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No. MC-104416 DAVID GREENFIELD COMMON CARRIER APPLICATION

Submitted December 27, 1943. Decided July 11, 1944

Public convenience and necessity found to require operation by applicant as a

common carrier by motor vehicle of passengers and their baggage, in special operations in nonscheduled, door-to-door service limited to the transportation of not more than six passengers in any one vehicle, between New York, N. Y., on the one hand, and Asbury Park and Bradley Beach, N. J., on the other, over irregular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application denied in all other respects. Charles L. Apfel and S. A. Raiskin for applicant. Henry P. Goldstein, Leland Taliaferro, Edwin W. Currie, and Earle J. Harrington for protestants.

REPORT OF THE COMMISSION
DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON
BY DIVISION 5:

Exceptions to the recommended order of the examiner were not filed seasonably, but the recommended order was stayed by us. Applicant's exceptions to the recommended order which were not received within the time prescribed were accepted as a brief, and protestant, Lincoln Transit Company, Inc., replied thereto. Our conclusions differ from those recommended.

By application filed April 30, 1943, as amended, David Greenfield of New York, N. Y., seeks a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, between New York, N. Y., and Asbury Park, N. J., over the following route:

From New York through the Holland Tunnel, thence over U. S. Highway 9 to Woodbridge Circle, thence over New Jersey Highway 35 to Eatontown, N. J., and thence over New Jersey 4N to Asbury Park, and return, serving on call, Fort Monmouth, Long Branch, Bradley Beach, and Camp Edison, N. J.

Certain rail and motor carriers oppose the application.

Applicant objected to Lincoln Transit Company, Inc., and trunkline rail carriers in official classification territory (hereinafter called the association) being permitted to intervene and participate in the

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proceeding on the grounds that they are not engaged in the operation of a competitive service between New York City and Asbury Park, and that therefore they are not proper parties in interest. He also contends that the association is not a proper party to the proceeding, as there is no showing that any member has authorized appearances in its behalf; and, further, “that the Trunk Line Rail Carriers by advising their members and appearing on their behalf are engaged in the illegal practice of law and is disqualified to testify.” The latter contention with respect to the association being disqualified to testify apparently is intended to apply to the testimony of a passenger agent of The Central Railroad of New Jersey, who stated that he was appearing as a witness representing the association. His testimony, hereinafter discussed, was limited to a description of the operations and services of his company and those of the Pennsylvania Railroad between New York City and Asbury Park. At the hearing, applicant moved that such testimony be stricken from the record, which motion was denied by the examiner.

All carriers of passengers operating within the territory in which applicant seeks authority to operate conceivably have a direct interest in the issues herein, and are entitled to intervene under the provisions of section 204 (c) of the Interstate Commerce Act, as amended. See Peterson Common Carrier Application, 14 M. C. C. 443, and Alton R. Co. v. United States, 315 U. S. 15. As hereinafter shown, Lincoln Transit Company, Inc., performs one part of a two-carrier interchange bus service between New York City and Asbury Park, and clearly is entitled to intervene in the proceeding to protect its interest.

All principal rail carriers operating in trunk-line territory are members of the association. Two members of the association operate rail service between New York City and Asbury Park. When proceedings are instituted under the various sections of the Interstate Commerce Act, the associations, through committee action, assigns the pr eeding to a particular member or members for attention. By appearing in a proceeding in behalf of its members the association is not engaged in the practice of law. The association was represented by an accredited member of the Commission's bar, and, in the absence of evidence to the contrary, we have no reason to doubt that the association was authorized by its individual members to appear on their behalf. Compare Contract Carriers, Inc., Common Carrier Application, 41 M. C. C. 165. The passenger agent appeared only as a witness, and testified only as to those services of rail-carrier members of the association which would be directly affected by any grant of authority herein. In doing so, he was not engaged in the practice of law either as an individual or as a representative of the association.

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We conclude that the examiner did not err (1) in allowing Lincoln Transit Company, Inc., and the association to become parties to the proceeding and (2) in denying the motion to strike the testimony of of the passenger agent.

Under a certificate issued in No. MC-94208 on July 8, 1942, Hyman Rubin and David Greenfield, copartners, doing business as the Burnside Mountain Lines, were authorized to operate as a common carrier by motor vehicle, in interstate or foreign commerce,

passengers and their baggage in special operations in nonscheduled, door-to-door service limited to the transportation of not more than six passengers in one vehicle, but not including the driver thereof and not including children under 10 years of age who do not occupy a separate seat or seats, during the period extending from June 1 to September 30, both inclusive, between New York, N. Y., on the one hand, and points in Thompson and Liberty Townships, Sullivan County, N. Y., on the other, over irregular routes.

Pursuant to No. MC-FC-18669, approved February 18, 1944, David Greenfield was substituted as applicant in No. MC-95820, in lieu of Herbert Luker and David Greenfield, copartners, and No. MC-104416 (Sub-No. 1) was assigned to cover the operating rights transferred. Under the authority so acquired applicant is authorized to operate as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage in special operations, restricted to the same extent as in No. MC-94208 described above, between Lakewood, N. J., and New York, N. Y., over irregular routes.

In the instant proceeding, applicant seeks authority to conduct an operation similar to those now performed under the authorities described above, except that a year-round operation is proposed between New York City and Asbury Park. He owns 10 seven-passenger sedans which are used in his present operations and which would be used in the conduct of the proposed service.

The only two New Jersey points with respect to which evidence was submitted by persons other than applicant are Asbury Park and Bradley Beach. Both are large summer resorts and attract considerable vacation traffic. Applicant proposes to institute a door-todoor service between New York City and such points whereby persons are picked up at their homes in New York City and are transported to hotels or boarding houses in Asbury Park or Bradley Beach. with return trips being made to the homes or such other destinations in New York City as may be designated by the passenger. In addition, he

proposes to render a terminal-to-terminal operation for which a slightly less charge will be made. At the outset, applicant will offer a morning trip and an afternoon trip daily, and an evening trip if the demand so requires, from and to New York City. The vehicles proposed to be used will accommodate six passengers on each trip, but a single passenger will be carried for an individual fare if no other persons desire transportation between the points involved at that time. There is no indication, however, that schedules will be operated if no passengers are available. Under the circumstances, we conclude that the proposed operation is a special operation within the meaning of section 207 (a) of the Interstate Commerce Act. Compare Nudelman Common Carrier Application, 22 M. C. C. 275, and 28 M. C. C. 91.

Five persons from Asbury Park and three from Bradley Beach appeared in support of the application. A garage operator at Asbury Park makes frequent trips to New York City. During the past year he made several trips by train and four by bus to the latter point. On the occasions that he traveled by railroad he was able to obtain a seat, if not immediately, then shortly after boarding the train. On two of the four bus trips he was able to obtain a seat immediately, and on the other two trips he obtained a seat shortly after boarding the vehicle. In his capacity as a garage operator, he has received a number of requests from persons for information with respect to the possibilities of obtaining transportation by automobile to New York City.

A hotel keeper at Asbury Park expressed the opinion that a number of persons had not been able to come to her hotel because of the lack of transportation, and that some prospective guests had forfeited their deposits on reservations because of the inability to obtain transportation. From time to time she has had requests from guests to obtain for them transportation to New York by automobile. She also on occasions has had as guests persons who became ill or mothers with small children who would have used a door-to-door service if one were available at the time.

An operator of a 12-room hotel at Asbury Park was able to keep her hotel only three-fourths full during July and August. She had never operated a hotel at Asbury Park before 1943, but was of the opinion that she could have done twice as much business if a door-todoor transportation service had been available. In addition, a number of her guests would have used such a service rather than other means of transportation for reasons of convenience and comfort.

A rooming-house operator at Asbury Park has made trips by bus and train between New York and Asbury Park. At times, due to the crowded trains and busses, many passengers were compelled to stand during the journey. Rail service from Asbury Park to New York was better than from New York to Asbury Park. She would prefer to use a door-to-door service and is of the opinion that her guests also would have such a preference.

Another person who supports the application operates a 20-room rooming house and a taxicab service at Asbury Park. He has on a number of occasions transported by taxi, from the railroad station or from the bus to a hotel or rooming house, persons who preferred to stay an extra night rather than travel in crowded busses or passenger trains; and in a number of instances he has been requested to transport them in his taxicab to New York City.

A rooming-house operator at Bradley Beach enjoyed less business in 1943 than in 1942, although more people frequented Bradley Beach during the 1943 season than during the 1942 season. He attributes the loss of business to lack of adequate transportation service. Although he has never traveled by train or bus between Asbury Park and New York, he has received numerous inquiries from guests with respect to the availability of a door-to-door service such as is proposed by applicant.

A hotel operator at Bradley Beach had occasion during the past summer to travel between Bradley Beach and New York twice daily for approximately two weeks. Rail service was used between those points and he was able to obtain a seat on each occasion; but before the journey's end he would give up his seat to some lady or a soldier. Generally the seats were covered with coal dust and cinders, and at the end of his journey his clothing was soiled. He prefers to use a door-to-door service is possible; and a number of his guests have expressed a desire for such service, particularly persons who during the winter season use a similar service between New York City and Lakewood, and persons who because of physical disability find it difficult to use available transportation facilities.

Another hotel owner at Bradley Beach has had no trouble filling the house with guests. Some of the guests on occasion were unable to obtain bus accommodation to their homes and her husband transported them in his automobile. On other occasions he transported elderly persons from New York to Bradley Beach. Certain guests, usually mothers with children, have expressed a desire for a doorto-door service.

An operator of a ticket agency and travel bureau, with offices in the Bronx, was unable on most week ends to obtain accommodations for all persons requesting them and many persons have inquired as to the existence of automobile service from New York to Asbury Park. The operator uses the same office as that used by Greenfield and sells tickets for Greenfield in connection with the various operations conducted by him.

Representatives of protestant carriers testified with respect to the service at present available between the points applicant proposes to serve. The Lincoln Transit Company, Inc., operates between New

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