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The People agt. Long Island Railroad Company.

any private corporation, association or individual any exclusive privilege, immunity or franchise whatever."

To the objection based upon the former of these two prohibitions, it is answered: That the act of 1876 confers no “ right to lay down railroad tracks." The privilege so to do was one already enjoyed by both defendants as already existing railroad corporations. The act simply gave legislative permission to use steam as a motive power on railroad tracks already constructed, the right to relay and repair which was an incident to the original grant. Very clearly, such a legislative permission to an existing corporation is not covered by the constitutional provision referred to (Matter of P. P.and C. I. R. R. Co., 67 N.Y., 371). In Hulburt agt. Banks (52 How., 196) I had occasion to consider the same article of the Constitution, which was then invoked to enjoin the improvement of a part of an existing highway as an entrance or approach to a public park in the city of Albany, upon the ground, among others, that the law under which it was proposed to be done was one “laying out, opening, altering, working or discontinuing roads, highways or alleys,” and therefore unconstitutional. The objection was overruled, and the conclusions then reached by me were sustained in the court of appeals (People ex rel. Commissioners agt. Banks, 67 N. Y., 568). Undoubtedly the language of that part of the Constitution, taking it in its literal sense, can be so construed as to prevent much useful legislation which it was not designed to reach ; but it is, it seems to me, unsound reasoning to hold that the act of 1876 grants “the right to lay down railroad tracks," because the use of steam power made a firmer and stronger track necessary. That law did not confer any such right. Its existing franchise did not require a roadway upon which steam could not be used. The right to substitute heavy for light rails, a strong and compact road-bed for one of lesser strength, was an incident of its previously acquired rights — a privilege it already had, though perhaps it would never have been exercised unless the act had been passed to

Vol. LX 53

The People agt. Long Island Railroad Company.

avail itself of which the previously unused right was called into action. What the defendants were doing when this action was commenced (strengthening their existing road-bed and rails) was not done because authorized by the law of 1876, but because such statute had made the change necessary if the privilege to use steam, thereby conferred, was to be enjoyed. It may be true that an act rendered necessary to be done by legislation, is one permitted ; but when the right so to do exists, and legislation renders its exercise necessary, it cannot be argued that an original grant of power to do such act was by such subsequent legislation conferred.

The Matter of Brooklyn, Winfield and Newtown Railroad Company (75 N. Y., 335) has no application. The court held in that case, where a corporation had ceased to exist by lapse of time, that a statute which gave it new life under the pretense of enlarging the time for the performance of certain things which had been originally required, and by reason of not doing which it had forfeited its existence, was void, because, literally, it was by such act attempted to confer“ the right to lay down railroad tracks." But neither that nor any decision to which my attention has been directed holds that some privilege may not, by a special act, be conferred upon a living corporate being, and so parrows legislative action, by a literal interpretation of the words of the Constitution as to make impossible relief which cannot be provided for by general laws, and against which the constitutional prohibition was not aimed.

The “exclusive privilege” or “franchise” which it is alleged the defendants obtain under the law, is not, by me at least, perceivable. The prohibition is to a grant which, in words, is exclusive. It may be true that conferring upon A. authority to do an act may practically prohibit B. from doing the same thing, because the latter may be unwilling to compete with the former; but so long as B. is left free to act, and nothing has been done which, if valid, would enable A. to

Pope agt. Terre Haute Car and Manufacturing Company.

enjoin B. because he (A.) has an exclusive right, the provision in the Constitution is not violated.

In conclusion it is proper to say, that if every argument used in behalf of the plaintiffs has not been discussed, that I see no principle whatever on which this action can be sustained. The defendants own a railroad franchise which they are enjoying in a way authorized by the public law of the state. If they are trespassers upon private property, they may be prosecuted by those who are injured. A minute and somewhat protracted examination and discussion of every point urged by the plaintiffs (though possibly some one in a printed brief of 100 pages may have been overlooked) leads me to the same conclusion which other judges (BLATCHFORD, GILBERT, NELSON and OSBORN) have reached, and that is, that not one is tenable. The defendants are, therefore, entitled to judgment, with costs.

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Thomas J. Pope, respondent, agt. The TERRE HAUTE CAR

AND MANUFACTURING COMPANY, appellants.

Foreign corporation what is a sufficient service of summons to commence

suit against - Code of Civil Procedure, sections 432, 1780.

Where plaintiffs, residents of this state, have a cause of action against

defendants, a foreign corporation, arising upon the sale and delivery of personal property made by their brokers, a service upon the president of such corporation while passing through this state was sufficient to commence a suit, although his presence here had no relation whatever to the corporation or to his official duties, irrespective of the question whether or not the corporation has property within the state, or whether the cause of action arose therein.

First Department, General Term, March, 1881.

APPEAL from an order of special term denying motion to set aside the service of the summons in this action.

Pope agt. Terre Haute Car and Manufacturing Company.

Crane & Lockwood, for appellant, for the purposes of the motion.

Niles & Bagley, for respondent.

Davis, P.J. - It is not controverted that the plaintiffs have a cause of action against the defendants, arising upon the sale and delivery of property made by their brokers, nor that the plaintiffs are residents of this state and the defendants a. foreign corporation.

Section 1780 of the present Code provides that an action against a foreign corporation may be maintained by a resident of this state for any cause of action. The provision, in this respect, is the same as that of section 427 of the former Code.

Section 432 of the present Code, among other modes, provides that personal service of the summons upon a foreign corporation may be made by delivering a copy within the state to the president of such corporation. In this case the summons was served by delivering a copy to the president of the defendant in the city of New York.

It appears that the president was not in the state upon any business of the corporation, or in any official capacity, but was passing through the state, with his family, on his way to a watering place in another state. The fact that he was the president of the corporation is conceded, as well as the actual personal service of the summons. The service is good under the Code, although his presence here had no relation whatever to the corporation or to his official duties.

Under the provisions of the present Code such service upon the president of a foreign corporation is a commencement of the action, irrespective of the question whether or not the corporation has property within the state, or whether the cause of action arose therein. These questions are important under the third subdivision of section 432 only, when no designation of a person for service has been made by the cor

Pope agt. Terre Haute Car and Manufacturing Company.

poration, and the service is made upon the cashier, a director or the managing agent of the corporation.

It is not important to inquire what would be the effect of a judgment recovered upon the service of a summons in the form in which the service in this case was made, as that question does not arise at this stage of the proceedings. It may be that property will be found and attached in this state, or that sufficient property of the corporation will be found and levied upon to satisfy the execution. It is not necessary to anticipate those questions, because, under the provisions of the present Code, the service and the manner in which it was made in this case was sufficient to commence the suit.

The contract in the case was made with the defendants by Millard and Combs, who were brokers at St. Louis. The proposition of sale submitted by them in their letter of January 31, 1880, bears sufficient evidence on its face that they were not acting as principals, but on behalf of other parties, and the final sale, note or memorandum executed by them disclosed their principals. The acceptance of this' sale note by the defendants, completed the contract between them and the plaintiffs. The iron was in process of importation and was sold for cash, to be delivered in bond in New Orleans. No place of payment is otherwise specified, and, as the delivery was made without payment, it is to be presumed that cash was to be paid within some time established by the usage on such sales. At all events, not having been paid or tendered on delivery, it was payable to the plaintiffs at their place of business, which was in the city of New York.

We do not deem it important, in determining this appeal, whether the contract was to be regarded as one made in this state, nor whether it should be held that the defendant's president came into the state for the transaction of business in making such contract. There was enough, we think, to give a right of action under the laws of this state against a foreign corporation to a resident of this state in the facts as they appear in the papers before us; and that action has been

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