In re the Town Board of the Town of Cuba

Headnote

Jurisdiction — public service commission — petition by town board and board of supervisors for change in railroad crossing of state highway.

Matter of Town Board of Town of Cuba, 203 App. Div. 876 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 22, 1922, which affirmed an order of the public service commission directing the alteration of a certain existing highway'undercrossing of the Erie railroad in the town of Cuba, Allegany county, N. Y. The only question argued on the appeal was the question of the jurisdiction of the public service commission to make this final order directing the changes in this crossing. The question of jurisdiction involved the construction of sections 91 and 94 of the Railroad Law, it being the contention of the appellant that this being a state highway, the proceeding could only be instituted by a petition filed by the state commission of highways, and could not be so instituted by the petition of the town board of Cuba, representing a municipality which had no control over the highway, did not maintain it, and was not

chargeable with any part of the expense of the crossing change directed.