204 N.Y. 465 | NY | 1912
The question certified is as follows:
"The municipal authorities, upon notice to and after hearing the New York Central and Hudson River Railroad Company, having determined that it is necessary for the public interests to open 134th Street between Tenth Avenue and the Hudson River across the line of the New York Central and Hudson River Railroad Company, is it necessary to apply to the Public Service Commission under the provisions of Section 90 (formerly Section
The petition upon which these proceedings were instituted by the city of New York is dated April 29th, 1904, and the prayer is that three discreet and disinterested persons *467
be appointed commissioners of estimate and assessment and the order entered thereon at Special Term and now brought up for review bears date the 6th day of May, 1908. At that time section
"When a new street, avenue or highway, or new portion of a street, avenue or highway shall hereafter be constructed across a steam surface railroad, other than pursuant to the provisions of section sixty-two of this act, such street, avenue or highway or portion of such street, avenue or highway, shall pass over or under such railroad or at grade as the board of railroad commissioners shall direct. Notice of intention to lay out such street, avenue or highway, or new portion of a street, avenue or highway, across a steam surface railroad, shall be given to such railroad company by the municipal corporation at least fifteen days prior to the making of the order laying out such street, avenue or highway by service personally on the president or vice-president of the railroad corporation, or any general officer thereof. Such notice shall designate the time and place and when and where a hearing will be given to such railroad company, and such railroad company shall have the right to be heard before the authorities of such municipal corporation upon the question of the necessity of such street, avenue or highway. If the municipal corporation determines such street, avenue or highway to be necessary, it shall then apply to the board of railroad commissioners before any further proceedings are taken, to determine whether such street, avenue or highway shall pass over or under such railroad, or at grade, whereupon the said board of railroad commissioners shall appoint a time and place for hearing such application, and shall give such notice thereof, as they judge reasonable, not, however, less than ten days, to the railroad company whose railroad is to be crossed by such new street, avenue or highway, or new *468 portion of a street, avenue or highway, to the municipal corporation and to the owners of land adjoining the railroad and that part of the street, avenue or highway to be opened or extended. The said board of railroad commissioners shall determine whether such street, avenue or highway, or new portion of a street, avenue or highway, shall be constructed over or under such railroad or at grade; and if said board determine that such street, avenue or highway shall be carried across such railroad above grade, then said board shall determine the height, the length and the material of the bridge or structure by means of which such street, avenue or highway shall be carried across such railroad, and the length, character and grades of the approaches thereto; and if said board shall determine that such street, avenue or highway shall be constructed or extended below the grade, said board shall determine the manner and method in which the same shall be so carried under, and the grade or grades thereof, and if said board shall determine that said street, avenue or highway shall be constructed or extended at grade, said board shall determine the manner and method in which the same shall be carried over said railroad at grade and what safeguards shall be maintained. The decision of the said board as to the manner and method of carrying such new street, avenue or highway, or new portion of a street, avenue or highway, across such railroad, shall be final, subject, however, to the right of appeal hereinafter given. The decision of said board rendered in any proceeding under this section shall be communicated within twenty days after final hearing to all parties to whom notice of the hearing in such proceeding was given or who appeared at such hearing by counsel or in person."
This statute has been subsequently amended and is now known as section
It will be observed that, under the provisions of this statute, after a municipal corporation determines a street, avenue or highway to be necessary "it shall then apply to the board of railroad commissioners before any further proceedings are taken, to determine whether such street, avenue or highway shall pass over or under such railroad or at grade." It is difficult to conceive of language that would more clearly indicate the legislative intent than that above expressed, "before any
further proceedings are taken." What proceedings? Any
proceedings; and yet the Appellate Division has reached the conclusion that this statute does not mean further proceedings to acquire the title to the land. In this conclusion we think that the learned Appellate Division erred. This question we had under consideration in Matter of Opening of Ludlow Street, City ofYonkers (
It is now suggested that a different conclusion was reached by this court in the case of N.Y.C. H.R.R.R. Co. v. City ofBuffalo (
The order of the Appellate Division should, therefore, be reversed and that of the Special Term affirmed, with costs in all courts, and the question certified answered in the affirmative.
CULLEN, Ch. J., VANN, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Order reversed, etc.