36 A.D. 514 | N.Y. App. Div. | 1899
This application was made by the railroad company for a certificate as required by section 59 of the Railroad Law (Chap. 565 of the Laws of 1890, as amended by chap. 676 of the Laws of 1892, as amended' by chap. 545 of the Laws of 1895). The Commissioners denied the application upon two grounds: First, “ That the application is as to the second articles of association, which the' Board does not believe were lawfully amended; ” and, second, «That the route cannot be changed at this time under the provisions of section thirteen of the Railroad Law.” The Board
These articles of association, among other things, provided for the ■construction of a railroad from points in the town of Riverhead to points in the village of Quogue, all within the county of Suffolk; .and in the description of the streets, avenues,- highways and private property in and upon which said railroad was proposed to be constructed, it was described as beginning at a point on Osborne avenue ..in the town of Riverhead and thence along a particular line to Flanders, and “ thence southerly along said highway leading from Flanders to Quogue to the depot at Quogue; thence- southwesterly .along a highway from said depot to and through Quogue and on said highway leading from Quogue to the ocean.” Subsequently, at a meeting of the board .of directors of the applicant, more than two-thirds of the directors being present, a resolution was duly adopted by such board, changing the proposed route of said railroad so as to have its terminus in the village- of West Hampton instead of the village of Quogue; the change in the description of the proposed route beingj “ thence southerly along the highway leading from River-head to West Hampton to the depot at West Hamptonthence
The proposed amended articles of incorporation are drawn pursuant to section 7 of the General Corporation Law (Chap. 563 of the Laws of 1890, as amended by chap. 687 of the Laws of 1892),. which provides, among other things, that “ if in the original or amended certificate of incorporation of any corporation, or if in a supplemental certificate of any corporation, any informality exist, or if any such certificate contain any matter not authorized by law to be stated therein, or if the proof or acknowledgment thereof shall be defective, the corporators or directors of the corporation may make and file an amended certificate correcting such informality or defect or striking out such Unauthorized matter.” The amended articles of incorporation recite, “ for the purpose of correcting an informality and defect in the original certificate of incorporation of said corporation, consisting of the omission to particularly state, define and describe a portion of the route of said road as well as the terminus in the town of Westhampton, do hereby make and file this amended certificate, pursuant to the General Corporation Law -of the State of New York, section 7, and for such purpose do certify and declare as follows: ” It is quite evident from an examination of the proposed route of this railroad that there existed no defect, informality or mistake therein. The description of the route of the road was1 over a certain specified line and roads beginning in the town of Riverhead and ending in the village of Quogue. The ■amended, articles accomplished, what was .evidently intended, a change of the proposed route from Hallett’s mill,, a place upon the ■ line, to the village of West Hampton. It is, therefore, plain that the section under which the railroad company sought to change its articles by changing a part of its route, does not confer authority so to do. The purpose and object of this section are plain, as its language indicates, namely, to correct mistakes, informalities and
We are confirmed in this view by the provisions of section 13 of the General Railroad Law (Laws of 1890, chap. 565, as amended by Laws of 1897, chap. 235), which in terms provide for a change of route, grade or terminus, by authorizing any railroad corpora* tion, except elevated railways, by a vote of two-thirds of all its directors, to alter or change the route or any part of the route of its road or its termini, or locate such route or any part thereof or its termini in a county adjoining any county named in its certificate of incorporation, if it shall appear that the line can be improved thereby, upon making and filing in the clerk’s office of the proper county a survey, map and certificate of such alteration or change.. This corporation, while having ample powers to act under this provision, has not assumed so to do, but has assumed" to act under a provision of law having no application to its case. It might be possible to hold the amended articles of incorporation a sufficient compliance with section 13 of the General Railroad Law, if what was done were a substantial compliance with its terms, even though it was assumed to be taken under the General Corporation' Law, but the difficulty is that in order to change its route, undei the provisions of section 13, it is required to file in the clerk’s office of the county the certificate of change, together with a survey and map. This last requirement is' wholly lacking, as the only paper filed in the clerk’s office of Suffolk county was the amended articles of incorporation as hereinabove specified. This might be construed as constituting a certificate of a change of route, but it cannot be held to answer for a survey and map which the statute requires. The filing of a survey and map is as essential a part of the proceedings as are the articles of incorporation. (Matter of Citizens' Waterworks Co., 32 App. Div. 54.) This failure upon the part of the railroad company to comply with the law makes the steps taken of no force and effect. Such acts constitute conditions precedent, and must be complied with. (Farnham v. Benedict, 107 N. Y. 159.) This applies to an application for a certificate to the Board of Railroad Commissioners. (Matter of Kings, Q. & S. R. R. Co., 6 App. Div. 241.)
It follows that the application should be denied.
All concurred, except Bartlett, J., taking ho part.
Application denied, with ten dollars costs and disbursements,