In re City of New York

The question certified is as follows:

“ The municipal authorities, upon notice to and after hearing the New York Central and Hudson River Railroad Company, having determined that it is necessary for the public interests to open 134th Street between Tenth Avenue and the Hudson River across the line of the New York Central and Hudson River Railroad Company, is it necessary to apply to the Public Service Commission under the provisions of Section 90 (formerly Section 61) of the Railroad Law for a determination as to whether the street should pass over or under such railroad or at grade before an application is made to the Supreme Court for the appointment of commissioners of estimate and assessment to acquire title to such lands, tenements and hereditaments as are required for the opening of the said street wherever the same has not been theretofore acquired by the public authorities ? ”

The petition upon which these proceedings were instituted by the city of New York is dated April 29th, 1904, and the prayer is that three discreet and disinterested per

“ When a new street, avenue or highway, or new portion of a street, avenue or highway shall hereafter be constructed across a steam surface railroad, other than pursuant to the provisions of section sixty-two of this act, such street, avenue or highway or portion of such street, avenue or highway, shall pass over or under such railroad or at grade as the board of railroad commissioners shall direct. Notice of intention to lay out such street, avenue or highway, or new portion of a street, avenue or highway, across a steam surface railroad, shall be given to such railroad company by the municipal corporation at least fifteen days prior to the making of the order laying out such street, avenue or highway by service personally on the president or vice-president of the railroad corporation, or any general officer thereof. Such notice shall designate the time and place and when and where a hearing will be given to such railroad company, and such railroad company shall have the right to be heard before the authorities of such municipal corporation upon the question of the necessity of such street, avenue or highway. If the municipal corporation determines such street, avenue or highway to be necessary, it shall then apply to the board of railroad commissioners before any further proceedings are taken, to determine whether such street, avenue or highway shall pass over or under such railroad, or at grade, whereupon the said board of railroad commissioners shall appoint a" time and place for hearing such application, and shall give such notice thereof, as they judge reasonable, not, however, less than ten days, to the railroad company whose railroad is to be crossed by such new street, avenue or highway, or new

This statute has been subsequently amended and is now known as section 90 of the Railroad Law of 1910 (Cons. Laws, ch. 49); but in so far as the statute pertains to the question now under consideration the pro

It will he observed that, under the provisions of this statute, after a municipal corporation determines a street, avenue or highway to be necessary “it shall then apply to the hoard of railroad commissioners before any further proceedings are taken, to determine whether such street, avenue or highway shall pass over or under such railroad or at grade. ” It is difficult to conceive of language that would more clearly indicate the legislative intent than that above expressed, “before any further proceedings are taken.”' What proceedings? Any proceedings; and yet the Appellate Division has reached the conclusion that this statute does not mean further proceedings to acquire the title to the land. In this conclusion we think that the learned Appellate Division erred. This question we had under consideration in Matter of Opening of Ludlow Street, City of Yonkers ( 172 N. Y. 542 ). In that case the petition asked for the laying out of a street across a steam surface railroad. Before a report had been made upon the petition, chapter 754 of the Laws of 1897 was passed, which amended section 61 of the Railroad Law so as to require notice to be given to the president or vice-president of the railroad corporation. This notice was not given and we held it to be necessary; Parker, Oh. J., speaking for the court, saying that the “Notice of the intention to lay out this street should have been given to the respondent, and an opportunity for hearing afforded in the manner pointed out by the statute. In the event of a determination by the municipal authorities to lay out the highway, then, as required by the statute, and before any other proceedings were taken, application should have been made to the hoard of railroad commissioners for them to decide whether the street should be carried across the railroad, over or under or at grade.” (p. 546.) It is

■ It is now suggested that a different conclusion was reached by this court in the case of N. Y. C. & H. R. R. R. Co. v. City of Buffalo ( 200 N. Y. 113 ); but in that case the action was brought by the railroad company to restrain the city from extending Delevan avenue, in the city of Buffalo, across the plaintiff’s tracks at grade. There the title to the lands across the railroad track had been acquired by the city by proceedings instituted in 1867, and one of the contentions on the part of the railroad company was that, inasmuch as the avenue had not been opened within six years from the time that the title was acquired, it ceased to become a highway and that the municipality had lost its right to have such a crossing. This contention was not sustained by the court, but it was held that the city could not proceed in con

The order of the Appellate Division should, therefore, he reversed and that of the Special Term affirmed, with costs in all courts, and the question certified answered in .the affirmative.'

Cullen, Ch. J., Vann, Werner, Willard Bartlett, Hisoock and Chase, JJ., concur.

Order reversed, etc.