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People ex rel. Cohoes Ry. Co. v. Public Service Commission, Second Dist.

Supreme Court of New York, Appellate Division

March 8, 1911

THE PEOPLE OF THE STATE OF NEW YORK ex rel. COHOES RAILWAY COMPANY, Relator,
v.
THE PUBLIC SERVICE COMMISSION OF THE STATE OF NEW YORK, SECOND DISTRICT, Defendant. FRANCIS P. LITHGOW, Intervenor.

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[Copyrighted Material Omitted]

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CERTIORARI issued out of the Supreme Court and attested on the 8th day of December, 1910, directed to the Public Service Commission of the State of New York, Second District, commanding said commissioners to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had in connection with the complaint of Francis P. Lithgow against the Cohoes Railway Company relative to passenger fare between the cities of Albany and Rensselaer.

COUNSEL

Patrick C. Dugan [Lewis E. Carr of counsel], for the relator.

Ledyard P. Hale, for the defendant.

Countryman, Nellis & Du Bois and Thomas F. McDermott, for the intervenor, Lithgow.

BETTS, J.:

The relator, Cohoes Railway Company, operates a trolley railroad in the cities of Albany and Rensselaer and across the bridge of the Albany and Greenbush Bridge Company between said cities. The said relator has charged from sometime before the passage of chapter 358 of the Laws of 1905, which took effect on May 1, 1905, and is still charging six cents fare to passengers from either Rensselaer or Albany who cross said bridge on its cars.

The said act, known as the Barnes act, provided amongst other things that not more than one fare of five cents should be charged by any company operating an electric railroad in or between the cities of Albany and Rensselaer for one continuous ride from any point upon said road or roads.

On or about December 8, 1908, one Francis P. Lithgow, a resident of the city of Rensselaer, complained to the Public Service Commission of the State of New York, Second District, the defendant herein, against the Cohoes Railway Company, the relator herein, that he was a patron of said company, patronizing its cars to and from the city of Rensselaer and to and from the city of Albany, and that said relator had charged him six cents fare instead of five cents and he further alleged that the Cohoes Railway Company was not complying with said chapter 358 of the Laws of 1905 and had never complied therewith so far as its rate of fare was concerned. The answer of the Cohoes Railway Company, the defendant in the

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proceedings brought by said Lithgow before the Public Service Commission, was in substance that it was complying with the law of 1905, that it was charging five cents for railroad fare and collecting one cent for toll for the Albany and Greenbush Bridge Company as its agent, making the six cents collected. Whereupon such proceedings were had before the defendant that an order was made November 22, 1910, directing the relator to comply with the said statute and deciding that it was not so doing, whereupon this relator after unsuccessfully applying for a rehearing brings this proceeding to review the action of the defendant and its decision.

The relator makes two principal attacks upon or points against the decision of said Public Service Commission as follows:

First. That in collecting six cents from each passenger crossing the bridge between Albany and Rensselaer, it collects five cents for itself and one cent toll for the Albany and Greenbush Bridge Company, acting as its agent for that purpose, and does not, therefore, violate the provisions of said chapter 358 of the Laws of 1905.

Second. Said chapter 358 as construed by the said Public Service Commission is unconstitutional because it impairs the obligation of contracts and denies to the railway company the equal protection of the laws and it asks for these reasons that the order of the said Public Service Commission made November 22, 1910, should be annulled.

It appears from the stipulated facts herein which were before the defendant on its hearing that for sometime prior to April 29, 1895, the Albany Railway had been running cars on its railway to the western or Albany approach of the Albany and Greenbush bridge over the Hudson river. On the 29th day of April, 1895, a written agreement was made between the Albany and Greenbush Bridge Company, party of the first part, and the Albany Railway, party of the second part, by which, so far as is material here, it was agreed as follows:

'First. The party of the first part hereby grants the party of the second part the right and privilege of transporting and conveying its cars and conveyances drawn or propelled by electricity, by a double railway track upon and over the drawbridge and approaches thereto belonging to and owned by the said party of the first part

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spanning the Hudson river between the City of Albany and the Village of ...


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