
    Thomas Swift, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    October 8, 1909.
    Railroad — negligence — failure to guard defect in street caused by municipality.
    Although a railroad is required by statute to keep in permanent repair the street between its tracks and rails and for a width two feet outside thereof, it cannot be charged with negligence in failing to maintain lights or barriers to guard a depression in the street adjoining its rails caused by an excavation made by the municipal authorities.. This, because the city has a paramount right to open and repair the street in its own way and the railroad has no right to supervise the work or interfere with it in any way.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of February, 1909, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 10th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      J. Arthur Hilton [John M. Wellbrock with him on the brief], for the respondent.
   Gaynor, J.:

The plaintiff was hurt on February 3rd in the early morning darkness by the wheel of his wagon going into a depression of the pavement in a street in Brooklyn within two feet of the outer rail of the defendant’s track, which was caused as follows: On January 16th the city excavated a trench in the street from the said rail to the curb to repair a water gate. It filled it up and relaid the pavement over it the same day. On January 30th it opened the trench again to do further repairs on the said water gate, and again filled it up and relaid the pavement, leaving it higher than the surrounding surface to allow for settling. The testimony is that the intention of the city’s employes was to return later, as the rule or practice was, to relay the pavement permanently after the settling had become complete. On the morning of the fourth day thereafter the accident happened from the settling of the pavement meanwhile.

The defendant was not liable. Section 98 of the Railroad Law, which requires street railroad companies to “ keep in permanent repair ” the street between their tracks and rails and a width of two feet outside thereof, does not apply to the case. The city’s right to open the street and fill in and repair the opening in its own way was paramount to the defendant in all respects. The defendant had no right to supervise the work, or do it or have it done according to its way or judgment, or to interfere with it at all. The case of McMahon v. Second Avenue R. R. Co. (75 N. Y. 231) is not applicable. There the railroad company had a contract with the city to pave the street and “ keep the same in repair ” within the prescribed spaces. It seems to have been held (so the opinion states, at all events) that this required the company to put up lights and barriers to protect those using the street from an excavation made by an abutting property owner in connecting his house with the street sewer, and that the fact that he had to get a permit from the city to open the street did not make a difference. The permit was merely for purposes of regulation. The difference between that case and this is that there the city did not make the excavation, while here the city did. The defendant here was under no obligation by the said statute to put up lights or barriers to a work that was in the exclusive control and possession of the city under its paramount authority over the streets. It would be going too far to so construe the said statute. The case of a private individual tearing up the street is not paramount to the duty of a street railroad company to keep the street in safe condition) but incident and subordinate to it. Even if a wrongdoer, the company would have to repair any dangerous condition created by him. But the company has no such duty in respect of conditions created ■ by the city in doing work in a street under its paramount authority, or to oversee the progress or method of the work of the city being done under such authority.

The judgment should be reversed.

Hirsohberg, P. J., Jenks, Burr and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  