Without further consideration I am unwilling to agree that the Public Service Commission has the legal right to authorize the issue of these certificates, but a decision of that question is not necessary and I express no opinion thereon.
Section 55 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480) applies to these certificates, and they could issue only after the approval of the Commission. (People v. New York Central & H. R. R. R. Co., 138 App. Div. 601; affd., 199 N. Y. 539.)
In determining whether it should approve of the certificates the Commission was called upon to determine whether they were being issued in accordance to law. If they were being issued pursuant to an illegal combination under the Sherman Anti-Trust Act (26 U. S. Stat. at Large, 209, chap. 647), or for purposes not permitted by the laws of the State, it was the duty of the Commission to refuse its approval. The plaintiff Venner was heard before the Commission, and when it granted its approval to the issue he asked no reconsideration of the order and took no steps to review the determination by certiorari. If he is right about the law he had it within his power to prevent the issue. Upon a review of the determination this court would have been called upon to determine the legal questions raised. But he elected to take no such proceeding, and thereby permitted the certificates to issue, and they are now in the hands of purchasers in good faith. These certificates were issued and sold and the proceeds used in the manner prescribed by the public authorities. The bona fide holders, therefore, may have rights which ought to be determined when they are present in court. The possibility that the plaintiff or the companies may suffer damage is so shadowy that it seems more important that the holders of the certificates should have a legal day in court, if the question ever becomes a live one, than that the court should now answer the questions propounded by the plaintiff. A determination in *143his favor can do the company no good and cannot benefit him. It could only tend to depress the securities of the company, which would injure the public, the company and the plaintiff so far as his interest as a stockholder is concerned. Such a determination could only benefit him if he has some ulterior purpose to serve. The court can only aid him so far as a determination might benefit the company and the persons interested therein as stockholders. The. interest which enables plaintiff to bring this action would enable him, after having made objection before the Commission, to take proper proceedings to review its determination. It is true the Commission has approved of the contract; but no further certificate can issue without another application to the Commission, and if such application is made the plaintiff may be heard, and if the hearing results unsatisfactorily to him he will have ample opportunity to review it.
For the protection of the stockholders and the public the laws of the State have provided the Commission to prevent the issue of illegal and improper securities, and an application for a rehearing gives an opportunity to any party aggrieved to test the determination by certiorari. The law has, therefore, provided the plaintiff with a legal remedy, which if pursued, would have fully protected him, without injury to the company or to the public. He raised like objections at the hearings before like Commissions in the States of Ohio and Michigan, with the same results. We assume that the common-law certiorari, unless some statutory remedy was provided, gave him ample opportunity to review those determinations in a proper court. Plaintiff has slept too long to now insist upon a hearing in a court of equity as to his technical rights. The court will now leave the matter, so far as he is concerned, where he left it.
I favor an affirmance upon the ground that the plaintiff is not now entitled to equitable relief.
Orders and judgments affirmed, with costs.