Majority
p. 738In the Matter of the Application of the City of Mount Vernon, New York, a Municipal Corporation, under Section 94 of the Railroad Law,[1] etc., Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent. In the Matter of the Petition under Section 90 of the Railroad Law[1] of the City of Mount Vernon, etc., Matter of Accounting.
The amount paid by the respondent in settlement of the Mooney judgment was not a part of the expense of making the crossing, but a sum" required to be paid by respondent by reason of its negligence. Its inclusion in the account was not within the scope of the order of reference, and was, therefore, without jurisdiction. The order is, therefore, modified, in so far as it confirms the report of the referee in respect to conclusion of law marked “ II,” which is hereby reversed, and as so modified affirmed, with ten dollars costs and disbursements to appellant. Kelly, P. J., Rich, Jaycox, Kelby and Kapper, JJ., concur. Settle order on notice.