(dissenting.) I am unable to concur in the result reached by the majority of the court. One of the principal grounds upon which the report of the commissioners is rejected is that the corporation" “has not sufficient means or capital to complete the enterprise.” The second section of chapter 101 of the Laws of 1892 (the statute under which the corporation is organized) fixed its capital stock at $25,000,000, divided into shares of $100 each; and it provides that the capital may at any time be increased or diminished by the board of directors, with the consent, in writing, of stockholders holding a majority of the shares then outstanding. Before these proceedings were begun, the capital stock was reduced to $2,000,000, all of which has been subscribed for at par, and 10 per cent, thereof paid in cash to the treasurer of the corpora*150tian. Thé estimated cost of the bridges and roads proposed to be constructed is from twenty-five to thirty million dollars. It has not been the policy of this state to require corporations engaged in the construction of internal improvements to procure sufficient capital to be subscribed to complete the work, and as a condition precedent to the right to commence the work, or to acquire, by the exercise of the right of eminent domain, lands necessary for the enterprise. Corporations for the construction of steam roads may be originated on a capital stock equal to $10,000 per mile for each mile proposed to be constructed, of which 10 per cent, in cash must be paid in. Laws 1890, c. 565, § 2. Under this act, when $1,000 per mile has been paid in, representing a subscription of $10,000 per mile, construction may be begun, and the right of eminent domain exercised. Ten thousand dollars per mile is a very small part of the sum necessary to be expended to construct and equip a modern railway. I doubt if the history of internal improvements in this country shows a single instance in which all, or a considerable part, of the capital required to construct a railroad of any great length, or important canal, or a bridge for railways over any of our great rivers, has been subscribed before the corporation entered upon the work of construction. When the work of construction has progressed, and the enterprise is shown to be feasible, capital is attracted, and invested in the form of stock or bonds. It seems unreasonable to require that sufficient capital should be subscribed to complete an undertaking requiring the expenditure of twenty-five or more millions of dollars before the right to undertake its construction has been acquired. Sufficient should be subscribed to show that the application is made in good faith, and that there is reasonable probability that capital will be secured to complete the undertaking. It is said that sufficient capital has not been subscribed to pay the damages which will be occasioned to the owners of lands upon the route. A sufficient answer to this is found in the constitution, which provides: “Nor shall private property be taken for public use without just compensation.” The corporation could not take any private property without first making just compensation to its owner. I concur in the proposition “that a cross-town [elevated] road, connecting merely the ferries from New Jersey with those from Brooklyn, would not be of sufficient value to this municipality to justify the blockading of its streets, the interfering with its present and future means of transportation, and the injury which would necessarily result to the owners of adjoining property;” and it seems to me apparent that the earnings of such a line would be so insignificant that its construction- would not be entered upon by capitalists without it connected with a bridge or bridges crossing the East river, and that the danger that the road may, and the bridges may not, be constructed, is quite remote. I fail to find any evidence in the record showing that the construction of the lines proposed would interfere with the operation of any one of the elevated roads now constructed, or of such as may hereafter be constructed, if such rights and possibilities are to be taken into account.
*151This proceeding is taken under the following provision of section 4 of chapter 4 of the Laws of 1891, which is substantially a copy of section 18 of article 3 of the constitution of this state:
“Provided 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 railway or railways be first obtained, or in case the consent of such property owners cannot be obtained, that the determination of three commissioners appointed by the general term of the supreme court in the district of the proposed construction, given after the hearing of all parties interested, and confirmed by the court, that such railway or railways ought to be constructed or operated, be taken in lieu of the consent of such property owners.”
Is the right which is vested in the property owners to refuse assent to the construction of a road simply for the protection of their own private interests, or is it for the purpose of protecting public interests as well? It will be observed that, in case the consent of one-half of the property owners cannot be obtained, the approval of three commissioners, confirmed by the general term, may be taken in lieu of their consent. Whether property owners may raise, and this court consider, objections of purely a public nature, or such as may affect the rights of existing street or elevated railroad corporations, or of such corporations yet to be organized, which in no way affect the private rights of the contesting property owners, cannot be profitably considered in a dissenting opinion, and especially in view of the fact that the question has not been discussed. I find no evidence which shows that the construction of this road will more seriously affect the rights of owners of property on its line than the construction of existing elevated railroads has affected such rights on many of the streets in this city, or that it will more seriously affect the rights of such owners than will the construction of elevated railroads in the future, if any are to be constructed. It seems to me that this judgment is a dangerous precedent, and substantially denies the right to construct new elevated roads.
Upon the question whether the proposed bridge and railway will be a great public benefit, I rely upon (1) the approval of the common council of this city; (2) the approval of the war department of the United States; (3) the unanimous approval of a strong commission appointed by this court, which has not contented itself with giving a perfunctory report, but has supported its decision by cogent reasons. Gentlemen of distinction, who have given great attention to the question of rapid transit, testified before the commission, among them the mayor of the city of Brooklyn and Ex-Mayor Hewitt, of this city. Mr. Hewitt testified:
“I think an elevated railway crossing the island in the general neighborhood specified there, and connected with the various existing lines of transportation, would be a very great advantage to the city of New York and to its inhabitants. I think a connection between the ferries and the existing lines of transportation—the elevated lines—would be very advantageous to the city. Q. By such a railway as is proposed? A. By such a railway as you have sketched on that map. Q. An elevated railway? A. Yes; I think *152it would be still more advantageous i£ it connected with all o£ the ferries below Desbrosses street. I think the defect of it is that it does not go far enough.”
Other witnesses testified to the same effect; and it seems to me. that the evidence sustains and justifies the conclusion reached by the learned commissioners, and that their report should be confirmed.