Beal agt. N. Y. C. and H. R. R. Co.

It seems to me the counsel for the plaintiff at the argument of our case, did not appreciate the ground upon which judge HAIGHT came to his conclusion in that case. His position was, not that the lands were originally appropriated for fifty years and no more, and yet the legislature might, without the consent of the owner of the lands, extend this fifty years to five hundred years; such a position would hardly be tenable. He says: "The corporation was at first created for the term of fifty years. The legislature, however, reserved to itself by section 30 the right at any time to alter, modify or repeal the act; it had thus the power to shorten or extend the time that the corporation should exist. The legislature has seen fit to extend its corporate term for the period of 500 years; if, therefore, the lands were taken under this act for the life-time of the corporation, subject to the power of the legislature to shorten, discontinue or extend such corporate life, then I fail to see how the plaintiff can recover. In determining this question the act must be determined by reading the various sections in connection with each other. Section 1 creates the corporation for fifty years, but by section 30 the time may be lengthened, shortened or the corporation at any time discontinued; so that it is the same as if section 1 read that the corporation, and for the term of fifty years from the passage of this act, or such other time as the legislature shall provide, shall continue to be a body corporate and politic. Section 16, in giving authority to acquire and appropriate lands, provides that it may do so for the purposes contemplated by the act; and section 22, in providing that the railroad company may take possession of the land after the payment of the damages as appraised, provides that it shall be entitled to the use of the said lands for the purposes aforesaid."

If I may be permitted to add to this argument in the same direction judge HAIGHT has taken, I should say: The sections providing for the acquisition of lands did not provide such use should be for fifty years and no more; time was not designated at all in these sections, but only the purpose, that of maintain

Beal agt. N. Y. C. and H. R. R. Co.

ing a railroad. It is claimed to be inferred such acquisition was only fifty years because the life of the corporation was only fifty years. The act, however, reserved to the legislature the right to, and it might extend the life of the corporation in carrying out the purpose of maintaining a railroad. When, therefore, the lands were acquired and damages appraised and paid to the owners, all parties knew and understood the acquisition of the lands under the charter was for no certain, definite time but was for a purpose, a public use, and the time the user of the lands should continue for such purpose was discretionary with, and might be determined by the legislature. In this view of the matter, no rights of the property owners would be interfered with or invaded by the legislature, and at the same time a very satisfactory principle would be maintained that where property has been taken for public use, so long as that public use is continued with the concurrence of the legislature, the land should not revert to the original owner.

This decision of judge HAIGHT is authority for the proposition urged by defendant here, that assuming the plaintiff never to have been deprived of the fee in the premises in suit and still to be such owner, yet such ownership is subject to public use by defendants for railroad purposes which use has not ceased or determined, and therefore she is not entitled to the possession of the property and cannot maintain this action.

In the 60th and 68th New York the reason why the lands were held to have reverted to the original owners, was not that the existence of the corporate life had terminated, but the lands had ceased to be used for the purpose of maintaining a railroad, had been abandoned for such purposes.

My conclusion is that the plaintiff cannot maintain this action, and the defendant is entitled to judgment dismissing her complaint, with costs.

Formal findings may be argreed upon between parties in accordance with the suggestions in this opinion, and presentei for signature. If not agreed upon I will settle same.

McElroy agt. Baer.

NEW YORK COMMON PLEAS

DANIEL S. MCELROY, plaintiff and respondent, agt. MORRIS B. BAER and MORRIS B. BRONNER, substituted defendants and appellants, in place of J. Morgan Howe, original defendant and respondent.

District court

- Practice as to interpleader — Code of Procedure, section 122. Code of Civil Procedure, section 2876.

The statutory interpleader, which is not in the nature of a suit in equity, but a remedy designed for use in common law courts, is a measure of relief to which suitors in a district court in the city of New York may resort.

In the district courts, after the order of interpleader is made, a copy of the order and a copy of the complaint, drawn in conformity with the suggestion made in Moak's Van Santvord's Pleadings, should be served upon the party brought in by the interpleader. The order should require him to appear and answer the complaint in the same time that a defendant is required to answer a summons, and should provide that the money in court shall be paid to the plaintiff in case of the failure to appear and answer of the party interpleaded.

If the party appear and answer, the issue raised may be tried by the court, unless a jury be demanded at the time of the joinder of issue. Upon the entry of judgment the money must be paid to the prevailing party, unless an undertaking sufficient to stay proceedings be given, and costs should be awarded against the losing party.

General Term, March, 1886.

Before VAN HOESEN and ALLEN, JJ.

THIS was an appeal from the sixth district court. The action was brought originally against J. Morgan Howe, to recover for broker's commission on the sale of a house and lot in this city. Morris B. Baer and Morris B. Bronner, composing the real estate firm of Morris B. Baer & Co., had also claimed the same commission. Howe obtained an order to showe cause why they should not be substituted as defendants in his place. The motion was opposed both by plaintiff and Baer and Bronner,

into court.

McElroy agt. Baer.

and was granted, upon which Howe paid the fund in dispute After the interpleader thus made, Baer and Bronner failed to answer, the plaintiff took judgment by default, and the deposit was paid to him. Baer and Bronner then appealed. The point raised was the invalidity of the interpleader.

Frederick R. Lee, for plaintiff and respondent.

W. T. Birdsall, for substituted defendants and appellants, cited 26 N. Y., 418; sec. 2876 Code of Civil Procedure; 13 Hun, 157; 15 Barb., 47; 6 Wend., 654.

John C. Gulick, for original defendant and respondent, cited Rauch agt. Dreyer (3 Daly 434); Beer agt. Benner (11 Daly, 229); sec. 2876 Code of Civil Procedure.

PER CURIAM.It is settled by the decisions of this court, in Rauch agt. Dreyer (3 Daly, 434), and Beer agt. Benner (11 Daly, 229), that the statutory interpleader, which is not in the nature of a suit in equity, but a remedy designed for use in common law courts (see the English statute, entitled 1 and 2 Wm. IV., chap. 58; 23 and 24 Vict., chap. 126), is a measure of relief to which suitors in a district court in the city of New York may resort. It is to be regretted that when the framer of section 122 of the old Code of Procedure borrowed from the English statutes that we have mentioned the idea of permitting a defendant in an action at law to obtain in a summary way in that action the same relief that he might obtain by filing a bill of interpleader in a court of equity, he did not at the same time borrow the procedure which those statutes created.

The consequence of borrowing only the relief and of omitting to provide a way by which that relief can be attained, has been to throw upon the courts of this state the necessity of framing for themselves a system of practice that will make the statutory interpleader effectual. One of the first efforts in that direction was made in the case of Van Buskirk agt. Roy (8 How.

McElroy agt. Baer.

Pr., 425), in which the court directed that the order should provide that if the party interpleaded did not appear and defend the action within twenty days after the service upon her of a copy of the complaint, together with a copy of the order of interpleader, the money in court should be paid to the plaintiff. The Code nowhere provided for these proceedings, but they were adopted because in no other way could effect be given to the intent of the legislature in creating the remedy of an interpleader in a common law action. Perhaps the action of the court might be called judicial legislation.

Again, in Lawrence agt Wilson (8 Hun, 593), the court said: "As the Code prescribes no mode of proceeding under this section, the practice under it should be, I think, as far as practicable, that adopted by the courts of equity in cases of interpleader in analogous cases." The court then recommends that the practice be such as is suggested by Moak's Van Santvoord's Pleadings, 358.

We see the wisdom of the course recommended by the court in the case last cited, and are of the opinion that in the district courts, after the order of interpleader is made, a copy of the order and a copy of the complaint, drawn in conformity with the suggestion made in Moak's Van Santvoord's Pleadings, should be served upon the party brought in by the interpleader. The order should require him to appear and answer the complaint in the same time that a defendant is required to answer a summons, and should provide that the money in court shall be paid to the plaintiff in case of the failure to appear and answer of the party who is interpleaded. If the party appear and answer the issue raised may be tried by the court, unless a jury be demanded at the time of the joinder of issue. Upon the entry of judgment the money must be paid to the prevailing party, unless an undertaking sufficient to stay proceedings be given, and costs should be awarded against the losing party. It may be that Baer and Bronner intentionally abandoned the case when the district court decided that they should be brought in by interpleader, but we are not able to say that such was their