Mayor & Common Council v. New York Central Railroad

Majority

p. 593

In the Matter of the Mayor and Common Council of the City of Yonkers, Appellants, against The New York Central Railroad Company, Respondent.

Headnote

Yonkers (city of) — streets — railroads — application for widening of overhead crossing —failure to show necessity.

Matter of Mayor, etc., of Yonkers (McLean Ave.), 222 App. Div. 766 , affirmed.

(Argued May 28, 1928;

decided June 12, 1928.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 16, 1927, which unanimously affirmed a determination of the Public Service Commission dismissing for lack of jurisdiction an application by the Mayor and Common Council of the city of Yonkers for an order directing the widening of the bridge and roadway carrying McLean avenue over the tracks of the main line, Putnam Division, of the New York Central Railroad Company in the city of Yonkers.

Leonard G. McAneny and Richard E. Fitz Gibbon for appellants.

Frederick L. Wheeler, George H. Walker and Alexander S. Lyman for respondent.

Order affirmed, with costs, on the ground that the petitioner has failed to show that an alteration of the

p. 594

bridge is necessary for the public safety within the meaning of section 91 of the Railroad Law.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.