
    The Village of Jamaica, App’lt, v. The Long Island Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Railroad—Street crossings.
    By the charter of the plaintiff a railroad company is required to cause a highway to he taken across its track “as shall be most convenient and useful for public travel,” and the provisions of the general railroad law are made applicable. Held, that the railroad company has the eleciion of methods of carrying a new street across, and unless the reasonable usefulness of the highway is infringed, the selection of the company will not be interfered with.
    Appeal from order denying a motion made by the plaintiff for an order requiring the defendant corporation to take Brenton avenue, a new public highway laid out in Jamaica Village, across the tracks of defendant's railroad at grade, and enjoining from taking said highway across its tracks by means of a bridge.
    The defendant operates a steam railroad passing through Jamaica Village. At the point in question the company uses four tracks. The crossing is a short distance east of the station, and the entire traffic over its main lines and on a number of its branches passes and repasses this locality.
    This is a new crossing, not in existence prior to the opening of the street in June, 1892.
    The papers show that a notice was served on defendant on June 10, 1892, requiring it to take the highway over its tracks. This notice was served under the act of 1853, chap. 62, Laws of 1853, and under the provisions of that law it became the duty of the-corporation to take the highway over its tracks.
    “ Sec. 2. It shall be the duty of any railroad corporation across whose track a street or highway shall be laid out as aforesaid, immediately after the service of said notice, to cause the said street or highway to be taken across their track as shall be most convenient and useful for public travel, and to cause all necessary embankments, excavations and other work to be done on their road for that purpose. And all the provisions of the act passed April 2,1850, in relation to crossing streets and highways already laid out by railroads, and in relation to cattle guards and other securities and facilities for crossing such roads, shall apply to steeets and highways hereafter laid out.”
    Under the provisions of the act, on July 26, 1892, the defendant procured from the county judge of Queens county an order extending the time to do the necessary work of taking the highwav over its tracks for thirty days.
    Prior to the expiration of this period plaintiff commenced this action, claiming that defendant intended to take the highway across the tracks by an over head bridge instead of making a new grade crossing as requested by plaintiff.
    
      There is no controversy over defendant’s intention. It does intend to bridge this crossing instead of bringing the street over at grade, unless restrained by the court.
    The expense to defendant of a grade crossing would be bat $250; to take the street over by bridge requires an expenditure of more than $6,500, the whole of which must be borne by de-. fendant.
    ^ Its reasons for this action and this additional outlay are clearly stated in the affidavit of Mr. Morton, the vice-president of defendant.
    “ It was determined that the safety of the public demanded the construction of a permanent bridge at this point rather than a crossing at grade.”
    The answering affidavit cites the law in force in adjoining states prohibiting grade crossings. The railroad commissioners of this state have frequently protested against grade crossings as dangerous to life.
    
      Henry A. Monfort, for app’It; Wm. J. Kelly, for resp’t.
   Barnard, P. J.

The village of Jamaica has laid out a new highway which crosses the Long Island R. R. at grade. The question presented is whether the railroad can carry the street over its track at an elevation of some eighteen feet. By the charter the village is bound to cause a highway to be taken across its track “ as shall be most convenient and useful for public travel.” Chap. 62, Laws of 1853.

This charter provides that all the provisions of the general railroad law¡ chap. 140, Law's of 1850, shall apply to the village, and that requires the crossing to be over or under the track of the railroad 11 as shall be most expedient,” provided that the usefulness of the highway be not unnecessarily impaired. There is no difference between an old highway which is crossed by the railroad and a new highway which crosses the railroad at grade. The general law regulated crossing highways existing. The village charter requires all new roads to be taken across the track as shall be most convenient and useful for public travel, and applies all the provisions of law in relation to crossing streets applicable. The railroad company has the election of methods, and unless the reasonable usefulness of the highway is infringed, the selection of the company will not be interfered with. People v. N. Y. Central, etc., R. R, 74 N.Y., 302.

The order refusing an injunction should, therefore, be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.  