(dissenting). This action has been twice tried. On the first trial the court at special term dismissed the complaint on the merits. On appeal to this court the judgment was reversed, and a new trial granted. 61 App. Div. 323, 70 N. Y. Supp. 465. That decision was put upon the ground that the Court Street & F,ast End Railroad Company was an independent corporation owning and operating a road over a portion oí Court street, in the city of Binghamton, and was not a party to the agreement of April 26, 1892, between the city of Binghamton, the Binghamton Street Railroad Company, and the Binghamton & Port Dickinson Railroad Company, and that the subsequent consolidation in-1894 of the Binghamton Railroad Company and the Court Street & East End Company did not, therefore, relieve the former from the legal obligation which rested on the Court Street & East End Company to pay that portion of the expense of paving that part of Court street occupied by it imposed by section 98 of the railroad law of 1890 (chapter 39, Gen. Laws); and in this connection it was also held that the provisions of the agreement of April 26th do not extend to the Court Street & East End Company’s tracks, notwithstanding that by its terms it is made to apply to any company “with which” the Binghamton Railroad Company might thereafter become “merged or consolidated.” If the question had not already been determined by that decision, I would be inclined to concur in the dissenting opinion of Mr. Justice SMITH, for the reasons stated by him. On the trial now under review, however, new evidence was introduced, and a different theory adopted. It is now made to appear that the franchise of the Binghamton & Port Dickinson Railroad Company originally applied to and embraced that part of Court street as to which the present controversy exists. On the nth of August, 1892, the Binghamton Street Railroad Company and the Binghamton & Port Dickinson Railroad Company were consolidated under the railroad law of 1890 (chapter 39, Gen. Laws), and thereupon took the name Binghamton Railroad Company. By section 72 of this law it is provided that, upon such consolidation being effected, “all the rights, privileges, exemptions and franchises” of each of the corporations thus consolidated shall be- deemed to be transferred to and vested in the new corporation. It is clear, therefore, that whatever right and franchise, if any, the Binghamton & Port Dickinson Railroad Company then had to lay tracks in Court street, became vested in the' Binghamton Railroad Company; and the trial court has found, upon sufficient evidence, that the tracks in Court street were laid under and by virtue of the franchise of the Binghamton & Port Dickinson Company. This court decided in Davidge v. Common Council, 62 App. Div. 525, 71 N. Y. Supp. 282, that the agreement involved in this- action is valid, and was legally confirmed by the confirmatory act of 1893. The only important inquiry, then, is whether that company had lost such right and franchise by abandonment, nonuser, or failure to construct within the time prescribed by its charter. I think it had not. The charter (chapter 501, Laws 1868) required the construction of the road to be commenced within one year from the passage of the act, and its completion within five years from such commencement. In 1869 the period *589of commencement was extended two years. Chapter 447, Laws 1869. In 1871 the time within which the construction must be begun was extended to May 1, 1872. Chapter 379, Laws 1871. This necessarily carried with it an extension of five years from that date for the completion of the road,—to May 1, 1877. The company did not lay tracks on the part of Court street here involved within that time, nor at all until after November 16, 1896. Neither the charter of 1868 nor the subsequent acts impose a penalty or declare a forfeiture consequent upon a noncompliance with these requirements. A quasi public corporation, such as the Binghamton & Port Dickinson Railroad, cannot, at will, abandon a portion of its road, nor relinquish its right to operate such portion. Abandonment, nonuser, a failure to construct, may, indeed, expose it to a forfeiture of its franchise; but, in the absence of express provisions in the law under which it is organized, such forfeiture can be declared only by the legislature, or by the court at the suit of the people (Trelford v. Railroad Co., 6 App. Div. 204, 40 N. Y. Supp. 1150; People v. Railroad Co., 24 N. Y. 269, 82 Am. Dec. 295; In re Brooklyn El. R. Co., 125 N. Y. 439, 440, 26 N. E. 474); and, until forfeiture is declared, its corporate existence, powers, and rights are as full, complete, and enforceable as if it had fully complied with every legal requirement. So long as it remains a corporation at all, it necessarily possesses every right, privilege, and power bestowed upon it in the act creating it. The Binghamton Railroad Company, having by the consolidation in August, 1892, acquired the right of the Binghamton & Port Dickinson Company to lay tracks in Court street at the place in question, might do so under the charter of that company; and the agreement of April 26, 1892, as legalized and confirmed by chapter 231 of the Laws of 1893, applies to and embraces the same.
The judgment ought, therefore, to be affirmed.