Upon the prior argument of this case it was assumed that our reviewing power was limited to an inquiry as to whether the decision below was arbitrary, capricious and wholly unsupported by the evidence. A reargument was granted and had solely upon this question. The statute (Railroad Law, § 91) provides for an appeal to us “ with like effect as is provided in the case of appeals from an order of the Supreme Court.” Mr. Justice Rhodes urges that this does not mean that the scope of our review is the same as upon the review of an order of the Supreme Court, *647but that the “ effect ” of the appeal means the status of the matter after the appeal has been effected and that we are limited in the scope of our review as on a review of a determination of a purely legislative or administrative body, i. e., that we may not weigh the evidence and may inquire only to the extent of determining whether there is any evidence to support the determination and review.
The Court of Appeals, in considering this same statute, held, in Matter of Delavan Avenue (167 N. Y. 256), that the Legislature had not delegated the authority without qualification to determine as to the necessity of the crossing and that the situations arising under section 61 (now 90) of the Railroad Law presented questions of the fact of a judicial nature and subject to judicial review. The delegation is thus limited by the power of this court and the Court of Appeals to review the same as it would review an order of the Supreme Court. We must, therefore, pass judicially upon the facts and their weight. Other decisions, both of this court and the Court of Appeals, support this interpretation of the statute. “ The rule is now well settled that this court should not reverse the determination of the commissioners, unless it is clearly made to appear that their decision was founded upon erroneous legal principles or was contrary to the clear weight of evidence.” (Matter of Boston & A. R. R. Co., 64 App. Div. 257 [3d Dept.]: affd., 170 N. Y. 619.) “ Unless the court can see that the decision of the Board
of Railroad Commissioners was founded upon erroneous legal principles, or that it proceeded contrary to the clear weight of evidence in arriving- at its conclusion upon any question of fact, or that it has abused the discretion vested in it, and has arbitrarily refused to issue the necessary certificate, I do not think that the court should reverse its determination and compel it to issue a certificate.” (Matter of Amsterdam, J. & G. R. R. Co., 86 Hun, 578 [3d Dept.].) In determining the question of necessity the Board is deciding a question of fact, and in the making of that decision it acts judicially, notwithstanding there may be closely interwoven with it certain administrative or ministerial functions that must also be exercised. (People ex rel. Steward v. Railroad Commissioners, 160 N. Y. 202.)
We held in our former decision that there were sufficient facts to support the determination of the town board. But that does not now appear to be enough. I agree with my brethren Crapser and Heffernan that the determination of the town board was clearly against the weight of the evidence. It must, therefore, be reversed.
Heffernan, J., concurs.