
    The People of the State of New York ex rel. The Terminal Railway of Buffalo and The New York Central and Hudson River Railroad Company, Relators, v. The Board of Railroad Commissioners of the State of New York and Others, Respondents.
    
      Sailroad Commissioners—their determination that public convenience and necessity require the construction of a railroad — what must be shown to reverse it — what furnishes a sufficient basis for the determination.
    
    The Appellate Division will not reverse a determination of the Board of Railroad Commissioners that public convenience and necessity require the construction of a railroad, unless it is made clearly to appear that its decision was founded upon erroneous legal principles or was contrary to the clear weight of evidence. The fact that a proposed railroad will divert a large amount of traffic from the streets of a populous city and will effect a considerable saving in the time and cost of transporting freight, affords a sufficient basis for the determination that public convenience and necessity require the construction of such railroad.
    Certiorari issued out of the Supreme Court and attested on the 10th day of February, 1900, directed to the Board of Railroad Commissioners of the State of New York and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting to the Lehigh and Lake Erie Railroad Company a certificate under section 59 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1895, chap. 545).
    By an order of the Supreme Court, the Lehigh and Lake Erie Railroad Company was made a party to the proceeding.
    
      Ira A. Place, for the relators.
    
      Wilson S. Bissell and Frank H. Platt, for the respondents.
   Edwards, J.:

The certificate of incorporation of the Lehigh and Lake Erie Railroad Company was filed May 1, 1896. The purpose of its incorporation, as expressed in its articles of association, was to construct, maintain and operate a railroad “ from a point on the main line of The Lehigh Yalley Railway, about one-half mile west of its crossing of Union Road, in the Town of Cheektowaga, Erie County and State of New York; thence southerly, westerly and northerly through the Towns of Cheektowaga and West Seneca to a point in the City of Buffalo, in said County of Erie and State of New York, known as ‘ Tifft Farm.’ ” The proposed road is about ten • miles in length and lies within Erie county. Having complied with the. essential preliminary requirements of the statute, the railroad company applied in 1896 to the Board of Railroad Commissioners for a. certificate, under section 59 of the Railroad Law, that public convenience and a necessity require the construction of said railroad as ptroposed in said articles of association.” The application was-denied on August 26, 1896. On June 21, 1899, the company renewed its application for a certificate in accordance with the statute, which provides that “ the application may be renewed after one year from the date of such refusal.” On January 3, 1900, the-Board of Railroad Commissioners granted the application and issued its certificate. The relators have instituted this proceeding; to review and reverse the determination of the commissioners.

The Terminal Railway of Buffalo, one of the relators, is owned, jointly by the New York Central and Hudson River Railroad Company, the other relator, and by the Lake Shore and Michigan Southern Railway Company. It is about ten miles in length, extends from, the village of Depew to the village of Blaisdell, in Erie county, and was constructed for the purpose of connecting five railroads passing; through Blaisdell with four passing through Depew.

The Lehigh and Lake Erie railroad is projected in the interest of,, and is to be owned and operated by, the Lehigh Valley Railroad; Company. The latter company owns very large and important terminal properties on the shore of Lake Erie in the city of Buffalo,., known as Tifft farm, consisting of over 400 acres. It has no connection of its own between its main line near Buffalo and these ■ terminal facilities, but its freight is carried over the tracks of the ■ Buffalo Creek railroad, which runs through a thickly populated part of the city of Buffalo. The object to be attained in the construction of the proposed road is to furnish a connection between the LehighValley railroad and its Tifft farm terminal on Lake Erie ; and the-lines of - the proposed road will be outside of the corporate limits of' Buffalo, except for a short distance where it enters the city near the: shore of Lake Erie.

In reviewing the proceedings of railroad commissioners, courts recognize the fact that much importance should be attached to the opinions of the commissioners. “ The commissioners should be credited with some technical knowledge which this court is not presumed to possess.” (Matter of New Hamburgh R. R. Co., 76 Hun, 76.) In Matter of Auburn & Western R. Co. (37 App. Div. 162), where the board had denied the application for a certificate, the court said: The denial by the Board of Railroad Commissioners of the petitioner’s application was the exercise of a power, largely discretionary in its character, which the Legislature of this State had vested in a body created for a special purpose and composed of men peculiarly qualified by experience to deal with the vexatious problems arising out of the ever-increasing demand for better and more adequate means of transportation.”

The rule is now well settled that this court should not reverse the determination of the commissioners, unless it is clearly made to. appear that their decision was founded upon erroneous legal principles, or was contrary to the clear weight of evidence. (Matter of Amsterdam, J. & G. R. R. Co., 86 Hun, 578; Matter of Auburn & Western R. Co., 37 App. Div. 162.)

The question here presented is whether the decision of the commissioners that public convenience and necessity require the construction of the proposed road is contrary to the clear weight of evidence. An examination of the record convinces me that their determination is abundantly supported by the evidence. Although there was some oral testimony given before the commissioners upon the hearing, the most of the evidence presented by the applicant to the board was contained in affidavits, of which there was a large number made by various officers of the Lehigh Valley Railroad Company, by the members of the grade crossing commission of the city of Buffalo, by the proprietors of the various newspapers of Buffalo and by a number of prominent business men of that city. None were offered in opposition. While the commissioners are not bound by technical rules of evidence, and may receive affidavits which, in their opinion, tend to throw light upon the question upon which they are to pass (People ex rel. Steward v. Railroad Comrs., 160 N. Y. 208), it is true, as contended by counsel for the relators, that affidavits which simply express the opinions of the affiants without any facts are not evidence (Matter of Amsterdam, J. & G. R. R. Co., 86 Hun, 583), and these affidavits are, to some extent, obnoxious to that criticism. But eliminating from these' affidavits the mere opinions of the affiants, sufficient remains, together with the oral testimony, to support the conclusion of the commissioners that the proposed road is a public convenience and a necessity.

The statistics show that the interchange of traffic between. the Tifft farm and the Lehigh Valley railroad has increased from 191,746 cars in 1895 to 333,495 in 1898, and the volume of business is still increasing. This now is carried over the Buffalo Creek railroad, which is also used by other roads entering Buffalo. Its tracks are entirely within the city and its facilities for the transportation of freight are so inadequate that it is attended with much inconvenience and an average delay of four hours. The removal of this large traffic of the Lehigh Valley railroad from the streets of Buffalo, thereby diminishing the dangers and delays incident to its crossing a number of the city streets at grade, will alone furnish, I think, a sufficient basis for the conclusion as to public convenience and necessity. I think it may also be said that the reduction in the cost of the transportation of freight by the proposed route and the saving of at least four hours’ time is a public convenience.

It is urged by the relators that, with proper improvements made to the Buffalo Creek railroad, it could handle the business of the Lehigh Valley, and the present delays and inconveniences could be avoided. I think a sufficient answer to this proposition is, that it does not appear that the Lehigh Valley has the power to make the needed improvements to the Buffalo Creek railroad if they were desired.

It is further urged by the relators that the Terminal Railroad Company is willing to furnish adequate facilities at reasonable rates, to be agreed upon or fixed by arbitration, for the transportation over its line of the freight of the Lehigh Valley railroad. This would not meet the needs of the Lehigh Valley, for the reason that the Terminal line stops at Blaisdell, about three miles distant from the Tifft Farm terminal of the Lehigh Valley; and, furthermore, I think it apparent that, in the handling of its large amount of freight, the Lehigh Valley should be free from any embarrassment that might arise if subjected to the control of the relators. There does not seem to be any good reason why the Lehigh Valley should not be permitted to fill the gap between its main line and its Tifffc farm terminal and handle its own freight free from the control of other l’oads.

The fact that the proposed road would parallel the Terminal railway for the distance of four miles is not, I think, worthy of serious consideration, in view of the different purposes for which the roads are to be operated.

The facts of this case are easily distinguishable from the Goshen case (People ex rel. Steward v. Railroad Comrs., 40 App. Div. 559), and do not bring it within the condemnation which was there pronounced.

The determination of the board should be confirmed.

All concurred.

Determination of Board of Railroad Commissioners confirmed, with fifty dollars costs and disbursements.  