#### Public Service Commission, Second District, Respondent, *v.*International Railway Company, Appellant.

Mandamus — should not issue without trial where answer alleges impossibility, of compliance.

Mandamus will not issue, where obedience is impossible, since courts will not command a defendant, under pain of punishment for contempt, to do what it cannot. Where, therefore, upon application for a writ of mandamus, the answer alleges inability of defendant to comply, the issue thereby raised should be tried, and it is error to grant a motion for judgment on the pleadings.

*Public Service Commission*v. *International By. Co.,*185 App. Div. 220, reversed.

(Argued October 16, 1918;

decided October 23, 1918.)

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 12, 1918, which affirmed an order of Special Term directing that a writ of mandamus issue under section 57 of the Public Service Commissions Law requiring the defendant within two days to operate its cars in and between the cities of Buffalo, Niagara Falls and Lockport, for the carriage of passengers in such measure as to meet the reasonable demands of the traveling public.

*■Henry W. Killien, Louis L. Babcock*and *Daniel J. Kenefick*for appellant.

*Ledyard P. Hale*for respondent.

*Per Curiam.*

We think that the answer of the railroad company raises issues to be tried, and that there was error in granting the motion for judgment on the pleadings. The answer alleges that the defendant *could not*take the strikers back, because they made demands for a retroactive scale of wages involving a present outlay of $275,000, and that this sum the company did not have and could not borrow. If that is true, mandamus will not issue, because obedience is impossible. *(City of Benton Harbor*v. *St. Joseph & B. H. S. R.**632*Co.,*102 Mich. 386; *Matter of Bristol & N. S. R. Co.,*L. R. 3 Q. B. D. 10, 13; *State ex rel. Little*v. *Dodge City M. & T. R. Co.,*53 Kan. 329; *People ex rel. Green*v. *Dutchess & Col. R. R. Co.,*58 N. Y. 152, 164; *People ex rel. Bailey,*v. *Supervisors of Greene,*12 Barb. 217; 10 Halsbury’s Laws of England, Crown Practice, p. 101; 1 Wyman on Public Service Corporations, § 301.) The courts will not command the defendant, under pain of punishment for contempt, to do what it cannot. We do not say that there are no° remedies where a corporation concedes itself powerless to fulfill its public duties. It is enough for our present purposes that they do not include mandamus. That the averments of the answer are true must be assumed, for the company was denied the opportunity to prove them. We do not know and cannot forecast the outcome of a trial. The supposed impossibility may then appear to be unreal. The defendant’s resources may be greater than. it admits. The evidence, when received, may justify the inference that even if the impossibility is real, a concession of higher rates for. the future would lead the striking workmen either to waive demands for the past or to postpone the time of payment. But until the issues have been tried, we must take the answer as we find it. The courts below have assumed that the c mpany had the power to resume service at once by taking back its former workmen. The theory on which the writ issued is thus seen to be untenable.

On a new hearing the court must determine whether adequate service has been resumed; if not, whether the company’s professed inability to yield to the demands of the striking employees is real; and if real, whether reasonable effort has been made to operate the road through others.

The order should be reversed, the proceeding remitted to the Special Term, and a rehearing ordered, with costs to abide the event.

*633His cock, Ch. J., Chase, Hogan, Cardozo and McLaughlin, JJ., concur; Pound, J., dissents; Andrews, J., absent.

Order reversed, etc.