
    In re CROSS-TOWN ST. RY. CO. OF BUFFALO.
    (Supreme Court, General Term, Fifth Department.
    April 13, 1893.)
    Street Railroads—Application for Leave to Construct.
    ■, Laws 1892, c. 676, § 91, provides that street railroads shall not he constructed unless written consent of the owners of one half in value of the property bounded on, and also the consent of the local authorities .having control of, that portion of the street on which it is proposed to build, be first obtained. Laws 1890, c. 565, § 94, provides that if consent of the property owners-be not obtained, a railroad company may apply to the supreme court for appointment of commissioners to determine whether its road ought to be constructed, and on due notice the court shall appoint, etc. Held, that a company which has obtained consent of the authorities to construct its road for a certain distance along a street is not entitled to the appointment of commissioners to determine whether its road shall be constructed for a less distance along the street on a showing merely that it has been unable to obtain the consent of owners along that portion, and where nothing is said about failure to obtain the requisite consents for the entire distance, or about abandonment of its right on the other portion of the street, and where also the authorities have not given their consent to the change. In re People’s R. Co., 20 N. E. Rep. 367, 112 N. Y. 578, distinguished.
    Application by the Cross-Town Street-Railway Company of Buffalo, H. Y., for the appointment of three commissioners to determine whether its railroad should be built in certain portions of Prospect avenue in the city of Buffalo.
    Denied.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Box, Horton & Bushnell, for petitioner.
    Henry F. Allen, for certain property owners.
   MACOMBER, J.

The petitioner, the Cross-Town Street-Railway Company of Buffalo, was organized under chapter 252 of the Laws of 1884. Pursuant to chapter 642 of the Laws of 1886, as amended by chapter 564 of the Laws of 1889, this company obtained the right, by purchase at public sale, to operate its surface railroad through certain streets in the city of Buffalo, among which was Prospect avenue from Huron street to Pennsylvania street, a distance of 3,925 feet, being six blocks along Prospect avenue. The present application, however, is for the appointment of commissioners to determine whether the railroad should be laid and operated in that avenue from Huron street to Carolina street, a distance of only 1,175 feet, being two blocks along that avenue. In the month of January, 1892, this corporation applied to the general term, at Buffalo, for the appointment of commissioners to determine whether the railroad, in Prospect avenue, as originally projected, should be constructed. It was then alleged on the part of the petitioner that, after proper efforts made in that behalf, it had been unable to secure the requisite number of consents of the property owners to enable it to proceed with the work. That application was opposed, and by consent the hearing was adjourned until the June term, 1892, at which time the company abandoned its application so made in the preceding January. The limitation prescribed by the statute (chapter 281, Laws 1889, and section 94, c. 565, Laws 1890) for procuring the consent of property owners, or the appointment of commissioners by the general term of the supreme court, was two years from the time of obtaining the consent of the municipal authorities of the city of Buffalo for the construction of such railway. But by contract entered into with the city of Buffalo January 1, 1892, which was subsequently ratified and confirmed by the legislature, (chapter 151, Laws 1892,) the time in which to build the petitioner’s road in Prospect avenue was extended until the 6th day of February, 1896. The petition before us shows that diligent efforts have been made by this corporation to obtain the consents of the property owners along that portion of the proposed route in Prospect avenue lying between Huron street and Carolina street; but that such efforts have been unavailing, and that it has not and cannot procure the consents of a majority of one half of the value of the property owners whose property bounded the proposed route. Under this state of facts it is contended by the learned counsel for the petitioner that this court has no discretion in the premises, but, upon being satisfied that the company after diligent effort has been unable to- procure the' requisite number of consents, is required to appoint three commissioners, who shall inquire into the matter, and report upon the same. The language of the statute is:

“It the consent of the property owners required by any provision of this article cannot be obtained, the corporation failing to obtain such consent may apply to any general term of the supreme court held in the department in which it is proposed, to construct its road for the appointment of three commissioners to determine whether such railroad ought to be constructed and operated.”

Then follow provisions for giving notice to property owners. The section continues:

“Upon due proof of service of such notice the court to which the application is made shall appoint three disinterested persons, who shall act as commissiumers, and who shall, within ten days after their appointment, cause public notice to be given of their first meeting in the manner directed by the court, and may adjourn, from time to time, until all their business is completed. * * * After a public hearing of all parties interested, the commissioners shall determine whether such railroad ought to be constructed and operated, and shall make a report thereon, together with the evidence taken, to the general term, within sixty days after appointment, unless the court, or a judge thereof, for good cause shown, shall extend such time; and their determination that such road ought to be constructed and operated shall be taken in lieu of the consent of the properly owners hereinbefore required.” Section 94, c. 565, Laws 1890.

In fortification of this position of counsel reference is made to In re Thirty-Fourth St. R. Co., 102 N. Y. 343, 7 N. E. Rep. 172; In re Broadway Surface R. Co., 34 Hun, 414. But it seems to us, that the petitioner’s application ought not to be granted, for" the reason that it has failed to show, for the purposes of this motion, -that it has made an effort to and has failed to obtain the requisite consents of the property owners along Prospect avenue from Huron street to Pennsylvania street. For aught that appears, it has the requisite number of consents for the construction of the road for its entire distance on this avenue. The consent of the city authorities of Buffalo has not been procured, to any change of the petitioner’s route. We cannot safely assume that such authorities would have given the consent to construct a surface railroad on this avenue only between Huron street and Carolina street. Furthermore, there is nothing in the papers to show that the company has abandoned any part of its right along Prospect avenue, but that, for aught that appears, at the next term of court it may apply for the appointment of commissioners to determine whether a road shall be constructed for two certain other blocks on this route, and so on until the entire distance is covered through the determination of the commissioners. The statute evidently did not contemplate a dividing up of a street in this manner. The case of In re People’s R. Co., 112 N. Y. 578, 20 N. E. Rep. 367, is not in any respect an authority for the contention here made in behalf of the petitioner, for that case merely holds that a surface railroad company, which has had the consent of the city authorities to buüd its railway through several streets of a city, is not obliged in its application to the court to ask for the appointment of commissioners for the building of a railway throughout all of such streets. Counsel lays stress upon the expression in section 91 of chapter 676 of the Laws of 1892, which is as follows:

“Snell railroads shall not be built, extended, or operated unless the consent in writing, acknowledged as are deeds entitled to be recorded, of the owners of one half in value of the property bounded on, and also the consent of the local authorities having the control of, that portion of a street or highway upon which it is proposed to build or operate such railroad shall have been first obtained.”

The expression, “and also the consent of the local authorities having control of that portion of the street or highway upon which it is proposed to build or operate such railroad,” does not, as it seems quite clear to us, afford any warrant of authority to a surface railroad company thus to divide up its line or route which has been projected through the whole or part of a particular street, and which project has received the consent of the municipal authorities. It follows that the application should be denied. Petitioner’s application for the appointment of three commissioners denied. All concur.  