It is the duty of the Board of Railroad Commissioners to ascertain and determine whether the alleged railroad company is duly incorporated. If the ten per cent of the minimum amount of capital stock has not been subscribed and paid in good faith and in cash, the certificate should be denied. (People ex rel. Erie R. R Co. v. Board R. R. Comrs., 105 App. Div. 273; People ex rel. N. Y. C. & H. R. R. R. Co. v. Pub. Serv. Com., 122 id. 283.)
The only evidence tending to show the payment of such ten per cent is that three of the directors called at the Bank of Steuben in Hornell, one of them produced $50,000 in currency and gold, which was counted by the other two and handed over to the receiving teller of the bank for deposit, for which the teller gave them a bank book giving credit therefor to the three persons “As Directors of the Hornell, Bath and Lake Keuka Bail way Company.” This took place the day before the certificate of incorporation was filed. At the first meeting of the board of directors, a few days afterwards, the president stated that the $50,000, paid in to the directors, had been deposited in the Bank of Steuben to the credit of the three directors, and suggested that it remain there until the by-laws of the company were adopted designating the proper custodian of the funds and defining his duties, whereupon a resolution was passed that the. funds of the company remain on depositas stated by the president until further action is taken by the board regarding the same.
The relator called as a witness the director who produced the money at the bank, and who had subscribed for $20,000 of. stock in the company, and inquired if the company or himself had made any previous arrangements at the bank in relation to the money; also if the company at any previous time, or any of its directors, issued or gave their obligations for the purpose of obtaining the money; also if the money had previously been borrowed by the company from the same bank, which evidence was objected to and excluded. Thereupon counsel stated that the object of the question Was to investigate and ascertain whether there was a payment of ten per cent in good faith, and to ascertain the history of the transaction, whether it was really a paper transaction whereby the company *482in reality did "not obtain $50,000 without outstanding obligations against it, or whether-it was in fact a payment whereby the treasury of the company became augmented to that extent. And he-then again renewed the first question whether the company, or the. director had made any previous arrangement at the bank in relation to the money, which was excluded. Exceptions were, taken, to all of the rulings excluding this -class of testimony.. .
¡N otwithstanding the fact that $50,000 stood upon the books of the bank "to the credit of the three directors as such, it does not follow that as' between them and the bank, or between the company and the bank, the money so deposited was the unqualified property of.' the railroad company. The relator .sought to show that the. persons in- whose name the deposit was made had incurred an obligation. at the bank for the amount of money which was returned to the bank, or. that , such obligation had .been made in behalf of the ■ company. It is evident- that if this money had been obtained at the Bank- of Steuben by the three directors, with the .understanding. that-it was to be deposited;in their name but was not to be withdrawn until the obligation which the -bank received, for the money- was fully paid, or that the bank might, apply it at any time to the payment of stieh obligation, that as between the-directors and the bank, ■ or the company and the bank, the money was not.the free property^ of the- company but was subject to the obligation to, the batik given therefor. It is not claimed :that the bank had knowledge'or notice that this deposit was to be made to circumvent the law, or for what particular purpose it was made. • Therefore the. bank would not be estopped from claiming that as between it and the directors, or it and the company, the,money should not be' paid for the company until the obligation was paid-upon, which the hank advanced it. We must assume, in determining the materiality of the evidence offered, that the result would have shown that the bank held an obligation of thé directors or company for a- corre-', spending. amount, and that it would have appeared that the money • could not be withdrawn from the bank except to pay the obligation, or .after its payment.'- If such facts could have-beep shown, then the. alleged- payment of the ten per cent was purely a paper transaction and.was not a payment in good faith, in cash. ' It is true that at the time of. the deposit -there-was not in Tact any organized com*483pany which could give its note. Beither were there any legal directors of the company. But if an obligation had been given in the name of the company, or in the name of the three directors as such, and the same money deposited to the credit of the three directors or of the company, the bank could hold the money as a legal offset to the obligation, or could charge the obligation against the deposit and thus extinguish the deposit.
Ordinarily the Board of Bailroad Commissioners is not subject to the same rules as to the admission of evidence as applies in a court of justice, and their proceedings should not be vacated for an erroneous ruling in rejecting or receiving evidence except where such evidence might be controlling. But where material and convincing evidence is offered tending to show that the ten per cent has not been paid actually and in good faith in cash, the exclusion of such evidence is error and calls for a reversal of their determination. It in effect held, no matter how the director came into possession of the $50,000, whether it was upon the company’s note or the note of the three directors, that the fact was immaterial so long as the deposit was made in the name of the three directors. If the questions asked had been answered, and the answers were favorable to the relator, as we must assume they would have been for the purpose of determining the materiality of the questions, it might have conclusively appeared that the railroad company had no right to the $50,000 as against the bank, and that as between the company and the bank, or the three directors and the bank, the latter had a perfect defense to it, and that in fact no moneys had been paid in cash for the company. The determination appealed from should, therefore, be annulled, with fifty dollars costs and disbursements to be paid by the respondent railroad company.
All concurred, except Chesteb, J., dissenting in an opinion in which Sewell, J., concurred.