said railroad in the city of Mount Vernon north of such points of intersection; all such work to be done by the railroad company at its own expense. (2) The construction of a new station at the new intersection of the New York Central railroad with East Two Hundred and Fortyfirst street to take the place of the existing station, which had been found to be inadequate, inconvenient and unsafe; all such work to be done by the railroad company at its own expense. (3) The closing and discontinuance of those portions of East Two Hundred and Forty-first street and East Two Hundred and Forty-second street west of the westerly line of Bullard avenue and the diversion of traffic thereon to a viaduct to be constructed within the lines of East Two Hundred and Forty-first street in the City of New York and within the lines of Wakefield avenue in the city of Yonkers (Wakefield avenue being substantially a continuation of East Two Hundred and Fortyfirst street), the cost of such work to be apportioned, borne and paid as provided in section 94 of the Railroad Law. Under section 94 of the Railroad Law (as amd. by Laws of 1914, chap. 378, and Laws of 1915, chap. 240) at least fifty per cent of the cost of the viaduct would be paid by the railroad company, not more than twenty-five per cent by the State and not more than twenty-five per cent by the City of New York.

The City of New York, the sole appellant, raises certain technical objections to the jurisdiction of the Commissioners to make the order appealed from. All of these appear to us to be unsubstantial, and as none of them were made before the Commissioners, but are now taken for the first time on appeal they cannot be entertained, especially since the record shows very clearly that the city was afforded every opportunity to produce evidence and be heard. If there was any technical defect in the proceeding, which we do not decide, it is evident that the City has not been prejudiced thereby, and by having failed to take the objections earlier must be deemed to have waived them. (Matter of Town Board v. Fitchburg R. R. Co., 53 App. Div. 16, 18; affd. 169 N. Y. 609.)

"That the Commission had power and authority to make the order cannot be doubted. (Danner v. N. Y. & Harlem R. R. Co., 213 N. Y. 117; Matter of N. Y. C. & H. R. R. R. Co. [Village of Ossining], 136 App. Div. 760; Matter of Terminal Railway, 122 id. 59; affd. 192 N. Y. 534.)

The situation as disclosed by the evidence before

the Commission showed very plainly that a condition existed which was undesirable, and would in time become intolerable and hence an appropriate occasion was presented for action by the Commission. Being satisfied that the Commissions had authority and jurisdiction in the premises we are not called upon to review their action with a view of determining whether or not they arrived at the best solution of the question before them. 'It was not intended that the courts should interfere with the Commissions or review their determinations further than is necessary to keep them within the law and protect the constitutional rights of the corporations over which they were given control.' (People ex rel. N. Y. & Queens Gas Co. v. McCall, 219 N. Y. 84.)

"It is not a legal objection that the changes ordered by the Commissions involve a relocation of a part of the line (Danner v. N. Y. & Harlem R. R. Co., supra), and we could not say, even if it lay within our jurisdiction to do so, that the physical characteristics of the locus in quo did not justify such relocation.

"After carefully considering all the objections that have been urged upon our attention by the appellant we are satisfied that none of them require the reversal of the order appealed from. It is, therefore, affirmed."

The City appealed to the Court of Appeals from the order of the Appellate Division. The Court of Appeals affirmed the order of the Appellate Division upholding the joint order of the Commission.

(27) Re Application of The City of New York as to extension

of Third avenue between 189th street and Fordham road across the tracks of the New York and Harlem Railroad Company Supreme Court, Appellate Division, First Department.

The application of The City of New York was for a determination by the Commission as to the manner of extending new portions of Third avenue between 189th street and Fordham road, across the tracks of the New York and Harlem Railroad Company, in the Borough of The Bronx. Section 90 of the Railroad Law provides for the opening of new streets across railroad tracks and requires the determination of the Public Service Commission as to the manner in which such new streets shall be

carried across such railroad tracks. The Commission in this case, and in so far as the application related to the crossing referred to, denied the application of the City upon the ground that the Commission was without power to determine how an additional width of Third avenue between 189th street and Fordham road shall be carried across the tracks of the New York and Harlem Railroad Company. Commissioner Whitney, in delivering the

opinion of the Commission, stated:

"As to the widened portion of Third avenue, the testimony and maps disclose that the plan proposed is not covered by Section 90 of the Railroad Law. Whatever name may be given to the street structure proposed to be placed over the four depressed tracks of the railroad in Park avenue, between 189th street and Pelham road or Fordham avenue, the result would be a broad plaza five or six hundred feet long and of substantial width. While such a structure might constitute a desirable improvement, it is not a new portion or additional width of a street, avenue, highway or road' that is proposed to be constructed across a steam surface railroad. The provisions of Section 90 of the Railroad Law relate to the longitudinal extension of a widened street across the tracks rather than to a lateral widening of a street that runs parallel to such tracks, such as the widening of a street over the tracks for the length of the entire right of way."

The City and certain property owners affected by the proposed widening of Third avenue appealed to the Appellate Division for the determination of the Commission. The appellants having delayed in preparing their papers on appeal, the Commission moved the Appellate Division for an order dismissing the appeal because of lack of prosecution. Before this motion came on to be heard, however, the appellants submitted their proposed papers on appeal.

PROCEEDINGS TO ENFORCE THE LAW OR AN ORDER OF THE COMMISSION

(28) Public Service Commission v. Brooklyn Borough Gas Company - Supreme Court, New York County.

This was a mandamus proceeding instituted by the Commission under Section 74 of the Public Service Commissions Law brought

to compel the Brooklyn Borough Gas Company to charge a rate of 80 cents per thousand cubic feet of gas in accordance with Chapter 125 of the Laws of 1906, as amended by Chapter 604 of the Laws of 1916, which became a law, with the approval of the Governor, on May 19, 1916, and which prescribed 80 cents per thousand cubic feet of gas as the rate to be charged by gas companies in the Borough of Brooklyn. This proceeding was held in abeyance pending the result of the injunction proceedings brought by the Brooklyn Borough Gas Company in connection with this same act (see supra, page 458).

(29) Public Service Commission v. New York and Queens County Railway Company - Supreme Court, Kings County.

The Commission on December 8, 1914, adopted a resolution directing the institution of mandamus proceedings to compel the New York and Queens County Railway Company to construct and operate its unconstructed franchise route on Flushing avenue between Ehret avenue and Jackson avenue in the Borough of Queens, City of New York. Before the case came on for trial, the company applied to the Commission for the approval of a declaration of abandonment of its unconstructed franchise routes including a portion on Flushing avenue, in the Borough of Queens, and upon the denial of the application certiorari proceedings were instituted by the company in the Supreme Court, New York County, to review the order of the Commission. The mandamus proceeding was held in abeyance pending a determination by the Appellate Division upon the Commission's order. The Appellate Division affirmed the determination of the Commission and thereafter the company agreed to the entry of an order for a writ of mandamus and the issuance of a writ commanding the company to construct and operate its road in Flushing avenue between Ehret avenue and Jackson avenue, in the Borough of Queens, the work to be commenced not later than April 1, 1918, and to be completed not later than August 31, 1918. The order for writ and the writ of mandamus were duly issued.

(30) Public Service Commission v. Richmond Light and Railroad Company-Supreme Court, Richmond County.

The Commission adopted a resolution in this matter stating:

66

Whereas this Commission is of opinion that the Richmond Light and Railroad Company has failed to construct and operate that portion of its franchise route on Richmond Turnpike between Bulls Head and Linoleumville and on Port Richmond Road (or Old Stone Road) from Bulls Head to New Springville, in the Borough of Richmond, County of Richmond, as required by law; it is

"Resolved that Counsel to the Commission be and he hereby is directed to commence an action or proceeding in the Supreme Court in the name of the Commission for the purpose of having such violations stopped and prevented either by mandamus or injunction."

An order was entered by Mr. Justice Clark, at Special Term of the Supreme Court for Richmond County, directing the Richmond Light and Railroad Company to answer the petition of the Commission for writ of mandamus and that in default of answer the Court would inquire into the facts and circumstances of the case, to the end that final judgment might be rendered directing that a writ of mandamus or injunction or both issue as prayed for in the petition. The case came on for trial before Mr. Justice Kelly at Special Term, Richmond County, on November 20, 1916. In February, 1917, Mr. Justice Kelly handed down his opinion denying the application of the Commission on the ground that "the legal right of the defendant to construct and operate a railroad in the highways in question and its corresponding duty to so construct and operate a railroad are, to say the least, extremely doubtful." The Commission appealed from the decision to the Appellate Division of the Supreme Court for the Second Judicial District.

(31) Public Service Commission v. The Long Island Railroad Company - Supreme Court, New York County.

In July, 1914, the Commission adopted an order directing and requiring The Long Island Railroad Company to construct, erect and provide for use a new station at the southerly side of South