183 A.D. 688 | N.Y. App. Div. | 1918
The city of New York and certain property owners appeal from an order of the Public Service Commission for the First District dismissing the city’s application under section 90 of the Railroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], as amd. by Laws of 1913, chap. 744, and Laws of 1914, chap. 378) for a determination as to the manner in
Section 442 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1913, chap. 329)
It has never been determined to what extent a street may be widened and as so widened earned across a railroad. There must be some limit, naturally, and the courts would not sanction any scheme to compel a railroad to cover miles of its tracks under the guise of widening a street, say for half a mile north and half a mile south and carrying it across the railroad as widened. Doubtless the widening must be a reasonable one and made for the honest purpose of actually carrying a street across a railroad. But whether providing for -a crossing nearly 400 feet wide is reasonable or not, or whether there was any purpose to be unfair to the railroad, has no bearing upon the Commission’s duty in the premises. The application being within the statute, it was the duty of the Commission to act, and its sole function is to determine whether the crossing should be below, above or at grade. If the proposed crossing was not within the power of the board of estimate and apportionment to provide for under its authority to change the map and plan of the city, it is open to the railroad company to question the legality of the city’s action by direct attack upon it in an independent proceeding. Similarly, if, as contended by the railroad, the board of estimate and apportionment never 'did in fact determine the necessity of this change, the law affords ample relief to the railroad. But so far as the Public Service Commission is concerned, it cannot go back of the resolution of the board of estimate and apportionment, which recites that the necessity for the change has been duly found. The railroad company is quite competent to safeguard its interests as affected by such considerations.
It is contended that, as special acts have been passed dealing with a similar contemplated public improvement in this vicinity, the city should not have proceeded under the Railroad Law. Reference is had to chapter 731 of the Laws of 1905, providing for the widening of Pelham avenue at this
It is further contended that the contemplated extension cannot be legally carried out because it will necessitate the removal of the raihoad station, and thus run counter to the provisions of law against taking property devoted to a raihoad use without express authority for so doing. There are two answers to this contention; one is that it in no respect bears upon the power of the Public Service Commission to make the statutory determination that it has been called upon to make; another, that by the Laws of 1917, chapter 643, the city was expressly authorized to acquire the station “ in the manner provided by law for street purposes.,, This act purports to amend chapter 731 of the Laws of 1905, the permissive act above referred to, but it none the less confers upon the city authority to remove this station. But such matters are all foreign to the real question at issue, which is the power and duty of the Public Service Commission to determine whether the extension of Third avenue across the tracks of the railroad, in the manner proposed, shall be above, below or at grade. It was 'the duty of the Commission to make this determination, and its order, in so far
Clarke, P. J., Dowling, Smith and Page, JJ., concurred.
Determination reversed, with ten dollars costs and disbursements, and proceeding remitted as stated in opinion.
Since amd. by Laws of 1917, chap. 632.— [Rep.