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satisfied of the fact, but upon the existence of the fact itself. Therefore, a defendant, proceeded against by publication, and judgment, although the judgment may be prima facie evidence of these jurisdictional facts, and of a debt against him, has a right nevertheless to contest it in a proper proceeding, and show that such facts never existed; consequently, would render the judgment void. (Fiske agt. Anderson, 12 Abb., 8.)

RAILROADS. 1. The act of the legislature of 1860, authorizing the defendants

(named as grantees) to construct a railroad in the city of New York, running through Green street, University Place, Broadway, and other streets, on a route commonly known as the "Broadway Parallel," is unconstitutional and void, as taking private property for public use without just compensation there

for. (People agt. Kerr, Ante, 130.) 2. The fee of the streets of the city of New York is in the city cor

poration, which fact authorizes them to demand compensation for this (private) property, which is authorized to be taken by the act; but which by its terms virtually enjoins the corporation

from claiming. (Id.) 3. The legislature have no authority to establish the price to be

paid for corporate franchises or private interests to be taken for public use. Therefore, the provision in section 2 of the act subjecting the railroad to the payment, to the corporation, of the same annual license fee as is now paid by other city railroads, ($20 per car,) amounts to nothing, saying nothing of the gross

inadequacy of the price to the privilege. (Id.) 4. Although the plaintiffs who are the owners of the land abutting

on the streets to be occupied by the contemplated railroad, cannot complain of the construction of the road on the ground that they are injured as tax-payers of the city, (see Dolittle agt. Supervisors, 18 N. Y. R., 162; S. C., 16 How. Pr. R., 512,) nor upon the ground that they are the owners of the fee of such lands, (the fee being in the corporation by purchase,) yet they can complain of the construction of the road as specially injurious to them, for the reason that it would be an indictable : vi


sance, after having been declared unconstitutional as against the

corporation. (Id.) 5. It seems that the fee of the streets of the city of New York, is

vested in the corporation of the city, in trust for the use of the public as highways. (People agt. Mayor, &c., of New York,

Ante, 144.) 6. In an acton brought by the people of the state, with certain

individuals named claiming to be owners in fee of the property affected, for the purpose of declaring unconstitutional and invalid an act of the legislature granting to certain individuals the right to lay down rails for a railroad in the city of New York, and for an injunction restraining the grantees named in the act, and the corporation of the city, from proceeding under the act, held, on demurrer, that the common council of the city was not a neces

sary party. (ld.) 7. Under the act of 1837, railroad corporations should be included

among, and treated as inhabitants of the town, for all the purposes of taxation for highway labor, mentioned in that act. The commissioners of highways of the town are to take the last assessment roll for a guide, and to include every corporation which they find assessed therein. Whether a railroad corporation is to be considered a resident for purposes of taxation or otherwise in each county through which its road runs, or only in the city or town where its principal office is, Quere? (People agt. Pierce, 32 Barb., 138.)

See PRINCIPAL AND AGENT. (Johnson agt. N. Y. Central R. R. Co., 32 Barb., 196.) 8. When a railroad company organization appears regular on its

face, and the company, while exercising all its corporate functions, is recognized by the legislature as a corporation, it becomes ipso facto, a legal corporation, and is authorized to sue as such. (Black River, dc., R. R. Co., agt. Barnard, 32 Barb., 258.)

See Common CARRIER. (Green agt. Hudson R. R. R. Co., 16 How., 263; S. C., 32 Barb., 260.) 9. In order for a trustee, appointed by a railroad company, to

derive title under the trust deed, to the funds arising from the tolls and income of the road, he must take possession of the road and run it; when the title to such funds becomes invested in the trustee by acts of the railroad company in depositing

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them to the credit of the trustee; who are proper parties, where the trustee applies to the court for instructions upon conflicting claims to the funds. (Coe agt. Beckwith, 32 Barb., 339; S. C.,

19 How., 398.) 10. When a railroad company are liable for damages for injuries to

property of third persons, caused by the carelessness of their employee, notwithstanding a special agreement between the latter and the company. (Chapman agt. N. Y. Central R. R. Co., 32 Barb., 399.)

See CONTRACTS. (Day agt. N. Y. Central R. R. Co., 32 Barb., 548.) 11. Where the plaintiff paid for his passage from New York to

Buffalo by the Hudson River and New York Central railroads, and received a passage ticket which specified that it was to be used within three days, and was good for a continuous trip only, held, that the ticket was to be regarded as evidence of a contract which the railroad companies were authorized to make, as therein expressed. And where the plaintiff left the cars at Albany for six or seven days, and then resumed his journey, held, that he was liable to pay an additional fare, and upon his refusal, the conductor was justified in removing him from the cars. (Barker

agt. Coflin, 32 Barb., 556.) 12. The rolling stock of a railroad company, such as engines, ten

ders, passenger or other cars, shop tools and machinery, is personal estate, and as between mortgagees and judgment creditors or purchasers, will not pass as real estate or fixtures under a mortgage executed by the company, or as personal estate, unless such mortgage be duly filed as a chattel mortgage. A sale of such property on a subsequent judgment and execution, will give to the purchaser a title discharged of the lien of such prior nortgage. (Stevens agt. Buffalo & N. Y. City R. R. Co., 32 Barb., 590; and Beardsley agt. Ontario Bank, Id., 619.)


1. The court will not ordinarily take from a party the custody of

his property without notice to him, and giving him an opportunity

to show cause against it. (Field agt. Ripley, Ante, 26.) 2. A receiver will not be appointed upon an ex parte application,


before the appearance of the defendant, or until he has made defaull, after service of process, except in cases of emergency.

(Id.) 3. If the process of injunction will not restrain the disposal of

property, a receivership will be but of little avail. (Id.) 4. It seems, that a receiver appointed by this court, would not be

able to make tille under his appointment to property in another state, in the possession of the owner there, who has not been within this state, or in any way made answerable to the process

of the court. (Id.) 5. Where parties, who are creditors by virtue of a lien, either legal

or equitable, created by an executory contract between themselves and the principal debtors, upon the property of the latter, they may not be called upon to permit the property of their debtors to go into the hands of a receiver, except it should be to secure the payment of their debt, or the appointment made sub

ject to their rights. (Id.) 6. A mortgagor, who has sold and conveyed the premises subject

to the mortgage, is not in a position to oppose the appointment of a receiver, for the protection of the property to other credi

tors. (Wall Street Fire Insurance Co. agt. Loud, inte, 95.) 7. What acts of neglect of mortgaged premises, connected with the

probable insolvency of the mortgagor, sufficient to authorize the

appointment of a receiver. (Id.) 8. A plaintiff cannot demand the appointment of a receiver of pro

perty in which he has no interest, although he may have a cause of action for its injury when he formerly owned it. (Smith agt.

Wells, Ante, 158.) 9. Where a receiver, as such, prosecutes a note transferred to him

from the debtor, and the defendant succeeds in the action, the receiver is not personally liable for the costs, unless the court orders him to pay them for mismanagement or bad faith. (Marsh

agt. Hussey, 4 Bosw., 614.) 10. A receiver of a mutual insurance company in making assess

ments upon the premium notes of the company, is the actor, and his power does not depend upon the order of the court appointing him, but upon the circumstances and facts rendering an assessment necessary; he acts ministerially not judicially. The power of directors of such companies and of a receiver, where

Religious corporations.

appointed, to make assessments, stated. (Thomas agt. Whallon,

32 Barb., 172.). 11. Where a stockholder of a corporation has joined in an appli

cation to the court for the appointment of a receiver, to sell the assets of the corporation, he cannot thereafter question the validity of the appointment of the receiver, or the order directing the

sale. (Battershall agt. Davis, 32 Barb., 323.) 12. Upon the dissolution of a corporation, the title to its real pro

perty does not revert to the original owners or grantors but vests in the receiver, and he is to administer it, together with the personal property, for the benefit of the creditors and stockholders.

(Owen agt. Smith, 32 Barb., €41.) 13. An order of reference in an action appointing a receiver for the

benefit of the creditors of the defendant takes effect from its date, and gives the receiver a right of possession of the assets, from that date, although proceedings may be stayed by an injunetion and appeal, and during the time another action is brought against the defendant and another receiver appointed. (Deming agt. New York Marble Co., 12 Abb., 66.)

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1. The right of burial in a lot, when confined to a church yard, as

distinguished from a separate independent cemetery, although conveyed with the common formula of “heirs and assigns forever," must stand upon the same footing as the right of public worship in a particular pew of the consecrated edifice. (Rich

ards agt. Northwest Prot. Dutch Church, Ante, 317.) 2. It is an easement in, and not a title to, the freehold, and must

be understood as granted and taken subject (with compensation of course) to such changes as the altered circumstances of the

congregation or the neighborhood may render necessary. (Id.) 3. Hence, where a deed purports to convey a certain lot described

by metes and bounds, and as belonging to a church corporation, adjacent to a church edifice, in a church yard, and to be used exclusively as a place of interment, and subject to church assess. ments for regulation and repair, must be considered as a grant of a mere easement, and not of an ordinary absolute estate in fee. (ld.)

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