was filed with this Board on April 14, 1903. It alleged that there was a private crossing at grade of the West Shore Railroad from complainant's land which complainant desired should be moved to a point about 150 feet further south. Considerable correspondence ensued between this Board, the company and complainant in relation to the construction of an under farm crossing for complainant and others in the vicinity. The case was closed. (Case No. 2893.)

C.

IN THE MATTER OF THE COMPLAINT OF H. D. DUMONT AGAINST THE BROOKLYN HEIGHTS RAILROAD COMPANY, AS TO SERVICE RENDERED THE PUBLIC ON ITS SO-CALLED KINGS COUNTY ELEVATED RAILROAD.

November 30, 1904.

This complaint, by II. D. Dumont of the Merchants' Association of New York, against the Brooklyn Heights Railroad Company, was filed with this Board on October 21, 1904. It alleged that the company was not running a sufficient number of passenger trains to accommodate the traffic on its socalled Kings County elevated line. Others complained to this Board on the same subject on October 18, 1904. The matter was investigated by the Board, which recommended to the company:

"That in addition to the number of trains at present operated six additional trains be run from the City Line to the Brooklyn Bridge between the hours of 7:11 and 8:11 a. m., and that in addition to the present number of trains operated, six more local trains be run from the Brooklyn Bridge to the City Line between the hours of 5:14 and 6:26 p. m.

"That the additional trains be put in service not later than November 15, 1904." The company informed the Board that it would comply with these recommendations. The case was closed. (Case No. 3232.)

CI.

IN THE MATTER OF THE COMPLAINT OF MRS. SELMA KRONOLD AGAINST THE NEW YORK CITY RAILWAY, AS TO HEATING OF CARS.

November 30, 1901.

This complaint, by Mrs. Selma Kroneld, of New York city, against the New York City Railway Company, was filed with this Board (through the New York City Department of Health) on November 14, 1904. It alleged that cars of the company were insufficiently heated. A copy of the complaint was sent to the company, which answered “Our cars are heated whenever the temperature falls below forty (40) degrees, as required by the City Ordinance." A copy of this answer was sent to the complainant. No reply was received from the complainant and the case was closed. (Case No. 3247.)

CII.

IN THE MATTER OF THE COMPLAINT OF THE FIRE DEPARTMENT OF THE CITY OF NEW YORK AGAINST THE INTERBOROUGH RAPID TRANSIT COMPANY AND THE BROOKLYN HEIGHTS RAILROAD COMPANY, AS TO DANGER FROM THE THIRD RAIL (ELECTRIC) ON THE ELEVATED RAILROADS OF SAID COMPANIES.

November 30, 1904.

This complaint, by the Fire Department of New York city, against the Interborough Rapid Transit Company and the Brooklyn Heights Railroad Company, was filed with this Board on November 24, 1903. It was in relation to the danger to members of the Fire Department from the electric third rail on the elevated railroad structures of the Interborough Rapid Transit Company and the Brooklyn Heights Railroad Company. This Board communicated with the companies on this subject. The Interborough Rapid Transit Company answered as follows:

NEW YORK, December 9, 1903. HON. GEORGE W. ALDRIDGE, Secretary, Board of Railroad Commissioners, Albany, N. Y.: DEAR SIR-I beg to acknowledge receipt of your favor of December 7, accompanied by report from John J. Dooley, Chief of Thirtieth Battalion, Fire Department, and Chas. D. Purroy, Chief of Fire Department.

I note your statement that the Board is of the opinion that steps should be taken at once to cover or otherwise dispose of the third rail. I will state for your information that our engineering force has been at work for months to devise some practicable plan for protecting this third rail. Any plan which completely protects the third rail involves a change in the character of contact shoe used, and I can easily explain to you that it is no triflying matter to do this and not undertake something experi mental, and the Manhattan road is the last place in the world to try experiments of this nature.

Your Board is of course aware of the fact that the third rail has never been successfully covered anywhere, and is not now, either in Chicago, Boston, Paris or Brooklyn. We have plans that are now being carefully considered, and with which experiments will be made, but it is impossible to do anything toward the protection of this rail during the present winter.

I shall be glad at any time to discuss the difficulties connected with this, with your Commission, and I beg to advise that we have not at present anything with which we are sufficiently satisfied to submit to you.

We have installed additional telephone stations, so that now every station on our line, on both sides, is being connected independently with the Power Station and the sub-stations, and we have written Commissioner Sturgis that, with proper understanding between the Fire Department and this Company, we can guarantee that the interval between notice from the Fire Department of their desire to use the structure, and the time of shutting off the current, will be very brief indeed, which will be much better than any protection to the third rail. Of course whenever the Fire Department comes upon the structure and places the hose across, it immediately stops traffic and the current should be shut off; and this can be done.

Yours truly.
E. P. BRYAN,
Vice-President.

The Brooklyn Heights Railroad Company answered as follows:

BROOKLYN, N. Y., December 8, 1903. HON. GEORGE W. ALDRIDGE, Secretary, State Board of Railroad Commissioners, Albany, N. Y.:

DEAR SIR-I have your letter of yesterday's date enclosing a copy of a communication addressed Charles D. Purroy, Chief of the Fire Department of New York city by Battalion Chief John J. Dooley, dated November 20th, and copy of a communication addressed the Hon. Thomas Sturgis, Fire Commissioner of New York city, under date of November 24, 1903, by Charles D. Purroy, Chief of the Fire Department, in respect to the dangers attending the fighting of fire on the Elevated Railroad structures on account of the exposed condition of the electric third rail.

We have recently been in communication with the Fire Department of the Borough of Brooklyn on this same subject, and are now considering a plan to install cut-out switches at each of the Elevated Railroad stations to make dead the third rail between any two stations whenever necessity may arise. This, we trust, will serve all the purposes of a protected third rail. I will advise you of the progress of our plans in this direction from time to time.

Copies of these answers were sent to the New York City Fire Department, and replies received. The case was closed. This Board, however, has under consideration the condition of affairs complained of and the question of the protection of the third rail generally. (Case No. 3041.)

СІІІ.

IN THE MATTER OF THE COMPLAINT OF THE MANUFACTURERS' ASSOCIATION OF NEW YORK (BROOKLYN) AGAINST THE BROOKLYN HEIGHTS RAILROAD COMPANY, AS TO DANGER FROM THE THIRD RAIL (ELECTRIC) ON THE ELEVATED RAILROAD LINES OF THE COMPANY.

November 30, 1904.

This complaint, by the Manufacturers' Association of New York (Brooklyn), against the Brooklyn Heights Railroad Company, was filed with this Board on November 23, 1903. It was in relation to danger from the third rail (electric) on the elevated railroad lines of the company. This matter was considered at about the same time as the immediately preceding complaint and the remarks in relation to that complaint apply to this. The case was closed. (Case No. 3039.)

CIV.

IN THE MATTER OF THE COMPLAINT OF JOHN B. CREIGHTON AGAINST THE BROOKLYN HEIGHTS RAILROAD COMPANY, AS TO DANGER FROM THE THIRD RAIL (ELECTRIC) ON THE ELEVATED RAILROAD LINES OF THE COMPANY.

November 30, 1904.

This complaint, by John B. Creighton of the Brooklyn League, against the Brooklyn Heights Railroad Company, was filed with this Board on March 23, 1903. It was in relation to the danger from the third rail (electric) on the elevated railroad lines of the company at stations. This matter was considered during the time the two immediately preceding complaints were considered and several reports in relation to it were made by inspectors of the Board. The case was closed, althought, as stated above, the Board has under consideration the condition of affairs complained of and the question of protection of the third rail generally. (Case No. 2875.)

CV.

IN THE MATTER OF THE COMPLAINT OF GEORGE M. MCCOMBS, M. D., AGAINST THE UTICA AND MOHAWK VALLEY RAILWAY COMPANY, AS TO HIGH TENSION FEED WIRE POLE LINE.

November 30, 1904.

This complaint, by George M. McCombs, M. D., Health Officer of the Village of Frankfort, against the Utica and Mohawk Valley Railway Company, was filed with this Board (through the State Department of Health) on April 21, 1903. It alleged that a high tension feed wire pole line of the company on Pleasant street in the village of Frankfort was dangerous. A report in the matter was made by the electrical expert of the Board and a hearing in the matter was held by the Board in the village of Frankfort on November 3, 1903. After correspondence the company informed the Board:

"Replying to your letter of July 13th in relation to high tension pole line in the village of Frankfort, would say we have completed a survey around the village and have an attorney at work trying to secure options on the land so that we may erect the line on this new survey. I fear that our agent is not meeting with the very best, of success, but he is doing the best that can be done."

This case was closed. but this Board has under consideration the question of protection of these high tension feed wire pole lines. (Case No. 2899.)

Decisions of the Courts as to Powers of the Board of Railroad Commissioners

in Complaints.

I.

COURT OF APPEALS.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES S. LEHMAIER, Appellant, v. THE INTERURBAN STREET RAILWAY COMPANY, Respondent.

177 N. Y. 296; 85 App. Div. 407; appeal dismissed.

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 27, 1903, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus.

The facts, so far as material, are stated in the opinion.

O'BRIEN, J. The relator in this case does not seem to have any grievance of his own, but in behalf of the public he applied for a peremptory writ of mandamus requiring the defendant to do certain things which he claimed it is by law bound to do. These things are (1) to carry for one single fare of five cents any passenger desiring to make one continuous trip in either direction, between any point on the Eight avenue line, owned by the Eighth Avenue Railroad Company, and any point on the 125th street line, owned by the Third Avenue Railroad Company; and (2) upon demand and without extra charge to give to each passenger, upon either of said lines, paying one single fare, a transfer at the intersection of said lines, at the corner of Eighth avenue and 125th street, entitling such passenger to make a continuous trip from any point on one line to any other point on the other line. The court at Special Term denied the application for the writ, and the order to that effect was unanimously affirmed on appeal. There are two questions presented by the record. One is, whether the defendant is under legal obligation to give the transfers specified, and this depends upon the construction of certain sections of the Railroad Law, particularly section 104. The other question is, assuming that there is a statutory obligation on the part of the railroad company to give transfers to passengers, such as are specified in the application, whether that duty can be enforced by mandamus.

To state the case in another way, the question presented by this appeal is whether this court has the power to compel the courts below to enforce this statutory obligation, if it exists, by mandamus. That would be the plain effect of a decision of this court reversing the orders of the courts below, since these courts would be obliged to proceed upon the relator's motion and render such judgment as this court may determine should be given in the case. The writ of mandamus is issued only when there is a clear legal right to be enforced and when there is no other adequate or legal remedy to obtain the relief sought. (People ex rel. Gas Light Co. v. Common Council of Syracuse, 78 N. Y. 56; People ex rel. Millard v. Chapin, 104 N. Y. 96) If the right of the relator to the writ is not clear, or if there was some other adequate legal remedy more appropriate to the case, then the relator had no absolute right to the writ; and if the courts below were of the opinion that it was inexpedient to grant it under the circumstances, then this court has no right to interfere. It should be observed here that decisions of this court are to be found, made prior to the enactment of the present Constitution, which hold in effect that in certain cases it would review an order of the courts below denying the application for a writ of mandamus even where it was discretionary or where the discretion of the court below had been abused. If these cases are carefully examined it will, doubtless, be found that they were decided at a time when by statute and by the Constitution of the state the jurisdiction of this court was different from what it is now. Since the enactment of the present Constitution the jurisdiction of this court in such matters has been very much abridged. The right of review here of any judgment or order is limited to questions of law, and it has, ordinarily, nothing to do with questions of discretion or with questions of fact. There may be some cases where the peremptory writ of mandamus is given as a legal right, but, obviously, in this case, the nature of the relief sought is such, and the other legal remedies available to the relator are such, that it would seem to be plain that mandamus is not the proper remedy.

In the first place, if it be true that the railroad company is violating the statute in refusing the transfers, then an action for a penalty of fifty dollars will lie in favor of any individual who has been refused, and also an action to recover any damages which the individual may have sustained in consequence of the illegal refusal. A vigorus application of the statutory right to recover penalties has generally been found to be an adequate remedy for the grievance of which the relator complains. But in addition to that the attorney-general is authorized to bring an action against a railroad company to vacate its charter for any violation of law of which it is guilty, and a refusal to obey a statute to give transfers in certain cases would doubtless bring the defendant corporation within the scope of that statute. (Code of Civil

Procedure, §§ 1785, 1798.) Section 157 and 162 of the Railroad Law prescribe remedies for a redress of the grievance of which the relator complains that would seem to be ample. It is there provided that the railroad commissioners shall have power to investigate all complaints of any neglect of duty on the part of railroad companies in the operation of their roads for the accommodation of the public and to make report upon all complaints of the public in regard to the violation of its charter obligations; and it is provided that any decision or recommendation of the board may be enforced by mandamus. Here the writ of mandamus is expressly given as a remedy, but not in the first instance, and only after investigation of the facts by the. public authorities in charge of the affairs of railroads. In the present case the relator, as has already been stated, has shown nc legal right in himself. So far as the public is concerned, and so far as any individual may acquire such a right, the law gives adequate legal remedies. In this state of the case it was, as it seems to me, a matter of discretion with the Supreme Court to withhold the writ. It may have had the power to issue it, but it may have been of the opinion that such a proceeding was inexpedient or inappropriate. The practical question is, whether this court in such a case can or ought to hold that the courts below committed an error of law in refusing to grant the writ. The proper function of the writ of mandamus is to compel the doing of a specific thing based upon a legal right. It does not require much agrument to show that the writ of mandamus is not, in this case, an appropriate remedy to compel a general course of official conduct or a long series of continuous acts, as it is impossible for the court to oversee the performance of such duties. The relief which is sought to be attained by this application affects a multitude of people who may become passengers upon the railroad from time to time in the future, and the act which the defendant is required to perform is to deliver to all these people transfer tickets entitling them to ride upon the defendant's cars. It is difficult to see how a return to the writ, if issued, could be enforced or how the final judgment could be executed under section 2073 of the Code.

It seems to me that an absolute right to a writ of mandamus by the relator, representing, as he claims, the whole public, to procure the relief demanded, is not sanctioned by any clear authority, but on the contrary the more recent decisions of this court are adverse to the relator's claim. (People ex rel. Linton v. B. H. R. R. Co., 172 N. Y. 90; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390.)

The law with respect to the right of this court to review the order of the court below refusing a writ of mandamus is now, I think, well settled upon a very fair and reasonable basis, and that is that the application for the writ is addressed to the sound discretion of the Supreme Court, and where it appears that the facts are such as to justify the court in refusing the writ as matter of discretion this court will not interfere unless it affirmatively appears in the order denying the writ that the court did not refuse the writ in the exercise of its discretion. (Matter of Hart, 159 N. Y. 284: People ex rel. Durant L. I. Co. v. Jeroloman, 139 N. Y. 14; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495.) It does not appear from the order which is the subject of this appeal that the courts below refused to grant, the application for want of power or upon any other question of law. It follows that the case is not reviewable in this court, and, therefore, the appeal must be dismissed, with costs. PARKER, Ch. J., GRAY, BARTLETT, HAIGHT, MARTIN and CULLEN, JJ., concur. Appeal dismissed.

II.

SUPREME COURT.

THE CITY OF NEW YORK, APPELLANT, v THE INTERUBAN STREET RAILWAY Co., RESPONDENT.

Supreme Court, Appellate Term, February, 1904. 43 Misc., 29.

APPEAL by plaintiff from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, in favor of the defendant, dismissing the complaint.

GILDERSLEEVE, J. The questions which arise on this appeal relate to the validity and reasonableness of a city ordinance, approved by the mayor of the city of New York, July 22, 1902, which in substance requires street surface railroad companies to carry a passenger "to any regular stopping place desired by him upon such car's route," without change of cars except for transfer to a connecting line going in another direction or in case an accident renders compliance with the ordinance impossible. The action was brought to recover the penalty of $100 imposed by the ordinance for its violation. The learned trial judge dismissed the complaint, holding that the board of aldermen was not authorized to pass such an ordinance, and that the provisions of the General Railroad Act (Laws of 1890, chap. 565) governed and controlled such a regulation as is provided for in the said ordinance.

The facts disclosed on the trial were that in May, 1903, William F. Peters, J. Arch. McGovern and Alexander Saxe boarded a north-bound car of the defendant at or below Fourteenth street, desiring to be carried respectively to One Hundredth street, Ninetyeighth street and One Hundred and Fourth street and Columbus avenue. The outside of the car in question bore a sign on which the words "Columbus Avenue" were printed. These three persons had a common experience; they were carried to Columbus avenue and Seventy-ninth street, where they were told by the conductor to get out and take the car ahead; this they refused to do, and remained in the car which they had boarded down town. This car was then switched on to the south-bound track and taken over the same route by which they came to the South ferry, where it remained twenty minutes, and was then moved to Columbus avenue and Fifty-ninth street. There it was run into the car barn, these passengers still being in it, and