
    In the Matter of the Application of The City of New York, Respondent, to Acquire Certain Real Estate in the Towns of Carmel and Southeast, Putnam County, New York, and Somers, Westchester County, etc., for the Purpose of Supplying the City of New York with an Increased Supply of Pure and Wholesome Water. (Croton Falls Dam and Reservoir — Highway Proceeding. Claim of the Town of Carmel, Appellant.)
    Second Department,
    October 4, 1912.
    Highways — New York city — guard rails on substituted highways constructed under Laws of 1883, chapter 490.
    Section 36 of chapter 490 of the Laws of 1883, as amended by chapter 196 of the Laws of 1887, providing that “The city of New York is hereby required to build and construct such highways and bridges as may be made necessary by the construction of any reservoir in .the county of Westchester or the county of Putnam under this act, and to repair and forever maintain such additional highway bridges as may be made' necessary by the construction of such reservoir or reservoirs,” does not make it compulsory upon the city to maintain guard rails upon substituted highways, and an award for such purpose may be set aside.
    Appeal by the claimant, the Town of Carmel, from so much of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of January, 1912, as reverses and sets aside an award'of $4,500 to the claimant made to it for the repair and upkeep of guard rails constructed along the new roads.
    
      Clayton Ryder [George E. Anderson with him on the brief], for the appellant.
    
      H. T. Dykman [Archibald R. Watson with him, on the brief], for the respondent.
   Thomas, J.:

In this proceeding under chapter 490 of the Laws of 1883, as amended (Laws of 1887, chap. 196), commissioners of appraisal awarded the town of Carmel for damages caused by the closing of some roads and the opening of others two sums, one of $1,500 for the added duty “ of maintaining and replacing the foundation or substructure of the substituted roads and of removing loose rock in the rock cuts and making the walls of the rock cuts safe ” as occasion may require, and another sum of $4,500 for the “ duty to safeguard the public in the use of these substituted roads by the maintaining of guard rails in dangerous places.” The appeal is from an order setting aside the award for the maintenance of the guard rails, and involves solely the question whether the commissioners were empowered by the statute to make it. It is conceded that the town, and not the city, must maintain the substituted roads, and guard rails if necessary, and that under section 36 (as amd. by Laws of 1887, chap. 196) the city’s duty of maintenance is limited to the additional highway bridges. Such is the decision. (.Matter of Gilroy, 43 App. Div. 359; affd., 164 N. Y. 576.) The guard rails are incident to the highways to promote their safe use, and on account of such relation the town must maintain them. If there can be no award for the principal thing, there can be none for the incidents. For the highway closed, another safe and sufficient for the demands of the public must be made and, fully completed, delivered to the town without expense to it. Then the duty of the town begins, and all care and expense, save as to bridges, on the part of the city ceases. It may be that the new road, on account of its length, elevation, peculiarity of construction as regards form or material, may impose upon the town increased cost of maintenance. But that burden the State has cast upon it. The city must deliver a way well and adequately constructed, else it has not complied with the statute. That is a condition that precedes the inception of the duty of the town. But when the city has delivered a legal road it has no duty to keep it, or any part of it, or to preserve its safety in any regard. Section 24 of the act (as amd. by Laws of 1887, chap. 196) gives its definition of “real estate,” and in terms includes a highway, and provides that those owning or claiming interest therein “ shall not, directly or indirectly, be subject to expense, loss or damage, by reason of changing such route or location, but that such expense, loss or damage shall be borne to the city of New York.” From this language it could be argued that. where the substituted highway entailed greater cost of maintenance the town did become “ subject to expense, loss ór damage, by reason of changing such route or location.” But, in view of the decision in Matter of Gilroy (supra), that is not an open question. Section 24 (as amd. supra) also provides that the commissioners “ shall include in the amount of such compensation such sum as shall be sufficient to defray the expenses of making such change of route and location and of building said railroad ór highway. ” This places the expenses of changing the location on the city, but not the expense of preserving in suitable condition the highway in the new location. It is illogical that the city should not oppose the confirmation of the award for the upkeep of the embankment, and oppose the further award for the repair and replacement of the guard rails. But the fact that it consents to an award of one sum does not estop it from insisting that such sum shall not be increased. In McConnell v. Allen (120 App. Div. 548) the inquiry related to the disposition of money paid under the same act by the city to a town “as damages for the increased obligation imposed upon the town for maintenance of the highways substituted.” Mr. Justice Miller wrote: “The town and the city recognized that the latter was not hound, to maintain said substituted highways, and it. had so been held (Matter of Gilroy, 43 App. Div. 359; affd., 164 N. Y. 576), but the increased expense of maintaining guard rails and a greater length of highway was deemed sufficient to support a claim for damages.” There was not decision that such payment was compulsory. It can only be said that the city fitfully allows or disallows such damages, and it seems necessary to approve the legality of its present opposition to such award.

: The order should be affirmed, with ten dollars costs and disbursements.

Hirschberg, Burr, Woodward and Rich, JJ., concurred.

Order in so far as appealed from affirmed, with ten dollars costs and disbursements.  