Earl, J.
In his petition, the attorney-general prayed for a peremptory writ of mandamus, and one was awarded. Such a writ is authorized only “ where the applicant’s right to a mandamus depends only upon questions of law.’’ (Code, § 2070.) In determining whether this Writ was properly issued, therefore, we must consider only such facts alleged in the petition as were not denied or put in issue, and the affirmative allegations of the affidavit presented on the part of the defendant in opposition to the application for the wnt. Where the material allegations of the application tor a writ are put in issue, or where the answering affidavits contain allegations showing that a peremptory writ ought not to be issued, the court should award an alternative mandamus in the first instance, in order that the issues of fact may be regularly tried before the proper tribunal.
As this writ was applied for by the attorney-general on behalf of the people, it must be assumed that it was issued only to subserve a public interest and to protect a public right. If private interests only were involved, the application for the writ by the attorney-general, on behalf of the people, was not proper. In that case, it. should have been applied for by the private parties interested, who should have been relators. In order, therefore, to maintain this writ and to justify the action of the court in granting it, we must be able to see, from the undisputed facts alleged, that it was issued to protect some public right or to secure some public interest.
It matters not that the town of Sandy Creek was bonded for the construction of the Syracuse Northern railroad, upon condition that a permanent depot should be erected and maintained at the village of Sandy Creek. It it be assumed that the bonding proceedings created a contract between the town and the railroad company, that contract is not one which could be en forced by this writ of mandamus issued on behalf of the peo[106]*106pie. The contract right and obligation are not, in any proper sense, a public matter in which the people of the State, in their sovereign capacity, are interested. If there is a valid contract still in force and operative, it must be enforced by some proceeding taken on behalf of the town, and cannot be enforced by a proceeding instituted by the attorney-general on behalf of the people of the State.
But the performance of the contract, if there was a valid one, never devolved upon the defendant. The contract obligation was not a charge or lien upon the property of the Syracuse Northern Railroad Company, and remained where the unsecured obligations of the company rested after the foreclosure of the mortgage given by it. It did not pass by the foreclosure sale to, or devolve upon, its successors, the Syracuse and Northern Railroad Company and the Rome, Watertown and Ogdensburg Railroad Company.
In a case where the court had a discretion to grant or withhold the writ of mandamus, the circumstances attending the bonding of the town of Sandy Creek could well have been considered in determining that discretion.
Tinder the act (Chap. 353 of the Laws of 1882) by which the board of railroad commissioners was constituted, the decision of that board has no binding or conclusive authority. No such effect is given to the decisions of that board by any of the provisions contained in the act. Its decision in this case was merely advisory and recommendatory, and the defendant was at liberty to obey or disobey it. It was a sufficient justification, however, for the application by the attorney-general for the writ of mcmdamus, and if the court had had a discretion to withhold or grant the writ, it might properly have had some influence in the exercise of that discretion. But no legal right in this proceeding can be based thereon.
We aré left, therefore, to determine simply whether, upon the facts which we must assume to exist in this case, the defendant ought, in the public interest, as an absolute duty, to be compelled to rebuild, maintain and operate the small section of road which it abandoned. We have not here the ques[107]*107tian which, would have to be determined if the Syracuse and ¡Northern ¡Railroad Company were still in existence and had abandoned the portion of its road between the Pulaski station and Washington ville station, so that passengers and freight were carried only to and from the former station. But we have a case where the defendant has succeeded to all the rights and obligations of that railroad company, and the question is, whether it is discharging the duty to the public imposed upon it by the consolidation of that railroad company with it. After the consolidation it had two lines from Pulaski station to Washingtonville, a direct line about seven miles long and a circuitous line by way of Richland about two miles longer. It was not absolutely bound in law to stop any of its trains at the village of Pulaski or the village of Sandy Creek. It would have discharged its whole duty by running its trains through from the Pulaski station to the Washingtonville station without stopping. It would cost it more than $15,000 annually to maintain and operate its direct road from Pulaski station to Washington ville station without adding SI to its income.
It could accommodate every passenger and every pound of freight at Washington ville station or at the Pulaski station by carrying it over a line which it owned by way of Richland. Did it not thus substantially perform the duty which devolved upon it as the successor of the Syracuse and ¡Northern Railroad Company? It carried all passengers and freight from Washingtonville to Pulaski station and Syracuse, and all passengers and freight from Syracuse and Pulaski station to the terminus of the Syracuse and ¡Northern railroad at Washingtonville. How can it be said that it owed a duty to the public to do this over the direct line rather than over a line near by but two miles longer ? There is no allegation that any considerable number of people are discommoded, and it does not appear that a single person suffers any harm except that passengers are obliged to change cars at Richland rather than at Washington ville station, and persons taking the cars at Washington ville station to go southerly are obliged to travel about two miles farther. But we must take the facts as stated in the affidavits of the defend[108]*108ant’s manager, read in opposition to the application for the writ, that it is not true that the abandonment of this.small section of road has been and continues to be a matter of serious damage to the people of the State of Mew York, or especially to that portion of the people of the State who are residents and tax payers of the town of Sandy Greek, but that the present line operated by the defendant between Washingtonville station and Pulaski station furnishes greatly increased facilities to the people of the State of Mew York as well as to the people of the town of Sandy Creek above those which were enjoyed at the time of the abandonment; that it is now far more convenient for the people of that town to reach their principal markets, the cities of Oswego, Watertown, Syracuse and Rome, than at any previous time, and that their railroad service is altogether more efficient and convenient than it was previous to the time of the abandonment. Under such circumstances ^ we see no reason for saying that the interests of the people have suffered from this abandonment, or that any considerable number of the people of this State were thereby in any way injured or inconvenienced.
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Earl, J.
In his petition, the attorney-general prayed for a peremptory writ of mandamus, and one was awarded. Such a writ is authorized only “ where the applicant’s right to a mandamus depends only upon questions of law.’’ (Code, § 2070.) In determining whether this Writ was properly issued, therefore, we must consider only such facts alleged in the petition as were not denied or put in issue, and the affirmative allegations of the affidavit presented on the part of the defendant in opposition to the application for the wnt. Where the material allegations of the application tor a writ are put in issue, or where the answering affidavits contain allegations showing that a peremptory writ ought not to be issued, the court should award an alternative mandamus in the first instance, in order that the issues of fact may be regularly tried before the proper tribunal.
As this writ was applied for by the attorney-general on behalf of the people, it must be assumed that it was issued only to subserve a public interest and to protect a public right. If private interests only were involved, the application for the writ by the attorney-general, on behalf of the people, was not proper. In that case, it. should have been applied for by the private parties interested, who should have been relators. In order, therefore, to maintain this writ and to justify the action of the court in granting it, we must be able to see, from the undisputed facts alleged, that it was issued to protect some public right or to secure some public interest.
It matters not that the town of Sandy Creek was bonded for the construction of the Syracuse Northern railroad, upon condition that a permanent depot should be erected and maintained at the village of Sandy Creek. It it be assumed that the bonding proceedings created a contract between the town and the railroad company, that contract is not one which could be en forced by this writ of mandamus issued on behalf of the peo[106]*106pie. The contract right and obligation are not, in any proper sense, a public matter in which the people of the State, in their sovereign capacity, are interested. If there is a valid contract still in force and operative, it must be enforced by some proceeding taken on behalf of the town, and cannot be enforced by a proceeding instituted by the attorney-general on behalf of the people of the State.
But the performance of the contract, if there was a valid one, never devolved upon the defendant. The contract obligation was not a charge or lien upon the property of the Syracuse Northern Railroad Company, and remained where the unsecured obligations of the company rested after the foreclosure of the mortgage given by it. It did not pass by the foreclosure sale to, or devolve upon, its successors, the Syracuse and Northern Railroad Company and the Rome, Watertown and Ogdensburg Railroad Company.
In a case where the court had a discretion to grant or withhold the writ of mandamus, the circumstances attending the bonding of the town of Sandy Creek could well have been considered in determining that discretion.
Tinder the act (Chap. 353 of the Laws of 1882) by which the board of railroad commissioners was constituted, the decision of that board has no binding or conclusive authority. No such effect is given to the decisions of that board by any of the provisions contained in the act. Its decision in this case was merely advisory and recommendatory, and the defendant was at liberty to obey or disobey it. It was a sufficient justification, however, for the application by the attorney-general for the writ of mcmdamus, and if the court had had a discretion to withhold or grant the writ, it might properly have had some influence in the exercise of that discretion. But no legal right in this proceeding can be based thereon.
We aré left, therefore, to determine simply whether, upon the facts which we must assume to exist in this case, the defendant ought, in the public interest, as an absolute duty, to be compelled to rebuild, maintain and operate the small section of road which it abandoned. We have not here the ques[107]*107tian which, would have to be determined if the Syracuse and ¡Northern ¡Railroad Company were still in existence and had abandoned the portion of its road between the Pulaski station and Washington ville station, so that passengers and freight were carried only to and from the former station. But we have a case where the defendant has succeeded to all the rights and obligations of that railroad company, and the question is, whether it is discharging the duty to the public imposed upon it by the consolidation of that railroad company with it. After the consolidation it had two lines from Pulaski station to Washingtonville, a direct line about seven miles long and a circuitous line by way of Richland about two miles longer. It was not absolutely bound in law to stop any of its trains at the village of Pulaski or the village of Sandy Creek. It would have discharged its whole duty by running its trains through from the Pulaski station to the Washingtonville station without stopping. It would cost it more than $15,000 annually to maintain and operate its direct road from Pulaski station to Washington ville station without adding SI to its income.
It could accommodate every passenger and every pound of freight at Washington ville station or at the Pulaski station by carrying it over a line which it owned by way of Richland. Did it not thus substantially perform the duty which devolved upon it as the successor of the Syracuse and ¡Northern Railroad Company? It carried all passengers and freight from Washingtonville to Pulaski station and Syracuse, and all passengers and freight from Syracuse and Pulaski station to the terminus of the Syracuse and ¡Northern railroad at Washingtonville. How can it be said that it owed a duty to the public to do this over the direct line rather than over a line near by but two miles longer ? There is no allegation that any considerable number of people are discommoded, and it does not appear that a single person suffers any harm except that passengers are obliged to change cars at Richland rather than at Washington ville station, and persons taking the cars at Washington ville station to go southerly are obliged to travel about two miles farther. But we must take the facts as stated in the affidavits of the defend[108]*108ant’s manager, read in opposition to the application for the writ, that it is not true that the abandonment of this.small section of road has been and continues to be a matter of serious damage to the people of the State of Mew York, or especially to that portion of the people of the State who are residents and tax payers of the town of Sandy Greek, but that the present line operated by the defendant between Washingtonville station and Pulaski station furnishes greatly increased facilities to the people of the State of Mew York as well as to the people of the town of Sandy Creek above those which were enjoyed at the time of the abandonment; that it is now far more convenient for the people of that town to reach their principal markets, the cities of Oswego, Watertown, Syracuse and Rome, than at any previous time, and that their railroad service is altogether more efficient and convenient than it was previous to the time of the abandonment. Under such circumstances ^ we see no reason for saying that the interests of the people have suffered from this abandonment, or that any considerable number of the people of this State were thereby in any way injured or inconvenienced. If a few individuals were discommoded, or private interests were in any way injured, this writ is not the proper remedy for such evils.
We have, with great care, examined and considered the numerous authorities cited on behalf of the people in support of this writ, but we find none which justify it. Several cases were cited in which it was held that a railroad company could be compelled by mandamus to operate its railroad to the terminus specified in its charter. (Farmers’ Loan and Trust Co. v. Henning as Receiver, etc., 17 Am. Law Reg. [N. S.] 266 ; State v. H. & N. H. R. R. Co., 29 Conn. 538; Un. Pac. R. R. Co. v. Hall, 91 U. S. 343 ; King v. S. & W. R. R. Co., 2 B. & Ald. 646 ; Peoples. Albany & Vermont R. R. Co., 24 N. Y. 261.) But the principles of those cases are not, controlling in this, because here the railroad service is kept up between the termini of the Syracuse and Northern railroad, and the public duty which devolved upon it at its organization is fully and substantially performed by the defendant. The present line is a [109]*109little longer than the one originally adopted and slightly varying therefrom, but it accommodates the people of the State and the people of the locality substantially as well as the line originally adopted. Suppose two roads were consolidated and the lines of the two between two places were parallel and near to each other, could the consolidated road be compelled by mandamus to operate both lines, or could it discharge its duty to the public by using only one line ? Suppose the Hew York Central and the West Shore roads, as their lines approach the city of Buffalo, were parallel to and near each other, could not the Hew York Central, which is now substantially the owner of both roads, abandon the West Shore line, and run into the city of Buffalo upon the Hew York Central line ? We do not determine that in all cases where a railroad company which, by consolidation, has become the owner of two lines of road between two termini, and running through different sections of country and different cities or villages, like the two lines between Syracuse and Rochester, could abandon either of its lines, because in such cases it might well be that the public interests and the accommodation of a large portion of the people of the State required that both lines should be operated; but where a railroad company owns by consolidation two lines of road, and can substantially accommodate the people of the State by operating one line between the same points, and can abandon the other line without any serious detriment to any considerable number of people, we do not believe it should be compelled by mandamus to operate both lines at a great sacrifice of money upon the fanciful idea that the sovereignty of the State is wounded by its omission to operate both lines.
The defendant does not run its cars at any point where it has not the right to, and it does not exercise any franchise which it is not authorized to. It accommodates all the travel and traffic which the Syracuse and Horthern Railroad Company was required to accommodate. That road still has a connection with the defendant; and all the travel and traffic over it can still commence and terminate at Washingtonville. There is no public right to protect and no public duty to enforce by mandamus. [110]*110We are, therefore, of opinion that the orders of the General and Special Terms should be reversed, and the application for a peremptory writ of mandamus denied, with costs.
All concur, except Andrews, J., who takes no part, and Miller, J., absent.
Ordered accordingly.