(182 N.Y.S.)

franchise rate, as here, but involved a violation of an order and a stipulation entered into between the gas company, the commission, and the city of Buffalo as a part of the order.

Assuming, however, that the franchise rate in the city of Buffalo was not involved in that case, the value of the decision lies in the fact that it construes the gas provisions of the statute to be different from the railroad provisions, and holds that the language of the gas provisions sanctions the increase while the proceeding is pending. When we take this decision, and read it in conjunction with the decision in the Glens Falls Case (People ex rel. Glens Falls v. Public Service Commission, 225 N. Y. 216, 121 N. E. 777), we find that the commission has jurisdiction of such a case as this, notwithstanding the franchise agreement, and that, the statute being operative as to such a case, it operates to sanction the increase pending the decision of the commission. The language of subdivision 12 of section 66 of the Public Service Commissions Law does not purport to be a legislative provision intended for the benefit of such companies as have no municipal franchise limitations as to rates. To so hold would be to give it a strained construction, for which there is not the slightest justification.

The language in subdivision 12 of said section 66 cannot be construed to mean one thing in one class of cases and another thing in the other class. Thus it may be said here, as was said in the Iroquois Case, 184 App. Div. 291, 171 N. Y. Supp. 383:

"It is apparent from what has already been said that defendant, in its at tempt to increase its rates for gas, has not violated any law. It has pursued the only course which the law prescribed for putting into effect an increase of rates."

It is the only course which the law prescribed for this respondent for putting into effect an increase of rates. Notwithstanding the fact that the rates are greater than the franchise rates, there can be no violation of law in doing that which the law allows to this respondent. This is so, irrespective of any assumption that, without the benefit of this statute, a change of rates would constitute a violation of law. Having held that the language of subdivision 12 of said section 66 must be applied generally in accordance with its unrestricted terms, I am bound to hold that, even if there was a franchise agreement, it was the legislative intent to overcome it by higher legislative authority and through the written law of the state. The statute itself presumes that the rates set forth in the schedules are fair and reasonable after the 30-day period, unless and until the commission

acts.

[3] It has been held under similar provisions of the law in relation to steam corporation rates that the filing of schedules abrogates even unexpired contracts with consumers. People ex rel. New York Steam. Co. v. Straus, 186 App. Div. 787, 174 N. Y. Supp. 868. If this is so, surely the Legislature, under its paramount rate-making power, unrestricted by the Constitution, may prescribe a method of changing a gas rate beyond that agreed upon between a gas company

and the local governmental agency, acting on behalf of its inhabitants, and may permit the filing of the rates to abrogate such franchise agreements.

It necessarily follows that, even assuming that the franchise rate is a rate fixed by law, and that its violation prior to the enactment of section 66 of the Public Service Commissions Law might have been a violation of law, the putting into effect of higher rates by the filing of a schedule under subdivision 12 of that section does not constitute a "violation of law" within the decisions cited by petitioner, or a "violation of law" under section 74 of the law, since all parts of this article must be read together and harmonized, and a lawful act under section 66 cannot be deemed an unlawful act under section 74.

[4] The sole question remains as to whether there was a violation of an order of the commission. Of course, section 74 contemplates a lawful and enforceable order of the commission; and if the commission makes an unauthorized order, it cannot predicate any such proceeding as this upon such order. The commission must point to some provision of the statute authorizing it to suspend a rate pending decision, or authorizing it to determine the matter preliminarily upon the basis of the franchise agreements, or authorizing to make a temporary decision upon some basis other than the merits, before it can sustain its order of April 1, 1920, or ask relief thereunder.

This it has failed to do. There is no power of suspension of the rate pending the investigation (Public Service Commission v. Iroquois Natural Gas Co., 184 App. Div. 285, 171 N. Y. Supp. 379), and the investigation must be a real one, conforming to the statute, and not simply a conclusion of fact pronounced by the commission without sustaining evidence (People ex rel. N. Y. Steam Co. v. Straus, 186 App. Div. 787, 174 N. Y. Supp. 868).

The commission has been empowered to determine and prescribe the just and reasonable rates and charges to be enforced in a given case (Public Service Commissions Law, § 66, subd. 5), and in fixing rates is required to have regard to a reasonable return upon the capital actually expended, and to the necessity of making reservations out of income for surplus and contingencies (Id. § 72). In making its order of April, 1920, the commission has not attempted to do this, but, on the contrary, has attempted, in effect, to enforce specific performance of the franchise agreements. This it cannot do, directly or indirectly, except after a hearing and determination on the merits that such rates are the just and reasonable rates to be charged.

[5] It is a body of limited powers, and can only do that which the statute specifically prescribes it may do. People ex rel. N. Y. Steam Co. v. Straus, 186 App. Div. 787, 174 N. Y. Supp. 868. The order of April 1, 1920, was a determination reached without evidence to sustain it, and must be held to be a nullity. In fact, the counsel for the commission seems to concede that the order is of no greater force and has no more basis of authority than is warranted by the assumption of the violation of law contemplated in his argument here, namely, that there is a violation of the franchise, and that the rate is not ef

(182 N.Y.S.)

fective until ordered by the commission. Having found to the contrary on that proposition, I see no way of sustaining the order of the commission as a valid and enforceable order.

The proceeding is therefore dismissed, with $50 costs.

GATTOVI v. NEW YORK CENT. R. CO.

(Supreme Court, Appellate Division, Third Department. May 17, 1920.)

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Frances Gattovi to recover for the death of Anthony B. Gattovi, her husband, opposed by the New York Central Railroad Company, employer and self-insurer. From a denial of the claim by the State Industrial Commission, claimant appeals. Affirmed.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Fluhrer, Reed, Wage & White, of Albion (David A. White, of Albion, of counsel), for appellant.

Visscher, Whalen, Loucks & Murphy, of Albany, for respondent. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission.

PER CURIAM. Decision affirmed.

WOODWARD, J. (dissenting). There is no dispute as to the facts. Plaintiff's intestate, at the time of receiving his fatal injuries, was employed as a brakeman assigned to a switching crew at Albion, N. Y., by the New York Central Railroad Company. While thus employed he was engaged in switching a car loaded with coal from the main tracks or yard at Albion to an elevated siding in front of the premises of the consignee of said coal car. The car which was being moved had arrived at Albion at 9:50 p. m. of the previous day, and the shipment of coal originated at Coxton, Pa., consigned to Harold Crowther, a coal dealer at Albion. The car had been dropped out of an interstate train, as suggested above, the previous evening, and at the time of the accident this car was being moved from the point where it was delivered in the yard to an elevated siding, which appears to have been used by several local shippers, and, in cases of emergency, by the railroad company itself. In other words, this car, which had reached its destination at Albion the night previous, was being placed for unloading when the accident occurred, and the State Industrial Commission held that the interstate shipment or movement did not end until the car was so placed, and that there was a custom to deliver coal to this particular consignee at this particular siding. We are of the opinion that the interstate character of the movement ended when the interstate train dropped the car in the yards at Albion and passed

on with the remainder of the train. There was a delivery of the consignment at the place of destination, and the fact that a local switching crew undertook to "spot" the car for unloading is of no more consequence in determining the character of the transaction at the time of the accident than would be the acts of individuals in moving the car for the purposes of unloading it. If the consignee had sent men into the yard, and had caused them to move the car to a convenient point for unloading, there clearly would not have been an interstate movement, and its character is not changed because the defendant, in the practical operation of its facilities, moved this particular car upon a siding provided by local shippers. It was a local switching crew which moved this car, not the interstate train which brought it in. The claimant's intestate had no relation to the car, so long as it was a part of the interstate train; his relations commenced some 10 or 12 hours after the interstate movement had ended. It is true, of course, that "transportation includes delivery," as said by the Court of Appeals in N. Y. C. & H. R. R. R. Co. v. General Electric Co., 219 N. Y. 227, 234, 114 N. E. 115, 117 (1 A. L. R. 1417) but, as said in the

same case:

"A railroad's duty to carry is a duty to carry over its right of way. Private sidings, owned and maintained by shippers, do not constitute the right of way, and the use that the carrier may be compelled to make of them is subordinate and incidental to the fulfillment of its primary function of carriage along its route."

Delivery for the purposes of determining whether a transaction is that of interstate or intrastate commerce must necessarily depend upon when the article of commerce becomes a part of the common property of the state, and this, it seems to us, depends not upon the delivery of the car at a particular spot, but upon its having reached its general destination, and there having been detached from the means of interstate communication or transmission. The car in question was directed to Albion. This contemplated, of course, delivery within the yards of the transportation company within the limits of Albion. When this point had been reached, and the car was taken out of its relation to the interstate train, and had been placed upon a siding, the delivery of the interstate commerce commodity was complete. It was no longer in transit between a point in one state and another; its journey as interstate commerce was at an end. It was going no farther, and all that remained was for a train crew, confined in its operations to moving freight within the yards, to place the cars as the usages and practical requirements of the facilities demanded. The fact that the car moved in interstate commerce yesterday did not change the facts of to-day. On the morning of the accident there was a carload of coal in the yards at Albion. It had no relation to any other car or with any means of transportation. It could move only as it was moved by some agency, and the agency invoked was that of a train crew exclusively within the jurisdiction of the state of New York. Its business was to shift freight in the Albion yards. If it had been the purpose to pick up this car, and to include it in a train to go to some other point in the state of New York, necessary to com

(182 N.Y.S.)

plete the transportation, a different case would have been presented. But its only purpose in moving this car was to adjust it to the practical requirements of the yard, and the claimant's intestate was employ⚫ed for this purpose at the particular time of the accident. It seems to us that the case comes within the rule recognized in Chicago, Burlington & Quincy R. Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941, and in Lehigh Valley R. Co. v. Barlow, 244 U. S. 183, 37 Sup. Ct. 515, 61 L. Ed. 1070, and we see no distinction. in principle between a car which has been upon a siding several days and one which has been there but a single day. The important fact is that the car has been taken out of its relation to interstate commerce and has become merely a part of the general property of the state, and when moved from one place in the yard by the local engine and crew is simply intrastate commerce, and as such governed by the laws of this state.

The determination should be reversed, and the case remitted to the State Industrial Commission, to be disposed of in accordance with this opinion.

KILEY, J., concurs.

(191 App. Div. 784)

HANSON PLACE METHODIST EPISCOPAL CHURCH v. CITY OF NEW YORK et al.

(Supreme Court, Appellate Division, Second Department. May 14. 1920.) 1. Pleading 326-Subway contractor, sued for damages to property, held entitled to further particulars as to defects in "staving, spilling, and underpinning."

In an action against a subway contractor for damages to property caused by negligence and creation of a nuisance in the performance of the work, where bill of particulars stated that the negligence consisted in "failing to furnish proper material necessary for the proper shoring, staving, spilling, and underpinning of the plaintiff's property, and in excavating for the construction of the subway," and further stated that the "shoring" was inadequate, because it was improper and insufficient in size, strength, and character to support the weight to which it was subjected under the conditions existing, defendant, upon demand therefor, was entitled to further particulars as to the defect or inadequacy of such "staving, spilling, and underpinning," or, if such things were included in the "shoring" described by first bill of particulars, defendant was entitled to have plaintiff so state.

2. Pleading 326-Subway contractor, sued for damage to rental value of building, held entitled to further particulars.

In action against a subway contractor for damage to plaintiff's property by negligence in construction and nuisance created thereby, where bill of particulars stated that rental value was damaged by building being rendered dangerous, dirty, and unsanitary, by reason of the careless, negligent, unnecessary, and unreasonable manner of placing and operating a derrick and dirt bunker in front of plaintiff's property, defendant was entitled to further particulars as to the respects in which the dirt and dirt bunker were carelessly, negligently, unnecessarily, and unreasonably placed and operated by contractor.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes