prevented, where the only failures of the carrier to obey the order of the Commission were at specified hours on two days named, each about two months before the proceeding was commenced, the court is not as matter of law required to grant the writ. Matter of Public Service Commission v. Interborough Rapid Transit Co. (1916), 219 N. Y. 355, affg., 172 App. Div. 324, 158 N. Y. Supp. 480. Upon an application by a railroad company for a certificate of public convenience, although no specific notice to property owners is required, the Commission has power to order that notice be given. Matter of Frontier & Western Railroad Co. (1913), 155 App. Div. 57, 139 N. Y. Supp. 627. The jurisdiction given under section 72 of the Public Service Commissions Law contemplates a proceeding or investigation instituted upon complaint of the form prescribed in section 71. Matter of New York & Queens Gas Co. (1915), 6 P. S. C. R. (1st Dist.), 40, 4 State Dept. Rep. 26. The rule that, in all proceedings instituted before the Public Service Commission against public service corporations to review a change of rates, the burden rests on the complainants to prove that the rates complained of are unreasonable, has been abrogated by chapter 240 of the Laws of 1914, in so far as it relates to common carriers, but remains in force as to all other public service corporations. Hence, where the complainants against a telephone company have failed to discharge the burden cast upon them by this rule, an order of the Public Service Commission fixing rates should be reversed. People ex rel. New York Telephone Co. v. Public Service Commission (1915), 169 App. Div. 448, 154 N. Y. Supp. 1093. Burden of proof is upon the carrier to show that a proposed increase in rates is just and reasonable. Opinion Public Service Commission, Second District (1916), 9 State Dept. Rep. 118, 195. A rehearing will not be granted for the presentation of new matter, without sufficient reason being presented why such matter was not brought to the attention of the commissioner on the first hearing. Matter of Employees of Halcomb Steel Company v. Syracuse, Lake Shore and Northern Railroad Company (1912), 3 P. S. C. R. (2d Dist.) 424. Where the finding of a commission as to value of property of a railway company has been disapproved and its order annulled and set aside by the Appellate Division the proceeding should be remitted to the commission for further action, and either party to the proceeding be allowed to present further testimony relating to the question of value. People ex rel. Westchester St. R. R. Co. v. Public Service Comm. (1914), 210 N. Y. 456. Where a carrier has failed to comply with the requirements of its charter and franchise, the Commission has its election whether to make an order under section 48 of the Public Service Commissions Law or to apply for a writ of mandamus under section 57. E. W. Bliss Co. v. Jay Street Connecting R. R. (1913), 4 P. S. C. R. (1st Dist.) 210; Matter of New York and Queens County Ry. Co. (1914), 5 P. S. C. R. (1st Dist.) 9, 1 State Dept. Rep. 8. ARTICLE III. REVIEW OF DETERMINATION OF COMMISSION BY CERTIORARI. (Fiero, Spec. Pro., 3rd Ed., pp. 1620-1622.) Hearings and determinations of Public Service Commissions are deemed judicial or quasi-judicial proceedings and are subject to review by the writ of certiorari. People ex rel. Brooklyn Heights R. R. Co. v. Public Service Comm. (1913), 157 App. Div. 698, 142 N. Y. Supp. 942. Although the Appellate Division has authority to review the action of a Public Service Commission on questions of law, it will not determine whether or not the commissioners arrived at the best solution of the questions before them. Matter of New York Central Railroad Co. (1917), 177 App. Div. 444, 164 N. Y. Supp. 310. An order of the Public Service Commission overruling a demurrer to a complaint is not reviewable by certiorari. People ex rel. Pennsylvania Gas Co. v. Public Service Comm. (1917), 181 App. Div. 147, 168 N. Y. Supp. 59. The Appellate Division does not have the power on a writ of certiorari to determine that an order of the Public Service Commission is unreasonable in the sense that it is an unwise or inexpedient order, but only that it is unreasonable if it is an unlawful, arbitrary or capricious exercise of power. The Appellate Division has no power to substitute its own judgment of what is reasonable in place of the determination of the Public Service Commission, and it can only annul the order of the Commission for the violation of some rule of law. People ex rel. New York & Queens Gas Co. v. McCall (1916), 219 N. Y. 84, revg., 171 App. Div. 580, 157 N. Y. Supp. 707. Where the allegations of a petition for a writ of certiorari to review an order of the Public Service Commission directing the relators to provide additional cars for public use on their several railroads are not supported by any allegations of fact, and taken as a whole amount to nothing more than a sworn statement that the Commission was wrong in making the order sought to be reviewed, and it appears that the relators have had an opportunity to supplement the bare allegations of their petitions by replying affidavits and have failed to do so, and an examination of all of the papers fails to disclose a single fact from which it can be judicially determined that the order of the Commission is even prima facie unreasonable, unwarranted or unlawful the court cannot determine that there is reasonable ground to believe that error has been committed, and motions to quash the writs will be granted. People ex rel. B. H. R. R. Co. v. Public Service Comm. (1917), 101 N. Y. 10. Rehearing. An order of a Public Service Commission denying an application for a rehearing cannot be reviewed by a writ of certiorari if it does not appear that the Commission has abused its discretion. People ex rel. N. Y. & Queens Gas Co. v. Straus (1918), 182 App. Div. 666. Where an order of a Public Service Commission was reviewed by certiorari and finally in effect affirmed by the United States Court of Appeals, and on a subsequent rehearing had before the Commission an annulment of the order was refused, and upon a hearing of a second writ of certiorari, the Appellate Division declined to interfere because of no showing of any abuse of discretion, it was held, that a motion by said Commission under section 74 of the Public Service Commissions Law for a writ of mandamus to compel respondent's obedience to its order will be granted. Public Serv. Comm. v. New York & Queens G. Co. (1918), 103 Misc. 702. QUIETING TITLE TO REAL PROPERTY. (Fiero, Spec. Pro., 3rd Ed., p. 1637.) REAL ESTATE OF CORPORATION. See CORPORATE REAL ESTATE, SALE OF. REAL PROPERTY. See INFANT, SALE OF REAL ESTATE OF; CORPORATE REAL ESTATE, SALE OF; DISCHARGE OF MORTGAGES OF RECORD; QUIETING TITLE TO REAL PROPERTY; SUMMARY PROCEEDINGS TO RECOVER REAL Property. REAL PROPERTY, CONDEMNATION OF. RECEIVER OF CORPORATION. See CORPORATION, RECEIVEr of. REMOVAL OF TRUSTEE. See TRUSTEE, RESIGNATION, REMOVAL, AND APPOINTMENT of. SALE OF CORPORATE REAL ESTATE. SALE OF INFANTS' REAL ESTATE. See INFANT, SALE OF REAL ESTATE OF. SPECIAL FRANCHISES, ASSESSMENT OF, HOW REVIEWED. See TAX LAW, CERTIORARI TO REVIEW ASSESSMENT. STATE BOARD OF TAX COMMISSIONERS, PROCEEDINGS, HOW REVIEWED. See TAX LAW. STATE WRITS. See CERTIORARI; HABEAS CORPUS AND WRIT OF CERTIORARI; HABEAS CORPUS TO BRING UP A PERSON TO TESTIFY; MANDAMUS; PROHIBITION; STATE WRITS ENUMERATED AND DEFINED. Art. STATE WRITS ENUMERATED AND DEFINED. (Fiero, Spec. Pro., 3rd Ed., pp. 1638-1648.) I. State writs enumerated and defined. II. Regulations as to state writs. III. Service of state writs and obedience thereto. ARTICLE I. STATE WRITS ENUMERATED AND DEFINED. (Fiero, Spec. Pro., 3rd Ed., pp. 1639-1643.) Certiorari is a common-law writ known from early times and issued by the King's Bench, the jurisdiction of which became vested in the Supreme Court of this State, and the method of the exercise of which is prescribed by the Code of Civil Procedure. People ex rel. Republican and Journal Co. v. Lazansky (1913), 208 N. Y. 435. ARTICLE II. REGULATIONS AS TO STATE WRITS. (Fiero, Spec. Pro., 3rd Ed., pp. 1643-1645.) The requirement, that a writ of mandamus awarded upon the application of a private person must show that it was issued upon the relation of that person, is not dispensed with by anything in the provisions of section 2070. People ex rel. Dunphy v. Chaney (1916), 171 App. Div. 303, 156 N. Y. Supp. 1035. ARTICLE III. SERVICE OF STATE WRITS AND OBEDIENCE THERETO. (Fiero, Spec. Pro., 3rd Ed., pp. 1646-1647.) Upon the demand of a relator accompanied by the tender of the fees as prescribed by law, it is the duty of the State Board of Tax Commissioners to furnish sworn and certified copies of the papers incorporated into a return by reference, but it is discretionary with the Board to permit inspection of its records with a privilege of making copies of the same. Attorney-General Rep. (1912), 406. STOCK OF CORPORATION, APPRAISAL OF. |