tees.

§ 15. For all losses of money which the capital stock shall not be of trussufficient to satisfy, the trustees shall be responsible in the same manner and to the same extent that trustees are now responsible in law or equity.

strued.

§ 16. This act shall not be construed to confer on the said company Act how any right or power to make any contract or to accept or execute any to be contrust whatever which it would not be lawful for any individual, under the general rules of law, which are or shall be in force, to make, accept or execute; and the legislature shall have power, at any time hereafter, to repeal, alter or modify this act or any of its provisions 17. This act shall take effect immediately.

CHAP. 393.

AN ACT to amend chapter six hundred and six of the laws of eighteen hundred and seventy-five, entitled "An act further to provide for the construction and operation of a steam railway or railways in counties of the state."

PASSED July 1, 1882.

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

SECTION 1. Section six of chapter six hundred and six of the laws of eighteen hundred and seventy-five, entitled "An act further to provide for the construction and operation of a steam railway or railways in counties of the state," is hereby amended so as to read as follows:

fix time

way must

structed.

etc.

§ 6. The said commissioners shall, within the like period of ninety Commisdays after their organization, fix and determine the time within which sioners to such railway or railways, or portions of the same, shall be constructed within and ready for operation, together with the maximum rates to be paid which railfor transportation and conveyance over such railway or railways, and be conthe hours during which special cars or trains shall be run at reduced rates of fares. The said commissioners shall also, within the like period of ninety days after their organization, fix and determine the amount of the capital stock of the company to be formed for the purpose of constructing, maintaining and operating such railway or railways for public use in the conveyance of persons and property, the number of shares into which such capital stock shall be divided, and the percentage thereof to be paid in cash on subscribing for such shares. The said commissioners shall also, within one hundred and ten days after their organization, ascertain and determine the aggregate pecuniary damage arising from the diminution in 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 or railways, to be caused by the construction, maintenance and operation thereof. For the purpose of ascertaining such aggregate pecuniary Appraisal damage the said commissioners shall view the several parcels of real of damestate bounded as aforesaid, and shall appraise separately the pecuniary damage arising from the diminution in value of each parcel thereof to be caused as aforesaid, 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 the said several parcels of real estate bounded as aforesaid, which notice shall be pub

ages.

Amount equal to damages to be de

posited before corporation

lished for at least ten days consecutively, in at least two newspapers published in the county where such railway is to be constructed, and may in their discretion take testimony upon the probable diminution in value of any or all such parcels to be caused as aforesaid, and the aggregate sum of the amounts so appraised and determined by said commissioners shall be the aggregate pecuniary damage required to be ascertained and determined by said commissioners as above provided. And no corporation which shall hereafter be organized under this act shall enter upon any street, highway or lane of any city or county of this state, or become vested either directly or indirectly, whether by implication or otherwise, with any right, privilege or franchise in 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 by the board of supervisors, when the road does not lie wholly within the city, a sum of money equal to the amount so ascertained and determined as aforesaid by said commissioners to be the aggregate pecuniary damage to the property, bounded as aforesaid, or shall have secured the payment of such amount by depositing with the said trust company negotiable securities, equivalent at their par and actual value to the aggregate amount aforesaid, and approved either by the county treasurer, or in case the said commissioners shall have been appointed by the mayor of a city, Addition- then by the said mayor. And the said corporation shall also at the al deposit same time deposit with the said trust company, or with the county.

shall enter

upon street.

required.

Proviso.

Articles of association.

treasurer, the sum of five thousand dollars in cash, for the payment of the expense of apportioning and distributing the aforesaid fund; and unless such moneys or securities as aforesaid 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, appointed by said court, as required by the fourth section of this act, and in the case of a company heretofore organized within one year after it shall have obtained the confirmation by the general term of the supreme court of the report of three commissioners appointed by said court, 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 act shall have made their report, then and in such case the said corporation shall be deemed not to have accepted the franchises duly granted.

Provided, however, that in all cases where the said commissioners shall fix and determine different periods of time within which different sections of said 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 said street or streets upon which each of such sections is located; and upon the deposit by said corporation as above provided of moneys or securities equivalent to the aggregate pecuniary damage to be sustained by any one of such sections of said railway, said corporation shall immediately be vested with the right and privilege to construct its railway through such section.

§ 2. Section seven of the aforesaid act is hereby amended so as to read as follows:

§ 7. The said commissioners shall prepare appropriate articles of association for the company, in the last section mentioned in which said articles of association shall be set forth and embodied as component parts thereof, the several conditions, requirements and particulars

by said commissioners determined pursuant to sections four, five and six of this act, and which further shall provide for the release and forfeiture to the supervisors of the county 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 said commissioners shall thereupon and within one hundred and twenty days after their organization as aforesaid, cause a suitable book of subscription to the capital stock of such company to be opened, pursuant to due public notice at a banking office in such county.

to forfeit

ure.

Provided, however, that a failure by any corporation heretofore or Proviso as hereafter organized under this act to complete its railway within the time limited in and by its articles of association, shall work a forfeiture of the franchises of such corporation only with respect to that portion of its route which such corporation shall have failed to complete, and shall not affect the rights and franchises of such corporation to construct and operate such part of its railway which it shall have completed within the term prescribed by its articles of association, or as to which the time for completion shall not have expired, any thing contained in the articles of association of such corporation to the contrary hereof in any wise notwithstanding.

§3. Section forty-two of the said act is hereby amended so as to read as follows:

apportion

damages.

§ 42. At any time, not less than two years nor more than three Proceedyears after the completion and operation of said railway or railways, ings for any owner of, or party having or claimed to have any estate or interest ment of in any of the property bounded upon that portion of any street or highway upon which such railway shall have been constructed, may petition the supreme court at any general term thereof, held in the judicial district in which such railway shall be located, for the appointment of commissioners to apportion among the persons entitled thereto, under the provisions of this act, the moneys deposited or secured for the payment of pecuniary damages under the sixth section thereof. Such petition shall be signed and verified according to the rules and practice of such court, and shall contain a description of the property of such petitioner, together with a statement in detail of damages which he may claim to have sustained. Upon the presentation of such petition, the court shall make an order for the service of the same, and of notice of the time and place of an application thereupon for the appointment of commissioners, by the publication of such petition and notice in not less than two newspapers published in the county in which the said railway is located, and not less than once a week for at least three months from the date of the first publication.

§4. The aforesaid act is hereby further amended by adding thereto the following to be known as sections forty-three, forty-four, fortyfive, forty-six, forty-seven, forty-eight, forty-nine, fifty and fifty-one. 843. At the time and place named in the said notice so published Ibid. as above provided, and after hearing all parties appearing pursuant to such notice, the said court shall make an order for the appointment of three disinterested and competent persons, who shall be residents and freeholders in the county in which said railway is located, as commissioners to apportion among the persons entitled thereto, under the provisions of this act, the amount deposited as required by the sixth section hereof.

§ 44. The said commissioners shall take and subscribe the oath pre- Ibid. scribed by the twelfth article of the constitution. Any one of them

Ibid.

Ibid.

may issue subpoenas and administer oaths to witnesses; any two of them may adjourn the proceedings before them from time to time in their discretion. Whenever they meet, except by the appointment of the court, or pursuant to adjournment, they shall cause notice of such meeting to be given to all parties who have appeared in the proceedings, in such manner as the court shall direct. They shall view the property hounded upon that portion of any street or highway upon which said railway is located, and hear the proofs and allegations of the persons owning, or having or claiming to have an interest therein, and of the railway company, and reduce the testimony, if any is taken by them, to writing; and after the testimony is closed, all being present and acting, shall ascertain and determine what amount of the money deposited or secured, as above provided, ought justly to be paid to each owner or person interested in said property, or any parcel thereof as compensation for any diminution in value thereof caused by the construction, maintenance and operation of said railway; and in determining such amounts respectively, they shall make allowances for any benefit which shall have accrued, or may thereafter accrue to said property, or any parcel thereof, by reason of the construction and operation of said railway. The sum of all the amounts so awarded shall not exceed the amount deposited or secured by said railway company as above provided. The said commissioners shall make a report to the supreme court, signed by them, or a majority of them, of the proceedings before them, with the minutes of the testimony taken by them, if any. Said commissioners shall be entitled to five dollars per day for each day they are engaged in the performance of their duties. The fees of said commissioners together with their reasonable expenses, approved by a justice of the supreme court, upon notice to the said railway company, shall be paid out of the moneys deposited with the county treasurer or trust company for such purpose as above provided in the sixth section hereof and any balance of said moneys so deposited for such purpose shall thereupon be paid over to said railway company. No costs shall be allowed in the proceedings before said commissioners.

45. On such report being made by such commissioners, the petitioner, or any party who shall have appeared in the proceedings, may give notice to the other parties who have appeared according to the rules and practice of said court, at a special term thereof, for the confirmation of such report, and the court shall thereupon confirm such report, and shall make an order containing a recital of the substance of the proceedings, and shall also direct to whom the money is to be paid.

§ 46. Upon the expiration of thirty days after the entry of said order of confirmation, and upon the presentation of a certified copy thereof, the county treasurer or trust company shall pay the sums awarded by such order to the persons entitled thereto under the provisions of said order. Within twenty days after the entry of said order confirming the report of the commissioners and service thereof upon all parties who have appeared, any party may appeal, by notice in writing served upon all who have appeared, and upon the county clerk and county treasurer, to the general term of the supreme court from the said order of confirmation; and service of such notice upon the county treasurer or trust company shall stay all payments by him or it until the further order of the court. Such appeal shall be heard by the supreme court at any general term thereof, on notice thereof being given according to the rules and practice of said court. On the

hearing of such appeal the court may affirm the order so appealed from, or may reverse the same and direct a new apportionment before the same or new commissioners, in its discretion; and in case a new apportionment shall be directed, the second report shall be final and conclusive upon all parties interested.

§ 47. In case any award shall have been made by said commissioners for diminution in value of any property, the owners of or persons interested in which shall not have appeared in said proceedings, the amount of such award shall be retained by the county treasurer or trust company, subject to such order as the court may afterward make.

award

over

§ 48. In case the aggregate amount awarded to the several owners Excess of and persons interested shall be less than the amount deposited with the county treasurer or trust company as aforesaid, the excess of such amount deposited amount shall be repaid to the corporation depositing the same, such to be paid repayment not to be made until thirty days after final confirmation of by corporthe report of the commissioners of apportionment.

ation.

case of de

negotiable

§ 49. In case the said corporation shall have deposited with the Proceedcounty treasurer or trust company negotiable securities in lieu of ings in moneys, as provided in the sixth section hereof, then upon the con- posit of firmation of the report of the commissioners of apportionment, the series county treasurer or trust company shall notify said railway company in lieu of to pay to him the aggregate amount awarded by said report, and upon its failure so to do shall sell the said securities, or such part thereof as may be necessary for the purpose of raising such amount.

§ 50. In case any of the securities which may be deposited in lieu of money as provided in the sixth section hereof, 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 said county treasurer or trust company shall call upon said railway company to substitute therefor other securities equivalent at their par and 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 said county treasurer or trust company shall call upon said railroad company to furnish as a substitute, and said railroad company shall so furnish, an amount of money equal to the amount in lieu of which the securities first above referred to were deposited.

money.

tions that may apply pointment

sioners.

§ 51. Any corporation heretofore organized under the provisions of Corporathe act hereby amended, and which has not constructed its railway and has obtained the consent of the local authorities to the construction for apand operation of a railway upon any or all of the routes designated of commisfor it by its articles of association, and whose rights under such consent have not terminated, and whose proposed railway lies wholly within the limits of any city, may, within ninety days after the passage of this act, apply to the mayor of such city for the appointment of commissioners to estimate and fix the damages to be caused by the construction and operation of its railway upon and along the streets or highways as to which such consent has been given.

ings there

Such mayor shall thereupon appoint three disinterested and compe- Proceedtent freeholders, residents in such city, who shall thereupon each take upon. and subscribe an oath faithfully to perform the duties of his office; and the commission provided by this section shall thereupon have all the powers, and authority as to ascertaining, estimating and fixing damages that the commissioners mentioned in the first section of this act have as to any corporation organized, or to be organized by them, and all the provisions of this act as to ascertaining, estimating and