#### In the Matter of the Application of the Public Service Commission for the First District for an Order Directing William H. Mendel to Show Cause why He Should Not Be Committed to Jail for Refusing, without Reasonable Cause, to Be Examined and to Answer Legal and Pertinent Questions and to Produce Books of Account and Papers in Connection with Case No. 1730, Now Pending Before the Public Service Commission for the First District. William H. Mendel, Appellant; Public Service Commission for the First District, Respondent.

First Department,

May 15, 1914.

Public Service Commission — right to subpoena witness and commit for contempt—proceeding to compel railroad company to reduce rates for checking parcels.

Where, in a proceeding before the Public Service Commission to compel a railroad company to reduce the charges for checking parcels in a parcel room in one oi its stations, it appears that the railroad company does not conduct the business but leases the privilege to another, the Commission has no power to interrogate the lessee as to the cost of maintenance and the profits of his business. Nor can it hold him in contempt of court for failure to answer questions or produce his books and papers.

No such power is conferred by section 50 of the Public Service Commissions Law.

Appeal by William H. Mendel from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on *372the 21st day of November, 1913, adjudging him guilty of contempt for refusing to answer certain questions propounded to him by the Public Service Commission while a witness before that body, and for refusing to produce certain journals, cash books, ledgers and books of account, and committing him to jail, pursuant to section 19 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480).

*George W. Alger*of counsel *[Alger & Simpson,*attorneys], for the appellant.

*Arthur Du Bois*of counsel *[George S. Coleman*with him on the brief], for the respondent.

Clarke, J.:

The Public Service Commission for the First District on September 9, 1913, on its own motion, adopted a resolution for a hearing to be held for the purpose of determining whether the New York Central and Hudson River Railroad Company should be ordered to maintain one or more offices or departments, suitably located in the Grand Central Station, in which packages may be checked by those using the trains of the New York Central and Hudson River Railroad Company, or trains of the New York, New Haven and Hartford Railroad Company, for a charge to be less than ten cents per package.

Upon the hearing it appeared that the New York Central and Hudson River Railroad Company did not maintain any parcel checking rooms, but that its lessee, W. H. Mendel, Incorporated, did conduct such parcel rooms, using about 2,800 square feet of floor space, for which it paid an annual rental of $35,000.

W. H. Mendel was called as a witness. He and his father for thirty-eight years have operated the business of a parcel room, located in the Grand Central Station building. It was conducted by his father, Jacob Mendel, from 1875 to 1888, in which year he succeeded him. In 1912 the corporation of W. H. Mendel, Incorporated, was organized to continue and carry on certain businesses theretofore conducted by him, which included the parcel-room business, a candy booth and a candy store in the Grand Central Terminal, and a restaurant at 430 *373Fourth avenue. A lease was entered into between the said railroad companies and W. H. Mendel, Incorporated, on February 17, 1913, for two parcel rooms for the term of seven years at the annual rental of $35,000 a year, with a provision that the lessor should have the right to terminate said lease at any time by giving sixty days’ notice of its intention to do so.

Having testified that the capital stock of the company was $50,000; that the regular charge for checking a parcel for twenty-four hours was ten cents; that the parcel rooms were open for twenty-four hours a day and for seven days during the week; that he owned 498 of the 500 shares, the other two being owned one by his wife and the other by his daughter, under the advice of counsel he refused to answer the following questions:

“1. What is the total number of employees that W. H. Mendel, Incorporated, have engaged in the parcel checking business at the Grand Central Station ?

“ 2. What were the total gross receipts of W. H. Mendel, kacorporated, from the parcel checking business at the Grand Central Station for the month of March, 1913 ?

“ 3. What were the total gross receipts from the parcel checking business of W. H. Mendel, Incorporated, for the month of April, 1913 ?

“ 4. I ask the same question for the month of May, 1913 ?

“ 5. I ask the same question for the month of June ?

“6. I ask the same question for the month of July ?

“7. I ask the same question for the month of August ?

“ 8. I ask the same question for the month of September *%*

“ 9. Mr. Mendel, what was the total expense of conducting the parcel checking business in the Grand Central Station of W. H. Mendel, Incorporated, in the month of March, 1913 ?

“10. I ask the same question as to the months of April, May, June, July and August, 1913 ? ”

And he further refused to produce the journals, cash books, ledgers and other books of account relative to the business conducted by his corporation. Thereafter the Public Service Commission obtained an order to show cause why he should not be committed to jail for refusing to answer said questions and produce said books and papers and thereupon such proceedings *374were had that the order, here appealed from,.adjudging him in contempt and committing him to jail, was entered.

The attitude of the witness was taken upon the advice of counsel that the jurisdiction of the Public Service Commission did not extend to the matters inquired of. As stated upon the hearing before the Commission, “ our position is that this parcel room matter is not a transportation matter in any sense of the word; that the jurisdiction of this Commission over carriers and over rates, * * * is limited in specific terms in the Act to the rates for transportation and the rates affecting transportation; that the jurisdiction of the Commission does not extend to conveniences, such as parcel rooms and bootblack stand and candy stores and magazine and newspaper stands.”

The question is, did the witness refuse to answer legal and pertinent questions ? The answer involves the determination of the jurisdiction of the Public Service Commission over the matter inquired of. The learned counsel for the Commission claims that section 50 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480) is broad enough to include this matter.

*“*§ 50. Power of Commission to order repairs or changes. If in the judgment of the Commission having jurisdiction, additional tracks, switches, terminals or terminal facilities, stations, motive power, or any other property, construction, apparatus, equipment, facilities or device for use by any common carrier, railroad corporation or street railroad corporation in or in connection with the transportation of passengers or property ought reasonably to be provided, or any repairs or improvements to or changes in any thereof in use ought reasonably to be made, or any additions or changes in construction should reasonably be made thereto in order to promote the security or convenience of the public-or employees, or in order to secure adequate service or facilities for the transportation of passengers or property, the Commission shall, after a hearing either on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every common carrier, railroad corpora*375tion and street railroad corporation is hereby required and directed to make all repairs, improvements, changes and additions required of it by any order of the Commission served upon it.”

Nothing in said clause justifies the questions.

In *People ex rel. New York, New Haven & Hartford Railroad Company*v. *Willcox*(200 N. Y. 423) Judge Gray said: “ Broad as are the powers conferred by the act, they are, by plain intendment, as I read them, such as are directed, exclusively, to the amplest supervision and regulation of railroad corporations, in such respects as concern their construction, maintenance, equipment, terminal facilities and operations in the transportation of persons and property. The exercise of the powers is intended to be when rendered necessary, in the judgment of the commissions, by reason of unjust, unsafe, or inadequate, regulations, practices, equipment, appliances, or service, ‘ in respect to the transportation of persons, freight or property.’ The object of the Legislature, as fairly to be deduced from its enactment, was to regulate the management and the operations of common carriers, within the State, in the interest of the public; that is, *of*the persons who should use the facilities for the transportation of themselves, or of their property; who should serve them; or who should be interested in them, as holders of their capital stock, or obligations. The commissions were given extensive powers; but they should not be extended by implication beyond what may be necessary for their just and reasonable execution. * * * Nor should they reach out for dominion over matters not clearly within the statute.”

W. H. Mendel, Incorporated, was not a common carrier of either passengers or freight. It was the lessee of space in the Grand Central Station where it acted as bailee for hire for persons who had ceased to be passengers or had not yet become passengers. It had no more to do with transportation than did the barber who shaved the late or prospective passenger, the bootblack who cleaned his shoes, the flower vender, the newspaper boy, the candy man or restaurant keeper who ministered to his needs or fancies. A temporary depository for packages is neither compulsory nor necessary. It is a mere con*376venience, similar to the other conveniences enumerated. There has been an hotel erected upon the property of the railroad company and there is in contemplation the erection of a private club. While it might be entirely proper, in each instance, to inquire into the terms of the lease for such properties between the railroad and the corporation running the hotel or club, is it reasonable to suppose that it would be within the jurisdiction of the Commission to investigate the private affairs of such lessee corporations as to the prices they charged to, or the profits they made from, those voluntarily seeking the conveniences tendered ?

We are unable to perceive the legality, pertinency or relevancy of any of the questions propounded to the witness which he refused to answer to any matter within the jurisdiction of the Public Service Commission over the railroads using the Grand Central Station as common carriers. We think, therefore, that the witness was entirely within his rights in refusing to aid in an unwarranted inquisition into the financial affairs of the private business corporation of which he was the president.

The order adjudging him in contempt and directing his committal to the jail should, therefore, be reversed, with ten dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.