
    In the Matter of the Application of The New York Central Railroad Company, Petitioner, to Review a Determination of and for an Order against Public Service Commission and Others, Respondents.
    Third Department,
    July 2, 1940.
    
      Clive C. Handy [Clyde Brown, Jr., of counsel], for the petitioner.
    
      Gay H. Brown, Counsel for Public Service Commission [Raymond J. McVeigh of counsel], for the respondents.
   Hill, P. J.

Review, under article 78 of the Civil Practice Act, of an order of the Public Service Commission dated November 1, 1939, which denied petitioner’s application to discontinue Sunday trains Nos. 170 and 193 north of Yorktown Heights on its Putnam Division, and which directed petitioner to operate the trains mentioned between Sedgwick Avenue and Brewster stations and between intermediate points.” Train No. 170 is scheduled to leave Brewster at seven-three a. m. and to arrive at Sedgwick avenue, New York city, at nine-two a. m. Train No. 193 is scheduled to leave Sedgwick avenue at five-fifteen p. m. and to arrive at Brewster at seven-twenty-one p. m. The application of the petitioner was to be permitted to discontinue train No. 170 from Brewster to Yorktown Heights, seventeen miles southerly, and to have a train originating at anddeaving the last-mentioned station at about the time which No. 170 now leaves (seven-forty-two a. m.) for Sedgwick avenue; and to have the terminal of train No. 193 at Yorktown Heights, arriving at about the time which it presently arrives (six-thirty-seven p. m.).

The court, at the time of the argument, inquired if a compromise could be effected, and the petitioner has suggested that the two trains be operated on Sundays during the summer, beginning with the last Sunday in June, and ending on next to the last Sunday in September. From the nine stations northerly from Yorktown Heights which would not be served by these trains, it appeared by a count that during the entire period from April 24, 1938, to and including February 26, 1939, 134 passengers got onto train 170 and 35 off, and that 43 passengers got onto train 193 and 373 off. From the same count during the period which the petitioner offers as a compromise, 53 got on and 5 off train 170, and 21 got on and 102 off train 193. The Putnam Division of petitioner is located between its' main line, whereon numerous Sunday trains are operated, and the Harlem Division on the east. The stations which it is desired to cut off average about seven miles east from the main fine, the greatest distance being ten miles. With these trains removed there would be a Sunday train (No. 183) from New York city arriving at Brewster at eleven-sixteen A. m. and another running in the opposite direction (No. 194) leaving Brewster at about four-twenty-five p. m.

For the year ending September 30, 1937, a deficit of $100,444.18, not including capital charges, depreciation or taxes, resulted from the passenger train operation on the entire Putnam Division. The gross average receipts per mile from the passenger trains on the- division was thirty-seven and one-half cents, and from trains 170 and 193, twenty cents. The Sunday trains which would remain (Nos. 183 and 194) average forty-nine cents per mile. One of petitioner’s exhibits shows that earnings, including mail and express, from the passenger trains for eighteen months ending June 30, 1939, were $207,912.74; and the expense, not including capital charges for purchase of equipment, repairs of stations, depreciation or taxes, was $334,135.06, making an operating deficit of $126,222.32. By another exhibit it appears that the New York Central system for the six months ending June 30, 1939, had a net income of $14,318,414 before deducting fixed charges, and after that deduction there was a deficit of more than $9,000,000. While the saving which would result from the elimination of these trains would be relatively small, petitioner is entitled to any relief possible. The earning per mile of these trains is a little over one-half the average of all the passenger trains on the division, which produce, as earlier stated, a deficit of more than $100,000. Large deficits may be lessened by a sufficient number of comparatively trivial savings.

The necessity for the trains is contended for by respondent in its brief, in part as follows: That certain persons used the Sunday trains at least once a month or better. Two of the witnesses testified that when the trains were discontinued in 1937 they were unable to travel on Sundays and had to stay at home. One witness testified that friends of hers lived in New Jersey and had to use the early Sunday train to get to New Jersey.” A pastor at Crafts says that although he did not use the trains himself, from five to twenty members of his community church did. In the summer time there are as many as fifty or sixty people and of these at least some five to twenty or twenty-five people come and go back and forth and on those particular trains, perhaps four or five come in there dining the fall and winter time.” The count does not indicate this number of churchgoers and an examination of the time table excites wonderment as to the hour and length of the church services, as train 170 from the north arrives at Crafts at seven-twenty a. m. and train 193 from the south at seven p. m. and that thereafter there is no train going southerly until seven o’clock the following morning when train 170 leaves.

From the financial picture shown by this record, it is obvious that the railroad may not hope for the investment of new private capital and can only operate through grants of public money raised by taxation. The inhibition against confiscation should be applied and the order of the Public Service Commission modified by permitting the petitioner to discontinue trains 170 and 193 on and after next to the last Sunday in September in 1940, the service to be resumed on the last Sunday in June following, to be continued until the anniversary of its discontinuance in September.

Crapser, Heffernan, Schenck and Foster, JJ., concur.

Order annulled and matter remitted to the Public Service Commission for the making of an order permitting the petitioner to discontinue trains 170 and 193 on and after next to the last Sunday in September in 1940, the service to be resumed on the last Sunday in June following, to be continued until the anniversary of its discontinuance in September, with fifty dollars costs.  