In re the Public Service Commission — 154 A.D. 587

Majority

p. 587

In the Matter of the Application of the Public Service Commission for the First District for the Appointment of Three Commissioners to Determine and Report Whether a Rapid Transit Railroad or Railroads for the Conveyance and Transportation of Persons and Property, as Determined by the Commission, Ought to Be Constructed and Operated. (Park Place, William and Clark Street Route.)

First Department,

January 31, 1913.

Headnote

New York city — application for confirmation by Appellate Division of report of commissioners as to construction of subway — objections — confirmation of prior report not res adjudicata — preparation of plans by Public Service Commission — compliance with Rapid Transit Act.

On an application to the Appellate Division for the confirmation of the report of commissioners, appointed pursuant to section 18, article 3 of the Constitution, to determine whether a subway should be built over a

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certain route in the city of New York, evidence taken before the commissioners and objections to their report examined, and held, that the report should be confirmed.

A prior confirmation by the court of a report that a subway should not be constructed over said route is not res adjudicata.

The general plans adopted by the Public Service Commission sufficiently complied with the provisions of the Rapid Transit Act and were sufficient to confer jurisdiction upon the court.

Application by David Leventritt. and others, commissioners,' for a confirmation of their report in this proceeding.

George S. Coleman, for the motion.

Carl A. Mead, for the National City Bank of New York and others, constituting a committee, representing the Corn Exchange Bank and others, property owners.

Frederick B. Campbell, William Allen Butler and J. Edwards Wyckoff, for the trustees of the Liverpool and London and Globe Insurance Company, Limited, and other property owners.

John Larkin, for Potter & Kelsey, as trustees of property owners.

Moses J. Stroock, for Kuhn, Loeb & Co. and Jacob H. Schiff, property owners.

Geller, Rolston & Horan, for Farmers’ Loan and Trust Company, property owner, opposed.

This was an application for the approval by this court', under the provisions of section 18 of article 3 of the Constitution, in lieu of the consent of the owners of the property bounded on the streets affected. The commissioners, who were appointed to determine whether such a railroad can or ought to be constructed, have reported in favor thereof. Certain property owners appeared before the commissioners and strenuously opposed the approval, and the same property owners have appeared before this court and objected to the court’s confirming the report.

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The first objection to which it is necessary to call attention is based upon a proceeding before this court in 1906, when application was made to authorize a subway in. William street, in which proceeding commissioners were appointed, who reported that such subway should not be constructed and operated, which report was confirmed by this court March 12, 1907, and it is claimed that this is to be treated as res adjudicata and a bar to this proceeding. It is clear, however, that no such effect can be given either to the report by the former commissioners or the approval thereof by this court. What was there determined was that the particular subway and railroad, permission to construct and operate which was refused, should not be then constructed without the consent of the abutting property owners. The reasons for then refusing the consent are not material. There was no adjudication that no railroad should be built in that street, but a determination that under the existing conditions the particular railroad thus provided should not be constructed without the consent of the abutting property owners. Such a refusal to consent could not possibly be construed into a decision that no railroad should ever be constructed in the street or that on a change of conditions this court could not confirm a report of commissioners subsequently appointed, that, under the conditions submitted to them, a railroad then contemplated should be constructed and operated, notwithstanding the property owners had refused their consent. What the court now has to determine is, whether or not on the evidence submitted to the commissioners, their decision that a railroad should be constructed should be confirmed.

It is further objected that the general plan submitted by the Public Service Commission for the construction and operation of this railroad is insufficient to confer jurisdiction upon this court. This application is made under authority of the Rapid Transit Act (Laws of 1891, chap. 4, as amd. by several statutes, the last being Laws of 1912, chap. 226). Section 4 of the act (as amd. by Laws of 1912, chap. 226) requires the Public Service Commission to determine and establish the route or routes of such railroad and the general plan of construction and that “such general plan shall show the general mode of

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operation and contain such details as .to manner of. construction as may be necessary to show the extent to which any street, avenue or other public place is to be encroached upon and the property abutting thereon affected.” Section 6 of the act (as amd. by Laws of 1909, chap. 498, and Laws of 1910, chap. • 205) provides ■ that when the consent of the property owners, or, in lieu thereof, the authorization of the said Appellate Division of the Supreme Court upon the report of commissioners shall have been obtained, “the Public Service Commission shall at once proceed to prepare detailed plans and specifications for the construction of such rapid transit railroad or railroads in accordance with the general plan of construction, * * * including the number, location and description of stations and plans and specifications for the suitable supports, turnouts, switches, sidings, connections, landing places, buildings, platforms, stairways, elevators, telegraph and signal devices, and other suitable appliances incidental and requisite to what the commission may approve as the best and most efficient system of rapid transit in view of the public needs and requirements * * *.”

I think the general plans adopted by the Public Service Commission sufficiently complied with those provisions of the Rapid Transit Act. They contain such details as to the manner of construction as1 may be necessary to show the extent to which any street, avenue or any public ■ place is to be encroached upon and the property abutting thereon affected. It is manifestly impossible in preparing the general plan for the-construction of such a road to show just how deep an excavation will be necessary, or just what change in details will be required in order to properly construct the road, and we do not think it was intended that the general plans should contain such details. From the plans submitted and the testimony before the commissioners, it is apparent that the road to be constructed through William street was a double-track road on one level, as near to the surface of the street as the conditions as they were developed would permit. Upon the argu-' ment of the appeal we expressed to counsel who appeared for the respective parties that we thought. that before the report was confirmed the Public Service Commission should definitely

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determine the question as to whether or not this double-track road should be built upon one level instead of one track beneath the other; and to meet that suggestion the chief engineer has recommended to the Public Service Commission that the upper level plan be followed and that he be authorized to proceed in accordance therewith; and in pursuance of that report the Public Service Commission has passed a resolution that the recommendation of the chief engineer be approved and that he be directed to proceed in accordance with the suggestions contained in his communication. This action of the Public Service Commission has, therefore, removed any ambiguity that there may have been in the plans as originally presented. This is a mere detail and, of course, such a determination does not so change the plans as to require them to be resubmitted to either the municipal authorities or to a new commission. There was an objection also on behalf of the property owners that a more explicit provision should be made in regard to the liability of the city for damage to abutting property in consequence of defective or improper plans, or negligence in the manner of construction, or damages caused to abutting premises or buildings thereon by the construction of the railroad upon the route and plan proposed for • approval; and we think that so far as the city can secure the abutting owners, such liability should be assumed, and we are assured by the proper authorities that the interests of the abutting owners will be protected by the city. With these general observations upon specific objections made by the property owners, it is only necessary to add that the court, realizing the importance of this question, the great value of the abutting property and the difficult engineering problems that are presented in the construction of the proposed subway, have examined with care the testimony taken before the commissioners, with the result that the' court is satisfied that this subway can be constructed with the methods and appliances, which are now well understood, without serious damage _ to the abutting property, and that a subway in William street is an essential part of the general plan of underground railroads that have been adopted by the city of New York. The general welfare of the community requires that these methods of communication should be as ample as possible and that

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there should be no delay in providing means of transportation, and the welfare of the whole city requires that this subway, as designed by the Rapid Transit Commission, should be approved.

In directing, therefore, that the report of the commissioners should be confirmed, the court wishes to express its obligation to the gentlemen who have consented to. serve upon this commission for the manner in which their mvestigation was conducted, and the ability and devotion that they have shown in the discharge of the duties which they accepted at the request of the court. The record shows that the commissioners devoted the whole of the month of December in the performance of these duties and that instead of this proceeding taking months or years to complete, as has been too often the case in the past, the whole question was disposed of in a little more than a month from the time that the commissioners assumed their duty until the presentation of their report to the court. And the court also wishes to express its appreciation of the assistance which was rendered to the commissioners in thus promptly disposing of this matter by counsel who appeared for the various property owners who object to the construction of the road. The whole proceeding has, both by the commissioners and counsel, been conducted in a way to meet with our warmest approval, and we thus express our satisfaction with the methods that were adopted in the whole conduct of the proceeding.

The conclusion, therefore, is that the report of the commissioners should be approved.

McLaughlin, Laughlin, Clarke and Scott, JJ., concurred.

Report confirmed.