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and qualified according to law as such commissioners, complain of the defendant, a body corporate, duly incorporated by the laws of the State of New York, and allege the following facts constituting their cause of action:

That the defendant, without the consent of the plaintiffs, by its engineers, contractors, agents and employees, has entered upon and taken possession of a portion of the public highway in the said town of — , commonly called the turnpike, at a point in said highway: [Describe the part of the road taken. ]

That the defendant, by its contractors, agents and employees, entered upon, and on or about the — day of

commenced digging and excavating in said highway, at the southern point of its intersection with said railroad track, and across the whole width of said highway, for the purpose of grading said railroad track, and carrying the same along and upon said highway, as aforesaid, for the distance of feet; and that the said

not maintain an action of trespass for injury to the highway. And since the Code it has been held in two anonymous cases, not reported, and also intimated in Sipperly v. The Troy and Boston Railroad Company ( 9 How., 83), that they could not maintain an action against a railroad company to compel such company to restore the highway to its former state of usefulness, according to the obligation imposed by statute. Since then, however, commissioners of highways have been expressly clothed with such authority by statute ( Laws of 1855, chap. 255), which empowers them “ to bring any action against any railroad corporation, that may be necessary or proper, to sustain the rights of the public in and to any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation in relation to any highway in the town of which they are commissioners, and to maintain an action for damages or expenses which any town may sustain or may have sustained, or may be put to or may have been put to, in consequence of any act or omission of any such corporation, in violation of any law in relation to such highway.”

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company has, and on the day of —had, already excavated said highway, the whole width thereof, to the depth of

feet, in such a manner as to obstruct the passage of wagons and teams, and to impede the public travel on said highway, and as not only temporarily to injure said highway, but permanently to impair its usefulness; and that said company has, and at said last mentioned date had, not provided any other route or passage, either permanent or temporary, whereby the public travel could be accommodated, or wagons and teams enabled to use said highway. That on said last mentioned date, the plaintiff requested

who was then and is the engineer or agent of defendant, and had charge of said work, to construct and make a temporary road or passage whereby the public travel might be accommodated, and wagons and teams enabled to pass, which said refused to do ; whereupon such plaintiffs, as such commissioners, &c., caused such temporary road or passage to be constructed, at an

- and upwards. That said defendant has completed its railroad, and left said highway impassable, except by means of the road or passage constructed by these plaintiffs, as aforesaid, and has permanently impaired the usefulness of said highway.

Wherefore the plaintiffs, as such commissioners, &c., demand judgment against the defendant for the sum of $besides interest from, &c., and costs.

G. V. S.,

Plaintiffs' Attorney. .

expense of $

· This complaint is altered from that used in one of the anonymous cases referred to in note on page, 396, ante, and to which a demurrer was allowed by Justice Wm. B. Wright at the Columbia Special Term, before the passage of the act of 1855. That action was brought for an injunction (during the progress of the road) and to compel the restoration of the highway. The complaint contained a variety of (No. 21.)

By a trustee, under an assignment for the benefit of creditors,

on a policy of insurance, effected by trustee, on machinery in a mill belonging to the trust estate.

SUPREME COURT-RENSSELAER COUNTY.

Daniel H. Vial, assignoe, &c., of George B.

Slocum,

agt. The Genesee Mutual Insurance Company.

The said plaintiff, Daniel H. Vial, as assignee in trust, for the benefit of creditors, of the debts, estate and effects

other facts and allegations going to show that, if the work was allowed to proceed, the highway would be permanently impaired, and that the company, from the nature of things, could not " restore it to its former state, so as not to have impaired its usefulness ;" and it closed with the following prayer for relief:

“Wherefore the plaintiffs, commissioners of highways, as aforesaid, ask the judgment of this court, that the defendant, the Hudson River Railroad Company, its officers, engineers, contractors, agents and employees, perpetually be restrained and enjoined from the excavation of said highway, and from digging, trenching or carrying away any part of the soil thereof, further than may be necessary to cross the same, and to grade the track of said railroad as nearly as may be with the level of said highway, and that said company may be directed and ordered forthwith to fill up the excavations already made by it on said highway, or which may be hereafter made, and to restore the said highway to its former state in a sufficient manner, so as not to have impaired its usefulness, or for such other or further judgment and relief in the premises as the nature of the case may require, and as may be necessary to protect the rights of the plaintiffs and the public interest; and that in the mean time an order may be allowed, restraining and enjoining the defendant, its officers, engineers, contractors, agents and employees, from excavating, digging or trenching in said highway, or carrying away any portion of the soil thereof, until the hearing of this cause, or until the further order of this court." of George B. Slocum, complains of the said defendants, The Genesee Mutual Insurance Company, and says: That the said defendants are a corporation, created, under the name and style aforesaid, by an act passed by the Legislature of this state, May 3d, 1836, entitled "An act to incorporate The Genesee Mutual Insurance Company."

And this plaintiff further says, that on the 13th day of June, 1850, George B. Slocum, then being the owner and possessor of the insured property hereinafter mentioned, sold and conveyed the same, together with other property, to this plaintiff, by deed in due form of law, upon express trust therein declared for the benefit of his creditors; and thereupon this plaintiff assumed the duties of such trust, and from thence hitherto has been, and still is, assignee in trust thereunder.

And this plaintiff further says, that on the 9th day of October, 1850, at Lansingburgh, in the county of Rensselaer, aforesaid, the said defendants, on the application of this plaintiff, as such assignee, as aforesaid, made a certain policy of insurance in writing, whereby they, the said defendants, in consideration that this plaintiff, as such assignee, had become a member of said company, and bound and obliged himself, his executors and administrators, to pay all such sum or sums of money as might be assessed by the directors thereof, pursuant to the act incorporating said company, annexed to said policy, and had secured to said company the sum of $120, being the amount of deposit or premium for insuring the sum of $3,000 unto him, his heirs, executors, administrators and assigns, on the following property, to wit, $3,000 on movable machinery contained in mill — reference being had to the application of this plaintiff, bearing date with said policy, and filed with the secretary of the said company, for a more particular description, and as forming a part of said policy during the term of one year, commencing at noon on the 28th day of September, 1850, and ending at noon on the 28th day of September, 1851, did, in and by said policy, certify that this plaintiff, as such assignee, as aforesaid, had become, and in and by said policy was, insured in and by said company, upon the property described as aforesáid, in the sum of $3,000; and the said defendants, in and by said policy, did thereupon, according to the provisions of said act, agree to settle and pay unto this plaintiff, his heirs, executors, administrators or assigns, all loss or damage, not exceeding in the whole the sum last abovenamed, which should or might happen to the aforesaid property, by means of fire, during the time the said policy should remain in force, the said losses and damage to be estimated according to the true and actual value of the property at the time the same shall happen, and to be paid within three months after notice should be duly given by this plaintiff, according to the provisions of said act. [The complaint here set forth at length the various other provisions and conditions mentioned in the policy.]

And this plaintiff further says, that on the said 9th day of October, 1850, at Lansingburgh, aforesaid, the said policy was duly executed by the president and secretary of said company, and was delivered to this plaintiff, and thereupon and thereby the said defendants then and there promised this plaintiff that they, the said defendants, would become and be to this plaintiff, to his executors, administrators and assigns, insurers to him of said sum of $3,000 upon the property in said policy of insurance mentioned, and would perform and fulfill all things in said policy, on their part and behalf to be performed and fulfilled, and did become and then and there was insured, as aforesaid.

And this plaintiff further says, that at the time of the making of such policy of insurance, and from thence

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