N.Y. Railroad Law § 140: Consolidation or merger of corporations owning or leasing continuous lines; abandonment of parallel lines; merger of subsidiary corporations

§ 140. Consolidation or merger of corporations owning or leasing

continuous lines; abandonment of parallel lines; merger of subsidiary

corporations. 1. Any railroad or other corporation, organized under the

laws of this state, or of this state and any other state or states, and

owning or operating a railroad, bridge or tunnel, either wholly within

or partly within and partly without the state, or whose lines or routes

of road have been located but not constructed, may consolidate its

capital stock, franchises and property with the capital stock,

franchises and property of any other railroad, tunnel or bridge

corporation or corporations organized under the laws of this state or of

this state and any other state or states, or under the laws of any other

state or states, or may merge or be merged into any such other

corporation in accordance with the procedure and with the effect set

forth in article nine of the business corporation law, whenever the two

or more railroads of the companies or corporations so to be

consolidated, or merged, their tunnels, bridges or branches or any part

thereof, or the lines or routes of their road, if not constructed, shall

or may form a continuous or connected line of railroad with each other

or by means of any intervening railroad bridge, tunnel or ferry, or by

means of a right under an agreement, lease or otherwise to operate cars

over any intervening railroad subject to the jurisdiction of the

commissioner of transportation, and any such consolidated or surviving

corporation may thereupon construct or finish the construction of such

continuous line of railroad, if not previously constructed, and operate

the same, subject to all provisions of law applicable to such railroad

corporation; provided, however, that nothing in this section shall be

deemed to authorize any such corporation organized under the laws of

this state or of this state and any other state or states to be merged

into any other corporation that is not organized under the laws of this

state or of this state and some other state or states, unless the

corporation into which it is proposed to merge any such corporation is

in possession of and holds under lease all of the railroad and

franchises of the corporation to be merged and operates the same as part

of the railroad or system of the corporation into which it is proposed

to merge any such corporation. Where the road to be operated is in whole

or in part a tunnel or sub-surface road, authorized by section

twenty-eight of this chapter, its consolidation with or merger into

another road or roads under the provisions of this section shall not

prevent any connecting railroad from having equal rights of transit for

its passengers and freight through or over the tunnel or bridge of any

such road, upon the same equitable terms, nor shall such consolidation

or merger be made where such tunnel or sub-surface road exceeds five

miles in length.

2. Any railroad corporation, which by consolidation or merger under

any provision of law, now owns, or shall hereafter own, parallel or

substantially parallel lines of railroad between any two points or

stations, shall have the right, upon obtaining the consent of the

commissioner of transportation, to abandon such portion of its railroad

and its franchise to own, maintain and operate the same on either of the

said parallel lines, as shall, in the opinion of the said commissioner

of transportation, be no longer necessary to furnish proper and adequate

service to the public in the transportation of passengers and freight

within the jurisdiction of the commissioner of transportation. Such

application for abandonment shall not be made until after it shall have

been authorized by resolution of the board of directors of the

corporation under its seal, and such resolution shall have been

submitted to the stockholders thereof at a meeting called and conducted

in the manner required by law. If the stockholders shall at such meeting

ratify such action of the directors, the secretary of the corporation

shall so certify under the seal of the corporation, upon such

resolution. If approved by the commissioner of transportation, such

approval shall be indorsed upon such resolution and annexed thereto, and

such resolution shall thereupon be filed in the office of the department

of state and the date of such abandonment shall be as of the date of

such filing. The property of any person, taken, affected or damaged by

such abandonment, shall be deemed to be required for a public purpose,

and if such corporation, before making application to the commissioner

of transportation, shall have been unable to agree with any person

damaged or claiming to be damaged as a result of such abandonment, as to

the compensation, if any, which should justly be made therefor, such

property, when paid for by such corporation as hereinafter provided,

shall be deemed to have been taken by acquisition, and the proceeding

thereon, shall be pursuant to the eminent domain procedure law. Any

such railroad corporation shall have the right within thirty days after

filing such resolution and approval, to make application by verified

petition to a special term of the supreme court in and for the county or

one of the counties in which the portion of the route to be abandoned

may be located, to ascertain and determine the compensation, if any,

which shall justly be made for the property of any person so taken,

affected or damaged and such abandonment shall not be deemed to be

effective against such person unless and until said corporation shall

have filed in the office of the clerk of the county in which said

application shall have been made, an undertaking in an amount approved

by the court that it will pay to the person or persons determined to be

damaged by the abandonment the amounts, if any, finally awarded to him

or them in the proceedings; notice of the application shall be published

once a week for four successive weeks in two newspapers published in

said county or counties, and affidavits of such publication and the

filing of such undertaking shall be filed in the office of the

commissioner of transportation. If such corporation shall fail to file

such petition within said period of thirty days, any person or persons

claiming to be damaged, may by separate petition apply to the court to

ascertain and determine the said compensation with like effect as if

such corporation had filed its petition. Nothing in this act shall be

construed to impair or affect the rights of any lienor or mortgagee in

and to the portion of the property of said railroad or railroads

affected by said abandonment, and no such abandonment shall be consented

to as herein provided unless such liens or mortgages shall have first

been discharged of record.

3. Any domestic railroad corporation or any foreign railroad

corporation authorized to do business in this state owning at least

ninety-five percent of the outstanding shares of each class of any

domestic corporation or corporations authorized to engage in business

similar or incidental to the business which the possessor corporation is

authorized to engage in, and any domestic railroad corporation owning at

least ninety-five percent of the outstanding shares of each class of any

foreign railroad corporation authorized to do business in this state and

also authorized to engage in business similar or incidental to the

business which the possessor corporation is authorized to engage in, may

merge such corporation or corporations into itself without the

authorization of the shareholders of any such corporation, in accordance

with the procedure and with the effect set forth in article nine of the

business corporation law for the merger of subsidiary corporations.

Any bridge corporation may be merged under this paragraph with any

railroad corporation which shall have acquired the right by contract to

run its cars over the bridge of such bridge corporation.

Any omnibus corporation may be merged under this paragraph with any

railroad corporation, provided such railroad corporation shall have

substituted stages, buses or motor vehicles for cars or trains upon

tracks on any portion of its route in accordance with section one

hundred twenty-one of the transportation law.