
    The People of the State of New York ex rel. The Elmira, Cortland and Northern Railroad Company, The Lehigh and New York Railroad Company and The Lehigh Valley Railroad Company, Relators, v. The Board of Railroad Commissioners of the State of New York and George W. Dunn and Others, Being the Members Thereof, and The Ithaca-Cortland Traction Company, Respondents.
    
      Railroad—certificate of public convenience and a necessity—where the certificate designates the route mentioned in the articles of incorporation, and not another longer one discussed before the commissioners, the capital and the amount paid in are determined by the former route.
    
    Upon the hearing of a writ of certiorari, issued to review the action of the Board of Railroad Commissioners in granting the respondent railroad company a certificate that public convenience and a necessity required the construction of its railroad, it appeared that the capital stock of the respondent railroad company, as stated in its certificate of incorporation, was $300,000, and that $31,375 thereof had been paid in in cash; that the certificate of incorporation described the road to be built and stated that it was “ about twenty miles " in length.
    It further appeared, however, that the respondent railroad company had filed with the Board of Railroad Commissioners a map showing a number of changes in the location of its road from the location thereof described in the articles of incorporation; that the length of the road shown upon such map was about twenty-three and a half miles; that much of the evidence given upon the hearings before the Railroad Commissioners related to the route shown upon the map, which, however, was in a large measure identical with the route shown in the articles of incorporation.
    
      Held, that as the Board of Railroad Commissioners had granted the certificate for the road mentioned in the articles of incorporation and not for the road outlined upon the map, the Appellate Division had no concern with the changes of location shown upon the map used before the board, and that, consequently, the relators could not successfully contend that it had not been shown, as required by section 2 of the Railroad Law (Laws of 1890,- chap. 565, as amd. by Laws of 1892, chap. 676), that the amount of the capital stock of the respondent railroad company was not less than $10,000 for every mile of road proposed to be built, and that at least ten per cent of the minimum amount of such capital stock had been paid in'in cash.
    Certiorari issued out of the Supreme Court and attested on the 12th day of March, 1901, directed to 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 constituting the Board of Railroad Commissioners of the State of ¡New York, 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 Ithaca-Cortland Traction Company a certificate that public convenience and a necessity require the construction of a railroad to be operated by electricity between the cities of Ithaca and Cortland.
    
      A. S. Diven, for the relators.
    
      William D. Leonard and Eli H. Chandler, for the respondent Traction Company.
   Chester, J.:

The certificate of public convenience and a necessity which has been granted to the Ithaca-Cortland Traction Company 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) is attacked by the relators as against the weight of evidence upon that subject and because the line of railroad which it is proposed to construct is not the line set forth in the articles of incorporation of such traction company, and because it has not been shown that the amount of its capital stock is not less than $10,000 for every mile of road proposed to be built, and that at least ten per cent of the minimum amount of such capital stock has been subscribed and paid in good faith in cash to the directors named in the certificate, as required by section 2 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676).

The certificate of incorporation describes a road to be built from a point on University avenue in the city of Ithaca to a point on Tompkins avenue in the city of Cortland, and describes its length to be “ about twenty miles.” The amount of the capital stock stated in the certificate is $200,000. Annexed to the certificate is the affidavit of three of the directors named therein “ that at least ten per cent of the minimum amount of capital stock authorized by law has been subscribed thereto and paid in good faith, and in cash, unto the directors named in said certificate.” In the verified petition to the Board of Railroad Commissioners for its certificate it is stated that “ the sum of twenty thousand dollars has been subscribed and paid in good faith and in cash to the directors thereof named in its certificate of incorporation.” It was shown in evidence on the hearing before the Board of Railroad Commissioners that the sum of $21,375 had in fact been paid upon stock subscriptions to said directors.

If the proposed road is but twenty miles in length, the amount of capital stock and the amount paid in thereon as above stated is sufficient to be a full compliance with the law.

It is claimed, however, that the evidence shows that the proposed road is in fact twenty-three and one-half miles long. This arises from a map filed by the traction company upon the hearing before the Board of Railroad Commissioners of a preliminary survey, which showed a number of changes in the location of the road from that described in the articles of incorporation, made for the pur pose, as is claimed, of improving the location of the road and avoiding a number of steam railroad crossings, and which map showed some alternate routes in places. The length of road shown upon the map was about twenty-three and one-half miles.

But the certificate petitioned for by the traction company to the Board of Railroad Commissioners was that the public convenience and a necessity required the construction of the road proposed in its articles of incorporation, and that board has granted its certificate for that road and not for the road outlined upon the map. This court is- called upon to review the action of the board in granting the certificate which it made. So long as it has not granted a certificate for any other road than that described in the articles of incorporation we can have no concern .with the changes shown upon the map used before the board. It is true that much of the evidence given upon the hearings as to the cost of the proposed road related to the route shown upon the map, which, however, for a very large portion of the way was the identical route covered by the articles.

When the record is examined with a view of reviewing the legality of the certificate which was in fact granted, it is altogether clear that it was not against the weight of evidence upon the question that the board was required to determine.

Many witnesses were called by the traction company, who testified that public convenience and a necessity required the construetion of the proposed road, and who gave their reasons therefor and stated the facts upon which their conclusions were based. No witnesses were sworn to the contrary. The great weight, and in fact all of the evidence on that subject is to the effect that the present means of transportation between Ithaca and Cortland and the villages and hamlets lying between them, on the route of the proposed road, are inadequate and that the public is now greatly inconvenienced by the lack of proper railroad facilities at such places. The certificate was, therefore, properly granted.

The determination of the Board of Railroad Commissioners should be confirmed, with fifty dollars costs and disbursements against the relators to the respondent Ithaca-Cortland Traction' Company.

Determination of the Board of Railroad Commissioners unanimously confirmed, with fifty dollars costs and disbursements against the relators to the respondent Ithaca-Cortland Traction Company.  