Assuming that tho Brooklyn, Winfield and Newtown Railway Company had the power to lease their franchise, as to a part of the route described in their charter which is not clear, I think this order should be reversed, for two reasons. In the first place, the lease was not a beginning of the construction of its road, within the spirit and meaning of the general railroad act. Tho petitioning company did not spend any of its money thereon, and did not own the tracks when completed. It simply granted the right to> another company to expend its money upon a portion of the route, such constructing company to own the superstructures. By the terms of the lease, the North Second and Middle Village Company were, hi no sense, the agents of the petitioner upon these proceedings. The right reserved by the petitioners V use the tracks when laid, for a fixed rent, does not affect the question.
The right was to use, not the road of this petitioner, but the road of the lessee.
In the second place, the former proceedings against the Broadway Railroad Company, and the decisions therein, establish finally that as to that company the petitioner’s charter was dead. This adjudication covers all things which were, and which might have been, litigated in those proceedings. No facts existing at the time of the institution of those proceedings can ever again be made the subject of judicial inquiry. If the petitioner’s charter is dead as to one part of its road, because when it commenced those proceedings it was not then a corporation, it is dead as to all parts of the route granted by its charter. If it had no power to take the Broadway road, it has no power to take the road in question, and for the same reason. The present defendant takes the fact established in those proceedings, although it was not a party thereto. (Fuller v. Van Geesen, 4 Hill, 171.)
The petitioner was a party, and was adjudicated to have no corporate existence.
Order reversed, with ten dollars costs and disbursements.
Gilbert. J., concurred in result; Pratt, J., not sitting.Order reversed, with ten dollars costs and disbursements.