
    The People of the State of New York ex rel. New York and Queens County Railway Company, Relator, v. The Public Service Commission of the State of New York for the First District and. Edward E. McCall and Others, as Commissioners Thereof, Respondents.
    First Department,
    July 10, 1916.
    Railroad. — application under section 184 of Railroad Law to abandon portion, of route—when determination by Public Service Commission will not be disturbed — evidence.
    Where on an application by a railway company under section 184 of the Railroad Law to abandon a portion of its route, witnesses are called for and against said abandonment, issues of fact are thereby presented which are peculiarly within the province of the Public Service Commis sion to decide and its determination will not be interfered with unless against the preponderance of the evidence.
    Evidence in such a proceeding examined, and held, not to preponderate against the determination made by the Commission denying leave for abandonment but to be in its favor and that, therefore, an application for a writ of certiorari should be dismissed.
    Certiorari issued out of the Supreme Court and attested on the 28th day of May, 1915, directed to the Public Service Commission of the State of New York for the First District and to the members thereof, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in denying the petition of the relator for leave to abandon certain franchises.
    
      Arthur G. Peacock, for the relator.
    
      H. M. Chamberlain, for the respondents.
    
      Samuel J. Bosensohn, for the City of New York.
   Dowling, J.:

The relator, hereinafter called the company, operates street railways in the borough of Queens, city of New York. One of its routes runs from the Astoria (or Ninety-second street) ferry, east along Flushing avenue to Ehret avenue (a private road) and thence northerly along that avenue to North Beach. Its franchise permitted it to build out on Flushing avenue as far as its junction with Jackson avenue and thence to Flushing, to which point its tracks along Jackson avenue now extend. On December 8,1914, the Public Service Commission for the First District (hereinafter called the Commission) passed a resolution reciting the failure of the company “to construct and operate that portion of its franchise route on Flushing Avenue between Ehret Avenue and Jackson Avenue in the Borough of Queens, as required by law,” and directing its counsel “ to commence an action or proceeding in the Supreme Court in the name of the Commission for the purpose of having such violations stopped and prevented either by mandamus or injunction.” The petition for a writ of mandamus to compel the company to construct the uncompleted portion of its road on Flushing avenue, between Ehret and Jackson avenues, was accordingly prepared and filed, and an order issued out of the Supreme Court, county of Kings, on January 4,1915, requiring the company to answer the petition, and in case of default the writ prayed for was to be issued. An answer was duly interposed, from which it appeared that in the interim and on December 10, 1914, the directors of the company had adopted a declaration of abandonment of the franchise route on Flushing avenue, between Ehret and Jackson avenues, which was approved by the stockholders on January 13, 1915, on which day the company filed with the Commission its petition that the latter approve the declaration of abandonment. The petition in question is based on the ground that “ it is not necessary ” that a railway be constructed along Flushing avenue, from Ehret to Jackson avenues, and along certain streets and avenues not pertinent to the question under consideration. After a full hearing the Commission on April 3.0, 1915, made its order disapproving the declaration of abandonment, “with leave to said company to adopt and present a new declaration of abandonment covering all said portions of routes except that in Flushing Avenue between Ehret Avenue and Jackson Avenue, which new declaration of abandonment * * * will be approved by the Commission upon its presentation upon the evidence already adduced. ” A motion for a rehearing was denied. As the portion of the route along Flushing avenue was the only one the company was specially interested in abandoning, a writ. of certiorari was obtained to review the action of the Commission in denying the desired approval of its abandonment. The application by the company was made under section 184 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), the first sentence of which reads: “Any street surface railroad corporation may declare any portion of its route which it may deem no longer necessary for the successful operation of its road and convenience of the public to be relinquished or abandoned.” The section then sets forth the procedure to be followed thereupon, including the requirement that the approval of the Commission must be given thereto to make it effective. In this proceeding the Commission heard witnesses for and against the application. To support it the company called its president and experts to show that there was no necessity for the extension in question, in view of the present railway service in the vicinity and as the character of the adjoining territory was such that development in a large degree could not be expected soon, while the convenience of the public was amply served by existing lines, so that this additional two miles of railway were not required. On the other hand, residents of East Elmhurst (which is the section to and through which the line if constructed would run) who testified were all certain that the convenience of the public would be materially served by the completion of the missing stretch of track and gave reasons for their belief, based on local conditions, with which they were well acquainted. Under these circumstances an issue of fact was presented which it was peculiarily within the province of the Commission to decide, and with their determination we should not interfere unless, as was said in People ex rel. Brooklyn Heights R. R. Co. v. Public Service Commission (157 App. Div. 698), the evidence preponderates against the determination made by the Commission, for “ in the interests of the convenience and safety of the public the Legislature vested the Commission with broad discretionary powers and it would require clear and convincing evidence that their determination on the facts was erroneous to warrant the court in annulling the order. ” We find in the present proceeding that the evidence does not preponderate against the determination made by the Commission, but in its favor; nor is there any evidence before us to show that the determination on the facts was erroneous. The determination of the Commission will, therefore, be confirmed and the writ dismissed, with fifty dollars costs and disbursements to respondents.

Clarke, P. J., McLaughlin, Scott and Davis, JJ., concurred.

Writ dismissed and proceedings affirmed, with fifty dollars costs and disbursements.  