
    Long Island R. Co. v. City of Brooklyn.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    Railroad Companies—Construction in Streets—G-rade.
    A city authorized the construction through its streets of a railroad, subject to the condition that it conform “to the grade of the streets which they cross and run through, as laid down in the grade maps of the city. ” Held, that the condition applied to all streets then, or thereafter to be, opened; and that Laws N. Y. 1853, c. 62, providing that it shall be lawful for the authorities of any city empowered to lay out streets, to lay out any street across the track of any railroad “now laid, or which may hereafter be laid, ” without compensation to the corporation owning such railroad, but not until 30 days after notice of such laying had been served on the corporation, had no application to the case.
    Appeal from special term, Kings county.
    Action by the Long Island Railroad Company against the city of Brooklyn to enjoin defendant from interference with plaintiff’s railroad. Plaintiff appeals from an order denying its motion for an injunction pendente lite. Laws N. Y. 1853, c. 62, § 1, provides: “It shall be lawful for the authorities of any city, village, or town in the state, who are by law empowered to lay out streets and highways, to lay out any street or highway across the track -of any railroad now laid, or which may hereafter be laid, without compensation to the corporation owning such railroad: but no such street or highway shall be actually opened for use until thirty days after notice of such laying out has been served, personally, upon the president, vice-president, treasurer, or a director of such corporation.”
    Argued before Barnard, P. J., and Dykman, J.
    
      Hinsdale & Sprague, (Edward E. Sprague, of counsel,) for appellant. William T. Gilbert, for respondent.
   Barnard, P. J.

The plaintiff is the lessee of the New York & Massachusetts Branch Railroad Company. This company obtained and accepted the consent of the defendant to construct its route through the city of Brooklyn, “so as to conform to the grade of the streets which they cross and run through, as laid down in the grade maps of the city.” The papers show that the city claims the right to have certain of its streets raised at the railroad crossings so as to conform to the old grade which existed when the consent was given. The plaintiff asserts that there were no such maps known as “grade maps” of the city. I think such a map is proven as to the locality in question. The ■point is immaterial, as I view the situation of the parties. The agreement to conform to grade of streets applies to all streets which are or may be opened. The intent is thc$ the city shall be superior in forcing grades, and that the railroad shall conform to these grades, as all streets which in great and rapidly growing cities are projected in advance of an immediate necessity. When these grade maps are laid down, the streets are opened in conformity with them. The railroad must conform to the street grade. Chapter 62, Laws 1853, has no application to the case under this view of the situation of the parties in respect to the contract which governs them. The order should therefore be affirmed, with costs and disbursements.  