Ballston Terminal R. v. Hudson Val. Ry. Co. — 78 N.Y.S. 399

Majority

p. 399

BALLSTON TERMINAL R. CO. v. HUDSON VAL. RY. CO.

(Supreme Court, Appellate Division, Third Department.

November 12, 1902.)

Headnote

1. Railroads — Street Railroad Crossings — Consent—Temporary Injunction.

Where, on an application for a temporary injunction to restrain defendant railway company from crossing plaintiff’s street car tracks, defendant contended that plaintiff had consented to such crossing, but the only proof of such consent was a verbal agreement with plaintiff’s vice president and a paper, signed by the vice president, but not signed by the secretary nor sealed with the seal of the corporation, it was not sufficient to show consent by the corporation, and a temporary injunction was therefore properly granted.

Appeal from special term.

Action by the Ballston Terminal Railroad Company against the Hudson Valley Railway Company to restrain defendant from crossing plaintiff’s street railway tracks. From an order granting a temporary injunction, defendant appeals.

Affirmed.

Argued before PARKER, P. J., and KELLOGG, SMITH, and CHASE, JJ.

Thomas O’Connor, for appellant.

E. T. Brackett, for respondent.

The injunction granted herein was a proper exercise of discretion, unless it satisfactorily appeared to the court that appellant had procured a consent to such crossing which is binding on the plaintiff. The complaint alleges that no consent was given. So, also, does the affidavit of Frederick A. Beach, the vice president of the plaintiff. The answer alleges a consent, both verbal and written. The affidavit of Thomas O’Connor states that he made a verbal agreement with Vice President Beach, — but not with the company, or other officers of the company, — and a few days thereafter the said vice president handed him a paper, with his signature as vice president, but no seal of the corporation was attached, and the signature of the secretary was lacking, though a place for such signature appeared upon the paper, and also an affidavit for the secretary to make, which does not appear to have been made. This paper appears attached to the answer, and again appears attached to the affidavit of O’Connor. Both of these show the same defects and incompleteness of execution. The body of the instrument expressly contemplates that it shall be executed by the secretary and have the corporate seal attached, which is usually in the custody of the secretary of a corporation, before the instrument can be deemed to be executed, or be prima facie evidence, as the act of the directors of the corporation. This paper cannot be accepted in this condition as evidence of a corporate act. A verbal agreement made with any other than the board of directors in such a matter cannot bind the corporation.

We think the injunction order was properly granted, and the order is affirmed, with $io costs and disbursements. All concur.