
    Carrie L. Lee, as Administratrix, etc., of Burton B. Lee, Deceased, Appellant, v. Stillwater and Mechanicville Street Railway Company and Others, Respondents.
    Third Department,
    November 16, 1910.
    Parties — action against railroad corporation after consolidation with, other corporations — railroad — negligence — injury to motorman by high tension current —facts raising questions for jury.
    On the merger of a railroad corporation with other corporations an action existing but not commenced before the merger is perfected must be brought against the new corporation.
    Where an electric power company continued to carry a high tension current over a feed wire knowing it to be in close proximity to telephone wires used by motormen to communicate witli headquarters, and, following a storm which displaced the telephone wires, a motorman was killed by an electric shock while telephoning, the negligence of the power company is for the jury.
    
      Where telephone wires owned by a railroad company and used by its employees to communicate with headquarters were carried on the poles oí a telephone company together with its own wires, and, owing to the fact that the wires of both companies were broken during a storm, it is impossible to tell which was prima fade responsible for the fact that a high tension current was transmitted to the wire of the railroad company so as to kill a motorman while telephoning, it is for the jury to say whether the negligence of the telephone company brought about or contributed to the. accident.
    Smith, P. J., dissented in part.
    Appeal by the plaintiff, Carrie L. Lee, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 30th day of October, 1903, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Saratoga Trial Term.
    The plaintiff’s intestate was killed by an electric shock while in the service of the Stillwater and Mechanicville Street Eailway Company as motorman, while he was at the company’s telephone box at Heart’s switch, communicating with the superintendent’s office. The railroad company maintained a telephone wire for the purpose of communication between the superintendent’s office and the various boxes along its line, to which the motormen had access by keys. The Hudson Eiver Telephone Company maintained its line upon its poles through Mechanicville, and at the intersection of William street with the Champlain canal it crossed over the electric light feed wire of the Halfmoon Light, Heat and Power Company. On the lower arm of the telephone company’s pole, nearest the crossing, were ten wires. The two inside wires on either side of the telegraph pole were the railroad company’s wires. The wires on the lower arm of the telephone pole sagged, and, where they crossed the power company’s line, were .discovered to be about four to six inches from the feed wire, and were known to be in that condition for some time. The accident took place Sunday, April 21, 1901, at eight-forty A. m. There was a severe storm Saturday and a good deal of trouble was experienced Sunday morning with the telephone company’s system of wires at Mechanicville. Some of them were down and some of the telephone boxes were out of use. Immediately after the intestate’s death it was discovered that one of the railroad company’s wires, near the point in question, lay upon the feed wire, at a place where its insulation was off. At two other places near by the insulation was off the feed wire, and two of the telephone company’s copper wires were' found broken in the immediate vicinity. The feed wire carried 2,300 volts, and it is apparent that the electricity from the feed wire was communicated in some way through the telephone wire and caused the intestate’s death.
    On the first day of July after the accident, and before action brought, the railway company, with other railway companies, entered into a joint agreement and consolidated under the corporate name of the Hudson V alley Bail way Company, which is a domestic corporation.
    
      R. H. Barnett, for the appellant.
    
      James McPhillips, for the respondent railway company.
    
      John A. Delehanty, for the respondent telephone company.
    
      Patterson, Bulkeley da Van Kirk [Alpheus T. Bulkeley and Charles S. Motisher of counsel], for the respondent Halfmoon Light, Heat and Power Company.
   Kellogg, J.:

The railroad company was authorized by sections 70, 71 and 72 of the Bailroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1891, chap. 362, and Laws of 1892, chap. 676) to consolidate with the other companies and form the Hudson Valley Bailway Company, and section 73 provides, among other things, that “ the rights of all creditors of * * * either of such corporations, parties to such agreement and act, shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same, and all debts and liabilities incurred by either of such corporations shall thenceforth attach to such new corporation and be enforced against it and its property to the same extent as if incurred or contracted by it.” And it further provides that no pending action shall abate, but may proceed, or the new corporation may, by order of the court, on motion, be substituted as a party. After the consolidation‘is perfected a new action, although upon a cause of action existing before the merger, must be brought in the name of the new company. (Cameron v. United Traction Co., 67 App. Div. 557.)

A merger made in good faith under the statute violates no property right of creditors and deprives them of no substantial remedy which they otherwise had. They were dealing with a statutory creature which had the right to merge its existence with other like creatures in the usual statutory manner. An action brought after the merger against one of the old companies can produce no results, and the substitution of the new company is not to the disadvantage of the creditor, although an unwise merger may have been very detrimental to him.

The judgment in its favor is, therefore, affirmed, with costs.

It was a question of fact for the jury whether the power company was negligent in continuing to carry a high current over the feed wire when it knew of the close proximity of the telephone wires. The question should have been submitted to the jury. The judgment in its favor should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

The telephone company’s local superintendent swore that the telephone company was carrying on its poles the railroad company’s wire. “We had ten wires there, and two of the ten were the trolley company’s; * * * prior to the time of the accident our line of poles had been carrying the private line of the trolley road.”

When, a few days before the accident, the close proximity of the telephone wires to the feed wire was discovered by the telephone company’s superintendent, he notified the power company’s superintendent that the wires were close together at that point. It does not appear that he understood that it concerned the railroad company. The Tuesday before the accident he put on two new wires, one of which was below the arm and about six inches above the feed wire, and it was attached to the arm six or seven inches lower than the other wires.

It is difficult to tell just what caused "the accident. The telephone company’s wires burned, as did also the railroad company’s wire. The evidence does not make it clear which burned first, or whether the burning of one was the cause of the burning of the other. We find the feed wire bare of insulation in three places. One of the railroad wires lay upon the feed wire; another was broken, and two of the telephone company’s wires were broken. How it happens that the telephone company is carrying the wires of the railroad company does not appear; neither does anything show which company is prima facie responsible for the proper maintenance of the wire. As the record stands it was, T think, a fair question of fact whether the negligence of the telephone company brought about or contributed to the accident.

The judgment in favor of the telephone company should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Smith, P. J., dissenting as to the telephone company.

Judgment in favor of the railway company affirmed, with costs. Judgment in favor of the telephone and the power companies reversed and new trial granted as to them, with costs to appellant to abide event.  