
    CITY OF AMSTERDAM v. FONDA, J. & G. R. CO.
    (Supreme Court, Appellate Division, Third Department.
    May 8, 1907.)
    Street Railroads—Repair oe Streets.
    Under Railroad Law, Laws 1890, p. 1112, c. 565, § 98, requiring a railroad company to keep in repair that portion of the street “between its tracks, the rails of its tracks, and two feet in width outside of its tracks,” it is required to keep in repair a space two feet outside of each rail.
    FEd. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 100.]
    Appeal from Special Term.
    Action by the city of Amsterdam against the Fonda, Johnstown & Gloversville Railroad Company. From a judgment for plaintiff (101 N. Y. Supp. 694, 51 Misc. Rep. 438), defendant appeals.
    Affirmed.
    Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
    Nisbet & Hanson (Charles S. Nisbet, of counsel), for appellants.
    Christopher J. Heffernan, for respondent.
   JOHN M. KELLOGG, J.

Plaintiff recovered judgment for the cost of paving a public street two feet in width outside of each rail of the defendant’s single track. The defendant admitted its liability for the paving of one foot outside of each rail. The decision of this appeal depends, therefore, entirely upon the proper construction to', be given to section 98 of the railroad law (Laws 1890, p. 1112, c. 565), which requires the company to keep in repair that portion of the street, “between its tracks, the rails of its tracks and two feet in width outside of its tracks, under the supervision of the proper local authorities,, and whenever required by them to do so, and in such manner as they may prescribe.”

The ties upon which the defendant’s track is laid are eight feet in length, and the track is five feet wide, outside measurement. We may fairly assume that the tie is about the standard length tie for railroads, and that the object of this section was to require the company to keep in repair that part of the street which it more particularly occupies, and which it is liable to disturb in laying, changing, improving, or altering its tracks. Assuming a track to be about five feet, wide on the outside, two feet each side of this would make the total width to be repaired by the company nine feet, and in putting in am eight-foot tie it is very probable that at least nine feet of the roadway would be disturbed and require attention. The situation,' therefore, fairly seems to indicate that the intention was to cover a space two-feet outside of each rail, and the language of the statute, requiring the company to repair that portion of the street two feet in width outside of its tracks, seems to indicate that the two feet to be kept in repair is a continuous two feet measured from the track, and not two-strips, one foot in width, measured from each outside rail. I think the language of the statute, as well as its evident purpose, shows that the part of the street to be repaired by the company is two feet in width,, measured from the outside of each outside rail.

Thé judgment should therefore be affirmed, with costs. All concur..  