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Petition of the Board of Supervisors of Erie County, under Section 90, Railroad Law, for an Order Determining how McKinley Parkway Extension Highway Shall Cross the Railroads and Rights of Way Operated by The New York Central Railroad Co., and Others, in the City of Lackawanna, Erie County
— Order affirmed, with costs. Memorandum: The special law (Laws of 1928, chap. 718) providing for “ the greater motorways system of highways ” for Erie county provides that the “ highways,” including the one in question,, shall be built and maintained “ at the expense of said county of Erie.” We do not understand that to mean that the county is deprived of its right to resort to section 90 of the Railroad Law to compel the railroads to contribute to the cost of building overhead bridges.
We hold that the highway in question is not a part of the park or parkway system of the county, as was the situation in the ease of Matter of County of Westchester (246 N. Y. 314). In respect to the claim of appellants that sections 123 and 320-d of the Highway Law forbid the construction of the highway in question through the third class city of Lackawanna, we hold that those sections relate only to highways toward the expense of which the city contributes. All concur.
(The order of the Public Service Commission determines the manner in which a highway shall cross defendants’ railroad tracks and determines the proportionate amounts to be paid by the railroads.) Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.