115 N.Y.S. 878 | N.Y. App. Div. | 1909
This appeal was argued with the case of Mayor v. Broadway & 7th Ave. R. R. Co., Paving Case No. 3 (130 App. Div. 834), decided herewith. This action was brought to recover for the expense of repaving certain portions of Twentyreighth and Twenty-ninth streets through which the line of railroad operated by the defendant ran. The defendant obtained its franchise by transfer from a company known as the Twenty-eighth and Twenty-ninth Streets Bailroad .Company, which acquired it under a. resolution of the common council of the city of Bew York, passed on Bovember
X think -it clear that by accepting the terms and conditions of this resolution the railroad company bound itself to repair and keep in permanent repair the portions of the said streets or avenues upon which the tracks w'ere to be constructed, between the tracks, the rails of the tracks, arid a space two feet in width outside of and adjoining the outside rails of the track or tracks; that such obligation included the obligation to repave that portion of the street when, in consequence of the condition of the existing pavements or the improvement of the adjoining streets and avenues, a new pavement was required in such street or streets, and that the question as to the necessity of such new pavement necessarily depended upon the decision of the municipal authorities. (Mayor, etc., of N. Y. v. Harlem Bridge, M. & F. R. Co., 186 N. Y. 304.)
The obligation imposed upon this railroad company is much broader • than that in the case cited. It is absolutely and unqualifiedly bound to repair and keep in permanent repair the portion of the said streets and avenues upon which the tracks are to be so constructed, and this obligation- in respfect to repairing the streets was not to be dependent upon the requirement of the local authorities, but is made an absolute and unqualified. obligation. There would have been, therefore, - no question if the city had given notice to the railroad company that a ¿new pavement was required in this street and that it must comply with its obligation and repave the streets between its rails; but no such' notice was given. The city made a contract to do the work, and proceeded and did it, without giving the railroad company an opportunity to comply with its obligations.
The referee found that the plaintiff had not proved or attempted to prove that, prior to the laying of the new pavement at said loca
For-that reason I think the judgment must be affirmed, with costs.
McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred.
Judgment affirmed, with costs.