time of the passage of the act, were not opened, graded, and paved, and by capitals the streets which yet remain, either wholly or in part, unopened, ungraded, and unpaved. "Section 1. It shall be lawful for the Broadway Railroad Company of Brooklyn, organized by virtue of the act hereby amended, (1) to lay down a single line of railroad track, commencing at their present track, at South Sixth street, through Eighth street, to and across Broadway, to Ross street, and double lines of railroad tracks through said Ross street and Bedford avenue to Fulton avenue, and, whenever Nostrand or ROGERS avenue shall have been legally opened, graded, and paved, to extend the line of double tracks through Fulton and either Nostrand or ROGERS avenues, to the village of Flatbush; (2) also, to lay a single line of railroad track, commencing at their present track, on South Sixth street, through Eleventh street to South Fifth street, through South Fifth street to Montrose avenue, through said avenue to Morrell street, through Morrell to Johnson street, through Johnson street to intersect the track of said company on Broadway, and a double line of tracks from Morrell street, through Johnson, to its intersection with the CYPRESS HILLS PLANK-ROAD, and through and over said plank-road to CYPRESS avenue, and, whenever CYPRESS avenue shall have been legally opened and graded, to extend a double or single track on said avenue to Cypress Hills Cemetery; (3) also, whenever WHITE, BOGART, or THAMES streets, and CENTRAL or KNICKERBOCKER avenue, shall have been legally opened and graded, the said company are authorized to lay a double or single line of railroad track through and over the same to the city line, from the intersection of either WHITE OF BOGART street with the CYPRESS HILLS PLANK-ROAD and the track herein before authorized to be laid on said plank-road, with the privilege to lay tracks for the necessary turn-outs, which tracks, when laid, shall be maintained and operated by said company in conformity to the several provisions of the act hereby amended relative thereto." "Sec. 3. Said railroad company shall complete the tracks upon the said several streets and avenues or roads named in the first section of this act on or before the first day of October, eighteen hundred and sixty-one, or as soon thereafter as the said streets and avenues within said city shall have been opened, graded, and paved, and upon any plank road or roads, whenever the consent of the plank-road companies shall have been obtained."

Upon the first, or Flatbush, branch, the defendant has never attempted to construct any railroad. It is about two and one-tenth miles long. Bedford avenue forms about one-half of this branch. The trial court found that the defendant might have constructed that portion of this branch between its main line and Fulton street, and Bedford avenue, by October 1, 1861, the streets for that distance being opened, graded, and paved. From Fulton street to Flatbush, the streets were unopened, and that portion of the branch was still farming lands. By chapter 905, Laws 1867, the construction of any railroad on Bedford avenue was absolutely prohibited, and the court found that thereby it became and now is impossible for the defendant to build the line from Broadway to Flatbush. Before the act of 1867 took effect, Nostrand avenue was unopened, unpaved, and ungraded for a distance of half a mile, and Rogers avenue wholly unopened. These avenues are nearly parallel, and the defendant had the option to take either of them from Fulton street to Flatbush. Upon the second, or Cypress Hills Cemetery, branch, the defendant did, before October 1, 1861, construct so much of the road as extended from Broadway up through Eleventh, South Fifth, and Montrose streets, to and through Morrell street, and thence down Johnson to Broadway; these streets being, on those portions occupied by the tracks, opened, graded, and paved. This formed a loop, or the prongs of a fork, touching the main line at different points, the handle of which was to extend whenever the Cypress Hill Plank-Road and Cypress avenue should be opened to the Cypress Hills Cemetery. The prongs of the fork, and their connection through Morrell street,

were about a mile long. The extension from Morrell street to the cemetery was about three miles long, and through farming lands. The court found that it was then impossible to build the extension because Johnson avenue, then Cypress Hill Plank-Road, was not then opened, graded, or paved beyond Bushwick avenue, and no part of Cypress avenue was opened, graded, or paved. The defendant operated the loop until 1876, when it took up the tracks, and has not since relaid them. The court found that it took up the loop because it did not pay to operate it, and because it saw no prospect of the streets forming the extension to the cemetery being opened so as to permit it to lay the extension. It also found that defendant has not since rebuilt it because the streets forming the extension still remain in great part unopened, ungraded, and unpaved. Respecting the third branch, none of the streets composing it were opened when the act of 1860 was passed. Some of them are yet wholly unopened. Central avenue forms a greater part of it. This avenue is now opened, graded, and paved in part. The court found that in January, 1887, the defendant commenced in good faith the construction of its road on Central avenue. It spent, in so doing, $12,400, and had laid 3,367 feet of track in that street, when it was stopped by adverse litigation, by which it has since been, without laches upon its part, prevented continuing and completing said route. The court held and decided that it was the duty of the defendant to construct the railroad by October 1, 1861, upon each branch, upon such of the streets as were opened, graded, and paved when the act was passed, and upon the remaining streets as fast as they should, respectively, be opened, graded, and paved; that, because it was in default in these several respects, it had forfeited all the privileges and franchises conferred by the act of 1860, and judgment of forfeiture was directed, also perpetually enjoining the defendant from the use or exercise of any of them.

The theory upon which the judgment is founded is that, so far as the route through the several branches was upon streets which were opened, graded, and paved when the act of 1860 took effect, the act was a grant in præsenti, and the duty was enjoined upon the defendant to complete such portions by October 1, 1861; and that, so far as the route was upon streets thereafter to be opened, graded, and paved, the act was a grant in futuro, and completion was postponed, as to each street, until it should be opened, graded, and paved; and that defendant was in default, as to any street so opened, graded, and paved, upon which the railroad was not complete upon the completion of the pavement, irrespective of the fact that it could not complete the whole line. It will be seen that at no time since the act was passed has any one of the three branches been completely opened, graded, and paved throughout its entire length. We think the judgment must be reversed.

It seems to us that the act of 1860 was the grant in præsenti to the defendant of all the privileges and franchises mentioned in it. The defendant accepted it, and upon that acceptance became fully vested, in præsenti, of all it conferred. Time was not annexed to the vesting of the grant, nor was it annexed to possession and enjoyment of the franchise granted. Immediate possession and enjoyment of the entire privileges and franchises were permitted, so far as the state could confer them. But, as some of the streets had not yet been legally opened, the state could not, as against private owners of the farm lands, through which they were delineated on the map, confer present title to them. But, had the defendant bought such private lands, its franchise to lay its railroad thereon was complete. The right to postpone the construction of its road until such streets should be opened, graded, and paved was a privilege granted to the defendant in addition to its franchise, and not a burden annexed to it,-much less a postponement of the vesting of the franchise itself. The defendant was not forbidden to enter upon such streets. It was privileged not to enter. The important question is, did this privilege extend, as to each branch, the time of its completion until the streets of the whole branch should

be opened, graded, and paved? We think it did. The trial court found that the object of the act was to enable the defendant to construct three branches from its main line to three separate points. Nothing is said in the act of 1860 respecting the time in which to begin the construction of any one branch. Only the time for its completion is specified. Manifestly, the completion of the branch, not of its separate fragments, is provided for. The third section, above quoted, contains the privilege of postponement of completion. It is not there said that one part shall be completed earlier than another. It is not declared that anything less than the whole shall be completed before the alternative appointment of time. It is urged that the intention of the legislature must be regarded. True. But, to do that, we must go back to the standpoint of 1860. It it probable that in 1860 it was not foreseen that the tide of population would avoid for so many years the streets and avenues designated as the route of these branches. It probably was expected that it would move thitherward, and give the impulse of self-interest to the speedy completion of these branches. But it was not known, and hence it is probable the alternative provision of time, dependent upon the opening, grading, and paving of the streets, was inserted with the just purpose of not insisting upon the completion of these branches before there should be passengers to use them. It is urged that the construction, in 1861, of the loop upon the paved streets of the second branch, was a practical admission by the defendant of its duty to complete that portion that year. The defendant had the privilege to build the loop that year, and doubtless did so in the expectation that it could speedily construct the remainder. It made a mistake as to the future, but it lost no privilege by its error in hopefulness or prophecy. If each branch is to be separated into fragments, and each fragment be separately considered, then it ought to follow that the franchise is forfeited by non-user only of such fragments of the route as have been opened, graded, and paved, and remains in full vigor as to such other fragments as yet remain to be opened, graded, and paved. It seems like an absurdity to suggest that, for the purposes of condemnation, all of the branches, or all of any one branch, is to be considered as an indivisible entirety, the default in the least portion of which is the forfeiture of all, and yet to hold that the completion of the entirety within the time allowed for such completion is not a timely completion of the parts composing the entirety. As the act of 1860 provides that "it shall be lawful" for the defendant to lay the tracks, and also extends the time for completion until the streets are opened, graded, and paved, it seems to be a natural construction that "it shall be lawful" until the time shall have expired. For aught that appears in the act or the case, the parts of any branch are valueless except as parts of a completed whole. It is urged that, because it appears from the act that some streets forming portions of the first and second branches were ready for enjoyment, and the date of October 1, 1861, is first assigned to "complete the tracks upon the said several streets and avenues or roads named in the first section of this act," that such date must be construed as referring to the railroad upon the streets already opened, graded, and paved, and that the alternative future date has reference only to the streets not then opened, graded, and paved. But it is seen that all the streets, avenues, and roads are grouped together. It would have been simple and easy to have distinguished between them, if any distinction was intended. A construction which should require the defendant to build parts of any branch— valueless as parts-30 years before the valuable whole could prudently be completed, would be harsh in the extreme.

The construction insisted upon by the people is narrow; but this narrowness is defended upon the ground that, as between the state and its grantee of a franchise, the grant must be construed most strongly against the grantee. That principle is applicable when invoked against a corporation which claims that it is protected or exempted by its charter from liabilities and du

ties common to others, or claims privileges oppressive to the public. But it is not to be invoked in support of the forfeiture of a franchise. Such a forfeiture is in the nature of a penalty for wrong-doing. The judgment of forfeiture is self-executing, and instantly annihilates or confiscates the defendant's estate, or so much of it as is forfeited. The law may justly hold that whoever asserts a franchise to commit a nuisance, or avoid taxation, or to be exempt from competition, or from common liability, or the performance of common obligations, must put his finger upon the express grant of privileges so odious and onerous to others. But it does this at the instance of those who assert rights in hostility to such claims, and then strictly construes the charter which is the pretended warrant for them. Charles River Bridge v. Warren Bridge, 11 Pet. 496; Fertilizing Co. v. Hyde Park, 97 U. S. 659; PlankRoad Co. v. Douglass, 9 N. Y. 444. But, when the state has fairly and expressly granted a franchise, the courts do not, in actions to declare it forfeited, resort to narrow or forced constructions in order to condemn the grantee, and establish the forfeiture. On the contrary, they exercise great caution, and seldom adjudge a forfeiture unless there is a manifest and substantial violation of the grant. High, Extr. Rem. § 649; Thompson v. People, 23 Wend. 587, 586; People v. Bridge Co., 47 N. Y. 586.

The terminus of every branch is still inaccessible. The defendant's privilege is to proceed from the beginning to the end of each branch; and it would seem that, if it shall arrive at any terminus within the time appointed in the acts conferring the privilege, it will be there when due. We think the proper construction of the act of 1860 is that the defendant had at its option the privilege to construct its railroad over any of the streets on either route which were open, graded, and paved when the act was passed, and to continue the construction as further parts of the route should be opened, graded, and paved, but that it was not its duty to do so, and that it could safely await the opening of the entire route of any branch before its duty to complete any part of that branch would mature. The foregoing views apply to each branch, and require a reversal of the judgment. But it is to be observed, respecting the first, or Flatbush, branch, that, by the act of 1867, forbidding the construction of any railroad upon the Bedford-Avenue portion of it, if any cause of forfeiture then existed, the legislature took its own measure of satifaction therefor. The legislative recall of the substantial part of the Flatbush franchise either revoked the whole, or confirmed the little that was left, and in either case removed all grounds for judicial forfeiture for past defaults. The finding that, since the passage of the act of 1867, it has been legally impossible to construct this branch, precludes the liability of incurring a forfeiture for non-construction, since no legal duty can exist to perform what is legally impossible.

The failure as to any one branch cannot be a cause of forfeiture as to other distinct branches. The first, or Flatbush, branch is practically removed from the case by the act of the legislature. The second branch, in considerable part, still lies upon unopened or unpaved streets. The third branch is in a similar condition; and the defendant, in 1887, in advance of any immediate prospect of opening of all its parts, lawfully commenced to lay its tracks upon it, and continued to do so until stopped by injunctions procured at the instance of rival parties. The time for completion not having been reached, the defendant's franchises continue.

The defendant objects that the court has not jurisdiction to vacate some of the franchises granted to a corporation, but must vacate and annul the entire charter, or nothing. We have preferred to consider this case upon the merits. We assume jurisdiction in the court to render the judgment appealed from, provided its construction of the act of 1860 is valid. If a corporation had been organized to exercise the franchises granted by the act of 1860 to the defendant, and had been for 28 years in default in their use, without valid ex

cuse, judgment, in a proper action, vacating both charter and franchises, would be within the jurisdiction of the court. The fact that the act of 1860 conferred additional franchises upon an existing corporation, enjoying other franchises, cannot give any better title to abuse or disuse the additional franchises than if granted to a corporation created solely to enjoy them.

It may be that this case does not fall within the letter of section 1797, and the other sections of the Code of Civil Procedure relating to an "action by the people to annul a corporation." But we think the case is within the spirit of those sections and of the common law, which they were intended to embody.

We have not thought it necessary to consider whether the several acts cited by the defendant, granting extensions of time to railroad corporations to complete their roads, and chapter 788, Laws 1873, granting it additional privileges, constitute defenses against forfeiture. If they do, the defendant holds its franchises by a title additional to the one we consider to be valid. The judgment is reversed, with costs; and, since there is no dispute as to the facts, judgment is directed in favor of the defendant, dismissing the complaint, with costs. All concur.

DAVIS v. GALLAGHER et al.

(Supreme Court, General Term, Fourth Department. February 11, 1890.) 1. EXECUTORS AND ADMINISTRATORS-PROOF OF CLAIMS.

In an action for services rendered and for goods furnished to defendant's intestate, the fact that plaintiff was the step-son of decedent, and a member of his family, does not require him to prove an express contract by decedent to pay, but it is sufficient if he proves facts and circumstances showing that decedent expected to pay, and plaintiff to receive, the value of such services and goods.

2. SAME.

Evidence that decedent was paid for the education and maintenance of plaintiff during plaintiff's minority; that plaintiff worked for him during such time, and until he was about 23 years old, when they had a settlement; and that decedent had stated after the settlement that he owed plaintiff for his work and for matters existing between them,-shows that both parties intended that plaintiff should be paid for his services and property.

The fact that plaintiff gave decedent a note for money received of the decedent does not disprove an agreement between them that plaintiff was to be paid for his services and property, where decedent stated that he did not want a note, and plaintiff insisted on giving it because it would be useful when they came to settle. 4 SAME-STATEMENTS OF ADMINISTRATORS.

Statements by the administrators, made at the time they were engaged in trying to settle plaintiff's claim, are competent evidence in behalf of plaintiff. 5. WITNESS-TRANSACTIONS WITH DECEDENT-EXAMINATION OF ADMINISTRATOR. Testimony of plaintiff's mother, the widow and administratrix of decedent, as to conversations between herself and decedent, was not prohibited by Code Civil Proc. N. Y. § 829, rendering a party to an action against an administrator incompetent to testify as to a personal transaction had with intestate, unless the administrator testifies in his own behalf; she being only a nominal party to the action, and her testimony being against her interest.

6. SAME.

Where a transaction between plaintiff and decedent was shown by defendant's examination of plaintiff, it is competent for plaintiff to testify in his own behalf in relation thereto.

7. COSTS-ALLOWANCE-REPORT OF REFEREE.

An order confirming the report of the referee, and awarding costs, will not be disturbed on appeal from the judgment, where the order shows that it was based on affidavits, none of which are set out in the appeal book.

Appeal from judgment on report of referee.

Action by Dan H. Davis against John W. Gallagher and Kate M. Price, as administrators, etc., of James L. Price, deceased. Judgment was entered for plaintiff, and defendants appeal.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.