I do not concur in the prevailing opinion. I think that when the plaintiffs employed Root & Clarke to assist in the defense of the *566action, which involved the validity of the consent necessary for the construction of the road, and by the consent of the defendants and the railroad company Root & Clarke appeared for said railroad company upon -the trial of the action, and assisted in the defense, the fees of Root & Clarke were an expense in an action the defense of which was necessary for maintaining the franchise of the railroad company; and thus, under the 2d clause of the contract, the defendants became liable for the fees of Root & Clarke. The defendants having agreed to pay the expense of all actions and legal proceedings necessary for maintaining the franchises of the said railroad companies to construct, maintain and operate the proposed railroad, the necessary legal expenses in defending the action specified were an obligation assumed by the defendants, and when the plaintiffs, who under this contract had invested a large sum of money .in the construction of the railroad, employed counsel to assist in the defense of the action, and such counsel with the consent of the defendants and the railroad companies appeared and took part in the defense and rendered services in defeating the action, the fees of Root & Clarke were just as much an expense in the defense of the action as were the fees of Mr. Choate, who was also engaged as counsel for the defendants and whose fee was allowed by the referee.
I think the judgment should be modified by including in it the amount which it is conceded was paid to Root & Clarke as their fees in the defense of that action.
Judgment affirmed, with costs.