that the legislature had power to change the boundaries of these counties, and that the effect of the statute of 1895 was to transfer from the county of Westchester to the county of New York the territory mentioned in the act. While it is true that in that case the court held that this change of the lines of the two counties did not change the senate, assembly, or judicial districts, so far at least as to control in determining the electors who should be entitled to vote for senator, assemblymen, or judges of the supreme court, still it distinctly held that the portion of the territory which was annexed to the county of New York was to be considered a part of that county for other purposes. In this case no question as to the rights of electors to vote is involved. The plain and only question presented is whether the territory annexed to the county of New York by the act of 1895 has become and is a part of that county, so that the plaintiff is a resident thereof, and his property is within its lines. We find nothing in the Henderson Case that justifies the conclusion that the residents of the annexed territory are not residents of the county of New York, or that the property in the annexed district is not within its borders. We are of the opinion that the decision in the Henderson Case did not justify the decisions of the courts below, but that the statute of 1895 effected a change in the lines of the two counties; that the annexed territory became a part of the county of New York, and that the defendant was entitled to an order changing the place of trial of this action in accordance with his demand. It therefore follows that the order appealed from should be reversed, with costs, that the defendant's motion should be granted, with $10 costs, and the question certified answered in the affirmative. All concur. Ordered accordingly.

PEOPLE ex rel. HEERMANCE et al., Tax Com'rs, v. DEDERICK, City Assessor. (Court of Appeals of New York. March 14, 1899.)

SAVINGS BANK DEPOSITS-TAXATION-EXEMPTIONS. Under Laws 1896, c. 908, § 4, subd. 14, exempting "the deposits in any bank for sayings which are due depositors" from taxation, such deposits cannot be taxed either against the bank or depositors.

Appeal from supreme court, appellate division, Third department.

Application for mandamus by the people, on relation of Martin Heermance and others, constituting the state board of tax commissioners, against Addison E. Dederick, as assessor of the city of Kingston. From an order of the appellate division affirming an order denying the writ (54 N. Y. Supp. 519), petitioners appeal. Affirmed.

J. Newton Fiero, for appellants. Geo. W. Wickersham, for respondent.

GRAY, J. This case presents the converse of the proposition which we had before us in the Newburgh Sav. Bank Case, 157 N. Y. 51, 51 N. E. 412, where it was sought by the assessor of the city of Newburgh to assess the savings bank as to its surplus funds. Here the endeavor is, on the part of the taxing authorities, to assess the depositors in the savings banks of the city of Kingston for the amount of their deposits. In the former case referred to we held that there could be no assessment under the statute, and in the course of the opinion it was pointed out that the provisions of the banking law made it clear that every interest in the funds held by a savings bank is vested in the depositors; that the bank acquires no interest therein, and is deemed to hold what property it has for the benefit of depositors only. The language of the exemption clause in question (Laws 1896, c. 908, § 4, subd. 14) is to be taken as referring to the property itself which the bank is holding and managing. It is "the deposits in any bank for savings which are due depositors" which the law exempts from taxation, and it is quite immaterial whether we say that the property so exempted consists in the indebtedness of the bank to its depositors, or that it is the fund itself which is withdrawn from the operation of the tax law. Clearly, the corporation is not subject to assessment, either upon the principle that it has no property in its deposits, or because, under the provisions of the tax law, any assessment as to its personal property would be offset by the authorized deduction of its liabilities, which, as we saw in the Newburgh Sav. Bank Case, covered everything which it held. Therefore it would seem logically to follow that the statutory exemption applies, and was intended to apply, to depositors in savings banks, and to relieve them from assessment for taxation as to their deposits. The discussion in the Newburgh Sav. Bank Case and the opinion in the appellate division below render it unnecessary, in my judgment, to discuss this question further. The order should be affirmed, without costs. All concur, except PARKER, C. J., and HAIGHT, J., who take no part. Order affirmed.

the public convenience, the commissioners may consider the convenience of the railroad company, as well as the public, in determining whether a station sought to be discontinued was reasonably necessary for the public convenience.

3. On a hearing before railroad commissioners as to the contemplated discontinuance of a station, they may consider a contract wherein the company agreed with citizens to stop its trains at such station, but they have no power to enforce it.

4. Const. 1894, art. 6, § 9, prohibiting the court of appeals from reviewing evidence tending to sustain a finding of fact unanimously affirmed by the appellate division. applies to an affirmance of a decision of railroad commissioners authorizing the discontinuance of a station rendered on conflicting evidence as to the necessity and public convenience of such station, and the inconvenience and expense to the company in maintaining it.

Appeal from supreme court, appellate division, Third department.

Certiorari by the state, on the relation of Robert Loughran and others, to review the action of the board of railroad commissioners of the state of New York allowing the Ulster & Delaware Railroad Company to abandon one of its stations in Kingston. From an order of the appellate division of the supreme court affirming the decision of such commissioners (52 N. Y. Supp. 901), relators appeal. Affirmed.

Appeal from an order of the appellate division of the supreme court, in the Third judicial department, affirming a determination of the railroad commissioners granting leave to the Ulster & Delaware Railroad Company to abandon Fair street station, in the city of Kingston. This proceeding was initiated by the petition of three residents and freeholders of the city of Kingston to review by certiorari the proceedings and determination of the board of railroad commissioners in relation to the abandonment of Fair street station, in that city. About the 6th of July, 1897, the relators presented their petition to the board of railroad commissioners, alleging that the Ulster & Delaware Railroad Company proposed to abandon said station, in violation of an agreement, and in disregard of the convenience of the public, and asking the board to examine into the facts, and prohibit the threatened abandonment. A few days later the railroad company presented its petition to said board, asking leave to abandon said station. Answers having been interposed to both of these petitions, the proceedings were consolidated, and heard as one. The commissioners made a personal view of the locality affected, received the petitions of many individuals, both for and against the proposed change, swore and examined numerous witnesses produced by either side, and finally granted the application of the railroad company. The return shows that the tracks of the Ulster & Delaware Railroad Company extend from the city of Kingston, in the county of Ulster, to the village of Stamford, in the county of Delaware, a distance of 74 miles. The city of Kingston, shaped somewhat like

a dumb-bell, embraces the former village of Rondout, on the Hudson river, and the former village of Kingston, connected by a long, narrow strip of territory occupied by buildings. The portions which formerly were villages are centers of population and of business, and since the construction of the railroad there has been one station at Rondout, to accommodate the people living there, and another for a time at Higginsville, but in 1882 changed to Fair street, to accommodate those residing in the former village of Kingston. The change from Higginsville to Fair street was the result of an agreement made in 1881 between Thomas Cornell, as president of the railroad company, and a committee of citizens, of which the petitioners herein were members. That agreement was forthwith embraced in the following heading to a subscription paper, to wit: "Whereas, the Hon. Thomas Cornell, president of the Ulster & Delaware Railroad Co., has assured a committee that if the people would erect a depot building at the foot of Vorhees lane, or at a point near the head of Fair street, he would cause the trains of said road to stop at said depot for passenger purposes, in consideration thereof, we, the undersigned, do hereby agree to pay the sums set opposite our respective names for the purpose of erecting a depot building at the head of Fair street, and for constructing the roadway and other necessary work to complete the extension to the railroad at that point." This paper was signed by 47 persons and firms, who subscribed, with one cash subscription, the sum of $3,800, of which $3,345 was collected and used for the purpose of extending Fair street to the railroad, and erecting a depot at that place. Land was conveyed to the railroad company for a depot building and grounds, with a provision in the deed that when the land ceased to be used for that purpose it was to revert to the grantors. Subsequently the general action of the officers and directors of the railroad company, without special reference to the Fair street station, "was approved, ratified, and confirmed" at an annual meeting of the stockholders. For fifteen years after the construction of the depot pursuant to said agreement, the passenger trains of the railroad company stopped at the Fair street station. This was an accommodation to a large number of people residing in the old village of Kingston, and to a still larger number residing in various towns of Ulster and Delaware counties. This station was within 800 feet of the court house, clerk's office, surrogate's office, five banks, many hotels, schools, and places of business. There were, however, two other stations within the corporate limits of the city,-one at the terminus in Rondout, and the other at the junction of the Ulster & Delaware with the West Shore and the Walkill Valley Railroads, where there is a union depot. The station at Rozdout is nearly three miles from the center of the former village of Kingston, and the union

depot is about one mile therefrom, but is connected therewith by a street railroad. Neither of these stations accommodated many thousands of people, who were in the habit of getting on and off the cars at the Fair street station. Those from the country who wished to reach the court house or vicinity would be compelled, without the Fair street station, to pay more fare, and stop at least a mile further from the place where they wanted to go, while the inhabitants of the former village of Kingston would have to go a mile out of their way, to the union depot, and pay fare on the railroad, in order to ride back again to a point near their own homes, where for years they had been accustomed to take the cars. The aggregate loss of time and money each year would necessarily be large, when the number of people thus inconvenienced is considered. The inconvenience to the railroad company is the expense of maintaining the Fair street station, which has become somewhat out of repair, and the interference with its business, especially the summer traffic, which is the chief part of its passenger business, by stopping its trains at Fair street. The railroad commissioners granted the application of the railroad company, and gave as their main reason that a small local railroad should not be burdened with the expense of maintaining three stations for the use of a small city. The determination of the commissioners was affirmed by the appellate division unanimously, and the relators appeal to this court.

G. D. B. Hasbrouck, for appellants. Lewis E. Carr, for respondents.

Au

VANN, J. (after stating the facts). thority for the discontinuance of the station in question is found in the railroad law, which provides that "no station established by any railroad corporation for the reception or delivery of passengers or property, or both, shall be discontinued without the consent of the board of railroad commissioners first had and obtained." Laws 1890, c. 565, as amended by Laws 1892, c. 676, § 34. It is further provided by section 157 of the same law that "the board shall have power to administer oaths in all matters relating to its duties, so far as necessary to enable it to discharge such duties, shall have general supervision of all railroads and shall examine the same and keep informed as to their condition, and the manner in which they are operated for the security and accommodation of the public and their compliance with the provisions of their charters and of law." The principle to govern the action of the commissioners, as laid down in section 161, is that if any change "in the mode of operating the road or conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public," they are required to give orders accordingly, and it is made "the duty of the corporation, person or

persons owning or operating the railroad to comply with such decisions and recommendations of the board as are just and reasonable. If it fails to do so the board" is directed to "present the facts in the case to the attorney general for his consideration and action, and" also to "report them in its annual or in a special report to the legislature." By section 162 power is conferred upon the supreme court at special term, "in its discretion, in all cases of decisions and recommendations by the board which are just and reasonable to compel compliance therewith by mandamus, subject to appeal to the general term and the court of appeals, and upon such appeal, the general term and the court of appeals may review and reverse upon the facts as well as the law." By other sections authority is conferred upon the board to act in relation to questions arising between intersecting roads, the precedence of trains thereat, altering or reducing the rate of freight or fare, the erection of safeguards, intersecting switches and signal devices, consent to the construction of new railroads, the method of crossing streets by a new railroad, or the crossing of existing railroads by new streets, the consolidation and lease of parallel lines, the change of motive power by street-surface railroads, and the like. Railroad Law, §§ 35, 36, 38, 49, 50, 55, 57, 59, 59a, 60, 61, 62, 63, 66, 67, 68, 69, 80, 83, 100, 103, 150 to 166, inclusive.

When the orders of the board relate to the giving of permission to do or refrain from Going certain acts, nothing further is required to make the order effective; but when the orders are affirmative requirements, directing certain things to be done, they are in the nature of recommendations, which may be enforced, if reasonable and expedient, in order to promote the convenience of the public, by the supreme court at special term, subject in such cases to the right of appeal in the usual way, expressly conferred. Such appeals, however, are from the determination of the special term, and not of the commissioners. No right to review the determinations of the commissioners is expressly conferred by statute, and the respondent insists that the action and decision of the board as to the Fair street station were in the discharge of a legislative or ministerial function, and hence not open to review by certiorari. A common-law writ of certiorari may be issued to review the judicial determinations of inferior tribunals and officers, acting judicially under the authority of a statute, to correct errors of law affecting the property or rights of the parties. People v. Walter, 68 N. Y. 403, 408; People v. Jones, 112 N. Y. 597, 20 N. E. 577; People v. Board of Assessors of City of Brooklyn, 39 N. Y. 81, 88; People v. Goodwin, 5 N. Y. 568; Wildy v. Washburn, 16 Johns. 49; Star v. Trustees, 6 Wend. 564. In consenting to the discontinuance of the station in question, we think the board of railroad commissioners acted judicially. As was said in People v. New York, L. E. & W. R. Co., 104 N. Y. 58, 65, 9

N. E. 856, 859: "By creating, the statute recognizes the necessity for such a tribunal, to adjust conflicting interests and controversies between the people and the corporation. It has clothed it with judicial powers to hear and determine, upon notice, questions arising between these parties." The action of the board clearly was not legislative, for it was not in the nature of making a law, but of determining a controversy. It was not ministerial, because the commissioners were not required by law to do a specified act in a specified way upon a given state of facts, without regard to their own judgment as to the propriety of the act, and with no power to exercise discretion. People v. Commissioners of Land Office, 149 N. Y. 26, 43 N. E. 418. It was, however, judicial, because the law impliedly required them to decide a question of fact, and to exercise their judgment, upon evidence, in determining whether the consent should be given or not. The question was between the convenience of the public patronizing the station, and the inconvenience to the railroad company in maintaining the station and stopping its trains thereat. While the statute mentions the public convenience only, in a broad sense, the convenience of the public includes the convenience of the railroad company, also, because the real interest of the public cannot be promoted by imposing an unreasonable inconvenience upon the railroad. The question involved a wide range of investigation, and was the subject of much conflicting testimony. A great variety of facts was proved, tending strongly to show that the public convenience would be greatly promoted by the continuance of the station. Facts were also proved tending to show inconvenience and expense to the railroad, unless consent should be given to the discontinuance of the station. The board had express power to subpoena witnesses, administer oaths, and to conduct an investigation, not only judicial in form, but in nature; and upon the evidence taken, as well as upon their view of the locality, to decide whether, under all the circumstances, the prayer of the citizens or of the corporation should be granted. Railroad Law, § 157. While there is no express provision in the statute for notice to the citizens interested, there is an express provision for notice to the company, and after the consolidation the citizens were parties to the proceeding by virtue of their own prior petition. The board could not proceed upon the petition of the citizens without notice to the corporation, and it wisely concluded that it should not proceed upon the petition of the corporation without notice to the citizens. We think that the proceedings of the commissioners were subject to review by certiorari.

The board properly received the contract between certain citizens and the railroad company in evidence, but it had no power to enforce that contract or set it aside. Its jurisdiction does not extend to the enforcement of contracts, as such, or to the award of relief

for their violation. cised only by the courts. Any attempt by the commissioners to enforce the contract, as a contract, would have been illegal, and their omission to enforce it is no bar to an action by the parties aggrieved in the proper court. They do not constitute a court, although in many respects they act as judges. They have no inherent authority, but depend for their power upon the legislature, which has not attempted to invest them with the function of granting or withholding relief based upon contractual obligations.

That power can be exer

As has already been said, the determination made by the commissioners involved the decision of a question of fact, which, under the constitution, we have no power to review, as the affirmance by the appellate division was unanimous. People v. Barker, 152 N. Y. 417, 46 N. E. 875. Upon the merits, there is no question of law before us. No question is raised that is not necessarily determined by the decision of the question of fact. While the learned commissioners may not have attached sufficient importance to the public convenience, as compared with the corporate inconvenience, we cannot review their decision in that regard, but must accept it, approved as it has been unanimously by the appellate division, whether we approve of it or not. The order should be affirmed, but without costs. All concur. Order affirmed.

RAILROAD CROSSINGS-CONSTRUCTION-MANDAMUS. Under Laws 1897, c. 754, prescribing the manner of proceeding for carrying streets across railroad tracks, and by implication repealing Laws 1853, c. 62, under which a municipal corporation could, by its own motion, compel a railroad to carry a street across its tracks, a city cannot, by mandamus, compel a railroad to carry a street across its tracks, although it had served notice, pursuant to the latter act, on a railroad company, to do so, before the act of 1897 took effect, where the time within which the company was required to do the work had not expired when it did become effective.

Appeal from supreme court, appellate division, Fourth department.

Petition by the city of Niagara Falls for a peremptory writ of mandamus against the New York Central & Hudson River Railroad Company. From a judgment of the appellate division affirming an order denying the petition (52 N. Y. Supp. 234), complainant appeals. Affirmed.

Morris Cohn, Jr., for appellant. Daniel H. McMillan, for respondent.

PARKER, C. J. We held, in People v. New York Cent. & H. R. R. Co., 156 N. Y. 570, 51 N. E. 312, that the effect of the provisions of

This

section 31 of the statutory construction law (Laws 1892, c. 677) is to preserve a proceeding pending in a court to compel a railroad to take a street across its tracks after the preliminary steps have been taken as provided by chapter 62 of the Laws of 1853, notwithstanding the repeal of such act by chapter 754 of the Laws of 1897. In that case the city of Buffalo had not only acquired the right to compel the railroad to take a street across its tracks, but it had also instituted proceedings by mandamus to effectuate that result before the act of 1897 went into operation; and the right to prosecute a proceeding thus commenced to final effect, notwithstanding the repeal of the statute authorizing it, is preserved by the section of the statutory construction law to which we have referred. case presents an entirely different situation, for when the act of 1897 took effect this relator had not instituted a proceeding by mandamus to compel defendant to carry the street over its tracks; indeed, it had not even acquired the right to institute such a proceeding. If it had attempted to commence proceedings by mandamus at any time before the day on which the act of 1897 went into operation, it would have failed, because, by the terms of the resolution of the common council, the defendant had still seven days within which to comply, or refuse to comply, with the notice given by the city. On the 7th day of May, 1897, in pursuance of a resolution of the common council of the relator, notices were served upon this defendant and the Erie Railroad Company to take Tenth street, which was laid down upon a general map of the city, across their respective tracks. These notices were given in pursuance of the provisions of chapter 62 of the Laws of 1853, supra, and later on, and in conformity with other provisions of that statute, the common council, by resolution, extended the time within which the defendant was required to do such work until the 7th day of July, 1897. Until that date, therefore, the city could not have acquired the right to compel the defendant by mandamus to take the street across its tracks, had the act of 1853 continued in force. Between the 7th days of May and July the legislature passed chapter 754 of the Laws of 1897, which act took effect on the 1st day of July, or seven days prior to the termination of the period given the defendant by the city to take the street across the tracks. The latter act radically altered the procedure by which highways are to be carried across railroad tracks, a change of procedure made necessary by the radical change in the public policy of the state looking towards the ultimate abolition of the crossing of highways at grade by the tracks of steam railroads. It provides a complete scheme as to crossings, whether the tracks of the railroad cross streets already laid out or streets newly laid out, opened, or extended across the tracks of a railroad already in existence, or the change in the grade of an existing crossing, and commits the regulation of

the manner of making and constructing such crossing to the railroad commissioners, who are given authority to determine whether a given street, avenue, or highway shall pass over or under a railroad, or at grade. The last section contains a repealing clause affecting all acts inconsistent with it, by which the act of 1853 was necessarily repealed.

The right of all municipalities to lay out streets across the property of a railroad remains unaffected by this legislation, but it does take away from them the right, of their own motion, to compel a railroad to take a street across its tracks at grade. A municipality may desire that it be so taken, to save expense to itself, or for some other reason; but the power to determine whether its wish will be given effect has, since the 1st day of July, 1897, been committed to the judgment of the railroad commissioners. Many attempts have been made since the passage of that act to thwart the policy of the lawmaking power to avoid grade crossings. In some instances proceedings to open streets were instituted by the municipal authorities after the act of 1897 had been passed, but, of course, before it took effect. Indeed, in one instance, the notice, which the act of 1853 provided should be served upon a railroad corporation, notifying it to take a street across its railroad tracks within 30 days, was served only 2 days before the act of 1897 took effect. In re Village of Waverly, 35 App. Div. 38, 54 N. Y. Supp. 368. It would be unfortunate if such attempts to subvert the policy of the state could have such support in the statutes as would make them effectual, but, as we read them, they have no such support. The act of 1853 was repealed by that of 1897, and therefore, since the 1st day of July of that year, the procedure provided by the latter act must be resorted to in all attempts to take a street across the tracks of a steam railroad,— a procedure that requires, in the first instance, a determination by the railroad commissioners whether the street shall pass under or over the tracks of such a corporation or at grade. But where the right to institute proceedings by mandamus was acquired, and the proceedings commenced, prior to the 1st day of July, 1897, to compel a railroad to take a street across its tracks, the right to prosecute that proceeding to the end in the courts is preserved by section 31 of the statutory construction law. The order should be affirmed, with costs. All concur. Order affirmed.

ANDERSON et al. v. JOHNSON et al. (Supreme Court of Indiana. March 8, 1899.)

RAILROADS-CROSSINGS-ESTABLISHMENT-IN

STRUCTIONS.

Where the construction of a crossing under a railroad would require the removal of a fill and construction of a bridge for the tracks, the crossing is at grade unless the petition ask for an undercrossing, and the order establishing the crossing provide therefor; and hence,