the so-called judgment or decree sought to be enforced was not one for the present payment of a definite sum of money, and therefore could not be enforced in this state; that it did not create a debt or obligation which was enforceable in an action of the character of the present, but only by the court which issued it; and that it was not such a judgment as was entitled to full faith and credit in this state and enforceable by action here. This demurrer was overruled, whereupon the defendant answered over. Upon the trial the same questions which were presented upon the demurrer were again presented. The trial court, however, accepted the rulings upon the demurrer as the law of the case and upon the facts found rendered judgment as stated.

Walter C. Noyes, for appellant. Benjamin Slade, for appellee.

PRENTICE, J. (after stating the facts). The nature, operation, and effect within the state of New York of orders like that in question directing payments in futuro to a wife by a husband living in judicial separation and passed in 1899, pursuant to the then provisions of statute, have been well settled by the repeated decisions of the courts of that jurisdiction. They have been declared to be tentative provisions which remain at all times within the control of the court issuing them and subject to being at any time modified or annulled. Tonjes v. Tonjes, 14 App. Div. 542, 43 N. Y. Supp. 941. The right of modification or annulment which is thus reserved to the court is one which extends to overdue and unsatisfied payments, as well as to those which may accrue in the future. Sibley v. Sibley, 66 App. Div. 552, 73 N. Y. Supp. 244; Goodsell v. Goodsell, 94 App. Div. 443, 88 N. Y. Supp. 161; Kiralfy v. Kiralfy, 36 Misc. Rep. 407, 73 N. Y. Supp. 708; Wetmore v. Wetmore, 34 Misc. Rep. 640, 70 N. Y. Supp. 604. "The amount awarded does not exist as a debt in favor of the wife against the husband in the sense of indebtedness as generally understood." Tonjes v. Tonjes, 14 App. Div. 542, 43 N. Y. Supp. 941. The order is not one "which simply directs the payment of a sum of money," and not such a one as can have enforcement by execution. Weber v. Weber, 93 App. Div. 149, 87 N. Y. Supp. 519. The special remedies provided in sections 1772 and 1773 for the enforcement of the orders are exclusive. Weber v. Weber, supra; Branth v. Branth, 13 N. Y. Supp. 360, 59 Hun, 623. No judgment in another court can be entered upon them. Branth v. Branth, supra. Such being the character of the order before us as declared by the courts of the jurisdiction from which it comes, the conclusion would seem inevitable, not only that the courts of this state are under no constitutional obligation to give effect to it in the manner here sought, but ought not, as an act of comity, to do so, since it would thus

be given a greater effect than would be given to it in the jurisdiction of its origin. McElmoyle v. Cohen, 13 Pet. (U. S.) 312, 326, 10 L. Ed. 177; Mills v. Duryee, 7 Cranch (U. S.) 481, 3 L. Ed. 411; Bank v. Wheeler, 28 Conn. 433, 439, 73 Am. Dec. 683.

But we are not left without authoritative declarations as to the extraterritorial value of this New York decree. A Mrs. Lynde was by the Court of Chancery of New Jersey granted a separation from her husband, and it was adjudged that she was entitled to recover $7,840 as alimony then due and payable, and that her husband pay to her permanent alimony at the rate of $80 a week from the date of the decree. The statutes of New Jersey contained no express reservation of power to the court to modify or annul allowances of alimony so made, but the courts had said that they exhibited the intention that the subject should be continuously dealt with according to the varying conditions and circumstances. Gen. St. N. J. p. 1269 et seq.; Lynde v. Lynde, 54 N. J. Eq. 473, 476, 35 Atl. 641. As to the methods of enforcing such decrees the New Jersey statutes contained substantially the same provisions for security, sequestration and receivership proceedings as were embodied in the New York Code when the order in the present case was made as recited in the statement of facts. It thus appears that the provision for the payment of future alimony to Mrs. Lynde in New Jersey was affected by no condition which did not equally affect that to Mrs. Sistare in New York. There was the same reserved power of modification, only the more clearly and emphatically expressed, and the same provision of special remedies which the New York courts had gone so far as to declare to be exclusive. Mr. Lynde having failed to make any of the payments required of him, Mrs. Lynde brought suit against him in the courts of New York for the recovery of both the $7,840 and the amount of the accrued weekly payments. The appellate courts of that state, whose decisions have special interest as embodying the views prevailing in the jurisdiction from which the order before us comes, and the Supreme Court of the United States, to which the case was finally taken upon the federal question involved, concurred in holding that the award of $7,840 created a debt of record to which full faith and credit should be given in the courts of a sister state, and that the order for future payments did not create such a debt, and did not constitute such a judgment or judicial proceeding as was within the purview of section 1, art. 4, of the Constitution of the United States. Lynde v. Lynde, 41 App. Div. 280, 58 N. Y. Supp. 567; Id., 162 N. Y. 405, 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332; Id., 181 U. S. 187, 21 Sup. Ct. 555, 45 L. Ed. 810. The conclusion thus reached is succinctly stated, and the reasons therefor sufficiently indicated, in the language of the opinion of the federal court

as follows: "The decree for the payment of $7,840 was for a fixed sum already due and the judgment of the court below was properly restricted to that. The provision for the payment of alimony in the future was subject to the discretion of the Court of Chancery of New Jersey which it might at any time alter, and was not a final judgment for a fixed sum."

In respect to any claim which might be made that, although the courts of this state are under no obligation to enforce the present New York decree, they should as an act of comity do so, the opinions in the cases referred to suggest a sufficient answer to it when they note the inconclusive character of a decree which remains subject to change in the discretion of the court rendering it, and further invoke the elemental principle that collateral remedies provided in one state for the enforcement of its decrees cannot be carried over into another jurisdiction and there utilized. "The provision for a bond, sequestration, receiver, and injunction, being in the nature of execution and not of judgment, could have no extraterritorial operation; but the action of the courts of New York in these respects depended on local statutes and practice of the state." Lynde v. Lynde, 181 U. S. 187, 21 Sup. Ct. 555, 45 L. Ed. 810. Our courts are now asked to render a money judgment for the accrued payments as upon a debt of record and to enforce that judgment by execution. To do so involves not only disregarding the discretionary control reserved to the New York court in respect to both past and future payments, but also giving effect by judgment and execution to a decree which could not, as we have seen, be made the foundation of such a judgment in New York or enforced by execution there. But it is said that the case of Barber v. Barber, 21 How. (U. S.) 582, 16 L. Ed. 226, lays down a doctrine contrary to that expressed in Lynde v. Lynde, that this earlier case was not overruled in the later, and that, therefore, it is to be reckoned with before any statement of the federal doctrine can be confidently made. A careful examination of the two cases referred to will disclose that neither holds all that is frequently attributed to it, and that, when rightly interpreted, there is no lack of harmony between them. The Barber Case grew out of an allowance of future alimony made to Mrs. Barber by the courts of New York in 1844. Subsequently the husband in judicial separation moved to Wisconsin, where the wife, having found him, brought an action in equity in the United States District Court for the District of Wisconsin to recover the amount of the payments in arrears, and judgment was rendered in favor of her contention. The controversy waged in the Supreme Court of the United States concerned the question of jurisdiction, and the somewhat extended opinion rendered deals with the various aspects of that question, which the majority opinion stated to

be "whether a wife divorced a mensa et thoro may not have a domiciliation in a state of this Union different from that of her husband in another state to enable her to sue him there by her next friend in equity in a court of the United States to carry into judgment a decree which has been made against him for alimony by a court having jurisdiction of the parties and the subjectmatter of divorce." Page 588 of 21 How. (16 L. Ed. 226). As incidental to the discussion of one of the subordinate phases of this general question, the character and effect of the New York decree and its extraterritorial value were touched upon and the statement made that such orders constituted judgments of record and created debts of record enforceable against the husband by execution or attachment against his person issuing from the court which gave it, and that actions might be brought in the courts of other jurisdictions to carry them into judgment and effect. The judgment of the lower court was affirmed.

It is to be noticed that this statement of the court embodies two propositions, to wit, one as to the local character and effect of the New York decree in question, and the other as to the consequent extraterritorial value of it, and that the second of the propositions is plainly predicated upon the first. Therein lies the gist of the decision in respect to the subject now under discussion; for, while the language employed is general in its terms, it manifestly was used of such orders and decrees absolute in their adjudication, conclusive in their character, and enforceable by ordinary legal processes, as was that under consideration, and as manifestly was not used of every conceivable order and decree relating to future alimony or maintenance. No question was made as to the conclusive character in New York of the decree in question as establishing there a debt of record. No discussion upon that point appears in the opinion, and no intimation was made as to what the court would have held had the decree been one of a different character. The absence of any such question or discussion and the unqualified assertion of the first proposition referred to—that is, that the question presented for decision arose upon a conclusive judgment of record enforceable by execution issuing from the court of its origin-is explained when the statutes and decisions of New York are examined, and it is found that the assertion was well founded as respects a decree passed in 1844, and for that matter at any time during the next half century. The courts of New York have no apthority in matters of divorce, separation, arimony, etc., save that which is conferred by statute. Erkenbrach v. Erkenbrach, 96 N. Y. 456; Walker v. Walker, 155 N. Y. 77, 49 N. E. 663; Livingston v. Livingston, 173 N. Y 377, 66 N. E. 123, 61 L. R. A. 800, 93 Am St. Rep. 600. From 1730 to 1894 no authority was conferred upon the New York courts to

modify a decree in separation proceedings directing the payment of alimony or an allowance for future maintenance. Once fixed, it remained fixed, except that the decree of separation could be revoked upon the joint application of the parties and the production of satisfactory proof of reconciliation. Rev. St.

N. Y. (1st Ed.) pt. 2, c. 8, tit. 1, § 54; Goodsell v. Goodsell, 82 App. Div. 65, 68, 81 N. Y. Supp. 806; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Walker v. Walker, 155 N. Y. 77, 80, 49 N. E. 663. Under such a decree the amount allowed became a vested property right. Livingston v. Livingston, 173 N. Y. 377, 66 N. E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600. In 1894 and 1895 the legislation which was in force when the present decree was passed and concerning the effect of which the adjudications hereinbefore referred to have been made supplanted that which had previously been upon the statute books. in 1900 an act was passed expressly making this new legislation with its reservations of the power of modification or annulment at any time applicable to decrees granted prior to 1894. This act was declared unconstitutional and ineffective as impairing vested rights. Livingston v. Livingston, 173 N. Y. 377, 66 N. E. 123, 61 L. R. A. 800, 93 Am. St. Rep. 600. Allowances of future alimony made prior to 1894 created a judicial debt of record and furnished a proper basis for recovery in another action. Wetmore v. Wetmore, 149 N. Y. 520, 44 N. E. 169, 33 L. R. A. 708, 52 Am. St. Rep. 752; Moore v. Moore, 40 Misc. Rep. 162, 81 N. Y. Supp. 729; France v. France, 79 App. Div. 291, 295, 79 N. Y. Supp. 579. The opinion in the Barber Case, after observing that the New York court which granted the decree had the power to enforce it by the issuance of execution, proceeded to express its conclusion as to the extraterritorial value of the decree by saying that, when local enforcement could not be had by reason of the husband's departure from the jurisdiction, action could be brought on behalf of the wife in other jurisdictions to carry the decree into judgment there with the same effect that it had in the state in which the decree was given. Page 595 of 21 How. (16 L. Ed. 226). The last part of the statement has been commented upon as affirming the extraterritorial operation of special collateral remedies, and as therefore antagonistic to those portions of the opinion in the Lynde Case which touch upon that subject. It is perfectly apparent, however, that the court was speaking of decrees which created fixed debts enforceable by the ordinary judicial processes, and that its language was used only to emphasize the fullness of the faith and credit which would be given to such a decree. It thus appears that while the Barber Case is authority for the proposition that a decree directing periodical payments by a husband to a wife living in separation by way of future alimony or maintenance, if it is conclusive in its character and

creates a fixed obligation to pay a certain sum of money which will within the home jurisdiction be regarded as a debt of record enforceable by execution issuing from the court which granted it, is one to which extraterritorial effect will be given, it is not authority for the doctrine frequently attributed to it, that all orders or decrees for future alimony, regardless of their character, will be given such effect. The Lynde Case, on the other hand, is authority for the proposition that a decree for the payment of future alimony or maintenance which is inconclusive in its character by reason of the reservation to the court which made it of the unrestricted right to change or annul it at discretion, and which is not enforceable in the state of its origin otherwise than by special processes exclusive of execution and judgment thereon and execution, is not one creating such a debt of record as will entitle it to or justify extraterritorial enforcement. It is not, as has been sometimes assumed, authority for the larger proposition that no decree for future alimony or maintenance, whatever its character, can claim or have enforcement in another state. The two cases may therefore well stand together as declarative, as far as they go, of authoritative federal principles. It is quite conceivable that there lies between them no little debatable ground. It is quite possible that the limits to which the doctrine of the Lynde Case ought to be carried are not clearly determined. But, whatever questions of that kind might be suggested, we are not here concerned with them, since it is apparent that the facts of the present case fill out the full measure of the conditions presented in the Lynde Case and bring it within the application of the doctrine there laid down. Our conclusion must therefore be controlled by that decision, adversely to the plaintiff's right to recover.

There is error, the judgment is reversed, and the cause remanded for the rendition of judgment in favor of the defendant. The other Judges concurred.

OF

1. EMINENT DOMAIN CONDEMNATION LAND FOR STREET RAILROAD-CONDITIONS PRECEDENT.

Gen. St. 1902, § 3681, providing that every railroad company before applying to the commissioners for their approval of the location of its road shall deposit with the State Treasurer a specified sum for each mile of its proposed road, when considered in connection with the facts that it was enacted in 1882 when street railroads were operated by horses, and that it was placed in the Revisal of 1902, in the chapter relating to steam railroads, and not referred to in the subsequent chapter relating to street railroads, and when considered in

connection with sections 3680, 3687, and 3844, authorizing railroad companies to acquire land necessary for the construction of their roads, and authorizing every street railway company to purchase land for its road, and regulating the conditions and methods of exercising the power of eminent domain given to steam railroads, does not apply to a street railway company authorized by its charter to take land in the manner provided for taking land for steam railroads, and it need not deposit with the Treasurer of the state any sum for each mile of its proposed road before it can maintain proceedings to condemn land for its road.

2. CORPORATIONS-MEETINGS OF DIRECTORS—

VALIDITY.

Four of the seven directors of a corporation held a meeting pursuant to a call made by the secretary of the board by telephonic communication with them. The other three could not be reached before the meeting, and had no notice of it, but after its close they with the other four signed a waiver of notice. Held, that the action taken at the meeting was valid.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1298, 1302.]

FOR

3. EMINENT DOMAIN CONDEMNATION STREET RAILROAD-ATTEMPTED AGREEMENT WITH LANDOWNER.

In proceedings by a street railroad to condemn land for its road, it appeared that the approval of the location of the road by the commissioners was first asked and given in January, 1907, and that the only attempts made by the company to agree with the owners of the land sought to be taken took place in 1906. Held, that it was immaterial that negotiations with the owners for the purchase of the land were not renewed after the approval of the location of the road.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 462.] 4. EVIDENCE

ANCE OF FACT.

PRESUMPTIONS

CONTINU

Proof that several years before the trial a person was the treasurer of a domestic corporation which failed to thereafter file any annual statement giving the names of its officers as required by law authorized the inference that he was its treasurer up to the time of the trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 87.]

5. EMINENT DOMAIN-PROCEEDINGS TO CONDEMN LAND FOR A STREET RAILROAD-NEGOTIATIONS FOR PURCHASE-NECESSITY.

Under Gen. St. 1902, § 3687, providing that, when a railroad company cannot obtain real estate for railroad purposes by agreement with the parties interested, it may apply to any judge for the appointment of appraisers to estimate damages that may arise from the taking of the land, etc., an application by a street railroad company to condemn land for its right of way cannot be sustained without proof that the company could not obtain the land by agreement with the owner, and it was not enough to prove that it had negotiated, though in the best of faith, with some one not in fact owning the land or representing the owner. [Ed. Note.-For cases in point, see Cent. Dig. vol. 18. Eminent Domain, § 462.] 6. SAME--EVIDENCE-ADMISSIBILITY.

In proceedings by a street railroad to condemn land for its right of way, evidence that its agent entered into negotiations with a third person who claimed to represent the corporation owning the land sought to be taken, and had in his possession deeds of the land executed to it and named a price for the land which the company declined to pay, and that the agent received several letters in regard to the matter from the third person, one of which was sub

scribed by the name of the corporation, fch lowed by the name of the third person, was admissible to show negotiations with one representing the owner, essential to the maintenauce of the proceedings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 533.] 7. EVIDENCE

BEST AND SECONDARY . CONDEMNATION PROCEEDINGS.

In proceedings by a street railroad to condemn land for its right of way, the court dic not err in permitting its agent, who testifie that he took a draft contract for the sale of the land sought to be taken, and owned by foreign realty company, to an individual showr by a statement previously filed by the corporation to be its treasurer, to state that the con tract, not produced nor its absence accounted for, was drawn in terms as a contract by the foreign company, though the evidence was not the best evidence: the rule requiring the exclusion of secondary evidence not being inflexibly applied in such proceedings.

8. EMINENT DOMAIN CONDEMNATION PROCEEDINGS- - NEGOTIATIONS WITH OWNER — EVIDENCE.

Where, in proceedings bv a street railroad to condemn land for a right of way, the evidence showed that its agent had entered into negotiations with a third person who claimed to represent a company owning the land sought to be taken, with a view of purchasing the same, evidence of the tax collector of the town where the land was located that the year before he received from the third person a list of the property owned by the corporation which was liable to taxation was admissible to show that the third person acted for the company.

Appeal from Superior Court, Tolland County; Joel H. Reed, Judge.

Applications by the Stafford Springs Street Railway Company against the Middle River Manufacturing Company and against the Eastern Connecticut Realty Company for the appointment of appraisers in proceedings to condemn land for a right of way. From an order appointing appraisers, entered after a hearing held in 1907, after overruling demurrers to each application and the sustaining of a demurrer to a paragraph of each answer, defendants appeal. Affirmed.

Donald G. Perkins and Robert H. Fisk, for appellant. Benjamin I. Spock, for appellee.

BALDWIN, C. J. Neither application contained any allegation that the company preferring it had made a deposit with the Treasurer of the state of a sum equal to $11 for each mile of its proposed road in this state. Demurrers on this ground were overruled, and averments in the answers that no such deposit had been made were held insufficient. The charter of the company authorizes it to take land for its charter "in the same manner as provided for taking land for steam railroad purposes." 13 Sp. Laws, p. 919. § 11.

In chapter 213 of the General Statutes of 1902, the title of which is, "Location and Construction of Steam Railroads," it is provided (section 3680) that every railroad company may take, with the approval of the railroad commissioners, as much real estate as may be necessary for the proper construction and security of its road, and section 3681

reads as follows: "Every such company, before applying to the commissioners for their approval of the location of its road, shall deposit with the State Treasurer a sum equal to eleven dollars for each mile of its proposed road in this state. And the comptroller shall include such company among the several railroad companies in his next annual apportionment of the office expenses and salaries of said commissioners, estimating the length of its main track or tracks as equal to the proposed length of its road; and said treasurer shall deduct from said deposit the amount so apportioned to such company, and return the remainder to the treasurer of such company." Gen. St. 1902, § 3882, directs that in the apportionment of the office expenses and salaries of the railroad commissioners among the several companies all companies "operating railroads and street railways in this state" shall be included. Gen. St. 1902, § 1, provides that "the phrase 'railroad company' shall be construed to mean and include all corporations, trustees, receivers, or other persons, that lay out, construct, maintain, or operate a railroad operated by steam power, unless such meaning would be repugnant to the context or to the manifest intention of the general assembly." The applicant's charter (section 2) excludes the use of steam power upon its railway. Gen. St. 1902, § 2432, declares that "the existing statutes with regard to the taxation of railroads shall apply, extend to, and include all street railways of every description." A street railway company is a kind of railroad company, but it does not follow that it is affected by every statute concerning railroad companies. That is a question to be determined in each case by a study of the whole body of legislation bearing upon the question. Mass. Loan & Trust Co. v. Hamilton, 88 Fed. 588, 32 C. C. A. 46, 59 U. S. App. 403. Such a study of the statutes to which reference has been made satisfies us that Gen. St. 1902, § 3681, does not apply to street railway companies. Its first words, "every such company," manifestly refer to the initial words of section 3680, which are that "every railroad company may lay out its road not exceeding six rods wide." For street railways the taking of such a width of the street is never required. Gen. St. 1902, § 3681, was first enacted in 1882. At that time street railways were operated by the use of horses, and seldom, if ever, laid except on the highway; nor, it is believed, had any street railway charters been granted which conferred the power of taking land without the consent of the owner. The placing of this statute, 20 years later, in arranging the Revision of 1902, in a chapter entitled as relating only to steam railroads, and the omission of any reference to it in the subsequent chapter (217) of the same title entitled "Street Railway Companies," indicate that it was not intended to

enlarge the scope of its application. Gen. St. 1902, § 3844, authorizing every street railway company to purchase land for its roadbed, would also have been unnecessary, had they been included under the terms of section 3680. That section gives steam railroad companies power to take land by condemnation. It, also, in connection with section 3687, regulates the conditions and methods of exercising the power, and it is to such regulations of the manner of proceeding that section 11 of the plaintiff's charter refers.

The records of the directors of the applicant showed that a vote to take the lands in question was passed by them on February 9, 1907, at 11 a. m. In fact, a meeting of the board for that time had been called by the secretary on the preceding day by telephonic communication with four directors. They were present at this meeting and constituted a quorum. The total number of directors was seven. The other three could not be reached before the meeting was held, and had no notice of it. After its close all seven signed a waiver of notice, bearing the date of February 9th. The management of a corporation cannot be paralyzed by every absence of a director from its place of business or from the state at a time when a meeting of the board seems necessary. Notice to a majority, in such a case, if they, being all that can be reached, proceed to hold the meeting, will, in the absence of any by-law to the contrary, support their action, at least if, as in the present instance, the others subsequently sign and file a waiver of notice, and the corporation acquiesces in what was done by making it the basis of a claim of legal right. Chase v. Tuttle, 55 Conn. 455, 12 Atl. 874, 3 Am. St. Rep. 64. The approval of the railway location by the railroad commissioners was first asked and given in January, 1907. The only attempts made by the applicant to agree with the defendants as to terms of purchase took place in 1906. It is immaterial that they were not renewed after the approval of the location and the vote of the directors. Their failure was the only occasion for that vote which, had they been successful, would have been unnecessary. Negotiation with landowners naturally precedes a resort to condemnation proceedings.

The Middle River Manufacturing Company is a Connecticut corporation. The lands in question are in Stafford. The applicant produced evidence that one Sheehan was its treasurer in 1903, and that since that year the company had failed to file with the Secretary of the state any annual statement giving the names of its officers as required by law. This authorized the inference that he was its treasurer up to the time of trial. Gray v. Finch, 23 Conn. 495, 513. The applicant offered evidence that its land agent made reasonable inquiry for some one with whom to negotiate for a purchase of the land