
    The People of the State of New York ex rel. The New York Central Railroad Company, Relator, v. Public Service Commission of the State of New York, Second District, Respondent.
    Third Department,
    June 30, 1916.
    Public Service Commission—authority to direct maintenance and reconstruction of side track—Public Service Commissions Law, section 37, construed.
    Where an electric lighting company has reconstructed a trestle at its own expense and with the consent of a railroad company which maintained a side track for the purpose of supplying the lighting company with coal, the Public Service Commission may, under section 37 of the Public Service Commissions Law, give .directions concerning the maintenance and operation of the side track built upon the trestle.
    The fact that the place of deposit or unloading of coal was called a “ coal pit,” there being no substantial depression beneath the surface of the earth, does not affect the authority of the Public Service Commission in the premises.
    The railroad company having permitted the lighting company to reconstruct the trestle at considerable expense, cannot arbitrarily impose upon it the condition that the side track may be discontinued at the will of the railroad company on thirty days’ notice, and the Commission may decline to make the lighting company subject to such a condition.
    
      Certiorari issued out of the Supreme Court and attested on the 4th day of December, 1915, directed to the Public Service Commission of the State of New York, Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in directing the relator by an order made on the 28th day of October, 1915, to maintain and operate a certain side track on its premises at Dundee, Yates county, N. Y.
    
      Harris, Beach, Harris & Matson [D. M. Beach of counsel], for the relator.
    
      Ledyard P. Hale, for the Public Service Commission.
   Cochrane, J.:

The Dundee Electric Lighting Plant maintains a power house immediately adjoining the premises of the relator in the village of Dundee. For a number of years the relator and its predecessor have maintained a side track on the railroad premises for the purpose of supplying the lighting plant with coal. At the place where the coal is unloaded the track is elevated above the ordinary grade and runs on a trestle consisting of wooden stringers resting ón abutments on which stringers the rails of the track are placed so that the cars of coal may be placed on such trestle and conveniently unloaded onto the ground whence the coal is removed to the power house of the lighting plant. This place of deposit or unloading is called a “'coal pit,” but there is no substantial depression beneath the surface of the earth. Some grading' has been necessary in order to make it conveniently usable for the purpose for which it was intended. In the year 1915 the trestle became unsafe and its use was discontinued by the relator until it was reconstructed or repaired by the lighting company satisfactory to the relator. Two proposed agreements were submitted to the lighting company by the relator, one with reference to the side track and the other with reference to the coal pit but neither was executed. The lighting company thereafter filed a complaint with the Public Service Commission against the relator because of its discontinuance of the said track. A hearing was had before the Commission and pending the proceeding, and about October 23, 1915, the relator submitted to the lighting company another proposed agreement relating both to the side track and the coal pit with the idea as it is claimed that such agreement would supersede the pending proceeding before the Commission. The agreement, however, not being entirely satisfactory to the lighting company it was submitted to the Commission and that body made the order complained of providing that the relator “ shall reconstruct so far as necessary for safe and convenient operation said side-track and structure, and shall maintain and operate the same ” subject to the terms of the last-mentioned contract, with one paragraph eliminated, which allowed the parties to terminate the contract on thirty days’ notice and in place of such eliminated paragraph the Commission gave permission to the railroad company at its option to substitute another provision whereby the contract might be terminated subject to law thirty days after written notice by either party to the other.

The authority of the Commission to make the order under review is section 27 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480), which requires a railroad corporation upon the application of any shipper to “provide upon its own property a side-track and switch connection with its line of railroad, whenever such sidetrack and switch connection is reasonably practicable, can be put in with safety and the business therefor is sufficient to justify the same,” and authorizes the Commission to investigate and under proper circumstances to “make an order directing the construction and establishment thereof, specifying the reasonable compensation to be paid for the construction, establishment and maintenance thereof,” and provides that the Commission “ may in like manner upon the application of the railroad corporation order the discontinuance of such switch connection.”

It is contended by the relator that under the foregoing statutory provisions the Commission had no power to give directions as to the coal pit. The order in question does not in terms contain any directions as to the coal pit, but only as to the “ sidetrack and structure. ” From what has been stated it can readily be seen that the coal pit is a mere incident to the side track. It is a convenient place for unloading coal for the use of the lighting company. It constitutes no “ structure ” separate and apart from the side track itself. The side track is simply elevated at the point in question and built oh a trestle so as to serve the convenience of the relator and the lighting company in unloading coal at-this point for the use of the lighting company. If the track were removed at this point there would be nothing left. The coal pit, so called, is not, properly speaking, the name of a structure, but the designation of a place over which the side track extends. It really means, substantially nothing except the side track itself so adjusted and built as to subserve the convenience of the parties and any direction given by the Commission in the order complained of concerning the coal pit means only the side-track as constructed at that point with reference to the use for which said side track is maintained. The trestle has been reconstructed by the lighting company according to specifications furnished by and acceptable to the relator and the expense thereof to the lighting company, including certain grading essential to the proper use and enjoyment of the so-called coal pit, is stated to have been about $1,000. Whether the Commission should or could under the statute order such a structure to be provided is a question not here involved because it has been provided by the lighting company at its own expense with the consent of the relator, and the only question now is as to the power of the Commission to give directions concerning the maintenance of the side track of the relator built upon this trestle. The Commission could certainly order the side track to be built by the relator up to the property of the lighting company so as to unload the coal directly thereon. The trestle and coal pit, so called, are there by the consent of the relator, and we think the Commission has ample authority* under the statute to give directions as to the proper maintenance and operation of the track upon the trestle.

Relator also urges that the Commission exceeded its authority in not permitting the relator to discontinue the use of the side track on thirty days’ notice, but the statute seems to give ample power to the Commission to order the continuance or discontinuance of the side track and connection on such terms and conditions as may be proper. The relator having permitted the lighting company to reconstruct the trestle at considerable expense certainly cannot now arbitrarily impose on it the condition that the side track may be discontinued at the will of the relator on thirty days’ notice, and the Commission was clearly within its statutory power in declining to make the lighting company subject to such a condition.

The determination should be confirmed, with fifty dollars costs and disbursements.

Determination unanimously confirmed, with fifty dollars costs and disbursements.  