2. Whether said company should be directed to give the right of way to the cars operated on said service between Thirty-ninth Street ferry to Ulmer park, in each direction, so that said cars shall not be held up by the switching of Third avenue cars at Third avenue and Sixty-fifth street or by the Hamilton avenue cars at Sixty-seventh street. All to the end that the Commission may make such order or orders in the premises as shall be just and reasonable. Further ordered, That the said Brooklyn Heights Railroad Company be given at least five days' notice of such hearing by service upon it, either personally or by mail, of a certified copy of this order, and that at such hearing said company be afforded all reasonable opportunity for presenting evidence and examining and cross-examining witnesses as to the matters hereinbefore set forth. Hearings were held October 8th, 16th, 23d, 30th and November 6th. COMMISSIONER BASSETT :—- OPINION OF COMMISSION. At one time the Brooklyn Heights Railroad Company operated a surface line between Thirty-ninth street ferry and Ulmer park, Brooklyn, via Second avenue, Third avenue, Bay Ridge avenue, Thirteenth avenue, Eighty-sixth street and Twenty-fifth avenue. The traffic upon said line became so small that it was discontinued. The present complaint prays for its restoration. Passengers using the Thirty-ninth street ferry can be accommodated by transfers so that they may travel over the same route. This is accomplished by using other surface lines having their termini at Thirty-ninth street ferry or at the Sixty-fifth street station of the elevated railroad. The complainants, however, urge that the cars proceeding down the incline from the Sixty-fifth street elevated railroad station are SO crowded, especially in the rush hours, that it is difficult or impossible for them to obtain adequate service at the transfer points. The difficulties of the situation at the Sixty-fifth street elevated terminal are pointed out in my opinion in Order No. 597. The proof shows that if the discontinued line should be restored it would not average more than five passengers in each car. This conclusion is based upon the number of passengers now using by transfers the identical route of the discontinued line. It is likely that if the line were actually restored more passengers than this would use it, but the number would undoubtedly be much smaller than would warrant ordering the restoration of the line. The opinion of the experts of the Commission is that the traffic would not warrant such an order. I, therefore, recommend that the complaint be dismissed. This investigation together with communications from various citizens has brought into prominence the deplorable conditions existing at the Brooklyn terminal of the Thirty-ninth street municipal ferry. Passengers are compelled to walk nearly one-third of a mile from the surface cars to the ferry house. This walk is without shelter most of the way and causes an entire lack of co-operation between the movements of surface cars and ferry boats. I have taken up the matter with the railroad companies involved and the dock department in an endeavor to cause the operation of the surface lines along temporary structures on the city's property to the ferry house. Progress has already been made in this direction and I hope to be able to report soon that an arrangement has been concluded for the temporary accommodation of this traffic until the permanent ferry house and approach is finished. Thereupon the following dismissal order was issued: DISMISSAL ORDER No. 849. An order of the Commission, No. 755, having been made herein on the 2d day of October, 1908, directing a hearing on October 8, 1908, in the matter of the discontinuance of the Thirty-ninth Street Ferry-Bay Ridge Avenue Line, and said hearing having been duly had before the Commission on October 8, 1908, October 16, 1908, October 23, 1908, October 30, 1908, and November 6, 1908, and it appearing from testimony taken at said hearing, on which opinion was rendered by Commissioner Bassett, that the restoration of said Thirty-ninth Street FerryBay Ridge Avenue Line would not be warranted by the number of passengers accommodated by said line, Now, on motion made and duly seconded, it is Ordered, That said complaint be, and the same hereby is, dismissed, and that this order be filed in the office of the Commission. Brooklyn Heights Railroad Company.-Inadequate service on the crosstown line at Manhattan avenue bridge over Newtown creek. COMPLAINT OF BARTLEY J. WRIGHT against Complaint Order No. 691. Hearing Order No. 724. Opinion of Commissioner Bassett. Extension Order, Case 845. Rehearing Order, Case 845. Opinion of Commissioner Bassett. BROOKLYN HEIGHTS RAILROAD COMPANY. Complaint Order No. 691 (see form, note 1) issued August 25th. The company answered on September 1st, stating that the service was reasonable and that it would be impracticable to extend the Crosstown service to Long Island City during the greater period of the day because of interference on the bridge caused by frequent opening of the draw. The following hearing order, "on motion of the Commission," was issued: It is hereby ordered, That a hearing be had on the Thirtieth day of September, 1908, at 2:30 o'clock in the afternoon, or at any time or times to which the same may be adjourned, at the rooms of the Commission, No. 154 Nassau street, borough of Manhattan, city and State of New York, to inquire whether the regulations, practices, equipment, appliances and service of the Brooklyn Heights Railroad Company upon and near its line known as the Crosstown Line upon and across the bridge known as the Manhattan Avenue bridge, over Newtown creek, and upon and near the approaches to said bridge, in the city and State of New York, in respect to the transportation of persons in said city are unjust, unreasonable, improper or inadequate; and if it be so found, then to inquire and determine whether changes in said regulations, practices, equipment, appliances or service in the particulars following will be just, reasonable, adequate and proper, and whether changes therein and additions thereto in the particulars following ought reasonably to be made, in order to promote the security and convenience of the public and in order to secure adequate service and facilities for the transportation of passengers, namely: 1. Whether said company should be directed and required to operate its cars on its line known as the "Crosstown Line" across Manhattan Avenue bridge, over Newtown creek, at all hours, so as to afford through service on said line across said bridge, at all hours. 2. Whether said company should be directed and required to provide electrical power for the propelling of its cars upon said bridge and upon the track and approaches to said bridge at all times, to the end that there shall be no "dead section" of said line, caused by the opening of the draw of said bridge, or otherwise. 3. To determine the number of cars that should be operated upon said line and the frequency of their operation or the number of seats that should be furnished within a given time or times and past a given point or points upon said line, in order reasonably to accommodate the traffic transported by said company or offered for transportation to it, upon said line. 4. Whether other changes, improvements and additions in and to the regulations. practices, equipment, appliances or service of said Brooklyn Heights Railroad Company upon said line and across said bridge ought reasonably to be made, for the purposes aforesaid. 5. If it be found that the changes, improvements and additions above mentioned or any of them are such as ought reasonably to be made, then to determine the particulars and extent thereof and the time within which the same should be directed to be executed. All to the end that the Commission may make such order or orders in the premises as shall be just and reasonable. It is further Ordered, That the said Brooklyn Heights Railroad Company be given at least eight (8) days' notice of said hearing, by service upon it. either personally or by mail, of a certified copy of this order, and that at such hearing said company be afforded all reasonable opportunity for presenting evidence and examining and cross-examining witnesses as to the matters aforesaid. Hearings held September 30th and October 7th and 8th. OPINION OF COUNSEL. October 28, 1908. Hon. EDWARD M. BASSETT, Commissioner: SIR Referring to your oral request that I inform you concerning the franchise rights of the Brooklyn Heights Railroad Company upon and across the Manhattan avenue bridge over Newtown creek, and from the northerly side of Newtown creek to the Thirty-fourth street ferry, and supplementing the report already made to you by Mr. Chamberlain, I beg to advise you as follows: By chapter 823 of the Laws of 1866, the Legislature authorized and empowered the Nassau Railroad Company of the city of Brooklyn to construct, maintain and operate, with horse power only, a railroad in and upon certain streets, avenues and places, route and routes specified in the act, a copy of which was attached to Mr. Chamberlain's report. The route, in so far as is material here, is given in the act as follows: "Beginning at the ferries at the foot of West Second street, near the depots. of the Long Island and Flushing Railroad Companies; at Hunter's Point in Queens county, thence by double track along West Second street and the turnpike, across the bridge over Newtown creek, leading to Union avenue, thence along Union avenue, Orchard street, Van Cott avenue and Fifth street to Broadway, thence along Broadway and Rush street to Kent avenue, thence along Kent avenue and Clymer and Taylor streets to a point where Washington avenue when built and extended across the Wallabout bay will meet or connect with either of said streets, thence along Washington avenue, Montgomery street and Franklin avenue to the town of Flatbush, with a continuation from Washington avenue along Park avenue and Flushing avenue to Raymond and Navy streets, thence along Raymond and Navy streets to Willoughby street. thence along Willoughby street to the City Hall and the County Court House on Joralemon street, thence along Joralemon and Court streets to Atlantic street. and thence along Atlantic street to the South Ferry, thence returning by the same route or streets and avenues to the junction of Broadway and Fourth street, thence along Fourth street and North Ninth street to Fifth street, and thence along Fifth street, Van Cott avenue, Orchard street, Union avenue, and across said bridge over Newtown creek and along said turnpike and West Second street to the ferries, the point or place of beginning: with the switches, turnouts, and sidings actually necessary and proper for the operation of such road.' The Nassau Railroad Company was incorporated March 3, 1865, under the General Railroad Act of 1850. By chapter 376 of the Laws of 1868, the Nassau Railroad Company and another company (the Greenpoint and Williamsburgh Railroad Company) were consolidated under the name of Brooklyn City, Hunter's Point and Prospect Park Railroad Company. By chapter 453 of the Laws of 1872 the name Brooklyn City, Hunter's Point and Prospect Park Railroad Company was changed to "Brooklyn Crosstown Railroad Company." The properties of this company were subsequently leased to the Brooklyn City Railroad Company, and were held under lease by that company for some time, as were also the properties of the following companies: Bushwick Railroad Company Calvary Cemetery, Greenpoint and Brooklyn Railroad Company: New Williamsburgh and Flatbush Railroad Company: Greenpoint and Lorimer Street Railroad Company; Grand Street and Newtown Railroad Company. On October 31, 1890, the Brooklyn City Railroad Company having acquired the capital stock of these companies filed a certificate thereof in the office of the Secretary of State, whereupon these properties merged into and became a part of the Brooklyn City Railroad Company. The Brooklyn City Railroad Company thus succeeded to all the rights of the companies merged therewith. On January 11, 1892, the Common Council of the city of Brooklyn granted to the Brooklyn City Railroad Company permission to change its motive power from horse power to electric power. On February 14, 1893, the properties of this company were leased for 999 years to the Brooklyn Heights Railroad Company, by which company they are now operated. With reference to the right of the company to operate cars over the present bridge, I would call attention to section 110 of the Railroad Law, which is as follows: "Should any street surface railroad company have crossed any bridge as a part of its route for a period of more than five years and should any other bridge be substituted therefor at any time, such company shall have the right to cross such substituted bridge and to lay and use railway tracks thereon for the transit of its cars and to make all changes and extensions of its route subject to all the provisions of this act, as the convenient operation of its cars and public convenience may require." Regarding operation through Borden avenue to and from the Thirty-fourth street ferry. It will be noted that the grant of April 26, 1866, to the Nassau Company covers this route. I am informed that the "West Second Street " mentioned in the grant is now Borden avenue. For a number of years a horse car service was operated over this line, the line being called the "Crosstown Annex Line," and being a double track line .161 miles in length. I find this line mentioned in the Railroad Reports beginning with 1897, under the name mentioned. The report for 1902 shows the line still in operation, but the reports for 1903 and succeeding years show the line "not operated." It would appear, therefor, that the line was discontinued in 1902 or 1903. I am informed by the railroad company that the line was discontinued at the time of the construction of the new bridge over Newtown creek. I have been unable to ascertain just when the operation of the line was commenced. The Railroad Reports prior to 1897 make no mention of this as a separate line. The abandonment by the corporation of the portion of its line mentioned did not determine or forfeit its franchise. Such abandonment operated only as a cause of forfeiture of which the People alone could take advantage. Trelford v. Coney Island and Brooklyn Railroad Company, 6 App. Div. 204. People v. Broadway Railroad Company, 126 N. Y. 29. Paige v. Schenectady Railway Company, 178 N. Y. 102, 114. My conclusion is that the Brooklyn Heights Railroad Company has a valid franchise over the route described in the act of the legislature and across the new bridge over Newtown creek. It has a valid franchise in Borden avenue between the ferries at the foot of that avenue and the point where the line originally turned aside to cross the old bridge over Newtown creek. The rights of the company in this avenue have not been forfeited. However, the present bridge is much higher and longer than the old bridge and is elevated above and extends beyond Borden avenue so that it would be impossible to operate the line in the manner contemplated by the act mentioned. In order to operate the line as a continuous line additional franchise rights would have to be procured between the northerly terminus of the bridge and Borden avenue. Of course, a shuttle service could be put on in Borden avenue, but this probably would not pay, as the line would not connect with the main part of the Crosstown line. I suggest, therefore, that the company be advised to apply to the Commission for leave to abandon the portion of the line lying in Borden avenue. In any event, in view of the changed conditions, the company probably should not be required to operate this portion of its franchise. Respectfully yours, (Signed) GEO. S. COLEMAN, Counsel to the Commission. OPINION OF COMMISSION. COMMISSIONER BASSETT : (Adopted November 20, 1908.) Two lines of surface cars operated by the Brooklyn Heights Railroad Company proceed on Manhattan avenue across Newtown creek to Long Island City. Newtown creek is a navigable stream and the United States government requires the operation of a lift bridge in order to accommodate navigation. The constant opening of this bridge will disarrange any regular surface car schedule. The company has endeavored to meet this condition by operating the Greenpoint line throughout the day and additional service provided by shuttle cars during rush hours across the bridge. This service causes a great deal of complaint because of the infrequent and irregular operation and the constant change of cars. The remedy proposed allows the two said lines, both of which are important long distance lines, to stop on the Brooklyn side of the bridge, with the exception that the Crosstown line proceeds to Long Island City in the evening hours. This allows the maintenance of a more regular headway on these important lines. The shuttle service is enlarged and improved. Connections will be made between the shuttle cars and the cars of the through lines. The details of this plan are sufficiently given in the order. Correspondence is now going on between the Commission and the Department of Bridges in an endeavor to bring about less frequent opening of the lift bridge. Thereupon the following final order was issued: ORDER No. 845. November 20, 1908. This matter coming on upon the report of the hearing had herein on the 30th day of September, 1908, and on the 8th day of October, 1908; and it appearing that the said hearing was had by and before the Commission pursuant to hearing order No. 724, dated September 18, 1908, and returnable on the 30th day of September, 1908, at 2:30 o'clock in the afternoon; and it appearing that said hearing order No. 724 was issued upon motion of the Commission after service on the Brooklyn Heights Railroad Company of complaint order No. 691 issued upon the complaint of Bartley J. Wright, Esq., and after the answer of said railroad company to said complaint had been filed with the Commission; and it appearing that said order was duly served upon said Brooklyn Heights Railroad Company and that such service was by it duly acknowledged; and it appearing that said hearing was had by and before the Commission on the matters embraced in said complaint and answer and order for hearing on September 30, 1908, and on October 8, 1908, before Mr. Commissioner Bassett, presiding, Harry M. Chamberlain, Esq., Assistant Counsel, appearing for the Commission and Arthur N. Dutton, Esq., appearing for said railroad company; and testimony having been taken upon said hearing; and it having been made to appear after the proceedings on said hearing that the regulations, practices, equipment, appliances and service of the Brooklyn Heights Railroad Company upon and near its line known as the Crosstown Line upon and across the bridge known as the Manhattan Avenue bridge (or Vernon Avenue bridge) over Newtown creek and upon and near the approaches to said bridge in the city and State of New York in respect to the transportation of persons in said city are improper and inadequate in the respects hereinafter mentioned and that changes therein and additions thereto in the particulars following ought reasonably to be made in order to promote the security and convenience of the public and in order to secure adequate service and facilities for the transportation of passengers; and it having been made to appear after the proceedings on said hearing that it will be reasonable to require that the provisions of this order be put into effect by said company within the period of time hereinafter mentioned, and that such periods of time would be reasonable and adequate for that purpose. Now, therefore, on motion of George S. Coleman, Esq., Counsel to the Commission, It is ordered: 1. That said company discontinue the present through operation of the Greenpoint Line across said bridge and establish the northerly terminus of said line at Manhattan avenue and Commercial street; 2. That between the hours of 8 P. M. and 6 A. M. daily, said company operate all cars of its Crosstown Line through to Fourth street, Long Island City; 3. That between the hours of 6 A. M. and 8 P. M. daily, said company install and maintain across said bridge between Box street and Fourth street a shuttle service with a scheduled headway of not less than six (6) minutes in such a manner as to accommodate passengers transferring from the Greenpoint Line and from the Crosstown Line: 4. That the dead section of trolley wire created by the opening of the draw of said bridge be provided by said company with electric power at all times; 5. That said company comply with the requirements of subdivisions 1, 2 and 3 of this order on December 3, 1908, and that said company comply with the requirements of section 4 of this order on or before December 23, 1908; 6. That this order shall take effect as herein before provided and shall continue in force until such time as the Public Service Commission for the First District shall otherwise order. Further ordered, That the said company be, and hereby is, authorized to make the changes in routes as hereinbefore ordered upon filing and publishing as provided by Tariff Circular No. 1 at least five days in advance of the said December 3, 1908, a supplement which shall bear the following notation "Issued under special permission of the P. S. C.-1 Order No. 845 of November 20, 1908." Further ordered. That said Brooklyn Heights Railroad Company notify the Public Service Commission for the First District within five (5) days after service of this order upon it whether the terms of this order are accepted and will be obeyed. Upon application of the company the following extension order was issued: CASE NO. 845, EXTENSION ORDER. An order, No. 845, having been made herein on or about the 20th day of November, 1908, directing the Brooklyn Heights Railroad Company (1) to make certain changes and improvements in the service on its crosstown line at Manhattan avenue bridge over Newtown creek by December 3, 1908, schedules of such changes to be filed with the Commission at least five days prior to that date. (2) to provide the dead section of trolley wire created by the opening of the draw of said bridge with electric power at all times, such provision to be made before December 23, |