Misc.] Supreme Court, March, 1921. that he is entitled to such recovery both by an action at common law and under the Employers' Liability Act, and that he is entitled to his bill of particulars by reason of the last mentioned act. The case of Knickerbocker Ice Company v. Stewart, supra, fully and finally determines that the said Workmen's Compensation Act has no application, so that the plaintiff is now relegated to whatever right and remedy he may have had, exclusive of the Workmen's Compensation Act, at the time of his injury. The defendant holds that, whatever right or remedy the plaintiff may show himself entitled to, he is obliged, upon the trial, to prove his freedom from contributory negligence and that, therefore, the plaintiff can, under no rule of law or statute, compel the defendant to furnish particulars of the contributory negligence alleged as a defense. Further, that by bringing action in a state court plaintiff has saved to himself only a common-law remedy and if the rule of maritime law is applied and the courts have held that maritime law cannot be administered in the state Supreme Court (see Johnson v. Standard Transportation Co., 188 App. Div. 934; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372), no bill of particulars, as sought, can be obtained. Having been barred under the Workmen's Compensation Act, defendant asserts plaintiff cannot, under another statute, to wit, the Employers' Liability Act, take advantage of the privi leges furnished by that act. The federal courts have recently decided what is an invasion of the exclusive jurisdiction of the federal courts over all civil and maritime causes and the saving clause to suitors in all cases and right of a common-law remedy where common law is competent to give it. Southern Pacific Company v. Jensen, 244 U. S. 205; Clyde Steamship Co. v. Walker, Id. 255; Supreme Court, March, 1921. [Vol. 115. and Knickerbocker Ice Co. v. Stewart, supra. This does not mean, necessarily, a common-law action, but that the remedy might be by any means employed to enforce the rights or redress the injury. Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 644. The present action being a tort case jurisdiction depends solely upon the place where the tort was committed, and under the saving clause of the federal Constitution, plaintiff contends that the remedy for the wrong or injury done him may be sought by any means employed to enforce his rights or redress the injury. Further, that the Employers' Liability Act never having been repealed, he is fully within his rights in seeking to obtain, in full, the benefits afforded thereby. Matter of Doey v. Howland Co., 224 N. Y. 30; Matter of Anderson v. Johnson Lighterage Co., Id. 539. Plaintiff further contends that the relief sought in no way contravenes the saving clause of the federal Constitution of the right of common-law remedy, because the Employers' Liability Act, so far as the matter at issue is concerned, is simply a question of procedure and does not create substantive rights or substantive law. Sackheim v. Pigueron, 215 N. Y. 62. It is of immediate and great importance that the questions herein involved should be definitely settled. Many actions involving maritime law have been brought in the state courts, and a clear working rule is desired. Already cases have been decided according to the common law, maritime law, relating to wage, maintenance, and cure and also the application of the rule of comparative negligence, and have also been determined by application of the Employers' Liability Act. The circumstances are such that the motion should be granted. Motion granted. Misc.] Supreme Court, March, 1921. UNITED TRACTION COMPANY, Plaintiff, v. JOHN SMITH, Defendant. (Supreme Court, Albany Special Term, March, 1921.) Injunctions - when injunctive relief granted -motor vehicle line - municipal corporations - licenses statutes- Transportation Corporations Law, §§ 25, 26 carriers Penal Law, §§ 29, 1937. One who operates a motor vehicle line in a city without first obtaining the consent of the municipal authorities and without thereafter procuring from the Public Service Commission a certificate as to the necessity and public convenience of such business, violates sections 25 and 26 of the Transportation Corporations Law. Where one without a license so obtained operates a motor vehicle line or route over the streets of the city of Albany, Watervliet and Troy or in and along the highways connecting said cities, with vehicles for carrying passengers, in competition with another common carrier, which, as required by statute, has obtained the consent of the local authorities of said city to operate over the streets thereof, such operation without a license, will be restrained by injunction upon the application of the other common carrier. While the failure to comply with the aforesaid provisions of the Transportation Corporations Law is a misdemeanor under section 29 of the Penal Law, punishable by fine or imprisonment or both under section 1937 thereof, the court will not compel parties whose rights are clear to rely on peace officers to protect them in their enjoyment of such rights, and may grant injunctive relief. APPLICATION for a temporary injunction. Sanford & Alexander, for plaintiff. Andrew J. Nellis, for defendant. HINMAN, J. This is an application for a temporary injunction restraining the defendant and those representing him until the further order of the court Supreme Court, March, 1921. [Vol. 115. from operating a bus line, stage route or motor vehicle line or route in or along any of the streets, highways or public places of the cities of Albany, Watervliet and Troy, or in and along the highways connecting the said cities. It appears from the moving papers that on March 23, 1921, the defendant drove a six passenger motor vehicle from near the post-office in Albany on the public street called Broadway, along said street to and along the public highway called the Albany and Troy road through the public streets of Watervliet, to and along a public street called River street in the city of Troy; that passengers got on and off at various points on said trip and each paid to the defendant the sum of twenty-five cents; that the defendant solicited passengers for hire on and along said route; that the vehicle had a sign bearing the words, "Albany and Troy. 25c;" that the defendant told one of the passengers in his motor vehicle on that date that he was the owner of the car and that he had been running it as a motor vehicle line for twentyeight days from the post-office in Albany to the Manufacturers National Bank on River street in Troy, and that he intended to so run it until the trolley strike was over and that he had no license or consent by the local authorities of said cities to operate said route. The defendant substantially concedes these facts, except that he denies saying that he was running his vehicle as a motor vehicle line, or that he was running any line whatever. This becomes immaterial, however, in view of the facts admitted, since the court must reach the conclusion under the statutes and under the decisions, that the operation of his vehicle did constitute the operation of a motor vehicle line. or route, and constituted him a common carrier within the meaning of the statutes, requiring him to Mise.] Supreme Court, March, 1921. obtain a license as will be indicated by the authorities hereinafter referred to. The following sections of the Transportation Corporations Law are applicable to this case: 66 "§ 25. Additional persons and corporations subject to the public service commissions law. Any person or any corporation who or which owns or operates a stage route, bus line or motor vehicle line or route or vehicles described in the next succeeding section of this act wholly or partly upon and along any street, avenue or public place in any city shall be deemed to be included within the meaning of the term ' common carrier' as used in the public service commissions law, and shall be required to obtain a certificate of convenience and necessity for the operation of the route or vehicles proposed to be operated, and shall be subject to all the provisions of the said law applicable to common carriers." 66 § 26. Consent required. No bus line, stage route nor motor vehicle line or route, nor any vehicle in connection therewith, nor any vehicles carrying passengers at a rate of fare of fifteen cents or less for each passenger within the limits of a city or in competition with another common carrier which is required by law to obtain the consent of the local authorities of said city to operate over the streets thereof shall be operated wholly or partly upon or along any street, avenue or public place in any city, nor receive a certificate of public convenience and necessity until the owner or owners thereof shall have procured, after public notice and a hearing, the consent of the local authorities of said city, as defined by the railroad law, to such operation, upon such terms and conditions as said local authorities may prescribe, which may include provisions covering description of route, rate of speed, compensation for wear and tear of |