the compensation to be made to said plaintiff, and to the persons so interested for such taking, which petition and maps are filed in the clerk's office of said court; and the defendants, with such petition, did present to said court satisfactory evidence that notice of such intended application, and of the time and place thereof had been given, at least ten days previously, to the plaintiff and such persons interested personally; and the said court did hear proofs and allegations of all parties touching the regularity of such proceedings; and, on the 5th day of August aforesaid, did, by an entry in its minutes, appoint five competent and disinterested persons, to wit: James Powers, Henry De Lamater, Lewis W. Young, John G. Wilkin and William Sidney Smith, to be such commissioners, and did specify in such entry a time and place for the first meeting of such commissioners; and the said commissioners took the oath, met, heard the proofs and allegations of the parties, viewed the premises, and thereafter, without fear, favor or partiality, did ascertain that the compensation proper to be made to the said owners and parties interested in the said lands so to be taken, for the taking thereof as aforesaid, without any deduction or allowance on account of any real or supposed benefit or advantage which such owners or parties interested might derive from the construction of the said road, was as follows: to said owner, Glen Van Rensselaer, and James De Forest and Obadiah E. Lansing, executors, &c., of James Woods, deceased, mortgagees, the sum of $1,610.75; and to the said Glen Van Rensselaer, for costs, expenses and counsel fees, $27; and to the said executors, &c., for costs, expenses and counsel fees, $14.75, amounting together to $1,652.50; and did, on the 14th day of September, in the year last aforesaid, make and subscribe, and afterwards file with the clerk of the said court, a certificate of their said ascer

tainment and assessment; and afterwards, on the 23d day of September, in the year last aforesaid, the defendants deposited the last mentioned sum of money to the credit of the said Glen Van Rensselaer, James De Forest and Obadiah E. Lansing, executors, &c., in a bank for that purpose approved by the said court, that is to say, the Farmers and Manufacturers' Bank in the village of Poughkeepsie, he, the said plaintiff, having previously, and after the subscribing of such certificate, on tender thereof to him duly made by the defendants, refused to accept the same last mentioned sum of money, or any part thereof; and the said defendants did afterwards, on the 24th day of September, in the year last aforesaid, present to the said court such certificate and due proof that the last mentioned sum of money had been so deposited as aforesaid; and the same court thereupon, on the last named day, made and caused to be entered in its minutes a rule, describing with convenient accuracy and certainty the said piece of land so required to be taken, such ascertainment of compensation, with the mode of making it, and such deposit of the same compensation as aforesaid; which rule was recorded and indexed in the office of the clerk of the county of Rensselaer, in like manner as if it were a deed of conveyance from the said plaintiff to the said defendants. And the said defendants say that all and singular the proceedings in this article mentioned were had and taken, pursuant to and in conformity with the directions of the act above referred to, passed February 10th, 1848.

Third. As the defendants are informed and believe, the piece of land so required to be taken is part and parcel of the premises described in the said complaint, and these defendants admit that since the proceedings above, in the said second article of this answer mentioned, they have

accordingly taken such piece of land for the purpose of constructing and maintaining the said railroad, as stated in the said petition; but they deny that they have entered upon, broke up, graded or rendered unfit to the plaintiff for farming or other purposes, or hindered the plaintiff from any benefit, use or enjoyment of, or greatly damaged or injured any part of the said premises described in said complaint, except as in this article above expressly admitted.

Fourth. These defendants have not knowledge or information of the allegations, in that behalf, in the said complaint contained, sufficient to form a belief, and they therefore deny that the said plaintiff was or is owner in fee or otherwise of the real property in the said complaint mentioned, and they deny the damage alleged.

THOMAS M. NORTH,

Defendants' Attorney.

(No. 35.)

Answer by railroad company, justifying the entering upon a public street, under the authority of the common council of a city, and their act of incorporation.1

First. The defendants, for answer to the first cause of action set forth in the complaint of the plaintiff in this action, deny each and every allegation therein contained,

1 This answer is to a complaint similar to No. 86, ante, p. 526. 2 Each cause of action stated in the complaint must be separately answered. The defences must be not only separately stated, but they must "refer to the causes of action which they are intended to answer, in such a manner that they may be intelligibly distinguished." (See Pleadings, 538.)

constituting said first alleged cause of action, and every part thereof, except the allegations therein contained in relation to the organization of the defendants as a railroad corporation.

Second. And for answer to the second cause of action set forth in the complaint of the plaintiff herein, the defendants aver, that they are a railroad corporation, duly organized under and by virtue of an act of the Legislature of the State of New-York, entitled "An act to authorize the formation of railroad corporations and to regulate the same," passed April 2d, 1850, and the several acts amendatory of the same, and also in pursuance of the provisions of an act of the Legislature of the State of New-York, entitled "An act to authorize the city of Troy, and certain railroad corporations, to subscribe for and become the owners of stock, for the construction of a railroad through the whole or some portion of the city of Troy," passed June 20th, 1851; and defendants further aver, that on the 3d day of December, 1852, the said defendants entered into a contract with the mayor, recorder, aldermen and commonalty of the city of Troy, dated on the said 3d day of December, 1852, and duly executed under and in pursuance of a resolution of the common council of said city of Troy, duly passed, by which said contract, among other things, the said the mayor, recorder, aldermen and commonalty of the said city of Troy did authorize the said defendants to construct, maintain and operate a railroad, in the city of Troy, with two or more tracks, and in, upon, over or across any streets, alleys or highways, in the said city of Troy, as such railroad had then been located by the commissioners, appointed under and in pursuance of the provisions of the act last abovementioned, and according to the map and survey thereof, and upon the grades indicated on the profile of the said railroad, which had

then been signed by a majority of the directors of the Troy Union Railroad Company, said defendants, and filed in the office of the clerk of the county of Rensselaer; and defendants aver, that at the time of the execution of said contract as aforesaid, the said the mayor, recorder, aldermen and commonalty of the city of Troy were the owners of, and entitled to, the regulation and control of the streets, alleys and highways in said city of Troy, and were duly authorized and empowered to grant to said defendants the rights and privileges of constructing, maintaining and operating their said railroad in, upon, over or across said streets, alleys and highways, in manner and form as mentioned and contained in said contract so made and entered into, as hereinbefore set forth.

And defendants aver, that whatever has been done by them, their servants, contractors, laborers, or persons in their employ, in or about the entering upon that portion of Sixth-street, in said city, mentioned in the complaint, or in or about any digging, trenching or altering the grade of the same, or the erection of any embankment thereon, or the taking possession thereof, or the occupying of the same, for the purposes of a railroad, or the placing thereon any rails or other obstructions above the surface of the ground, or in or about any tunneling or excavation therein, in any part thereof, or the commission of any other act or thing whatsoever, complained of in the plaintiff's said complaint, has been necessarily, and without any want of care or any negligence on their part, so done by the defendants in the course of the construction, maintenance and operation of their said railroad upon the location and grades, and according to the map and profile thereof hereinbefore mentioned, and under and in pursuance of the provisions of the said acts of the Legislature of the State of New-York and of the contract hereinbefore set forth,