¶1Assuming (without deciding) that the act of 1853, chapter 502, is unrepealed and constitutional, we have come to the conclusion that the second section, in terms, requires the redeeming stockholder to pay to the purchaser or mortgagees “a sum equal to such proportion of the price paid on such sale and the costs and expenses thereof, as such stockholder's stock in said company shall bear to the whole capital stock of said company,” which has been actually subscribed for and issued.
¶2That is the “ whole capital stock” of said company within the meaning of the Legislature, and the question seems to be settled by the case of the Greenpoint Sugar Co. v. Whitin (69 N. Y., 338; Fisk v. Chicago R. I. and P. R. R. Co., 36 How., 22; Coddington v. Gilbert, 17 N. Y., 489; Von Keller v. Schulting, 50 id., 108). Under this construction the amounts tendered were insufficient; the tenders were refused by the Farmers’ Loan and Trust Company. There is no averment in the complaint that the trust company or Munson waived any further tender in any manner, nor is there any proof of any express waiver. Inasmuch as the stockholder seeks to become a purchaser “ of the same relative amount of stock or interest in said railroad” as was formerly owned by him in the road, and its franchises and other property, he should tender or pay the amount required by the act before ho is entitled to succeed as a purchaser.
¶3*477The condition of the statute was not satisfied, and the stockholder, therefore, cannot in pursuance of its terms acquire an interest in the road and franchises and other property which passed under the foreclosure sale by purchase to Munson.
¶4There was no duty on the part of the trust company or Munson to accept the money ; the tender being insufficient the stockholder failed to comply with the statute, and, therefore, cannot compel a conveyance to him. (Baltzen v. Nicolay, 53 N. Y., 471.)
¶5The views above expressed lead us to reverse the judgment and to award a new trial, with costs to abide the event.
¶6Judgment reversed and new trial ordered, with costs to abide event in each of these four cases.