
    In the Matter of the Application of The Cross-Town Street Railway Co. of Buffalo.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Railroad—Street—Appointment of commissioners.
    A surface railroad has no right to divide up its line > or route which has been projected through the whole or a part of a street, and which project has received the consent of the municipal authorities, and apply for the appointment of commissioners to determine whether its road should be laid and operated in a portion thereof.
    3. Same.
    Petitioner obtained the right at public sale to operate its road on a certain avenue for six blocks, and applied for the appointment of commissioners to determine whether it should be so constructed, alleging an inability to obtain the consents of the property owners, but such proceeding was abandoned. Thereafter this proceeding was brought for the appointment of commissioners to determine whether it should be laid in said avenue for two blocks, on a similar allegation. Held, that the application should not be granted, as it did not appear that it had made an effort and had failed to procure the requisite consents of owners for the entire distance as originally projected, or procured any consent of the city authorities to a change of route.
    Application by the Cross-Town Street Bail way Company of Buffalo, N. 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.
    
      Box, Norton & Bushnell, for petitioner; Henry F. Allen, forcertain property owners, opposed.
   Macomber, J.

The petitioner,The Cross-Town Street Bail-way Company, of Buffalo, was organized under chap. 252 of the Laws of 1884. Pursuant to chap. 642 of the Laws of 1886, as amended by chap. 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 Jandary, 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, chap. 281 of the Laws of 1889, and § 93 of chap. 565 of the Laws of 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, chap. 151, Laws of 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 California 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, tinder 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: “If the consent of the property owners required by any provision of this article cannot be obtained, the corporation failing to obtain such consents, 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.” Thence 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 commissioners, 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 property owner hereinbefore required.” Section 94, chap. 565, Laws of 1890. In fortification of this position of counsel reference is made to Matter of Thirty-fourth Street R. R. Co., 102 N. Y., 343; 2 St. Rep., 33, and Matter of Broadway Surface R. 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 can not 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 Matter of People's R. R. Co., 112 N.Y., 578; 21 St. Rep., 496, 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 build 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 § 91 of chap. 676 of the Laws of 1892, which is as follows : “ Such railroad 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.

Dwight, P. J., Lewis and Haight, JJ., concur.  