#### In the Matter of the Application of the City of New York to Acquire Premises on the Westerly Side of Nostrand Avenue, between Union Street and Eastern Parkway, etc., for Rapid Transit Purposes. Charles G. Reynolds, Incorporated, Appellant; The Public Service Commission of the First District of the State of New York, Respondent.

Second Department,

May 29, 1914.

Eminent domain — condemnation of lands under Rapid Transit Act — petition of Public Service Commission for appointment of commissioners— completion of plans not prerequisite — constitutional law — necessity for taking lands legislative, not judicial question.

A petition of the Public Service Commission of the First District for the appointment of commissioners of appraisal on the condemnation of lands for the construction of a rapid transit railroad in the city of New York need not show that the plans for construction of the railroad have been completed; it is sufficient that they are in process of preparation.

Said Public Service Commission, petitioning for the appointment of commissioners of appraisal, need not show that the lands proposed to be acquired are absolutely necessary for public use. This, because where the use to which the land is to be put is public, the Legislature, acting through its Public Service Commission, is the sole judge of the necessity of the condemnation, and the question as to whether a fee or easement should be taken cannot be determined or reviewed by the courts.

*11Appeal by Charles G-. Reynolds, Incorporated, a property owner, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of March, 1914, overruling preliminary objections to the petition of the Public Service Commission for the appointment of commissioners of appraisal herein, and appointing such commissioners.

*Meier Steinbrink,*for the appellant.

*Charles J. Nehrbas [Terence Farley*and *Frank L. Polk*with him on the brief], for the respondent.

Rich, J.:

The contention of the appellant is based largely upon the requirements of the provisions of the Code of Civil Procedure (Chap. 23, tit. 1) relating to proceedings for the condemnation of real property, while this proceeding is under the provisions of the Rapid Transit Act, and is to acquire property for the public use by and in behalf of the city of New York, and the title to the real property to be acquired vests in such city, and the provisions of the Code of Civil Procedure do not apply to this proceeding. (Code Civ. Proc. § 3383; *Matter of Low,*208 N. Y. 25; *Matter of City of Buffalo,*189 id. 163, 169.)

The allegation of the petitioner, which is not controverted, is that a contract for the operation of the road has been made, and the memorandum attached to the maps and plans meets with the requirements of section 39 of the Rapid Transit Act (Laws of 1891, chap. 4, added by Laws of 1894, chap. 152, as amd. by Laws of 1913, chaps. 524, 540), and consequently there is no force to the objection that the petition does not show that a contract for the construction of the railroad had been made.

While section 6 of said act (as amd. by Laws of 1909, chap. 498, and Laws of 1910, chap. 205) requires the Public Service Commission to prepare detailed plans and specifications for the construction of a rapid transit railroad in accordance with the general plan of construction, it is not necessary to allege the completed preparation of such plans, for the reason that the acquisition of title is not made contingent upon completed *12preparation. It appeared on the hearing that such plans were in process of preparation.

The appellant contends that it was incumbent upon the petitioner to establish upon the hearing by a preponderance of evidence that the land proposed to be acquired was absolutely necessary for public use, and that until it had so established such necessity commissioners could not legally be appointed. In this contention the appellant is in error. The use for which the property is to be acquired is the construction and operation of a rapid transit subway, which the Court of Appeals in *Sun Publishing Assn.*v. *Mayor*(152 N. Y. 257) held to be a public use. The case comes within the rule that where the use to which the land is to be put is public, the Legislature or the instrumentality which it employs (in the case under consideration the Public Service Commission) is the sole judge of the necessity *(Matter of Fowler,*53 N. Y. 60, 62; *Matter of Deansville Cemetery Assn.,*66 id. 569; *People ex rel. Ithaca*v. *Delaware, L. & W. R. R. Co.,*11 App. Div. 280, 284; affd., 159 N. Y. 545; *Matter of City of New York,*116 App. Div. 801); consequently the question of whether the fee, or an easement in the property, should be taken is a legislative and not a judicial question. And the commissioners having determined that it is necessary to acquire the property in fee simple, we cannot review their determination. *(People*v. *Fisher,*116 App. Div. 677, 686; affd., 190 N Y. 468, 477-479.)

The order must be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Thomas and Carr, JJ., concurred; Burr, J., not voting.

Order affirmed, with ten dollars costs and disbursements.