Section 12 of the Railroad Law grants a franchise to railroad corporations situated as the defendants are, with reference to the intersection of their tracks. (L. 1892, ch. 676; Trustees ofSouthampton v. Jessup, 162 N.Y. 122, 126; Matter ofStillwater Mechanicville St. Ry. Co., 171 N.Y. 589.)
Section 53 of the Public Service Commissions Law prohibits the exercise of that franchise without the permission and approval of the proper commission. (L. 1907, ch. 429, § 53.) The intention to subject section 12 of the earlier act to the control of section 53 of the later act is emphasized by the explicit command of the legislature that "a railroad corporation and a street railroad corporation shall not be required to *Page 150 interchange cars except on such terms and conditions as thecommission may direct." (Pub. Ser. Com. Law, § 35.) The phrase "not heretofore lawfully exercised," as used in section 53, does not limit the power of the commission in this case, because the franchise or right to intersect their tracks at the point in question had not been exercised by the appellants when the present controversy arose.
Section 11 of the Railroad Law does not impress me as applicable to the case in hand. The question of convenience is not before us. The public service commission was not created for the convenience of corporations but for the protection of the public.
I think the order appealed from should be affirmed; that the first question certified should be answered in the negative and the second in the affirmative.
GRAY, WERNER, HISCOCK and CHASE, JJ., concur with HAIGHT, J.; CULLEN, Ch. J., concurs with VANN, J.
Order affirmed.