§ 236. Abandonment or change of route; new commissioners; their powers
and proceedings. Any corporation heretofore organized or hereafter to be
organized under this article, its successor or assigns, which shall have
constructed or put in operation a railroad upon a part and not upon the
whole of the route fixed, determined and located for such railroad by a
board of commissioners, may at any time apply for authority to abandon
any portion of the route upon which the railroad shall not have been
theretofore constructed or shall not then be in operation, with or
without a change and relocation of such portion, and with or without
extension of the portion not abandoned, or of any part thereof. Such
application shall be made by petition in writing, addressed by such
corporation to the board of supervisors of the county in which such
portion of the route so desired to be changed or abandoned shall be
situated, which is not within the limits of any city, or if such route,
or any part thereof, shall be within the limits of a city, to the mayor
of the city, for the route or portion thereof within such city. Five
commissioners may be appointed pursuant to such an application as
hereinafter provided, who shall be residents of the county or city and
who shall have full power as herein provided. When such application is
made by a corporation heretofore organized such commissioners may be
appointed within thirty days after presentation of the same by such
board of supervisors, or, as the case may be, by such mayor. When such
application is made by a corporation hereafter to be organized under
this article, such board of supervisors, or, as the case may be, such
mayor, may within thirty days after presentation of such application,
indorse thereon their or his approval and direction that it may be
presented to the supreme court in the manner provided in section two
hundred and twenty of this article, and such court may thereupon appoint
such commissioners. Within ten days after his appointment each
commissioner so appointed shall take, subscribe and file the oath and
give and file the bond prescribed by section two hundred and twenty-one
of this article; and if any one so appointed shall not comply with this
requirement, he shall be deemed to have declined to accept such
appointment, and to have made a vacancy which the appointing power shall
fill by another appointment as herein provided. Within fifteen days
after such appointments shall have been so made, the commissioners shall
meet at some convenient place in such county and complete their
organization as a board with appropriate officers. Such board shall have
all the authority conferred by law upon commissioners appointed, or
authorized to be appointed under this article. Before proceeding to hear
the application of the corporation, the board shall give such public
notice as it may deem most proper and effective of the time and place of
the hearing. Within thirty days after completing their organization such
board shall hear the application of the corporation, and all parties who
may be interested therein, and within sixty days after their
organization they shall determine whether any part of such route should
be authorized to be abandoned, or should be changed and relocated with
or without extension or extensions. If the board shall determine that no
abandonment of any part of the route should be allowed, and that no
change and relocation of any part thereof should be effected, and that
no extension should be made, the board shall dismiss the application.
If the board shall determine that an abandonment of any portion of the
route should be allowed, or that any change therein or extension thereof
should be made, the board shall proceed to authorize and require the
same upon such conditions as to the board shall seem proper, and with or
without extension of the remainder of the route or of any part thereof,
by fixing, determining and locating the route or routes of the extension
or extensions, if any, and by directing the abandonment of the part of
the route theretofore located, but by the board allowed to be abandoned,
if any, and by fixing, determining and relocating the part of the route
theretofore located, but by the board changed, if any; and the board
shall cause to be made in duplicate a survey and map of the route as so
changed and fixed, determined and located. Neither such corporation nor
any assign or successor thereof shall thereafter have any authority, by
reason of anything done under this article, to operate or construct any
railroad upon any portion of the route by the board so required to be
abandoned. The board shall also fix and determine the time within which
the railroad by it authorized and required upon any portion of the route
so changed, shall be reconstructed and ready for operation. If the
railroad on any portion of the route not by the board changed or allowed
to be abandoned, shall not have been theretofore constructed and made
ready for operation, the board may extend, and fix and determine anew
the time within which such railroad shall be completed, but such
extension of time shall not be for a longer period than that originally
allowed by law for the completion thereof. If the board shall have
determined that any portion of the route theretofore located should be
allowed to be abandoned, with or without a change or relocation thereof
or any part thereof, and with or without extension, or if the board
shall have extended the time within which such railroad shall be
completed, the board shall make a report in writing in accordance with
the determination so made, describing the portion of the route, if any
there be, as so fixed, determined and located anew, and the part, if any
there be, of the route allowed to be abandoned, and stating the period
of time, if any, by the board fixed and determined within which such
corporation shall construct and complete the railroad theretofore
authorized or by it authorized to be constructed, and prescribing that a
failure by the corporation, its successors or assigns, to complete it
within the time, if any, so limited, shall work a forfeiture to the
supervisors of the county if no part of the road is within a city, or in
any city, to such city, of the rights and franchises of such corporation
with respect to that portion of the route so fixed, determined and
located anew, and with respect to the then authorized extension or
extensions, if any there be of said route, upon which a railroad shall
not be constructed within the time so limited; but the time, if any,
unavoidably consumed by the pendency of legal proceedings, shall not be
deemed a part of any period of time limited in this article, and any
recital of any forfeiture of any of the rights or franchises prescribed
by any commissioners heretofore appointed, to be to the mayor, aldermen
and commonalty of the city of New York, shall be as effectual for any
and all purposes as if such forfeiture had been in terms recited to be
to the board of supervisors of the county of New York. Such report shall
be signed in duplicate by at least a majority of the then members of the
board, and there shall be thereto annexed the survey and map as
hereinbefore directed, showing the line and location of each and all the
routes, with or without the extension or extensions, as fixed,
determined and located, and showing also the parts or part, if any there
shall be, of the route or routes as theretofore fixed, determined and
located, but by the board allowed to be abandoned. Within ten days
after so signing such report the board shall cause the same to be filed
in the office of the secretary of state, and the duplicate thereof in
the office of the clerk of the county wherein such railroad shall be
located; and thereupon the corporation making such application, its
successors or assigns, is and shall be authorized to construct, maintain
and operate a steam railroad for the transportation of passengers, mail
and freight, upon the route or routes so fixed, determined and located,
and in said report described, but the construction or operation of a
railroad upon any new location or selection of route is not and shall
not be thus authorized except upon the condition that the consent of the
owners of one-half in value of the property bounded on, and the consent
also of the local authorities having control of that portion of a street
or highway upon which it is proposed to construct or operate such
railroad be first obtained, or in case the consent of such property
owners cannot be obtained, that the determination of three
commissioners, to be upon application appointed by the appellate
division of the supreme court in the department in which such railroad
is proposed to be constructed, be given after a hearing of all parties
interested that such railroad ought to be constructed or operated, which
determination, confirmed by the court, may be taken in lieu of the
consent of the property owners. Such corporation is and the successors
and assigns thereof shall be authorized to maintain and operate all the
railroads and the appurtenances thereof by it or them theretofore
constructed upon any portion of a route or routes which shall have been
located by commissioners under this article, and to complete within the
time in and by such report so extended, fixed and determined anew, and
thereafter to maintain and operate, the railroad and the appurtenances,
upon so much of the route or routes theretofore fixed, determined and
located as shall not have been so authorized and required to be
abandoned, and with the same rights and effect, in all respects, as if
such extended period of time had been originally fixed and determined,
and in the original certificate of incorporation of such corporation
recited, for completing such railroad and putting it in operation. The
other terms and conditions in and by such certificate mentioned and
prescribed, except as the same are hereinbefore modified or may be
modified by the board as hereinbefore authorized, shall apply to the
railroad herein authorized to be constructed and operated upon the route
or routes as so changed, fixed, determined and located, with the same
force and effect as if such route or routes, as finally so changed and
located, had been in and by such articles or certificates themselves
prescribed. If a new location or extension of routes shall be fixed and
determined by commissioners who shall have been appointed by the court
pursuant to this section, they shall also ascertain and determine the
aggregate pecuniary damages arising from the diminution of value of the
property bounded on that portion of the street or highway upon the line
of such new location or extension and of each parcel of real property so
bounded, and their proceedings thereupon shall be conducted in the same
manner and upon the like notice as the proceedings for that purpose
before the commissioners specified in section two hundred and
twenty-five and they shall make to the supreme court the report required
by section two hundred and thirty-three, and thereupon the same
proceedings shall be had as are provided for in such last named section.
Each commissioner shall be paid for his services at the rate of ten
dollars per day for each day of actual services as such commissioner,
and all reasonable expenses incurred by him in or about any of the
matters referred to such board, to be paid by the corporation making the
application so heard and determined. No corporation shall be authorized
under this section to extend, abandon or change the location of its
route, or any part thereof, where the greater portion of the route or
routes is or shall be in that portion of the city of New York south or
west of Harlem river, or of any route or part thereof in the borough of
Brooklyn or county of Kings, or to construct, extend, abandon or change
the location of any railroad or route for a railroad over, under,
through or across any street, avenues, place or lands south of One
Hundred and Twenty-eighth street or west of Third avenue in that portion
of the city of New York south or west of Harlem river, or where a
railroad might not by law be constructed, or was not by law authorized
to be by a board of commissioners located on the fifth day of June,
eighteen hundred and eighty-eight.