
    The People of the State of New York ex rel. New York, Westchester and Boston Railway Company, Respondent, v. The Public Service Commission, First District, Defendant, and The City of New York, Appellant.
    
      Railroads — power of public service commission to approve proposed increase of fare.
    
    
      People ex rel. N. Y., W. & B. Ry. Co. v. Public Service Comm., 193 App. Div. 445, affirmed.
    (Argued January 14, 1921;
    decided February 1, 1921.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, ■ entered July 2, 1920, which sustained a .writ of certiorari and annulled a determination of the defendant public service commission that it had no power to approve a proposed increase of fare on the relator’s railroad for the reason that its franchise limited the rate to be charged, and referred the matter back to the commission to determine the reasonableness of the proposed fare. The relator’s road is constructed entirely upon its own private right of way, excepting where it crosses streets or highways. All such crossings are either above or below grade, and are located and maintained under consents duly obtained from the appropriate local authorities. No part of its line is operated upon or along the surface of any street or highway and its only use of any public street is in so crossing the same. The consent from the city of New York contained the fare restriction referred to.
    The following questions were certified: 1. Is the railroad of New York Westchester and Boston Railway Company a “ street railroad ” within the meaning of section 18 of article 3 of the Constitution of the State of New York? 2. Even if said railroad is not a street railroad within the meaning of said constitutional provision, had the public service commission for the first district the power to increase above the five-cent maximum, the rate of fare prescribed in the agreement between the city of New York and the railroad company?
    
      John P. O’Brien, Corporation Counsel (Vincent Victory and Joseph A. Devery for city of New York, appellant.
    
      Ralph P. Buell for relator, respondent.
    
      Terence Farley and George H. Stover for public service commission.
   Order affirmed, with costs; first question certified answered in the negative; second question certified answered in the affirmative; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane and Andrews, JJ. Dissenting and voting to answer second question in the negative: Hogan and Pound, JJ.  