
    In the Matter of New York Central Railroad Company, Petitioner, against Public Service Commission of the State of New York et al., Respondents.
   This is a proceeding under article 78 of the Civil Practice Act to review two orders of the Public Service Commission. The first order, adopted June 28, 1949, required the continued operation of two passenger trains, known as Nos. 2 and 3, on petitioner’s West Shore Railroad line between Albany, N. Y., and the New Jersey State line. The second order, adopted September 20, 1949, denied petitioner a rehearing. Petitioner proposed to rearrange its schedules of train service on the West Shore and to eliminate six passenger trains. It was permitted to discontinue trains Nos. 12, 21, 17 and 29. It alleges in this proceeding that the commission’s order for the continued operation of trains Nos. 2 and 3 was arbitrary and unreasonable. The commission had before it very substantial evidence that public necessity and convenience required the continued operation of these trains, and therefore we have no power to interfere with its determination in that regard. The evidence also revealed that passenger, train service on petitioner’s West Shore branch was operated at a substantial annual loss, but its total railroad operations, including that of the main line on the east side of the Hudson River, were profitable. This is not a rate case and hence the issue of a fair return upon capital invested is not before us. The commission determined that the public necessity and convenience outweighed the financial loss resulting from the continued operation of trains Nos. 2 and 3. This determination was within the power of the commission to make. The operation of any branch of a railroad at a loss does not, as a matter of law, require regulatory relief where the operations of the railroad as a whole are conducted at a profit (Mississippi B. B. Comm. v. Mobile & Ohio B. B. Co., 244 U. S. 388; Missouri Pacific By. Co. v. Kansas ex rel. B. B. Comrs., 216 U. S. 262; Atlantic Coast Line v. North Carolina Corp. Comm., 206 U. S. 1). Under this legal principle, and where the commission determines upon substantial evidence that public necessity and convenience are best served by the continuance of certain trains, no judicable issue is left in a proceeding of this character. Orders unanimously confirmed, with $50 costs and disbursements. Present — Poster, P. J., Heffeman, Brewster, Bergan, and Coon, JJ. [See post, p. 865.]  