
    William O. Platt and William Man, as Trustees, etc., Respondents, v. The New York and Sea Beach Railway Company and Sophia M. Onderdonk, Respondents. August Meidling, as Guardian ad Litem of August Meidling, Jr., an Infant, Appellant.
    
      .Railroads — mortgages given to complete or operate a road cover after-acquired property, whether real or personal — they need not he filed as chattel mortgages.
    
    Where a railroad corporation executes a mortgage under chapter 140 of the Laws of 1850 (Chap. 676 of 1892), authorizing such a corporation to mortgage its corporate property and franchises for the purpose of completing, furnishing or operating its road, the mortgage thus made covers property subsequently acquired by the corporation for any of such purposes, whether the after-acquired property be real or personal —if personal, it is not necessary that the mortgage be filed as a chattel mortgage.
    Appeal by the petitioner, August Meidling, as guardian ad litem of August Meidling, Jr., an infant, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of May, 1896, denying the petitioner’s motion to vacate an order appointing a receiver and also a judgment entered in the action, or to modify the same. -
    This action was brought for the purpose of foreclosing a mortgage executed by the Hew York and Sea Beach Railway Company. On January 11, 1896, the plaintiffs in this action procured' an order appointing a receiver of said company, and of all the prop^ erty then owned by it. Subsequently a judgment of foreclosure was entered by which the receivership was continued and a sale directed of all the property in the receiver’s hands. Thereupon the appellant, who is a judgment creditor' of the Hew York and Sea Beach Railway' Company, instituted this proceeding for the purpose of having the order appointing the receiver and the judgment of foreclosure, and sale so modified as to affect only such property as the mortgagor had when the mortgage was executed.
    
      Joseph Wamsley, for the petitioner, appellant.
    
      Frederic A. Ward, for the receiver, respondent.
   Hatch, J.:

The validity of the mortgage is not controverted. But it is claimed that under it no lien was acquired upon the personal property'purchased subsequent to its execution, as against the petitioner herein. That the lien should attach to after-acquired property is within the , express terms of the mortgage, and it is not disputed that such is its effect as between the parties thereto; By the provisions of the statute (Laws 1850, chap. 140, § 28; subd'. 10) authority was conferred to mortgage the corporate property and franchises for the purpose of completing, furnishing or operating the railroad. And this authority has been continued in the same language under the revision of the Railroad Law (Laws 1892, chap. 676, .§ 4, subd. 10). The statute contemplates that it may be necessary to borrow money for the purpose of the physical creation of the road and putting it' in operation. It is quite evident that in the accomplishment of this purpose property would be created and acquired that had no actual or potential existence at the time when the loan

was made ' and the. mortgage given. It is the usual course of procedure in the construction of a railroad, that money is raised by mortgage upon its property, and that the structure is built and operated to a large extent by means of the loans tints obtained,. and much of the property is created and acquired after the loan is made. The statute makes no distinction between property necessary for the completion and furnishing of the road and that which is essential to its operation. By the terms of the law, therefore, it was contemplated that, for the money thus obtained the property acquired should be pledged as the security for its repayment, and this, cannot be accomplished without holding' that the lien of the mortgage attaches to such property as 'shall be necessary for that purpose, Avhether it is in existence at the time when the mortgage is given or is subsequently acquired, and'whether such property be such as is denominated real or personal. So it was early held that such a mortgage created, in equity, a hen upon property subsequently acquired superior to the lien of a subsequent incumbrance by mortgage or judgment. (Seymour v. Canandaigua & Niagara Falls R. R. Co., 25 Barb. 284; Benjamin v. Elmira, Jefferson & Camandaigua R. R. Co., 49 id. 447; Stevens al Watson, 4 Abb. Ct. App. Dec. 302.) In those cases the question arose respecting liens upon subsequently acquired real property. But the discussion shows that the court considered the rule applicable as avoII to. personal as to real property. Such has been the uniform rule applied in the Federal courts. (Mitchell v. Winslow, 2 Story, 630; Central Trust Co. v. Kneelamd, 138 U. S. 419.)

The difficulties which have arisen relate not so much to the recognition of the mortgage as a lien, for the doctrine of the above-cited cases has never been questioned, but rather to the steps necessary to be taken to evidence the lien. The first debate arose over the question whether the rolling stock and equipment of the road retained its character as personal property,..and if so was it requisite that the mortgage should be filed as a mortgage of chattels. The Supreme Court divided upon the question, and decisions Avere rendered both ways. The Court of Appeals, in Hoyle v. Plattsburgh Montreal R. R. Co. (54 N. Y. 314), settled the question by holding that it was personal property, and that the mortgage covering it must be filed as a mortgage: of chattels, as prescribed by the act of 1833, or the same would be void as against the general creditors of the corporation. To meet this conclusion the Legislature, in 1868, passed an act (Laws of 1868, chap.’779) providing that it shall not be necessary to file such mortgage as a mortgage of chattels when it- covers real and personal property and is recorded as a mortgage óf real estate in each county in or through which the railroad runs. By this act' the status of such property, so far.as it relates to Jiens by way of mortgage^, is made practically subject to the same rules and is placed upon the same footing as real property. The business carried on by railroads, the great extent of territory which they cover, and the fact that the rolling I stock is at all times widely distributed, not only throughout the State through which its lines mainly run, hut also throughout the -different States .of the Union, create an essential difference between it and property whose situs is practically fixed. This, coupled with the necessity which exists for certainty of security to those advancing money, usually in very large amounts, upon the fáith of railroad property, and the practical difficulty, if' not impossibility-,, of a railroad being able to realize upon its property in this, manner, if the technical rules respecting liens upon personal property should obtain, evidently created an . intent in the mind of the Legislature to make such property subject to the same • rules, so far ¡as practicable, as apply to , liens upon real property, ft is quite evident that if it should be held necessary to constantly revise such a mortgage, in ordér to cover what lias been, it may be, purchased by the money advanced or to supply operating needs and replenish what is destroyed, it would render such security so -doubtful and precarious, as not only to impair but to practically destroy its value.- We man see no reason for drawing a distinction' in this regard between -.real and personal property. On the contrary, as the authority for the ¡mortgage of both is derived from -the same source, and tjhe same reasons exist why both should be available and answerable as security, we think it more in harmony with the legislative intent to subject it to the same rules. (N. Y, Security Co. v, Saratoga Gas Co., 88 Hun, 569.) This view does not bring us in conflict with R. D. Co, v. Rasey (142 N. Y. 570). That cas.e proceeded upon the welhsettled legal rule that a mortgage of chattels, having no actual or potential existence when the mortgage was -given, is void as to intervening creditors. For reasons already stated that rule has no application to a mortgage of this character.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred. .

Order affirmed, with ten dollars costs and disbursements.  