FOURTH DEPARTMENT, JULY, 1904.

[Vol. 96. Auburn Interurban Electric R. R. Co., supra, 82.) No exact rule like the rate of interest may be laid down applicable to every case. A proposed improvement in one instance may be clearly construed an extension and in another it may be equally clear that the extension is intended in effect to be a new road. If the contention of the respondent is correct then it can readily, upon filing the certificate of intention, extend its road to New York.

We appreciate that it often may be very difficult to determine whether a contemplated addition to an existing road is an extension within the scope of the statute or is a new road, thus requiring the preliminary certificate of the Board of Railroad Commissioners. Unless there is additional legislation defining what constitutes an extension, the courts must dispose of each case as it is presented on its own merits. In that disposition the policy of the Legislature to vest in one tribunal the authority to determine as to the propriety of constructing a road will be a pregnant circumstance. That is, the Legislature in its wisdom having vested a board with this power, the courts in their decisions should proceed as far as possible in harmony with the legislative intent, especially as the tendency is to enlarge rather than to restrict the powers of that body.

It may be that the present line will be beneficial for the inhabitants to whom it will be available. It may be a public convenience and a necessity, and also may prove a judicious financial investment. It may be that the plaintiff is merely an obstructionist in the prosecution of this action. Those are matters, however, not within the province of this court to pass upon. The Legislature has fixed an arbitrary standard which must govern if a new street surface road is to be constructed, and if this proposed extension is a new road the defendant must conform to that rule.

By section 59a of the Railroad Law (added by Laws of 1898, chap. 643, and amd. by Laws of 1902, chap. 226) the Board of Railroad Commissioners, upon an application for a certificate to build a proposed street surface railroad, may certify as to the convenience and necessity of a part of the projected line. If the position now asserted is to prevail, a convenient method exists to circumvent the decision of the commissioners to prevent the construction of a part of the line desired. The part which meets the approval of the commissioners may be constructed, and thereafter the road may

App. Div.]

FOURTH DEPARTMENT, JULY, 1904.

be extended the entire length although the extension may be the substantial part of the proposed line and has already received the disapproval of the board which is by training peculiarly well quali fied to determine as to the necessity for constructing the same.

A more palpable attempt to build a new road upon the pretense that it is an extension can hardly be conceived than the one up for review. The original line was only five miles long. Its termini were definitely given. Its course was northeasterly. It had been in operation since 1893. Its capital stock was $50,000. Now the company propose to jut off easterly seventy miles, involving a length of road and an additional outlay wholly disproportionate to that originally contemplated.

It is urged that the case of New York Central & H. R. R. R. Co. v. Auburn Interurban Electric R. R. Co. (178 N. Y. 75, supra) is conclusive in favor of the defendant. We do not so interpret that case. The defendant operated a street surface railroad from Auburn to Skaneateles and filed a certificate of intention to extend the same to Marcellus, a distance of six miles. The trial court held this was an extension, and its decision was affirmed by the Court of Appeals. The facts in that case are not at all parallel with those here involved. The addition of six miles might very well be held to be within the scope of the statute, while the joining of seventy miles to a line of five miles would not be controlled by the holding. If the proposed extension there considered had been westerly from Auburn to Buffalo and southerly from Auburn to Binghamton we assume the court would not have decided that it was an extension within the meaning of the statute referred to. Such a construction would strip the Board of Railroad Commissioners of the very substance of its power and usefulness in passing upon the building of street surface railroads, for it would permit the projection of existing lines all over the State without let or hindrance from that body. If the act committing the construction of street surface railroads to the Board of Railroad Commissioners is to be nullified it would be better that it be accomplished by a repealing act of the Legislature rather than it be emasculated by the courts under the guise of declaring a new road to be an extension, because, forsooth, it happens to use a few miles of an existing line.

The second proposition urged by the respondent, that there is no

FOURTH DEPARTMENT, JULY, 1904.

[Vol. 96. necessity for the certificate from the Board of Railroad Commissioners for the reason that it is not a corporation formed after the passage of the act, is in a large measure covered by the discussion already had.

If the building of the line to Rochester is a new road instead of an extension, the company has no authority to construct it under its present certificate. The respondent was organized to build a definite street surface railroad and may add what is naturally an adjunct or a tributary of the original road by virtue of section 90 of the Railroad Law (as amd. supra). The prohibition in section 59 of the Railroad Law (as amd. supra) that "no railroad corporation hereafter formed * * * shall exercise the powers conferred by law upon such corporations" until the certificate of the Board of Railroad Commissioners has been procured applies to every railroad corporation. The interdiction prevents any construction at all until the requisites contained in the section have been complied with. The respondent because of that provision would be debarred from making any extension except for section 90 already adverted to.

The corporation in existence at the time of the passage of chapter 226 of the Laws of 1902, transferring the authority to the Board of Railroad Commissioners, may complete the road set out in its articles of association pursuant to the law then in force. It could not under that certificate or simply by retaining its original name build a new road in defiance of the Board of Railroad Commissioners on the pretext that it was an existing corporation when the board was first given authority in such cases. For instance, a railroad corporation then organized to build and operate a steam railroad from Utica to Cortland and called the Utica and Cortland Railroad Company might not ten years later extend its line to New York and to Oswego by virtue of its original certificate and name and vindicate its course by reason of its priority to the creation of the Board of Railroad Commissioners. Such action would be too palpable a violation of section 59 of the Railroad Law (as amd. supra).

We accordingly start with the general proposition that no railroad corporation hereafter formed may begin the construction of its road until it has secured the necessary certificate of the Board of Railroad Commissioners. Then we have the exception in section 90 of the Railroad Law (as amd. supra) relating wholly to

App. Div.]

FOURTH DEPARTMENT, JULY, 1904.

street surface roads setting forth the essentials to enable a corporation of that kind to make an extension and which does not include the application to the Board of Railroad Commissioners. In the final analysis, therefore, the pivot on which the respondent's whole contention turns is whether the proposed extension is in fact an extension within the contemplation of section 90 of the Railroad Law (as amd. supra) or a new road, and our views on that subject have already been sufficiently elaborated.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event upon questions of law only, the facts having been examined and no error found therein.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. VINGENZO SCHIAVI, Appellant.

Indictment for manslaughter-conviction of an assault in the first degree not sustained — application of section 444 of the Code of Criminal Procedure — when “the act complained of is not proven to be the cause of death" the improper conviction of an assault does not constitute an acquittal — admissibility of dying declarations to prove an assault.

Vingenzo Schiavi was tried for the crime of manslaughter, under an indictment charging that he stabbed Antonio Perfetti in the abdomen, and inflicted a wound from which the latter died.

Upon the trial it appeared that the stabbing occurred during an affray between the defendant and his brother Pasqualo on the one side, and the deceased and his brother Antolena on the other. The People's witnesses were unable to identify the person who did the fatal stabbing, and while it was shown that the defendant's brother Pasqualo had a knife, the evidence was conflicting as to whether the defendant had one.

The defendant and his brother Pasqualo both testified that the stab in the abdomen, which was the only wound in that part of the deceased's body, and which was undisputably fatal, was inflicted by Antolena Perfetti in an attempt to stab the defendant.

After the case had been submitted to the jury they returned to the court for further instructions. The court gave such further instructions as follows: "Gentlemen of the Jury, I received your communication, in which you inquire if you could render a verdict for a lesser degree, and would say, if you are

FOURTH DEPARTMENT, JULY, 1904.

[Vol. 96. unable to agree upon a verdict on the charge named, you have the right, if in your opinion the evidence warrants it, to render a verdict for a lesser degree. The defendant is indicted for manslaughter in the first degree; there is a second degree of manslaughter, the extent of the punishment of which is less, and if in your judgment the evidence warrants it you can bring in a verdict for the lesser degree, or for any degree of assault constituted by said act, if warranted by the evidence, if you shall find that the act complained of was not the cause of death."

The jury subsequently returned a verdict of guilty of assault in the first degree. Held, that the logic of the verdict was that the jury found that while the wound in the abdomen was mortal, it had been inflicted by Antolena Perfetti and not by the defendant, but that the defendant had been guilty of assaulting the deceased with intent to kill;

That the verdict could not be sustained under that portion of section 444 of the Code of Criminal Procedure which provides: "Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act and warranted by the evidence," as the words "the act complained of," which must be proven not to have been "the cause of death," meant the act charged in the indictment, to wit, the stab wound in the abdomen;

That while the jury had no power to convict the defendant of assault, the verdict did not constitute an acquittal entitling the defendant to be discharged, but that there had been a mistrial of the case, and that a new trial should be ordered.

Semble, that the dying declarations of the deceased were not admissible for the purpose of proving that the defendant was guilty of the crime of assault. STOVER, J., dissented.

APPEAL by the defendant, Vingenzo Schiavi, from a judgment of the County Court of Steuben county in favor of the plaintiff, entered on the 14th day of October, 1903, convicting the defendant of assault in the first degree.

James O. Sebring, for the appellant.

Almon W. Burrell, for the respondent. SPRING, J.:

The defendant and his brother, Pasqualo Schiavi, were jointly indicted for manslaughter in the first degree charged with killing Antonio Perfetti on the 18th day of July, 1903. The indictment charged that the defendants named: "Then and there being wilfully and feloniously did make an assault and* him the said Antonio Perfetti, with a certain knife which they, the said Vingenzo Schiavi

* Sic.