#### The People of the State of New York ex rel. Brooklyn, Queens County and Suburban Railroad Company, Relator, *v.*Alfred E. Steers, President of the Borough of Brooklyn, City of New York, Defendant.

(Supreme Court, Kings Special Term,

April, 1913.)

Railroads — certificate of extension as required by Constitution and statutes — what constitutes a construction of —■ Railroad Law,

§ ia — mandamus.

Where it is undisputed that a railroad company, later' merged with relator, has the necessary consents of abutting owners and local authorities as required by the Constitution" and statutes, and has filed and recorded in the office of the secretary of state a certificate of extension containing an enumeration of the streets, avenues and plaees in which it was proposed to extend the railroads, which certificate recited eight routes the last of which was as follows: *“A*route commencing ■ at the track of said Bailroad Company at the intersection of *325Bergen Street and Troy Avenue, thence along Troy Avenue to City Line,” and it is admitted that relator constructed the whole of routes 6 and 7 named in said certificate and that the total mileage of said routes is in excess of ten per cent, of the total mileage of the eight routes, and that such construction was completed within five years after the filing of said certificate, and that no work was done on route 8 along Troy avenue, and that more than ten per cent, of the capital necessary to construct the entire extension of the eight routes was expended on routes 6 and 7, there has been no forfeiture of the right of construction of route 8 under section 12, formerly section 5, of the Railroad Law.

The eight routes constitute but one extension and relator has a clear legal right to finish the construction of its route, payment having been made in construction of the extension as required by section 12 of the Railroad Law, and the borough president may by mandamus be compelled to issue the necessary permit to allow the construction of route 8.

Mandamus on the- relation of Brooklyn, Queens County and Suburban Railroad Company to compel Alfred E. Steers, as president of the borough of Brooklyn, and others, to grant a permit to relator allowing it to construct its double-track street surface railroad on Troy avenue, between Bergen street and the old city line; said line being the division line between the former city of Brooklyn and the former town of Plat-bush at or near Montgomery street, in the borough of Brooklyn.

Q-eorge D. Yeomans (Charles L. Woody, of counsel), for petitioner.

Archibald R. Watson, Corporation Counsel (William P. Burr and William J. Clarke, of counsel), for defendant.

Kelby, J.

It appears without contradiction in the moving papers that the Broadway Railroad Company (which was later merged with the relator) has the *326necessary consents of abutting owners and local authorities, as required by the Constitution and statutes of the state. It also appears that the Broadway railroad, relator’s predecessor corporation, had filed and recorded, pursuant to law, a certificate of extension or statement in the office of the secretary of state on the 31st day of December, 1892. This statement contained an enumeration of the streets, avenues and places in which it was proposed to extend the Broadway railroad. The statement contained eight routes and the eighth therein contained reads as follows:

“ A route commencing at the track of said Railroad Company at the intersection of Bergen Street and Troy Avenue, thence along Troy Avenue to City Line.”

It is admitted that relator constructed railroad on ■ the whole of routes 6 and 7 which may be referred to as the Ralph avenue and Utica avenue routes, named in said certificate or statement of extension; and that the total mileage of the said Ralph avenue and Utica avenue routes so constructed is in excess of ten per cent, of the total mileage of all eight routes named in said certificate of extension, filed December 31, 1892, and that such construction was done within five years "after the filing of said certificate. It is further admitted that no work of construction has ever been done on route 8, above described, along Troy avenue.

Relator’s papers also show that it expended on routes 6 and 7 more than ten per centum of the capital necessary to construct the entire extension, consisting of the entire eight routes in said certificate of extension named. There is in the affidavit of Mr. Burr a denial of knowledge or information sufficient to form a belief as to the truth of the allegations relating to this expenditure by relator. This it is well settled is instiffi*327cient to raise an issue on an application for a peremptory writ of mandamus.

Respondent also sets up in the affidavit of Mr. Burr certain paragraphs of an answer in an action between the city of New York, plaintiff, and Brooklyn, Queens County and Suburban railroad, defendant, wherein the said defendant in substance stated that the Ralph avenue and Utica avenue routes were constructed under certificates of extension filed May 29, 1893, and June 2, 1893.

The statement of these routes, Ralph avenue and Utica avenue, was, however, admittedly first made in the certificate of extension filed December 31, 1892. The filing of subsequent statements of routes would not change in any way the company’s obligation to construct the route thus accepted by it in the first statement. The subsequent statement would have no legal effect except as to the railroad’s authority and obligation to construct on streets not named in the first certificate.

I have disregarded the replying affidavits of the relator purporting to explain the mistake of the allegations in its answer to the city’s suit and they will not be recited in the final order.

The issue thus presented is: Has the relator lost its right of construction of route 8 on Troy avenue by reason of the terms of section 12, formerly section 5, of the Railroad Law?

This section reads as follows: “If any domestic railroad corporation shall not, within five years after its certificate of incorporation is filed, begin the construction of its road and expend thereon ten per cent, of the amount of its capital, or shall not finish its road and put it in operation in ten years from the time of filing such certificate, its corporate existence and powers shall cease.”

*328This section, it has been held in Matter of Brooklyn, Queens County & Suburban R. Co. v. Littleton, 185 N. Y. 171, provides a self-executing forfeiture. The .same case also held that the filing of a certificate of extension is in legal effect an amendment of the original articles of incorporation of the railroad company. The court, at page 183, said: “ Those original articles prescribe the line and extent of its proposed route. The certificate of extension prescribes the line and route of an additional road and to that extent amends the original articles of incorporation. For the purposes of this provision, we think it may naturally and easily be treated as an amendment to the articles of incorporation made to include the proposed extension, *and the date of filing of which will fix the periods within which a corporation must act as to said extension.”*

The relator claims that all eight routes named in the certificate of extension filed December 31,1892, constitute one extension. The city authorities, on the other •hand, contend that the one certificate of extension enumerating eight routes contains in law and fact eight separate extensions.

I think the eight routes contained in the one certificate of extension constitute but one extension. And it appearing that over ten per centum in mileage of the total extension has been constructed and that there has been expended by the petitioner in the construction of said extension more than ten per centum of the amount necessary to construct the whole of said road (extension), there has been no forfeiture under old section 5, new section 12, of the Railroad Law.

It can hardly be contended that if all the streets named in the various routes in the certificate of extension of December 31, 1892, had originally been named in the articles of incorporation of the company, and *329over ten per centum of the total cost of the first projected railroad had been made, in actual construction, there could have been a forfeiture. See Matter of Brooklyn, Queens Co. & Suburban R. Co., *supra,*184. The word *“*extension ” has not its restricted meaning of a mere prolongation of existing branches, but contemplates an extension of the railroad’s operations in any direction or upon any street or avenue. See Bohmer v. Haffen, 35 App. Div. 388; affd., 161 N. Y. 390; also New York C. & H. R. R. R. Co. v. Auburn I. E. R. R. Co., 178 N. Y. 82.

There being but one extension and payment having been made in construction of the extension as required by section 12 of the Railroad Law, there is a valid existing franchise on all of the routes named in the certificate of extension, filed December 31, 1912. The petitioner has, therefore, a clear legal right to finish the construction of its route and the borough president should issue the necessary permit to allow construction. Let writ issue as prayed for in petition.

Ordered accordingly.