
    John Adikes and Thomas Adikes, Respondents, v. Long Island Railroad Company, Appellant.
    Second Department,
    December 24, 1914.
    Railroad — agreement for siding—discontinuance — power of Public Service Commission.
    A stipulation in an agreement made in 1897, between a shipper and a railroad corporation to furnish a switch and side track for the shipper’s convenience which enables the railroad company upon ten days’ notice to discontinue the connection upon reimbursing the shipper for a part of the expense of construction, reserves something of value to the railroad company and is not nullified by section 27 of the Public Service Commissions Law enacted in 1907, which vests in the State Commission the power, in case a railroad corporation fails to install a switch connection upon due application, to order, upon petition of the shipper and a hearing and investigation, the establishment and maintenance of the siding and adds “and may in like manner upon the application of the railroad corporation order the discontinuance of such switch connection.”
    Nor is such stipulation nullified by section 1 of the Federal Interstate Commerce Act enacted in 1906 which, while conferring similar power upon the Commission, does not specifically refer to the discontinuance of sidings.
    The maintenance or withdrawal of a siding is initially a matter between the shipper and the carrier, and the intervention of the Public Service Commission is unauthorized unless the parties have been unable to agree.
    In the absence of evidence as to what departure was made from the siding designated in the agreement, or whether the agreement authorized the changes, a judgment restraining the railroad from removing the switch and side track will be reversed and a new trial granted, so that the nature of the changes may appear. In the meantime, the interposition of the Public Service Commission may be sought should plaintiff be so advised.
    Jehks, P. J., and Stapletoit, J., dissented.
    Appeal by the defendant, the Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 26th day of March, 1914, upon the decision of the court after a trial at the Queens County Special Term.
    The judgment restrained defendant from removing a certain switch and side track.
    
      
      Alfred A. Gardner [Louis J. Carruthers and Joseph F. Keany with him on the brief], for the appellant.
    
      Augustus Van Wyck, for the respondents.
   Thomas, J.:

Pursuant to agreement with plaintiffs, the defendant in 1897 built a switch from its main track to receive for transportation plaintiffs’ products at Jamaica. The agreement enabled the defendant upon ten days’ notice to discontinue the connection, and in such case defendant would become plaintiffs’ debtor for the value of the part removed, inasmuch as the cost of the siding was met by the plaintiffs. This left the remaining expenditure at the loss of the plaintiffs. Section 27 of the Public Service Commissions Law was enacted June 6, 1907, and on J une 29, 1906, the Federal Interstate Commerce Act, section 1, amendatory of the original act, was passed. The State act vested in the State Commission the power, in case a railroad corporation failed to install a switch connection upon due application, to order, upon petition of the shipper and hearing and investigation, the establishment and maintenance of the siding, and adds, “ and may in like manner upon the application of the railroad corporation order the discontinuance of such switch connection.” The Federal act furnisher similar power to the Commission, but does not specifically refer to the discontinuance of sidings. The question narrows to this: Is the stipulation to enable the defendant to disconnect the siding rendered ineffective by either the State or Federal statute % It is argued that when the agreement was made the installation and discontinuance of switches was within the discretion of the railroad corporation, and that the agreement did not affect that right, and would not have done so if it had not contained the reservation; in other words, that the company gained nothing by the reservation, and that the statute operated as if no agreement had been made. In the absence of statutes otherwise constraining it, the company did have the discretion to build and to discontinue sidings, and had the siding been built at its expense, it could have withdrawn it at will. But it constructed it at the expense of the shippers, and could not in its discretion, and at any time, deprive them of it without reserving the right to do so. It was surrendering in some degree the right to give and to withdraw at will, and to preserve that right it stipulated for the reservation. The plaintiffs’ position is that the railroad company could contract to furnish a siding at the shippers’ expense, and after construction and payment therefor immediately take it away without full reimbursement, and that no reservation of right to do so was necessary. The proposition conflicts with all sense of justice. It may be that such contract would impliedly be subject to the duty owing the State to operate its railroad pursuant to its charter, and that it was contemplated that the agreement would yield to such obligation. But the plaintiffs are not contending that such exigency has arisen, but rather they urge that the present arrangement is both safe and practicable. If that be the case, it would not have been ultra vires to surrender the right to remove the siding until the due operation of the railway demanded its removal. So that the agreement did reserve something of value to the company. Hence, the situation is that the shippers got and paid for a siding pursuant to an agreement that the company could take it away by reimbursing plaintiffs for a part of the expense. But plaintiffs now urge that the subsequent statute in effect should be interpreted to read: “Ho siding already constructed shall be removed without the order of the commission, although the parties agreed prior to the passage of the statute that the defendant upon a certain payment and notice could remove it at any time.” The provision or withdrawal of a siding is initially a matter between the shipper and the carrier, and the intervention of the Commission is not authorized unless the. parties have been unable to agree. Here they did agree, and the company proposes to act upon the authority of the agreement. In my judgment, the statute does not overlay and nullify the agreement. The practical question is, who first shall apply to the Commission. The plaintiffs erroneously suggest that they cannot apply for a siding because they have one. In law they have none. One exists because the defendant is enjoined from removing it in the exercise of a legal right. The Public Service Commission is enabled by its superior facilities to investigate and to determine whether the plaintiffs should have a siding, and it is concluded that the burden rests upon the plaintiffs to initiate the application. I have not considered the fact that the siding was four times removed, inasmuch as the evidence does not show what departure was made from the siding designated in the agreement, or whether the agreement authorized the changes. In the absence of such evidence there should be a new trial, that the nature of such changes may appear. Meantime, the interposition of the Public Service Commission may be sought, if plaintiffs be so advised.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Burr and Rich, JJ., concurred; Jenks, P. J., and Staple-ton, J., voted to affirm upon the opinion of Mr. Justice Blackmar at Special Term.

Judgment reversed and new trial granted, costs to abide the final award of costs. 
      
       See Laws of 1907, chap. 439, § 37; now Consol. Laws, chap. 48 (Laws of 1910, chap. 480), § 37; 34 TJ. S. Stat. at Large, 379, § 1, as amd. by 34 id. 584, 585, § 1; 34 id. 838, Res. No. 47; since amd. by 36 id. 544, 547, § 7.—[Rep.
     