as tenants in common by husband and wife, where the consent was signed by the husband only, value $30,300. The consents were therefore void as to property of the value of $71,200.

[6-9] Other questioned consents I think were valid. If the consents are not entirely nugatory, as in the above cases, where they were not signed by the owners, their validity cannot be questioned by any other property owner. The question can be raised only by the owner of the property for which the consent was given or by the state-probably only by the state. There is no requirement that an agent must be authorized in writing to make the consent, and where the evidence is undisputed that the owner authorized the consent, especially where the owner comes on the witness stand and testifies that he or she authorized it, as was the case as to some of the questioned consents, the consent must be held sufficient. If the land is mortgaged, the mortgagee's interest is personal property, and he is not the owner. This is also the case if the mortgage is in form a conveyance, and the refeasance is not expressed in the deed, as was the case in block 228, lot 1. A trustee in whom the legal title is vested has, I think, the power to consent, as he is the owner. This is the case with block 1045, lots 13 and 18.

The Rapid Transit Law requires that, in addition to the municipal consent and the consent of the property owners, the permission and approval of the Public Service Commission must be obtained. This is a substitute for the certificate of convenience and necessity by the railroad commissioners formerly required. On March 19, 1913, the said Public Service Commission issued to the New York Municipal Railroad Company a certificate authorizing it to construct and operate the elevated railroad in question. The certificate provided that the authorization or license thereby granted, if the commission should so determine after due hearing, should be void unless, within one year from the time of the acceptance of the certificate by the Subway Company, the company should obtain and submit to the commission the property owners' consents or the determination of commissioners appointed by the Appellate Division, provided that the commission should have power to extend the time. Thereafter the time was extended to August 19, 1914. On July 29th consents of owners of property aggregating in value $5,927,600 were submitted to the Public Service Commission. Counting the city as consenting as an owner, it appears on the face of the consents that the owners of property of the value of $6,822,600 had consented. Of these I find that the consents to the extent of land valued at $71,200 were invalid; so that at that time property owners representing a valuation of $6,751,400 had consented. The total valuation of property along the route was $13,330,650. One-half thereof is $6,665,325. According to these figures, the requisite consents of the property owners had, by a narrow margin, been acquired, and the franchise vested in the defendants.

[10, 11] As the defendants have the franchise to build in the street, the structure is not a nuisance, and the plaintiff must fail in the action. Whatever right consenting property owners have to revoke their consents certainly terminate when the requirements of law are complete and the right to build and operate the road has vested in the defendants. It is then property, and cannot be thereafter destroyed by the change of mind of the consenting property owners.

[12] The terms of the certificate of the Public Service Commission do not limit the time within which the consents of property owners must be obtained. It reserves to the commission the power to revoke its authorization unless the property owners' consents are obtained within one year, or such further time as the commission may grant. The revocation must be by affirmative action of the commission after due hearing. In the absence of such acts, the authorization is not affected by the failure to obtain the consents within the requisite time, and even a revocation of the authorization does not invalidate the consents. I think, therefore, that subsequently acquired consents can be shown, and, as the case involves questions in which the people of the state are interested, no technicality of pleadings or practice should prevent a decision upon the facts actually existing. Whether the city as a party to the contract (Exhibit H), which is the origin of the defendants' right in the street, has such an interest in the subject-matter of the action as makes

it a necessary party has not been raised by the parties, and I do not consider it.

Judgment for defendants, with costs. Findings signed. Plaintiffs' requests passed on.

Argued before JENKS, P. J., and STAPLETON, MILLS, RICH, and PUTNAM, JJ.

Skinner & Bermant, of New York City, for appellant.
George D. Yeomans, of Brooklyn, for respondents.

PER CURIAM. Judgment affirmed, with costs, on the opinion of Mr. Justice Blackmar at Special Term for Trials.

WALLIS v. EAGLE SAVINGS & LOAN CO.

(Supreme Court, Appellate Division, Second Department. December 29, 1917.) 1. BANKS AND BANKING 293-SAVINGS BANK-SHARES OF STOCK-WITHDRAWAL.

A certificate of stock of a savings and loan association recited that the shares were fully paid and unassessable, that the holder was entitled to semiannual dividends at the rate of 6 per cent. per annum until 12 years after the date when the face value of the certificate should become payable, unless previously paid, and that by giving 60 days' notice in writing to the secretary the legal holders of the certificate might, at any time within one year from the date of the certificate, withdraw the par value, together with any accrued and unpaid dividends. The certificate further recited that it was issued by the authority of, and subject to, the provisions of the articles of association. The articles referring to withdrawals provided that at the end of 12 years the shares would be deemed to have matured, and the par value of the shares would become due and payable to the legal holders unless previously withdrawn. Held, that the provisions of the articles, which were followed by the provisions of the certificate as to withdrawals, referred to withdrawals before maturity, and not after maturity, and in case of nonpayment after maturity the holder was entitled to recover the amount due on his shares without giving 60 days' written notice.

2. BANKS AND BANKING

293-SHAREHOLDERS-RIGHTS OF.

In such case, as the certificates were declared issued by authority of and subject to the articles of association, they by their terms were subject to the provisions of the articles then in force, even though the articles differed from the provisions of the certificates as to withdrawals. 3. BANKS AND BANKING 293-ARTICLES OF ASSOCIATION-CHANGE.

In such case, as the certificates were issued in 1901, they are not affected by a change in the articles of association made pursuant to Banking Law (Consol. Laws, c. 2) § 233, as amended by Laws 1910, c. 126, both the amended articles and the statute expressly providing that contracts made prior to January 1, 1911, should not be affected or governed by the amendments.

4. BANKS AND BANKING 306(5)—CERTIFICATES-PAYMENT-BURDEN PROOF.

OF

In such case, where the certificates were not paid at maturity, the burden of proving that, under the limitations in the articles on payments to withdrawing members, the holder was not entitled to payment, is on the association, instead of the holder; the facts being peculiarly within its knowledge.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 168 N.Y.S.-33

5. BANKS AND BANKING

293-CERTIFICATES-PAYMENT EQUITY. In such case, as the holder of this class of certificates was in no event entitled to share in the excess profits of the association, it was not inequitable to require such certificates to be paid, even though it might prejudice the holders of other certificates who received the excess profits, if there were any; it being equitable that such holders should bear the loss, if any.

6. APPEAL AND ERROR 1175(1)-REVIEW-DETERMINATION.

Where the facts are undisputed, showing plaintiff entitled to relief, judgment for defendant should be reversed, and judgment rendered by the appellate court in plaintiff's favor.

7. BANKS AND BANKING 295-SAVINGS AND LOAN ASSOCIATIONS-SHARES. It is competent for a savings and loan association to issue shares.

8. BANKS AND BANKING 309-SAVINGS AND LOAN ASSOCIATIONS-LossesMEMBERSHIP.

As Banking Law, § 418, as added by Laws 1914, c. 369, declared that the new provisions could not impair the previous obligations of any sayings and loan association, the liability of such an association to its members already accrued cannot be reduced, pursuant to section 404, on account of the association's insolvency.

Appeal from Trial Term, Kings County.

Action by Agnes C. Wallis against the Eagle Savings & Loan Company. From a judgment dismissing the complaint upon the merits, plaintiff appeals. Reversed and rendered.

See, also, 174 App. Div. 581, 161 N. Y. Supp. 326; 176 App. Div. 883, 161 N. Y. Supp. 1135; 163 N. Y. Supp. 470.

Argued before THOMAS, STAPLETON, MILLS, RICH, and PUTNAM, JJ.

Francis Stockton McDivitt, of New York City (George J. S. Dowling, of Brooklyn, on the brief), for appellant.

Almet Reed Latson, of New York City, for respondent.

MILLS, J. This is another of the numerous actions against the Eagle Savings & Loan Company which have come before us upon various appeals during the past three years. It is, however, different from any of the others, in that the shares involved are of the paid-up class C, while in Miller v. Eagle Savings & Loan Co., 174 App. Div. 581, 161 N. Y. Supp. 326, and other previous cases those involved were of other classes, or all, as I recall it, of class A. The main difference between the two classes is that in class C the member at his subscription pays at once to the company the full principal of $100 upon each share and is entitled to receive income out of the profits of the company only as interest, not exceeding the lawful rate of 6 per cent., and in the end-that is, after the specified period (in this case 12 years) repayment of his principal, whereas in class À the member pays in the principal in installments in the way of dues and by having his share of the profits, unlimited save by the earnings of the company, credited as partial payments of principal. This case also is free from any element of actual or constructive fraud, such as has existed or been claimed in each of the other prior cases.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The material facts in this case are the following: From January 8 to May 1, 1901, the plaintiff subscribed to 13 shares of class C, paying at the time to the defendant the full principal of $100 upon each share, and received from it the usual certificates, one for 10 shares and three for 1 share each, each being in the same form, which for the larger number is the following:

"This certifies that Agnes C. Wallis has paid the sum of one thousand dol lars, for ten fully paid and unassessable preferred shares, class C, of the capital stock of the Eagle Savings & Loan Company. In consideration of such payment the legal holder will be paid, by mailed check, a semiannual cash dividend of thirty dollars on the 8th days of July and January of each year, for the period of twelve years from the date of this certificate, when its face value shall become payable unless previously paid. By giving sixty days' notice in writing to the secretary the legal holder hereof may, at any time after one year from the date of this certificate, withdraw the one thousand dollars paid hereon, together with any accrued and unpaid dividends. This certificate is issued by authority of and subject to the provisions of the articles of association of the corporation and the regulations adopted thereunder."

The defendant paid to the plaintiff upon her shares semiannual dividends as follows: Up to January 1, 1912, at the rate of 6 per cent., and at the rate of 5 per cent. from January 1, 1912, to July 1, 1914, nothing on January 1, 1915, and on July 1, 1915, 211⁄2 per cent. The action was commenced on December 16, 1916. Evidently those dividends were declared from the profits of defendant, and so in certain. semiannual periods were less than 6 per cent., and in one at least nothing. The 12-year period of maturity provided for in the certificates expired with the 21st of May, 1913, as the date of the last of the certificates was May 21, 1901.

On or about May 15, 1915, the plaintiff served upon defendant a written notice, which is in evidence as Defendant's Exhibit F, demanding payment of the principal, $1,300, of her shares, together with any unpaid dividends accruing thereon. Apparently no dividend has been declared by the defendant since July 1, 1915.

Defendant's articles of association, in force when plaintiff's shares were thus issued, are in evidence as Defendant's Exhibit A. Shortly after the act restricting the business of such corporations, viz. chapter 126 of the Laws of 1910, went into effect on January 1, 1911 (referred to in our opinion in the Miller Case, 174 App. Div. at 585, 161 N. Y. Supp. 326), the defendant amended its articles. The same, as so amended, are in evidence as Defendant's Exhibit H.

The main controversy between the parties is whether or not the plaintiff, as such shareholder and member, upon her said shares is subject to the provisions of the said articles, original or amended, as to withdrawal of shares. As to that point the contentions of the appellant are: (a) That the provisions in the original articles (Defendant's Exhibit A), as to manner of payment upon withdrawals, are by their terms not applicable to the payment of matured shares, but only to the withdrawal of shares before full maturity; (b) that, if those provisions are to be construed to apply to payments upon maturity, they should be regarded as inconsistent with the contract made by plaintiff's certificates and so ineffective as to plaintiff's shares within the doctrine

of Tautphoeus v. H. & S. B. & S. Ass'n, 185 N. Y. 308, 78 N. E. 69; and (c) that plaintiff, as to her such shares, is not bound by the change made by the amended articles (Defendant's Exhibit H), which in express terms make the provisions as to manner of payment apply to payments after maturity as well as to those before. The respondent opposes each of these contentions and asserts the contrary.

[1] As to the first of these contentions, namely, that those provisions of the original articles are by their terms not applicable to the payment of matured shares, but only to withdrawals before full maturity, I think that the appellant, the plaintiff, is clearly in the right. It seems to me plain that the original articles limited the term "withdrawal," or its equivalent, to the taking out of the present value of shares before their maturity, and also that that is the fair reading of the face of plaintiff's certificates. As to those articles the term "withdrawals" is used in articles 24, 25, 26, 31, 32, and 33, and in each it appears to be used in the restricted sense. In those articles the term "payment," or its equivalent, is used for the payment of the shares after maturity. Thus in article 26, headed "Classes B and C," the provision is:

"When [at the end of 12 years] the same [being the shares] will be deemed to have matured, and the par value of the shares will become due and payable to the legal holders thereof unless previously withdrawn.”

Thus there, as to payment after maturity, the expression used is "due and payable," and as to payment before the expression used is "unless previously withdrawn."

My conclusion, therefore, is that, by the terms of the original articles in force when plaintiff's certificates were issued, the provisions of articles 31 and 32 thereof, which as to class C stock require 60 days' notice of withdrawal, and limit payment of withdrawals to "one-half of the monthly dues received in any one month," are not applicable to the payment of such shares after maturity. It may be added that the defendant's officers appear to have recognized, at least in the end, this distinction, as in drafting their amended articles under the act of 1910 they made the corresponding provisions therein by express terms apply to payments after maturity, as well as those before, by adding the words "and matured shares" to the words "payment of withdrawals." The face of plaintiff's certificates also limits withdrawals to payments before maturity by, after providing for the payment upon maturity, declaring:

"By giving sixty days' notice in writing to the secretary the legal holder hereof may, at any time after one year from the date of this certificate, withdraw the one hundred dollars paid hereon, together with any accrued and unpaid dividends."

The counsel for the respondent in opposition to this view cites and relies upon Molyneaux v. Co-operative Building Bank (3d Dept.) 169 App. Div. 731, 155 N. Y. Supp. 663, and Vought v. Eastern Building & Loan Association, 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. 761, as authority that the term "withdrawal" should in those articles be construed as applying to payments after maturity as well as to those