According to a majority vote of this court this important case, involving millions of people and millions of dollars, is about to turn largely, if not wholly, upon a technicality. This is contrary to the Code; it is contrary to the right.
The prevailing opinion says: “ We think the relator was entitled to have the determination of the Commission made upon the merits, and to be advised what in the opinion of the Commission were fair and reasonable rates, rather than to have the decision against it based upon the ground that, in the opinion of the Commission, the relator had failed to overcome the presumption of wrongdoing. It is in this view that we have considered the ruling of the Commission as to the burden of proof worthy of such extended consideration.” But the case has been already heard and disposed of upon its merits. An enormous record was made before the Commission and is presented for our consideration; a record filled with facts, figures, tables, statistics, comparisons and other data. Wherever the burden of proof may have rested, everything that could be produced was produced to establish the contention of each of the litigants. Of what consequence is it who produced it ? Out of it all, the Commissioners failed to find evidence to convince them that the increased rates were reasonable — and this was the meat of the question before them; and this was the “ merits” of the case. If this court is to reverse the findings of the Commission and make another long and expensive trial necessary, it should "do so, not because a technical rule has been violated, but because the intrinsic right of the case is with the railroad instead of the complainants.
*562The prevailing opinion also says: “There is no provision of the New York Public Service Commissions Law which places the burden of proof upon the railroad company, or takes proceedings before the Commission out from under the- general rule. ” But it seems to me that my learned associates have here again fallen into error, for section 20 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480) says: “All hearings before a commission or a commissioner shall be governed by rules to be adopted and prescribed by the commission. And in all investigations, inquiries or hearings the commission or a commissioner shall not be bound by the technical rules of evidence.” This section not only authorizes the Commission to adopt rules of its own in trials before it, but it expressly commands that it “ shall not be bound by the technical rules of evidence.” Nothing could be more plain; nothing more sweeping. This does take the “proceedings before the Commission out from under the general rule.” The Legislature recognizing that many of the technical rules of evidence were a hindrance to truth wiped them out of existence. In trials before the Public Service Commission these antiquated rules are no longer to be reckoned with; they no longer blockade the highway to justice. I am aware that the language of this section can be narrowed down and completely emasculated by judicial construction; but this would be flying in the face of legislative reforms.
This section of the Public Service Commissions Law binds us as much as it does the Commission, but if there were no such section we should not permit a rule of evidence to swerve us from the merits» A rule of evidence is a technicality; it is a law made by the judges; when it operates to do wrong, to deny justice, to obstruct equity, it should be overridden by the courts and ignored. The courts sit not to reverence some ancient doctrine but to see that right prevails. It is not Stephen’s Digest but the conscience of the court which should dominate in this case. The courts in recent times, are under a constant fusilado of criticism, and much of it is merited. We have plenary power in this case and in every other case to do justice. The Legislature has recently given us unlimited permission to ignore technicalities and do what *563we think is right. The closing sentence of section 1317 of the Code of Civil Procedure, as amended by chapter 380 of the Laws of 1912, reads: “After hearing the appeal the.court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” This emancipation of the courts from technicalities, rules and precedents is broad, sweeping and complete. Since the enactment of this statute there is no excuse, except fallibility of judgment, to decide wrong. We can no longer lay the fault for a miscarriage of justice at the doors of the Legislature. But notwithstanding this opportunity to shake off their ancient fetters, the courts seem prone to wear them. They seem unable to believe that these statutes mean what they say. The trend of decisions construing section 1317 is to doubt the reality of this sweeping innovation. Legislative bodies of late are constantly untying the hands of the courts; but the judges have been so long shackled by rules which they themselves have made that they seem reluctant to be set at liberty.
Section 1317 of the Code, together with section 20 of the Public Service Commissions Law, arms us with ample authority to ignore all technicalities and decide this case on the merits; this we should do.
Determination of the Public Service Commission annulled, without costs, without prejudice to a new application at any time.