In re the Proceeding of the Boston, Hoosac Tunnel & Western Railway Co.

Andrews, J.

It is a fatal objection to the order in these proceedings, so far as the rights of the Troy and Bennington Railroad are involved, that the petition does not show that any attempt has been made to agree with that company as to the points or manner of crossing its road or the compensation to be made therefor. This is a jurisdictional fact. The attempt and failure to agree is a condition precedent to the authority of the court to appoint commissioners, and unless this is averred in the petition, there is no jurisdiction. This point has been ruled by this court in In re the Lockport and Buffalo Railroad Co. (77 N. Y., 527). The appeal of the Troy and Bennington Railroad .must, therefore be sustained.

But wo think the order may be upheld as to the Troy and Boston Railroad. That road is the lessee of the Troy and Bennington Railroad, operating it under a perpetual lease. The Troy and Boston Railroad was a necessary party to a proceeding under the sixth subdivision of section twenty-eight of the general railroad act for the appointment of commissioners. That corporation is a company whose railroad is intersected by the railroad of the petitioner, within the meaning of that section, and I see no reason to doubt that it might have voluntarily agreed with the petitioner in respect to the crossing by the petitioner’s road. Such agreement would not have been binding upon the Troy and Bennington Railroad in respect to its interest as reversioner, but would bind the interest of the lessee. There is nothing in the statute which requires that the proceeding for the appointment of commissioners, in such a case as this, should embrace all parties who, either as lessees or reversioners, have an interest in the railroad which may be crossed by a new line. The proceeding will only affect the parties who are brought in ; and where the lessee is made a party alone the estate in reversion will not be affected by it. The other questions have been determined in the case of this petitioner against the Troy and Boston Railroad Company, just decided. We are of opinion that the order should be affirmed, so far as it provides for the appointment of commissioners, as against the Troy and Boston Railroad, and reversed as to the Troy and Bennington Railroad, withqut costs to either party.

All concur. .

Ordered accordingly.