(concurring.) The injunction was continued in this case on the assumption that the proposed consolidation of the two water-works corpora*759tians was without lawful authority. Respondents’ counsel justify the injunction solely on those grounds. They contend that the laws in force prior to May 1,1891, so far as they authorized consolidation, have been repealed by the new business corporation law (chapter 567) and the stock corporation law (chapter 564) passed in 1890. They insist that consolidation cannot be effected under the stock corporation law, because its tendency would be to prevent competition, and because it would be against public policy. The facts are substantially undisputed. I am unable to accept the respondents’ view. The consolidation of corporations engaged in the same general line of business is not against public policy. The legislature has permitted it for years, and still permits it. Laws 1867, c. 960; 1877, c. 374; 1884, c. 367; 1890, c. 567, § 13. There is a great difference between the consolidation of two corporations into one new corporation and the combination between two existing corporations for the prevention of competition. The former is permitted, and the latter is condemned. It is not necessary to point out the distinction so far as the public or private good is concerned. It is enough that the legislature has drawn the distinction. See section 13, c. 567, 1890, and section 7, c. 564, 1890. I do not think that the new acts have repealed the old provisions which authorized consolidations. They have simply continued them. True, the old acts appear to be included in the schedule of acts repealed; but the saving and construction clauses of both acts, which authorize and provide for consolidation, clearly show that there has been no material change in the law. Existing rights of existing corporations are all saved by section 22, c. 567; section 24, c. 563; and section 71, c. 564. Certainly two new corporations might be organized now under the new law to do the business of supplying water for a village, because that is a “lawful business.” Section 2, c. 567, Laws 1890. The effect of the repealing clause is to require new corporations to organize under the new general law instead of under the old laws. Certainly two new corporations, like the two in question, might consolidate under this new law, but they could not maintain their separate existence, and combine to prevent competition between them or between themselves and others; and if such new ones could consolidate under this new law, then the express provisions of section 13 authorize the same thing by old corporations doing the same business as new ones organized under the new laws.
Turning, now, to the saving clause, we read that the repeal of a law by that act “shall not affect nor impair any * * * right accruing, accrued, or acquired prior to May 1, 1891, under or by virtue of any law so repealed; but the same may be asserted * * * as fully and to the extent as if such law had not been repealed.” Hence, if the old corporation had a right to consolidate under the old laws, that right would seem to be saved by this clause. And again, we read in section 23 that, where the provisions of this new law are substantially the same as those existing April 30, 1881, they shall be considered as a continuation of such old laws, and not as new enactments; and, so far as they differ, they are to be deemed mere modifications or amendments of old laws. I regard it as plain that the object of all these new provisions was simply in the line of codification. It therefore seems tome that the injunction proceeds upon an erroneous theory. Perhaps some question might have arisen as to the right of the Hew York & Mt. Vernon Water Company to hold the stock of the Mt. Vernon Water Company by purchase, if the complaint had not alleged that that purchase was made with the assent of the stockholders of the former. But it appears that such purchase was made with the assent of those stockholders. Hence the purchase itself cannot be the subject of complaint by any of those stockholders. They are estopped to question the purchase, nor can any stockholder of the Mt. Vernon Water Company be heard to question the purchase or holding. All the individual holders of that company have sold out. It has all been purchased by the Hew York & Mt. Vernon Water Company. The *760complaint assumes that that purchase was made for the purpose of a distribution of that stock among the stockholders of the New York & Mt. Vernon Water Company. I do not so understand their rights. Such a distribution would have been a dividend in property which had been purchased and paid for with capital of the New York & Mt. Vernon Water Company. In other words, it would have been a dividend out of capital, which could not have been contemplated. On the contrary, the purchase of that stock made it a part of the property of the company, and not as a special trust for its stockholders. Their interests in that property were the same as in any other property of their company; and, since that company has the right to consolidate with the New York City & Suburban Water Company, it would seem that that stock or its proceeds will have to abide the event of the effort to consolidate. The order should be reversed, with $10 costs,' and the disbursements on this appeal to the defendants, and the original injunction should be vacated.