77 N.Y.S. 380 | N.Y. App. Div. | 1902
With the determination of the commissioners-that public convenience and necessity require the construction of the proposed road we are not inclined to interfere. At the threshold of the proceeding, however, the legality of respondent railroad company’s incorporation is questioned. The certificate of incorporation was signed by fifteen incorporators; four of these incorporators acknowledged the execution of the instrument before a commissioner of deeds in the city of Brooklyn. None of the other incorporators made acknowledgment, but there appears upon the paper an affidavit signed by Joseph McClean, one of the four incorporators who did acknowledge the instrument, in which he seeks, as a subscribing witness, to. make proof of -the execution of the instrument by the other eleven incorporators. Upon the instrument his signature appears only as an
“ The term acknowledge and acknowledgment, when used with reference to the execution of ' an instrument or writing other than a deed of real property, includes a compliance with the provisions of this section by either such proof or acknowledgment.”
By section 242 of the Real Property Law (Laws of 1896, chap. 547) it is provided: “ Except as otherwise provided by this article, such acknowledgment can be made only by the person who executed the conveyance, and such proof can be made only by some other person who was a witness to its execution, and at the same time subscribed his name to the conveyance as a witness.” The statute requires not only the execution but the acknowledgment of this certificate of incorporation. The Legislature has deemed it necessary for some further formal act than the mere signature of the instrument. That signature is to be attested by a public officer, or by a witness who subscribed the instrument as such. There is authority for holding that a party to an instrument cannot be a subscribing witness unless expressly authorized by statute., (Coleman v. State, 79 Ala. 49; Townsend v. Downer, 27 Vt. 119.) But whether or
It is objected, however, on the part of the said respondent that this question is not properly before ns, and that if the incorporation be imperfect the light to question the same lies only with the State through its Attorney-General. Whatever might be our views, were the question res nova, we are foreclosed from its consideration by decisions which we deem to be of authority. In Matter of Kings, Queens & Suffolk R. R. Co. (6 App. Div. 241) an application for a similar certificate had been made to the Railroad Commissioners, who denied the_same, stating as one of the grounds therefor that the railroad company had no legal existence as a corporation. An appeal was taken to the second department, which sustained the position of the Railroad Commissioners. Upon that appeal the appellant insisted that the Board of Railroad Commissioners had nothing whatever to do with that question as it was not within their province to determine. The court, however, overruled their objection and held that the question was properly before the Railroad Commissioners and must first be determined ,by them. The opinion in part reads : “ The requirement of the law is that the petitioner must have regularly complied with the statute at the time it makes application to the board for the certificate of public convenience and necessity. The petition in this proceeding so stated. The board is only authorized to act where there has been compliance with the law, and the whole proceeding until final authority is given to construct a railroad is tentative only. The corporation does
These considerations lead to a reversal of the determination here under review. ' '
All concurred.
Determination of the Railroad Commissioners reversed, without costs.