105 A.D. 273 | N.Y. App. Div. | 1905
On an application to the Board of Railroad Commissioners by an alleged railroad corporation for a certificate of public convenience and a necessity under section 59 of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1892, chap. 676, and amd. by Laws of 1895, chap. 545) it is the duty of the Board of Railroad Commissioners to make inquiry into the prior proceedings of the alleged railroad company to ascertain and determine whether such alleged railroad company is of a character which the law recognizes, and to which it contemplated that a certificate should be given. (People ex rel. Long Island R. R. Co. v. Board of R. R. Comrs., 75 App. Div. 106; Matter of Kings, Queens & Suffolk R. R. Co., 6 id. 241.)
A valid and sufficient certificate of incorporation of the Intervale Traction Company lies at the very foundation of its right to make the application, to the Board of Railroad Commissioners. The certificate of incorporation must have been executed and' acknowledged by fifteen or more persons and filed as provided by statute. (People ex rel. Long Island R. R. Co. v. Board of R. R. Comrs., supra.) If not so executed and acknowledged, the determination of the Bo&rd of Railroad Commissioners must be reversed. (People ex rel. Long Island R. R. Co. v. Board of R. R. Comrs., supra.) The certificate of incorporation of said company was signed by sixteen persons. Concededly, ten of such persons duly acknowledged the same. The claimed acknowledgment of three of the other six persons signing said certificate of incorporation is included in a certificate, as follows: “ On this 6th day of January, 1902, before me, the subscriber, personally came Charles A. Burt and Albert S. De Yean, and on this 7th day of January, 1902, before me personally came Frank W. Harrington, and on this 14th
Said Albert S. De Vean and Frank W. Harrington, so named in such certificate of acknowledgment, are in no way named in the certificate of incorporation, and they did not, nor did either of them, sign the same. The certificate shows that the notary acted three times, and each time on a different day. We do not see how his acts and certificate could have been inadvertent. Whether said certificate was a part of some other instrument and wrongfully annexed to the certificate of incorporation, or whether by some unexplained mistake the notary certified to acknowledgments never taken by him does not appear, but there is a yet more serious trouble arising from the fact that the acknowledgments of the remaining three persons who signed said certificate of incorporation were taken before one of the other of said sixteen persons signing the same, which person signed the certificates of acknowledgment as a notary.
The’ notary so taking the acknowledgment of three of his fellowincorporators was one of the members of a committee of incorporators, acting as its treasurer and was subsequently elected treasurer of the alleged corporation.
The relators contend that the certificate of incorporation is insufficient in law to create a corporation by reason of the fact that fifteen or mope persons did not duly acknowledge such certificate (See Railroad Law, § 2, as amd. by Laws of 1892, chap. 676.) If the acknowledgment of three of the persons who signed said certificate of incorporation taken before one of the others so signing the same is a mdlity, the contention of the relators must prevail.
It was held by this court in the case of Armstrong v. Combs (15 App. Div. 246) that a party to the record is disqualified from taking an acknowledgment of an instrument. In that case one of the members of a partnership took the acknowledgment of the grantor to an assignment of a mortgage to the partnership in its firm name, and this court then said: “ The object of acknowledgment and record is to make, title secure and prevent frauds in convey
“ It should be held, I think, that the acknowledgment before one of the assignees was a nullity. He was a party to the record, and, therefore, disqualified.”
In that case it was stated that in other States it is quite uniformly held that an acknowledgment by the grantor taken before the grantee is a nullity, and many authorities are cited and many other authorities could be cited to the same effect.
If three of the sixteen persons signing the certificate of incorporation could duly acknowledge the same before one of - the other persons signing such certificate, then the acknowledgment of all the signers could have been taken before fellow-incorporators, and the execution of the certificate of incorporation would be wholly apart from the official act of any disinterested person and its execution would be but little more sacred than if the acknowledgments were wholly omitted.
A pei'son authorized to take acknowledgments could as a grantee forge the name of the grantor, and add thereto in his official capacity a certificate of acknowledgment and then have such fraudulent instrument of conveyance recorded.
It is a general rule that an officer who is a party to a conveyance or interested therein may not take the acknowledgment of the grantor, and an acknowledgment so taken would be a nullity so far as third persons are concerned. (1 Am. & Eng. Ency. of Law [2d ed.], 493.)
We are not aware of any authority in this or other States upholding an acknowledgment taken by a person financially or beneficially interested, in and apa/rty to the conveyance or instrument of which it is a part. (Sec 1 Cent, Dig. 868, and subsequent Am,
It is unnecessary to consider the other serious objections raised by the relators, as it is assumed that if the promoters of the proposed railroad commence de novo, that they will be more deliberate and careful in their proceedings.
The determination of the Board of Railroad Commissioners should be reversed.
All concurred.
Determination of the Railroad Commissioners reversed, without costs".
Smith Stat. & Const. Law (§ 701).— [Rep.