
    The Mayor, Aldermen and Commonalty of the City of New York, Appellant, v. The Harlem Bridge, Morrisania and Fordham Railway Company, Respondent.
    
      Harlem Bridge, Morrisania and Fordham, Bailway Company — its duty to pava between its tracks on One Hundred and Thirty-eighth street, Hew York city — it is bound by the conditions imposed by the park department.
    
    Section 3 of chapter 361 of the Laws of 1863, conferring a franchise on the Harlem Bridge, Morrisania and Fordham. Railway Company, provided that the railroad company should furnish between its tracks and between the rails a macadamized roadbed which should be “ kept in good repair,” and for a space of six feet outside the tracks on each side of the outside rails should place “ Belgian or other approved pavement,” or else a macadamized roadbed, and keep the same in good repair.
    Chapter 815 of the Laws of 1866 amended this provision of the act of 1863 by providing that whenever the authorities of the towns of Morrisania or West Farms “ shall decide upon paving with Belgian pavement or other approved pavement, * * * one-sixth of the cost of such paving shall upon the completion thereof be paid ” by the railroad company.
    Chapter 658 of the Laws of 1871 further amended the act of 1868 by providing that the railroad company should “ keep the surface of the street inside the rails ” and for a foot outside thereof “in good and proper order and repair.”
    By chapter 553 of the Laws of 1874 the railroad company was authorized to lay tracks in One Hundred and Thirty-eighth street, in the city of New York, between Third and Ryder avenues. After the passage of the latter act the railroad company applied to the department of parks of the city of New York, which body had jurisdiction over the territory in .question, for permission to lay its tracks. Such permission was granted upon the following condition: “ The said company shall replace the pavement * * * in accordance with the specifications in use by the Department of Public Parks for laying new pavements and to be renewed at such times and places as may he required by the Commissioners * * * immediately upon notice being given to said company. * * * In the relaying of the pavements the said railway company shall furnish and provide at its cost and expense whatever new material may be required. * * * Along that portion of the route which is unpaved ■* * * the space between the rails of each track and between the tracks and outside and adjoining the outer rails for a space of two (2) feet wide, shall be paved with trap-block pavement * * * in such manner as shall be directed by the Commissioners. * * * If the said company * * * shall refuse or neglect to carry out any of the provisions or requirements of this permit, the Commissioners * * * shall have the right and power to do the same at the expense and cost of said company.”
    
      The railroad company accepted the terms of the permission by laying its tracks. . in the street. Thereafter, it having concluded that the street should be paved with granite blocks, the park department called upon the railroad company to-lay the same beside and between the-tracks, and upon the'refusal of the rail-' • road company to do so the city did the work.
    
      Held, that assuming, without deciding, that the act of 1866 was repealed by the act of 1871, there was strong reason for holding that the' provision of the act of 1871 was sufficient to compel the railroad company to relay pavement of modern character and appropriate to changing conditions in the street when, called upon to do so- by the municipal authorities; ’
    That.yaside from this question, it was competent for the head of the department-of parks to arrange with the railroad company as to the conditions upon which permission to lay its tracks in the street should be granted;
    That the railroad company having accepted the permit granted was bound by. the conditions annexed thereto;
    That, therefore, if the ■ repaving whs necessary by way of repair, the railroad, company would at least be liable for the sum which it would have cost to have-repaved with the trap block pavement specified in the permit of the park, department the portion of the street which it had agreed to keep in repair.
    Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the-county of Hew York on the 26th day of October, 1903, upon the verdict of a jury rendered by direction of the court after a trial at. the Hew York Trial Term, and also from an order entered in said clerk’s office on the 9th day of Hovember, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action is brought by the city of Hew York to recover of tliedefendant railway company the cost of paving in One Hundred and Thirty-eighth street, between Third ánd Ryder avenues, the space between and adjacent to the defendant’s tracks placed in that street.
    The defendant company was organized under the. Railroad Law of 1850 (Laws of 1850, chap. 140, as amd.), and obtained its franchise by chapter 361 of the Laws of 1863, which did not, however,, authorize the laying of tracks in this part of One Hundred and Thirty-eighth street, that right being subsequently conferred ;by chapter 553 of the Laws of 1874 (amdg. Laws of 1863, chap. 361,. § 8). In the act of 1863 it was provided in section 3 that the defendant should furnish between its tracks and between- the rails- \ a macadamized roadbed, which should be “ kept in good repair,”' and outside of the tracks, six feet on each side of the outside rails, should place “ Belgian or other approved pavement,” or else a macadamized roadbed, and keep the same in good repair. '
    The act of 1863. was amended by chapter 815 of the Laws of 1866 by adding to the section cited a provision that whenever the authorities ,oE the towns of Morrisania or West Farms “ shall decide upon paving with Belgian pavement or other approved pavement, * * * one-sixth of the cost of such paving shall upon the completion thereof be paid ” by the railway company.
    In 1871 an act was passed (Laws of 1871, chap. 658) amending section 3 of chapter 361 of the Laws of 1863 by providing that the defendant should “ keep the surface of the street inside the rails ” and for a foot outside thereof “ in good and proper order and repair.”
    The defendant contends that it is this statute of 1871 alone which is controlling, and that the pavement supplied by the city.was not shown to be necessary by way of repairs, and hence it is under no obligation to pay therefor. The plaintiff contends that while this statute of 1871 is in force it did not repeal the act of 1866, which required expenditure by the defendant road for pavement when deemed necessary by the municipal authorities; and that in addition the defendant is bound by the provisions and conditions of the permit obtained from the department of parks, which after the enactment of the statute of 1874 referred to extending its right to lay tracks in the part of One Hundred and Thirty-eighth street in question.
    In 1874 the street in question was of earth surface. The defendant applied to the department of parks, then having jurisdiction over that territory, for permission to lay its tracks, and it was granted upon condition, among other things, that the company should replace the pavement of the street as directed by the department and renew the pavement as required by - the commissioners, supplying trap rock pavement at its own-cost and expense between the tracks and the rails and for a certain distance outside the tracks, and that if such work was not doné by the defendant upon notice, then the city might do the same at the defendant’s expense.
    The department, having concluded that the street should be paved with granite blocks, called upon the defendant to supply the same beside and between the tracks, which, however, the defendant ■failed to do, and -after notice that the work would be done by the city and charged to the defendant, the. city proceeded to lay the pavement, the cost of which it claims the defendant should pay.
    . At, the close of the case both sides asked for the direction of a verdict, and the court' directed a verdict for the-defendant. From the judgment thereupon entered the plaintiff appeals.'
    
      Terence Farley, for the appellant.
    
      Charles F. Brown, for the respondent.
   O’Brien, J.:

- It may be conceded that no obligation rests upon the railroad company to pave the streets upon which its tracks are laid except such as is imposed either .bjr ordinance or statute, or as the result of conditions affixed to the franchise or the permit under right of which the-road' was constructed.

It is contended by the-appellant that pursuant to, chapter 815 of the Laws of 1866, which amended section 3 of chapter 361 of the Laws of 1863, the cost of repaving the street to the extent- of one-sixth was imposed upon the .railroad company. Section 3 of chapter 361 of the Laws of 1863 was subsequently amended by chapter 658 of the Laws of 1871, and it is contended by the respondent that the effect of this latter enactment of 1871 was to repeal the a'ct of 1866. Whether this is. true or not, we deem it unnecessary to decide, though our inclination would be, wei-e it' necessary, to hold that the act of 1871 did repeal the ac.t of 1866.

Assuming that the act of 1866 was repealed by- the act of 1871, there was imposed by, the latter the obligation to repair, and although this is a requirement general in its nature, there is strong reason for holding that the. provision was sufficient' to compel the relaying by the railway company of pavement of modern character and appropriate, to changing conditions in the street upon which, the tracks were laid when called upon to do so by the municipal authorities. -Thus-in the case of Philadelphia v. Railway Co. (143 Penn. St. 444) it was-said, with reference to a similar provision.: The duties specified in its charter were imposed with reference to the changes and improved methods of street paving which experience might sanction as superior to and more economical than old methods. In other words, the company is bound to keep pace with the progress of the age in which it continues to exercise its corporate functions,”

Upon another ground, however, we think the defendant is liable in whole or in part for the amount sued for.

■The record shows that after obtaining the franchise an application was made by the railroad to the park department, which then had jurisdiction over that part of the territory in which it was proposed to construct the road, for permission to lay the tracks, and that the department, in granting the permit, affixed as a condition-that, “ The said company shall replace the pavement * * • * in accordance with the specifications in use by the Department of Public Parks for laying new pavements and to be renewed at such times and places as may be required by the Commissioners * * * immediately upon notice being given to said company, * * * In the relaying of the pavements the said railway company shall furnish and provide at its cost and expense whatever new'material may be required. * * * Along that portion, of the route which is unpaved * * * the space between the rails of each track and between the tracks and outside and adjoining the-outer rails for a space of two (2) feet wide, shall be paved with trap-block pavement * * * in such manner as shall be directed by the Commissioners. * * * If the said company * * * shall refuse or neglect to carry out any of the provisions or requirements of this permit, the Commissioners * * * shall have the right and power to do the same at the expense and cost of said company.”

Thereafter the company laid its tracks in the street in question, thus accepting the terms of this permit, and it appears, that on" December 11, 1888, a resolution of the board of aldermen was approved by the mayor that said street “be paved with granite block pavement * * * under the direction of the Commissioners ; ” and the defendant by its answer admits that, on or about March 4, 1889, it received a notification from the department of parks that it was required “to pave the surface of said street inside the rails * * * and for one foot outside thereof,' with, granite block pavement, * * * in* accordance with specifications * * of the Department of Public Parks,” and was further notified that unless it commenced- the construction of said pavement the city would proceed to construct it at the expense 'of the company, and refused to construct said pavemént on the ground that it was nót its duty so to" do, arid the work was done by the city.

It will be noticed that by the terms of the permit the character'of the pavement which the railroad was to lay when necessary, as compared with the pavement which was actually laid, to recover the cost of which this suit was brought, wag different, and it may be that the true rule of liability would be to charge the defendant with the cost only of such pavement as it was required to lay pursuant to the permit, an amount which is susceptible of proof. The more important question, however, is whether the terms of the permit are binding upon the company. , i

It will be conceded1, we think, taking the law as it stood when the permit was applied for, that an obligation rested upon the rail-' road company to keep the street between the rails in good order and repair; and, for the purpose of having some means of determining when the necessity arose for repairing, it was important that the right of deciding that question should rest with the department having control of the streets. To the end that there should be a uniform policy with respect to the entire street as to the kind and -character of the pavement arid that the railroad company should not be free tp repair the portion of the street near the tracks and keep :it in. order by adopting one system of. pavement while the remainder of the street under the control of the department had a pavement of a different kind, the right of determining the nature of the pavement to be used should rest with the department. It was, therefore, competent for the head1 of that department to arrarige With the railway company as to the manner in which these ends should be accomplished; and, in granting the permit, which was accepted arid acted upon by the company and which contained the condition to which we have referred, we think' the fulfilling of this condition became obligatory upon the company. At the time it might have refused to accept the permit to lay its rails on the street when coupled with such a condition; but, having accepted it, we think it should fulfill in good faith the condition.

It may be that if no obligation rested upon the railway company under the law to pave or keep in repair the streets to any extent," the head of a department could not, in the absence of legal warrant, impose such a condition. We are, however, not dealing with that ■question, because it here appears, as we have pointed out, that there was a legal obligation resting upon the road to assume its share of the burden in keeping that portion of the street between the rails in good order and repair and at a grade conformable to the grade that was fixed for the remainder of the street. ' With a view, therefore, of setting at rest the extent of this obligation and of securing, as- we have said, uniformity in the pavement, it was certainly coinpetent for the head of the department and the railroad company to agree as to the extent to which the latter should assume and discharge this obligation.

Having applied for and secured the permit which had annexed to it the conditions referred to, we do not think that the railroad can in justice repudiate the conditions, and' thus obtain only the advantages, and become absolved from any of the burdens. Upon the ground, therefore, that it was competent for the department and the railway company to agree Upon the conditions- upon which the permit should be issued, and^ there being evidence here of what the conditions were with respect to the pavement, we think they are binding upon the company, and it should be required to discharge its obligations by paying the amount of the expense to which the city was put in repairing or in paving that portion of the street between and adjacent to the tracks which, upon proper notice, the company failed to do.

■ To the extent, therefore, of what it would cost to so pave it with trap block pavement, the company should be held responsible on proof that in the way of repairs a repavement was necessary.

It follows, accordingly, that the judgment and order appealed from should be reversed and a new trial granted) with costs to the appellant to abide the event. • .

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. —  