íhe decision states the facts which were agreed upon. It is plain it was the expectation of all parties that a corporation was to . enjoy the franchise and build and operate the railroad. At the outset it provides: “ Whereas, G. Adolph Manz, for himself and his assigns, a Street Surface Railroad Corporation hereafter to be organized; ” and the language of the resolution of the board of trustees of the village, and which is incorporated in the agreement, is: “ Resolved and Determined, That consent be and. the same is hereby given, pursuant to law, to the "said G. Adolph Manz, his' assigns and successors (hereafter referred to as the company), to construct, maintain and operate a street surface railroad,” etc. In providing for the construction, equipment and operation of the railroad _ the term “ railroad company ” or “ company ” is used invariably. The consent was “given upon the following express conditions, to wit: First. That the provisions of Article Four, Chapter 565 of the Railroad Law of 1890, and acts amendatory thereof and pertinent thereto, shall be complied with.”
This article is the one in the general Railroad Law providing for the construction of street surface railroads. " The agreement also' provided “ That said road shall be completed from the city line of the City of Syracuse to and through the Village of Phcenix, and in operation on or before January, 1905.” The object was, apparently, to construct the road in connection with the Syracuse street railway system. This is the requirement as to the bond: “ That accompanying the acceptance of this franchise said company shall *100give to the Village of Phcenix a bond of One Thousand Dollars to commence the construction of its road and.to complete the same as herein specified.” It is clear, therefore, there was no intention that Manz individually was to receive the benefit" of this franchise or to construct the railroad. The whole scheme as outlined in the agree-' ment indicates that it was the intention that lie was a mere medium of transfer to an existing corporation, or one to-be thereafter organized.' This construction of the contract is further fortified by what the. parties did. The agreement was executed December 27, 1902, and the franchise immediately accepted by Manz, and within three days lie assigned it to Gannon, C'onnette, Conderman and McClymonds, who were the" president, general manager and directors of the Rapid Transit Railroad Company of the city of Syracuse. On that day the defendants executed the bond in suit. The corporation contemplated by the agreement was never organized, and the railroad has not been constructed.
The interpretation of. an agreement of this kind- is governed by the same rules ás any other. There is no mystery about it. The intention of the parties is the pole-star. It is obvious the board -of" trustees were not intending to violate the law. The -men composing this board were parting with a valuable franchise for the purpose, of .securing a street railroad in the village. They expected the requirements of the statute were to be observed and a corporation organized. We -aré not to assume that Manz, or the principals upon the bond, intended otherwise. They knew of the statutory impositions preliminary to the construction of the railroad, and we are not to suppose that they were trifling with these trustees. Manz was,, therefore, the go-between, the .conduit, and the franchise was not ■absolutely void in his hands. Had he transferred it to a duly organized corporation at any time witlii-n "the period stipulated in ■the agreement its title would have become effective - and it could have started the railroad in compliance with the agreement.
In Parker v. Elmira, C. & N. R. R. Co. (165 N. Y. 274) the court say "at page 280 : “ The fact that at the sale of the railroad under the foreclosure judgment in March, 1884, the property was conveyed to two individuals, does not affect the right in question, nor interrupt the transmission of the franchise through the successive transfers. * * * While it is doubtless true that natural *101persons cannot exercise the franchises which' the State has conferred upon railroad corporations, there is no reason why they cannot be the conduit for transmitting them to another corporation in the manner provided' by law. They may bid in the property at the foreclosure sale, including the franchises, and hold and transmit it intact to a coloration authorized to exercise them.”
In Geneva & Waterloo R. Co. v. N. Y. C. & H. R. R. R. Co. (163 N. Y. 228), where consents to the construction of a street railroad of the abutting owners "were given to the individual .promoters of the project, the court uses this language in commenting upon the effect of these instruments: “It is-.common-practice and perhaps common prudence for the projectors of a railroad to employ parties in advance to procure rights of way, consents or like privileges to be used after the incorporation. The fact that the railroad acquires such rights through an intermediary by assignment, instead of directly from the property owners themselves, does not affect their validity. What the Constitution and the statute requires* in such cases is simply the consent of the property owner that the highway through his property may be burdenéd with another easement in the form of a railroad, and when such consent- is fairly and in good faith given to one interested in the railroad and by him transferred to the corporation, we are unable, to see why it should not be treated and considered as valid as if it ran in terms to the railroad itself.”
The point is that in view of what was intended by the parties, .the contract with .Manz was not Void, and before the defendants who participated in the agreement, comprehending its scope, can be heard to say the bond-is invalid, they must establish that-the franchise was of .no- validity from its inception and could never be galvanized into life by assignment to a proper corporation. •
The defendants obtained what might have proved a valuable franchise. ■ It prevented for two years any competing company entering the village with its railway.' The board of trustees could not well grant another franchise with this one existing and which could be made effective in a day by a transfer to a body corporate, as designed by the board. In the light of what was intended, I *102think the defendants cannot now challenge the legality of the agreement which at.one time they were swift t.o sanction.
The judgment should be affirmed, with costs.
Bobson, J., concurred.
Judgment reversed and new trial ordered, with costs to appellants to abide event, upon questions of Taw only, the facts having been examined and no error found therein.
Sic.