
    People v. Ulster & D. R. Co.
    
      (Supreme Court, General Term, Third Department.
    
    December 11,1889.)
    Railroad Companies—Forfeiture of Charter—Pleading.
    In an action to forfeit a railroad company’s charter, because of its failure to extend its line as the charter required, defendant being a new railroad company, organized on foreclosure of a mortgage given by the company to which the charter was originally granted, issue was joined before the passage of Laws IT. Y. 1889, c. 330, which relieves such a road from extending its line beyond the portion constructed at the time it acquired title, provided the railroad commissioners certify that the public interests do not require such extension. Held, that defendant should be allowed to file a supplemental answer, setting up the act in defense.
    Appeal from special term, Albany county.
    Action by the people of the state of New York against the Ulster & Delaware Bailroad Company, to obtain the forfeiture of defendant’s charter because of its failure to complete and operate its line of road according to the •conditions of its charter. Defendant is a new railroad, organized upon the foreclosure of a mortgage given by the original company, and succeeded to the old company’s charter. After issue was joined, the legislature passed an act amending the general act of 1874, (Laws N. Y. 1874, c. 430,) for the reorganization of railroads sold under foieclosure, relieving such new corporation “from extending the road beyond the portion thereof constructed at the time it acquired title, provided the board of railroad commissioners should certify that, in their opinion, the public interests, under all the circumstances, did not require such extension,” etc. Act May 5,1889, (LawsN. Y. 1889, c.236.) Defendant moved the court for leave to file a supplemental answer setting up this act, and the action under it of the board of railroad commissioners, as a defense. This motion was denied, and defendant appeals.
    Argued before Learned, P. J., and Landon and Fish, JJ.
    
      Burrill, Zabriskie & Burrill, (J. E. Burrill, of counsel,) for appellant. John P. Grant, (E. Countryman, of counsel,) for respondent.
   Learned, P. J.

It is not necessary or desirable, on the appeal from this order, to decide whether or not the proposed supplemental answer is a valid defense. The facts to be set up are undisputed. The question whether the people can continue this litigation after the passage of the act on which defendant relies, and after the action of the railroad commission under the same, is so important that we should not be justified in preventing the defendant from availing itself of this defense, if it be a defense. The plaintiffs claim that the act does not apply to past transactions, and that if, in terms, it seems so to apply, yet to make it so apply would be unconstitutional. But when we consider that the plaintiffs are the people, and that they are endeavoring to enforce a forfeiture, we are not prepared to hold that it is unconstitutional for the people to relinquish a right of forfeiture, or that they cannot delegate to a commission the power of deciding whether such right of forfeiture should not be relinquished. What rights, on actual or implied contract, the town of Harpersfield may have against the defendant, as successor to other railroads, cannot, we suppose, be passed upon in this action. We are here dealing solely with the right of the people to forfeit defendant’s corporate privileges. The order is reversed, with $10 costs of appeal, and printing disbursements, and the motion is granted on the payment of $10 costs of motion, and plaintiff’s taxable costs up to the time of making the motion at special term; the costs of appeal and printing disbursements to be set off (to their extent) against the costs to be paid by defendant.  