142 N.Y.S. 472 | N.Y. App. Div. | 1913
Action to recover the sum of $68,739.82 which, the plaintiff expended in repairing or repaving a portion of Jamaica avenue, a public street formerly in the county of Queens but now embraced within the corporate limits of the plaintiff.
The right to recover this sum from the defendant is based upon the'provisions of section 98 of the former Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as amd. by Laws of 1892, chap. 676), now section 178 of the Railroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], since amd. by Laws of 1912, chap. 368), which provides that every street surface railroad corporation, so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village, shall keep in repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, and if it fails to do so after the expiration of thirty days’ notice, "then the local authorities may make the repairs and charge the expense thereof to such corporation.
The defendant, while not denying that the portion of Jamaica
The defendant set forth the foregoing facts in its answer, to which the plaintiff demurred, on the ground that they did not constitute a defense to the action. The demurrer was sustained, and the defendant appeals,
In Weed v. Common Council (26 Misc. Rep. 208; affd. sub nom. Davidge v. Common Council, 62 App. Div. 525) it was held that the common council had no power to exempt a street railroad company by contract or otherwise from the provisions of the Railroad Law, and this seems to be clearly intimated in Conway v. City of Rochester (157 N. Y. 33) where Chief Judge Parker, referring to section 98, said: “It will next be observed that the party charged with the performance of the duty is specifically pointed out. The street surface railroad corporation continuing to use any of its tracks ‘ shall,’ says the statute, ‘ keep in permanent repair ’ such portion of the street. This language is mandatory. The municipal authorities áre given no authority to relieve the railroad corporation of the whole or any portion of the needed repairs, or to impose the whole or any portion of the cost upon the abutting owners or the city at large.”
It is urged by the respondent that the provision in the deed relieving the railroad company from the expense of paving and keeping in repair the street was not for the purpose of exempting defendant from-sharing its portion of the burden of taxation applicable toi street surface railroads; but was a part of the consideration for the conveyance. This is more plausible than sound. No matter what may be said, the purpose of it was to thereafter prevent the railroad coming within the provisions of section 98 of the Railroad Law which required it to keep a portion of the street in repair. ■ The deed expressly recited that the consideration was “ the sum of one dollar.”
Attention is called to authorities- involving contracts whereby cities and villages have agreed, in consideration of water to be furnished to them.; by water companies, to pay a certain proportion of the taxós levied upon the companies, and that it has been held that such contracts were not illegal. (Utica Water Works Co. v. City of Utica, 31 Hun, 426; Grant v. City of Davenport, 36 Iowa, 396; Cartersville I., G. & W. Co. v. Mayor, etc., of Cartersville, 89 Ga. 683; Maine Water Co. v. City of Waterville, 93 Maine, 586.) But the contracts in. these cases were sustained, not on the theory of an exemption to. pay taxes, but on the ground tha/t the municipalities agreed to compensate the water companies for services to be performed each year by the payment of a certain sum proportionate to the amount of the taxes levied against the companies for that year.,
These authorities are not controlling, nor do I think them applicable to the question here under review. It may be if the •defendant is subject to the provisions of section 98 of the Railroad Law and compelled to repave the street as therein pro
The judgment appealed from, therefore, should be affirmed, with costs.
Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment affirmed, with costs.