In Re the Opening of Ludlow Street

Parker, Oh. J. In pursuance of the charter of the city of Yonkers, certain property owners, on Movember 23, 1896, filed a petitxon with the common council of that city praying that a street be so laid out that it should cross the steam surface railroad of the respondent. The petition was on that day duly referred to the board of street opening, which reported thereon on December 27, 1897, approving the petition. In the meantime, however, chapter 754 of the Laws of 1897 was passed — taking effect July 1, 1897, some months *545 before the report was made — which- act so amended the Railroad Law that the first part of section 61 was made to read as follows: “ 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, 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 the 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 a new 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 remaining part of the section has no direct bearing upon the question before the court. After a careful examination of the section, in the light of *546 the object sought to be accomplished. by the law-making power, our conclusion is that the legislature intended to require the steps named therein'to be taken by municipalities in the laying out of streets across railroads, in addition to the requirements of their several charters and existing general law. The procedure provided for by the various charters throughout the state, differing as they do in detail, was to be left in force, as furnishing the general basis for laying out and opening new streets throughout the several municipalities; but in view of the public importance of the attempt to gradually do away with grade crossings, especially in dangerous locations, and of the fact that one-half of the expense was to be borne by the railroad corporation to be crossed by the new highway, it was deemed but just that the railroad corporation interested should have an opportunity to be heard before the municipal authorities on any such proposed new road ; so this act was passed, providing that notice should be given of an intention to lay out such a street, avenue or highway and that it should be given by service personally upon the president or vice-president of the railroad corporation or any general officer thereof, and that such railroad corporation should have the right tó be heard before the municipal authorities upon the question of the necessity of such street, avenue or highway. In our view, as we have already suggested, it was the legislative purpose that this statute should apply to all the various charters of the state, imposing the additional requirements named therein upon the several municipalities seeking to open new highways across railroad tracks; so, after the board of street opening made their report and the-common council took the proceedings required by the charter to open and lay out the highway, giving the notice required by the charter and taking the other steps, as it did, strictly in conformity therewith, there should have been observed in addition thereto the requirements of § 61 (supra), under which notice of the intention to lay out this street should have been' given to the Respondent, and an opportunity for hearing afforded in the *547 manner pointed out by the statute. In the event of a determination by the municipal authorities to lay out the highway, then, as required by the statute, and before any other proceedings were taken, application should have been made to the board of railroad commissioners for them to decide whether the street should be carried across the railroad, over or under or at grade. These steps having been omitted by the local authorities, it follows that the subsequent proceedings had by direction of the municipal authorities, viz., the application for the order at Special Term appointing commissioners to estimate and assess the expenses of the improvement and the amount of damages and the benefits, and all subsequent proceedings in pursuance thereof, were without authority. The courts below, therefore, properly held that upon the application of the respondent those proceedings should be set aside. The order should be affirmed, with costs. O’Brien, Bartlett, Haight, Martin, Vann and Cullen, JJ., concur. Order affirmed.