Public Service Commission v. Fox — 96 Misc. 283

Majority

p. 283

Public Service Commission, Second District, Plaintiff, v. Ansel Y. Fox, Defendant.

(Supreme Court, Albany Special Term,

July, 1916.)

Headnote

Transportation Corporations Law, § 26 — when requirement of statute may not be ignored — municipal corporations.

Under section 26 of the Transportation Corporations Law one operating a horse-drawn vehicle along and upon city streets for the carriage of passengers at a charge of fifteen cents or less, regular trips being made morning and evening, must procure the consent of the local authorities and aiso a certificate of public convenience and necessity, and the requirement of the statute may not be ignored on a showing that the passengers are only the employees of a manufacturing piant wno are a “ mutual transportation club ” each paying when he does ride a fare of five cents.

p. 284

Application for an injunction.

Ledyard P. Hale, for public service commission, second district, petitioner.

Edgar Denton, Jr., for defendant.

The petition asks for an injunction restraining the defendant from operating a vehicle for the carrying of passengers for hire regularly each business day through, along and upon the streets of the city of Elmira, for the reason that defendant has neither obtained a certificate of public convenience and necessity as required by section 26 of the Transportation Corporations Law nor has defendant procured the consent of the local authorities of the city of Elmira.

The defendant admits the allegations of the petition as to failure to obtain certificate and local consent. The defendant is operating a horse drawn vehicle carrying passengers at a rate of fare of fifteen cents or less through the streets of Elmira. The capacity of the vehicle is thirty-three passengers.

Begular trips are made morning and evening.

The defendant attempts to justify his operation of this vehicle by showing that his passengers are the employees and only the employees of a certain manufacturing plant, that these employees have formed, under legal advice, a “ mutual transportation club” and that only members thereof ride, each paying when he does ride a fare of five cents."

All of which does not permit the defendant to ignore the requirement of the statute, which, for well considered and well understood reasons, must and should call upon this defendant to apply for and obtain from the local authorities of the city of Elmira permission thus to use its streets.

p. 285

Such a vehicle, while it may accommodate those who have the privilege to use it, is really under the conditions of present day traffic not altogether free from risks to those who are passengers nor is it lacking in elements of menace to other travelers upon the highway.

The local authorities are given by law the right to impose restrictions and conditions upon the use of city streets by such a vehicle, which constitutes in reality a bus line.

The defendant should also have a certificate of public convenience and necessity.

The prayer of the petition is granted and judgment may be entered accordingly.

Application granted.