THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. of the premium' I cannot state as to just what term I did use. My understanding is that they mean the same thing." The agent also testified that he had never made a report to the home office of the first premium having been paid. The evidence here, as upon the former trial, simply discloses that there was a private arrangement between the insured and the agent, as individuals, that Hoag would advance or take care of the first premium for the insured, and that this he did not do, and, following the authority of the former decision, it cannot be held from this that the company had waived the condition of the policy requiring the prepayment of the first premium before the policy should take effect; nor that the defendant had given a credit to the insured for such premium. It is true that upon this trial the agent testified, in substance, that his promise to the insured was not in his own behalf, but was made on behalf of the company, and that he was acting for the company at that time. Yet his declaration in this respect is not sufficient alone to bind the company, and we must look to his contract with the company for his authority and also consider what the insured had a right to assume, from the circumstances, his authority was. The contract between the company and the agent, under which the latter was acting, contained the following provision limiting his authority: "It is further mutually understood and agreed by the parties hereto that the said agent is not authorized to make, alter or discharge contracts for this company, nor waive forfeitures * * * * * * or bind this company in any way; and is not under any circumstances authorized to write the receipts for premiums and that his powers shall extend no further than is herein expressly stated." There is no other provision in the contract giving him any power to bind the company in these respects. That the insured knew, or ought to have known, of these limitations upon the agent's power is clearly shown by the facts, first, that in the application signed by the insured was contained the provision "that any policy issued hereon shall not go into effect until the first premium has been actually paid during the lifetime and good health of the insured;" and, second, that in the policy delivered to him was contained a copy of the application including the above provision, and also the further provision that "no person has the power to cancel, change or add App. Div.] to any of the terms of this policy-contract, waive forfeitures or give credits, except the president, vice-presidents, comptroller or secretary of the company, and then only in writing." It was further recited in the policy that it was issued in consideration of the payment "in advance" of the first semi-year's premium. The agent, therefore, knew when he made the alleged agreement with the insured that he had no power under his contract to make such agreement, and the insured knew when the policy was delivered to him, or ought to have known, that the agent had no such power, and that the policy had no force until the first premium was in fact paid. But it is claimed that the evidence on this trial differs from that on the former trial with respect to the company furnishing the agent seventy-five dollars a month with which to promote and build up its business, and that it was the purpose of the company in making this advance to permit the agent to use this money in making advances for premiums. But here again we think there is no substantial difference in the testimony on this trial from that on the former trial, for the reason that the agreement to make this advance was in the contract between the agent and the company, and this agreement was in evidence on the former trial, the same as upon this. This shows that the company agreed, in order to increase the facilities of the agent for obtaining business, to advance to him the sum of seventyfive dollars per month which was to be a lien on all commissions accruing under the agreement, and rather supports the contention of the defendant, than otherwise, that whatever understanding the agent had with the insured in respect to advancing or taking care of the first premium was a private matter between them rather than an agreement between the insured and the company, for the reason that if this seventy-five dollars per month was put in the agent's hands, as he swears it was, as a fund out of which premiums could be advanced by him if he chose, that fact alone negatives the claim that the company ever intended to permit the agent to give a credit. for premiums in violation of his contract with it. The proof is clear, however, that the agent did not use or promise to use any of these funds for the payment of the premium in question, and never reported to the company that such premium was paid, although two reports were made by him to the company sub THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 5. sequent to the delivery of the policy in question and prior to the death of the insured. The judgment should be reversed upon the law and the facts and a new trial granted, with costs to appellant to abide the event. All concurred. Judgment reversed on law and facts, with costs to appellant to abide event. ONEONTA, COOPERSTOWN AND RICHFIELD SPRINGS RAILWAY COMPANY, Respondent, v. THE COOPERSTOWN AND CHARLOTTE VALLEY RAILROAD COMPANY and THE COOPERSTOWN AND SUSQUEHANNA VALLEY RAILROAD COMPANY, Appellants. Railroad intersection — temporary crossing — section 68 of the Railroad Law is not inconsistent with the provisions of the Railroad Law for the determination of compensation and the manner of intersection and the construction of a temporary crossing the Condemnation Law does not govern the proceeding to appoint commissioners of appraisal― form of the petition therefor· order to show cause and order appointing commissioners-the order is not a final one-review on an appeal therefrom of intermediate orders. Section 12 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676), so far as it authorizes the appointment of commissioners to determine the amount of compensation to be made by one railroad company for the privilege of intersecting the railroad of another company, and the manner of intersection, and section 1 of chapter 239 of the Laws of 1893, authorizing the court to permit the construction of a temporary crossing during the pendency of the proceedings, are neither of them inconsistent with, nor were either of them repealed by, section 68 of the Railroad Law (added by chap. 754 of the Laws of 1897), as amended by chapter 739 of the Laws of 1900. Although section 12 of the Railroad Law requires that the commissioners shall "be appointed by the court as is provided in the Condemnation Law," the Condemnation Law does not govern the proceeding. Consequently, the fact that such a proceeding was instituted upon a petition and an order to show cause, returnable in less than the eight days prescribed by the Condemnation Law (§ 3361 of the Code of Civil Procedure), does not deprive the court of jurisdiction. The petition in such a proceeding need not state the matters required by the Condemnation Law in a proceeding to condemn lands. It is sufficient for it to state that the petitioner is a corporation; that the route of its road, as laid down by it, crosses the other road; that it desires to cross such road at a specified point; that the two corporations cannot agree upon the amount of compensation to be made therefor or the point or manner of such crossing and App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. connections, and that the petitioner, which operates a street railway, has obtained the requisite consents of property owners and municipal authorities to the construction of the road, and that its road is actually in operation on both sides of the defendant's road and up to the point of the proposed intersection. A decision of the Board of Railroad Commissioners, under section 68 of the Railroad Law, to the effect that a permanent crossing should be constructed at grade at the point in question, and that the petitioning corporation should bear the entire expense of the construction and maintenance thereof, is not, in the event of the refusal of the other railroad company to allow the petitioning company to proceed under the decision of the Railroad Commissioners, a bar to the granting of an order for the construction of a provisional or temporary crossing. The objection that the order permitting the construction of the temporary crossing did not require the petitioner, when constructing such crossing, to comply with some of the conditions imposed by the Board of Railroad Commissioners for the permanent crossing, is unavailing, where it appears that the bond required of the petitioner before being allowed to construct the temporary crossing was conditioned upon the full and faithful performance by the petitioner of all conditions which might be imposed upon it by the Board of Railroad Commissioners, pursuant to section 68 of the Railroad Law. The order authorizing the construction of the temporary crossing is not a final order in a special proceeding, and, consequently, a statement in the notice of appeal therefrom of an intention to bring up for review certain intermediate orders, is ineffective. (Code Civ. Proc. §§ 1301, 1358.) APPEAL by the defendants, The Cooperstown and Charlotte Valley Railroad Company and another, from an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Otsego on the 12th day of March, 1903, granting to the plaintiff a temporary crossing over the tracks of the defendants' railroad, with notice of an intention to bring up for review upon such appeal certain intermediate orders made herein. This is a special proceeding under section 12 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676) in which the petitioner prays for the appointment of commissioners to ascertain and determine the amount of compensation to be made by the petitioner to the defendants for the right to intersect the track of the defendants at grade upon Chestnut street in the village of Cooperstown and to fix the line or lines, grade or grades, point or manner of such intersections and connections. The petitioner is a street surface railroad corporation operating its road by electricity THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. from the village of Oneonta to the village of Richfield Springs through the village of Cooperstown. The defendant, the Cooperstown and Susquehanna Valley Railroad Company, is the owner of a single-track railway operated from Cooperstown to Cooperstown Junction, a distance of about sixteen miles, and its railway is leased to the defendant, the Cooperstown and Charlotte Valley Railroad Company, which operates it as a steam railroad. The line of the petitioner's electric road crosses the line of the defendants' steam road at Chestnut street in the village of Cooperstown, as above stated, and all that is necessary to make the track of petitioner's road a continuous one between the village of Oneonta and the village of Richfield Springs is the construction of about fifty feet of track across the single track of the defendants' railroad where their lines cross at Chestnut street aforesaid. Without the construction of such fifty feet petitioner would be compelled to transfer all its passengers going in either direction from a car on its track on one side of the defendants' track to a car on its track on the other side of defendants' track at great expense to it and great inconvenience to the traveling public. In June, 1902, the petitioner applied to the State Board of Railroad Commissioners under section 68 of the Railroad Law (as amd. by Laws of 1900, chap. 739) to determine whether the petitioner's track should cross the defendants' track above, below or at grade of the steam railroad track. The defendant lessee appeared in opposition to such application. After several hearings the board rendered a decision October 3, 1902, authorizing a crossing over appellants' track and roadbed at grade, upon compliance with certain conditions mentioned in such decision. The decision of the Board of Railroad Commissioners was not appealed from. The petitioner alleges here that it has been unable to agree with the defendants or either of them upon the amount of compensation to be made for crossing their road, or upon the lines, grades, points or manner of such intersection, and alleges that the defendants refuse to negotiate concerning the said intersection or otherwise, and refuse to allow the petitioner to carry out or comply with the decision of the said State Board of Railroad Commissioners. In the answer of the defendants each of them admits that it has refused and refuses to allow the petitioner to carry out or comply with the |