City of Yonkers v. New York Cent. & H. R. R. Co.
| Decision Date | 11 December 1900 |
| Citation | 58 N.E. 877,165 N.Y. 142 |
| Parties | CITY OF YONKERS v. NEW YORK CENT. & H. R. R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Second department.
Submission of controversy between the city of Yonkers and the New York Central & Hudson River Railroad Company on an agreed statement of facts pursuant to Code Civ. Proc. § 1279. From a judgment for plaintiff in the appellate division (52 N. Y. Supp. 1074), defendant appeals. Affirmed.
Ira A. Place, for appellant.
James M. Hunt, for respondent.
The judgment in this case was rendered upon an agreed statement of facts, pursuant to the provisions of section 1279 of the Code of Civil Procedure. The question to be determined is whether section 64 of the railroad law (chapter 754 of the Laws of 1897) is applicable to the bridge over the defendant's tracks at Vark street, in the city of Yonkers, and is controlling upon the duties and obligations of the respective parties hereto in regard to that bridge. It appears that in the year 1850 the defendant acquired its roadway and constructed its railroad along and near the easterly bank of the Hudson river, and through the territory which was thereafter embraced within the corporate limits of the village of Yonkers, and is now embraced within the limits of the city of Yonkers; that the defendant now owns, maintains, and operates a steam surface railroad, with three tracks, through the city at the point where it is crossed by Vark street; that after the construction of the railroad, and in or about the year 1871, the then village regularly laid out and opened Vark street as a public highway of the width of 40 feet from Broadway westerly to a point west of the westerly line of the roadway, tracks, and property of the defendant; that the grade of the street so laid out and established at the easterly and westerly lines of the defendant's roadway was about 20 feet above the grade of the railroad; and, consequently, that the street could not be carried across or over the railroad except by the construction of a bridge above the track. Thereafter, and on or about the 21st of August, 1871, the village caused to be served upon the defendant a notice that Vark street had been laid out and opened by the trustees of the village, and requiring the defendant to take the street across its tracks as should be most convenient for public travel and in accordance with the grade line of the street, and to cause all necessary embankments and excavations and other work to be done on the road of the defendant for that purpose. This notice, it is assumed, was given pursuant to the provisions of chapter 62 of the Laws of 1853, entitled ‘An act to regulate the construction of roads and streets across railroad tracks.’ The defendant refused or omitted to comply with the requirements of the notice on the ground that by law no obligation was imposed upon it to take the highway across its tracks except at grade. In the year 1874 the plaintiff caused or permitted the street to be constructed across the defendant's railroad by a bridge having one clear span, and at a grade of about 20 feet above the grade of the railroad; and it appears that the bridge has since been maintained by the city, or by...
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