115 N.Y.S. 872 | N.Y. App. Div. | 1909
In this case the plaintiff seeks to hold the defendant liable for the cost of repaving certain streets in the city of New York occupied by the defendant’s tracks. John Kerr and others acquired the right to use certain streets in the city .of New York for a street railroad under the provisions of chapter 513 of the Laws of 1860, and by an agreement with the individuals named in that act the rights thereby acquired were sold, and transferred to the defendant; and by subsequent agreements and leases, the defendant acquired the right to construct and operate its railroad in several other of the streets of the city of New York.
It seems that prior to the year 1890 those streets had been paved with what was called trap block pavement; that that pavement had become much worn and out of repair, and it became necessary to replace it with a new and improved pavement. This trap block
As before stated, the General Railroad Law imposing an express liability upon the railroad company .for this pavement had been passed,, and was to take effect about a month after this letter was written. Here was an express notice given to the company that the streets were to be repaved, with a demand that the company should relay the pavement between its tracks, and a notice by the company that for any repavement for which it was legally liable it would reimburse the department for the expense. I think this was a clear waiver by the defendant of notice to repave, and justified the department in understanding that the railroad company did not wish to do the repaving itself but authorized the department to repave the streets, and agreed to reimburse the department for the expense for which the railroad company would be legally liable. It is not essential that we should determine whether the actual notice that was given to the defendant by the plaintiff was sufficient under section 98 of the Railroad Law, because the act of the
I think, therefore, that the defendant waived the right to require notice under section 98 of the Bailroad Law; that the city was authorized to go on and repave these streets ; that the defendant was responsible for the cost of such repavement, and that in this case for such cost the city was entitled to a judgment.
It is not necessary to discuss the constitutional objection raised by the defendant to the imposition of this liability. The defendant was under no obligation to operate its railroad in these streets in
It follows that the judgment appealed from must be reversed and a new trial ordered before the same referee, with costs to the appellant to abide the event.
McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred.
Judgment reversed, new trial ordered before the same referee, costs to appellant to abide event.
Amd. by Laws of 1893, chap. 676.— [Rep.