People v. Ulster & Del. R. R. — 28 N.Y. St. Rep. 19

Majority

p. 19

The People, Resp’ts, v. The Ulster & Del. R. R. Co., App’lt.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889.)

Headnote

Railroads—Forfeiture of charter—Supplemental answer.

Where action is brought to forfeit the charter of a corporation, the court will allow the defendant to plead by supplemental answer a law passed after issue joined and proceedings of the railroad commissioners thereunder, which law and proceedings defendant claims amount to a waiver of the forfeiture.

Note.—The law in question is Chap. 236 of 1889, and it amended Chap. 430 of 1874, on which latter act the people’s claim of forfeiture is based. The act of 1889 was designed to relieve the defendant from the forfeiture,

p. 20

Appeal from order of special term denying defendant’s motion for leave to file a supplemental answer setting up the passage of the act of May 6, 1889, and the proceedings of the railroad commissioners in conformity thereto.

J. E. Bumll, for app’lt; Edwin Countryman, for resp’ts.

is’not necessary or desirable, on the appeal from this order, to or not the proposed supplemental answer is-a valid defense. The facts to be set up are undisputed. The question whether the people can continue this litigation after the passage of the act on which defendants rely and after the action of the railroad commission, under the same, is so important that we should not be justified in preventing the defendant from availing itself of this defense, if it lie a defense.

The plaintiffs claim that the act does not apply to past transactions, and that if, in terms, it seems so to apply, yet to make it so apply would be unconstitutional. But when we consider that the plaintiffs are the people, and that they are endeavoring to enforce a forfeiture, we are not prepared to hold that it is unconstitutional for the people to relinquish a right of forfeiture, or that they cannot delegate to a commission the power of deciding whether such right of forfeiture should not be relinquished. What rights on actual or implied contract the town of Harpersfield may have against the defendant, as successor to other railroads, cannot, we suppose, be passed upon in this action. We are here dealing solely with the right of the people to forfeit defendant’s corporate privileges.

The order is reversed, with ten dollars costs of appeal and printing disbursements, and the motion is granted on the payment.of ten dollars costs of motion and plaintiffs’ taxable costs up to the time of making the motion at special term.

The costs of appeal and printing disbursements to be set off, to their extent, against the costs to be paid by defendants.

Landon and Fish, JJ., concur. ■