
    COURT OF APPEALS.
    In the matter of the application of The Brooklyn, Winfield and Newtown Railroad Company, appellant, to acquire the right to use the tracks of The Broadway Railroad Company, respondent.
    
      Bailroads organized under the general raib'oad laws, when corporate existence ceases—Laws of 1867, cha/pter 775, section 1 — Taking of private property for public use—what may he alleged in opposition to application.
    
    Every corporation formed under the general laws for the formation of railroad corporations, previous to 1869, are required by the Laws of 1867 (chapter 775, section 1) to begin the construction of its road, and spend thereon ten per cent of its capital, within five years after its articles should be filed and recorded in the office of the secretary of state; and to finish its road and put it in operation in ten years from the time of such filing, &c., or in default thereof "its corporate existence shall cease.”
    The existence of the corporation is determined by the omission to comply with either of the prescribed conditions; and the omission to begin the construction and spend ten per cent of the capital within five years is as fatal as the failure to finish the road within the ten years.
    Where, by non-performance of either of these conditions, the company forfeits or loses its corporate rights and powers, the fact may be asserted by any one whose lands or property is sought to be appropriated to the uses of the corporation under the laws authorizing the taking of private property for public use.
    The company was organized February 3, 1869. It is in proof that it has not at this time (July 19,1877) begun a construction of its road, or made any part of the expenditure required by law to be made within five years, although that period expired In February, 1874.
    
      Held,, that such proof brings it directly within the act declaring that its existence and power should cease upon that contingency.
    
      Held, also, that the time for the performance of either of the conditions imposed by the Laws of 1867 was not extended by the several special acts of the legislature {Laws of 1869, chapter 718 ; Laws of 1870, chapter 612; Laws of 1871, chapter 622; Laws of 1872, chapter 705),
    On the 25th of May, 1874, after the expiration of the time for the beginning of the work of constructing the road had passed, the legislature passed an act {Laws of 1874, chapter 575) declaring that the time for beginning as well as finishing the road was extended for three years from the date of the act. The three years expired May 26, 1877. The application by the company for leave to take the respondent’s land was made upon a petition verified July 19, 1877.
    
      Held, that as the company had not at the time either begun nor finished its road, its corporate existence and powers had ceased.
    
      Held, also, that the act of 1875 {Laws of 1875, chapter 598), which is general, and applicable to all railroad companies within it provisions, does not apply to this company. It was not in default. It had yet, by the special act of 1874, two full years within which to complete its road, and the law of 1875 was framed for the relief of roads which were then in default.
    
      January, 1878.
    
      John H. Bergen, for appellant.
    
      W. C. De Witt, for respondent.
   Allen, J.

The company making this application was organized and became incorporated under the general laws for the formation of railroad corporations in force at the time of its organization, February 3,1869. Every corporation formed under these laws are required by the Laws of 1867 (chapter 775, section 1) to begin the construction of its road, and expend thereon ten per cent of its capital, within five years after its articles should be filed and recorded in the office of the secretary of state, and to finish its road and put it in operation within ten years from the time of such filing of its articles of association; and if it failed to begin the construction and make the expenditure named within the time limited for that purpose, or, having made such beginning and expenditures, it failed to finish and put its road in operation within .the further time allowed for so doing, then, and in either case, it was declared that its corporate existence and powers shall cease.” The existence of the corporation was determined by the omission to comply with either, of the prescribed conditions ; and the omission to begin the construction and .expend ten per cent of the capital within five years was as fatal as the failure to finish the road within the ten years. The statute is not susceptible of any other reading.

If, by non-performance of either of those conditions, the company forfeited or lost its corporate rights and powers, the fact may be asserted by any one whose lands or property is sought to be appropriated to the uses of the corporation under the laws authorizing the taking of private property for public use. The legal existence of a corporation authorized to construct a railroad is at the foundation of the right to take property for its use. There must be a living or existing corporation. The petitioner, alleges that it “is a corporation duly organized,” &c., and this is a traversable allegation and proof that it had not performed either of the conditions of its continued existence, negatived the allegation and brought it directly within the act declaring that its existence and power should cease upon that contingency. It needed no action or judicial procedure to declare or complete a perfecture of the charter and loss of corporate powers. The statute executed itself, and the non-existence of the corporation could be alleged in opposition to this application by the respondents . (Peary agt. Calais R. R. Co., 30 Maine, 498). Is was a fact that petitioner was compelled to allege, and it follows that the respondent could controvert it. It is in proof that the petitioning company has not at this time begun a construction of its road, or made any part of the expenditure required by law to be made within five years, although that period expired in February, 1874. It is claimed, however, that the corporate rights have been saved by several acts of the legislature. The statutes (Laws of 1869, chapter 718; 1870, chapter 612; 1871, chapter 622; 1872, chapter 705), all passed during the life of the corporation, recognize its existence as a corporation formed under and subject to the general laws of the state, and they modify its articles of association and its chartered rights by authorizing changes and extensions of its route, relieving it of some of the conditions imposed by the general laws, prescribing a modified procedure for the appraisal of damages for lands taken for its use, and permitting it to acquire the right to use the track of other railroad companies already laid upon any part of its route, upon making compensation, to be ascertained in the manner provided by law for ascertaining compensation to be made to owners for lands taken for railroad purposes. Except as modified by those several acts, the corporation was subject to • the terms of its articles of association and to the general laws under which it was organized, and was relieved of none of the conditions or mandates of those laws. The time for the performance of the conditions imposed by the laws of 1867 was not extended. On the 25th of May, 1874, after the expiration of the time for the beginning of the work of constructing the road had passed, a law was enacted which revived the corporation and gave it a new existence by extending the time within which it was required by law to finish its road and put it in operation for three years from and after the passage of the act (Laws of 1874, chap. 575.) By this statute the condition of finishing and putting the road in operation within three years from that time was substituted for the conditions of the act of 1867, but the company was not relieved from the penalty of non-compliance with the condition as declared by the latter act. if either condition of the law of 1867 having been perforated, and the company being in default as to use, the legislature combined the two and declared that the time for beginning as well as finishing the road was extended for three years from the date of the act. The three years expired May 26, 1877. This application was made upon a petition verified July 19, 1877, and as the company had not at that time either begun and finished its road, its corporate existence and powers had ceased.

Reliance is placed upon an act passed in the following year for a further extension of time for construction of the road (Laws of 1875, chap. 598). That statute is general, and applicable to all railroad companies within its provision, and was not enacted for the benefit or relief of the appellant company, by name, as were the other acts quoted. But this company does not, come within the class of companies for which that law was enacted, and within the terms of the act. It was not in default. It had yet two full years within which to complete its road, and the law of 1875 was framed for the relief of roads which were then in default. It provides that any existing railroad company theretofore organized, &c., which may have been unable from any cause to construct its road within the time specified in its charter or articles of association, shall have the time for the completion of its railroad extended for a further term of two years beyond the time heretofore limited, and that a failure to construct its railroad heretofore shall not cause a forfeiture of its corporate powers.

The failure of the appellant company to begin the construction of its road within five years, and the consequent loss -of the corporate powers, was condoned by the grant and acceptance of a new and extended term, within which to complete the road, for three .years from February, 1874; and it was not, and never had been, in default for not completing and putting in operation its road. It was not in need of the relief extended by the act of 1875, and was neither within the letter or spirit of the act or the intent of the legislature. It was then in life by virtue of a special act made and accepted for its relief; and had the two years of the private act which was granted to other roads not thus favored of the law of 1875, and cannot have the benefit of a general law passed for roads differently circumstanced, and for purposes inapplicable to its condition. The order must be affirmed.

All concurred; Miller, J., absent; Earl, J., not voting.  