Although, as provided by section 57 of the Public Service Commissions Law (Cons. Laws, ch. 48), mandamus may be an appropriate process "for the purpose of having violations, or threatened violations" of any thing required of a common carrier "by law or by order of the commission" "stopped and prevented," and the requirements so directed by mandamus may in our opinion be continuous (Public Service Commission v. Westchester St.R.R. Co., 206 N.Y. 209; Willcox v. Richmond Light R.R.Co., 142 App. Div. 44; affirmed, 202 N.Y. 515), subject to the further order of the court, we are, nevertheless, also of the opinion that the petition and proof in this proceeding did not require the court as a matter of law to grant the mandamus prayed for by the commission. *Page 358
Neither an examination of the petition, nor the proof compels the conclusion that the carrier "is failing or omitting or about to fail or omit to do anything required of it by law or by order of the commission, or is doing anything or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the commission. * * *." (Public Service Commissions Law, § 57.)
The alleged failures of the carrier to obey the order of the commission are only at specified hours on two days named, each about two months before the proceeding was commenced. Such past failures would suggest possible liability of the company for a penalty, rather than that mandamus should be granted in general terms simply requiring that the carrier provide in the future a sufficient number of seats for its passengers at prescribed periods.
Section 57 of the Public Service Commissions Law provides that the final judgment in any action or proceeding shall "either dismiss the action or proceeding or direct that a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford appropriate relief."
Responsibility is thus expressly placed upon the court by the statute to determine what action shall be taken by it in an action or proceeding.
On any view of the purpose of the statute, there is no such clear legal right to the writ shown on this proceeding as to make the issuing of a mandamus imperative on the court.
The order should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, CUDDEBACK, CARDOZO and POUND, JJ., concur; HOGAN, J., absent.
Order affirmed. *Page 359