case the proposed railroad should be built, which, from the nature of the charter of the applicants in this proceeding, is a very serious objection. It is true that the capital of this corporation is now $2,000,000, which itself seems to be rather a small amount for the undertaking of an enterprise which, it is conceded, will cost from $30,000,000 to $35,000,000. But there is no certainty that capital to this amount will ever be paid in, because under the act of incorporation of this corporation, the amount of the capital stock may be diminished by the board of directors with the consent, in writing, of the stockholders holding a majority of the stock then issued and outstanding at any time. Hence, the security of these $2,000,000 of capital does not seem at all certain. And, further, under section 9 of the act, it would seem that the directors might issue these two millions of stock upon the receipt of less than the par value thereof, because it is provided that the directors may issue stock at such time, and in such manner, and upon such terms, as they shall deem proper; the only limitation being that at least 10 per cent. of the par value of the stock at the time of the first subscription thereto shall be paid into the treasury of the corporation in cash. If the views expressed are well founded, it would seem to follow that it is the duty of the court to deny the present application, on the ground that the statute affords no adequate assurance of sufficient capital to enable the applicant to build the elevated railway and bridge, or to respond to the adjoining owners for the damages which would necessarily result from such building. But even this peculiar character of the organization which is seeking to exercise these extraordinary privileges does not seem to be the strongest objection against the granting of the privileges asked for. It is proposed, under the guise of an approach to a bridge crossing the East river, to build an elevated railroad completely across the city, entirely absorbing one of its streets, from the Bowery to West street, and then going down West street to Desbrosses street, and there spread out and use West street for the purposes of a terminal station, in connection with the ferry of the Pennsylvania Railroad.

It has been urged by the opponents of this application that it is impolitic for the city of New York to afford facilities to get beyond the boundaries of the city. We do not think, however, that this position is well taken, because, by providing means whereby clerks and other persons employed in the city of New York may reach, within reasonable time, places where they can procure homes more cheaply than could be done within the city limits, provision is thereby made for the more economical transaction of business in the city of New York; and, by thus affording an opportunity to persons so employed within the city of New York to procure cheap and comfortable homes within a reasonable distance, the business interests of the city are advanced, and the morals of those employed improved. It seems to us, therefore, that there is nothing in this objection.

There is another point which ought to cause the court to hesitate before granting the power sought by these applicants, and that is

that there does not seem to have been any substantial progress made towards the construction of the bridge to which this elevated railroad is claimed to be an approach; and as this railroad may be finished within a short period of time compared to that which would be required for the construction of the bridge, and as the court, its consent once given, cannot impose conditions, the whole enterprise might stop with the building of this elevated cross-town railroad, to the great detriment of the city of New York at large, and with none of the advantages which are claimed to justify the court in granting such consent. And it seems to us that a crosstown road connecting merely the ferries from New Jersey with those of Brooklyn would not be of sufficient value to this municipality to justify the blockading of its streets, the interfering with its present and future means of transportation, and the injury which would necessarily result to the owners of adjoining property. There is a further objection to the granting of the application at this time, which we deem important. It is a matter of common knowledge that a commission acting in pursuance of authority are, and for some time have been, engaged in an effort to solve the problem of rapid transit. The question submitted to them in the hope that a successful scheme of rapid transit would result is one of the greatest importance to this municipality. The benefits, if any, which would result to it from the building of a cross-town road such as is now proposed, would be incomparably less than the other, and for that reason the right of the applicant to take the public streets should not be granted, at least until the present attempt to obtain a rapid transit system lengthwise of the island, other than underground, shall be substantially abandoned, because the building of this road, or even the granting of the right to occupy the streets, might prove of serious embarrassment to the plans which may ultimately be formed. In short, the objections to the court, at the present time, giving its consent to the acquisition by the applicants of the privileges sought, are so numerous, and seem to us so obvious and so grave, that it is our plain duty to refuse to confirm the report of the commissioners.

PARKER, J., concurs.

FOLLETT, J., (dissenting.) I am unable to concur in the result reached by the majority of the court. One of the principal grounds upon which the report of the commissioners is rejected is that the corporation "has not sufficient means or capital to complete the enterprise." The second section of chapter 101 of the Laws of 1892 (the statute under which the corporation is organized) fixed its capital stock at $25,000,000, divided into shares of $100 each; and it provides that the capital may at any time be increased or diminished by the board of directors, with the consent, in writing, of stockholders holding a majority of the shares then outstanding. Before these proceedings were begun, the capital stock was reduced to $2,000,000, all of which has been subscribed for at par, and 10 per cent. thereof paid in cash to the treasurer of the corpora

tion. The estimated cost of the bridges and roads proposed to be constructed is from twenty-five to thirty million dollars. It has not been the policy of this state to require corporations engaged in the construction of internal improvements to procure sufficient capital to be subscribed to complete the work, and as a condition precedent to the right to commence the work, or to acquire, by the exercise of the right of eminent domain, lands necessary for the enterprise. Corporations for the construction of steam roads may be originated on a capital stock equal to $10,000 per mile for each mile proposed to be constructed, of which 10 per cent. in cash must be paid in. Laws 1890, c. 565, § 2. Under this act, when $1,000 per mile has been paid in, representing a subscription of $10,000 per mile, construction may be begun, and the right of eminent domain exercised. Ten thousand dollars per mile is a very small part of the sum necessary to be expended to construct and equip a modern railway. I doubt if the history of internal improvements in this country shows a single instance in which all, or a considerable part, of the capital required to construct a railroad of any great length, or important canal, or a bridge for railways over any of our great rivers, has been subscribed before the corporation entered upon the work of construction. When the work of construction has progressed, and the enterprise is shown to be feasible, capital is attracted, and invested in the form of stock or bonds. It seems unreasonable to require that sufficient capital should be subscribed to complete an undertaking requiring the expenditure of twentyfive or more millions of dollars before the right to undertake its construction has been acquired. Sufficient should be subscribed to show that the application is made in good faith, and that there is reasonable probability that capital will be secured to complete the undertaking. It is said that sufficient capital has not been subscribed to pay the damages which will be occasioned to the owners of lands upon the route. A sufficient answer to this is found in the constitution, which provides: "Nor shall private property be taken for public use without just compensation." The corporation could not take any private property without first making just compensation to its owner. I concur in the proposition "that a cross-town [elevated] road, connecting merely the ferries from New Jersey with those from Brooklyn, would not be of sufficient value to this municipality to justify the blockading of its streets, the interfering with its present and future means of transportation, and the injury which would necessarily result to the owners of adjoining property;" and it seems to me apparent that the earnings of such a line would be so insignificant that its construction would not be entered upon by capitalists without it connected with a bridge or bridges crossing the East river, and that the danger that the road may, and the bridges may not, be constructed, is quite remote. I fail to find any evidence in the record showing that the construction of the lines proposed would interfere with the operation of any one of the elevated roads now constructed, or of such as may hereafter be constructed, if such rights and possibilities are to be taken into account.

This proceeding is taken under the following provision of section 4 of chapter 4 of the Laws of 1891, which is substantially a copy of section 18 of article 3 of the constitution of this state:

"Provided that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of that portion of a street or highway upon which it is proposed to construct or operate such railway or railways be first obtained, or in case the consent of such property owners cannot be obtained, that the determination of three commissioners appointed by the general term of the supreme court in the district of the proposed construction, given after the hearing of all parties interested, and confirmed by the court, that such railway or railways ought to be constructed or operated, be taken in lieu of the consent of such property owners."

Is the right which is vested in the property owners to refuse assent to the construction of a road simply for the protection of their own private interests, or is it for the purpose of protecting public interests as well? It will be observed that, in case the consent of one-half of the property owners cannot be obtained, the approval of three commissioners, confirmed by the general term, may be taken in lieu of their consent. Whether property owners may raise, and this court consider, objections of purely a public nature, or such as may affect the rights of existing street or elevated railroad corporations, or of such corporations yet to be organized, which in no way affect the private rights of the contesting property owners, cannot be profitably considered in a dissenting opinion, and especially in view of the fact that the question has not been discussed. I find no evidence which shows that the construction of this road will more seriously affect the rights of owners of property on its line than the construction of existing elevated railroads has affected such rights on many of the streets in this city, or that it will more seriously affect the rights of such owners than will the construction of elevated railroads in the future, if any are to be constructed. It seems to me that this judgment is a dangerous precedent, and substantially denies the right to construct new elevated roads.

Upon the question whether the proposed bridge and railway will be a great public benefit, I rely upon (1) the approval of the common council of this city; (2) the approval of the war department of the United States; (3) the unanimous approval of a strong commission appointed by this court, which has not contented itself with giving a perfunctory report, but has supported its decision by cogent reasons. Gentlemen of distinction, who have given great attention to the question of rapid transit, testified before the commission, among them the mayor of the city of Brooklyn and Ex-Mayor Hewitt, of this city. Mr. Hewitt testified:

"I think an elevated railway crossing the island in the general neighborhood specified there, and connected with the various existing lines of transportation, would be a very great advantage to the city of New York and to Its inhabitants. I think a connection between the ferries and the existing lines of transportation-the elevated lines-would be very advantageous to the city. Q. By such a railway as is proposed? A. By such a railway as you have sketched on that map. Q. An elevated railway? A. Yes; I think

it would be still more advantageous if it connected with all of the ferries below Desbrosses street. I think the defect of it is that it does not go far enough."

Other witnesses testified to the same effect; and it seems to me that the evidence sustains and justifies the conclusion reached by the learned commissioners, and that their report should be confirmed.

(6 Misc. Rep. 174.)

SCOTT v. SCOTT et al.

(Supreme Court, Special Term, Erie County. December, 1893.)

WILLS RIGHT OF LIFE BENEFICIARY TO POSSESSION.

Where the use of property is bequeathed to a person for life, with remainder over, the life beneficiary will be allowed to take possession on giving security for the protection of the remainder-men.

Action by David Scott against Mary Scott and others for a construction of the will of Eliza Jane Mackey, deceased.

John E. & Cuthbert W. Pound, for plaintiff.

John T. Murray, for defendant Mackey.

W. H. Ransom, guardian ad litem, for infant defendants.

WARD, J: This is an action brought by the plaintiff, as the executor of the last will and testament of Eliza Jane Mackey, deceased, for the construction of the will of the deceased. She died on the 13th day of May, 1890, and her will was admitted to probate by the surrogate of Niagara county on the 20th of May, 1890, and letters testamentary were duly issued to the plaintiff, David Scott, as her executor. The will was in fact made the 2d day of September, 1885. The will was as follows:

"First. I give and bequeath to my executor hereinafter named the sum of $100, with the interest or income of which to take suitable care of, and keep in good repair and condition, the cemetery lot in the Chestnut Ridge Cemetery, in the said county of Niagara, where my late husband is buried. Second. I give, bequeath, and devise to my daughter Mary Scott, wife of David Scott, the use of one-third part of all my property and estate for and during her natural life, and subject to such use I give and devise said one-third part to her daughter, Luella Scott, forever. Third, I give, bequeath, and devise to my daughter Eliza Jane Dumville, wife of Joseph Dumville, the use of onethird part of all my property and estate for and during her natural life, and subject to such use I give and devise the said one-third part to her children forever. Fourth. I give, bequeath, and devise to my son, William K. Mackey, the use of the remaining one-third part of all my property and estate for and during his natural life, and subject to such use I give and devise the said remaining one-third part to his child or children forever; but, should my said son die without any child or children him surviving, then it is my will that said remaining one-third part shall go to my said daughters and their children, or the survivor or survivors of them, to have and to hold the same as hereinbefore bequeathed and devised in the second and third clauses of this will. Whatever my son may be owing me at the time of my decease is to be treated in the settlement of my estate as an advancement to him. Lastly, I make, execute, and appoint my son-in-law David Scott, of the said city of Lockport, to be executor of this my last will and testament, hereby revoking all former wills by me made."

The testatrix left no real estate, but left personal property, consisting of bonds and mortgages, notes, a small amount of household