Opinion
December 29, 1942.
Petitioner in this proceeding, pursuant to Civil Practice Act, sections 1283 et seq., seeks to have reviewed the determination and order of the Public Service Commission dated July 9, 1941, denying petitioner's application for a grandfather certificate for public convenience and necessity to operate as a common carrier by motor vehicle transporting household goods. The denial of the certificate was based upon the finding that the services rendered by the petitioner during the grandfather period "are not that of a common or contract carrier by motor vehicle" and that the petitioner is not a motor carrier within the meaning of the applicable provisions of the Public Service Law (Cons. Laws, ch. 48). An examination of the evidence taken by the Commission shows that there was substantial evidence to sustain the Commission's determination as a matter of fact. The evidence fails to show that the petitioner was a common carrier by motor vehicle and actually transported property over the highways of the State either in its own vehicles or in vehicles over which it exercised complete control. The petitioner, in order to become a carrier by motor vehicle, had to have direction and control of the motor vehicles which did the carrying for it, so that it would be responsible both to the shipper and to the general public for their operation. It had to stand with respect to the motor vehicles which it used in the relation of proprietor by the virtue of ownership, lease or other arrangement; mere user in the absence of control and direction, even though exclusive, was not enough. Determination and orders of the Commission under review in all respects confirmed, and the proceeding is dismissed on the merits, with fifty dollars costs and disbursements. Hill, P.J., Crapser, Heffernan, Schenck and Foster, JJ., concur.