
    The City of New York, Appellant, v. Metropolitan Street Railway Company, Respondent. (Paving Case No. 14.)
    
    First Department,
    March 12, 1909.
    ■ Railroad — franchise requiring railroad to repave street — effect of failure to give notice that repavement is required.
    A street surface railroad operating under a municipal franchise which requires it to repair and keep in permanent repair the portion of Streets between its tracks and a space of two feet on each side thereof, is obliged not only to keep said portions of the street in repair but also to repave the same when inconsequence of the condition of the existing pavements, or the improvement of adjoining streets and avenues, a new pavement is required. The necessity for a new pavement rests with the municipal authorities.
    But where,.the grantee of such franchise makes no agreement to repay the cost of repavement if made by the city itself, it has a right to do the work itself,, and cannot be required to repay the city the cost of repaving unless it has been notified to do the work and is in default.
    Appeal by the plaintiff, The City of Bew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bew York on the 3d day of February, 1908, upon the report of a referee dismissing the complaint herein.-
    
      Theodore Connoly and Royal E. T. Riggs, for the appellant.
    
      Arthur H. Masten, for the respondent.
    
      
       For opinion of referee see N. Y. Supr. Ct. Cases & Briefs of Counsel (State Law Library), Vol. —,. No. —, p. 113 et seq.— [Rep.
    
   Ingraham, J.:

This appeal was argued with the case of Mayor v. Broadway & 7th Ave. R. R. Co., Paving Case No. 3 (130 App. Div. 834), decided herewith. This action was brought to recover for the expense of repaving certain portions of Twentyreighth and Twenty-ninth streets through which the line of railroad operated by the defendant ran. The defendant obtained its franchise by transfer from a company known as the Twenty-eighth and Twenty-ninth Streets Bailroad .Company, which acquired it under a. resolution of the common council of the city of Bew York, passed on Bovember 80, 1886. By that resolution the consent of the city of Mew York was given to the said railroad company to construct, maintain, use and operate upon the conditions therein named and not otherwise a street railroad upon and through certain streets and avenues designated. The conditions upon which the grant was made were that the provisions of chapter 252 of the Laws of 1884, pertinent thereto, should be complied with, and that the right, franchise and privilege of using the said streets and avenues, subject to all the provisions of chapter 252 of the Laws of 1884 and of chapter 642 of the Laws of 1886, should be sold at public auction to_the highest bidder ; that the bidder to whom the aforesaid sale should be made and any person or corporation using the tracks or any part of the tracks constructed or laid under or in pursuance of the consent then given, should comply with any and all provisions of law applicable to any street surface railroad company organized under chapter 252 of the Laws of 1884; that the said bidder as to the ■ whole route described should be absolutely and unqualifiedly bound, and any person or company using or operating a railroad upon the tracks or any part of the tracks, constructed upon the said route, under and by virtue of the consent thereby given or the sale had in pursuance thereof as to the tracks so used by it or him, shall be jointly and severally bound with the said bidder absolutely and unqualifiedly to repair and keep in permanent repair the portion of said streets and avenues upon which the tracks shall be so constructed, between the tracks, the rails of the tracks and a space two feet in width outside of and adjoining the outside rails of the track or tracks, so long as such tracks so constructed shall continue to be used, and this obligation in respect to the repairing of the streets shall not be dependent upon the requirements of the local authorities, but is hereby made an absolute and unqualified obligation.” It further provided that any person, or company who should use or operate a railroad upon the tracks or any part of the tracks, constructed upon the route .described, under or by virtue of the consent thereby given, or the. sale had in pursuance thereof, should be subject to the same conditions, liabilities, obligations, duties and payments in respect to such use or operation by him or it of or upon such tracks as the bidder to whom the sale should be made under the consent would be subject were such use or operation made by such bidder. In pursuance of this ordinance the franchise was sold and was purchased by the Twenty-eighth and Twenty-ninth Streets Railroad- Company, and in pursuance of that sale that company executed an instrument whereby it accepted the consent of the common council of the city of Mew York and covenanted and agreed to and with the mayor, aldermen and. commonalty of the city of Mew York and their successors “ that it will well and truly comply with and faithfully perform and keep each and every of the said terms and conditions in said resolution above mentioned.”

X think -it clear that by accepting the terms and conditions of this resolution the railroad company bound itself to repair and keep in permanent repair the portions of the said streets or avenues upon which the tracks w'ere to be constructed, between the tracks, the rails of the tracks, arid a space two feet in width outside of and adjoining the outside rails of the track or tracks; that such obligation included the obligation to repave that portion of the street when, in consequence of the condition of the existing pavements or the improvement of the adjoining streets and avenues, a new pavement was required in such street or streets, and that the question as to the necessity of such new pavement necessarily depended upon the decision of the municipal authorities. (Mayor, etc., of N. Y. v. Harlem Bridge, M. & F. R. Co., 186 N. Y. 304.)

The obligation imposed upon this railroad company is much broader • than that in the case cited. It is absolutely and unqualifiedly bound to repair and keep in permanent repair the portion of the said streets and avenues upon which the tracks are to be so constructed, and this obligation- in respfect to repairing the streets was not to be dependent upon the requirement of the local authorities, but is made an absolute and unqualified. obligation. There would have been, therefore, - no question if the city had given notice to the railroad company that a ¿new pavement was required in this street and that it must comply with its obligation and repave the streets between its rails; but no such' notice was given. The city made a contract to do the work, and proceeded and did it, without giving the railroad company an opportunity to comply with its obligations.

The referee found that the plaintiff had not proved or attempted to prove that, prior to the laying of the new pavement at said locations, a notice of thirty days or any notice whatever was given by it to the defendant, requiring or requesting the defendant to repair the pavement, or any portion of the pavement, or to repave, or make pavements or repairs, in o.r about the defendant’s tracks or rails, at said locations, or either of them. It will be noticed that the obligation assumed by the defendant was to repair and keep in repair this street. There was no agreement that it would repay the cost of repavement made by the plaintiff; and to enforce that obligation, I think it clear that an opportunity must be given to the defendant to do the work before it can be made liable for a repavement or repairs made by the city. While its obligation to repave was absolute and unqualified, it had the right to do the work itself, and a liability cannot be imposed upon it because the city voluntarily assumed its obligation without notice Or in some way putting the railroad company in default.

For-that reason I think the judgment must be affirmed, with costs.

McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred.

Judgment affirmed, with costs.  