
    People v. The Equity Gas Works Construction Co. and John Devlin, Impleaded.
    (City Court of Brooklyn
    General Term,
    April, 1893.)
    The provision in the charter of the Equity Gas Light Co., etc., of Brooklyn (Laws 1874, chap. 144), that “its corporate power shall cease,” meant that if gas was not furnished at two dollars per thousand feet in 1877, as agreed by the charter, the company should pass out of existence. The company did not commence business for over ten years. Held, on demurrer, that a complaint which alleged inter alia, that said company had no right or franchise to lay gas pipes in said city, for the reason that its corporate powers had ceased, stated a cause of action under subdivision 3 of section 1948 of the Code of Civil Procedure,
    Appeal from an interlocutory judgment entered upon an order overruling a demurrer to the complaint.
    
      S. W. Posendale, for plaintiffs (respondents).
    
      Wm. A. Poste, for defendants (appellants).
   Clement, Ch. J.

This is an appeal from an interlocutory judgment overruling the demurrer of the defendants, who contend that the complaint does not set forth facts sufficient to constitute a cause of action. In the complaint the plaintiffs allege mter alia, that the city of Brooklyn is a municipal corporation and that its streets are public highways of the state of New York and of the plaintiffs ; that the Equity Gas Light Company (a defendant in this action, but not an appellant) was duly organized by articles of association filed in the office of the secretary of state in January, 1874, pursuant to chapter 37 of the Laws of 1848, which at that time was the general law for the incorporation of gas companies; that an act of the legislature, affecting said company, was passed, and is designated as chapter 144 of the Laws of 1874; that said company has no right or franchise to lay gas pipes in this city, for the reason that the corporate powers of said company have ceased; that the said company was subject to a provision of the Revised Statutes that the corporate powers of any corporation should cease which should not organize and commence the transaction of its business within one year from the date of its incorporation.

After some hesitation, I conclude that this action can be maintained against the appellants under subdivision 3 of section 1948 of the Code of Civil Procedure. Whether or not the action can be upheld against the Equity Gas Light Company is not before us. The counsel for the appellant Devlin admits in his brief that, on the facts, an action could be brought under said section 1948, but contends, on the authority of The Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 371, and Attorney-General v. Bank of Niagara, Hopkins Ch. 354, that no action in equity will lie to enjoin the exercise of corporate powers. The Court of Chancery had no such jurisdiction up to the adoption of the Revised Statutes. By section 31, 2 Revised Statutes, 462, the chancellor was empowered to restrain by injunction a corporation or individuals from exercising any corporate rights not granted by law. See People v. Ballard, 134 N. Y. 269, note, 276. On the adoption of the new Code, the sections in point of the Revised Statutes were repealed and reincorporated in sections 1948 (see § 342 of old Code) and 1955. I am of opinion that this action may be treated as brought to restrain the appellants from exercising corporate rights not granted to them by the law of the state.

. The legislature passed an act that the Equity Gas Light Company should have three years to organize and commence the transaction of its business. The general provision is that if a company does not organize and commence the transaction of its business within one year from its incorporation its corporate powers shall cease. The Equity Company did not commence the transaction of business for over ten years. When the act of 1874 was passed, gas was selling in Brooklyn at three dollars per thousand feet. The company in question, by an act presumed to be drawn in its interest, agreed to furnish gas within three years (1877) at two dollars per thousand. Ho thing was done under the act until the price of gas was by statute fixed at one dollar and fifty cents per thousand. The public would have been benefited if the company had complied with its charter. As it is now, a stale charter is revived for the benefit of its stockholders, who have failed to keep their contract with the people.

If a self-executing forfeiture can exist in a charter, it seems to me that it should be so held in this case. In the Winfield R. R. Case, 72 N. Y. 574; 75 id. 335, it was provided that “ the corporate existence and powers shall cease,” and in the Steam Transit Case, 78 N. Y. 524, the words in point were “ this act and all the powers, rights and franchises herein and hereby granted shall be deemed forfeited and terminated.” In the case before us the words its corporate powers shall cease ” are plain, and the legislature intended that if gas was not furnished at two dollars per thousand feet in 1877, then that the Equity Company should pass out of existence.

Judgment affirmed, with costs.

Van Wyok, J., concurs.

Judgment affirmed.  