
    In the Matter of the Opening of Delavan Avenue, in the City of Buffalo, across the Tracks of the New York Central and Hudson River Railroad Company. New York Central and Hudson River Railroad Company, Appellant; City of Buffalo, Respondent.
    
      Street opening, across a railroad—appeal .from the determination of the conimon council — certiorari issued to b’ing up the record for review.
    
    Where an appeal is taken to the Appellate Division, under section 62 of the Bail-, road Law, from a determination of the common council of a city to lay out a new stretit across the right of way .of a steam surface railroad, and the parties are unable to agree as to the record to be submitted on the appeal, a writ of certiorari will be issued under section 2124 of the Code of Civil Procedure, requiring the common council of the city to return to. the court all the papers and proceedings upon -which it acted in making the determination.
    The return should include all information, however obtained, which was before i the common council,. as to the interests of the community which are to he affected by the determination, the uses the highway will serve, its location with reference to other streets and other means of communication, the necessity for the new highway, the -ability of the city to pay the expense, and as to any other pertinent matters.
    Motion by thé City of Buffalo for a writ of certiorari, to be addressed to the common council of the city of Buffalo, to return. all matters upon which it acted in laying out Delavan avenue in said city.
    
      Henry W. EiTleen, for the motion.
    
      Charles A. Pooley, opposed.
   Rumsey, J.:

In the month of July, 1900, the common council of the city of Buffalo passed an ordinance determining that it was necessary to open Delavan avenue across the tracks and right of way of the New York Central and Hudson River Railroad Company, and directing the corporation counsel to apply to the Board of Railroad Commissioners to ascertain the manner in which the avenue should cross the tracks in accordance with the provisions of section 61 of the Railroad Law. The matter had evidently been pending before the common council for some time and had been in charge of a committee ; notice had been given to the railroad company pursuant to the statute; a hearing had been had at which that company was represented and an affidavit in its behalf was filed by its attorney.

After the ordinance was passed an appeal was taken to this court. The counsel of the parties not having been able to agree as to the form of a return, the corporation counsel now moves for a writ of certiorari addressed to the common council requiring them to return to this court all the papers and proceedings upon which they acted in opening this avenue.

The general power of legislation in the city of Buffalo is given to the common council by the charter of that city. (§ 4.) Among those powers is the authority to lay out streets. (§ 391.) There is no claim that this has not been exercised in the manner, prescribed by the charter. By section 61 of the Railroad Law it is provided that whenever it shall be determined that a new street shall be constructed across the right of way of a steam surface railroad, the Board of Railroad Commissioners shall direct whether it shall pass under or over the railroad or at grade. The statute requires that notice of the intention to lay out a street must be given to the railroad company by the municipal corporation at least fifteen days before the making of the order laying it out, and in that notice shall be designated a time and place when and where a hearing will be given to .the railroad company, which shall have the right to be heard upon the question of the necessity of such street.

It is provided by section 62 of the Railroad Law that an appeal will lie to this court from any decision made pursuant to the provisions of section 60 or 61 of that act, and it has been held in this case that under that provision an appeal lies from the determination of the common council to lay out this avenue. (Matter of Delavan Avenue, 167 N. Y. 256.) The statute, however, Which authorizes. an appeal in this proceeding, contains no directions as to what shall constitute the record upon which the appeal is'to be heard, and we are called upon by this motion to determine what papers or information are to be returned to this court upon which the appeal can be decided, and the manner in which that return shall be made'.

The proceeding itself is quite anomalous. The power of laying out streets and highways is .purely legislative in its nature (Dillon Mun. Corp. § 680), and a municipal corporation has in that regard whatever power is delegated to it by the Legislature. But whenever it is called upon to act upon these matters it must act as it would in any other purely legislative matter before it,-unless the manner of its proceeding is prescribed by its. charter. ■

In determining what action to take with respect to laying out a street, or whether to take any action at all, the common council is not required to proceed upon legal evidence. Like all other legislative bodies, it acts upon its own notions of expediency, and-it judges as to the propriety of. what it shall do by such information as it may get, either from the personal knowledge of the members or upon information secured for it by a committee appointed for that purpose, or by the 'statements of persons whom it permits to appear before it, or by its own personal, view of the locality oil which action is to be taken. These are all legitimate ways.for a legislative body to procure such knowledge,' upon any question, as may. enable it to act.

The statute in question does not require the common council before taking action to procure information in any particular .way-; nor does it limit its powers by anything except the mere question of expediency and propriety. It is required to give fifteen days’ notice to the railroad company which may be affected by the laying out of the highway. Beyond that the statute imposes no restrictions upon its action, except such as the law imposes upon the common council of every municipality to proceed within their powers, and such as good faith imposes upon them to act for the best interests of those subject to their authority.

Ordinarily the exercise of its power by a common council is not re viewable because its acts are not strictly judicial or even quasi judicial. It is purely legislative. The only remedy before this statute was passed was by an appeal to the higher court of the Legislature, or by changing the personality of the common council at the next election and thus reversing its act if it was not satisfactory to the taxpayers. While an appeal has now been permitted to this court, neither the nature nor the extent of the power, nor the manner of its exercise by the common council has been in the slightest degree affected. It is still at liberty to open the highway when in its knowledge it is expedient to do so; it may still act upon the same information and acquire it in the same way as any fact which it is necessary for it to know to base its judgment upon. There is no such thing, nor can there be such a thing, as a. record.upon which it can be said that its acts are based; but when it is called upon to defend its action it is at liberty to say not only that it had before it certain papers, but if its members had other information upon which they might properly act and upon which they did act, they should have an opportunity to present that information to the appellate tribunal in order that it may stand in their place and judge likewise of the propriety and expediency of the act which it is called upon to review.

At common law whenever a matter was pending in an appellate court and it was alleged that the record was defective, so that all the proceedings in the matter were not before it, tho remedy was by a writ of certiorari directed to the tribunal whose proceedings were under review, requiring it to return to the appellate court all papers and proceedings upon which it acted in making the adjudication. (Powell Appell. Proc. 347.) This was the usual and ordinary remedy, not only at common law, but under the Revised Statutes, and in criminal as well as in civil proceedings. (Graham v. People, 6 Lans. 149.)

The writ has been retained for these purposes by section 2124 of the Code of Civil Procedure, which gives to a court exercising jurisdiction of an appellate nature authority to'issue a writ of certiorari requiring the body whose proceedings are under review to make a return to the court issuing the writ at a time and place fixed in the writ for the purpose, of supplying any diminution, variance or other defect in the record before the court in any case where justice requires'that'the'-defect' should be supplied and adequate relief cannot be obtained by means of an order. This case is precisely within the provisions of that section of the Code, and authorizes the issue of a writ such as is asked for.

But it is somewhat difficult'to direct precisely what is to be returned by the common council. The propriety of its act is to be reviewed. To enable the court to do that understandingly and with justice to the city as well as to the railroad company, it is our duty to obtain all the information which was before the common council and upon which it acted in determining that this street should be laid out. The nature of that information and the manner in which it might have been secured by the common council has already been indicated in a former part of this opinion. It is to be remembered that no strictly legal right is involved in this proceeding. The question is merely as to the propriety and expediency of laying out this highway. That must be determined by. a consideration of the interests of the community which are to be affected by it; the uses the highway will serve ; its location with reference to other streets and other means of communication ; the necessities for a new highway in • that particular place; the ability of the city tó pay the expense, and many other considerations which need not be expressed but the existence of which all persons will admit.

'These matters were all before the common council. All such matters should be returned to us. Whatever information was before that body, either from their own observation or derived from the reports of committees or otherwise, should be returned to us in order that this court may be able to judge intelligently of the propriety of the act which it is' called upon to review. It must be remembered that this court is not called upon to decide now- as to-the manner in which this street shall cross the tracks of the railroad company.* That is a matter for further consideration'by the Board of Railroad Commissioners when the application shall be made to them in that behalf. All that is to be decided by us is, whether in view of all the information that shall be returned to us by the common council, their action in determining to lay out this street was ill-advised and should be reversed. To enable us to obtain this information, this writ of certiorari should be granted, returnable to this court.

All concurred.

Motion granted and writ of certiorari directed to the common •council of the city of Buffalo, to issue in accordance with the opinion •of Bttmsey, J.  