
    The People ex rel. West Shore Traction Company, Relator, v. Frederick W. Bauer et al., President and Trustees of the Village of Piermont, and Rockland Railroad Company, Defendants.
    (Supreme Court, Westchester Special Term,
    April, 1907.)
    Prohibition, Writ of: Nature and grounds — On whose application granted — Necessity for some right or interest in applicant; Procedure, etc.— Alternative writ — Motion to set aside or quash.
    Street railways — Street railway companies, their franchises and right to use of streets — Consent of public authorities — Certificate of necessity by railroad commissioners not a condition precedent.
    An objection to the sufficiency of the papers upon which an alternative^ writ of prohibition has been granted may be taken by motion to dismiss the writ.
    
      It is not necessary for a street railway company to obtain from the State railroad commissioners a certificate of public convenience and necessity as a prerequisite to the granting of local consents and franchises.
    A street railway company, owning no property and not being a resident or taxpayer in the village and having no vested right and no village consent and franchise, has no interest that entitles it to a -writ of prohibition to prevent the village authorities from granting a franchise to another company to construct a street railway through the village, though the former company has applied for a franchise over a different route.
    Motion to set aside a writ of prohibition.
    Edward J. Walsh, for relator.
    White & Case, for defendant Rockland R. R. Co.
   Tompkins, J.

A writ of prohibition was granted by the court on April 24, 1907, commanding the defendants to refrain from granting a franchise to the Rockland Railroad Company to construct a line of trolley railroad through the village of Piermont, and was made returnable on the third Saturday of May, at a Special Term to be held at White Plains.

A motion is now made by the defendants to set aside the said writ upon the papers upon which the same was granted, and upon the grounds that such papers were and are legally insufficient as a foundation for said writ.

The relator has an application pending before the trustees of the village of Piermont for a franchise to build and operate its proposed trolley railroad through and along Piermont avenue in said village of Piermont. This application has not yet been acted upon by the village board.

At the time of the allowance of the writ of prohibition, the defendant Rockland Railroad Company also had an application pending with the said board of trustees of the village of Piermont, for a franchise or consent to construct, maintain and operate a street railroad through the said village of Piermont, but over and along an entirely different route than that described in the petition of the relator as its route.

This application to set aside the writ of prohibition on the ground that tire papers upon which it was granted were legally insufficient must b.e granted. In the first place, there is nothing in the law to prevent the local authorities of a village or town from granting a consent or franchise for the building, maintaining and operating of a street surface railway to two or more rival companies, provided the routes are not the same. In this case the routés described in the petitions of these two companies are entirely different, and do not touch each other at any point.

It is urged on behalf of the relator that the Rockland Railroad Company has no certificate from the State board of railroad commissioners of public convenience and necessity, under section 59 of the Railroad Law, for the route through the village of Piermont, described in its petition, and for that reason the village authorities have no right to give tire village' consent.

There is nothing in the Railroad Law or in any statute that requires the granting of the State railroad commissioners’ certificate as a prerequisite to the granting of local consents or franchises.

There is nothing in the law to prevent the Rockland Railroad Company making application for, and receiving, a certificate of public convenience and necessity after, it has received its local franchise.

The papers upon which the writ was granted fail to show any such interest on the part of the relator that entitles it to a writ of prohibition against the village authorities. It owns no property and is not a taxpayer or resident of the village. It has no vested right and no village consent or franchise, and has applied for none over the route proposed for the defendant Rockland Railroad Company, and it has no certificate of convenience and necessity for that route. It simply occupies the position of an applicant for the consent of the village authorities for its proposed route, while the Rockland Railroad Company is seeking a like consent for its proposed route.

The court will not interfere at such a stage to prevent the exercise by the village authorities of their judgment-and discretion. The argument is made by counsel for the relator that the writ cannot be set aside upon motion, and that the points now made against the sufficiency of the papers should be presented by demurrer or in the return.

The Code fails to provide for a demurrer to an alternative writ of prohibition, but. does provide (§ 2097) that an objection to the “legal sufficiency of the papers, upon which the writ was granted, may be taken in the return,” and that a motion to set aside the alternative writ, for any matter not involving the merits, must be made at a term where the writ might have been granted.

These provisions justify the inference that an objection to the sufficiency of the papers may be taken in the return, or presented at a Special Term of the court before the return day.

Motion to set aside writ granted.

Motion granted.  