
    The People of the State of New York ex rel. The City of Niagara Falls, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Railroad—the manner in which streets shall cross steam surface railroads is to he determined ly the Railroad Commissioners — mandamus against the railroad company, when premature.
    
    By chapter 754 of the Laws of 1897 it was intended that the Railroad Commissioners should he consulted and should determine the manner in which streets should cross steam surface railroads from and after the taking effect of that act, and in the absence of such a determination by the Railroad Commissioners a mandamus will not he granted requiring a railroad company to cause a street to he taken across its tracks.
    Appeal by the relator, The City of Niagara Falls, from an order -of the Supreme Court, made at the Erie Special Term, bearing date the 7tli day of February, 1898, and entered in the office of the clerk of the county of Erie, denying its application for a peremptory writ of mandamus to compel the defendant to carry Tenth street in the city of Niagara Falls across the tracks of its railroad.
    
      Morris Oohn, Jr., for the appellant.
    
      Daniel II. McMillan, for the respondent.
   Hardin, P. J.:

On the 4th of May, 1897, the relator prepared a notice to the -defendant requiring it to cause the street to be taken across its tracks. That notice gave the defendants thirty days in which to comply with its requirements, and it was served on the defendant on the seventh of May. The street had not then been opened and worked, and was “in an impassable condition, and had not been -opened between the company’s tracks and Erie street up to the 21 st day of June, 1897.” On the 7th of June, 1897, while the street was in the condition just mentioned, the common council of the city of Niagara Falls, by resolution adopted, “ extended the time within which said Tenth street should be carried across the tracks of the defendant herein until the 7th day of July, 1897.” On the 30th of December, 1897, the relator prepared a notice of an application at Special Term for a writ of mandamus to be directed to the New York Central and Hudson River Railroad Company requiring the company forthwith to- cause said Tenth street in the first ward in the city of Niagara Falls to be carried across the tracks of the New York Central and Hudson River Railroad Company. Pursuant to that notice of motion the defendant appeared and read an affidavit in opposition at Special Term on the 7th of February, 1898, and the Special Term denied the writ, with costs, and the relator has appealed from that order.

On the 22d of May, 1897, the Legislature, by chapter 754 of the laws of that year, provided, viz. : “ When a new street, avenue or highway, or new portion of a street, avenue or highway, shall hereafter be constructed across a steam surface railroad, such street, avenue or highway, or portion of such street, avenue or highway, shall pass over or under such railroad or at grade as the Board of Railroad Commissioners shall direct. * * * The said Board of Railroad Commissioners shall determine whether such street, avenue or highway, or new portion of a street, avenue or highway, shall be constructed over or under such railroad or at grade.” In the 3d section of that act it was provided, viz.: “ All acts and parts of acts inconsistent with this act are hereby repealed.” In the 4tli section it was provided, viz.: “ This act shall take effect the first day of July, eighteen hundred and ninety-seven.”

Apparently the statute inaugurated a system by which the Railroad Commissioners were to be consulted, and to determine the manner of crossing steam roads from and after the act took effect. When the application for a writ of mandamus was heard at Special Term, the statute to which reference has been made was in full force. (Lazarus v. M. E. R. Co., 145 N. Y. 581.) Before issuing a mandamus the court was called upon to exercise its discretion. It was properly said in the memorandum delivered by the judge who held the Special Term that granted the order from which the appeal is taken, viz.: “It is now the settled policy of the State to commit the subject of the construction of railroads and the operation thereof over public crossings to the supervision and discretion of the State Board of Railroad Commissioners, and the laws, aimed at such result should receive a construction in harmony with the purposes to be effectuated.”

The order should be affirmed, with costs.

All concurred.

Order affirmed, with costs.  