159 N.Y.S. 48 | N.Y. App. Div. | 1916
A grade crossing over the railroad tracks at Hartsdale avenue, situated entirely in the town of Greenburgh, was, by order of thé Public Service Commission, entirely eliminated, and a new overhead crossing established some distance from it. The part of the new crossing going over the railroad track is entirely in the town of Greenburgh, but in order to make the crossing available for the highway in the town of Scarsdale it was necessary to build in that town a ramp or approach to the crossing. The propriety of the elimination of the old crossing, and the establishment of the new crossing with its approaches, is conceded. After the work was finished by the railroad company, under the charge and supervision of the Public Service Commission, the railroad company presented its account to the town of Greenburgh. The town raised no question about the expenditures, but by its petition to the Public Service Commission raised the question that the town of Scarsdale ought to pay one-quarter of the expense of building the ramp or approach to the crossing situated in that town. The two towns thereupon appeared before the Commission and filed a stipulation, conceding the facts and giving the assessed valuation of the two towns. The stipulation concludes: “ That in case the Public Service Commission shall find as a matter of law that the town of Scarsdale is liable for some part of the cost of eliminating the said Hartsdale Avenue crossing, the exact amount thereof shall be stated by the Public Service Commission after notice to the undersigned as attorneys for the said town of Greenburgh and town of Scarsdale. ” The stipulation recited that it was made for the purpose of facilitating the presentation and determination of the question of the legal obligation of the town of Scarsdale to pay any portion of the expense. Upon that stipulation the Commission determined that the town of Scarsdale is liable for and shall be charged with one-quarter of the cost of the structure and work within the limits of that town, and the town of Greenburgh for one-quarter of the cost of the structure within that town. This determination of the Commission was made on August 4,1914, and on application of relator it was affirmed on November 10, 1914. The relator, by this certiorari, seeks a review of that
The railroad company, in its petition for the change of grade, assumed that the old crossing was in the town of Scars-dale, and that town was made a party to the proceeding; but later, by an amendment, the town of Greenburgh was made a party, so that both towns appeared before the Commission and were parties to the proceeding. The record of the hearing upon that petition shows that the relator objected to paying one-half of the expense chargeable to the municipality, as two-thirds or more of the improvement was in the town of Greenburgh, and suggested that but one-third of the amount should be charged to it. It also urged that the grade of the ramp should he eight per cent rather than seven per cent as planned. The Commission adopted this last suggestion, thereby increasing the expense of the ramp.
The order for the elimination of the grade crossing was made by the Commission July 25, 1910. Section 94 of the Eailroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), then in force, which provided for the manner in which the expense of such a crossing should be met, reads in part: “ Whenever under the provisions of section ninety of this chapter a new street, avenue or highway is constructed across an existing railroad, the railroad corporation shall pay one-half and the municipal corporation wherein such street, avenue or highway .is located shall pay the remaining one-half of the expense of making such crossing above or below grade; and whenever a change is made as to an existing crossing in accordance with the provisions of section ninety-one of this chapter, fifty per centum of the expense thereof shall be borne by the railroad corporation, twenty-five per centum by the municipal corporation, and twenty-five per centum by the State.”
The relator, after having stipulated that the Commission may decide the question of law as to its liability, is hardly in a position to ask a review by certiorari of that determination upon a jurisdictional question. It took the chance of a favorable decision and we should not now give a willing ear to its complaint that the Commission had no jurisdiction to decide the question so submitted. It might well be left to question the jurisdiction of the Commission elsewhere, but as we are satisfied the question was properly submitted and the Commission had jurisdiction, we may state the reasons for such conclusion.
Sections 91-96 of the Railroad Law contemplate that the
It provides that if the railroad companies are interested in the crossing the fifty per cent to be paid by the railroad corporation or corporations affected thereby shall be paid by the.corporations in the proportion required by the Commission. The work is to be done and paid for by the railroad company in the first instance; the land is to be purchased by the town in the first instance; the plans and the specifications and the estim ate of the cost are to be approved by the Commission. If the railroad company does the work by contract the proposals shall be submitted to the Commission, and if it determines the bids are excessive it has the power to require the submission of new proposals. It may employ temporarily experts and engineers to supervise the work, the expense of whom is to be paid by the Comptroller upon the certificate of the Commission, “ said expense to be included in the cost of the particular change in grade on account of which it is incurred, and finally apportioned in the manner provided in this section. Upon the completion of the work and its approval by the Public Service Commission an accounting shall be had between the railroad corporation and the municipal corporation, or the State Commission of Highways, of the amounts expended by each, with interest, and if it shall appear that the railroad corporation or the municipal corporation, or the State Commission of Highways, has expended more than its proportion of the expense of the crossing as herein provided, a settlement shall be forthwith made in accordance with the provisions of this section.” The accounts are to be verified, and in case of a dispute between the railroad corporation and the municipal corporation (or the State Commission of Highways as to a State or county road) “ as to the amount expended,” a judge of the Supreme Court may appoint a referee to take testimony as to the amount expended, and the confirmation of that report shall be final. If the railroad company refuses to pay its pro
In construing this last paragraph the Court of Appeals has held that the service of such notice is a condition precedent to any action for damages on account of a change of grade so made. We quote from the opinion .at page 377: “ The necessity for a statute limiting the time within which a claim can he made for such damages arises from the fact that after the completion of the work an accounting is had between the municipality and the railroad company, to he approved by the hoard of railroad commissioners, and a settlement is then had between said municipality and the railroad corporation and the State, based upon said accounting. Without some special statutory provision limiting the time within which a claim for damages can be asserted, the accounting and settlement might he had without knowledge of alleged claims.” (Matter of Melenbacker v. Village of Salamanca, 188 N. Y. 370, 377.) The opinion states that the accounting is to be approved by the Board of Railroad Commissioners: The statute does not in
The statute only provides for compelling payment of the amount found due on the accounting, with interest. The provisions for collecting from the railroad company its share of the expense as a tax, or that the railroad company can offset the amount due from the town against its taxes, only have force after the settlement. Manifestly neither party can avoid pay
We conclude that the town of Scarsdale was properly charged by the Commission with the payment of the amount stated in the order appealed from. The decision is, therefore, affirmed, with fifty dollars costs and disbursements.
Determination unanimously confirmed, with fifty dollars costs and disbursements.
See, also, Laws of 1911, chap. 141; Laws of 1914, chap. 378, and Laws of 1915, chap. 240.— [Ref.