158 N.Y. 410 | NY | 1899
We held in People ex rel. City of Buffalo v. New York Central & Hudson R. R. R. Co. (156 N.
This case presents an entirely different situation ; for when the act of 1897 took effect, this relator had not instituted a proceeding by mandamus to compel defendants to carry the street over its tracks; indeed, it had not even acquired the right to institute such a proceeding. If it had attempted to commence proceedings by mandamus at any time before the day on which the act of 1897 went into operation, it would have failed, because, by the terms of the resolution of the common council, the defendant had still seven days within which to comply, or refuse to comply, with the notice given by the city.
On the seventh day of May, 1897, in pursuance of a resolution of the common council of the relator, notices were served upon this defendant and the Erie Eailroad Company to take Tenth street, which was laid down upon a general map of the city, across their respective tracks. These notices were given in pursuance of the provisions of chapter 62 of the Laws of 1853 (supra), and later on and in conformity with other provisions of that statute the common council by resolution extended the time within which the defendant was required to do such work until the 7th day of July, 1897.. Until that date, therefore, the city could not have acquired the right to compel the defendant by mandamus to take the street across
The right of all municipalities to lay out streets acz-oss the property of a railroad remains unaffected by this legislation; but it does take away from them the right of their own motion to compel a railroad to take a street across its tracks at grade. A municipality may desire that it be so taken, to save expense to itself or for some other reason, but the power to determine whether its wish will be given effect has, since the 1st day of July, 1897, been committed to the judgment of the railroad commissioner's. Many attempts have been made since the passage of that act to-thwart the policy of the law-making power to avoid grade cz-ossings; in some instances proceedings to open stz’eets wez*e instituted by the municipal authorities after the act of 1897 had been passed, but, of course, before it took effect. Indeed, in one instance, the notice, which the act of 1853 provided should be served upon a railroad corporation," notifying it to take a stz*eet acz'oss its railroad tracks
It would be unfortunate if such attempts to subvert the policy of the state could have such support in the statutes as would make them effectual, but, as we read them, they have no such support. The act of 1853 was repealed by that of 1897, and, therefore, since the 1st day of July of that year the procedure provided by the latter act must be resorted to in all attempts to take a street across the tracks of a steam railroad — a procedure that requires, in the first instance, a determination by the railroad commissioners whether the street shall pass under or over the tracks of such a corporation, or at grade. But where the right to institute proceedings, by mandamus was acquired, and the proceedings commenced prior to the 1st day of July, 1897, to compel a railroad to take a street across its tracks, the right to prosecute that proceeding to the end in the courts is preserved by section 31 of the Statutory Construction Law.
The order should be affirmed, with costs.
Order affirmed.