In re Grade Crossings in City of Buffalo

• Decision Date: 11 July 1929
• Parties: In re GRADE CROSSINGS IN CITY OF BUFFALO. Appeal of CITY OF BUFFALO.
• Court: New York Court of Appeals Court of Appeals

251 N.Y. 331

167 N.E. 460

In re GRADE CROSSINGS IN CITY OF BUFFALO.

Appeal of CITY OF BUFFALO.

Court of Appeals of New York.

July 11, 1929.

In the matter of lists of highway-railroad crossings at grade, located wholly or partly in the City of Buffalo, the elimination of which is suggested for consideration in the year 1929, filed with the Public Service Commission by the Grade Crossing and Terminal Station Commission of the City of Buffalo, the City of Buffalo, and Erie County. From an order (226 App. Div, 287,234 N. Y. S. 480) affirming a determination of the Public Service Commission designating certain grade crossings in the City of Buffalo for elimination, the City of Buffalo appeals by permission of the Appellate Division.

Order of the Appellate Division reversed in part, and proceedings remitted to the Public Service Commission for further consideration.

Appeal from Supreme Court, Appellate Division, Fourth department.

Gregory U. Harmon, Corporation Counsel, of Buffalo (Andrew P. Ronan, Assistant Corporation Counsel, of Buffalo, of counsel), for appellant.

Charles G. Blakeslee and Russell B. Burnside, both of Albany, for respondent Public Service Commission.

CRANE, J.

The council of the city of Buffalo, by resolution adopted November 16, 1921, extended and laid out Starin avenue as a public street 100 feet wide, across the tracks and rights of way of the Erie Railroad Company and the New York, Lackawanna & Western Railway Company; and on April 14, 1923, applied by petition to the Public Service Commission for a determination as to whether such extended avenue should pass over or under the tracks of said railroad. After a public hearing, an order was made August 2, 1923, directing that Starin avenue should cross under the track of the railroad companies in subways not less than 80 feet wide between abutments, with a clear roadway 50 feet wide, and two sidewalks each 15 feet wide. The order, however, as to the Erie Railroad Company was apparently held in abeyance by the following provisions therein:

‘That the Railroad Co. be and hereby is permitted to defer the raising of its tracks and the construction of the undergrade crossing and approaches herein above authorized and directed, and to construct a temporary crossing at the present grade of its tracks upon the following conditions:

‘That the temporary crossing shall be constructed in accordance with the following general requirements: the crossing shall be 30 feet wide and shall be planked or surfaced full width with equally suitable material; the roadway on the approaches shall be surfaced with gravel to a width of 30 feet; the grade on the north approach shall descend from the tracks at the rate of about 4.15 per cent and that on the south approach shall descend at the rate of about 4 per cent; substantial wooden guard railing shall be provided on both sides of the roadway where the height of embankment exceeds 3 feet; a plank sidewalk 4 feet wide shall be provided on each side of the street between the limits of the temporary roadway.’

Other conditions as to warning signs and protection were provided.

In accordance with this order, Starin avenue was extended across the tracks of the Erie Railroad Company at grade; it is now, and ever has been, a grade crossing. No order or official designation can make it anything else. Whatever name we give it, the fact is that the public, in crossing the Erie's tracks, go over them on a grade with the tracks, neither above nor under them.

It was with such crossings in mind, causing and creating danger to the people of this state, that an amendment to the State Constitution was adopted at the general election held November 8, 1927, which amendment became article 7, § 14, of the Constitution. This permitted the Legislature to authorize by law the creation of a state debt not exceeding in the aggregate $300,000,000, to provide moneys for the elimination, under state supervision, of railroad crossings at grade within the state, at the expense of the state, railroad companies, counties, and cities. Fifty per cent. of the expense shall be borne by the railroad company, the remaining 50 per cent. shall be borne by the state and the county in which the crossing is located, or by the state and...