was constructed long prior to the enactment of any general law on the subject of grade crossings. Except where special charters were granted, railroads were built under the provisions of the General Act of 1850, substantially reproduced in the present Railroad Law. That statute authorized a railroad company formed under it to construct its road across, along or upon any highway-upon city streets with consent of the municipality and upon other highways (after the amendment of the year 1864), upon obtaining an order to that effect from the Supreme Court of the district in which the highway was situated. But the company was required to restore the highway to its former state or to such state as not to have unnecessarily impaired its usefulness." (Railroad Law, sec. 4, subdiv. 4, and sec. 11.) The Grade Crossing Act provides for three separate cases in which action is to be had by the board of railroad commissioners: First, section 60 deals with the case of a new steam railroad crossing existing highways. The manner of such crossing must be determined by that board. Second, section 61 deals with the case of a new street or highway being laid out across an existing steam railroad. Then also the manner of crossing must be determined by the railroad commissioners. Prior to the statute under disussion, by the provisions of chapter 62 of the Laws of 1853, a railroad company was required to carry across its road and at its own expense any new street or highway that a municipality might lay out. (Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345.) It is the statute of 1853 that this court held through PARKER, Ch. J., in People ex rel. City of Niagara Falls v. N. Y. C. & E. R. R. R. Co. (supra), to have been repealed by section 61 of the Grade Crossing Act, but there is no warrant in the opinion there rendered for the proposition that the section affects any but new highways. Third, section 62 deals with the case of existing grade crossings and is the only section relating to that subject. But it deals with such crossings only to a limited extent. It provides that the municipal authorities or the railroad company may petition the board of railroad commissioners for the closing or discontinuance of a grade crossing, "alleging that public safety requires an alteration in the manner of such crossing," in which event the expense of the change is to be apportioned. On no other ground is the board given jurisdiction to order a change in the crossing. By section 13 of the Railroad Law a railroad corporation may change the grade of any part of its road as it may deem necessary to avoid accidents and to facilitate the use of the road. If the exercise of this power affects a highway crossing the case does not fall within section 62 of the Grade Crossing Law, but the obligation resting on the corporation is that prescribed by the old law, i. e., to restore the highway as far as practicable and of such restoration the corporation must bear the expense. This duty can be enforced by mandamus and the town is a proper relator. (People ex rel. Green v. Dutchess & Columbia R. R. Co., 58 N. Y. 152.) It is true that as the statute directs the highway to be carried over or under the track "as may be found most expedient," the election is with the company. (People v. N. Y. C. & H. R. R. R. Co., 74 N. Y. 302.) But the exercise of such election is qualified by the obligation to restore the highway to its former state or to such a state as not to have unnecessarily impaired its usefulness. Chief Judge CHURCH in the last case cited said that if a case were presented where it was impracticable to restore a highway to any reasonable state of usefulness by a particular inode of crossing, that mode would not perhaps be permitted. Though undoubtedly a large measure of discretion rests with the railroad company, still if it be made to appear that the restoration of the highway in one manner seriously affects its use, though it still remain practicable to use it, while by restoration in another manner the use would be wholly unimpaired, we do not see how the company in adopting the first method can be said to have restored the highway to such a state as not to have unnecessarily impaired its use.

In the present case the learned trial judge has found that he "was not convinced that the highway could be restored to a reasonable state of usefulness only by the construction of another crossing." We regard the term "reasonable state" as equivalent to "a state as not to have unnecessarily impaired its usefulness." Though the affirmance by the Appellate Division was not unanimous, the finding is conclusive on this court unless it is entirely devoid of support in the evidence. While the evidence would have amply justified a finding that the restoration of the highway could only be properly affected by an undercrossing, there was testimony given by an expert that a safe and proper crossing could be made on grade. The finding of fact is, therefore, controlling and the order appealed from must be affirmed, with costs.

PARKER, Ch. J., BARTLETT, MARTIN, VANN and WERNER, JJ., concur; GRAY, J., absent. Order affirmed.

II.

APPELLATE DIVISION, SUPREME COURT.

THE VILLAGE OF BOLIVAR, Appellant, v. THE PITTSBURG, SHAWMUT AND NORTHERN RAILROAD COMPANY, RESPONDENT, and THE LATHROP, SHEA AND HENWOOD COMPANY, DEFENDANT.

88 App. Div. 387; See 179 N. Y.

APPEAL by the plaintiff, The Village of Bolivar, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Allegany on the 4th day of May, 1903, vacating an injunction theretofore granted in the action by the county judge of Allegany county,

WILLIAMS, J.:

The order appealed from should be reversed, and the motion to vacate injunction be denied.

The question involved is the right of the defendants to build their railroad across Main street in the village of Bolivar, Allegany county, at grade.

The action was brought to restrain such construction because the defendants had not obtained a determination by the Board of Railroad Commissioners that it was impracticable to build over or under the highway.

The Allegany Central Railroad Company was incorporated in 1881, and during that and the subsequent year constructed a narrow gauge railroad between Olean and Angelica through the village of Bolivar That road did not cross Main street in the village of Bolivar at all. It was operated for some years after it was built on the original route between Olean and Angelica, but about fifteen years ago the portion of the road between Bolivar and Angelica was torn up, the rails thereof removed and the road was abandoned and has never since been operated. The title of the Allegany Central Railroad Company to this road by various consolidations and mergers finally became vested in the defendant railroad company upon its organization in August, 1899. In June, 1902, the defendant railroad company took proceedings under chapter 267 of the Laws of 1891 to change the gauge of the railroad, and such change was made. It also took proceedings under section 13 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1897, chap, 235) for the change of its route, and such change was made, the new route through the village of Bolivar crossing Main street at the place in question. A map, survey and profile of the proposed change with the proper certificate was filed in Allegany county clerk's office June 2, 1902, and the alteration within the village of Bolivar was approved by a vote of two-thirds of the trustees of the village June 18, 1902. The defendant railroad company applied at a Special Term of the Supreme Court November 7, 1902, for an order permitting the railroad company to construct its road upon the altered route across the streets and highways of the village of Bolivar, including Main street. The village was heard upon that application and the order applied for was made. The railroad company communicated with the Railroad Commissioners with reference to this crossing on Main street and the board replied that they did not feel called upon to act with reference thereto. The railroad company was preparing to complete the crossing by its road at Main street at grade when, April 17, 1903, this action was commenced and the injunction in question was issued and served. The order appealed from vacated that injunction.

The plaintiff claims that the piece of railroad in question is within the provisions of section 60 of the Railroad Law (Laws of 1890, chap. 565), added by chapter 754 of the Laws of 1897, which reads as follows: "§ 60. All steam surface railroads hereafter built, except additional switches and sidings, must be so constructed as to avoid all public crossings at grade whenever practicable so to do. Whenever application is made to the Board of Railroad Commissioners under section fifty-nine of the Railroad Law, there shall be filed with said board a map showing the streets, avenues and highways proposed to be crossed by the new construction, and the said board shall determine whether such crossings shall be under or over the proposed railroad, except where said board shall determine such method of crossing to be impracticable. Whenever an application is made under this section to determine the manner of crossing, the said board shall designate a time and place when and where a hearing will be given to such railroad company, and shall notify the municipal corporation having jurisdiction over such streets, avenues or highways proposed to be crossed by the new railroad. The said board shall also give public notice of such hearing in at least two newspapers published in the locality affected by the application, and all persons owning land in the vicinity of the proposed crossings shall have the right to be heard. The decision of the said board rendered in any proceedings under this section shall be communicated, within twenty days after final hearing, to all parties to whom notice of the hearing in said proceedings was given, or who appeared at said hearing by counsel or in person."

The defendants claim this piece of railroad is not within the provisions of this section; that the section only applies to railroads thereafter built by railroad corporations thereafter formed. The reason urged for this construction is the assumption that the Railroad Commissioners can only be called upon to act as to the manner of crossing where an application is made under section 59 of the Railroad Law (as amd. by Laws of 1895, chap. 545)), and that can only be done as to corporations thereafter formed. This assumption is not authorized by the language of section 60. It is based upon the language of the second sentence of the section, which does refer to section 59, and which is not applicable to this piece of railroad, because no application here could be made under section 59. The third sentence of section 60 is, however, applicable to this piece of road. It is as follows: "Whenever an application is made under this section, to determine the manner of crossing, the said board shall designate a time and place," etc.

The application under section 59 is for a certificate permitting the corporation to exercise its powers and to build its road. It in no way relates to the manner of crossing highways, and then the second sentence of section 60 provides that when the application for the certificate under section 59 is made, the board shall also determine the manner of crossing highways by such new road to be constructed. The third sentence provides for cases where the application is made, not for the certificate under section 59, but directly under section 60 for the determination of the manner of crossing highways. These two applications are distinct and separate, but the procedure under both sections, as to the determination of the manner of crossings, after the making of the applications themselves, is to be the same, and is provided for in the latter portion of section 60. This we believe to be the proper construction of these sections. While there is no express provision in either section 59 or 60, that an application shall be made to the Board of Railroad Commissioners to determine the manner of crossings, yet section 60 assumes that an application shall be made and that the board shall thereupon determine the question.

It is not claimed that the piece of railroad in question is either an additional switch or siding of the railroad, and, therefore, excepted under the provision of section 60. It is, therefore, within the prohibition against constructing the same at grade, until an application is made to the Board of Railroad Commissioners, and they determine that a crossing over or under the highway is impracticable.

It being settled that the piece of railroad is within the provision of section 60 of the Railroad Law, the defendant railroad company had no right to construct its road across Main street at grade until the Board of Railroad Commissioners had determined as to the manner of crossing, and that a crossing above or below the street was impracticable. This statute was enacted for the benefit of the public at large, and neither the village trustees nor the court could directly or indirectly determine the question, or consent to or order a grade crossing. Nor could the village be estopped by any action of its board of trustees from objecting to the building of the road otherwise than is provided by the statute. The approval by the village trustees of the change of route of the railroad was made in compliance with section 13 of the Railroad Law as to such change of route, and the order of the court was also made in compliance with section 11 of said statute, but neither such approval nor order had any reference to the manner of crossing the street in question. The provisions of the statute under which such approval and order were made in no way related to the manner of crossing the streets of the village. The sole power to determine that question rested with the Board of Railroad Commissioners under this section 60 of the Railroad Law.

It is suggested that the village had an adequate remedy under section 62 of the Railroad Law (added by Laws of 1897, chap. 754, and amd. by Laws of 1899, chap. 359), after the road was built across the street, by application to the Board of Railroad Commissioners to change the crossing to one over or under the street. This is hardly true. In case of such subsequent application the expense of the change would fall, one-quarter upon the village and one-quarter upon the State, and only one-half upon the railroad company, while if the manner of crossing is determined before the road is built, the whole expense falls upon the railroad company. (Railroad Law, § 65, added by Laws of 1897, chap. 754.)

We think there was no adequate remedy to protect the village and the public, except the injunction granted by the county judge.

We conclude that the order appealed from should be reversed, with ten dollars costs and disbursements, and he motion to vacate injunction be denied, with ten dollars

costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate injunction denied, with ten dollars costs.

III.

COURT OF APPEALS.

THE VILLAGE OF BOLIVAR, Respondent, v. THE PITTSBURGH, SHAWMUT AND NORTHERN RAILROAD COMPANY, Appellant, Impleaded with Another.

179 N. Y.

Village of Bolivar v. P., S. & N. R. R. Co., 88 App. Div. 387, affirmed.

APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 2, 1903, which reversed an order of Special Term vacating a temporary injunction to restrain the defendants from building a certain railroad crossing at grade.

The following question was certified: Did the defendant, The Pittsburg, Shawmut and Northern Railroad Company, have the right to construct its railroad across Main street, in the Village of Bolivar without first obtaining a determination under section sixty of the Railroad Law by the State Board of Railroad Commissioners as to the manner of such such crossing?"

Order affirmed, with costs, and question certified answered in the negative, on opinion below. Not voting:

Concur O'BRIEN, BARTLETT, MARTIN, VANN, CULLEN and WERNER, JJ. PARKER, Ch. J.

IV.

APPELLATE DIVISION, SUPREME COURT.

IN THE MATTER OF THE PETITION OF THE MAYOR, ETC., OF THE CITY OF SCHENECTADY, UNDER SECTION 62 OF THE RAILROAD Law, ETC., AS TO CHANG ING CERTAIN GRADE CROSSINGS OF THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD AND THE RAILROAD OPERATED BY THE DELAWARE AND HUDSON COMPANY IN THAT CITY FROM GRADE TO UNDERCROSSINGS.

(90 App. Div., 617.)

Determination of the Board of Railroad Commissioners unanimously confirmed with $50 costs and disbursements. No opinion.

(This matter has not been appealed to the Court of Appeals. See p. 164, 1st vol. report of this Board for 1902.)

Highway Crossing Signs on Railroads.

Applications under section 33 of the Railroad Law, as amended by Chapter 301 Laws of 1901.

I.

IN THE MATTER OF THE APPLICATION OF NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, UNDER SECTION 33 OF THE RAILROAD LAW, AS TO

HIGHWAY CROSSING SIGN BOARDS.

Determination. May 10, 1904.

This application, by the New York Central and Hudson River Railroad Company, under section 33 of the Railroad Law, as to highway crossing signboards, was filed with this Board on March 10, 1904. It asks the Board to approve the shape and design of a highway crossing signboard used and to be used by it at highway grade crossings of the railroads embraced in its system, and the location and elevation of such signboards and the words of warning thereon. Attached to the application is a blue print plan of the signboard approval of which is asked. The application further asks the Board that the use of highway crossing signboards may be dispensed with at certain crossings, this Board having authority under the section to dispense with the use of such signboards at such crossings in cities and villages. A public hearing on the application was given in the city of New York on May 10, 1904. George H. Walker appeared for the applicant. After hearing arguments the hearing was closed.

The Board believes that the form of crossing sign shown by the blue print attached to the application is a proper one to be maintained at the crossings in question.

This Board, therefore, hereby approves, under section 33 of the Railroad Law, the shape and design of a highway crossing signboard shown by blue print thereof attached to the application in this case on file in this office, placed or maintained or to be placed and maintained by the New York Central and Hudson River Railroad Company at highway grade crossings of the railroads in its system. This Board also, under section 33 of the Railroad Law, hereby prescribes that said signboards shall be severally located at said crossings so as to be readily seen by persons on the highway approaching the crossing and that the elevation of such signboard and the words of warning thereon shall be as shown by said blue print plan of such signboard attached to the application in this case on file in this office.

This Board does not now pass upon the request that it dispense with the use of such signboards at certain of these crossings, but a supplemental determination on this subject will be made in the future.

Supplemental Determination. November 2, 1904.

Under date of May 10, 1904, this Board determined, under section 33 of the Railroad Law, certain matters in relation to highway crossing signboards on the railroads embraced in the New York Central and Hudson River Railroad Company's system in this State. In said determination the Board did not pass upon the request of the company that the Board dispense with the use of such signboards at certain of the crossings in cities and villages. Subsequently an engineer employed by the Board reported as to certain of the crossings of the West Shore Railroad (leased to and operated by the New York Central and Hudson River Railroad Company), in the city of Utica

where no signboards are maintained, his last report being dated October 19, 1904, and referring to the following crossings in Utica of the West Shore Railroad where no signboards are maintained:

This Board sees no reason why highway crossing signboards should not be maintained at the crossings above named and it therefore refuses to dispense with the use of them at said crossings and hereby recommends that they be provided thereat at as early a date as practicable.

There will be a further supplemental determination or determinations as to other crossings in cities and villages included in the application and not yet passed upon by the Board. (Case No. 3107.)

The Company, in relation to this recommendation, informed this Board that "unless something unforeseen occurs these signs will all be in place by January 1st."

II.

IN THE MATTER OF THE APPLICATION OF THE CENTRAL NEW ENGLAND RAILWAY COMPANY, UNDER SECTION 33 OF THE RAILROAD LAW, AS TO HIGHWAY CROSS

ING SIGN BOARDS.

Determination. November 30, 1904.

This application, by the Central New England Railway Company, under section 33 of the Railroad Law, as to highway crossing sign boards, was filed with this Board on November 18, 1904. It asks the Board to approve the shape and design of a highway crossing sign board, used or to be used by the applicant at grade crossings of the applicant's railroad and streets, avenues and highways, and the location and elevation of such sign boards and the words of warning thereon. Attached to the application is a blue print plan of the sign board approval of which is asked, there to be two of these sign boards located at each crossing on diagonally opposite corners and to be lettered on both sides.

This Board believes that the form of crossing sign board shown by the blue print attached to the application is a proper one to be maintained at the crossings in question. This Board, therefore, hereby approves, under section 33 of the Railroad Law, the shape and design of a highway crossing sign board shown by blue print plan thereof attached to the application in this case on file in this office, placed and maintained or to be placed and maintained by the Central New England Railway Company at street, avenue and highway grade crossings of its railroad in this State. This Board also, under section 33 of the Railroad Law, hereby prescribes that said sign boards shall be severally located at said crossings so as to be readily seen by persons on the highway approaching the crossing and that the elevation of said sign boards and the words of warning thereon shall be as shown by said blue print plan of said sign board attached to the application in this case on file in this office and that there shall be two of these sign boards located at each crossing on diagonally opposite corners and to be lettered on both sides and said sign boards also to be so located at such crossings of said railway protected by gates or flagmen. (Case No. 3250.)