New York Central & Hudson River Railroad v. City of Buffalo

[1] Section 288 of the charter of the city of Buffalo provides that it is "the duty of the owner or occupant of any premises in the city to lay sidewalks in front of such, premises whenever the same shall be ordered by the common council. The commissioner of public works shall notify the owner or occupant of any premises in front of which such work shall be required to be done that, if the same is not done within 10 days, the same shall be done by the city and the expense thereof will be assessed! upon such premises. In case such work shall not be done within such time, said commissioner may cause the same to be done and the expense thereof shall be a charge and lien upon such premises. All assessments for such work shall be assessed upon the lands and premises in front of which the work is done according to the lineal frontage.

For many years prior to 1894 the plaintiff maintained two railroad tracks crossing Main street and extending westerly through the terrace' at grade. In 1894, under an arrangement with the grade crossing commissioners of the city, these tracks were depressed, passing under Main street by means of a bridge or tunnel and passing through the terrace in an open cut fifteen feet deep at its easterly or Main street end, and by a uniform grade rising to the street level at its westerly end, where it crossed West Seneca street. The northerly and southerly sides of this cut and its easterly end were inclosed by a stone wall rising about three feet above the street level of the terrace, on the top of which was erected an iron fence three or more feet high, completely fencing and effectually closing the same, except at its westerly end. Over this cut at its intersection with Pearl and Franklin streets were erected footbridges for the use of pedestrians. All the expense of such work included within the outside lines of such wall was borne by the plaintiff; the defendant agreeing to maintain and keep such wall in repair. The city paved the terrace on all sides of the cut up

The contention of the plaintiff is that it is not the occupant of any premises in the terrace within the meaning of section 288 of the city charter, nor is it the occupant of land and premises in front of which the sidewalk was laid and the assessment levied within the meaning of such section. In support of such contention it is urged that People ex rel. Davidson v. Gilon, 126 N. Y. 147 , 27 N. E. 282 , O’Reilley v. Kingston, 114 N. Y. 439 , 21 N. E. 1004 , and In re Anthony, 46 Misc. Rep. 525 , 95 N. Y. Supp. 77 , are decisive thereof. Such authorities do not reach the question presented. People ex rel. Davidson v. Gilon decided that the tracks of the New York & Hudson River Railroad Company in Madison avenue were not subject to assessment for street improvements under a statute which provided that assessment for such improvement should be levied upon the owners or occupants of all the houses and lots benefited. O’Reilley v. Kingston turned upon the question whether the railroad tracks in the center of the streets could be assessed for street improvements under a statute providing that no part of such expense should be assessed on lands not bordering on or touching the street. In re Anthony holds that the right of a street railway, electric light, telephone, or gas supply corporation to maintain their rails, wires and pipes within the street are not subject to assessment for the expense of widening a street occupied by such property.

This piece of real estate, completely inclosed on its north and south sides and on its east end, with the southerly street line of West Seneca street marking its western end, is certainly a distinct portion of real estate and constitutes certain definite, accurately described, actual premises. A city lot extending entirely across a block fronts on both of the streets running across its ends. A block bounded by four streets fronts on each of the four streets. The northerly side of the premises in.question fronts on the north terrace. The southerly side fronts on the south terrace, and the east end fronts on Main street. The conclusion is therefore reached that the plaintiff is the occupant of the premises in the terrace and of the lands and premises in front of which the sidewalk was laid and the assessment levied within the meaning of section 288 of the city charter.

The statute provides that assessments for laying sidewalk shall be assessed upon the premises in front of which such walks are laid, according to the lineal frontage. Under this statute, it appears to be quite immaterial whether the laying of the sidewalk was of any benefit to the plaintiff or otherwise. If the validity of this assessment was dependent upon the fact of benefit to the plaintiff by the laying of the sidewalk much could be said from the evidence leading to the conclusion that it is of substantial benefit to plaintiff’s occupation of these premises as they occupy them to have the sidewalks as built to give pedestrians a reasonably secure right of way and access to the footbridges at Franklin and Pearl streets and a reasonably safe place to walk in reaching the plaintiff’s terrace station from Main street. All of plaintiff’s annoyance and risk in operating its railroad through the terrace at grade has been eliminated. The dangers to pedestrians and vehicles have been removed, the depressing of the track, construction of the cut, and the erection of the retaining walls and fence have shut out the public from these premises, and denied to pedestrians and vehicles the free use. of the highway. The statutory requirement that the plaintiff in excavating its cut through the terrace should restore the highway to its former state of usefulness could not be better complied with than by giving the foot traveler therein a sidewalk as a protection from congested vehicle traffic of the street, especially as it is recalled that such vehicle traffic is only congested by reason of the fact that the plaintiff has taken and exclusively occupied its premises substantially in the center of the street, i There is no just or fair rea

[2] It is said, however, that the assessment is void for the reason that it was not laid according to the lineal frontage. The assessment was levied upon the plaintiff’s tracks in the terrace, Fourth, Erie, Wilkeson, Church, and Norton streets. This certainly was not making an assessment for a sidewalk in front of plaintiff’s premises in the terrace according to the lineal frontage. Such assessment should only have been laid upon the premises in front of which the sidewalk was laid. But the assessment was not void for such error. It was a good assessment so far as the. plaintiff’s tracks in the terrace were concerned. It was void as to plaintiff’s tracks in Fourth, Erie, Wilkeson, Church, and Norton streets. The assessment for the entire expense of the sidewalk from plaintiff’s tracks in the terrace may be upheld and the assessment upon the property in the other streets vacated and set aside. Brennan v. City of Buffalo, 162 N, Y. 491 , 57 N. E. 81 .

Judgment is ordered dismissing plaintiff’s complaint as to the property affected by the assessment, sale, redemption, and execution of deed in the terrace, and vacating the assessment and all subsequent proceedings as affecting the plaintiff’s property in Fourth, Erie, Wilkeson, Church, and Norton streets, without costs to either party.

Let findings be prepared.