#### In the Matter of the Application of the Public Service Commission of the First District for the Appointment of Three Commissioners, etc.

Utica Avenue Route.

Second Department,

November 28, 1913.

Public service corporations — proceeding to legalize subway under Stuyvesant avenue, city of New York — public necessity and convenience — courts — power to review action of commissioners recommending that road be built — constitutional rights' of abutting property owners.

Motion to confirm the report of commissioners recommending that a proposed railroad subway under Stuyvesant avenue in the city of New York which has been laid out under section *4*of the Rapid Transit Act should be legalized. It is admitted that the actual building of the subway will be in the remote future. Stuyvesant avenue is a residential section, shaded by large trees, which the building of the proposed subway will necessarily destroy, and the Legislature, by chapter 434 of the Laws of 1895, prohibited the erection of surface or elevated railways *upon*Stuyvesant avenue between certain streets. Upon all the evidence, *held,*that the motion to confirm the report of the commissioners should be denied as the proof was insufficient to establish that the subway was a public necessity.

The action of the Public Service Commission legalizing such subway and the approval thereof by the board of estimate and by the mayor of the city of New York are not, standing alone, sufficient evidence of public necessity, where abutting property owners under their constitutional right have entered a protest.

In such circumstances the court must determine not only whether the road is practical and feasible to construct and operate but also whether, taking into account all the objections, the road ought tobe built despite the protest of the property owners affected.

Motion to confirm report of commissioners recommending that the proposed railroad as set forth should be constructed.

*George S. Coleman, Henry H. Whitman*and *Edward*M. *Bassett,*for the motion.

*James F. Quigley,*opposed.

Putnam, J.:

The Public Service Commission has taken these proceedings to legalize the Utica Avenue route which it had laid out under *307section 4 of the Rapid Transit Act. (See Laws of 1891, chap. 4, § 4, as amd. by Laws of 1909, chap. 498, and Laws of 1910, chap. 505.) This route, beginning northerly at Stuyvesant avenue and Kosciusko street, so as there to connect with another route already laid out (known as the Brooklyn, Manhattan and Long Island City route), is to run under Stuyvesant avenue as a subway to a point near Chauncey street, where it curves into Utica avenue and follows that avenue to a point near Crown street; it then comes out as an elevated structure extending southerly over Utica avenue to Matbush avenue. The proposed road is to-be a four-track subway or tunnel down to a point between President street and Carroll, to the south of this it is to be but three tracks. This route was approved by the board of estimate and apportionment on September 30, 1910, and on October 10,1910, had also the separate approval of the mayor. The abutting property owners along Stuyvesant avenue did not give the required consents, whereupon, on April 11, 1913, this court appointed commissioners to determine and report whether this proposed railroad ought to be built and operated. On September eighth the commissioners united in an affirmative report which is the subject of the present motion to confirm.

The locality which is to be reached by this proposed route is now served by the Reid Avenue trolley cars which, going over a double surface track on Utica avenue, turn at Fulton street into Reid avenue and thence, going over the Williamsburg bridge, run to Delancey street, Manhattan. The contract with the Interborough Rapid Transit Company, signed March 19, 1913, and now going forward, authorized a four-track subway along Eastern Parkway. The route here projected is primarily to extend down into Rugby and Hyde Park, so as to connect that district with this Interborough trunk line along Eastern Parkway. But as this connection may overfeed the Eastern Parkway line, it is also planned to run a three and four-track subway northerly, across from Eastern Parkway, so as to connect with route No. 10 at Kosciusko street, to join the system already legalized, known as the Brooklyn, Manhattan and Long Island City route.

It is admitted that the actual building of this subway is *308in the remote future. First the applicants seek their elevated line coming up from Eughy and running to the Eastern Parkway, which it is intimated may he built by assessment of the local beneficiaries. When this feeder shall oversupply the Eastern Parkway line, the present proposed connection is to be constructed as an auxiliary outlet for the Eugby development.

The objections to this improvement are from the owners of Stuyvesant avenue, in the residential section between Gates avenue and Chauncey street. This is a street shaded by large trees, where on both sides are high-class single family residences. Stuyvesant avenue is seventy feet wide from building line to building line, and this four-track subway is planned for a width of fifty-six feet, so that with its walls it will approach the building structures, with the effect to destroy all the shade trees above. Not only is this portion of the street a - residential locality, but by chapter 434 of the Laws of 1895 the Legislature specifically excepted and prohibited surface, elevated, steam or electric railways *upon*Stuyvesant avenue between Broadway and Fulton street. While this may not include subways, and it is argued that this exemption was repealed by implication in 1909, it shows that the Legislature then intended to secure the permanence of this part of the avenue for a residential district. Furthermore, it is shown that a stringent condition as to the residence character of the property appears in the conveyances of a considerable portion, forbidding the erection of buildings of any character, except a dwelling house arranged for the use of one family only. A large church property is also involved, which is also protesting against this invasion of the street.

While it is true that public necessity overrides private and personal rights, and that the temporary character of a neighborhood should not determine whether or not it shall be devoted to public needs, still the question here is sharply presented: Does such a public need exist as to justify the taking and occupation of this street against the protest of its residents ? This is not a question of engineering construction or of the difficulties ór the feasibility of operation, but the underlying test of the existence of a public necessity to justify this *309determination. The Constitution (Art. 3, § 18) recognizes the right of a majority of the property owners to decide on such an added burden to the street. If, however, the consents be not given, then the Appellate Division of the Supreme Court is to appoint a commission to determine the question whether such a railroad ought to be constructed or operated, and their determination when confirmed by this court may supply the place of the consent of the property owners. The action of this court is final, and its discretion is not reviewable by the Court of Appeals. *(Matter of Kings County Elev. R. Co.,*82 N. Y. 95.) Chief Judge Folder there said of this provision of the State compact: “It is plain that a great evil was seen to exist, and a crying need of permanent and effective repression of it. That evil was the heedless and unneeded making of street railroads, to the harm of owners of adjacent property ” (82 N. T. 99). (See, also, *Matter of Port Chester Street R. Co.,*43 App. Div. 536.)

In considering the facts and circumstances the court has to weigh and regard the public need that should justify the invasion of a residential street for subway purposes. Where the result is to expose the property owners to loss by depreciation, with their homes destined henceforth to be changed into a business occupancy, the injury is grave and vital. Ought these private losses and invasions of rights to be suffered, and the resistance of the property owners to give way to the public necessity that here appears ?

It seems to have been felt that the action of the Public Service Commission in laying out the route was sufficient evidence of the public necessity therefor, and that after the approval by the board of estimate and by the mayor the public authorities had settled the question of public necessity against the private interests affected. Such a view would minimize the constitutional protection to property owners. Plainly, the intent of the Constitution was that the commission and the court should determine not only if the road was practicable and feasible to construct and operate, but whether, taking into account all the objections, such a road *ought*to be built, despite the protest of the property owners to be affected. The statement here is that this proposal of the Public Service Commission was duly adver*310tised, but on the return day but one or two persons appeared, and the approval of the route by the board of estimate was practically unopposed. Naturally, it was not until subsequently that consents of the property owners were sought, and then the situation was first before them. Notwithstanding the original laying out of route by the Public Service Commission and the formal approval by the board of estimate and the mayor, the applicant to this court to have such route legalized must affirmatively show a requisite public necessity to override the protests of the property owners. The power of supervision and review lodged in this court by the Constitution extends to every feature of the expediency and policy of the proposed route. Mr. Craven, the engineer called for the petitioners, admitted that he knew nothing of the, considerations of public necessity which governed the commission in selecting this route, so that his testimony was confined to the engineering side of construction. Mr. Parsons also limited himself to the engineering problem presented. It was, however, brought out that the manager of Wood, Harmon & Co. and other real estate operators had been long urging an extension of the rapid transit system into this region of the Flatlands development. Wood, Harmon & Co., by their powers of attorney from vendees of their lots, also by sending out agents, had procured many of the consents obtained. The advantages of building up this section, as yet partially unreached by transit facilities, are ably urged as a sufficient ground for establishing this transit route. However, there is no present design to build this road — at least through Stuyvesant avenue. Its legalization will be all, for perhaps a score of years, depending on the capacity of other transit systems and the financial resources of the city. Such a route when authorized will be an immediate cloud on the values of these property owners, however it may stimulate sales in the vacant property on Utica avenue.

Upon consideration of the testimony we think the facts shown fall short of proof of that public need which alone could warrant this invasion of a residential street with jeopardy of private rights. We are, therefore, constrained to- deny the motion. In view, however, of this omission to introduce evidence as to the public need for this route we think it should *311now be sent back to the same commissioners to take such further proofs as may be offered.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Motion to confirm report of commissioners denied, and matter referred back to the commissioners to take such further proof as may be offered as to the public necessity of the route in accordance with opinion. Order to be settled on notice.