the section, another application to this Board for such a certificate, which application is at the time of writing this report pending before the Board. See page 190, first volume, 1904 report of this Board. (Case No. 3082.)

XXII.

IN THE MATTER OF THE APPLICATION OF THE NIAGARA TRANSFER RAILWAY COMPANY FOR A CERTIFICATE UNDER SECTION 59 OF THE RAILROAD LAW.

December 8, 1905.

The certificate was issued. The appellate division, third department, reversed the action of the Board. The court's opinion is printed in this volume under the next title. At the time of writing this report it appears that, if allowed, this matter may be appealed to the court of appeals. page 191, first volume, 1904 report of this Board. (Case No. 3114.)

See

XXIII.

IN THE MATTER OF THE APPLICATION OF THE NORTHERN SHAWMUT RAILROAD COMPANY FOR A CERTIFICATE UNDER SECTION 59 OF THE RAILROAD LAW.

December 8, 1905.

A writ of certiorari on behalf of a property owner who appeared in opposition was served on this Board and the return was made. At the time of writing this report the matter has not been argued before the appellate division, third department. See page 193, first volume, 1904 report of this Board. No further note will be made as to this certificate in future reports unless the matter is presented to the appellate division. (Case No. 2833.)

Decisions of Courts as to Questions Arising Under Section

59 of the Railroad Law.

I.

APPELLATE DIVISION, SUPREME COURT, THIRD DEPARTMENT.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. ERIE RAILROAD COMPANY, Relator, V. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK and GEORGE W. DUNN, AND OTHERS, AS RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK, AND BEING THE MEMBERS OF SAID BOARD, AND BINGHAMTON AND SOUTHERN RAILROAD COMPANY, Respondents.

(101 App. Div. 251.)

CERTIORARI issued out of the Supreme Court and attested on the 25th day of June, 1904, directed to the Board of Railroad Commissioners of the State of New York and to George W. Dunn and others, as Railroad Commissioners, etc., commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in the matter of granting to the Binghamton and Southern Railroad Company a certificate under section 59 of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1892, chap. 676, and amended by Laws of 1895, chap. 545.)

PARKER, P. J.:

The several objections taken by the relator in this proceeding cannot, in my judgment, be sustained.

The certificate of incorporation of the Binghamton and Southern Railroad Company fixes the western terminus of its proposed road at the point where the Apalachin creek crosses the boundary line between the States of New York and Pennsylvania, and at the northern terminus of the road of the "Pittsburg, Binghamton and Eastern Railroad Company " and the eastern terminus at "the city of Binghamton." It gives the length of the proposed road as about eighteen miles and fixes the capital stock at $180,000. Upon the hearing before the Board of Railroad Commissioners it appeared that the distance from such western terminus to the city of Binghamton, viz., the western boundary thereof, is fifteen and three-tenths miles, and that, if the road were extended from such latter point through the city of Bingnamton, along a line that had been surveyed and mapped, to a certain point in Robinson street near the Delaware and Hudson Railroad, it would be about four miles longer. in that event the total length to Robinson street would be nineteen and three-tenths miles.

The first objection taken is that, because the proposed line is in fact nineteen and three-tenths miles, the capital stock should have been fixed at $193,000 instead of $180,000, and that there should have been paid in $19,300 instead or $18,000, and that for this reason the certificate is void.

But the line as proposed in the articles of association extends no further east than the "city of Binghamton," and the certificate granted to it by the Board of Railroad Commissioners is for the road as proposed in such articles. A complete road is proposed in such articles of association and certified as necessary, etc., and if under it a road cannot be built to Robinson street (and whether one can or cannot we express no opinion now), nevertheless such articles are not void on that account.

The next objection is that the Board acquired no jurisdiction to grant the certificate required by section 59 of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1892, chap. 676, and amended by Laws of 1895, chap. 545), because the articles of association had not been published in both of the counties of Broome and Tioga, into which the proposed road extended before the application for such certificate was made to such Board.

But, first, the statute does not seem to require it. Secondly, the articles of association were published for three weeks in each of such counties before any hearing was had before the Board. A formal application by petition was made to the Board for such a certificate on or about November 13th but no action was then taken, except to adjourn the matter indefinitely. By December 24th, publication having been completed in both counties, the Board fixed the 14th of January, 1904, as the time for the first hearing on such application; and notice of that hearing was published in those counties and given as required by such Board. Thus the required publication had been made before any action whatever had been taken on the application, and the requirement and purpose of the statute in this respect was fully observed.

The objection that the Board of Railroad Commissioners has no authority to grant a certificate for a part of a proposed route, is not presented by the facts of this case. The road which the Board has certified as necessary, etc., is the one

proposed in its articles of association. As suggested above, all that we may assume the company proposes to build is specified therein, viz., eighteen miles from its western terminus to the city of Binghamton, and all that is specified therein is certified to be required by public convenience and a necessity; hence this objection is not well taken.

The objection that the evidence does not warrant the conclusion that public convenience and a necessity require the proposed road, is not sustained, for the reasons stated in People ex rel. New York, N. H. & H. R. R. Co. v. Comrs. (81 App. Div. 242, 249).

The determination of the Board of Railroad Commissioners, therefore, should be confirmed with fifty dollars costs and disbursements.

Determination of the Railroad Commissioners unanimously confirmed, with fifty dollars costs and disbursements.*

II.

APPELLATE DIVISION, SUPREME COURT, THIRD DEPARTMENT.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JAMES AMM AND OTHERS AND THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY AND OTHERS, Relators, v. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK AND OTHERS, Respondents.

(103 App. Div. 123.)

CERTIORARI issued out of the Supreme Court and attested on the 27th day of August, 1904, directed to the Board of Railroad Commissioners of the State of New York and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting the Niagara Transfer Railway Company a certificate of public convenience and a necessity under section 59 of the Railroad Law.

HOUGHTON, J.:

The Board of Railroad Commissioners granted to the Niagara Transfer Railway Company a certificate of public necessity and convenience, under section 59 of the Railroad Law, for the building of a steam railroad from the outskirts of the city of Buffalo to the village of Tonawanda, a distance of some seventeen miles.

The certificate is not claimed to have been issued because public convenience demanded greater direct facilities between the city of Buffalo and the village of Tonawanda.

The road is projected as a freight switch road, and its primary purpose is the develoment for manufacturing and shipping purposes of a tract of land of about 2,200 acres, having a water frontage on the Niagara river of about four miles. Two lines of railway are proposed, one along the bank of the river and the other a few hundred feet back and near the Erie canal, the one cutting off the adjacent lands from the canal and both cutting off the lands from the river.

The owners of more than 62 per cent. of this tract, representing more than 66 per cent. of its entire water frontage, filed remonstrances against the granting of the certificate, and have brought this proceeding to set it aside.

It is not claimed there is any freight now in sight for the proposed road, nor will there ever be any passengers of any amount. The reason urged for the necessity of the road and the propriety of the certificate is that its construction will afford means of transportation for factories to be established on the 2,200-acre tract, and for the large shipping interests which it is hoped a development of the water front will bring.

In People ex rel. Cluett, Peabody & Co. v. Commissioners (95 App. Div. 38) this court held that a freight railroad injurious to the owners of the property through which it ran ought not to be thrust upon them for their convenience against their protest.

The reasons which impelled us to set aside the certificate in that case apply with much increased force in the present. Here the lands are agricultural lands, wholly unimproved, having a water frontage concededly of value and possibly in time of great value.

The general public is not interested in the development and improvement of these lands except in an economic way. All improvements benefit the public, but we know of no rule of law which can compel an individual or private corporation to develop or improve his property for the benefit of the general public. The several owners of this tract of land have a right to develop it or to hold it for speculative purposes, and a railway which cuts off the most valuable rights in connection with their land, and diminishes or practically destroys its value as a whole, should not be thrust upon them against their will. It is true that the protest of an individual owner should not prevent the building of a railroad called for by public necessity and which would serve the public convenience. Here no necessity is to be served except such as may grow up on these lands after manufacturing plants shall be established. The situation is much different from the projecting of a railway through a vast undeveloped country. In such a case individual rights are insignificant compared with the general good. In the present case the general good is insignificant compared with individual rights.

. This case was not appealed to the Court of Appeals. For determination of this Board in this matter, see p. 186, 1st vol. 1904, report of this Board.

If a freight railroad is desirable through this tract of land it should be located with some regard, at least, to the wishes of its owners. The testimony is overwhelming that the proposed road meets no public necessity except such as may hereafter be developed upon these lands, and that the cutting off of the water frontage would be a very great damage to the owners, exceedingly difficult, if not impossible, to be ascertained by condemnation in the present undeveloped state of the proporty. In view of the strenuous objection of the large majority of the owners of the property, we think the evidence did not justify the granting of the certificate of necessity and convenience.

The determination of the Railroad Commissioners should be reversed upon the law and the facts, with fifty dollars costs and disbursements to the relators.

All concurred; SMITH, J., not voting.

Determination of the Railroad Commissioners reversed upon law and facts, with fifty dollars costs and disbursements of all relators.

It may be that, if allowed, this case will be appealed to the Court of Appeals. See p. 191, 1st vol. 1904 report of this Board.

III.

APPELLATE DIVISION, SUPREME COURT, THIRD DEPARTMENT.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. ERIE RAILROAD COMPANY, Relator, v. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK AND OTHERS, BEING MEMBERS THEREOF, AND INTERVALE TRACTION COMPANY, Respondents. THE PEOPLE OF THE STATE OF NEW YORK EX REL. GEORGE R. CONKLIN AND OTHERS, Relators, v. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK AND OTHERS, BEING MEMBERS THEREOF, AND INTERVALE TRACTION COMPANY, Respondents.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. HENRY M. LEONARD AND OTHERS, Relators, v. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK AND OTHERS, BEING MEMBERS THEREOF, AND INTERVALE TRACTION COMPANY, Respondents.

(105 App. Div. 273.)

THREE writs of certiorari issued out of the Supreme Court and attested in the first proceeding on the 7th day of April, 1904, and in the other two proceedings on the 13th day of April, 1904, directed to the Board of Railroad Commissioners of the State of New York and others, being the members thereof, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting to the Intervale Traction Company a certificate of public convenience and a necessity under section 59 of the Railroad Law.

On the 4th day of June, 1904, the Intervale Traction Company was granted leave to appear as a party defendant in the proceedings, and by stipulation but one return was made by the Board of Railroad Commissioners and the three proceedings were heard together.

CHASE, J.:

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 amended 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 Board 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 Vean, and on this 7th day of January, 1902, before me personally came Frank W. Harrington, and on this 14th day of January, 1902, before me personally came Charles D. Hobbs and Charles W. Griffith, each to me known and known to me to be the persons described in and who executed the foregoing certificate for the purposes therein set forth, and they severally duly acknowledged to me that they executed the same.'

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 fellow-incorporators 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 more persons did not duly acknowledge such certificate. (See Railroad Law, §2, as amended 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 nullity, 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 conveyancing as well as to furnish proof of the due execution of conveyances. A history of the practice on that subject in this State will be found in Van Cortlandt v. Tozer (17 Wend. 338). The early acts will be found in 3 Revised Statutes (1st ed.), appendix, 5-46. It is very plain that when the right to acknowledge was provided for, it was not contemplated that the officer could be one of the parties to the instrument. The object of the act and the manner in which it was required to be done were utterly inconsistent with such an idea. A good deal of the formality has since disappeared, but the object remains, and the law should be construed in the light of its original object and scope. The statute does not in terms say that a grantee may or may not be the acknowledging officer. It should not be deemed to give that right without an express provision to that effect. 'A thing within the letter is not within the statute if contrary to the intention of it.' (People v. Utica Ins. Co., 15 Johns. 358; Riggs v. Palmer, 115 N. Y. 506; Smith's Comm. on State Const. Law, § 701.)

"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 person 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.

So, too, such person being the owner with others as tenants in common of property, could sign for himself and acknowledge a conveyance, and then forge the signature of the other owners and add thereto in his official capacity a certificate of acknowledgment as to them, and deliver such conveyance to a grantee and perhaps secure the proceeds of such fraudulent conveyance. The immediate results of a fraud committed by a cograntor might be greater than in the case of a fraud committed by a grantee. In a certificate of incorporation or other paper where an acknowledgment of the parties signing the same is necessary, a fraud could be committed by one of the signers by a false certificate of acknowledgment of persons actually signing the certificate or instrument, or by the forgery of some of the names, and a certificate of acknowledgment as to such forged names, and although it might be difficult to obtain much practical benefit from such fraud in a certificate of incorporation before the same could be discovered, yet as the Legislature has seen fit to make the certificate of incorporation dependent cn its being signed by a specific number of persons, and on its being duly acknowledged by them, I can see no distinction or reason that requires that an acknowledgment of a grantor taken by a grantee shall be held a nullity, and that would permit or uphold an acknowledgment taken by one several grantors of a conveyance or one of several signers of an instrument in which all are interested. Because of the probative force accorded to the certificate of acknowledgment, as well as the usually important consequences of the instrument itself, public policy forbids that the act of taking and certifying the acknowledgment should be exercised by a person financially or beneficially interested in the transaction. (1 Cyc. 553.)

of

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 a party to the