The People of the State of New York, Respondent, v. The Albany and Vermont Railroad Company, Respondent, and The Troy and Boston Railroad Company, Appellant

The People of the State of New York, Respondent, v. The Albany and Vermont Railroad Company, Respondent, and The Troy and Boston Railroad Company, Appellant. Where an action is brought iby the attorney-general to vacate the charter of a railroad corporation, which has leased a portion of its road to another company, the lessee has such an interest in the subject of the action and in the real estate to be affected by the judgment as to- entitle it, under section 452 of the Code of Civil Procedure, upon application, for that purpose, to be made a party defendant. This is especially so when the interests of the lessor are protected by stipulations rendering the judgment innocuous as to it, though fatal to the rights of the lessee, and where there is reason to suppose that the lessor is not unfriendly to such a judgment. The People v. The A. and V. R. R. Co. (15 Hun, 126), reversed. (Argued April 1, 1879; decided May 20, 1879.) Appeal by the Troy and Boston Railroad Company from an order of the General Term of the Supreme Court, in the third judicial department, reversing an order of Special Term which granted an application 051 the part of said company to be made a party defendant herein ; and denying said' application. (Reported below, 15 Hun, 126.). The nature of the action and the facts, so far as material, appear in the opinion. Esek Cowen, for appellant. The lessee of defendant had a right to be made a party defendant in this action. (Code of Civil Procedure § 452.) E. W Paige and Charles E. Patterson, for respondent. The petitioner was not entitled to come in as a party under the provisions of the Code. (Code of Civil Procedure, §§ 430, 431, 442, 452; People v. Tob. Man. Co., 42 How., 162; People v. Wash. Ice Co., 18 Abb., 382; Waring v. Waring, 3 id., 246; Hornby v. Gordon, 9 Bosw., 656; Webster v. Bond, 9 Hun, 437; Jackson v. Burnsey, 3 J. Cas., 234; Jackson v. Van Dusen, 5 J. R., 144; Jackson v. Brooks, 8 Wend., 426; 15 id., 111.) [MAJORITY — Rapallo, J.] Rapallo, J. This action is brought by the attorney-general for the purpose of enforcing an alleged forfeiture of the charter of the Albany and Vermont Railroad Company and dissolving that corporation, because of its nonuser of the part of its road which lies between Waterford Junction and Eagle Bridge. The order of the Supreme. Court granting leave to bring the action contains a provision that if the defendant shall promptly fix the terminus of its road on the west side of the' Hudson river, and the plaintiffs recover judgment, then on the request of the defendant the judgment shall dissolve its charter only as to the- portion of its road between Waterford Junction and Eagle Bridge and shall confirm its charter as to the residue of the route, etc. It is fairly inferrable from the papers that the purpose of the action is to annul the charter of the defendant only as to the portion of its road before specified, and that to that extent it is a friendly action so far as the people and the Albany and Vermont Railroad Company are concerned. The Troy and Boston Railroad Company applied to the Supreme Court to be admitted as a party defendant, alleging that it was the lessee of that part of the road as to which the forfeiture was sought to be enforced, under a lease from the Albany and Vermont Railroad Company made in 1862, to continue during the corporate lives of the parties. An order was made at Special Term granting the application, but this order was reversed at the General Term, and from that decision this appeal is taken. Under the laws of this State one railroad company may contract with another for the use of its railroad, and to that extent the leasing company is authorized to delegate a part of its franchises to the lessee. Both companies are, under such circumstances, interested in maintaining the charter of the company lessor. And the question presented by this appeal is whether when an action is brought by the attorney-general to vacate the charter of the leasing • company, its lessee may be admitted to defend. We think that the lessee has such an interest in the subject of the action and in the real estate to be affected by the judgment, as to entitle it to be heard. (New Code, § 452.) Its title depends upon the continuance of the charter of its lessor, and it would be unjust to cut off the rights of this lessee without a hearing; especially when there is reason to suppose- that the leasing company is not unfriendly to the judgment which would have that effect, and its interests are protected by stipulations which would render the judgment innocuous as to it, though fatal to the rights of, the lessee. The proceeding seems directed entirely against that part of the road which is leased to the Troy and Boston Company and it is not unreasonable that the last named company should be permitted to defend. The respondents on this appeal made various points touching the validity of the lease under which the Troy and Boston Railroad Company claims, and touching the merits of its claim. These are matters to be tried in the action, after the last named company is admitted as a, defendant. They cannot properly be disposed of on the motion to admit it. The order of the General Term should be reversed and that of the Special Term affirmed, with costs. All concur. Ordered accordingly.