
    In the Matter of the Application of the Ticonderoga Union Terminal Railroad Company, Petitioner, for a Certificate under Section 59 of the Railroad Law. Delaware and Hudson Railroad Company, Respondent.
    Third Department,
    November 14, 1906.
    . Railroad — certificate of convenience and necessity—financial prospects of road immaterial — certificate denied because of change of route;
    When in a proceeding to obtain a certificate of public convenience and necessity under section 59 of the Railroad Law, the evidence establishes the necessity, and it appears that the road is short and is to be fitiancéd by those interested in its construction, the certificate should not be refused by the Railroad Commission on the ground that it doubts as to whether the railroad would pay.
    But as in such proceeding the Conimission.is limited to the granting of a certificate of necessity for the road as proposed in the articles of association of the petitioner, if the route as finally asked for varies materially from .that originally proposed, a.certificate is properly denied.
    Application by the Ticonderoga Union Terminal Railroad Com-" pony, under section 59 of the Railroad Law (Laws of 1890, chap, 565, added by Laws of .1892* chap. 676, and amd. by Laws of 1895, ehap. 545), for an order directing the Board of Railroad Commissioners of' the State of New York to issue a certificate of public • convenience-and a necessity for the-construction of'a proposed road from" Addison Junction upon the line of the New York and Canada Railroad Company, now leased by the Delaware and Hudson Railroad Company, westwardly into and through the village of Ticonderoga.
    
      John B. Holmes, for the petitioner.
    
      Lewis E. Carr, for the respondent.
   Smith, J.:

• Upon the record the petitioner made a strong case for a certificate of necessity and convenience of a trolley road upon the route finally asked for. It is a fraction only over four miles in length. Its construction would cost a little over $60,000. It was to be financed by citizens of Ticonderoga who were substantially unanimous in their testimony that it was desirable and necessary. The conclusions of the witnesses seem to have been sustained by the facts sworn to in detail. Moreover one of the Commissioners himself, in the course of the proceeding, made a statement that the necessity of the road was conceded and this statement was unchallenged by the astute counsel for the Delaware and. Hudson railroad, which opposed the petitioner’s application. Under the circumstances of this case we are of opinion that the certificate should not have been refused because of a doubt in the minds of the Commissioners whether the road would be a paying one.

But the certificate finally asked for by the petitioner was one which • the Commission was without power to grant. In People ex rel. N. Y. C. & H. R. R. R. Co. v. Comrs. (92 App. Div. 126) this court held that under section 59 of the Railroad Law the Commission was limited to á certificate of the necessity of the road proposed in the articles of association of the petitioning road. The route for which this applicant finally asked varied materially from that proposed in the articles of association, especially in its eastern terminus. Without power to grant the certificate on condition that the petitioner change the route frotíi that proposed in the articles of association to that finally asked for we cannot say that the Commission improperly refused to grant a certificate of convenience and necessity of the route originally proposed.

The determination, therefore, must be confirmed, with costs.

All concurred.

Decision confirmed, with costs.  