This court is holding that the Commission has the power to construe the contract between the industry and the railroad, whether it covers the subject-matter in dispute or not and to enforce it or abrogate it accordingly as the contract as so interpreted does or does not meet with its approval. I do not interpret the Public Service Commission Law as conferring any such broad power. It cannot, by requiring its approval *264of an existing contract, abrogate it and require the making of a new one, nor has it the equitable powers to interpret its provisions and enforce them according to its interpretation, if in fact there is an outstanding contract which covers the subject-matter in dispute. Its jurisdiction is confined to the making of a contract where the minds of the parties have not met on the subject involved and they cannot agree as to what its terms should be.
The railroad claims that the parties have agreed as to who should pay electrification cost and the petitioners construe the contract as not covering the subject at all because the minds of the parties never met on that subject. There is a difference between a case where, on the one hand, there are terms in a contract which are applicable to the subject-matter in dispute but which terms require interpretation and a case where, on the other hand, there is a total failure of coverage of the subject-matter in any of the terms of the contract. In the first case mentioned the parties would be relegated to the courts for interpretation of the contract provision and the enforcement of the respective rights and liabilities of the parties thereunder. In the second case mentioned a proper decision would reveal that the parties, not being bound by contract, would be required by the Commission to agree to terms of some land and such terms must meet with the approval of the Commission.
The Commission always has jurisdiction to determine whether or not it has jurisdiction of the subject-matter. (Matter of City of Long Beach v. P. S. Commission, 249 N. Y. 480.) And so it must here decide whether there is any contract at all between the parties covering the electrification of side tracks to the industrial plant of petitioners. If it decides that question erroneously it can be corrected by the courts in a certiorari proceeding. The Commission has not made the distinction in its opinion and I construe its determination as a refusal to say whether the contract does or does not cover the subject-matter. I see no reason why this court should not now say whether it does or does not. (We can do what the Commission ought to have done.) If it does, that practically settles the whole controversy in this case. If it does not, the Commission has jurisdiction and can proceed accordingly.
I cannot see how there can be any doubt as to the fair interpretation of the present contract. It does not mention electrification, a subject which has required attention due to the passage of a statute since the making of the contract. And the general language of the clause relied upon by the railroad in this standard
*265form, which it has required all industries to sign, does not by any fair intendment relate to the subject-matter of electrification. There is no reason to believe that the parties had any such subject in mind at the time of the execution and the language used is not appropriate to indicate such an intention. And doubt, if any, must be resolved against the party which drafted the form. The clause in question applies only when the railroad “ shall relocate, readjust or add to said side tracks.” That is not the full condition, however. Such addition to side tracks must be made “ necessary ” by (1) the opening or change in the fine, grade or use of any public street or highway across, along or in the vicinity thereof dr (2) by any change in the grade, location or use of the tracks or other structures of the railroad company at or about the point of connection. It is claimed that electrification requires the addition of a third rail and, therefore, there is an addition to the side tracks and that this is necessitated by a change in the " use ” of the tracks “ at or about the point of connection.” I think the agreement meant “ add to side tracks by the addition of more side tracks.” And it seems clear to me that there is no change in the use of the old tracks. There has been no shifting of the “ use ” of the tracks for a purpose not originally intended. The old tracks are used for the same purpose. The new third rail is not necessitated by any change in use of the old tracks. They are to carry the same traffic. The only change is in motive power, a thing unrelated to the old tracks themselves or their use except that an electric engine is to be driven over them instead of a steam engine. I cannot believe that any such exchange of engines constitutes a change in use of the old tracks within the fair meaning of the contract. There is no claim that heavier rails or any different roadbed is necessitated. The use is substantially identical. If I am wrong about that I think we should hold that the contract does cover the subject and that the Commission has no jurisdiction. To send it back to the Commission to construe it will merely postpone the construction of it by this court because any determination by the Commission would be reviewed here. If I am right in my construction, aided by the rule of construction that any uncertainty or ambiguity must be resolved against the party who prepared the agreement (Gillet v. Bank of America, 160 N. Y. 549), then the determination should be annulled and the matter remitted to the Commission with instruction that the contract has no application to the subject-matter, and that the Commission has jurisdiction and the duty to proceed accordingly.
Determinations annulled, with fifty dollars costs and disbursements in one proceeding, and matters remitted to the Public Service Commission.