Latham v. Boston, Hoosac Tunnel & Western Railway Co. , 45 N.Y. Sup. Ct. 265 ( 1885 )

LaNdoN, J.:

The defendant was one of the constituent companies out of which the association was formed which was intended to be a new corporation. As this association has been adjudged to hare had no legal capacity to exist as a corporation, it follows, as was also adjudged, that the individual entity of the defendant was not merged in it. Therefore the defendant remained as an actor and participator in the association which did operate the railway, and thus one of the parties by whose negligence the plaintiff was injured. As such it was severally liable as one of the wrong-doers. (Creed v. Hartmann, 29 N. Y., 591; Roberts v. Johnson, 58 id., 613.)

If the association was the lessee of the railway, defendant as a constituent of the association was also one of the lessees. The defendant was not in a state of quiescence or torpor; instead of operating the road alone it operated it with others. The transfer of its railroad by the defendant to the association being without legislative authority, the defendant remained liable for injuries caused by those operating it. (Abbott v. Johnstown, etc., Horse Railroad Co., 80 N. Y., 27.)

Upon the evidence in the case we do not think we ought to disturb the verdict.

Judgment and order affirmed, with costs.

LearNEd, P. J,, concurred. Present — Learned, P. J., and LaNdoN, J.

Judgment and order affirmed, with costs.