In re the Proceeding, under the Grade Crossing Elimination Act

Majority

p. 854

In the Matter of the Proceeding, under the Grade Crossing Elimination Act, for the Elimination of the Existing Highway-Railroad Crossing at Grade of the Railroad Operated by New York, Ontario and Western Railway Company and Plank Road (State Highway No. 5210-B) in the Town of Wallkill, Orange County. New York, Ontario and Western Railway Company, Appellant; Department of Public Works and Public Service Commission, Respondents.

Determination of the Public Service Commission, dated February 16, 1932, affirming determination of October 6, 1927, as amended by the determination of July 29, 1930, modified so as to provide that the extra twelve feet of sub-grade be deemed not a part of the elimination project, and as so modified unanimously confirmed, with costs to appellant. The change was not a part of the elimination project. The record is without proof of reason for a widened highway as a part of an elimination project. In making its order for the elimination of a grade crossing the Public Service Commission can act only upon facts which show reasonable necessity. Here there are no such facts but merely the expression of a wish by the Federal authorities. In view of the foregoing the appeal from the determination dated July 29, 1930, amending the determination of October 6, 1927, is dismissed, without costs. Present — Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ.