Opinion
November 16, 1910.
R.H. Barnett, for the appellant.
James McPhillips, for the respondent railway company.
John A. Delehanty, for the respondent telephone company.
Patterson, Bulkeley Van Kirk [ Alpheus T. Bulkeley and Charles S. Motisher of counsel], for the respondent Halfmoon Light, Heat and Power Company.
The railroad company was authorized by sections 70, 71 and 72 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1891, chap. 362, and Laws of 1892, chap. 676) to consolidate with the other companies and form the Hudson Valley Railway Company, and section 73 provides, among other things, that "the rights of all creditors of * * * either of such corporations, parties to such agreement and act, shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same, and all debts and liabilities incurred by either of such corporations shall thenceforth attach to such new corporation and be enforced against it and its property to the same extent as if incurred or contracted by it." And it further provides that no pending action shall abate, but may proceed, or the new corporation may, by order of the court, on motion, be substituted as a party. After the consolidation is perfected a new action, although upon a cause of action existing before the merger, must be brought in the name of the new company. ( Cameron v. United Traction Co., 67 App. Div. 557.)
A merger made in good faith under the statute violates no property right of creditors and deprives them of no substantial remedy which they otherwise had. They were dealing with a statutory creature which had the right to merge its existence with other like creatures in the usual statutory manner. An action brought after the merger against one of the old companies can produce no results, and the substitution of the new company is not to the disadvantage of the creditor, although an unwise merger may have been very detrimental to him.
The judgment in its favor is, therefore, affirmed, with costs.
It was a question of fact for the jury whether the power company was negligent in continuing to carry a high current over the feed wire when it knew of the close proximity of the telephone wires. The question should have been submitted to the jury. The judgment in its favor should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
The telephone company's local superintendent swore that the telephone company was carrying on its poles the railroad company's wire. "We had ten wires there, and two of the ten were the trolley company's; * * * prior to the time of the accident our line of poles had been carrying the private line of the trolley road."
When, a few days before the accident, the close proximity of the telephone wires to the feed wire was discovered by the telephone company's superintendent, he notified the power company's superintendent that the wires were close together at that point. It does not appear that he understood that it concerned the railroad company. The Tuesday before the accident he put on two new wires, one of which was below the arm and about six inches above the feed wire, and it was attached to the arm six or seven inches lower than the other wires.
It is difficult to tell just what caused the accident. The telephone company's wires burned, as did also the railroad company's wire. The evidence does not make it clear which burned first, or whether the burning of one was the cause of the burning of the other. We find the feed wire bare of insulation in three places. One of the railroad wires lay upon the feed wire; another was broken, and two of the telephone company's wires were broken. How it happens that the telephone company is carrying the wires of the railroad company does not appear; neither does anything show which company is prima facie responsible for the proper maintenance of the wire. As the record stands it was, I think, a fair question of fact whether the negligence of the telephone company brought about or contributed to the accident.
The judgment in favor of the telephone company should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except SMITH, P.J., dissenting as to the telephone company.
Judgment in favor of the railway company affirmed, with costs. Judgment in favor of the telephone and the power companies reversed and new trial granted as to them, with costs to appellant to abide event.