App. Div.] SECOND DEPARTMENT, JULY TERM, 1898. sold, and the same was subsequently opened at the request of the owner for the purpose of a fresh interment, a charge of three dollars was made by the corporation for such opening, which sum, however, was devoted, with the other receipts of the corporation, to carrying out the general purposes of the corporation, as above stated." Commenting upon this state of facts, which we have set forth in detail, that it may be seen that the question involved in the case at bar was presented to the Massachusetts court in as favorable a light as possible, the court say: "There was evidence warranting a verdict for the plaintiff if the defendant was subject to the ordinary rules of liability. We are of opinion that it was subject to those rules, and that by the terms of the report judgment must be entered for the plaintiff. McDonald v. Massachusetts General Hospital (120 Mass. 432) was decided on the ground that the defendant was a public charitable institution under the laws of the Commonwealth, and Benton v. Trustees of Boston City Hospital (140 Mass. 13) on the ground that, if it was not within the former decision, then the defendant was a mere agent to perform a duty which the city of Boston had assumed solely for the benefit of the public under the authority of a statute; that the city of Boston would not be liable under the rules peculiar to municipal corporations stated in Tindley v. Salem (137 Mass. 171) and Hill v. Boston (122 id. 344), and that, therefore, a mere statutory agent without property intervening between the city and the actual wrongdoer was also free from liability. "The latter ground has no application here. There is no pretense that the defendant is acting as an agent for the city. We think that there is equally little ground for calling it a charitable corporation. Assuming, for the sake of argument, that it would. have no right to declare dividends to its members in case of realizing profits, there is nothing in the charter which compels the application of any part of its funds to charitable uses. It would be acting strictly within its powers if it sold all its lands for full price. The purpose of the charter is to secure permanent care of graves and such advantages to the persons interested as may be deemed incident to burial in such a cemetery. The beneficiaries are a definite number of persons clearly pointed out by law. (Stat. 1841, c. 114, §§ 4, 5; Old South Society v. Crocker, 119 Mass. 1, 23. SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. See Evergreen Cemetery Association v. Beecher, 53 Conn. 551; Matter of Deansville Cemetery Association, 66 N. Y. 569.) "The provision in the St. of 1841, c. 114, section 3, that all the real and personal estate of the corporation shall be applied exclusively to purposes connected with, and appropriate to, the objects of such organization,' does not mean to exempt its property, and thus the corporation, from ordinary civil liabilities. There is a similar restriction, express or implied, in the case of a railroad. "The fact that the funds received were actually applied to a considerable extent in charity, is no more material than evidence of a similar application of a part of his income by a private citizen would be in a suit against him." While it is true that, in this State, the Legislature has provided that the real estate of cemetery associations cannot be reached by a judgment during the time that such real estate is actually in use for burial purposes, it is clear that it was never intended to exempt them from "ordinary civil liabilities;" for it is provided (§ 2, chap. 310, Laws of 1879) that "Whenever any such land shall cease to be used for cemetery purposes, any judgment, tax or assessment which, but for the provisions of this act, would have been levied, collected or imposed, shall thereupon forthwith, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same." In the case at bar the neglect was not that of an agent or employee, it was the neglect of the corporation; the neglect of an implied duty which the corporation owed to those whom it invited within its inclosure; and a notice to its agent that poison ivy was within the inclosure was notice to the corporation, and it was bound to take steps to remove the menace to the safety of those who entered its grounds for a lawful purpose. The plaintiff in this action having suffered by reason of this neglect, which fact has been found by the jury—although the evidence was not, perhaps, as conclusive as might be desired is clearly entitled to damages; and we find no reason for making any change in the judgment which has been rendered. The statute under which the defendant is organized allows the corporation to make use of its funds for the incidental expenses of the corporation, and there is no doubt that it will feel that it is jus App. Div.] SECOND DEPARTMENT, JULY TERM, 1898. tified in paying the expenses of this action out of its treasury. There is equally good justification for paying the judgment; it is incident to the conduct of the cemetery, and if those who have entered this corporation for the purpose of minimizing the cost of burials want to be spared this extra expense they have the remedy in their own hands; they can select trustees, officers, agents, servants and employees who will take care that persons lawfully within the grounds are not menaced with dangers which a reasonable degree of care would obviate. Failing to do this, they will not be allowed to escape their obligations under the pretense that they are conducting a public charitable institution. The judgment of the trial court and the order denying a new trial should be affirmed, with costs. HATCH, J., Concurred. Judgment and order reversed and new trial granted, costs to abide the event. HUGH V. RODDY, JR., Appellant, v. THE BROOKLYN CITY AND NEW- Railroad — right of a street railroad company to lease its road conferred by chapter A street railroad company, organized while chapter 218 of the Laws of 1839 was in force, acquired thereby a right to lease its tracks, and the right thereby acquired by the lessee could not be thereafter taken away or impaired either by legislative enactment or constitutional change except in the proper exercise of the right of eminent domain or of the police power. The right conferred by that act did not require for its enjoyment the consent of the municipality or of the property owners upon the street upon which the railroad was constructed. The provisions of chapter 218 of the Laws of 1839, which has been repealed, are re-enacted essentially in section 78 of the Railroad Law, and if it be assumed that the rights in question were not expressly preserved by the saving clauses in the statutes repealing chapter 218 of the Laws of 1839, such re-enactment must be treated as a continuation of the provisions of the former law. The constitutional amendment of 1875 and the Constitution of 1894 were not retroactive in their effect. SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. APPEAL by the plaintiff, Hugh V. Roddy, Jr., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of May, 1898, denying the plaintiff's motion for an injunction pendente lite. Samuel S. Whitehouse, for the appellant. William N. Dykman, for the respondent The Brooklyn City and Newtown Railroad Company. Charles A. Collin [ William C. Trull with him on the brief], for the respondent The Brooklyn Heights Railroad Company. HATCH, J.: The plaintiff is a property owner, owning land which abuts upon Washington street in the borough of Brooklyn. The Brooklyn City and Newtown Railroad Company is a street surface railroad company, having a franchise for and operating its railroad through Washington street. The Brooklyn Heights Railroad Company is also a street surface railroad company, having a franchise for and operating its cars upon Montague street in said borough. It is also the lessee of the Brooklyn City Railroad Company, a street surface railroad company having a franchise for the operation of its cars upon Fulton and other streets in said borough. The first of these corporations was organized pursuant to chapter 140 of the Laws of 1850, and by chapter 165 of the Laws of 1872 it was authorized to construct and operate its road upon Washington street. The second corporation was organized pursuant to chapter 252 of the Laws of 1884. Its lessor, the Brooklyn City Railroad Company, was organized pursuant to chapter 140 of the Laws of 1850. The lease of its property franchises and rights is for the term of 999 years. The first and second named of these corporations have entered into a traffic agreement with each other, whereby the Brooklyn Heights Railroad Company has acquired the right to run and operate its cars over the tracks of the first-named company, through Washington street to the New York and Brooklyn Bridge, over which structure both companies operate their cars. It is asserted by the plaintiff, and such is the conceded fact, that neither the Brooklyn Heights Company nor its lessor has ever acquired any franchise from App. Div.] SECOND DEPARTMENT, JULY TERM, 1898. the municipal authorities to run and operate its cars in and upon the tracks laid in Washington street, nor has it obtained the consent of the owners of one-half in value of the property bounded upon such street so to operate, nor has it made application for such consent either to the municipality or to the property owners. For this reason the plaintiff contends that such use of the street is an unlawful act upon the part of the defendant corporations, and as it increases the burden of use upon such street, obstructs the same and renders it dangerous, its usefulness as a street is seriously impaired, the plaintiff's property is damaged and he is left without adequate remedy at law. We are, therefore, to see what the legal rights of these corporations are, and whether they are acting within such rights. At the time when the Brooklyn City and Newtown Railroad Company and the Brooklyn City Railroad Company were organized chapter 218 of the Laws of 1839 was in force, and whatever property right accrued to or vested in these corporations at that time, by virtue of their charters or other law, to all of which the lessee company became entitled by reason of its lease, could not be thereafter taken away or impaired, either by legislative enactment or constitutional change, except in the proper exercise of the right of eminent domain and of the police power. (People v. O'Brien, 111 N. Y. 1; Mayor v. Twenty-third St. R. Co., 113 id. 316.) The reserved right in the Legislature to alter or repeal the charters of such corporations may, and often does, raise grave questions respecting the limit of its exercise and in determining the quality of the legal right But so far as property right is concerned there can be no question. The Constitution of the State has always protected such right against the action of the Legislature, under whatever guise it has been attempted, while the Federal Constitution operates as a restraint upon constitutional legislation if resort be had to such action. The act of 1839 is without limit in its language as to the character of railroad to which it should apply. It was quite as necessary a provision for street surface roads as for railroads operated by steam, and we believe its provisions to have been generally regarded as applicable to both classes of roads, and think that no sound reason can be advanced why it should not be so considered. APP. DIV. VOL. XXXII. reserved. 40 |