not applicable to the defendant, for all the defendant's railroad was constructed and in operation several years prior to May 6, 1884, and there is nothing in the case to show that it has ever acquired the right to extend its road or to construct branches under the provisions of either the General Railroad Act or its predecessors, the Surface Street Railroad Acts of 1884 (chapter 252) and 1885 (chapter 305).

road Company had constructed a surface | court in Bull v. New York City Railway railroad along the road of the Jamaica & Company, 192 N. Y. 361, 85 N. E. 385, 19 L. Brooklyn Plank Road Company from the R. A. (N. S.) 778. The section, however, is village of Jamaica in the county of Queens to a point in the city of Brooklyn near Fulton avenue and near the city line of said city, practically the terminus of the Broadway Road. The Jamaica company was in 1879, under the authority of chapter 156 of the laws of that year, consolidated with the Jamaica & Brooklyn Plank Road Company. In 1893 the defendant was incorporated as a street surface railroad corporation. On January 12, 1894, the defendant leased the rail- The plaintiff's right to recovery must thereroads of the two companies mentioned which fore rest on section 104. In the later case taken together formed a continuous line of (King v. Nassau Electric R. R. Co.) the Aprailroad from the ferry at the foot of Broad- pellate Division held that the section did not way, Brooklyn, to the village of Jamaica. apply because the defendant in that case was On the 16th day of January, 1894, the de- the owner, not the lessor, of the two roads fendant, having acquired the whole capital from one to the other of which the plaintiff stock of each of the two corporations whose sought a transfer. From the citation by the roads it had leased, filed a certificate to that court below of that decision as an authority effect in the secretary of state's office, and for the disposition of this case we understand thereupon, under the provisions of section 79 that court to have held that because the deof the General Railroad Law of 1890 (chap- fendant, after the lease of the two roads, acter 565), the two lessor companies became quired the stock of the companies owning merged into the lessee. In May, 1909, the those roads, and thereupon the constituent plaintiff with his wife boarded a Broadway companies became merged in the lessee, the car on the street of that name in Brook- requirements of section 104 were no longer lyn, bound easterly towards Jamaica. The imperative, though they would have been had plaintiff paid 10 cents, the fare for his wife the defendant continued to operate the two and himself. He desired to get to Wood- roads under the leases. We do not assent to haven and Jamaica avenues, a point in the this proposition. If the Railroad Law in the old town of Jamaica in the county of Queens, form extant at the time this cause of action and asked for a transfer to that place. This arose were a new and original statute, the was refused. He was told he could get a natural construction would be to refer the transfer at Alabama avenue and Jamaica commencement of section 104, "every such avenue, a point still within the old city of corporation entering into such contract," etc., Brooklyn and county of Kings. He got such to the preceding section. But that section a transfer and took another car bound east. (103) deals only with railroad corporations When he had gone in that car as far as the desiring to abandon portions of their routes dividing line between the counties of Kings which are no longer necessary for the operaand Queens, there was exacted from him an tion of the road or the convenience of the additional fare for himself and his wife. He public. Hence we must look somewhere else contends that by the two sections mentioned to find to what corporations the term "such" the defendant was precluded from charging applies, or ignore the term as superfluous. the additional fare. He brings this action to The explanation of the phraseology of the recover the penalty for its exaction. He re- section is to be found in the history of the covered a judgment in the Municipal Court legislation on the subject with which the of the City of New York. The Appellate Di-section deals. The prototype of section 104 vision reversed the judgment and ordered a is found in the Street Surface Railroad Law new trial, and it has allowed an appeal from such order to this court.

of 1885 (chapter 305) as section 4. That act authorized any street surface railroad company, or any corporation owning or operating a street surface railroad or railroad route, to contract with any other such company or corporation for the use of their respective roads or routes or any portion thereof. It further authorized the lease of such

[1] It appears by the record that the learned court below placed its decision on the authority of its decision in King v. Nassau Electric Railroad Company, 128 App. Div. 130, 112 N. Y. Supp. 589, which in turn was partly based on the decision of the same court in O'Connor v. Brooklyn Heights Railroad Com-roads. pany, 123 App. Div. 784, 108 N. Y. Supp. 471. In the earlier case it was held that section 101 applied only to the case of a through car, if there were any such, and that the company was not obliged to give a transfer from one car to another car which moved over the remainder of its route. That proposition was overruled by the decision of this

Section 4 then required "each and every company entering into any contract under the power conferred by this act" to transport over any portion of the road embraced within the contract for a single fare and give transfers for that purpose. In 1890 (chapter 565) the Railroad Law already mentioned, embracing the regulation of railroads of every kind, was enacted. By section 103

of that statute the same authority was given | thing to the contrary of this view to be to street surface corporations to contract found in the opinion rendered by Judge with other such corporations for their re- Haight in People v. Brooklyn Heights Railspective roads or routes. Section 104 pro- road Company, 187 N. Y. 48, 55, 79 N. E. 838, vided for the submitting of the contract to 840. All that was there held was that the a vote of the stockholders; and the present statute did not apply to an elevated or section 104 is a literal and exact reproduc- steam railroad running on its own right of tion of section 105 of that act, except that way which had been leased by a street railthe qualification has been added that "the road company. Judge Haight there said: provisions of this section shall only apply to "The Legislature has seen fit to limit the railroads wholly within the limits of any one power of street surface railroads to consoliincorporated city or village." This quali- date, lease, contract, or operate other street fication was added by chapter 676 of the surface railroads by imposing a condition Laws of 1892, which amended many sections that in case they do so contract they shall of the General Railroad Law. By that pro- transport over their connecting lines passenvision section 103 of the Laws of 1890 was gers for a single fare of five cents and furentirely omitted (probably because its pro- nish transfers to their own intersecting visions were deemed unnecessary, the sub-lines." ject being covered by other sections of the statute applicable to all railroads), and in place thereof was inserted the present section 103.

[2] The question, however, still remains whether the defendant is relieved from the requirements of the section by the limitation that it should only apply to railroads wholly From this review of the legislation it is within the limits of any one city or incorpoplain that "such corporation entering into rated village. In 1894, when the merger or such contract" embraces all corporations consolidation was effected, the road of the which by any form of contract acquire the Broadway Company was wholly within the right to use the road of another corporation. city of Brooklyn, in the county of Kings. We see no reason why it does not include The road of the Jamaica company was parcontracts for consolidation as well as con- tially in that city but mostly in the town of tracts for lease and traffic agreements. Jamaica, county of Queens. Therefore, at Reading sections 101 and 104 together, the that time, the consolidation of the roads of intent of the Legislature is reasonably clear. the two companies did not impose on the It did not intend to interfere with the fares new corporation the obligation to transport which existing street railroad companies over the combined line of both for a single were entitled to charge, but it did intend to fare. In 1897, however, the three cities of require as a condition for the exercise of New York, Brooklyn, Long Island City, the the privilege of expansion in any direction county of Richmond, and the greater part of that they should subject not only their new- the county of Queens, including the town of ly-acquired property but their existing prop- Jamaica, were consolidated so as to form the erty to the provisions of the statute relative present city of New York. Did such consolto single fares and transfers. If a company idation in the creation of the new municiever extended its line or built a branch, un- pality impose upon the defendant obligations der the provisions of the statute, from that and requirements from which before consoli time it was required to transfer passengers dation it was free? We think not. In the over the whole of its routes for a single case of what might be regarded as the nat fare. If it made any contract by which it ural extension of an existing city or village acquired the right to use the railroad of an- caused by the overflow of increasing populaother company, it was required to transport tion into adjacent territory, it may be that its passengers over the joint route of both the obligations of a railroad company would companies for the same fare that either was increase with the increase of the municipalentitled to charge before making the con- ity. The creation of the present city of New tract. There is absolutely no reason why a York was not at all an extension of that merger or consolidation should be exempt character. By it were combined the old city from conditions imposed in the case of leases of New York with a population of 1,800,000, or traffic agreements, and the courts should the city of Brooklyn with a population of not import such an exemption into the stat- 1,000,000, and the outlying districts of Queens ute unless the phraseology of the statute re- and Richmond with a population of 150.000 quires it. We think neither is the fact. A more. The area of the county, of New York fuller review of this legislation may be found is 39 miles, that of Kings 72, of Richmond in the opinions rendered by Judge Edward 59, and of the annexed portion of Queens T. Bartlett in the cases of Griffin v. Interur- 58. Thus the area of the new city was over ban Street Ry. Co., 179 N. Y. 438, 72 N. E. five times that of the old city of New York 513, and O'Reilly v. Brooklyn Heights Rail- and over three times that of the old city of road Company, 179 N. Y. 450, 72 N. E. 517, Brooklyn. Though consolidated into a single where it was held that the language of the municipal corporation, the autonomy of the present section refers to any railroad com- several constituent municipalities is mainpany owning or operating any railroad or tained in some degree by the creation of bor

For other definitions, see Words and Phras-ply with this requirement is in any event a es, vol. 1, pp. 118-126.]

Exceptions from Superior Court, Suffolk this was an agreement either to dry dock County; John H. Hardy, Judge. the vessel at least once in every four months

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

or else allow the charterer his actual loss | the will should be allowed and the codicil from the failure to clean her. Falls of Kel- disallowed. It has not appeared to oppose tie Steamship Co. v. United States & Aus- the allowance of the will and codicil except tralasia Steamship Co. (D. C.) 108 Fed. 416. as it has appeared and answered and been See also Munson Steamship Line v. Miramar | heard in this proceeding. Steamship Co. (D. C.) 150 Fed. 437, and Bollman v. Tweedie Trading Co. (D. C.) 150 Fed. 434. If the defendant suffered any loss by the failure to clean the vessel, his remedy was by way of recoupment. But no such claim is made. We are of opinion that under the circumstances the failure of the owner to dry dock and clean the vessel is no ground of defense to this action. Exceptions overruled.

A hospital, by the will given a legacy, revoked by a codicil, has a right to have the validity of the codicil passed on, though it does not appear till after decree of the probate court, so long as it appeal in time; so that it is a necessary party, as one whose interest will be affected thereby, to an agreement of compromise of the rights in the estate, so as to give the court jurisdiction, under the statute, to adjudge them as so compromised.

[Ed. Note. For other cases, see Wills, Dec. Dig. § 340.*]

Case Reserved from Supreme Judicial

Court.

Petition by Charles H. Sherman, executor of Obed C. Shepherd, deceased, against Alberta F. Warren and others, to have the probate court approve, ratify, and confirm an agreement of compromise of rights in the estate of deceased. The probate court dismissed the petition, because the Waltham Hospital was not a party to the agreement of compromise, and petitioner appealed to the Supreme Judicial Court, which reserved the cause for the full court. Petition dismissed.

Geo. L. Mayberry, for Alberta F. Warren and others. Edwd. C. Clark, for Carrie E. Dodge. John L. Harvey, for Leland Home for Aged Women. John J. Flynn, for Geo. A. Clark. Robt. M. Stark, for Elizabeth Pollard. C. F. French, for respondent.

HAMMOND, J. The only question is whether the Waltham Hospital, hereinafter called the hospital, "is a necessary party to the agreement for compromise." It is not an heir at law of the deceased. It is named as a legatee in the will, but in the codicil executed several months after the will there is a provision entirely revoking the legacy. If therefore both will and codicil are allowed, or if both are disallowed, the hospital gets nothing. It is for its interest that

It is manifestly interested in the controversy and is a party entitled to appeal from any decree against its interest. And that is so even if it does not appear until after the decree of the probate court, provided the appeal be seasonably taken.

A controversy over the allowance of a will may be determined in court in two ways. The first is by the decision of the court upon a hearing and proof, allowing or disallowing the will. If allowed, it stands as written. If disallowed, it is null as though never written. The second way is by agreement of compromise signed by all parties whose interests, in the opinion of the court, will be affected by the proposed compromise, and approved by the court. When the controversy is settled in this way, the rights of the parties are determined, not by the will as written, but as changed by the terms of the compromise. In these two ways, and in these only, can the rights of the parties be adjusted by the probate court. The jurisdiction of the court in the first way is entirely independent of any agreement of the parties. In the second way it is entirely dependent upon the agreement of the parties. The second is an anomalous proceedthe requirements of the statute are complied ing. "The court has no jurisdiction unless with." Knowlton, J., in Elder v. Adams, 180 Mass. 303, 306, 62 N. E. 373.

pital will be affected by the proposed agreeAs stated before, the interest of the hosment. Without its consent the hospital cannot be deprived of the right to have the Validity of the codicil determined by the follows that it is a necessary party to the probate court upon hearing and proof. It agreement of compromise.

In accordance with the terms of the reservation the order is: Petition dismissed without prejudice.

(211 Mass. 169)

THOMPSON v. LUCIANO et al. (Supreme Judicial Court of Massachusetts. Norfolk. March 1, 1912.) 1. MECHANICS' LIENS (§ 147*)-STATEMENT OF LIEN-DEFECTS.

Under Rev. Laws, c. 197, § 6, requiring a lien claimant to file with the register of deeds a statement, and providing that inaccuracy in stating, or failing to state, the contract price, where there was no intention to mislead, shall not invalidate the statement, a statement of a lien for labor is not insufficient as a matter of law merely because there was no sufficient averment of the price.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 253; Dec. Dig. § 147.*]