People ex rel. Albany & Susquehanna Railroad v. Mitchell
New York Supreme Court
THIS is an appeal from an order of the special term, granting a peremptory mandamus against the defendants-, as railroad commissioners' of' the town of Summit, Schoharie county, Hew York, to compel them to subscribe to the assessment of $25,000, to the capital stock of the Albany and Susquehanna Railroad Company, and to issue bonds of the town therefor, according to the terms prescribed by law.
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THIS is an appeal from an order of the special term, granting a peremptory mandamus against the defendants-, as railroad commissioners' of' the town of Summit, Schoharie county, Hew York, to compel them to subscribe to the assessment of $25,000, to the capital stock of the Albany and Susquehanna Railroad Company, and to issue bonds of the town therefor, according to the terms prescribed by law. The moving papers show the organization of the company; that the defendants are railroad commissioners of the town of Summit; that the requisite consent of the tax payers has been given authorizing…
1Opinion of the CourtMiller, J.
The motion for a mandamus in the case at bar was resisted mainly upon the ground that the consent of the 'tax payers to the issuing of bonds was upon the condition that $1,000,000 of town subscriptions to the stock should be taken, before the commissioners were authorized to subscribe, and that this condition has not been complied with.
The fact alleged only appears from the opposing affidavits, and is not in the proof of consent filed, and can only be made available by going behind the affidavits filed by the commissioners.
I am inclined to think that this can not be done, and that it is not…
2Cases cited8 opinions
- Town of Guilford v. . the Supervisors of Chenango CountyNew York Court of Appeals · 1855
- Bank of Rome v. . the Village of RomeNew York Court of Appeals · 1858
- Thomas v. LelandNew York Supreme Court · 1840
- Stocking v. HuntNew York Supreme Court · 1846
- Grant v. CourterNew York Supreme Court · 1857
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3Cited by9 opinions
- McCready v. Sexton & SonSupreme Court of Iowa · 1870
- Comm'rs of Leavenworth Co. v. MillerSupreme Court of Kansas · 1871
- Peace v. . WilsonNew York Court of Appeals · 1906
- Talcott v. Pine GroveU.S. Circuit Court for the District of Western Michigan · 1872
- Austin v. Westchester Telephone Co.The Superior Court of the City of New York and Buffalo · 1894
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