
    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 and Others, Respondents. The People of the State of New York ex rel. The New York and Rockaway Beach Railway Company, Relator, v. The Board of Railroad Commissioners of the State of New York and Others, Respondents.
    
      Certificate of incorporation of a railroad company —pi’oof, of the signing by certain of the incorporators, by another incorporator who does not sign as a subscribing witness—another railroad corporation may raise the objection on an application ■ for a certificate of public convenience and necessity.
    
    Under section 2 of the Railroad. Law (Laws Of 1890, chap. '565, "as ámd. by Laws of 1892, chap. 676), providing that fifteen or more persons may become a railroad corporation “by executing, acknowledging and filing a certificate in which shall be stated ” certain facts, an incorporator who acknowledges the certificate cannot make proof, as a subscribing witness, of the execution of the certificate by other incorporators who did not acknowledge the execution of the instrument, where such incorporator did not, in addition to signing the certificate as a party, sign it as a subscribing witness.
    A certificate, the execution of which is defective for this reason, does not constitute the persons signing the same a corporation, and this obj ection may be raised by another railroad company in opposition to an application, made by the corporation attempted to be created by the certificate, to the railroad commissioners, for a certificate that public convenience and necessity require the building of its road.
    
      Qumre, whether a party to such a certificate can be a subscribing witness thereto, even though, in addition to signing as a party, he signs in form as a subscribing witness.
    Writs of certiorari issued out of the Supreme Court and attested on the 19th day of October, 1901, directed to the Board of Eailroad Commissioners of the State of New York, and to the persons constituting such commissioners, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings in granting to the Cross Country Eailroad Company a certificate of public convenience and necessity under section 59 of the Eailroad Law.
    
      William J. Kelly, for the relators.
    
      Augustus Van Wyck and Cha/rles M. Church, Jr., for the Cross Country Eailroad Company.
   Smith, J.

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 incorporator. It nowhere appears in form as a subscribing witness. The relator contends that thiá certificate is insufficient in law to create a corporation, and, therefore, that the determination of the Board of Railroad Commissioners was unauthorized. By section 2 of the Railroad Law (Laws of 1890, chap, 565, as amd. by Laws of 1892, chap. 676) it is provided that “ fifteen or more persons may become a corporation for the purpose" of building, maintaining and operating a railroad, or of maintaining and operating a railroad already built not owned by a railroad corporation, or for both purposes, by executing, acknowledging and filing a certificate in which shall be stated,” etc. By section 15 of the Statutory Construction Law (Laws of 1892, chap. 677) it is provided: “When the execution of any instrument or writing is authorized or required by law to be acknowledged or to be proven so as to entitle it to be filed or recorded in a public office, the acknowledgment may be taken, or the proof made before any officer then and there authorized to take the acknowledgment or proof of the execution of a deed of real property to entitle it to be recorded in a county clerk’s Office, and shall be made and certified in the same manner as such acknowledgment or proof of such deed.

“ 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 not the purpose of the law could be accomplished by the signature of one as a subscribing witness to the signature of his co-grantor, irrespective of the statute last cited, we think it could not be accomplished except by his signature as a subscribing witness. The formality of an acknowledgment required by the statute as an additional guaranty of the signature is required of each incorporator. If of several incorporators one only need acknowledge, and proof as to the signatures of the others may be made by him, though not signing as a subscribing witness, the purpose of the statute is evaded because as to the other incorporators no formality has been required other than the mere signature of the instrument. It seems clear, therefore, that the condition of the statute has not been complied with, that no proper instrument has been filed as required by the statute to constitute respondent railroad company á corporation.

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 not acquire its full franchises until the final certificate is given, and until that time arrives it is not only within the province of the board, but it is its duty to make inquiry into all prior proceedings in order to determine that the thing wliicli applies for the certificate of public convenience and necessity is of a character which the law recognizes and to which it- contemplated that a certificate should be given. Such inquiry upon the part of the board in the present case led them to the conclusion,, and the only one permissible upon the evidence, that the petitioner which called itself a corporation' was not such in fact and law. In fact, it was nothing which the statute recognized, and in consequence the board had no authority to grant it a certificate.” This case was followed in Matter, of Riverhead, Q. & S. R. R. Co. (36 App. Div. 514).

These considerations lead to a reversal of the determination here under review. ' '

All concurred.

Determination of the Railroad Commissioners reversed, without costs.  