201 A.D. 733 | N.Y. App. Div. | 1922
Lead Opinion
We are of opinion that the action of the common council of the city of Middletown was irregular in that the notice prescribed
Blackmar, P. J., Rich, Jay cox and Young, JJ., concur; Kelly, J., dissents and reads for reversal.
Added by Laws of 1915, chap. 667, as amd. by Laws of 1919, chap. 307.—[Rep.
Dissenting Opinion
I dissent. I think the plaintiff has no status to maintain this action in equity. The validity of the consent granted by the local authorities of Middletown to the operation of defendant’s bus line was passed upon, properly, by the Public Service Commission upon defendant’s application for a certificate of public convenience ánd necessity. (Matter of Kings, Queens & Suffolk R. R. Co., 6 App. Div. 241.) The plaintiff was a party to that proceeding and was heard before the Commission in opposition to the application; the order of the Commission cannot be attacked collaterally in this equity action. (Town of North Hempstead v. Public Service Corporation, No. 6, 199 App. Div. 189.) I am also of opinion that it was within the power of the common council of Middletown to prescribe the method and time of publication of notice of hearing defendant’s application for consent to operate a bus line in the city limits (Transp. Corp. Law, § 26, added by Laws of 1915, chap. 667, as amd. by Laws of 1919, chap. 307) and that the provisions of the Railroad Law (§ 172) concerning publication of notice have no application. This section 172 is derived from section 92 of the former Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as amd. by Laws of 1893, chap. 434), and does not relate to the operation of bus lines. At the time of defendant’s application to the Public Service Commission for a certificate of convenience and necessity the village of Liberty had not resolved to come within the provisions of section 26 of the Transportation Corporations Law. When after the close
Judgment affirmed, with costs.