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.
Last modified: February 3, 2019