necessity, the matter comes before the court as an original application to be determined upon the record made before the Board, or upon such further evidence and facts as the court may deem essential in order to enable it to make a proper determination.- Matter of Rochester, Corning, Elmira Traction Co., 118 App. Div. (N. Y.) 521, 102 N. Y. Supp. 1112.

In judicial review of a decision of the state Board of Railroad Commissioners denying a certificate of necessity for a proposed new railway, the burden is on the petitioner to show affirmatively that the commissioners erred in their determination, and the commissioners should be credited with some technical knowledge which this court is not presumed to possess.- Matter of Auburn & W. R. Co., 37 App. Div. (N. Y.) 162, 55 N. Y. Supp. 895; Matter of Depew & S. W. R. Co., 92 Hun (N. Y.), 406, 36 N. Y. Supp. 991; Matter of Amsterdam, J. & G. R. Co., 86 Hun (N. Y.), 578, 33 N. Y. Supp. 1009; Matter of New Hamburg & P. C. R. Co., 76 Hun (N. Y.), 76, 27 N. Y. Supp. 664; People v. Ulster & D. R. Co., 58 Hun (N. Y.), 266, 12 N. Y. Supp. 303.

[7] Consents of property owners. - Necessity.

Constitutional provisions as to consents of abutting owners,— see
N. Y. Const., Art. III, § 18, as amd. in 1901.
Whether giving of consents is a legislative function, see ante, § 4,
note [18].

Effect of traffic agreement on necessity for consents of abutting owners, see ante, § 35, note [33].

Power of railroad to permit another to use its tracks without consent of abutting owners,- see post, § 54 note [4].

When a street railroad corporation applies for and obtains the approval of the N. Y. Board of Railroad Commissioners to a change of motive power not as to the entire route as a whole, but as to segregated and distinct sections of the route, the motive power can not be changed as to any one of these sections until and unless it shall have obtained the consent of the owners of one-half the property bounded upon the particular section as to which a change of motive power is to be effected. St. Michael's P. E. Ch. v. Forty-second St. M. & St. N. A. R. Co., 26 Misc. (N. Y.) 601, 57 N. Y. Supp. 881.

[8]

Report of commissioners in lieu of consent. Under L. 1884, ch. 252, a street railroad corporation is not limited to one application for the appointment of commissioners to determine whether the road should be constructed through the streets.- Matter of People's R. Co., 112 N. Y. 578, 20 N. E. 367.

An application by a street railroad corporation for the appointment of commissioners under L. 1884, ch. 252, to determine whether the road should be constructed through the streets may precede the giving of consents by local authorities.- Matter of People's R. Co., 112 N. Y. 578, 20 N. E. 367.

The proceedings before the court for confirmation of the report of the commissioners in lieu of the consent of the required proportion of property-owners, are not merely formal, but are under an original jurisdiction and involve a review of the whole case, in the exercise of a discretion not reviewable in the Court of Appeals.- Matter of Kings Co. Elev. R. Co., 82 N. Y. 95; explained 112 N. Y. 72.

Upon a motion to confirm the report of commissioners appointed in lieu of property holders' consents, only fraud or manifest irregularity, but not erroneous rulings as to evidence, etc., will justify the court in sending it back for a rehearing or to new commissioners.— Matter of Nassau Cable Co., 36 Hun (N Y.), 272.

[9] Consents from other iines.

A lessee of a railroad has an interest therein which entitles it to prevent by legal process any unlawful molestation of its enjoyment of the leased property. It may enjoin an unauthorized crossing of the track by that of another company.- Pennsylvania Co. v. Lake Erie, B. G. & N. R. Co., 146 Fed. 446.

No surface street railroad shall be constructed upon a street where such a road already has been built, without the consent of owners of the latter. Matter of Thirty-fourth St. R. Co., 102 N. Y. 343, 7 N. E. 172.

[10] Consents by local authorities - In general.

Constitutional provisions as to consents of local authorities,- see N. Y. Const., Art. III, § 18, as amd. in 1901.

Certificate of convenience and necessity not a prerequisite to granting of local consents,- see ante, note [2].

A city ordinance which provides as follows: "Be it ordained, by the Common Council, that the Delaware, Lackawanna and Western Railroad Company be and hereby is granted the right and consent to construct and operate a switch or switches, track or tracks across the extension of Schuyler Street . . ." does not authorize the construction of an elevated structure across the said street, as in order to erect and maintain a structure across a street, there must be authority to erect and maintain the identical structure in question.- Delaware, L. & W. R. Co. v. Syracuse, 157 Fed. 700.

Where the power to grant consents to a railroad to cross a city street is vested in the common council of that city, subject to the approval

or disapproval of the mayor, the granting by the fire marshal of a permit to erect a trestle across a street, even when approved by the mayor, does not amount to a consent by the common council that the trestle may be erected and put in operation.- Delaware, L. & W. R. Co. v. Syracuse, 157 Fed. 700.

N. Y. R. R. L., § 11, providing in part that "such highway may be carried by it [the railroad company] under or over its track as may be found most expedient," cannot be held to authorize a railroad company to build a trestle over a public highway in a city or village for the purpose of obtaining access to its coal pockets, without the consent of the city authorities.- Delaware, L. & W. R. Co. v. Syracuse, 157 Fed. 700.

The requirement of N. Y. R. R. L., § 93, as amended in 1901, that the consent of local authorities of a city to the construction of a street railway therein must contain a condition for the sale of the franchise at public auction, applies only to cities having a population of 1,250,000 inhabitants.- Kuhn v. Knight, 190 N. Y. 339, 83 N. E. 293, affg. s. c. 115 App. Div. (N. Y.) 837, 101 N. Y. Supp. 1.

In order to justify the maintenance by a railroad of an elevated structure across a public street, the authority must be so clear and specific as to justify the identical structure which was erected.Delaware, L. & W. R. Co. v. Buffalo, 158 N. Y. 266, 53 N. E. 44.

Interpretation and application of the constitutional and statutory provisions as to the giving of consents, etc.- Delaware L. & W. R. Co. v. Buffalo, 158 N. Y. 266, 53 N. E. 44; Matter of Third Ave. R. Co., 121 N. Y. 536, 24 N. E. 951, 9 L. R. A. 124, revg. s. c. 56 Hun (N. Y.), 537, 9 N. Y. Supp. 833; Matter of People's R. Co., 112 N. Y. 578, 20 N. E. 567; Matter of Metropolitan Transit Co., 111 N. Y. 588, 19 N. E. 645, affg. s. c. 1 N. Y. Supp. 114; People v. O'Brien, 111 N. Y. 30, 18 N. E. 692; Matter of Thirty-fourth St. R. Co., 102 N. Y. 343, 7 N. E. 172, revg. s. c. 37 Hun (N. Y.), 442; N. Y. Cable Co. v. Mayor, 104 N. Y. 1, 10 N. E. 332; Kunz v. Brooklyn Heights R. Co., 25 Misc. (N. Y.) 334, 54 N. Y. Supp. 176; Matter of Broadway Surface R. Co., 34 Hun (N. Y.), 414.

Where the legislature, in the exercise of its sovereign power, has regulated the subject-matter, it is not competent for other persons charged with the duty of giving consent to the performance of a particular act to impose other or different conditions, as such conditions will be deemed opposed to a sound public policy.- Beekman v. Third Ave. R. Co., 153 N. Y. 144, 47 N. E. 277, affg. s. c. 13 App. Div. (N. Y.) 279, 43 N. Y. Supp. 174; Dusenberry v. N. Y. W. & C. Traction Co., 46 App. Div. (N. Y.) 267, 61 N. Y. Supp. 420.

A street railway cannot be built without the consent of the municipal authorities who may refuse to give such consent in their dis

cretion, and impose conditions in so doing.-People v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255n; People v. Barnard, 110 N. Y. 548, 18 N. E. 354.

Under L. 1886, ch. 65, as amended, the power of the municipal authorities to grant or withhold their consent to the construction of a street railroad is absolute, and they may impose any reasonable conditions as to the terms on which the consent will be given.- People ex rel. W. S. St. R. Co. v. Barnard, 110 N. Y. 548, 18 N. E. 354.

The consent of the common council of New York City to the acquisition by condemnation of certain lands need not be obtained in advance of the proceedings against the individual owners.- Matter of N. Y. C. & H. R. R. Co., 77 N. Y. 248.

A grant of the right to construct a railroad, made by a mayor and common council without power or authority, is void.- Coleman v. Second Ave. R. Co., 38 N. Y. 201.

Greater New York Ch. (L. 1901, p. 107, ch. 466), § 242, as amended by L. 1905, ch. 629, § 14, does not authorize the Board of Estimate and Apportionment to grant a permit to a department store to build and operate a spur track in the street and to connect the store with the street railway and so to facilitate the handling of freight.- Hatfield v. Strauss, 189 N. Y. 208, 82 N. E. 172, affg. 117 App. Div. (N. Y.) 671, 102 N. Y. Supp. 934.

The consent of the local authorities may be obtained either before or after that of the property owners.- Matter of Broadway Surface R. Co., 34 Hun (N. Y.), 414.

It seems that a city has the right to rescind or withdraw a consent to a railroad crossing a street in a particular manner at any time before the consent has been acted upon by the actual construction of the thing authorized.- Delaware, L. & W. R. Co. v. Syracuse, 157 Fed. 700.

Where a city ordinance permits a railroad to cross a street at grade with switches and tracks, the existence of switches so constructed in good faith while the ordinance is in full force and effect, cannot be made unlawful by the subsequent repeal of the ordinance.- Delaware, L. & W. R. Co. v. Syracuse, 157 Fed. 700.

[12] Duty of lessees of street railroads to obtain consents.

Even if one street railroad has the power to lease its road to another, that does not obviate the absolute necessity that the latter should comply with that statutory requirement and procedure as to consents of local authorities and abutting owners.- - Colonial City Traction Co. v. Kingston City R. Co., 153 N. Y. 540, affg. s. c. 15 App. Div. (N. Y.) 195, 44 N. Y. Supp. 492; reargument denied, 154 N. Y. 493.

[13] Franchise. -Power to grant.

Keeping of" Street Franchise Book" by city clerk of The City of New
York,- see Greater N. Y. Ch., § 28, as amd. by L. 1905, ch. 629,
§ 2.
Vote upon ordinances of Board of Aldermen of The City of New
York Granting or terminating franchises,- see Greater N. Y.
Ch., § 30.

Ordinances of municipalities consolidated to form Greater New York, relating to franchises or grants of rights, are subject to modification, amendment or repeal by the Board of Estimate and Apportionment,- see Greater N. Y. Ch., § 41.

Ordinances made by the Board of Aldermen of The City of New York as to the use of streets, do not affect any franchise or grant approved or authorized by the Board of Estimate and Apportionment, or by the former Board of Rapid Transit Railroad Commissioners, see Greater N. Y. Ch., § 50, as amd. by L. 1905, ch. 629, § 9. As to granting of franchises by The City of New York,- see Greater N. Y. Ch., §§ 71-77.

Powers of Board of Estimate and Apportionment as to franchises,-see Greater N. Y. Ch., § 242, as amd. by L. 1905, ch. 629, § 14.

The consolidation to form Greater New York did not extend franchises previously granted by any of the constituent parts,- see Greater N. Y. Ch., § 1538.

Annual reports of interstate carriers must contain information concerning franchises,-see Interst. Com. Act, § 20, post, Appendix B. Powers of former Board of Rapid Transit Railroad Commissioners over franchises, etc.,- see N. Y. Rap. Tr. Act, §§ 4, 5, 7, 11, 14, 32, 32a, 34, 34a-e, 38; L. 1906, ch. 109, §§ 1-9, post, Appendix A. Power of the state to regulate franchises,- see ante, § 1, note [2]. Franchises as property,- see ante, § 1, note [8].

Effect of reservation of power to amend charters on power to regulate franchises, see ante, § 1, note [12].

Whether granting new franchises impair obligation of contract as to existing franchises,- see ante, § 1, note [15].

Lease of road includes use of franchise of lessor,- see post, § 54,

note [9].

Action to annul franchise,— see post, § 54, note [17].

Distinction between franchises to be a corporation and franchises to operate a railroad, see post, § 55, note [2].

The giving of consents, franchises, etc., is a legislative function.—Ghee v. Northern Union Gas. Co., 158 N. Y. 510, 53 N. E. 692, revg. s. c. 34 App. Div. (N. Y.) 551, 56 N. Y. Supp. 450.

The legislative power as to granting of franchises to construct and operate a street railway, is subject to the limitation that the franchise