and place the same along the westerly line of and upon the aforesaid premises. The party of the second part is to construct a good and convenient crossing over the said railway premises to the highway, reconstructed as aforesaid." The conveyance to the company was in terms of "feesimple." The company thereupon took possession of the highway, and raised an embankment on the easterly side of the strip so conveyed, for the track of its road, from 14 to 20 feet high, across the plaintiff's farm, and completely shut off all approach to the plaintiff's buildings over the highway from the south, there being a ravine on the southerly side of his land, which embankment also prevented his reaching the highway to the north except by climbing the railroad embankment near the northerly line of his premises. Neither the New York, West Shore & Buffalo Railway Company, nor its successor in title, the West Shore Railway Company, nor the New York Central & Hudson River Railroad Company, the lessee of the West Shore Railway Company has constructed the highway on the westerly side of the 130-feet strip, as provided in the deed. But, in the fall of 1882, the grantee in the deed purchased from the plaintiff another strip of land across his farm, 50 feet in width, on the top of the mountain for a public road, and opened it as a public road, and connected it at the north and south with the old highway, and it has since been used by the public as such in place of the original road at the foot of the hill. The company also made an approach up the embankment on the north side of the plaintiff's farm, to enable the plaintiff to reach the old highway north of his premises. The plaintiff, by reason of the situation, when he desires to go from the 145 acres of his farm on the river to Saugerties, or any other market south of his premises, is compelled to first go north, climbing the embankment to the junction of the old road with the new road, across the hill, and then turn southerly and go over the hill road until it meets the original highway south of his lands, a route much less convenient than the former one, thereby increasing on each strip the distance to be traveled about one and a quarter miles. In respect to the new road, and the purchase of the strip 50 feet in width therefor, upon which one of the points made by the defendants is based, it appears that, in constructing the embankment, the railroad company blocked and obstructed the old highway so as to prevent its use, and the commissioner of highways threatened legal proceedings; and it also appears that he objected to placing the highway on the 130-foot strip, on the ground that horses would be frightened, etc. The original company thereupon applied to the plaintiff to purchase a strip on the hill for the highway, and did make such purchase, paying the plaintiff $500 for the land. But the plaintiff expressly refused to release the company from the obligation under the covenant in the original deed; and insisted that the company should build the road on the west side of the 130 feet, as provided there in. It was shown on the part of the defendants that the construction of a highway under the hill, as provided in the covenant, would, by reason of the blasting which would become necessary, and other difficulties, be very expensive, and would cost from $12,000 to $14,000, and that the company had expended from $6,000 to $10,000 in constructing the road over the hill. Subsequent to the com. mencement of this action, the New York, West Shore & Buffalo Railway Company became insolvent, and its property was sold on foreclosure, and was purchased by individuals who subsequently conveyed it to a new corporation, the West Shore Railway Company, which latter company leased it by a perpetual lease to the New York Central & Hudson River Railroad Company. The two latter corporations were brought in as parties defendant. There was proof tending to show that the value of the plaintiff's farm had been greatly impaired by the obstruction of the old highway, and that it would be worth $5,000 more than it now is if the covenant in the original deed had been performed. The judgment of the court awarded the plaintiff $2,500 as damages for the failure to construct the road as provided in that deed, and adjudged that the defendant the West Shore Railway should construct a crossing under its road at a point indicated, to enable the plaintiff to reach the old highway and the new road over the hill. Hamilton Harris, for appellants. J. A. Griswold, for respondent. ANDREWS, J., (after stating the facts as above.) The New York, West Shore & Buffalo Railway Company, by the acceptance of the deed of February 8, 1882, became bound to perform the obligation recited therein to locate the highway on the westerly side of the strip of land conveyed by the deed, and to construct a crossing for the use of the plaintiff. The undertaking of the corporation was a part of the consideration of the grant, and, although the deed was not signed and sealed by the corporation, it became effectual on delivery to and acceptance of the same by the grantee as a contract on its part to perform the undertaking recited, (Dock Co. v. Leavitt, 54 N. Y.35;) and, upon a refusal of the company to perform, the plaintiff was, according to the general rule, entitled to maintain an action for specific performance or for damages. It is not denied that the West Shore Railway Company, the successor in title of the original corporation, on becoming vested with the rights and property which belonged to its predecessor, also became subject to and bound by the same obligation in respect to the highway and the railroad crossing, created by the deed of February 8, 1882, which before rested upon the grantee therein alone. The deed under which the West Shore Railway Company acquired its title is not printed in the case, and, so far as appears, that company may have expressly assumed the performance of the obligation of the prior company. If that fact is material, it must nere be assumed. The point is now made in behalf of the defendants that the contract between the plaintiff and the New York, West Shore & Buffalo Railway Company is void as against public policy, because, as is claimed, it is a contract between private parties providing for the abandonment of a part of an existing highway, and the substitution of a new location to take the place of the highway so abandoned, without the sanction of the commissioner of highways of the town. We are of opinion that this contention cannot be supported. on the company, and "it takes the risk of its act being in accordance with its obligation. JOHNSON, J., Wademan v. Railroad Co., 51 N. Y. 570. See, also, People v. Railroad Co., 74 N. Y. 302; People v. Railroad Co., S9 N. Y. 266. In the present case the company, by the deed from the plaintiff, acquired the fee to the highway, subject to the public easement, and additional land adjoining sufficient for the highway when changed. We think the contract between the parties providing how the restoration should be made was legal. The public were not concluded, and its right of action for a failure by the railroad company to perform its statutory duty remained unimpaired. It is further contended that the performance of the contract on the part of the railroad company was prevented by the pears that, in the fall of 1882, he objected to the construction by the company of the new highway under the hill for prudential reasons. The answer heretofore given to the point made that the contract was opposed to public policy applies here also. The commissioner could not dictate how the work of restoration should be accomplished. It might be very reasonable that the company should desire to consult the wishes of the town officers on the subject, and thereby avoid any future question or difficulty. But the covenant with the plaintiff was not discharged by the objection of the commissioner, for the company was under no legal compulsion to follow his direction in the matter. It certainly does not appear that the construction by the company of the highway at the place agreed upon between it and the plaintiff would not have satisfied the statutory duty resting on the company. Moreover, we think it is a very grave question whether, assuming that the company had no right as between itself and the town to locate the road under the hill, the plaintiff was not nevertheless entitled to enforce the contract so far as to give him a road for his use at the place indicated. The main purpose of the contract was to insure the plaintiff a convenient road to and from his premises. This the plaintiff could have provided, although the road should no longer continue a public legal highway. Story, Eq. Jur. § 779. The New York, West Shore & Buffalo Railway Company did not acquire its right to construct its road upon and along the Catskill and Saugerties highway as against the public by virtue of its deed from the plaintiff of February 8, 1882. The right to use the highway for the purpose was vested in the corporation by the gen-action of the town commissioner. It aperal railroad act on obtaining the consent of the supreme court, subject only to the duty to restore it to its former state, “or to such state as not unnecessarily to have impaired its usefulness," (Laws 1850, c. 140, § 28, subd. 5; Laws 1880, c. 133;) and, when it becomes necessary for a railroad company, in order to discharge the duty of restoration, that the highway interfered with should be removed in whole or in part outside of its original limits, the corporation may acquire by purchase or condemnation the lands necessary for the purpose, and the reconstructed highway in the new location becomes a part of the legal highway, (People v. Railroad Co., 58 N. Y. 152.) The corporation has in general the right to determine the route of its road except where its line is coincident with the route of a highway, subject to the right given by statute to parties interested to apply for a change of location in the manner provided. The commissioner of highways is vested by statute with the care and supervision of the highways of the town, (1 Rev. St. p. 502, § 1;) but this, we think, gives him no power to control the location of the railroad within the line of the highway. That power is vested in the railroad corporation, subject to the approval of the supreme court. The statute requires notice of the application to the court to be given to the highway commissioner. But his consent to the location of the railroad within the limit of the highway is not required, and if given, would confer no authority upon the company in addition to what it before possessed; so also in respect of the duty imposed on a railroad company whose road is located in a highway, to restore it to its former state, or to such state as not unnecessarily to impair its usefulness. The duty is solely a corporate duty which the company is bound to perform, and for any failure in its performance, in addition to other remedies, the commissioner of highways is authorized, by chapter 255 of the act of 1855, to maintain an action to enforce the performance, or for damages sustained by the town from non-performance. But it is for the company, in the first instance, to determine the method of restoration. The responsibility is not divided between the company and the commissioner. The obligation is cast up The point that the plaintiff waived the provision in the contract by selling to the company the land for the road over the hill, and receiving pay therefor, followed by the construction of the hill road by the company at large expense, is not supported by any facts proved or found, and in addition, which alone is conclusive, the defendant's counsel did not request any finding on the subject, nor is the point raised by any exception in the case. The facts show that there was no waiver, and that, in the negotiation which resulted in the second purchase, the plaintiff expressly refused to release the company from the original contract, and insisted upon the road provided for therein. Under such circumstances, there could be no estoppel. The point that there was no evidence to justify the court in awarding $2,500 of supervisors of the county of Broome passed a bill (No. 39) authorizing the construction of an iron bridge across the Susquehanna river between said towns, the issuing of bonds to raise the money with which to pay for the same, and appointing the defendants commissioners of the town of Kirkwood, who were to co-operate with the commissioners appointed for that purpose by the town of Conklin. This bill was passed on the application of the town of Conklin alone, regularly made at a special town meeting for that purpose. The town of Kirkwood had previously voted at a regular town meeting, by a majority vote, not to join in or to in-apply for the building of said bridge, and opposed the same. Previous to said application by the town of Conklin there was no highway in the town of Kirkwood leading to the proposed site of the bridge, and the board of supervisors, by proper proceeding, authorized the laying out of a highway in the town of Kirkwood to connect with that already laid out in the town of Conklin. No application for the bridge had ever been made to the town officers or voters of Kirkwood, and no bridge had previously existed at the site upon which this bridge was proposed to be built. On May 19, 1886, and a few days after the commencement of this action, the legislature, by chapter 419 of the Laws of that year, legalized, ratified, and confirmed the action and proceedings taken in this matter by said board of supervisors. The complaint only seeks to restrain the issuing of the bonds upon the town of Kirkwood for its proportion of the expense for the bridge. An injunction was granted at the outset of the action, but was vacated before the action was tried, and the order vacating it was not appealed from. damages for the non-construction of the road provided for in the covenant is not, we think, well taken. The witnesses placed the damage to the plaintiff's farm by reason of the obstruction of the old highway, and the failure to construct a new one under the hill, in the aggregate, at $5,000. The claim is that, as the damages arose from two causes, the non-construction of the road, and the failure to build the crossing, and as the damage from each cause was not separately stated by the witnesses, they could not be separated by the court in its findings. But, by stipulation of the parties, the court, after the testimony was in, viewed the premises. There was evidence in the case showing the creased cost of carrying on the farm by reason of the plaintiff being cut off from the use of the old highway, and being required to use the hill road in the transportation of the products of the farm, enough, we think, to justify the specific finding in question. The defendants cannot justly complain of any injustice. By the judgment, they have been relieved from a specific performance of the contract to construct the road, which they proved would cost $13,000, and in lieu of such performance a payment of $2,500 damages was adjudged. There was no error, we think, in decreeing a specific performance of the contract to construct a crossing, nor in requiring that it should be under and not over the track. See Jones v. Seligman, 81 N. Y. 191. There was error, we think, in charging the West Shore Railway Company with damages at the rate of $200 per year, which accrued prior to December 5, 1885, the date when that company obtained its title. The sum of $600 should therefore be deducted from the judgment, and, as amended, the judgment should be affirmed, without costs in this court to either party. All concur. (122 N. Y. 571) TOWN OF KIRKWOOD V. NEWBURY et al. (Court of Appeals of New York, Second Division. Dec. 9, 1890.) BUILDING BRIDGES-POWERS OF COUNTY Boards. Under Laws N. Y. 1885, c. 451, amending Laws 1875, c. 482, and prescribing the conditions upon which boards of supervisors may build bridges, the board of supervisors of a county having within it two towns separated by a stream, may, upon the application of one of such towns, authorize and compel the erection of a bridge over such stream to connect highways in the two towns, and impose a tax upon both towns to pay the expense thereof, though a majority of the tax-payers and the officers of one of such towns are opposed thereto. Affirming 45 Hun, 323. This is an appeal from a judgment of the general term of the fourth judicial department, affirming a judgment of the supreme court, entered on a decision of the court on a trial at the Broome county special term without a jury. The appeal is based upon the judgment roll alone, and brings up questions of law only. The facts found upon the trial are briefly these: The towns of Kirkwood and Conklin are adjoining towns in the county of Broome, and are separated by the Sus quehanna river. March 19, 1886, the board Alex. A. W. Cummings, for appellant. Cooley, Hand & Fish, for respondents. POTTER, J., (after stating the facts as above.) The main question in this case is whether the board of supervisors, under the existing law of this state, may, upon application of one of two towns in the same county separated by a stream, and against the wishes of a majority of the voters as expressed in town-meeting, and without the consent of its officers authorized to give consent, direct the building of a highway bridge across such stream, and levy a tax upon tax-payers of the latter town to defray, in part, the expenses of building such bridge. The court below held that the board of supervisors of a county so situated had such power. The question is one of sufficient general interest and importance to receive the sanction or dissent of this court, notwithstanding the bridge has been completed and paid for by levying and applying the taxes raised for that purpose in part from the town objecting to the project, while this action brought to test that question has been pending. We think the judgment of the court below in this case should be affirmed, and in view of the able and elaborate review and construction of the various statutes involved in this case when it was before the trial court, it will not be necessary or advisable to extend the discussion to any considerable length. I cannot think it necessary to cite authorities in support of the proposition that, originally, and as one of the attributes of sovereignty, the power to lay out highways, and to build bridges connecting them over streams for the use of the public, and to levy taxes for that purpose, inheres in the law-making power of the state. The law-making power may, in the exercise of its own discretion, or under the direction of a written constitution, delegate the exercise of such power to the board of supervisors, the subordinate local legislature of the several counties of the state. The constitution of this state, (section 18, art. 3,) not because the power to make all laws does not belong to the legislature, but doubtless to save the time of the general legislature, and to place certain powers of legislation nearer to the people for whose benefit they are to be exercised, restrains the general legislature from passing any private or local bill for the building of a bridge, and section 23 of the article provides: “The legislature shall, by general laws, confer upon boards of supervisors of the several counties of the state such further powers of local legislation and administration as the legislature may from time to time deem expedient." The legislature has accordingly conferred upon the boards of supervisors the power of laying out highways and the building of bridges, and prescribed the conditions upon which the boards of supervisors may exercise such power. The acts which have been passed by the legislature from time to time prescribe the changes which it has deemed it advisable to make upon this subject. The act (chapter 451 of the Laws of 1885) passed by the legislature of the state June 9th, amending chapter 482 of the Laws of 1875, and which amended the act of 1875, prescribes the conditions upon which boards of supervisors may exercise the power of building bridges, and the findings of the trial court in this case show that the conditions prescribed by the above-cited chapter 451 of the Laws of 1885 existed when the board of supervisors of Broome county assumed to authorize the building of the bridge in question, and provided the means therefor by the levying of the taxes upon the towns of Conklin and Kirkwood. We think, by the change of the laws effected by chapter 451 of the Laws of 1885, the board of supervisors of a county having within it two towns separated by a stream may, upon the proper application of one of such towns, enact a law authorizing and compelling the erection of a bridge over said stream, to connect highways in said towns, and impose a tax upon said towns to pay the expense thereof, though a majority of the tax-payers of one of such towns, and its officers, are opposed to it, however such opposition may be indicated. People v. Board, 51 N. Y. 401; People v. Flagg, 46 N. Y. 401; People v. McDonald, 69 N. Y. 362. In order to warrant the conclusion of a court that the legislature intended to change a statute where there is but a slight change in the phraseology of the later statute, it is not always necessary to find a reason for a change, but it seems to me that it would not be difficult to suggest a reason for a change of the former statute by the statute under consideration. If the former statute had not been changed, as we think it has been, a bare majority of the tax-payers of a town could bar the way, perhaps the most convenient and necessary for the rest of the inhabitants of that town, and of the entire public outside of that town, into or through such town at the most accessible point. Having reached the conclusion that the decision of the court below, upon the ground upon which it is placed, should be affirmed, I have not deemed it worth while to discuss the other points presented by counsel for the respondent in relation to the effect of the act of the legislature legalizing the acts and proceedings of the board of supervisors involved in this action, passed before the action was commenced; or that this action sought no other relief than to restrain the issuing of bonds by the respondents; and that the bonds have been issued and paid before the argument of this appeal; or whether this action is maintainable by the town; or whether the undisputed facts in this case constitute a cause of action upon the equity side of the court to restrain the issuing of bonds where there is want of a defense at law. I think the judgment should be affirmed, with costs. All concur, except FOLLETT, C. J., not sitting, and HAIGHT, J., absent. (122 N. Y. 622) BEAN V. AMERICAN LOAN & TRUST Co. et al. (Court of Appeals of New York, Second Division. Dec. 16, 1890.) CORPORATIONS-RIGHTS OF STOCKHOLDERS. The stockholders, other than plaintiff, of a corporation, agreed to sell their stock to a new corporation, and accept the latter's stocks and bonds in payment therefor. It was further agreed that such stocks and bonds should be deposited in escrow for a certain time with defendant A., (a corporation,) which agreed to issue its certificates therefor. On the representation of the old corporation that defendant W. owned certain shares of its stocks, which, in fact, included shares owned by plaintiff, A. issued its certificates in the name of W. for such shares, and delivered them to the old corporation, by which they were delivered to W. Held, that defendant A. was entitled to protection from liability by reason of issuing the certificates, and that, in an action for plaintiff's shares, the judgment should be that, on the delivery by W. to A. of the certificates, A. should deliver plaintiff's shares to him, although W. was a non-resident. Modifying 47 Hun, 638, mem. Appeal from supreme court, general term, first department. Action by Edwin Bean against the American Loan & Trust Company, impleaded with others. Plaintiff appeals from a judgment of the general term reversing a judgment in his favor on appeal by the American Loan & Trust Company. George C. Holt, for appellant. B. F. Blair, for respondent. HAIGHT, J. This action was brought to obtain from the defendant the American Loan & Trust Company 266 bonds and cer Amercian Loan & Trust Company did is. sue such certificates in his name, and de tificates for 6,650 shares of stock of the defendant the Sovereign Mining Company. Issues were disposed of by the judg-livered the same to the secretary of the ment, which are not brought up for review by this appeal, and we shall only call attention herein to such facts as bear upon the questions presented. an On or about the 1st day of March, 1883, the plaintiff became the owner of 1,777 shares of the stock of the defendant the Sovereign Gold Mining Company. Thereafter, and during the summer or fall of 1884, a new corporation was organized under the laws of this state, known as the "Sovereign Mining Company," and agreement was entered into by the stock holders of the former company other than the plaintiff herein to sell their stock to the new company, and to accept in payment therefor the bonds and stocks of that company. In such agreement the defendant, R. M. Whipple, represented himself to be the owner of 3,677 shares of the stock of the old company, and signed for that number, when in fact 1,777 shares thereof belonged to the plaintiff. The agreement further provided that the bonds and stock of the new company, which by the terms thereof were to be given to the stockholders of the old company, should be deposited in escrow with the defendant the American Loan & Trust Company for the period of one year from the 1st day of December, 1884, that company agreeing to take such bonds and stock, and to hold the same in escrow for the period aforesaid, and to issue to the stockholders of the Sovereign Gold Mining Company a certificate in each case to the effect that the person named in the certificate was the owner of the number of bonds and shares of stock therein mentioned, as the case might be, of the Sovereign Mining Company, and that the same was held in trust by it for the period aforesaid, and that at the expiration of that period the bonds or stock, as the case might be, should be delivered to the stockholder, or his order, at the option of the holder thereof, on the surrender of his certificate. The provisions of the agreement having been carried out, the defendant Whipple represented to the officers of the Sovereign Gold Mining Company that he was the owner of the 1,777 shares of the stock, which was in fact owned by the plaintiff, and that the same was with the plaintiff in Chicago, on loan; that if they would direct the defendant the American Loan & Trust Company to deliver to him the certificates for such stock, he would, immediately upon his return to Chicago, take up the stock held by the plaintiff, and return the certificate therefor to the secretary of the Sovereign Gold Mining Company. Thereupon the directors of the Sovereign Gold Mining Company authorized its secretary to represent to the defendant the American Loan & Trust Company that the defendant Whipple was the owner of the bonds and stock of the new company that under the agreement was to be issued for the 1,777 shares of the stock of the old company, and that he was entitled to receive the certificates therefor, and thereupon, upon receiving such representation, the defendaut the defendant the Sovereign Mining Company, who delivered the same to Whipple. Subsequently, the plaintiff, upon hearing of these facts, demanded of the defendant the American Loan & Trust Company the surrender to him of the bonds and stock in question, which was refused, and thereupon this action was brought. The trial court adjudged and determined that the plaintiff was entitled to recover of the defendant the American Loan & Trust Company the bonds and stock in question, and the defendant Whipple was adjudged and directed to deliver up to the American Loan & Trust Company its certificates which had been issued to him. It will be observed that the defendant the American Loan & Trust Company was a mere depositary of the stocks and bonds, having no pecuniary interest therein; that it had but executed the provisions of the contract of the stockholders, and had issued its certificates to the owners of the stock as represented and directed by the officers of the corporations. It is conceded to be an innocent party acting in good faith, and is therefore, under the circumstances, entitled to the fullest protection that the court can give; and this right appears to have been recognized by the trial court, for in its opinion it states: "The practical question is whether the trustee will be protected by the decree directing the delivery of the bonds and shares to the plaintiff. If it will be, then there is no necessity for imposing upon the plaintiff a conditional judgment which Whipple might frustrate by remaining out of the ju. risdiction, and refusing to turn over the certificates." The learned trial judge then proceeds to call attention to the fact that Whipple was a party to this action; that there had been no transfer of the certificates by him up to the end of the year in which the bonds were to be left in escrow; that by the judgment herein the plaintiff was adjudged to be the rightful owner; and reached the conclusion that the defendant the trust company would be amply protected. In this conclusion we are inclined to the opinion that the trial court was mistaken, and that the protection to the trust company is not as ample as it should be. The defendant Whipple resides in the city of Chicago, out of the jurisdiction of the court, and it is powerless, therefore, to compel a surrender of the certificates. The certificates issued by the trust company to Whipple pledged the trust company to deliver the bonds and stocks to him, or his order, on the surrender of the certificates. He has but to indorse the certificates, and pass them to another person, to enable such person to present the certificates and demand the delivery of the bonds and stocks called for. True, he was in possession of the certificates after this action was brought, but whether he still remains in possession, or has sold and transferred the same to an innocent purchaser for value, does not appear. We shall not stop to determine whether or not the certificates are negotiable, or whether they were transferred before or |