In re Carey Road Grade Crossing

Taylor, J. State Highway No. 5547 crosses at grade the appellant’s tracks, the Mohawk river and seventy-five feet of intermediate land in the town of Whitestown, Oneida county. This is a proceeding under the Grade Crossing Elimination Act (Laws of 1928, chap. 678, as amd.) to elevate the highway so that it will cross above the territory mentioned, some 422 feet westerly from the old grade crossing. The old roadway is 15§ feet wide, the new one is to be 24 feet. In the stipulation of facts it is conceded that public welfare requires this elimination, that the highway should be at the same elevation over the whole stretch of territory mentioned, and that each and every part of the elimination order is proper and justified by the evidence taken excepting that part providing for the construction of the girder span about 100 feet long over the Mohawk river. It is also conceded by appellant that the cost of new substructure for the river span is properly chargeable to the elimination. A motion for a rehearing was denied. The appeal of the New York Central Railroad Company involves the claim that as to the span over the Mohawk river the railroad company should not be compelled to contribute to the cost of the superstructure a sum greater than the cost of reproducing the old superstructure over the river ($5,500) or moving the old superstructure to the new location ($8,000), instead of being required to pay a sum estimated at $23,000 for the proposed new superstructure. If the determination of the Public Service Commission is not arbitrary or capricious, it should be affirmed. (People ex rel. New York & Queens Gas Co. v. McCall, 245 U. S. 345; Matter of Grade Crossings [N. Y. C. R. R. Co.], 255 N. Y. 320.) To require appellant to contribute toward reasonable improvements, toward additions to former construction and toward approaches to the span over the railroad’s right-of-way is within the policy of the law of this State. (Laws of 1928, chap. 678, § 2, subd. 5; Matter of Creedon Grade Crossing, 231 App. Div. 531; Matter of Grade Crossing Elimination [Case No. 4725], 226 id. 447; affd., 252 N. Y. 583; Matter of Grade Crossing Elimination [Case No. 4740], 235 App. Div. 887.) The proposed new river span is a part of the northerly approach to [486] the span over the railroad and is not a “ vast public work ” at. the expense of the railroad such as brought about the reversal of the order in McAneny v. N. Y. C. R. R. Co. (238 N. Y. 122). The order of the Public Service Commission should be affirmed, with costs. All concur, except Edgcomb, J., who dissents and votes for modification in a memorandum.