
    THE OGDENSBURGH AND LAKE CHAMPLAIN RAILROAD COMPANY, Appellant, v. VERMONT AND CANADA RAILROAD COMPANY and others, Respondents.
    Motion to dismiss an appeal from a judgment, entered on a demurrer to the plaintiff’s complaint.
    This action was brought to obtain a decision from the court, whether a certain lease executed by the plaintiff to the Vermont and Canada Railroad Company was or was not void. The plaintiff did not affirmatively allege that the lease was void, but it asked for a decision on this point and a judgment that, if void, it be annulled and they restored to their rights as before the lease was executed. The defendant, the Vermont and Canada Railroad Company, demurred. The demurrer was sustained.
    The Vermont and Canada Railroad Company moved to dismiss this appeal, on the ground that before and since the judgment on the demurrer, the plaintiff accepted rent on the lease, and thus ratified it.
    The ground on which it is claimed that the lease is void, is, that it was one which the company had no power to make — ultra vvres. The General Term was of opinion that if the Ogdensburgh and Lake Champlain Railroad Company had no power to make such a lease as the one in question, they had no power to ratify it by accepting rent.
    
      L. Hasbrouck, Jr., and Wm. M. Evarts, for the appellant.
    
      Edward C. James, for the respondents.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

James, J.,

dissented.

The motion to dismiss the appeal denied, with ten dollars costs.  