
    People v. De Grauw et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    Turnpike Company—Abandonment—Reorganization.
    A turnpike road company which transfers all its stock and conveys all its lands to a plank-road company under Laws 1847, c. 210, § 10, authorizing a turnpike company to abandon a road taken by a plank-road company locating its route on or adjoining the route of the turnpike company, is thereby dissolved, and cannot be reorganized by the stockholders of the plank-road company on the expiration of the charter of the plank-road company.
    Appeal from-special term, Queens county.
    Action by the people against Aaron A. De Grau w and others to restrain them from unlawfully exercising corporate privileges and franchises. Plaintiff appeals from a judgment for defendants.
    Reversed.
    Argued before Barnard, P. J., and Pratt, J.
    
      Charles F. Tabor, (Francis H. Van Vechten, of counsel,) for appellant. Augustus N. Weller, for respondents.
   Barnard, P. J.

The legislature, by chapter 37, Laws 1812, created a corporation known as the “Hemstead Turnpike Company” to operate a road between Jamaica and Hemstead. This corporation acquired by condemnation an old road between these two points, and by purchase certain other lands needed to make a good road. Under this charter the turnpike company •erected gates and conducted the roads according to the provision of its charter until 1852. The legislature had before this date, and in 1847, provided for plank-roads, and such roads at first were very popular. Much was expected ■from such roads, and great powers were given them in respect to taking old roads for the purpose, with assent of the highway authorities and turnpike companies. A plank-road corporation was formed in 1852 to construct and maintain a plank-road between Jamaica village and Hemstead village. The plank-road company was designated in its articles of association as “The Hemstead & Jamaica Plank-Road Company.” The general law in respect to plank-road companies (section 10, c. 210, Laws 1847) authorized a turnpike company to abandon a road taken by a plank-road company. The turnpike •company required, as a mode of assent to the making of the plank-road on its road, that the plank-road company should buy all the stock of the turnpike •company. This was done, and the turnpike company, by its officers, transferred tlie road to the plank-road company. By the terms of the charter the plank-road company was to exist for 30 years, which period expired March 11, 1882. On the 5th of J une, 1879, the plank-road company procured the Assent of the supervisors of Queens county for an extension of its charter for the period of 30 additional years from March 11, 1882. The supervisors had ,no power to extend the charter. Such power was given by chapter 135, J aws 1876, and taken away, as to Queens county, by chapter 254, .Laws 1879. • No-question was made as to the validity of the extension, and the plank-road-company continued to operate its road as a plank-road until August 27, 1890,.' This action was then commenced, and thereupon the stockholders of the plank-' road company reorganized under the old turnpike charter, and have since operated the road as a toll-road. The change was made before this action was-commenced, and the question is as to the validity of this reorganizatiqn; As, has been stated, the plank-road company purchased all the turnpike stock, and by the assignment provision of chapter 210, Laws 1847, under which the-turnpike was taken, no provision was made as to the status of the turnpike-corporation beyond permitting such corporation to abandon the road taken by the plank-road: It is impossible to see what the turnpike company kept under the Laws of 1847. The stockholders had sold all its stock, and the company had deeded its lands, and by the law it was absolved from its duties under its charter. In 1857, by chapter 643 of the Laws of that year, section 10 of chapter 210 of the Laws of 1847 was amended, and upon the commencement of this action the plank-road company organized itself as a turnpike-road under its provision, and has since operated the road as a toll-road. The question is whether this is permitted by this amendment. The amendment, has no application to the defendant. By it only such turnpike roads as connected with a plank-road were the subject of the amendment. If a turnpike connected with the plank-road, the plank-road corporation could buy its stock,, and then continue to run it as a turnpike, “pursuant to the charter of such turnpike-road company. ” On the dissolution of the plank-road the turnpike waste be represented by stock according to the holding of the list of stockholders. It. was not intended by the law to save the rights of the old turnpike company,, which was taken by the plank-road in 1852. The turnpike had been taken and paid for, and the holding of the stock was only had as a form of assent. The-' same right to abandon turnpikes where a plank-road was naturally constructed and used is preserved in original section 10 of the act of 1847 and its-amended condition under the Laws of 1857. When the plank-road-was dis-. solved by its own limitation, the road-bed became a public highway, under-chapter 780, Laws 1872; chapter 337; Laws 1881. The.judgment should therefore be reversed, and a new trial granted, costs to abide event.  