right as an existing company had, though it was an inchoate right and subject to the performance of further conditions.

Also held, As no power, authority, or franchise was conferred directly by the legislature on the petitioner, but the act of 1875 only prescribes the proceedings by which such rights can be acquired, a substantial compliance with the material requirements of the act is a condition precedent, without performance of which the petitioner could never become legally incorporated or acquire any rights under the act.

It was the intent of the Rapid Transit Act that companies formed under it should be limited in respect only to time during which it was possible for them to prosecute the work, and that time, when legal barriers existed to their so doing, should not be counted.

The commissioners appointed by the mayor required separately, as to each of the twenty-nine routes they had located, that it should be constructed and ready to be operated within a specified number of months or years from the date of obtaining the requisite consents of the property owners and of the local authorities, or in case the consent of such property owners could not be obtained, from the date of the confirmation of the report of the commissioners. They also provided that if any time was unavoidably consumed by the pendency of legal proceedings or by the interference of the public authorities, or by omission

to open or grade, or delay in opening or grading any street or avenue, or any part or parts thereof, such time shall not be deemed a part of any period of time within which construction and completion is required to be made.

Held, That the provisions of the act had been substantially complied with.

of association

The articles framed by the mayor's commissioners do not conform with the requirements of § 7 of the Rapid Transit Act, which explicitly provides that the articles of association shall set forth and embody the determination of the commissioners, pursuant to § 4, 5, and 6 of the act, and "further shall provide for the release and forfeiture to the supervisors of the county of all rights and franchises acquired by such corporation in case such railway or railways shall not be completed within the time and upon the conditions therein provided. The commissioners here provided that in case the several portions of such railways were not completed each within the time and within the conditions provided, the rights and franchises acquired by the petitioner for and as to any portion of such railways not so completed shall be released and forfeited to the supervisors of the county of N. Y.

Held, That this was a material departure from the requirements of the act; that the articles should have provided for the forfeiture and release to the supervisors of all the rights and franchises and that the provision contained in them

was an attempt to override the action of the legislature in refusing to make the amendment of 1882, Chap. 393, § 2, applicable to the city of N. Y., by incorporating the substance of the amendment in the articles of the association.

Also held, That as the only legislative enactment on the subject of forfeiture is the requirement of § 7 of the Rapid Transit Act, that requirement is positive and unequivocal and cannot be disregarded.

It was claimed that the requirement of the act of 1875, as to the forfeiture to the supervisors, is not applicable, because the board of supervisors of the county of New York was abolished prior to the passage of the Rapid Transit Act, viz.: in 1870. Laws of 1870, Chap.

190.

Held, Untenable, as by § 1 of said act the mayor and the recorder of the city of New York, together with the aldermen to be elected under the act to reorganize the local government of said city, Laws of 1870, Chap. 177, were declared on and after the first Monday of July, 1870, to compose the board of supervisors of the county of N. Y.

It is essential to the formation of a corporation under the Rapid Transit Act that the commissioners appointed by the mayor should decide upon some plan for the construction of the railways located by them. They must decide whether each contemplated road shall be an underground, or a surface, or an elevated road. To leave either of these questions undeter

mined and relegated to the discretion of the directors of the company to be formed would be a departure from the act and a failure to comply with one of the conditions precedent to the acquisition of corporate power. By the articles of association which embody the determination of the mayor's commissioners it is provided that the railways to be constructed by the company shall be laid upon the surface of the streets, except certain routes which it is provided may be constructed on elevated structures, with a double track, authority being given to add such other tracks as may from time to time be needed to accommodate increasing traffic, and to make such additions to the structures as may be needed for that purpose. It is also provided that the plan of constructing the elevated tracks shall be, at the election of the company, either with a row of columns on the line of each curb and a superstructure carrying one or more tracks upon transverse girders spanning the street, or with a row of columns upon a line with each curb and a single track over each row of columns, authority being granted to add to the structure when an additional track or tracks was needed. The power to erect stations and platforms was not restricted or defined, it being left to the company to decide where they are necessary, and to erect them over the cross streets, and to occupy so much of the sidewalks of the street for stairways and approaches "as may be necessary." The company was also authorized

*

to construct "such supports, turnouts, switches, sidings, connections, landing places, stations, buildings, * * and such other requisite appliances as shall be proper for the purpose of such railway, and as shall be necessary for the convenient use of the same."

Held, That the commissioners have undertaken to enable the petitioner to exercise powers far more expansive and unrestricted than those the Rapid Transit Act intended to confer; that a substantial compliance with the requirements of said act was essential to the petitioner's valid organization.

Order of General Term, denying motion of the petitioner, affirmed.

Opinion by Rapallo, J.; Ruger, Ch. J., Miller, Danforth and Finch, JJ., concur. Andrews, J., does not vote on 1st and 2d grounds but concurs on 3d, 4th and 5th grounds. Earl, J., dissents on 1st and 2d grounds, and concurs on 3d, 4th and 5th grounds.

LIMITATION.

N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT.

John Quackenbush, applt., v. Henry Quackenbush et al., respts.

Decided Nov,, 1886.

A. Q. died in 1866, leaving a will by which a legacy given was made a lien on all his real and personal estate. His sons were made executors. They did not qualify, but took possession of the real estate and converted to their own use the personal; this latter was sufficient to pay the debts

and legacies. No administrator was ever appointed. Plaintiff, assignee of the legatee, began this action to enforce a lien for the legacy in 1883. Held, That it was not barred by the statute of limitations.

This action was begun in Feb., 1883, to foreclose a lien, for a legacy, upon certain real estate. Adam Quackenbush died in March, 1866, and left a will in which he left to his widow her support and right to occupy part of the homestead and made it a lien on all his property real and personal. He then gave his daughter Betsey, plaintiff's assignor, a legacy of $200 payable one year after his decease. He then left a legacy to his son Sandford. Then followed this clause: "All the rest, residue and remainder of my estate not herein otherwise disposed of, and after the payment of my debts and legacies aforesaid, I give, devise and bequeath to my three sons, named John, Henry and Sandford, and to their heirs and assigns forever, share and share alike, after the payment of the legacies above mentioned, and which legacies I hereby make a lien on all my real and personal estate until paid and satisfied." The three sons were made executors. The widow died in nine months after her husband. The personal property was sufficient to pay the debts and legacies. None of the sons ever qualified and no administrator has ever been appointed. The legacy to Betsey is unpaid, and this action is brought for it. Plaintiff is assignee of Betsey and is one of the sons, but now has no interest in the land. The will was duly proved. The referee

statute of limitations.

H. Link, for applt.

Wendell & Van Deusen and B. A. Ransom, for respts.

Held, Error. The referee's decision seems to rest upon the idea that defendants by accepting the devise became personally liable to pay the legacy. This is not so. The legacy is made a lien on all the real and personal estate. It is not made payable by the devisees as a condition of the gift, nor is it in any way to proceed from the residuary estate. The primary fund for its payment was the personal property, and that portion of it necessary to pay the legacy was not devised to the residuary legatees. These legatees took this personal property and wrongfully converted it to their own use. Plaintiff's assignor might have had

should an administrator be appointed. Therefore he can foreclose his lien. This is an equitable remedy, and if (which we doubt) the statute has begun to run, it did not begin until the legal remedy, through administration, became unavailing-that is twelve years after the death of the testator and it continues ten years longer, Code, § 388, or, in this case, twenty-two years from his death. Hence, the action can be maintained.

Judgment reversed and new trial granted, costs to abide event, and referee discharged.

Opinion by Landon, J.; Bockes, J., concurs; Learned, P.J., dissents.

MASTER AND SERVANT. NEGLIGENCE.

could have recovered it. 2 R. S.,

m. p., 81, § 60; id., 449, § 17; 3 Barb. Ch., 477; 1 id., 195; 14 Barb., 376. But if an administrator were sought to be appointed now, the Code, § 392, would date his appointment within six years from the death of testator, and his action if now brought would be barred in six more years. Code, $$ 382, 3343, subd. 10. Plaintiff's assignor is in this position. His right of action against the administrator is not barred. The lien of the legacy exists as long as the right to enforce its payment. She can enforce that lien against the real estate when her remedy against the personal becomes unavailing. It has become unavailing

TERM. FOURTH DEPT.

Charles Coppins, respt., v. The N. Y. C. & H. R. RR. Co., applt.

Decided Jan., 1887.

It cannot be left to the jury to say what switches or patented contrivances shall be used by a railroad company in order to escape liability for injury to an employee caused by the negligence of a COemployee.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.

Action to recover for injuries sustained by plaintiff, who was in the employ of defendant as brakeman. The train on which he was employed was approaching St. Johnsville on the day of the accident

and was not expected to stop, but the engineer failed to look and discover by the signal given by the target that there was an open switch near the station and to apply his brakes and stop the train. The train passed the switch upon a direct cross-over, was derailed and plaintiff injured. The switch which was left open by S., the switchman, had been in use for the purpose of passing trains from one track to the other, and had served that purpose and safely carried trains across.

The court charged that plaintiff could not recover, as he was a coservant, if the negligence of the engineer and S. solely caused the injury, but left it to the jury to say whether the switch was a proper and suitable instrumeninstrumentality and whether it was not the duty of the company to have a different one; one that would serve the purpose of meeting all exigencies brought about by the negligence of said employees who were coservants.

William G. Tracy, for applt. Louis Marshall, for respt. Held, Error. Primarily, the negligence of the engineer, and proximately the negligence of S., the switchman, in leaving the switch open, carried the train off of track No. 2 and produced the derailment which injured plaintiff. If the stringent exactions of the rule which defendant is under in regard to passengers were applicable the theory of plaintiff might be proper. 19 N. Y., 127; 16 Barb., 353; 3 Kern., 9. But a different rule obtains when the in

jured party is an employee, who, by his contract, takes upon himself the risks caused by the negligence of his co-employees and the usual risks incident to the hazardous employment in which he engages.

The pivotal question upon this branch of the case turns upon the solution of the question as to whether defendant was negligent in not providing a safety switch, a trailing switch, or such a contrivance, in addition to the ordinary cross-over, as would guard against the exigency which came about by reason of the neglect of the engineer and S., the switchman. That question seems to be determined adverse to plaintiff by the case of Salters v. The D. & H. C. Co., 3 Hun, 338. It was said in that case that "a railroad company is not bound to employ mechanical appliances to prevent one servant from injury liable to result from the negligence of another." Apparently the court in the case before us went beyond the rules laid down in that and other adjudged cases in the charge as given and the refusals made.

Smith v. N. Y. & H. RR. Co., 19 N. Y., 133; Kirkpatrick v. RR. Co., 79 id., 240; 99 id., 368; Stringham v. Stewart, 100 id., 516; Probst v. Delamater, 100 id., 266; Ellis v. The N. Y. & E. RR. Co., 95 id., 546, distinguished. In most of these cases the machinery was defective.

Employers are not bound to insure against accidents; "in the case of employees they are only obliged to provide appliances