
    The New York Central and Hudson River Railroad Company, Plaintiff, v. The City of Buffalo and George M. Zimmerman, as Comptroller of the City of Buffalo, Defendants.
    (Supreme Court, Erie Equity Term,
    May, 1912.)
    Municipal corporations —■ city of Buffalo (charter § 288) — defective streets and bridges and places contiguous thereto — assessment for laying sidewalks on intersecting streets.
    ' Under section 288 of the charter of the city of Buffalo, which provides that it is the duty of the owner or occupant of any premises in the city to lay sidewalks in front thereof whenever the same shall be ordered by the common council, and that if the same is not done within the specified time limit it shall be! done by the city and the expense thereof assessed upon the premises, a railroad company using depressed tracks through a portion of a street intersected by other streets is, as to such street, the occupánt of premises, and is liable to an assessment for the laying of sidewalks on.the intersecting streets.
    Where, under the provisions of said section 288, the expense of sidewalks laid by the city is to be assessed on the lands and premises in front of which the work is done, an assessment for sidewalks laid in front of a part of the railroad’s right of way is invalid as to those portions thereof in front of which no sidewalks were laid but which were assessed' therefor.
    
      Action to vacate an. assessment, etc., for the expense of building a sidewalk in front of premises occupied by plaintiff. •
    Hoyt & Spratt ('Alfred Becker, of counsel), for plaintiff.
    Clark H. Hammond, corporation counsel (Herbert A. Hickman, of counsel), for defendants. , ,, , ,
   Brown, J.

Section 288 of the charter of the city of Buffalo provides that it is the duty of the owner or occupant of any premises in the city to lay sidewalks in front of such premises whenever the same shall be ordered by the common council; the commissioner of public works shall no,tify the owner or occupant of any premises in front of which such work shall be required to be done that if the same is not done within ten days the same shall be done by the city and the expense thereof will be assessed upon such premises; in case such work shall not be done within such time 'said commissioner may cause the same to be done and the expense thereof shall be a charge and lien upon such premises, and all assessments for such work shall be assessed upon' the lands and premises in front of which the work is done, according to the lineal frontage.

For many years prior to 1894 the plaintiff maintained two railroad tracks crossing Main street and extending westerly through the Terrace at grade. In 1894, under an arrangement with the grade crossing commissioners of the city, these tracks were depressed, passing under Main street by means of a bridge or tunnel and passing through the Terrace in an open cut fifteen feet deep at its easterly or Main street end, and by an uniform grade rising to the street level at its westerly end, where it crossed West Seneca street. The northerly and southerly sides of this cut and its easterly end were inclosed by a stone wall rising about three feet above the street level of the Terrace, on the top of which was erected an iron fence three or more feet high, completely fencing and effectually closing the same, except at its westerly end. Over this cut at its intersection with Pearl and Franklin streets were erected foot bridges for the use of pedestrians. All the expense of such work included within the outside lines of such wall was borne by the plaintiff, the defendant agreeing to maintain and keep such wall in repair. The city paved the Terrace on all sides of the cut up to the outside edge of such retaining wall. All of the lands and premises within the outside lines of these walls since 1894 have been in the exclusive occupation of the plaintiff for railroad purposes, except as the public has used the foot bridges at Pearl and Franklin streets. The title to the fee of these lands, as is all of the Terrace, is in the city of Buffalo. The depressing of its tracks through the Terrace by means of this cut and the consequent exclusive occupation of the same have been of great benefit to the plaintiff. The public is effectually excluded from the plaintiff’s railroad tracks in this cut—no pedestrian or vehicle can reach them. It is a permanent structure, erected under grant and franchise from the city, and is under the exclusive and complete control of the plaintiff. In 1904 the common council of the city ordered the plaintiff to build a sidewalk along the northerly, easterly and southerly sides of the cut and retaining walls thereof; the commissioner of public works notified plaintiff of such order, and, upon failure of plaintiff to build the same, the defendant built such sidewalks and the expense thereof was assessed against the railroad tracks of the plaintiff in the cut in the Terrace, and the tracks in Fourth, Erie, Willceson, Church and Horton streets. Such assessment for such sidewalk not having been paid, the tracks of the plaintiff.in such streets were sold, bid in by the city and the comptroller of the city gave notice that unless such property was redeemed from such sale he would on the 30th day of June, 1911, execute and deliver to the city as the purchaser at such assessment sale a conveyance of the said tracks. Whereupon this action was brought to vacate such assessment and to restrain the execution of such deed, upon the ground that the building of the sidewalk was without authority and that there was no jurisdiction in the assessment of the expense of such sidewalk upon plaintiff’s railroad tracks.

The contention of the plaintiff is that it is not the occupant of any premises in the Terrace within the meaning of section 288 of the city charter, nor is it the occupant of land and premises in front of which the sidewalk was laid and the assessment levied within the meaning of such section. In support of such contention it is urged that People ex rel. Davidson v. Gilon, 126 N. Y. 147; O’Rielley v. City of Kingston, 114 id. 439, and Matter of Anthony Avenue, 46 Misc. Rep. 525, are decisive thereof. Such authorities do not reach the question presented. People ex rel. Davidson v. Gilon decided that the tracks of the Yew York and Harlem- Railroad - Company in Madison avenue were not subject to_ assessment for street improvements under a statute which provided that assessment for such improvement should be levied upon the owners or occupants of all the houses and lots benefited. O’Rielley v. City of Kingston turned upon the question whether the railroad tracks in the center of the streets could be assessed for street improvements under a statute -providing that- no part of such expense should be assessed on lands not bordering on or touching the street. In re Anthony holds that the right of a street railway, electric light, telephone or gas supply corporation to maintain -its rails, wires and pipes within the streets is not subject to assessment for the expense of widening a street occupied by such property. The question here is: Is the plaintiff such an occupant of premises as is defined by the section of the charter above referred to ? The plaintiff is admittedly the occupant of certain lands; it is admittedly the sole and exclusive occupant of the lands bounded by the retaining walls and the east line of Seneca street. Are these lands premises, and do they front on the Terrace on their north and south sides and on Main street on the east end? What are premises? Washburn says premises are used for the lands and tenements which are the subject of grant; Webster says premises are the land granted or -conveyed, the thing granted or delivered by deed; Standard Dictionary defines premises as being a distinct portion of real estate.

This piece of real estate, completely inclosed on its north and south sides and on its east end, with the southerly street line of West Seneca street marking its western end, is certainly a distinct portion of real estate and constitutes certain definite, accurately described, actual premises. A city lot extending entirely across a block fronts on both of the streets running across its ends; a block bounded by four streets fronts on each of the four streets; the northerly side of the premises in question fronts on the north Terrace; the southerly side fronts on the the south Terrace, and the east end fronts on Main street. The conclusion is, therefore, reached that the plaintiff is the occupant of the premises in .the Terrace and of the lands and premises in front of which the sidewalk was laid and the assessment levied, within • the meaning of section 288 of the city charter.

The statute provides that assessments for laying sidewalks shall be assessed upon the premises in front of which such walks are laid, according to the lineal frontage. Under this statute it appears to be quite immaterial whether the laying of the sidewalk was of any benefit to the plaintiff or otherwise. If the validity of this assessment was dependent upon the fact of benefit to the plaintiff by the laying of the sidewalk much could be said from the evidence leading to the conclusion that it is of substantial benefit to plaintiff’s occupation of these premises as they occupy them to have the sidewalks as built to give pedestrians a reasonably secure right of way and access to the foot bridges at Franklin and Pearl streets and a reasonably safe place to walk in reaching the plaintiff’s Terrace station from Main street. All of plaintiff’s annoyance and risk in operating its railroad through the Terrace at grade has been eliminated; the dangers to pedestrians and vehicles have been removed; the depressing of the track, construction of the cut and the erection of the retaining walls and fence have'shut out the public from these premises and denied to pedestrians and vehicles the free use of the highway. The statutory requirement that the plaintiff in excavating its cut through the Terrace should restore the highway to its former state of usefulness could not be better complied with than by giving the foot-traveler therein a sidewalk as a protection from "congested vehicle traffic of the street, especially as it is recalled that such vehicle traffic is only congested by reason of the fact that the plaintiff has taken and exclusively occupied* its premises substantially in the center of the street. There is no 'just or fair reason why the plaintiff should not construct such sidewalk; the statute authorized the city to build it at plaintiff’s expense. It is said, however, that the assessment is void for the reason that it was not laid according to the lineal frontage. The assessment was levied upon the plaintiff’s tracks in the Terrace, Fourth, Erie, Wilkeson, Church and Horton streets. This certainly was not making ' an assessment for a sidewalk in front of plaintiff’s premises.in the Terrace according to the lineal frontage. Such assessment should only have been laid upon the premises in front of which the sidewalk was laid. But the assessment was not void for such error; it was a good assessment so far as the plaintiff’s tracks in the Terrace were concerned; it was void as .to plaintiff’s tracks in Fourth, Erie, Wilkeson, Church and Horton streets. The assessment for the entire expense of the sidewalk for plaintiff’s tracks in the Terrace may be upheld and the assessment upon the property in the other streets vacated and set aside. Brennan v. City of Buffalo, 162 N. Y. 491.

Judgment is ordered, dismissing plaintiff’s complaint as to the property affected by the assessment, sale, redemption and execution of deed, in the Terrace, and vacating the assessment and all subsequent proceedings as affecting the plaintiff’s property, in Fourth, Erie, Wilkeson, Church and Horton streets, without costs to either party.

Judgment accordingly.  