
    Morris Butin and Max Matlow, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — liability of a railroad to an individual injured through its failure to keep the street in which ils tracks are in repair — it cannot be discharged by a contract made with the city without legislative sanction.
    
    A contract executed between a city and a railroad company, without legislative sanction, by which the city assumes to relieve the railroad company from, the duty imposed upon it by section 11 of the Railroad Law (Laws of 1890,-chap. 565) to keep the portions Of a city street occupied by its tracks in such a condition of repair that the public can pass over it in safety, is not effective to relieve the railroad company from liability to an individual whose horse is injured because of the railroad company’s failure to keep in repair the portion of the street occupied by its tracks.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 3d day of August, 1904, upon an order entered in said clerk’s office on the 3d day of. August, 1904, affirming a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiffs, entered in the office of the clerk of said court' on the 3d day of June, 1904, and also from the said order of the County Court affirming the judgment of the Municipal Court.
    
      
      Frank Hiscock, for the appellant.
    
      Henry B. Buck, for the respondents.
   Stover, J.:

The action is to recover for injuries to a horse by reason of the negligence of defendant in allowing the crossing at a street intersection in the city of Syracuse to become out of repair. The horse while being driven over the crossing stepped into a hole next to the inside of the rail of defendant’s track and was injured. The defense is that by reason of an agreement between the city of Syracuse and defendant the defendant was relieved of all liability to maintain or repair the crossing in question.

The agreement in question was made on July 16, 1892, and recited agreements theretofore made between the parties and a dispute as to the rights and obligations thereunder, and followed this with an agreement as to the paving of Washington street, the locus in quo, and a stipulation releasing for a term of twenty-five years from July 16, 1892, the defendant from “ all and every obligation, charge or liability in respect to planking, replanking, paving, repaving or keeping in repair the said Washington street or any part thei'eof ” within boundaries including the place of the accident. The said Washington street being occupied by the tracks of defendant within these boundaries, it was further stipulated that the defendant shall and will replace and properly and suitably repair any of the said pavement which may be torn up, disturbed, or in any manner interfered with by the said (defendant) in main- ' taining, repairing or replacing its tracks or rails or any portion thereof.”

It is the contention of the defendant that notwithstanding the provisions of the Railroad Law the contract relieves the defendant from liability to keep the • portion of the highway occupied by its tracks in repair.

Under the provisions of the Railroad Law, defendant was bound to keep the street at the point of the accident in repair and in such condition that the public could pass over it in safety. (Laws of 1890, chap. 565, § 11; Masterson v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 247.)

It is contended, however, that under the ruling in Binninger v. City of New York, (177 N. Y. 199), the agreement, in question operated to relieve defendant from this liability.

The distinction between this case and the one last cited is that here we have not the legislative sanction to the contract. In the Binninger case the Legislature had, in the city charter, adopted a scheme of assessment for and control of improvements and repairs, and it was held that the effect of such legislative action was to relieve the railroad company from its liability under the General Law, and special provisions of the charter superseding the General Law.

As was said in the Masterson case: There is nothing in any statute to which our attention has been called, and there is no principle of law which relieves the defendant from the performance of a duty, upon which the lives of citizens depend, and which should be performed exactly and without abatement. It certainly could by no act of its own relieve itself from this duty and liability, * * * and it has not been modified or dispensed with by the Legislature.”

. The city of Syracuse may have assumed liability as to the street,but this did not relieve the railroad company from the duty imposed by the Legislature. (Id. and cases cited.) .

The evidence justified a finding of negligence upon the part of any one responsible for the repair and maintenance of the crossing, and this duty being upon the defendant, the judgment was correct. The judgment and order should be affirmed.

All concurred, except McLennan, P. J., not voting.

Judgment and order affirmed, with -costs.  