The Fort Edward and Fort Miller Plank Road Company against Payne

The Fort Edward and Fort Miller Plank Road Company against Payne. the plaintiffs’ articles of association, provided for the construction of its road from Fort Edward to Fort Miller,'with the privilege of extending the same to Saratoga bridge, two andX-half miles further; and a large majority of the stockholders became such by subscribing the articles, leaving such extension optional with the directors. The defendant subsequently signed an agreement, on the books of the company, to take twenty-five shares of stock, provided the directors would extend the road to Saratoga bridge, Held, that such agreement was void, by reason of the condition therein. Appeal from the Supreme Court. The action was tried before a referee, who found the following facts: The plaintiff was duly incorporated under the act of May 7th, 1847, providing for the incorporation of turnpike and plank road companies, its articles of association having been filed January 13th, 1850. The sixth section of the articles is as follows.: “ For the purpose contemplated by these articles, the undersigned have severally subscribed for the number of shares of the capital stock of this association placed opposite their respective signatures hereto, and they .severally agree, to and with each other, to pay to the said Fort Edward and Fort Miller Plank Eoad Company their respective subscriptions for said capital stock, whenever called for by said directors or their successors in office.” The defendant did not subscribe the articles; but he, with others, subscribed an instrument in writing, dated March 1, 1850, which, after'reciting that at a meeting of the directors of the company, held February 19th, 1850, it was resolved that the directors adopt and establish, as the terminus of their road, some convenient point at or near Saratoga bridge, commonly called Fort Miller bridge, in the town. of Greenwich, and that the directors construct or cause to be constructed the whole of their road, extending from Fort Edward village to the* said bridge, the present year, proceeded as follows: “ Now we, the undersigned, subscribe for the number of shares to the Fort Edward and Fort Miller Plank Eoad Company set opposite our respective names, upon condition that the road is extended to Fort Miller bridge, so as to make that its southern termination.” This instrument is written in a book of the company, following the record of its .articles of association. The road which the company was organized to construct, as appears from the articles of association, was to extend from the village of Fort Edward to the village of Fort Miller, a distance of about eight miles, with the privilege of extending it to a point near Saratoga bridge, about two and one-half miles further. The action was to recover the amount of the defendant’s subscription, the directors having made the calls for the payment of the whole amount of subscriptions to stock, and given the requisite notices thereof, pursuant to the act. The referee reported that the plaintiff was entitled to recover the amount of the defendant’s subscription. The judgment rendered on his report having been affirmed by the Supreme Court, at general term in the fourth district, the defendant appealed to this court. A. J. Parker., for the appellant. J. H. Reynolds, for the respondent. [MAJORITY — Bowen, J.] Bowen, J. I think that the instrument signed by the defendant is wholly void, by reason of the condition therein contained. It was intended as a subscription to the capital stock of the company. The act under which the plaintiff was incorporated prescribes the manner of subscribing for stock, and only authorizes absolute subscriptions. This ease cannot be distinguished in principle from Butterworth, &c., Turnpike Company v. North (1 Hill, 518). It was held, in that case, that to allow subscriptions to the stock of such a corporation to be received, conditioned that a particular location of the proposed road should be adopted, would be contrary to public policy, as by such means improper influences might be brought to bear upon the question of the location. The object had in view by the legislature, in authorizing the formation of these corporations, was to benefit the public generally, by providing for the construction of safe and commodious highways, so located as to be most convenient and beneficial. If the interest of the stockholders, in such a company, is allowed to control the question, such a location and such termini of the .proposed road will almost invariably be adopted as will best subserve the public interest; when if, in order to procure the requisite amount of capital, subscriptions are .allowed to be taken, conditioned that a particular location or terminus be adopted, public convenience will frequently be sacrificed to individual interest. By the articles of association of this company, their road was to be constructed from Fort Edward to Fort Miller, a distance of eight miles, with the privilege of extending it to Saratoga bridge, two and one-half miles further; and a large majority of the stockholders became such by subscribing the articles, which left it optional with the directors whether the road should be extended. These stockholders had the right not only to expect, but to require, that it should not be extended unless the interest of the company would be thereby promoted; but by receiving these conditional subscriptions the directors were obliged to extend the road, although every dollar expended for that purpose will be a total loss to the corporation, and none be benefited thereby except those at whose instance it was done. ' The judgment appealed from should be reversed and a new trial granted. Denio, C. J., Selden, Shankland and Paige, Js., concurred ; Johnson, J., expressed no opinion; Comstock and Brown, Js., not having heard the argument, took no part in the decision. Judgment reversed and new trial ordered