
    The People of the State of New York ex rel. The Long Island Railroad Company, Relator, v. The Board of Railroad Commissioners of the State of New York, Respondent.
    
      Roa/i'd of Railroad Commissioners — review of its determination upon an application for a certificate that the construction of an extension of a railroad is necessary — effect of a change of route from that stated in the original a/rticies of association.
    
    An application to reverse, as against tlie weight of evidence, the determination of the Board of Railroad Commissioners upon an application under section 59 of the Railroad Law (Laws of 1890, chap. 565) for a certificate that public •convenience and necessity require the construction of a proposed railroad, is •governed, as to- the preponderance of evidence, by the same rule which is applicable to a motion to set aside a verdict in an action in the Supreme Court.
    The fact that, owing to the refusal of local authorities to permit the construction of a street surface railway in certain places, it is necessary to make certain changes in the route stated in the articles of association, does not'require the Board of Railroad Commissioners to refuse the certificate required by section 59 -of the Railroad Law, where it appears that the changes are not substantial, . and that whatever convenience would be subserved by building the road mentioned in the articles of association, would be subserved by building the road •on the route as changed. •
    Certiorari issued out of the Supreme Court, and attested on the 4th day of November, 1898, directed to 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 their proceedings in granting to the New York and North Shore Railway Company a certificate, under section 59 of the Railroad Law.
    
      William J. Kelly, for the relator.
    
      Frcmk H. Platt and Frcmóis G. Kimball, for the New York and North Shore Railway Company.
   Merwin, J.:

In December, 1897, the New York and North Shore Railway Company applied to the Board of Railroad Commissioners for a certificate, under section 59 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1895, chap. 545), that public convenience and a necessity required the construction of the railroad it proposed, to construct. In its petition to the board for this purpose, it was, among other things, alleged that, on or about the 13th of March, 1897, it was duly incorporated under the laws of the State, and that it was organized to construct and operate a street surface railroad in the county of Queens ; that since the filing of its articles of association it had determined to extend its lines of railway and for that purpose had duly made and filed in the proper offices 'certificates of certain specified extensions jn the villages of Flushing, Whitestone aud Jamaica, it being stated that the said extensions were intended to be changes of and substitutes for portions of the route set forth in the articles of association, to the extent of such extensions.

At the hearing, the relator claimed that the proposed road was not required by any public convenience or necessity; that the public was fully accommodated by the road of the relator and other roads then existing, and that the business of the relator would be seriously injured by the competition of the new enterprise. These were the main, if not the only, issues at the hearing.

A large amount of evidence was taken presenting the different aspects of the case and a personal inspection of the route was made by the board. The relator in effect claims that the conclusion of the board is not sustained by the evidence.

The applicant proposed to construct a street surface railroad to be operated by electricity. It would connect several localities of considerable importance between which there was then no direct railroad communication. It was for the most part within the city of Eew York as now constituted. There is a large population in• the territory accommodated and it is likely to largely increase. The evidence tended to show that an electric line such as was proposed, would afford means of local transportation which were not and could not well be furnished by the steam railroad of the relator, and that the traffic would be sufficient to support the proposed road without materially affecting the traffic of the relator. The road of the relator and the proposed road were in some places nearly parallel, but that is not a conclusive circumstance.

Upon the facts the question for us to determine is whether the result reached by the board is against the weight of evidence. The same rule, as to the preponderance of proof, is to be applied as upon an application to set aside a verdict in an action in the Supreme Court. (Code Civ. Proc. § 2140, subd. 5.)

The conclusion of the board upon- the facts should not, I think, be disturbed.

The relator further claims that the applicant had no lawful right or authority to construct or operate a street surface railroad over the route mentioned in its’ application, and, therefore, that the certificate should not have been granted. The argument is that the applicant, prior to obtaining a certificate under section 59 of the Railroad Law, had no right to file certificates of extensions, and that, as to the route as modified by such extensions, the Railroad Commissioners had no right to give their certificate. The certificate in fact .given-was “ that public convenience and a necessity -require the construction of the railroad of the New York and North Shore Railway Company.” ;

The nature of these proposed extensions is to be considered. The original articles of association are not in the case. No -question seems to have been made at the hearing about them or about the allegations in the application on the subject of the incorporation of the applicant or its extensions. In the memorandum and decision of the board, which is attached to and is part of the return and is in the record before us, there is a reference to the point made by the relator as to the extensions, taken presumably in the brief which at the close of the evidence it was authorized to file. In discussing-that point the hoard say that it appears that the route upon which the applicant proposes to build is somewhat changed from that stated in the articles of association; that these changes were occasioned by refusals of local authorities to consent to the construction of the railroad in certain places; that the applicant filed certificates of extension of its route to cover the changed portions; that the route is substantially the same as stated in the articles of association, the changes being from one street or place in the same direction and near together; that whatever convenience would be served by the construction of the railroad on the Street or place mentioned in the articles is served in the new location and that the railroad is substantially as stated in the articles.

Assuming, then, as I think we must, that the road with its proposed extensions is substantially as stated in. the articles of associa-tion, did the board in granting the certificate err to the prejudice of the relator ?

By section 59 of the Railroad Law the board, before granting the certificate, has a right to permit errors, omissions or defects to be supplied and. corrected. A change in the route, not affecting substantially its character, and made in order to obviate objections of the local authorities, might well be deemed a defect such as might be allowed to be corrected under the power above given; and such a change might be disregarded or approved if made after the filing of the articles and before the application to the board. Acts which the board had a right to allow the applicant to do should not be deemed to be within the limitation prescribed by the same section upon the exercise by the corporation of the powers conferred by law upon such corporations.

It is urged by the relator that the decision of this court in People ex rel. Depew R. Co. v. Commissioners (4 App. Div. 259) is applicable to this question. I think not. The question there involved was entirely different from the one presented by the situation in this case.

The fact that extensions were filed or proposed that did not substantially change the route, did not, I think, furnish a sufficient reason for denying the application.

No other question need be specially considered and the determination of the board should be confirmed.

All concurred.

Determination of Board of Railroad Commissioners confirmed, with costs.  