
    The People, App’lts, v. Aaron A. Degrauw et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Turnpikes—Reorganization after abandonment.
    Where a turnpike company abandoned its road and sold its stock to a plank road company, Held, that it could not he reorganized by the stockholders of the plank road company on the termination of the charter of the latter company, but that on the dissolution' of such company by its own limitation the road bed became a public highway.
    Appeal from judgment dismissing the complaint.
    Action to restrain the defendants from acting as a plank road or turnpike company.
    
      Gliarles F. Tabor (F. II. Van Vechten, of counsel), for app’lts; A. F. Weller, for resp’ts,
   Barnard, P. J.

The legislature by chapter 37, Laws of 1812; created a corporation known as The Hempstead Turnpike Company to operate a road between Jamaica and Hempstead. 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 road according to the provisions 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 the 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 Hempstead Village. The plank road company was designated in its articles of association as “ The Hempstead & Jamaica Ríanle Road Company.” The general law in respect to plank road companies, § 10, chapter 210, Laws of 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 the road to the plank road company. By the terms of the charter the plank road company was to exist for thirty years, which period expired March 11, 1882. On the 5th of June, 1879, the plank road company procured the assent of the supervisors of Queens county for an extension of its charter for the period of thirty ad-, ditional years from March 11, 1882. The supervisors had no power to extend the charter. Such power was given by chapter 135, Laws of 1876, and taken away as to Queens county by chapter 253, Laws of 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 re< organized under the old turnpike charter, and have since operated the road as a toll road. Thev change was made before this action was commenced, and the question is as to the validity of this reorganization. As has been stated, the Plank Road Company purchased all the turnpike stock, and by the assignment provision of § 10, chap. 210, Laws of 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 has 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, § 10 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 was to 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 actually constructed and used is preserved in original § 10 of the act of 1847, and its amended condition under the Laws of 1857. When the plank road was dissolved by its own limitation, the road bed became a public highway under chapter 780, Laws of 1872; chapter 337, Laws of 1881.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide event.

Pratt, J., concurs; Dvkmajst, J., not sitting.  