
    The People of the State of New York ex rel. United Traction Company, Relator, v. The Public Service Commission of the State of New York, Second District, Respondent.
    Third Department,
    May 5, 1915.
    Public Service Commission — direction that street railroad company increase equipment — rehearing to show difficulty of raising money — building of underground conduits in city — erection of private telephone system by railroad company — orders of Public Service Commission affirmed, modified or annulled.
    The Public Service Commission, before the outbreak of the present European war, having directed a street railroad company to make certain additions to its equipment, should grant a rehearing asked for upon the ground that because of said war the railroad company cannot raise the money necessary to carry the order into effect.
    Evidence taken before the Public Service Commission examined, and held, to justify an order that a street railroad company purchase six new cars and that compliance with the order should not be stayed pending a rehearing of the proceeding in which the railroad company desires to show the difficulty of raising the necessary moneys.
    An order of the Public Service Commission requiring a street railroad company operating within the confines of the city to arrange with an interurban line for the giving of transfers within the city to passengers entering the same on the cars of the other line is reasonable and will be affirmed, especially where a portion of the fares received by the interurban company is paid to the municipal company.
    Although the Public Service Commission properly ordered a municipal street railroad company to purchase new and larger cars suitable to the dignity of the city in which it operates, because the cars in use are not convenient or comfortable, where the expense of such improvement will be great, a rehearing should be ordered in which the railroad company shall be permitted to show the difficulty in raising the necessary money owing to the present European war, with a view if necessary of postponing the improvement until the money can more easily be raised.
    Where a municipality within which a street railroad operates has power to compel electric wires to be put into underground conduits, and the railroad company has partially complied with an ordinance to that effect, the Public Service Commission should not order the railroad company to make certain yearly extensions of its underground conduits and report its progress, for the right to make such order rests with the city, and it may prefer that electric wires used for various purposes shall all be put in the same conduit so as to avoid the necessity of tearing up the streets for conduits built by different companies.
    
      Held, that the order of the Public Service Commission requiring a street railroad company to install a telephone system for its exclusive use should be modified so as to allow such private system to be connected with the general telephone system operating in the municipality and to be strung upon its poles.
    Certiorari issued out of the Supreme Court and attested on the 15th day of January, 1915, directed to the Public Service Commission of the State of New York, Second District, commanding it to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had in connection with the hearing and determination of the matter of the service and conditions on the lines of the relator in and about the city of Albany, which resulted in an order made on the 11th day of December, 1914, and a further order made on the 14th day of January, 1915, denying relator’s request for a rehearing.
    
      John E. MacLean [ Walter C. Noyes, Lewis E. Carr and H. T. Newcomb of counselj, for the relator.
    
      Ledyard P. Hale, for the respondent.
   Smith, P. J.:

By this writ the relator seeks to review the order of the Public Service Commission as to certain changes directed to be made in its equipment and method of operation in the city of Albany; and also its refusal for a rehearing requested by the relator mainly upon the ground that since the hearing upon the application upon which the order was made, by reason of the foreign war, it is claimed impossible to raise the moneys that are necessary to carry into effect the provisions of the order. Upon this last proposition we are of opinion that the Commission should have considered the relator’s application. The hearing was finished in July, 1914. At that time it was impossible to urge before the .Commission that the relator would be embarrassed in raising money for the proposed changes by reason of a general war which had not then been started. It may appear upon such a hearing that some of the more costly changes should be postponed until such time as the money could be more easily procured therefor, or, on the contrary, it may appear that the existence of the unusual conditions created by the war create no difficulty in raising the necessary funds for the purpose of carrying out the order.

It appears that before the making of the final order a number of recommendations of the Commission’s expert had been adopted, and that there were left unheeded thirteen particulars in which the relator was directed to make changes. Those matters are contained in the decision of the Commission, found at pages 595, 596 and 597 of the record. Of those complaint is not now made of the 1st or 2d recommendation, nor of the 6th, 9th or 10th. No stay upon this certiorari was granted as to the 12th and 13th, and no argument was made before this court thereupon. So that there is left for consideration only the 3d, 4th, 5th, 7th, 8th and 11th directions in said determina- . tion for review. The 3d and 4th directions prescribe an increase of service, which it is contended by the relator compels the purchase of six new cars. • There is considerable evidence in the record as to the necessity of this increase. We are of opinion, however, that the Commission was fully justified in making the directions contained in these paragraphs of the decision, and that the cost of the cars required to be purchased is not sufficient to justify a stay under these provisions until application can be made for a rehearing as to the difficulty in raising the moneys therefor.

The 5th provision in the order challenged requires the relator to arrange with the Schenectady Bailway Company for the giving of transfers within the city to passengers entering the cars within the city. The provision is reasonable, and it is doubtful if the law does not now require the same. The moneys received for these fares go to the traction company. Why transfers cannot be required to be given it is difficult to conceive. If objection should be raised by the Schenectady Bailway Company the Public Service Commission would at once give the assistance necessary to effectuate such an arrangement. As to the 7th paragraph, requiring the purchase of forty-two additional modern cars, it is strongly contended that the cars in present use are sufficient for the purposes of the road, and are convenient and economical, and that the Commission was not justified in ordering this large expense for the purpose, as is claimed by the relator, of putting on cars “in keeping with the dignity of a city such as Albany.” This, however, was a question of fact. It is probably true that the Commission would not be justified in ordering larger cars simply for the purpose of conforming to the style of an aristocratic city, if the smaller cars were convenient and adequate for the purposes for which they were being used. It is sworn, however, that these smaller cars are not convenient or comfortable, and are not adapted to the large traffic of a large city. These were all questions of fact upon which the Public Service Commission is deemed to have passed, with full knowledge of the existing situation. Their conclusion, we think, is founded upon sufficient evidence. The expense of this improvement, however, it is claimed will be great, and it is upon this in part that a rehearing was asked, to the end that the improvement might be delayed until money could more easily be raised. As to this one item we are of opinion that the order should not be enforced until the relator has been heard before the Public Service Commission, upon application to be forthwith made as to the practicability of raising the money therefor under the peculiar exigencies of the times.

The 8th provision of the order requires this relator to make material yearly extensions of its underground conduit and feeder system necessary for the continuity of its service, and that it notify the Commission before April 1, 1915, what extensions would be made during the year 1915, and that it make a similar yearly report thereafter. The city of Albany has by ordinance the power to compel the relator to put its wires underground. Pursuant to that power the relator has at an expense of $50,000 to $100,000 put certain of its wires underground. This work requires the tearing up of the streets of the city of Albany, which can only be done by permission of the city, and it is convincingly urged that with the city should rest the right to order these wires put underground and conduits built, wherein perhaps telephone wires and electric light wires can also be placed and which will require a single tearing up of the streets, rather than successive excavations to the annoyance and discomfort of the public. This provision, therefore, of the Commission’s order should be annulled.

One single direction remains to be considered. In paragraph 11 it is required that the relator should before April 1, 1915, install a telephone system exclusively for its use, with telephones, switchboard and appliances as described, and in regard to location substantially as indicated in said report. It is extremely doubtful whether there is sufficient in the evidence to authorize any direction for the adoption of any telephone system. Upon the argument, however, the relator did not strenuously object to this provision if modified so that the relator should be required to have its own telephones upon private wires connected with the general office of the telephone company, and such private wires might be with other wires strung upon the poles of the telephone company, or upon private poles. This would make a much simpler system than that described in the order, and to that extent the order should be modified, and as modified affirmed.

The determination sought to be reviewed, therefore, should be modified in accordance with this opinion, and as modified affirmed, without costs to either party.

All concurred.

Determination modified in accordance with opinion, and as modified affirmed, without costs to either party.  