SECOND DEPARTMENT, MAY TERM, 1902. [Vol. 72. is unable to agree for the purchase of any real estate required for the purposes of its incorporation, it shall have the right to acquire title to the same in the manner and by the special proceedings prescribed in this act." And the act described proceedings substantially in the form of those now in use. The proceeding was taken to condemn a general route through private property. It was held that the certificate of organization authorized the building of a street railroad on public streets and not one through private property, and that the act did not authorize the condemnation of private property to be used as the main route of the railroad. The court said (p. 146): "Such are the prescribed and declared purposes of the incorporation, and the company, it may be conceded, might have the right to acquire by condemnation such and so much of private property as should be reasonably necessary to accomplish those purposes." In other words, the court recognized the power of a street railroad corporation to acquire private real estate by condemnation wherever such acquisition was of private real property incidental to the purposes of a street railroad. Matter of Rochester Electric R. Co. (123 N. Y. 351) was a proceeding to appoint commissioners to appraise lands sought to be taken for railroad purposes. The railroad company was incorporated under chapter 252 of the Laws of 1884 providing for the construction of street railroads in cities, etc. The act provided for the incorporation of such roads and stated their powers, among them the powers and privileges granted by the act to authorize the formation of railroad companies (Laws of 1850, chap. 140). Section 13 of the latter act contained the provision that, if the company was unable to agree with owners for the purchase of "real estate required for the purposes of its incorporation, it shall have the right to acquire title to the same in the manner and by the special proceedings prescribed in this act." The special proceedings thus prescribed were analogous to the present proceeding for condemnation provided in the Code of Civil Procedure (Chap. 23, tit. 1, § 3357 et seq.). The court said (pp. 361-363): "Authority to acquire private property for its railroad purposes is conferred upon petitioner by the act of 1884, and the mode of its exercise is through the proceedings described in the General Railroad Act of 1850. The corporation, which is formed under the act of 1884, is given the powers and privileges granted App. Div.] SECOND DEPARTMENT, MAY TERM, 1902. * * * by that general act, and reference to its provisions shows in what manner and by what special proceedings real estate may be acquired when there is an inability to acquire it by agreement. The act of 1884 refers the company to the provisions of the general act of 1850 for purposes of acquiring private lands, and no reason in law exists why those provisions should not be as binding and the protection to the private citizen be as sacredly maintained in the case of a street railroad as in that of a steam railroad. The rule is a salutary one and should be respected for that reason as well as for its absoluteness under the statute." Here was clear recognition of the power of street railroads under the law as it then existed to condemn lands necessary for the purposes of their incorporation. I have no doubt that the general power of condemnation given by the General Railroad Act of 1850 and by the Street Railroad Act of 1884 was intended to be and is embodied, without distinction as to steam or street railroads, in the present Railroad Act. There is no reason why it should not have been given, and the present action is evidence of its necessity. The power of condemnation is just as requisite for street railroads as for steam railroads. This will be still more apparent by reference to the course of legislation. The General Railroad Act of 1850 related to railroads using steam or animals or any mechanical power, and authorized the formation of corporations for such purposes; and while it is true that there was not at that early day any specific reference to street railroads in cities, possibly for the reason that they were comparatively infrequent, yet the language of the act is broad enough to include them. The act in express terms gave to all corporations thereunder the power of condemnation. In 1884, after many street surface roads had been incorporated under the act of 1850, the Legislature passed chapter 252 of the laws of that year, entitled "An act to provide for the construction, extension, maintenance and operation of street surface railroads and branches thereof in cities, towns and villages." It conferred (§ 1) upon corporations formed thereunder "all the powers and privileges granted" under the Railroad Law of 1850. In 1889, the Legislature passed chapter 289, providing for the appointment of commissioners to prepare and report to the Legis SECOND DEPARTMENT, MAY TERM, 1902. [Vol. 72. lature bills for the consolidation and revision of the general statutes of the State, including among other subjects bills "Providing for the organization, government, and control of corporations except banks, banking and trust companies and municipal corporations." In pursuance of that act the commissioners reported to and the Legislature passed the present Railroad Law. If we hold that the existing Railroad Law confers no power of condemnation upon street railroads we are compelled to say that, although there were statutes which conferred the power of condemnation alike upon street surface railroads and steam railroads, some of which acts had been in existence more than forty years, the Legislature, without any apparent reason, passed an act depriving one class of roads of the power requisite to complete operation, while leaving it in force as to the other, and this in an act which was designed to be simply a "consolidation and revision" of existing laws upon the subject. No reason appears for any such change in convenience, necessity or public policy of the State. It cannot be too clearly pointed out and emphasized that the Railroad Law authorizes street railroad corporations to lay their tracks in a public street of the city upon compliance with the provisions respecting consents of abutting owners of one-half in value and the consent of the local authorities. The defendants have complied with the provisions of this limitation, as has been adjudged in the case of the present plaintiff. (Adee v. Nassau Electric R. R. Co., 65 App. Div. 529.) In Matter of Nassau Electric R. R. Co. (6 App. Div. 141; 167 N. Y. 37) it also appears that proceedings have been instituted under section 94 of the Railroad Law. We thus reach the conclusion that the defendants have power under the Railroad Law to institute proceedings for the condemnation of so much of the plaintiffs' property as is taken by the additional use of the street in front of their premises, and for this reason that the judgment proceeds upon an erroneous view of the law and should be modified by inserting therein a provision substantially in the language of the Peck case, "that if the defendants shall acquire a right, by condemnation or otherwise, to the use of the land in question for street railroad purposes, the judgment shall not be regarded as effective to restrain them from entering upon App. Div.] SECOND DEPARTMENT, MAY TERM, 1902. such premises for the purpose of building, maintaining and operating their railroad thereon," and as thus modified, the judgment is affirmed, without costs of this appeal. All concurred. JENKS, J. (concurring): I concur with the presiding justice. I think that we should meet the question whether the defendants have the right of eminent domain. The learned justice at Special Term writes in his opinion that if he were satisfied that the defendants possessed such right, he would not hesitate to deny the injunction upon condition that condemnation proceedings should be commenced, but having concluded that the plaintiffs' rights cannot be taken in invitum, he is compelled to uphold the plaintiffs' contention and to enjoin interference with their property. That learned justice further writes that he discusses the question of the power of condemnation upon the suggestion that the injunction might be withheld upon the filing of a bond by the defendants to commence proceedings within a reasonable time, and that if he were satisfied that such proceedings would lie, he would make such disposition of the case. "But," he concludes, "I have no alternative.” Thus it conclusively appears that the disposition made by the court was not that which it would have made had it believed that the defendants were clothed with the power of eminent domain. We have, then, the announcement of a court of equity that it does not decree what it would, but only what it could. If we think that the court was hindered and hampered by a mistaking of the law, then we should say this, in order that the decree may be made as the court would have entered it but for its error of law. Judgments modified in accordance with opinion of GOODRICH, P. J., and as modified affirmed, without costs of this appeal. SECOND DEPARTMENT, MAY TERM, 1902. [Vol. 72. BENJAMIN W. BRADY, Appellant, v. ANDREW D. FOSTER, Respondent. Real estate broker- when his commissions are earned - they are not lost because the purchaser subsequently becomes insolvent—pleadings, in another action, as evidence. While the allegations and the pleadings of a party in one suit are receivable against such party in a subsequent suit between him and a stranger as his solemn admission of the truth of the facts recited, the pleading does not conclusively establish the facts alleged therein, but is open to explanation or rebuttal or may be shown to have been made by mistake. Where a broker employed to effect a sale of real estate brings to his employer a purchaser who enters into a contract for the purchase of the premises and pays the employer fifty dollars on account, the refusal of the purchaser to consummate his purchase by the payment of an additional sum agreed to be paid before the contract should be delivered does not deprive the broker of the right to receive the agreed commissions. The broker's commissions become due when the contract of sale is executed, and the fact that an execution, issued upon a judgment recovered by the employer of the broker against the purchaser in an action for a breach of his contract, has been returned unsatisfied, does not establish that the purchaser was financially irresponsible at the time he executed the contract of sale. APPEAL by the plaintiff, Benjamin W. Brady, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 5th day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk's office on the 26th day of September, 1901, denying the plaintiff's motion for a new trial made upon the minutes. Elliott J. Smith, for the appellant. Walter H. Jaycox, for the respondent. WOODWARD, J.: The plaintiff brings this action to recover $250 commissions, alleged to have been earned in the negotiation of a sale of certain real estate located at Sayville, in Suffolk county, this State. The complaint alleges ownership of the property in the defendant, and an employment to sell the same for the sum of $10,000, for which |