People ex rel. City of Buffalo v. New York Cent. & H.R.R. Co.

• Decision Date: 04 October 1898
• Parties: PEOPLE ex rel. CITY OF BUFFALO v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 570

51 N.E. 312

PEOPLE ex rel. CITY OF BUFFALO

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

Oct. 4, 1898.

Appeal from supreme court, appellate division, Fourth department.

Mandamus by the people, on the relation of the city of Buffalo, against the New York Central & Hudson River Railroad Company, to require defendant to cause Ideal street, in the city of Buffalo, to be taken across certain of its tracks. An order awarding a peremptory writ was affirmed by the appellate division (50 N. Y. Supp. 1132), and defendant appeals. Reversed.

Daniel H. McMillan, for appellant.

W. H. Cuddeback, for respondent.

BARTLETT, J.

The city of Buffalo, proceeding under chapter 62 of the Laws of 1853, entitled ‘An act to regulate the construction of roads and streets across railroad tracks,’ procured an order for a writ of peremptory mandamus from the special term, directing the defendant company to cause Ideal street, in that city, to be taken across its tracks, so as to be convenient for public travel, and cause all necessary embankments, excavations, and other work to be done on its road for that purpose. The appellate division unanimously affirmed this order, and an appeal was taken to this court.

The defendant railroad company interposes a preliminary objection to the hearing of the appeal upon the merits, which will be first considered. It is insisted that chapter 62 of the Laws of 1853, under which this proceeding was instituted, was repealed by implication by chapter 754 of the Laws of 1897, entitled ‘An act to amend railroad law, and the act amendatory thereof, relative to grade crossings,’ as the latter act contains no saving clause. The act of 1897 was passed May 22, 1897, and went into effect July 1st of that year. This proceeding was argued at special term after the law of 1897 was passed, but was not decided until September 22, 1897, two months after it went into effect.

It is argued on behalf of the city of Buffalo that the provisions of the statutory construction act (chapter 677 of the Laws of 1892) prevent the repeal of the act of 1853, and that the court below had jurisdiction to issue the writ under review. We are of opinion that this position is well taken. The statutory construction act is entitled ‘An act relating to the construction of statutes constituting chapter one of the general laws.’ Section 1 reads: ‘This chapter shall be known as the statutory construction law, and is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.’ We thus have in this chapter general rules laid down by the legislature for the construction of every statute, subject to certain clearly-defined exceptions. Turning to section 31 of the act, we find therein, among other things, this provision: ‘The repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected; and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed.’ These provisions are general in character, and apply to all future legislation. The contention that they apply only to the acts reported by the statutory revision commission cannot be maintained, as the legislative intention to the contrary is clear. There is nothing in People v. Campbell, 152 N. Y. 51, 46 N. E. 176, that restricts in any way the general application of the statutory construction act. In that case we were considering certain work of the statutory revision commission, and the effect of the statutory construction act thereon, and what was there written was limited to the facts presented. It follows that the act of 1853 was not repealed by the act of 1897, so far as this proceeding is concerned, and the merits of the controversy are open to review on this appeal.

It is necessary to clearly apprehend the undisputed facts presented by the record. The relator proceeded to argument upon its petition and the opposing affidavits of defendant, and demanded that a peremptory writ of mandamus issue. The right to the writ under these circumstances must be determined upon the assumption that the averments in the opposing affidavits are true. The proceeding in this form is in the nature of a demurrer to the facts set up by the defendant. People v. Board of Apportionment, 64 N. Y. 627;People v. Brush, 146 N. Y. 60, 40 N. E. 502;Haebler v. Produce Exchange, 149 N. Y. 414, 44 N. E. 87;People v. City of Brooklyn, 149 N. Y. 215, 43 N. E. 554.

The defendant's contention is that the undisputed facts show that its property across which it is proposed to carry Ideal street is held and used for storage, yard, and depot purposes, and, being thus held and used, it cannot be taken under this proceeding. The opposing papers of the defendant disclose the following facts: In the handling and care of the freight traffic of the defendant, the New York Central & Hudson River Railroad Company, it maintains a freight yard lying northerly of Broadway, and extending easterly into the township of Cheektowaga, containing about 250 acres, and also a freight yard westerly of Bailey avenue, northerly of William street, and southerly of Curtis and Amity streets, containing about 200 acres. In these yards nearly all of the freight business in the city of Buffalo of the Central Hudson and West Shore Railroad Companies is transacted. The yards are continuous from William street easterly to the city line, and embrace the property sought to be crossed by Ideal street. All of this property from William street east to the city line, except the four main tracks of the defendant, is used exclusively for freight yard terminals and depot purposes. At the point where it is proposed to carry Ideal street across there are eight tracks extending from one yard to the other, a distance of about 2,400 feet. The four northerly tracks are used exclusively, in connection with the two yards and as to a portion thereof, for the storing of cars, for the making up of trains, and for the transfer of trains from one yard to the other, and from the West Shore to the Central and from the Central to the West Shore. The four northerly tracks are continually in use night and day during the busy seasons of shipment for the storing, handling, switching, transferring, and assorting the freight of the two yards, and these tracks constitute the throat of the two yards, connecting the one with the other, and are simply a narrowing up of the two yards, and a part thereof....