
    The People of the State of New York ex rel. Rockland Railroad Company, Village of Grand-View-on-Hudson and Others, Relators, v. George W. Aldridge, Chairman, and Others, Commissioners, Constituting the Board of Railroad Commissioners of the State of New York, and the West Shore Traction Company, Respondents.
    Third Department,
    May 6, 1908.
    Railroad. — certificate of public convenience—section 59, Railroad Daw.
    That part of a traction company’s proposed line parallels the route of another trolley road which has made little, if any, progress in construction, is only one of the faces to be considered in determining whether a certificate of public convenience and necessity should be granted where the route of the traction company is to be much more extended than that of the trolley road.
    A prior determination of the Board of Railroad Commissioners that another trolley road should not use a public avenue is not res adjudicate/, as to whether public necessity requires a railroad upon that avenue on the subsequent application of a traction company, and where the necessity of a road is admitted, and it appears that the village authorities will have power to determine the details of the construction on the avenue, a certificate of convenience and necessity granted to the traction company will be upheld.
    Oertiorari issued out of the Supreme Court and attested on the 27th day of April, 1907, directed to George W. Aldridge and others, commissioners, etc., commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in relation to the granting of an application of the West Shore Traction Company for a certificate of public convenience and necessity 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, chap. 545).
    
      Charles J. Hardy, for the relator Rockland Railroad Company.
    
      Daniel D. Sherman, for the relators Village of Grand-View-on-Hudson and others.
    
      William Schuyler Jackson, Attorney-General, for the respondents Aldridge and others, the Board of Railroad Commissioners.
    
      Edward J. Welch, for the respondent West Shore Traction Company.
   Smith, P. J.:

Upon the 5th day of March, 1907, the Board of Railroad Commissioners of the State of Hew York granted to the West Shore Traction Company a certificate of public convenience and necessity, authorizing it to construct the road described in its certificate of incorporation. This road as thus proposed starts upon the Hew Jersey line in the county of Rockland and runs north through the villages of Piermont, Grand View, South Hyack, Hyack, Upper Hyack, Congers, Haverstraw and West Haverstraw, about twenty-five miles along the west bank of the Hudson.

This application was opposed first by the Rockland Railroad Company. This company is a trolley road which secured from the Railroad Commissioners in 1903 a certificate of public convenience and necessity, and whose proposed road parallels for a part of the way the proposed route of the West Shore Traction Company. Up to the time of the hearing before the Railroad Commissioners in 1906 the Rockland Company had made little if any progress in construction, and an application is now pending before the Public Service Commission to revoke its charter by reason of its failure to begin construction within two years. , The delay of this company in constructing its road would alone be sufficient to authorize the Railroad Commissioners to ignore its claim to protection. The West Shore Traction Company, however, contemplated a road much more extended than that of the Rockland Railroad Company, and the fact that part of its line parallels the route of the Rockland Railroad Company is only one fact to be considered in reaching a determination of the public convenience and necessity of the traction company’s proposed road.

A more difficult question arises over the controversy raised by some property owners of the village of Grand View over the right of the West Shore road to occupy Piermont avenue in said village. It appears that this village is situated upon the banks of the Hudson, and that immediately west of the village is a high rise of land. One public street only goes through the low land north and south, and that is the avenue in question. When the Rockland Railroad Company made application, it was decided by the Railroad Commissioners that it should not occupy Piermont avenue with its railroad, but the company was required to build upon a private right of way, west of the avenue, through said village of Grand View. It is first contended that this determination-is binding as res adjudicaba upon the question as to whether public necessity required a railroad upon that avenue. It clearly is not a legal estoppel, because the West Shore Traction Company was not a party to that proceeding. It is not without weight, however, in the determination whether this present company should be allowed to occupy that avenue in said village. It is probably true that the situation has not materially changed since the granting-of that certificate, but that private route is now authorized in behalf of the Rockland Railroad Company. Serious difficulties might arise if the West Shore Traction Company should assume to occupy the same route. It is not contended in the briefs of relators here that this line ought to be put back upon Broadway, which is situated up the hill. It is practically admitted that a trolley road in that region would be a public convenience, and, therefore, a necessity. The only contention is that it should be put back upon private land, and not be allowed to be placed upon Piermont avenue. Where upon the avenue the road shall be placed, whether in the middle or upon either side, is within the power of the village to determine. -The highway is laid out as thirty-three feet wide. A road upon the easterly side of the highway, where there are few residences as appears from the record, would not seriously interfere with the use of the highway. The road cannot be built through the village of Grand View without the franchise of the village board. The kind of rail and its setting are wholly within the direction of the village authorities, who can require the road to pave its right of way, so that a carriage can cross its rails with safety.

The Commissioners had this hearing at Eyack, and had full knowledge from personal view of the exact situation. They are officers intrusted by the State with the original determination of these questions, and whatever force may be seen in the objections of the-property owners in the village of Grand View, it is not sufficient to lead us to reverse the determination of the Commissioners, who of necessity had better knowledge of the situation than we can glean from a study of the record.

Th'e determination should, therefore, be confirmed, with fifty dollars costs and disbursements against the relators, The Bockland Bailroad Company and the Village of Grand View.

All concurred, except Kellogg, J., dissenting.

Determination confirmed, with fifty dollars costs and disbursements against the relators Bockland Bailroad Company and Village of Grand-View-on-the-Hudson.  