246 N.Y. 327, Klinkenstein v. Third Ave. Ry. Co.

Citation246 N.Y. 327
Opinion JudgeCRANE, J.
Party NameKLINKENSTEIN v. THIRD AVE. RY. CO.
AttorneyIsidore Cohen, of New York City, for appellant. August P. Klein and Joseph E. Kinsley, both of New York City, for Audubon Transp. Co., amici curiae. Alfred T. Davison, Frederic W. Frost, and Addison B. Scoville, all of New York City, for respondent.
Judge PanelCARDOZO, C. J., and POUND, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.
Case DateNovember 22, 1927
CourtNew York Court of Appeals

Page 327

246 N.Y. 327

KLINKENSTEIN

v.

THIRD AVE. RY. CO.

New York Court of Appeals.

November 22, 1927

Action by Max E. Klinkenstein against the Third Avenue Railway Company. From an order of the Appellate Division (216 A.D. 187, 214 N.Y.S. 725) dismissing the complaint and reversing an order of the Appellate Term, which affirmed a judgment of the Municipal Court for plaintiff, plaintiff appeals by permission.

Order of the Appellate Division reversed, and determination of the Appellate Term affirmed.

See, also, 215 A.D. 700, 212 N.Y.S. 846; 216 A.D. 837, 215 N.Y.S. 873.

The provisions of Public Service Commission Law (Consol. Laws, chap. 48, Laws 1910, chap. 480), § 53, and Greater New York Charter (Laws 1901, chap. 466), §§ 74, 1458, relating to franchises, were passed in the interest of the public and not for the direct safety and welfare of the person on the street.

Page 328

Appeal from Supreme Court, Appellate Division, First Department.

Isidore Cohen, of New York City, for appellant.

August P. Klein and Joseph E. Kinsley, both of New York City, for Audubon Transp. Co., amici curiae.

Page 329

Alfred T. Davison, Frederic W. Frost, and Addison B. Scoville, all of New York City, for respondent.

Page 330

CRANE, J.

This appeal comes up from the municipal court by permission of the Appellate Division, which has certified that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals.

The plaintiff was the owner of an automobile passenger bus which was being operated for hire along New Chambers street, across Park row, in the borough of Manhattan, city of New York. While crossing, it was struck by one of the defendant's cars, running through Park row. This

Page 331

action was brought to recover for the damage done to the bus.

The plaintiff was operating this bus line under a permit from the department of plaint and structures of the city of New York. This, however, was not sufficient to legalize the operation. The Public Service Commission had not determined that such bus route was necessary or convenient to the public, and had not given its approval to the operation, pursuant to section 53 of the Public Service Commission Law (Consol. Laws, c. 48). Neither had this common carrier, so designated by section 65 of the Transportation Corporations Law (Consol...

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