Albany

In this case judgment was rendered for the defendant; plaintiff moved for a new trial; the motion was denied and plaintiff appeals from the judgment. The facts of the case, in brief, are as follows:

The city of Albany, proceeding under the provisions of the Broughton Act (Stats. 1905, p. 777) duly granted to E. A. Gowe, his heirs, successors, and assigns, a franchise for the construction and maintenance of a street railway over a right of way approximately one-half mile in length, all within the boundaries of that city. Gowe, as required, thereafter furnished a bond in the sum of five thousand dollars, executed by the respondent herein, a corporation for such purposes and receiving premiums therefor. This bond recited the grant of said franchise to the parties aforesaid, its terms and conditions, and guaranteed the faithful performance of each and every condition upon the part of said Gowe.

Gowe commenced work within the time limited and actually completed about one hundred feet. He died. Thereafter no further work was performed and the railway was never completed. At the expiration of the three-year period within which the work was to have been accomplished—no further time…