Majority
p. 468Olean Street Railway Company, Respondent, v. The Pennsylvania Railroad Company et al., Appellants. (Argued April 27, 1803; decided May 12, 1903.)
Headnote
Olean Street Ry. Co. v. Pennsylvania R. R. Co., 75 App. Div. 413 , affirmed.Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 28, 1902, which affirmed an order of Special Term granting plaintiff’s application for leave to cross the defendant’s tracks at grade.
The following questions were certified :
1. Did chapter 754 of the Laws óf 1897, as amended by chapter 739 of the Laws of 1900, repeal section 1 of chapter 239 of the Laws of 1893, and was not the order of the Erie Special Term of August 4th, 1902, being the order appealed from, void or illegal, for the reason that said statute of 1893 had been repealed ?
2. Was said order void or illegal, for the reason that said statute of 1893 did not empower the court to make an order of the character and scope of the order appealed from, and for the reason that said order assumed to grant rights and impose conditions not contemplated by said statute of 1893 ?
3. Did the proof presented to the Erie Special Term upon which said order was based justify the finding or conclusion of said Special Term that a street, avenue, road or highway existed at the point or place of the proposed grade crossing, and was not said order void or illegal for the reason that there was not sufficient proof of the existence of a street, avenue, road or highway at the point or place of the proposed grade crossing %
Frcmh Rumsey for appellants.
Adelbert Moot and William L. Mawcy for respondent.
Order affirmed, with costs, on opinion below, and certified questions Nos. 1 and 2 answered in the negative and question No. 3 not answered because not before this court; no opinion.
Concur: Parker, Ch. J., Gray, O’Brien, Bartlett, Vann, Cullen and Werner, JJ.