
    In the Matter of the Petition of the Public Service Commission for the First District, Respondent, under Section 57 of the Public Service Commissions Law, for a Writ of Mandamus against New York and Queens County Railway Company and Others, Appellants.
    Second Department,
    December 24, 1915.
    Public service corporations — order of Commissioners requiring railroad company to maintain waiting room for passengers—facts not justifying failure to comply with order — mandamus — form of peremptory writ—manner of complying with legal obligation.
    Where the Public Service Commission.has ordered a railroad company to maintain, at the intersection of two streets, during certain months of the year, a suitable waiting room or a suitable waiting ear for passengers, the failure of the company to comply with the order is not justified by the facts that the municipal authorities refused to permit a waiting car to be stationed in the street, and that, the corner buildings being otherwise occupied, the most available room in the locality would require passengers to walk some distance and to cross railroad tracks.
    Nor was the order complied with when the railroad company induced the keeper of a restaurant in the vicinity to display a sign which read “waiting station," and to allow passengers to wait for cars in his restaurant.
    A writ of mandamus requiring the railroad company to maintain a station pursuant to the order of the Public Service Commission should not be amended to require, in the alternative, the maintenance of a “ waiting ear,” where the stationing of such vehicle in the public highway would create a public nuisance.
    A peremptory writ of mandamus should command that which is in conformity with a legal obligation imposed; but it may vary the details of the manner of doing that act.
    
      It seems, that if the railroad company cannot secure a waiting room except by the exercise of eminent domain, or is in danger of extortion for rent, it may apply to the Public Service Commission for relief.
    Appeal by the defendants, New York and Queens County Railway Company and others, from an order of the Supreme Court, made at the Queens County Special Term- and entered in the office of the clerk of the county of Queens on the 20th day of April, 1915, granting petitioner’s application for a writ of mandamus; also from the writ of mandamus entered in said clerk’s office on the 21st day of April, 1915, and also from an order entered in said clerk’s office on the 13th day of May, 1915, denying defendant’s motion to resettle the order and the writ.
    
      Arthur G. Peacock [James L. Quackenbush with him on the brief], for the appellants.
    
      Edward J. Crummey [George S. Coleman with him on the brief], for the respondent.
   Jenks, P. J.:

In March, 1912, pursuant to the Public Service Commissions Law, the Public Service Commission for the First District ordered the defendant railroad corporations to maintain, for certain months in each year, at or near the intersection of two streets, a suitable waiting room or a suitable waiting car for passengers. In April, 1912, the defendants formally accepted the final order and promised to obey it. In March, 1915, the said Public Service Commission, under section 57 of such statute, petitioned the Supreme Court for an order to specify the time when the court would inquire into the facts and circumstances, and, unless sufficient cause were shown to the contrary, to issue a writ of mandamus or to afford such other or further relief by mandamus or injunction as might seem proper. The Special Term entertained the. petition and made an order for inquiry, whereupon defendants answered and the parties came before the Special Term. The attitude of the defendants in conformity to their answers, as stated by counsel to the Special Term, was that the defendants had been refused a permit by the local authorities to place a waiting car in the street, and when they did so, they were ordered to remove the car therefrom; that “at the time” of the order of the Public Service Commission there was no building vacant or available for a waiting room; that the defendants were unable “ at that time” to rent one; that by arrangement with the proprietor of a restaurant at one of the corners of the said intersection a sign had been placed in front of the restaurant that read “waiting station,” and that at all times people were welcome to enter therein to wait for cars. It was further stated that defendants desired to show that it would not be possible to have a convenient waiting room for the passengers of the three lines of the defendants unless at one of the four corners; that otherwise passengers must cross over a roadway and two car lines; that the four corners were tied up with leases for long terms; that the only two vacant rooms available were some feet distant from the corner and that the use of either room would require passengers to travel a distance of from 90 to 140 feet and to pass over car trades. The Special Term took into consideration that the order of the Public Service Commission was made after a hearing, and has been accepted by the defendants. It declared that there seemed to be no force in the contention then made that the order was unconstitutional and unreasonable, and that, moreover, it was too late to discuss those questions, for the defendants had accepted the order and had promised to obey it. The Special Term decided that the answering affidavits did not furnish any defense; that the first contention of the defendants was that they did furnish a room by the arrangement with the restaurant, the second that they could provide a waiting room, not upon the corner, but 100 feet therefrom, and the third, that they could not comply with the order. The court thereupon ordered a peremptory writ of mandamus to the defendants to provide and to maintain “a suitable waiting room at or near the intersection,” etc. Thereafter the defendants moved to resettle the order by striking therefrom the words and the court having inquired into the facts and circumstances, ” and by inserting the words ‘' or waiting car. ” The Special Term denied the application because the first request was contrary to the fact, and the second required the court virtually to direct the defendants to station a waiting car in the public highway and thus to create a nuisance. The defendants appeal.

No contention is made that the order of the Public Service Commission was not within the authority of sections 4, 49 and 50 of the Public Service Commissions Law. The Supreme Court was authorized by section 57 of the said law to inquire into the facts and circumstances in such manner as the court should direct, without further or formal pleadings and without respect to any technical requirement. The court, after notice and a hearing, issued its peremptory writ of mandamus in the first instance. Examination of the record shows that the court thus acted' upon the theory that statements and denials of the defendants were true and that it dealt only with the question of law. (See Code Civ. Proc. § 2070.) The order of the Public Service Commission required maintenance of a suitable waiting room or waiting car. But this is not to be construed so that if the defendants could not provide the latter it need not provide the former. Nor, when the order required that this accommodation should he provided at or near the intersection of the street, that it need not be obeyed if. the defendants could not locate the room on one of the corners of the intersection.' Nor was performance tobe excused if the most available room that could be found would require the passengers who chose to use it to walk some distance and to cross over the rails. Nor was the order complied with when the defendants arranged with a restaurant keeper that there might he displayed a sign outside of his premises with the legend “waiting station” and that those of their passengers who entered the restaurant might wait therein. Passengers might desire shelter and yet prefer the open air to the alternative of harbor in a restaurant.

I perceive nothing prejudicial in the denial of the motion to resettle the order for mandamus. The record shows that the court did inquire into the facts and the circumstances. The omission of the words “ or waiting car” was not without the power of the court. The defendants showed that they had attempted to maintain a waiting car, but in the public street, and that the local authorities had halted them. The defendants did not attempt to show that they had any right to maintain a waiting car in such a location. They did not contend that they could maintain a waiting car under lawful conditions. And so the court struck out that provision from the order for the writ. The lawful thing that the defendants were required to do was to maintain a waiting place for their passengers. The principle applicable is discussed in People ex rel. Green v. D. & C. R. R. Co. (58 N. Y. 152), in that the peremptory writ may command that which is in conformity with the legal obligation though it may vary the detail of the manner of doing, for “there is still nothing put upon the defendant but that which he is by law obliged to do.” In People ex rel. Keene v. Supervisors (142 N. Y. 278) it is said that the courts in awarding the peremptory writ mould it according to the just rights of all the parties.” The respondent concedes that if the defendants could not secure a waiting room except by the exercise of eminent domain (See Railroad Law, § 170,-as amd. by Laws of 1911, chap. 418), or if the defendants were in danger of extortion of rent, they might be in a position to apply to the Public Service Commission for relief. (See Public Service Commissions Law, §22.)

The order should be affirmed, with ten dollars costs and disbursements.

Stapleton, Mills, Rich and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  