People ex rel. City of New York v. Belt Line Railway Corp.

Clarke, P. J.: The defendant’s tracks on Fifty-ninth street, laid upon the authorized grade of the street and built upon a permanent underground structure of steel and concrete, were established and have been maintained ever since 1897, at the grade then fixed by the then city authorities under express delegated authority from the State. The Board of Railroad Commissioners on application issued its certificate authorizing the conversion' of the company’s railroad from a horse railroad to an electric railroad operated by an underground current of electricity. Pursuant to the provisions of said certificate the railroad and the then commissioner of highways entered into an agreement providing for the manner of construction of said electric railroad to be so converted to electricity and in the permission given by the then commissioner of highways it was stipulated that the tracks should be laid on the lines and grades approved by the said commissioner and that the grade of the pavement between the rails and the slot should be such as should be prescribed by the commissioner and should be determined upon as part of the plans for construction when the same were approved. Thereafter the said underground railway structure and the tram rails thereon were constructed on the lines and grades approved and prescribed by the then commissioner of highways and the same has ever since been and now is maintained at such grade. The grade at Fifty-ninth street between Sixth avenue and Columbus Circle has not been changed since the converting of said horse railroad to an electric railroad and no proceeding to change such grade is now pending, and the present grade of the tram rails of the tracks thereon conform to the present grade of the street as so paved. While it is true that in People ex rel. City of Geneva v. G., W., etc., Traction Co. (112 App. Div. 581; affd., 186 N. Y. 516) it was held that under the direct statutory authority conferred by the Legislature upon the city of Geneva by section 65 of its charter (Laws of 1897, chap. 360, as amd. by Laws of 1905, chap. 462) the city was authorized to require the relocating of the railroad at the expense of the railroad corporation, in People ex rel. City of Olean v. W. N. Y. & P. T. Co. (214 N. Y. 527) and in People ex rel. City of New York v. [94] New York Railways Co. (217 id. 310) and in City of New York v. Hudson & Manhattan R. R. Co. (188 App. Div. 294; affd., 229 N. Y. 141), it was held that in the absence of direct legislative authority the city was unauthorized to compel the relocation of tracks at the expense of the railroad company. I find no such direct delegation of the police power of the State to the city of New York and am, therefore, of the opinion upon the record before us, that mandamus will not he to compel at considerable expense to the defendant the relocation of its permanent and substantial structure built under the certificate of the Railroad Commissioners and in agreement with the city authorities upon the plans and at the grade then established. In my opinion the order granting the peremptory writ should be reversed, with ten dollars costs and disbursements,. and the motion denied, with fifty dollars costs. Smith, Page and Gbeenbatjm, JJ., concur; Dowling, J., dissents.