mayor, recorder, aldermen and commonalty of the said city.

health.

$ 40. That for the good government of the said city of Police office. Schenectady, and for the purpose of enforcing the laws of this state, and the ordinances of the common council of the said city, a police office may be established by the said common council, at such place as they shall from time to time provide and assign.

S41. The common council of the said city shall have Police justi power and authority to regulate the police of said city, co. and to appoint one or more persons, being citizens of said city, and not exceeding three, as police justices, to hold their offices during the pleasure of the common council; and that the said police justice or justices, shall have and exercise the like powers in said city, as are now exercised by any alderman thereof, or by justices of the peace in

Fencos.

Former acts repealed.

Rights re served.

Corporation created.

the different towns of this state: provided, that nothing herein contained shall be construed to authorise said police justice or justices to try any civil causes for the recovery of debts.

$42. That when, in the opinion of the said common council, they shall deem any building, fence, or other crection liable to fall down, and endanger the lives of any persons, it shall be lawful for the common council to direct the owner or occupant to have the same taken down within such reasonable time as they shall think proper; and in case such direction shall not be complied with, it shall be lawful for the common council of said city, to direct the same to be taken down at the expense of such owner or occupant, to be recovered with costs of suit, from such owner or occupant, in an action of debt in the name of the treasurer of said city.

$43. All acts and parts of acts of the legislature of this state, heretofore passed, relating to the said city of Schenectady, which are repugnant to or inconsistent with the provisions of this act, shall, from and after the thirtieth day of May next, be and the same are hereby repealed.

S44. The legislature may at any time alter, modify or repeal this act or any of its provisions.

CHAP. 294.

AN ACT to incorporate the Utica and Schenectady Rail-
Road Company.

Passed April 29, 1833.

The People of the State of New-York, represented in Senate and Assembly, do enact as follows:

§ 1. All persons who shall become stockholders pursuant to this act, shall be, and they are hereby, constituted a body corporate, by the name of "The Utica and Schenectady Rail-Road Company," with power to construct a single, double, treble or quadruple rail-road or way, commencing at or near the city of Schenectady and running thence on the north side of the Mohawk river as far as the village of Herkimer, and terminating in the city of Utica, at such place as the common council of said city shall direct; to transport, take and carry persons and their ordinary baggage upon the same, by the power and force of animals, or of any mechanical power, or of any combination of them, which the said company may choose to employ; and by that name they are vested with the

right and privilege of erecting, building and making a single, double, treble or quadruple rail-road or way, for the purpose aforesaid, and the right of using the same in the manner hereinafter directed for and during the term of fifty years.

405

$ 2. If the said corporation hereby created shall not, Condition. within two years from the passage of this act, commence the construction of said rail-road or ways, and expend at least the sum of one hundred thousand dollars thereon; and shall not, within ten years from the passage of this act, construct, finish and put in operation the said single or double rail-road or ways, then the said corporation shall thenceforth forever cease, and this act shall be null and void.

S3. The capital stock of this company shall be two Stock. millions of dollars, which shall be divided into shares of one hundred dollars each; which shall be deemed personal property.

Subsrciption

S 4. Nicholas Deveraux, Rutger B. Miller, John E. to stock. Hinman, Alfred Munson, John Townsend, Nathaniel S. Benton, Tobias A. Stoughtenburgh, Alonzo C. Paige, Charles Kane, James Porter, Lewis Benedict, Erastus Corning, James Hooker, Gideon Tucker, John Mason, Francis Olmsted, William H. Maxwell, Elisha Tibbits, Henry Ogden, John I. De Graff and William James, shall be commissioners; who shall, on the third Monday of June after the passing of this act, at some suitable place in the cities of New-York, Albany, Schenectady and Utica, open books to receive subscriptions to the capital stock of the said corporation; and thirty days' public notice shall be given by the said commissioners of the time and place of opening said books, in one of the public newspapers in each of the said places, and in the paper published by the state printer; the said books shall remain open for three days at the cities, under the direction of one or more of the said commissioners: and the sum of five dollars on each share subscribed for, shall be paid to the said commissioners attending the several places, when subscriptions are to be made as aforesaid, at the time of making such subscriptions.

$5. The commissioners shall assemble at the city of New-York on the second Monday in July, or as soon thereafter as the whole capital stock of the said corporation shall be taken up, and shall proceed to distribute the capital stock of the said corporation among the subscribers thereto; and in case there shall be subscriptions to more than the amount of such stock within the time in the last section specified for keeping open the said books, it shall

Distribution of stock