
    (69 Hun, 166.)
    PEOPLE ex rel. CITY OF YONKERS v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    1. Railroad Companies—Highway Crossings—Discontinued Streeis.
    Under Laws 1861, c. 311, providing that a public road, not opened and worked within six years from the time of its being laid out, shall cease to be a road for any purpose whatever, a failure to keep a street open and worked within six years after it was laid out is fatal to an application for mandamus to compel a railroad company to take such street across its tracks, under Laws 1853, c. 62, § 2, providing that any railroad company across whose track a street or highway shall be laid out shall cause such street or highway to be taken across its track as shall be most convenient for public travel.
    2. Same—Use oe Tracks.
    Nor could such railroad be required to take the street across its tracks, where such tracks were in constant use.
    
      Appeal from special term, Westchester county.
    Application by the city of Yonkers for a writ of mandamus to compel the New York Central & Hudson River Railroad Company to take a street in such city over defendant’s tracks. From a judgment denying the application, relator appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Joseph F. Daly, for appellant.
    Frank Loomis, (Ira A. Place, of counsel,) for respondent.
   PRATT, J.

This is an appeal from a judgment denying the relator’s application for a writ of mandamus, and of costs to the defendant against the relator. This proceeding was brought by the relator to compel the defendant, by writ of mandamus, to take Locust street, in the city of Yonkers, across its tracks, under the provisions of chapter 62 of the Laws of 1853. We .think it is plain, from the evidence and the findings, that there is no merit in this application. It could result, if granted, in no public benefit, but would subserve only private interests. Indeed, the people of that vicinity would be subjected to danger in the operation of the railroad, and the defendant would be subjected to much inconvenience in the curtailing of its facilities for the operation of its railroad. We also think that the point taken by the defendant, that the road in question was not opened or worked within six years from the time of its being laid out, was fatal to the application, and brought it squarely within the amendment to the Revised Statute passed in 1861, (chapter 311 of the Laws of that year.) It is not necessary to discuss and distinguish the cases which do not seem to be in full accord upon the subject, for the rule seems to be that where a highway is dedicated to the public use the amendment before referred to applies. The case shows that the defendant had acquired the title to the piece of land sought to be turned into a public highway. Under such circumstances it could not be taken for another public use without special legislative authority, and compensation to the owner. Neither can the defendant be required to take the street across its tracks, under chapter 62, Laws 1853, where the tracks'are in constant use, as was proved in this case. Delaware & H. Canal Co. v. Village of Whitehall, 90 N. Y. 24; Railroad Co. v. Williamson, 91 N. Y. 552.

Judgment affirmed, with costs. All concur. 
      
       Laws 1853, c. 62, § 2, provides that any railroad company across whose track a street or highway shall be laid out shall cause such street or highway to be taken across their track, as shall be most convenient tor public travel.
     
      
       Laws 1861, c. 311, provides that a public road not opened and worked within six years within the time of its being laid out shall cease to be a road, for any purpose whatever.
     