
    Matter of the Application of the Rochester, Hornellsville and Lackawanna Railway Co., Resp’t, to Acquire Lands of Francis G. Babcock, The N. Y., L. E. and W. R. R. Co., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 25, 1887.)
    
    1. .Railroad—Acquiring land—Petition—Jurisdiction of court—Power to amend.
    A railroad company, for the purpose of acquiring certain land, presented its petition to the court praying for the appointment of commissioners. The petition stated the names of the persons who owned, had or claimed to own or have estates or interests in the real estate sought to he acquired, but neglected to state the residence of such persons. When the matter was brought on for hearing at the special term, an order was made permitting the petitioner to amend its petition in this regard. The persons so interested had appeared by attorneys upon the hearing. Held, that their appearance gave the court jurisdiction, notwithstanding the defect in the petition, without an amendment; that the amendment was one which the court had power to make in its discretion, and that the making of it did not tend to prejudice the rights of another railroad company which had leased the land in question.
    2. Same—Subscription for stock—Ultra vires—When authority presumed—Burthen of proof.
    Among those subscribing to the stock necessary to enable the railroad company to make the application was the Central Construction Company of New Jersey. The treasurer of said company testified that he was authorized to subscribe for the stock in question. Held, that in the absence of evidence to the contrary the court must assume that it was authorized to subscribe for, take and hold stock in a railroad company; that the burthen of showing that it was not, was upon the party disputing the authority. Milbank v. H. T., L. IB. and W. B. B. Co., 64 How., 20, distinguished.
    3. Evidence—Motion to strike out for non-production of books.
    A motion to strike out the evidence of a witness because of the non-production of books, cannot avail where the evidence as to the contents of the books was called out by the party making the motion.
    Appeal from an order of the Monroe special term confirming the report of a referee and appointing commissioners of appraisal.
    
      
      Frank E. Smith, for resp’t; James H. Stevens, Jr., for app’lts, the N. Y,. L, E. and W. R. R. Co.; E. F. Babcock, for the app’lt. land owners.
   Haight, J.

The petitioner is a railroad corporation organized under the laws of the state, and seeks to acquire the land in question for the purpose of constructing its road. For that purpose it presented its petition to the court, praying for the appointment of commissioners. The petition stated the names of the persons who own, or have, or claim to own or have, estates or interests in the real estate sought to be acquired, but neglected to state the residence of such persons. When the matter was brought on for hearing at the special terin, an order was made permitting the petitioner to amend its petition in this regard so as to state their places of residence. The persons so interested had appeared by atturneys upon the hearing, and this was doubtless sufficient to give the court jurisdiction, notwithstanding the defect in the petition, without an amendment; but the amendment was one which the court, had the power to make in its discretion, and the making of it did not tend to prejudice the rights of the appellants. In the Matter of the Prospect Park and Coney Island Railroad Company, etc., 67 N. Y., 371-378.

It is next claimed that the petitioner has not complied with all the prerequisites required by the statute in order to confer jurisdiction upon the court to appoint commissioners. The petitioner was duly incorporated, as appears by the certified copy of the articles of association produced in evidence, signed by twenty-six persons, who subscribed for the capital stock of the company to an amount aggregating $32,300. The length of the petitioner’s proposed road is fifteen miles four hundred feet.

The Central Construction Company of New Jersey subscribed for 1776 shares, aggregating $177,600, which, added to the sum subscribed by the incorporators, amounts to $209,900. The statute requires that $10,000 for each mile of the proposed road to be constructed shall be in good faith subscribed to the capital stock, and ten per cent thereof paid in. The road being but fifteen miles four hundred feet in length, it will be observed that the capital stock subscribed far exceeds the sum required, and that there has been a compliance with the statute in this regard; but it is contended that the Central Construction Company of New Jersey had no power to subscribe for the stock; that its subscription is ultra vires and void; but a careful reading of the appeal book fails to disclose any evidence tending to support this contention. It does not clearly appear whether the Central Construction Company is a corporation or a copartnership, or what it is. It does appear that it is a company organized under the laws of New Jersey for the purpose of constructing railroads, and the treasurer testified that he was authorized to subscribe for the stock in question. This, doubtless, made óut a prima facie case, for, in the absence of evidence to the contrary, we cannot assume that it was not authorized to subscribe for, take and hold stock in a railroad company. The Union Hotel Company v. Hesse, 79 N. Y., 544.

The case of Millbank v. New York, Lake Erie and Western Railroad Company (64 Howard, 20), is not in conflict with this view, for in that case it was a competing railroad company organized under the railroad laws of this state that had purchased and acquired the stock in another railroad. In this case it was held that a railroad company was not authorized by its charter to purchase stock in another company unless it acquired it in the payment of some debt or claim. But this has no application to a construction company, for in many cases these companies are paid in part for the work performed in constructing the railroad out of the capital stock. For aught that appears this company may have been specially authorized and empowered to subscribe for stock in railroad corporations. At least we are of the opinion that the burthen of showing that it was not was thrown upon the appellants. In re N. Y., L. E. and W. R. R. Co., 99 N. Y., 12.

Again, it is contended that ten per cent had not in fact been paid in. The ten per cent of the necessary subscription would amount to about $16,000 The evidence of Brown tends to show that $2,000 in cash was paid in at one time, and that of Chapman is to the effect that on another occasion he paid in $21,000 in cash. Some criticism is made as to his testimony, but the referee has found as a fact that it was paid in, and we see no reason for overruling the finding of the referee in this regard, especially as there is no evidence to the contrary.

The failure to produce,the books upon the hearing before the referee was explained by the witness, and the motion to strike out his evidence, because of their non-production, cannot avail for the reason that the evidence as to the contents of the books was called out by the appellants.

The evidence as to the quantity of land necessary to be taken for the purpose of constructing the road bank along the river was conflicting. Upon the hearing the parties stipulated that the referee should personally inspect the premises. The referee’s finding- in this regard is amply supported and should not be disturbed. Whether or not the proposed embankment will cause injury to other lands-is not properly before us for consideration in these proceedings. In re N. Y., W. S. and B. R. R. Co., 101 N. Y., 685.

As to the claim of the appellant, the N. Y., L. E. and W. R. R. Co., it appears that the petitioner caused a map and profile of its road to be made and filed on the 13th day of July, 1886, and that on the 17th of July, 1886, notice of such filing was served upon the appellants, and within due time thereafter certificates of location were filed. That on the tenth day of August the appellant, Babcock, leased to the appellant, the N. Y., L. E. and W. R. R. Co., the right to lay a track across his premises for the term of three years; and thereupon the appellant, the N. Y., L. E. and W. R. R. Co., laid a track across the petitioner’s right of way, as located upon its map, filed as aforesaid. The question as to which company had acquired the prior right of way over these lands was considered by this court in an action between the parties to this proceeding; and it was then held that the petitioner had acquired the prior right to devote this land to a public use. See opinion of Barker, J.

We are consequently of the opinion that thb order should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., and Bradley, J., concur.  