
    The People of the State of New York ex rel. Mary Anna Steward and Others, Relators, v. The Board of Railroad Commissioners of the State of New York and Others, Respondents.
    
      Certificate of Railroad Commissioners that a proposed, road is necessary—refused when it is to be simply a switch of an existing road.
    
    On the hearing upon the return to a writ of certiorari, issued to review the action of the Board of Railroad Commissioners in granting, under section 59 of the Railroad Law (Chap. 565 of 1890), a certificate that public convenience and necessity required the construction of a proposed railroad, it appeared that the proposed railroad would -be ¡less thaá - three miles .in',length, and .would extend between two points on another line of railroad, in the- interest of which it was to be constructed; that while the proposed railroad would have no local traffic, its construction would shorten the distance between two points of the existing railroad about 3,000 feet, and would enable the latter to avoid grade crossings and excessive grades and curvature.
    
      Held, that as the proposed railroad would be practically a switch, or additional track of the old railroad, the Railroad Commissioners improperly exercised their discretion in granting the certificate.
    Merwin, J., dissented.
    Certiorari issued out of the Supreme Court and attested on the 5th day of October, 1898, directed to the Board of Railroad Commissioners of the State of New York and the individuals composing the said board, commanding them to certify and return to the office of the clerk of the county of '¡Mbany the proceedings had before such board upon an application made in the name of the Goshen Railroad Company for a certificate under section 59 of the-Railroad Law.
    
      Taylor & Seymour and Howard A. Taylor, for the relators.
    
      John C. Dovies, Attorney-General, and John H. Coyne, for the Board of Railroad Commissioners.
    
      George L. Brownell and Henry Bacon, for the Goshen Railroad Company.
   Herrick, J.:

If we treat the Goshen Railroad Company as an independent railroad corporation, in all respects separate and apart from the Erie Railroad Company, I can see no reason for its existence, and no public necessity or convenience to be met or subserved by it.

It is less than three miles in length; there is no local traffic, either passenger or freight to support or maintain it; and there is no pretense that it intends to do any local business, and as an independent road, of .course it is absurd to say that there is, apart from any other railroad, any through traffic to provide for.

Of course these considerations are not in all cases conclusive. A road may not expect any local traffic or any .through traffic of its own, but yet may be the connecting link between other systems of roads from which it derives its business, and where it would serve .as a convenience and necessity, as in the case of Matter of Depew & Southwestern R. R. Company (92 Hun, 408).

But that was a widely different case from the one before us. That road served as a connecting link between nine separate and distinct railroad corporations. To quote from the opinion of the ■court in that case: “ The convenience and necessity of a railroad from Depew to Blasdell is not questioned, and for the purpose of facilitating the transportation of freight both east and west, between Hew York and Chicago, its importance is apparent. It will shorten the distance between those cities about six miles, and the time required in the transportation of freight about that number of hours, and will obviate the necessity and inconvenience of taking freight cars through the city of Buffalo to interchange with connecting roads. There are five railroads passing through Blasdell to be brought into more immediate or direct connection with four at Depew by the proposed line between those two places.”

The Goshen railroad serves no such purpose; it will take the ■cars of the Erie Railroad Company from the tracks of the Erie railroad at one point and deliver them back again to the Erie Railroad Company at another point not quite three miles distant. The ■difference in distance between the two points, over the tracks of the Erie railroad as now laid, and over the proposed route of the Goshen railroad, is about 3,000 feet.

It cannot be considered as a tributary or feeder to the Erie road; it brings nothing to the Erie road except what it receives from it; it takes nothing from it except what it immediately returns to it; instead of a feeder or tributary, it is rather a parasite.

As a matter of fact it is practically a switch of the Erie road, and the only office that it performs is that of a switch or additional track of the Erie Railroad Company, and I think that, under all the cir■cumstances, it must be considered in conjunction with, and as a part of, the Erie railroad.

Its board of directors is composed of the officers of the Erie Railroad Company; its president, who is likewise the president of the Erie Railroad Company, says, in an affidavit placed before the Railroad Commissioners, that “The construction of said railroad, as proposed, is required for the safe, economic and proper conduct of the business of the railroad of the Erie Railroad System.”

The expert of the Railroad Commissioners in his report says: ■“This road is to be constructed by or in the interest of the Erie Railroad Company, in order to avoid the numerous grade crossings, ■excessive grades and curvature on its present line; all freight trains áre, at present, obliged to have the assistance of pushing engines through this village. It also saves one-half of a mile in distance; the road is in no way competitive.”

Now, while all these things sought to be accomplished may be convenient and necessary, not only for the Erie Railroad Company, but even for the general public, still it does not follow that the certificate required by section 59 of the Railroad Law (Laws of 1890, chap. 565) should be granted. The requirements of that section mean something more than that it is necessary and convenient to lay railroad tracks between two given points. If that was all that was meant, every time that the increasing business of a railroad company demanded the laying of an additional track, or the building of a turnout or switch, such necessity would be the justification for the organization of a railroad company to build such additional track, switch or turnout, and the issuance to it of a certificate of public convenience and necessity.

One of the reasons heretofore given for the enactment of the law, 1, that before a railroad corporation can exercise the power conferred ! upon such corporation, or begin the construction of its road, it must, receive a certificate of public necessity and convenience, was to! prevent the organization and operation of railroad corporations,; among others, “ by those seeking by threats of destructive competi-j tian to levy tribute upon existing roads.” To that, perhaps, it is ¡ well to add, also to prevent, or rather remove, the temptations to the officers of existing roads to build others that would be parasites upon, existing roads by doing the business for their own profit that should be done by and for the profit of such existing road of which they are the officers.

The good to be accomplished and the evils to be remedied by the erection of this road can be accomplished by the Erie railroad itself, and 'that without the operation of a separate and distinct corporation. By so doing the provisions of section 13 will not be evaded, and no. portion of its profits will be expended in carrying its traffic over the lines of another road between two points on its own line. The ’ decision of the Railroad Commissioners in granting the certificate is re viewable by certiorari. (People ex rel. Loughran v. Railroad Comrs., 158 N. Y. 421.)

The order of the Railroad Commissioners should, therefore, be reversed.

All concurred, except Merwib, J., dissenting, and Labdob. J., not voting.

Merwin, J.

(dissenting):

I dissent. The Railroad Commissioners after taking testimony and making a personal examination reached the conclusion that, public convenience and a necessity require the construction of the applicant’s railroad. I see no good reason for disturbing in this proceeding that conclusion. It is suggested that the rights of the municipal corporation of Goshen or the rights of the Erie railroad or its stockholders may be injuriously affected.' No issue is, however, presented by any of those parties. They are not here. It is doubtful -whether the relators are in a position to review the determination of the commissioners. The statute does not require notice to be given to them of the hearing before the commissioners, and it is not apparent how their legal rights are affected by the action of the commissioners. If the proposed route is not right the relators have a remedy by statute. So they have if the enterprise is not a public use within the meaning of the law (Code Civ. Proc. § 3360; Matter of Niagara Falls & W. R. Co., 108 N. Y. 375; Matter of Split Rock Cable Road Co., 128 id. 408.)

Determination of the Board of Railroad Commissioners reversed, with costs against the Goshen Railroad Company.  