Supreme Court, March, 1921. [Vol. 115. pavement, improvements and bridges, safeguarding passengers and other persons using such streets, and no such operation upon the streets of any such city shall be permitted until the owner or operator of such vehicles or proposed line or route shall if required by such local authorities have executed and delivered a bond to such city in an amount fixed by said local authorities and in the form prescribed by the chief law officer of said city with sureties satisfactory to the chief fiscal officer of said city, which bond may be required to provide adequate security for the prompt payment of any sum accruing to said city, and the performance of any other obligations, under the terms and conditions of such consent, as well as adequate security for the payment by such owner of any damages occurring to, or judgments recoverable by, any person on account of the operation of such line or route, or any fault in respect thereto. The town board of any town or the board of trustees of any village may adopt a resolution providing that the provisions of this section shall apply to such town or village, and thereafter no bus line, stage route, motor vehicle line or route shall be operated, wholly or partly, upon or along any street or highway in such town or village, nor receive a certificate of public convenience and necessity until the owner or owners thereof shall have procured the consent of the local authorities of such town or village, in the same manner and subject to the same terms and conditions as is provided in this section for procuring the consent of the local authorities of the city; and for such purpose the town board of such town, in the case of a town and the board of trustees of the village in the case of a village, shall be deemed the local authorities thereof." One who operates a motor vehicle line within a city Misc.] Supreme Court, March, 1921. without first obtaining the consent of the municipal authorities and without thereafter procuring a certificate from the public service commission as to the necessity and public convenience of such business, violates the above statute. In the case of Public Service Commission v. Hurtgan, 91 Misc. Rep. 432 at page 435, Mr. Justice Brown graphically outlines the cases in which a license must be obtained. He states that the statute requires such consent for the operation in a city of either "(a) A bus line, "(b) A stage route, "(c) A motor vehicle line or route, "(d) A vehicle in connection with a bus line, a stage route, a motor vehicle line or route, "(e) A vehicle carrying passengers at a rate of fare of fifteen cents or less for each passenger within the limits of a city, "(f) A vehicle carrying passengers 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. "The statute is that to lawfully operate any one of the above six specified lines, routes or vehicles, in a city the consent of the local authorities and the certificate of the Public Service Commission must be first obtained, provided such line, route or vehicles, are engaged in the business of carrying passengers for hire in the city." The defendant seems to come under subdivisions (c) and (f) in the above analysis, since he was operating a motor vehicle line or route and was operating a vehicle carrying passengers in competition with another common carrier which is required by law to obtain the consent of the local authorities of the cities in question to operate over the streets thereof. [Vol. 115. Supreme Court, March, 1921. This case is not a novel one in courts of this state. I have had a number of similar cases presented to me for my determination, involving a violation of the above statute in which the owner of a vehicle or vehicles operating a motor vehicle line or route, or operating a vehicle carrying passengers in competition with another common carrier has been restrained by me upon the application of the public service commission for the enforcement of this statute. No opinion has heretofore been written by me in any of these cases, for the very reason that the courts had settled the law in a number of clear and harmonious decisions. The importance of the situation which exists in this community, however, justifies me in referring to a number of these decisions for the purpose of clarifying this situation. In the case of Public Service Commission v. Hurtgan, supra, the defendant was operating a motor vehicle route in the city of Lockport without having applied for or having received the consent of the authorities of that city, in competition with the International Railway Company, and the court granted an injunction, restraining the defendant from further operating his motor vehicles and the carrying of passengers for hire within said city. In the case of Public Service Commission v. Fox, 96 Misc. Rep. 283, the defendant operated a horse drawn vehicle carrying passengers at a rate of fare of fifteen cents or less, through the streets of Elmira. Regular trips were made. The defendant attempted to justify his operation by showing that his passengers were employees and only the employees of a certain manufacturing plant, and that these employees had formed a mutual transportation club, each paying when he rode a fare of five cents. The Misc.] Supreme Court, March, 1921. court enjoined the defendant in that case as a violation of the statute for failure to procure the consent of the local authorities, and also the certificate from the public service commission, holding that the requirements of the statute could not be ignored even under such circumstances. In the case of Public Service Commission v. Mt. Vernon Taxicab Co., 101 Misc. Rep. 497, the court enjoined the operation of defendant's auto bus line between the city of Mt. Vernon and Rye Beach, because it was in competition with another common carrier and because it was operating without the consent of the local authorities of the cities of Mt. Vernon and New Rochelle, and that the certificate of public convenience and necessity from the public service commission is required by the statute. In that case the court said: "The operation of the buses carrying about twenty people each on a regular line or route is altogether different than an ordinary taxicab service where vehicles are operated upon no regular route but take patrons anywhere they choose to go." In the case of Niagara Gorge R. R. Co. v. Gaiser, 109 Misc. Rep. 38, an action was commenced to restrict the operation by the defendant of a bus line through the village of Lewiston, Niagara county, as a part of a route paralleling the plaintiff's railroad from a certain street in the city of Niagara Falls to the village of Lewiston. It was held that by section. 25 of the Transportation Corporations Law, one who operates a bus line over a route in a city is deemed a common carrier within the Public Service Commissions Law and must obtain a certificate for the operation of the route or vehicles proposed to be operated, and must also obtain a certificate of public convenience and necessity from the public service com Supreme Court, March, 1921. [Vol. 114. mission before exercising a franchise granted by a municipality. An injunction was granted restraining the defendant from operating his bus line so far as he had failed to obtain a certificate from the public service commission, upon the ground that the operation of the bus line violated the statute and resulted in damage and injury to the railroad company, for which it had no adequate remedy at law. It is to be noted that this action was brought by the railroad company and not by the public service commission. In the case of Public Service Commission v. Booth, 170 App. Div. 590, the defendant had been operating a bus line before the statute in question was passed and he claimed that the statute requiring a certificate from the public service commission did not apply to him as he was already operating under a license from the city. The court held that even in that case the defendant was prevented from operating his bus line. until he had complied with the terms of the statute by obtaining a certificate of public convenience and necessity from the public service commission. In the case of Brooklyn City R. R. Co. v. Whalen, 191 App. Div. 737, the plaintiff, a street railway company, owned and operated lines of surface cars in Brooklyn, and in the fall of 1919 the board of estimate and apportionment of the city of New York authorized the defendant, as commissioner of plant and structures of the city, to operate motor vehicles for the carrying of passengers on certain prescribed routes. The city authorities contended that the maintenance of the bus line was justifiable because of emergency, putting forward the inadequacy of the service of the street railway lines as creating such emergency. The court condemned the procedure adopted, calling attention to the fact that the city had, in plain disregard of the statute, without grant |