McAneny v. New York Cent. R. Co.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: POUND
• Citation: McAneny v. New York Cent. R. Co., 238 N.Y. 122 (N.Y. 1924)
• Decision Date: 13 May 1924
• Parties: GEORGE MCANENY et al., Constituting the Transit Commission of the State of New York, Respondents, v. NEW YORK CENTRAL RAILROAD COMPANY et al., Appellants.

238 N.Y. 122

144 N.E. 362

McANENY et al., Transit Commission,

v.NEW YORK CENT. R. CO. et al.

Court of Appeals of New York.

May 13, 1924.

Mandamus by George McAneny and others, constituting the Transit Commission of the state of New York, against the New York Central Railroad Company and others. From order of the Appellate Division (206 App. Div. 751,200 N. Y. Supp. 932), affirming an order of Special Term, which granted motion for peremptory mandamus, requiring defendants to construct a bridge across the Bronx Valley, and over their tracks at 238th street, defendants appeal.

Reversed, and motion denied.Appeal from Supreme Court, Appellate Division, First Department.

Isaac N. Mills, of Mt. Vernon, and Alexander S. Lyman, and William L. Barnett, both of New York City, for appellants.

Carleton S. Cooke and William G. Fullen, both of New York City, for respondents.

George P. Nicholson, Corp. Counsel, of New York City (Vincent Victory, of New York City, of counsel), for City of New York, amicus curiae.

POUND, J.

The question is as to the proper interpretation of the provisions of the Railroad Law relative to the construction of overhead street crossings ordered by the transit commission of New York.

Railroad Law (Consol. Laws, c. 49), § 90, provides:

‘Section 90. New Streets Across Railroads. [1] When a new street * * * or new portion or additional width of a street * * * shall hereafter be constructed across a steam surface railroad * * * such street * * * shall pass over or under such railroad or at grade, as the Public Service Commission shall direct. * * * [2] The Public Service Commission shall determine whether such street * * * shall be constructed over or under such railroad or at grade. * * * [3] If the Public Service Commission shall determine that such street * * * shall be carried across such railroad above the grade thereof, then said Public Service Commission shall determine the height, the length and the material of the bridge or structure by means of which such street * * * shall be carried across such railroad, and the length, character and grades of the approaches thereto. * * * The decision of the Public Service Commission as to the manner and method of carrying such new street * * * across such railroad shall be final, subject however to the right of appeal hereinafter given.’

‘Section 94. Performance of work; Division of Expense; Accounting; Claims for Damage; Valuation. * * *

‘2. Whenever under the provisions of section ninety of this chapter a new street, avenue, highway or road or new portion or additional width of a street, avenue, highway or road is constructed across an existing railroad, the railroad corporation shall pay one-half and the municipal corporation having jurisdiction over such street, avenue, highway, or road or new portion or additional width of a street, avenue, highway or road shall pay the remaining one-half of the expense of making such crossing above or below the grade of the railroad. * * *

‘6. In carrying out the provisions of section * * * ninety * * * of this chapter. * * * [4] the work shall be done by the railroad corporation or corporations affected thereby, subject to the supervision and approval of the Public Service Commission. * * * Plans and specifications of all changes proposed under section ninety * * * and an estimate of the expense thereof shall be submitted to the Public Service Commission for its approval before the letting of any contract. In case the work is done by contract the proposals of contractors shall be submitted to the Public Service Commission. * * *’

‘Section 96. Proceedings to Enforce Orders of Commission. [5] It shall be the duty of the corporation, municipality or person or persons to whom the decisions or orders of the Public Service Commission are directed as provided in sections * * * ninety * * * to comply with such decisions and orders, and in case of their failure so to do the Commission shall thereupon take proceedings to compel obedience to the decisions and orders of the Commission. [6] The Supreme Court at a special term shall have the power in all cases of such decisions and orders by the Public Service Commission to compel compliance therewith by mandamus, or under the provisions of the Public Service Commissions Law, subject to appeal to the Appellate Division of the Supreme Court and the Court of Appeals in the same manner and with like effect as is provided in case of appeals from an order of the Supreme Court.’

Public Service Commission Law (chapter 48 of the Consolidated Laws, as amended):

‘Section 57. Summary Proceedings. Whenever either Commission shall be of opinion that a * * * railroad corporation * * * subject to its supervision is failing or omitting * * * to do anything required of it by law or by order of the Commission * * * it shall direct counsel to the Commission to commence an action or proceeding in the Supreme Court of the state of New York in the name of the Commission for the purpose of having such violations or threatened violations stopped and prevented either by mandamus or injunction. * * * In case of default in answer or after answer, the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct without other or formal pleadings, and without respect to any technical requirement. * * * The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that a writ of mandamus or injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford appropriate relief.’

The tracks of the railroad companies leave the Grand Central Station in New York City, cross the Harlem River, and run in a generally northerly direction through the valley of the Bronx river. East 238thstreet in the borough of the Bronx runs east and west. Between Bullard avenue and Webster avenue, which run north and south, lies the valley of the Bronx.

Under the provisions of section 90 of the Railroad Law it had been determined before the order now before us for review was made, first, that a new portion of East 238th street was to be laid out across the railroad tracks of appellants, connecting Bullard avenue and Webster avenue; and, secondly that such street was to be constructed over such railroads. The order directing that the street shall be constructed over the railroads has been reviewed by the courts and affirmed. Matter of City of New York, East 238th Street, 184 App. Div. 896,170 N. Y. Supp. 1077;Id., 224 N. Y. 708, 121 N. E. 865.

The respondents now seek by peremptory mandamus under section 96 of the Railroad Law, and section 57 of the Public Service Commission Law to compel appellants to obey a subsequent order of the commission to construct at their expense an overhead bridge for general traffic to cross the tracks of appellants, such bridge to be about 800 feet long, not less than 80 feet in width, and from 35 to 60 feet above defendants' tracks, to be constructed with its approaches in accordance with certain plans and profiles.

Appellants object to such order for the reason that it compels them to construct a bridge, not only across their tracks, but also across the...