railroad, from near the old Sowle road crossing of the railroad and extending to a highway known as the State road. Neither the State nor the town of Hamburg shall bear any portion of the expense involved under this modified determination. (Grade Crossing Case No. 323.)

The crossing has been closed and discontinued.

LXIII.

IN THE MATTER OF THE APPLICATION, UNDER SECTION 68 OF THE RAILROAD LAW, OF THE NEW YORK AND LONG ISLAND TRACTION COMPANY (STREET SURFACE-ELECTRIC), AS TO CROSSING LONG ISLAND RAILROAD (ROCKAWAY BRANCH-STEAM), IN THE BOROUGH OF QUEENS, NEW YORK CITY, AND AS TO CROSSING THE RIGHT OF WAY OF THE JAMAICA AND SOUTH SHORE RAILWAY COMPANY IN THE BOROUGH OF QUEENS, NEW YORK CITY.

Determination. November 30, 1904.

This application, under section 68 of the Railroad Law, by the New York and Long Island Traction Company (street surface-electric), was filed with this Board on February 8, 1904. It asks this Board to determine:

1. Whether the double track electric railroad of the applicant shall cross the right of way of the Jamaica and South Shore Railway Company immediately north of the conduit of the Brooklyn city water works and about eight hundred feet west of the tracks of the Long Island Railroad, at Spring field, in the Borough of Queens, New York city, above, below or at the grade of said right of way. Two tracks have been constructed by the Jamaica and South Shore Railway Company on said right of way at the point of proposed crossing since the hearing on this application was closed.

2. Whether the double track electric railroad of the applicant shall cross the double track steam railroad of the Long Island Railroad Company (Rockaway branch), at the intersection of the Rockaway plank road and Ocean avenue in the Borough of Queens, New York city, above, below or at the grade of said steam railroad, the steam railroad also having a switch track at this point. Since this application was made the steam railroad has constructed two additional tracks at this point, so that there are now five tracks of the steam railroad there.

A public hearing in the matter was held by this Board in the city of New York on March 25, 1904. James A. MacElhinny appeared for the applicant; Joseph F. Keany appeared for the Long Island Railroad Company in opposition to a crossing of its railroad at grade, and for the Jamaica and South Shore Railway Company (which is a lessor of the Long Island Railroad Company), in regard to the crossing of which company's right of way it was stated by both sides that they would endeavor to reach an agreement and submit it to this Board. This agreement was not reached and Mr. Keany asked the Board for a further hearing in reference to the Jamaica and South Shore crossing, but was informed that the hearing was closed on March 25. The hearing was closed, but briefs were not submitted to this Board until October and November. Reports as to these crossings have been made by inspectors of the Board.

After consideration of the evidence, this Board, is of the opinion that it can properly determine that these crossings may be made at grade. At the time of the hearing no tracks were laid on the right of way of the Jamaica and South Shore Railway Company at the point of proposed crossing. The putting in of two switch tracks since that time does not seem to the Board to have materially changed the situation; with derailing switches in the electric railroad to be operated by conductors of cars a crossing at grade by the electric railroad at this point would seem to be sufficiently protected. The crossing of the steam railroad at the intersection of the Rockaway plank road and Ocean avenue is a much more important crossing. This Board believes, however, that the situation here as shown by the evidence is such that it is justified in determining that the crossing may be at grade, properly protected by signals and by derailing switches in the electric railroad.

This Board, therefore, hereby determines, under section 68 of the Railroad Law, that the double track railroad of the New York and Long Island Trac tion Company (street surface-electric), shall cross the tracks of the Jamaica and South Shore Railway Company (steam-leased to the Long Island Railroad Company), immediately north of the conduit of the Brooklyn city water works and about eight hundred feet west of the tracks of the Long Island Railroad, at Springfield, in the Borough of Queens, New York city, at the grade of said steam railroad tracks. This Board also hereby determines, under section 68 of the Railroad Law, that the double track rail road of the New York and Long Island Traction Company (street surfaceelectric), shall cross the tracks of the steam railroad of the Long Island Railroad Company (Rockaway branch), at the intersection of the Rockaway plank road and Ocean avenue in the Borough of Queens, New York city, at the grade of said steam railroad tracks. This Board also hereby determines, under section 68 of the Railroad Law, that at the crossing of the Jamaica and South Shore railway tracks derailing switches shall be constructed in the electric railway tracks on each side of said crossing, which derailing switches shall be operated by conductors of the electric cars approaching the crossing. This Board also hereby determines, under section 68 of the Railroad Law, that at the crossing of the Long Island Railroad tracks at the intersection of the Rockaway plank road and Ocean avenue derailing switches shall be constructed in the electric railroad on each side of said crossing connected with home and distant signals on the steam railroad and with home signals on the electric railroad, the signals and switches to be operated from a tower at the crossing and that plans for these switches and signals shall be submitted to this Board for approval before construction. This Board also hereby determines, under section 68 of the Railroad Law, that at both crossings named above V shaped copper troughs shall be constructed over the trolley wires of the electric railroad and connected therewith, the plans for which must be submitted to this Board for approval before construction. This Board also hereby determines, under section 68 of the Railroad Law, that the entire expense of the construction and maintenance of the necessary crossing frogs and copper troughs, derailing switches in the electric railroad, and signals on the electric railroad and steam railroad, and tower at these crossings shall be borne by the New York and Long Island Traction Company or its successors. This Board also hereby determines, under section 68 of the Railroad Law, that the New York and Long Island Traction Company or its successors shall pay the expense of and maintain any crossing frogs made necessary by the construction at grade in the future at the crossings named above of additional track or tracks by the Jamaica and South Shore Railway Company or its successors, or its lessee, the Long Island Railroad Company or its successors, and by the Long Island Railroad Company or its successors. This Board also hereby determines, under section 68 of the Railroad Law, that if additional track or tracks of the steam railroads are constructed at grade at either of said crossings in the future the V shaped copper troughs shall be extended on the trolley wires of the electric railroad to cover said track or tracks, and the derailing switches in the electric railway at the Jamaica and South Shore railway crossing and the derailing switches and signals on the electric railroad and the signals on the steam railroad at the Long Island Railroad crossing shall be added to or rearranged if necessary to protect said additional track or tracks of the steam railroad, at the expense of the New York and Long Island Traction Company or its successors. (Case No. 3087.)

At the time of writing this report work has not been commenced under this determination.

LXIV.

IN THE MATTER OF THE COMPLAINT OF WILLIAM D. GREENE, OF BERLIN, RENSSELAER COUNTY, AGAINST THE RUTLAND RAILROAD COMPANY, AS TO A

CROSSING.

December 5, 1904.

Reports in this matter will be found at page 180, first volume, report of this Board for 1902, and at page 194, first volume, report of this Board for 1903. The bridge in question has been constructed. (Case No. 2767.)

LXV.

IN THE MATTER OF THE COMPLAINT OF THE VILLAGE OF BOLIVAR AGAINST THE PITTSBURG, SHAWMUT AND NORTHERN RAILROAD COMPANY.

December 5, 1904.

At page 154, first volume, report of this Board for 1903, will be found a statement of this matter, which was in relation to whether section 60 of the Railroad Law applied to certain construction of its railroad across highways by the Pittsburg, Shawmut and Northern Railroad Company. Decisions of the courts on this point will be found under the next title in this volume. (Grade Crossing Case No. 403.)

LXVI.

IN THE MATTER OF THE APPLICATION OF THE BUFFALO, ROCHESTER AND PITTSBURG RAILWAY COMPANY, UNDER SECTION 60 of the RAILROAD LAW.

December 5, 1904.

Determinations in this matter will be found at page 175, first volume, report of this Board for 1903. The overcrossing in question has been constructed. (Grade Crossing Case No. 412.)

LXVII.

IN THE MATTER OF THE APPLICATION OF THE MINEOLA, HEMPSTEAD AND FREEPORT TRACTION COMPANY (NOW THE NEW YORK AND LONG ISLAND TRACTION COMPANY), UNDER SECTION 68 OF THE RAILROAD LAW, AS TO CROSSING THE LONG ISLAND RAILROAD.

December 5, 1904.

At pages 175-177, first volume, report of this Board for 1902, will be found determinations in this matter. See also page 198, first volume, report of this Board for 1903. A writ of certiorari which was served on the Board in this matter on the relation of the Long Island Railroad Company has not been argued. The crossings are constructed. (Case No. 2534.)

LXVIII.

IN THE MATTER OF THREE APPLICATIONS OF THE NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, UNDER SECTION 60 OF THE RAILROAD LAW, AS TO A SECOND TRACK ON ITS RAILWAY CROSSING STREETS, AVENUES AND HIGHWAYS.

December 5, 1904.

The determinations in these matters will be found at pages 201, 202 and 209, first volume, report of this Board for 1903. The construction of the second track at the crossings in question is progressing. (Grade Crossing Cases Nos. 446, 447 and 445.)

LXIX.

IN THE MATTER OF THE APPLICATION OF THE UTICA AND MOHAWK VALLEY RAILWAY COMPANY (STREET SURFACE-ELECTRIC), UNDER SECTION 68 OF THE RAILROAD LAW, AS TO THE CONSTRUCTION OF A SECOND TRACK OF ITS RAILWAY ACROSS THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD (STEAM), IN GENESEE STREET IN THE TOWN OF NEW HARTFORD, ONEIDA COUNTY.

December 5, 1904.

The determination in this matter will be found at page 206, first volume, report of this Board for 1903. At the time of writing this report the second track has not been constructed at this crossing.

Decisions of Courts as to Questions Arising Under

the Grade Crossing Law.

I.

COURT OF APPEALS

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE TOWN OF COLESVILLE, Appellant, v. THE DELAWARE AND HUDSON COMPANY, Respondent.

(177 N. Y., 337; 81 App. Div., 335, affirmed.)

APPEAL from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 22, 1903, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus requiring the defendant to rectore a certain highway where crossed by its railroad to its former state, or such state as not to unnecessarily impair Its usefulness.

The facts, so far as material, are stated in the opinion.

CULLEN, J. For more than twenty years prior to the year 1900 the respondent railroad company had operated a steam railroad through the town of Colesville, in Broome county, intersecting a certain highway in that town. As originally built, the railroad crosses the highway on grade, but the highway was raised some feet to bring it to the level of the railroad. In September, 1900, the respondent, for the purpose of improving its roadbed and for the better operation of its railroad, raised the grade of the railroad at the intersection of the highway, six and a half feet. Thereupon the relator brought an action in the Supreme Court to restrain the respondent from raising such grade unless it should construct an undercrossing for the highway. A temporary injunction was granted in the action. Then the respondent, under section 62 of the Railroad Law, applied to the board of railroad commissioners to change the highway crossing in question from a grade crossing to an undergrade crossing. Under the provisions of this section the cost of any change would be apportioned between the railroad company and the public, one-half of the expense falling on the railroad company, one-quarter on the state and one-quarter on the town. The relator resisted the application, contending that a change of the crossing under this section could be directed by the railroad commissioners and a share of the cost thereof imposed on the town only when public safety required the alteration, not when the alteration was made by the company for the improvement of its railroad. In this claim the commissioners seem to have acquiesced, for they denied the application. During the pendency of this proceeding the respondent, the defendant in the equity action (which still remains untried), was partially relieved from the effect of the injunction by a stipulation between the parties that any crossing which might be put in by the defendant, except an undergrade crossing, should be deemed temporary and should not affect the rights of either party. The intention of this stipulation was to permit the railroad company to construct, without violating the injunction, a crossing other than undergrade, provided that such crossing should be deemed only a temporary expedient. Acting on this, the respondent raised the bighway to the new grade of the railroad. Subsequently the relator applied for a writ of mandamus to compel the respondent to restore the highway to its former state or such state as not to have unnecessarily impaired its usefulness, by the construction of an undergrade crossing. An alternative writ was issued to which the respondent made return. Upon a tria! of the issues the court found that the respondent had unnecessarily impaired the usefulness of the highway by raising. the grade of the railroad, but it also found that it was not convinced that the highway could be restored to a reasonable state of usefulness only by the construction of an undercrossing. It ordered that a mandamus issue requiring the respondent "to restore the highway at the crossing to its former state or such state as not to have unnecessarily impaired its usefulness." The relator appealed from this final order because it did not require respondent to make an undergrade crossing. The order was affirmed by the Appellate Division and from the judgment of that court this appeal is taken.

While the disposition of this appeal is necessarily controlled by a finding of fact made by the trial court, the claims of the respective parties as to the scope and effect of chapter 754 of the Laws of 1897, amending the Railroad Law and commonly known as the Grade Crossing Act, are in such conflict and the learned courts below seem to have so misconstrued the opinion of this court in People ex rel. City of Niagara Falls v. N. Y. C. & H. R. R. R. Co. (158 N. Y. 410) that we feel required to state our judgment on those matters. The great extent of the railroads in this state