75 N.Y. 335 | NY | 1878
This court in the former proceeding taken by the petitioner for the appointment of commissioners appraisal, affirmed the order of the Special and General Terms, denying the prayer of the petition on the ground that in September, 1877, when the proceeding was instituted, the Brooklyn, "Winfield, and Newtown Railroad Company,had ceased to be a corporation, and was extinct by its failure to construct its road within the time limited by chapter 775, of the Laws of 1867, or within the three years for which the time was extended by chapter 575 of the Laws of 1874.
In the former proceeding it was claimed on the part of the petitioner in answer to the objection that the corporation had not commenced the construction of its road within five years from the time of filing its articles of association, or within the extended time given by the act of 1874, that such neglect or omission created simply a cause of forfeiture, of its corporate franchises, and a ground of proceeding by the attorney general to have the corporation dissolved, and that its existence and powers continued until the forfeiture was judicially ascertained and declared, and that until that time it could exercise any of the franchises conferred upon it by the statutes under which it was incorporated, including the power given by chapter 622 of the Laws of 1871, to acquire the right to use the tracks of the Broadway Railroad Company in certain streets, in the city of Brooklyn, where the routes of the two corporations wore coincident.
This court in affirming the order appealed from, recognized the general principle that a corporation by omitting to perform a duty imposed by its charter, or to comply with its provisions, does not ipso facto lose its corporate character, or cease to be a corporation, but simply exposes itself to the hazard of being deprived of its corporate character and fran
, After the decision of the court in that case,.the Legislature ■on May 2, 1878, passed aii act (chap: 206), purporting to be an amendment, of chap. 575 of the Laws of 1874, as follows : 1. The time within which the Brooklyn, Winfield and .¡Newtown Bailway Company is required by law to finish its .road, and put it in operation is hereby extended five years, .from and after the passage of this act.” The present proceeding was commenced in July, 1878, and differs from the former one in no material respect, except that the petitioner sets out in its petition the act of May, 1878, as an authority for the present application.
Wc have decided In the Matter of The N. Y. Elevated R. R. Co. (70 N. Y., 327), that it is competent for the Legislature since the constitutional amendment of 1874, to waive "a cause of forfeiture existing against a corporation, and relieve it from the liability incurred by its omission to construct its road within the time prescribed in its charter. But in that case the corporation in respect to which the legislation in question was had, was not subject to the provisions of § 47, of the general railroad law. It was the case of an existing corporation subject to be proceeded against by the attorney-
The order of the General Term should be affirmed.
All concur.
Order affirmed.