posed 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 being," thence southerly along the highway leading from Riverhead to West Hampton to the depot at West Hampton; thence southerly from said depot to the crossroad at R. W. Robinson's house and thence southerly to the ocean." These amended articles of incorporation were filed in the office of the Secretary of State, and also in the county clerk's office of the county of Suffolk. No other papers were filed in either place under the last-named articles, and the railroad company made its application to the Board of Railroad Commissioners for the certificate required by section 59, solely upon these articles.

The proposed amended articles of incorporation are drawn pursuant to section 7 of the General Corporation Law (chapter 563 of the Laws of 1890, as amended by chapter 687 of the Laws of 1892), which provides, among other things, that "if in the original or amended certificate of incorporation of any corpora tion, 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 West Hampton, 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 was over a certain specified line and

roads beginning in the town of Riverhead and ending in the vil lage 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 defects which may exist in the articles of incorporation. It has no application to an amendment of articles which seek to change the route of the railroad.

We are confirmed in this view by the provisions of section 13 of the General Railroad Law (Laws of 1890, chapter 565, as amended by Laws of 1897, chapter 235), which in terms provide for a change of route, grade or terminus, by authorizing any railroad corporation, except elevated railways, by a vote of twothirds 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, under 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 applica

tion for a certificate to the Board of Railroad Commissioners. (Matter of Kings, Q. and S. R. R. Co., 6 App. Div. 241.)

In Matter of N. Y., L. & W. R. Co. (88 N. Y., 279), relied upon by the appellant, this requirement is recognized. The language of the court in that case was, "The only prerequisite to the exercise of the authority to change the route was a vote of two-thirds of the directors, sanctioning the new location, followed by the filing of the survey, etc." So far as the name of the proposed railroad is concerned, we think no valid objection can be raised, nor do we think that it is within the province of the Board of Railroad Commissioners to inquire into this matter, at least so far as to make it the basis of the denial of a certificate in a proper case. It is quite likely that upon the merits the railroad company can make a case for the issuance of a certificate, but it cannot complain of the refusal of the Board until it has complied with the law. It follows that the application should be denied.

All concurred, except Bartlett, J., taking no part.

Application denied, with ten dollars costs and disbursements.

III.

SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. MARY ANNA STEWARD AND OTHERS, RELATORS, v. THE BOARD OF RAILROAD COMMISSIONERS OF THE STATE OF NEW YORK AND OTHERS, RESPONDENTS.

Certiorari issued out of the Supreme Court and attested on the 5th day of October, 1898, directed to the Board of Railroad Commissioners of the State of New York and the individuals composing the said board, commanding them to certify and return to the office of the clerk of the county of Albany the proceedings had before such board upon an application made in the name of the Goshen Railroad Company for a certificate under section 59 of the Railroad Law.

HERRICK, J.: If we treat the Goshen Railroad Company as an independent railroad corporation, in all respects separate and apart from the Erie Railroad Company, I can see no reason for its existence, and no public necessity or convenience to be met or subserved by it.

It is less than three miles in length, there is no local traffic, either passenger or freight to support or maintain it, and there is no pretence that it intends to do any local business-and as an independent road, of course it is absurd to say that there is apart from any other railroad, any through traffic to provide for.

Of course these considerations are not in all cases conclusive, a road may not expect any local traffic or any through traffic of its own, but yet may be the connecting link between other systems of roads from which it derives its business, and where it would serve as a convenience and necessity, as in the case of the Depew and Southwestern Railroad Company, 92 Hun, 409.

But that was a widely different case from the one before us. That road served as a connecting link between nine separate and distinct railroad corporations. To quote from the opinion of the court in that case, "The convenience and necessity of a railroad from Depew to Blasdell is not questioned, and for the purpose of facilitating the transportation of freight both east and west, between New York and Chicago, its importance is apparent. It will shorten the distance between those cities about six miles, and the time required in the transportation of freight about that number of hours, and will obviate the necessity and inconvenience of taking freight cars through the city of Buffalo to interchange with connecting roads. There are five railroads passing through Blasdell to be brought into more immediate or direct connection with four at Depew by the proposed line between those two places."

The Goshen Railroad serves no such purpose; it will take the cars of the Erie Railroad Company from the tracks of the Erie Railroad at one point and deliver them back again to the Erie Railroad Company at another point not quite three miles distant. The difference in distance between the two points, over the tracks of the Erie Railroad as now laid, and over the proposed route of the Goshen Railroad, is about three thousand feet.

It cannot be considered as a tributary, or feeder, to the Erie Road; it brings nothing to the Erie Road except what it receives from it, it takes nothing from it except what it immediately returns to it; instead of a feeder or tributary, it is rather a parasite.

As a matter of fact it is practically a switch of the Erie Road, and the only office that it performs is that of a switch or additional track of the Erie Railroad Company, and I think that under all the circumstances, it must be considered in conjunction with, and as a part of the Erie Railroad.

Its board of directors is composed of the officers of the Erie Railroad Company; its president, who is likewise the president of the Erie Railroad Company, says in an affidavit placed before the Railroad Commissioners, that, "The construction of said railroad, as proposed, is required for the safe, economic and proper

conduct of the business of the railroad of the Erie Railroad System."

The expert of the Railroad Commissioners, in his report says, "This road is to be constructed by or in the interest of the Erie Railroad Company, in order to avoid the numerous grade crossings, excessive grades and curvature on its present line; all freight trains are, at present, obliged to have the assistance of pushing engines through this village. It also saves one-half of a mile in distance; the road is in no way competitive."

Now while all these things sought to be accomplished may be convenient and necessary, not only for the Erie Railroad Company, but even for the general public, still it does not follow that the certificate required by section 59 of the Railroad Law should be granted. The requirements of that section mean something more than that it is necessary and convenient to lay railroad tracks between two given points; if that was all that was meant, every time that the increasing business of a railroad company demanded the laying of an additional track, or the building of a turn-out or switch, such necessity would be the justification for the organization of a railroad company to build such additional track, switch or turn-out, and the issuance to it of a certificate of public convenience and necessity.

One of the reasons heretofore given for the enactment of the law that before a railroad corporation can exercise the power conferred upon such corporation or begin the construction of its road, it must receive a certificate of public necessity and convenience, was, to prevent the organization and operation of railroad corporations, among others "by those seeking by threats of destructive competition to levy tribute upon existing roads." To that perhaps it is well to add, also to prevent, or rather remove the temptations to, the officers of existing roads to build others that would be parasites upon existing roads, by doing the business for their own profit, that should be done by and for the profit of such existing road of which they are the officers.

The good to be accomplished, and the evils to be rectified by the erection of this road can be accomplished by the Erie Railroad itself, and that without the operation of a separate and distinct corporation. By so doing, the provisions of section 13 will not be evaded, and no portion of its profits will be expended in carrying its traffic over the lines of another road between two points on its own line. The decision of the Railroad Commissioners in granting the certificate is reviewable by certiorari, People ex rel. Loughran et al. v. Railroad Commissioners, 158 N. Y., 421. The order of the Railroad Commissioners should therefore be reversed. All concur, except Merwin, J., dissenting and Landon, J., not voting.