Attorney-General v. Ulster & Delaware Railroad — 20 N.Y. St. Rep. 383

Majority

p. 383

In the Matter of the Application of the Attorney-General for Leave to Bring an Action Against The Ulster and Delaware Railroad Company.

(Supreme Court, General Term, Third Department,

Filed December 31, 1888.)

Headnote

Railroads—Action to vacate charter—Code Civ. Pro., § 1798.

The attorney-general is alone vested with the determination of whether

p. 384

it will servo the public interest to bring an action to vacate a charter of a railroad, “ upon leave granted,” and the judicial duty of granting a leave 'rests with the court who only has to determine whether the attorney-gen eral alleges sufficient facts against the corporation to make a bona fide case or a case of such gravity that it seems proper that the court should determine it upon the trial.

Appeal from an order of the Ulster special term granting leave to the attorney-general to bring an action against "the Ulster and Delaware Railroad Company for the purpose of vacating its charter, because, of its failure to complete the construction of its roadway, as required by law,

John E. Burrill, for app’lt; E. Countryman, for resp’t.

The learned counsel for the appellant urges that the Ulster and Delaware- Railroad Company, by its purchase of the railroad property and franchises of the original Rondout and Oswego Railroad Company, did not thereby succeed to the liability of the latter company to dissolution or forfeiture of its charter because of its failure to “finish its road and put it in operation in ten years from the time of the filing its articles of association, ” as 'required by the 47th section of the general railroad act of 1850. We admit that the reasons adduced are entitled to careful consideration. The 1798th section of the Code of Civil Procedure confers upon the attorney-general, “upon leave granted,” power to bring an action against a corporation to vacate its charter upon the ground that it has omitted to do certain acts which the laws require, or has done certain acts which the laws forbid.

In bringing such an action the attorney-general represents the people of the state, and it is undoubtedly the policy of the law to vest him with the administrative duty of determining whether the public interests are to be served by instituting such an action. He is to do it “ upon leave .granted,” and the judicial duty of granting leave rests with the court. The court is not to inquire whether the "bringing of the action is a wise administrative act, but rather whether the attorney-general alleges against the cor poration a prima facie case, or a case of such gravity that it seems proper that the court should determine it upon a trial. The court ivould withhold leave in cases plainly •frivolous, or where it is obvious upon inspection of the application that none of the statutory grounds exists.

We held in People v. Boston, Hoosac T and W R. R. Co. ( 27 Hun, 528 ), that we would not try the merits upon such an appeal.

The learned judge, at special term, was impressed with the conviction that the question involved is of sufficient importance to justify the people in submitting their case to the court.

p. 385

In this view we concur.

The order is affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., and Ingalls, J., concur.