
    In the Matter of the New Hamburg and Poughkeepsie Connecting Railroad Company.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed, February 12, 1894.)
    Railroads—Certificate.
    The mode in proceeding, under § 59 of the general railroad law, indicates that the general term is to treat the application to compel the issue of the certificate as in the nature of a review of the decision of a subordinate tribunal, and not as it would an original application made to it in , the first instance.
    
      Homer F. Briggs, for directors.
   Cullen, J.

This is an application, under section 59 of the general railroad law, for an order directing the state board of railroad commissioners, to issue a certificate that public convenience and necessity require the construction of petitioner’s railroad as proposed in its articles of association. By the section referred to, a change has been made in the public policy of this state as to railroads. Formerly, it was within the power of any body of persons sufficiently numerous, and possessing the requisite capital, to construct a railroad at any time, between any termini they might select, the route of the road being subject to judicial review or determination, and they consent of the municipal authority being necessary to obtain a location in a city. Now it is necessary that a certificate shall be granted by the railroad commission that public convenience and necessity require the construction of the road. If that is refused, an application may be made to the general term of this court for an order directing the issue of the certificate, which, if granted, must state the reasons therefor. This mode of proceeding, while it grants the court power to review the action of the commissioners, plainly indicates that the court is to treat the application as in the nature of a review of the decision of a subordinate tribunal, and not as it would an original application made to it in the first instance. The burden rests upon the petitioner to show affirmatively that the commissioners erred in their determination, and the commissioners should be credited with some technical knowledge which this court is not presumed to possess. The petitioner’s road is to run from New Hamburg, through Wappinger’s Falls, to the city of Poughkeepsie. The village of Wappinger’s Falls is the seat of some large factories, and it can be assumed that its direct connection with the coal roads passing through Poughkeepsie, as well as with the city itself, would be a substantial convenience to its inhabitans, and also an advantage to the city. The objection made to the road on behalf of the city is that it will cross several of the principal streets at grade; and it was stated before the commission, on behalf of the petitioner, that it was not possible to construct the road otherwise than with such grade crossings. It may-be that none is practicable in this state, where the conditions of its territory vary so much, from the greatest city in the country to what is almost a wilderness ; but it is plain that grade crossings should not be allowed in the cities or in densely populated territory unless the necessity be paramount. It is not necessary to lay down any rule on the subject. It is sufficient to say that it was a consideration the commissioners might well weigh in determining whether to grant the application; and in their determination, based on this consideration, we cannot say that the commissioners erred. It is still within the power of the petitioner, if the topography of the country does not forbid, to modify its location or terminus so as to obviate this objection, and to renew its application, in which case there would seem no valid ground for refusing it. The application should be denied, with $10 costs.

All concur.  