
    The City of New York, Respondent, v. Brooklyn, Queens County and Suburban Railroad Company, Appellant.
    First Department,
    May 29, 1913.
    Railroad—.liability for expense of repaving street — municipal corporations — county of Queens — lack of authority to release railroad from statutory obligation.
    The county of Queens,, when acting under the authority of chapter 596 of the Laws of 1897, empowering it to acquire lands for the opening of Jamaica avenue, had no power, in consideration of a conveyance of lands, to release a railroad corporation from its obligation under section 98 (now section 178) of the Railroad Law to keep in repair the portion of the street between its tracks, the rails of its tracks, and two feet in width outside of its tracks.
    
      Hence, such agreement is no defense to an action by the city of New York to recover from such railroad the expense of repaving the portion of said street which the defendant was under the statutory duty to repair, it having refused to do so after notice.
    
      It seems, however, that as the railroad company is liable for said expense under the statute, the consideration for its conveyance may have failed in part.
    Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of November, 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to a separate defense contained in the answer, and granting the relief asked in the complaint.
    
      C. A. Collin, for the appellant.
    
      Terence Farley, for the respondent.
   McLaughlin, J.:

Action to recover the sum of $68,739.82 which, the plaintiff expended in repairing or repaving a portion of Jamaica avenue, a public street formerly in the county of Queens but now embraced within the corporate limits of the plaintiff.

The right to recover this sum from the defendant is based upon the'provisions of section 98 of the former Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as amd. by Laws of 1892, chap. 676), now section 178 of the Railroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], since amd. by Laws of 1912, chap. 368), which provides that every street surface railroad corporation, so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village, shall keep in repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, and if it fails to do so after the expiration of thirty days’ notice, "then the local authorities may make the repairs and charge the expense thereof to such corporation.

The defendant, while not denying that the portion of Jamaica avenue upon which the repairs were made was a public street within the corporate limits of the plaintiff, and that the amount claimed was properly expended, insists that it is not liable since there is no legal obligation resting upon it to make the repairs. Its claim is, in substance, that that portion of Jamaica avenue referred to in the complaint was originally owned in fee simple by the Brooklyn, Jamaica and Flatbush Turnpike Roads, a corporation duly organized under the statutes of the State of New York in March,"1809 (See Laws of 1809, chap. 74, as amd.); that thereafter, by mesne conveyances, mergers and consolidations, such right, title and interest was vested in the defendant; that on the 16th of August, 1897, pursuant to the provisions of chapter 696 of the Laws of that year, it entered into an agreement with the county of Queens, acting through its board of supervisors, to convey said portion of Jamaica avenue for the purpose of enabling it to lay out the same as a public highway, subject, however, to the retention of the fee thereof by the defendant and to its existing rights, franchises and privileges to maintain and operate a street surface railroad thereon; that in the maintenance and operation of such road it should “not be liable for or chargeable with the expense of paving, macadamizing or otherwise repairing or keeping in repair, any portion of said road between its tracks or elsewhere at-any time hereafter,” except to restore the surface of the road in case it relaid or repaired its tracks ór appurtenances; that on the 16th of August, 1898, in pursuance of the agreement, it executed and delivered a deed of conveyance, the agreement being set forth at length therein; that the only consideration for the conveyance was the agreement; and that under the provisions of chapter 378 of the Laws of 1897 (which took effect January 1, 1898) the county of Queens was merged into and became a part of the plaintiff, and it thereby acquired all the rights and assumed all the obligations ' of such county, under the ■ provisions of said deed and agreement.

The defendant set forth the foregoing facts in its answer, to which the plaintiff demurred, on the ground that they did not constitute a defense to the action. The demurrer was sustained, and the defendant appeals,

The real question presented is whether the county of Queens had the power, at the time it entered into the. agreement, as a part of the consideration for the conveyance, to relieve the defendant from the obligation to repair and repave so much of the street as is here involved. If it did not have that power, then, assuming as we must that the facts pleaded are true, nevertheless they do not constitute a defense. Whatever power the county of Queens had to make the agreement was derived from chapter 596 of the Laws of 1897. This act authorized it to acquire, by purchase or condemnation, the road in question, but there is nothing in the act to indicate that the Legislature, while conferring this power upon the county, acting through its board of supervisors, thereby intended to relieve the defendant from the operas tion of section 98 of the Railroad Law, which specifically provides that “Every street surface railroad corporation, so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village, shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks. ” The act ought not to be construed as giving the exemption in the absence of specific words showing that such power was intended to be conveyed.

In Weed v. Common Council (26 Misc. Rep. 208; affd. sub nom. Davidge v. Common Council, 62 App. Div. 525) it was held that the common council had no power to exempt a street railroad company by contract or otherwise from the provisions of the Railroad Law, and this seems to be clearly intimated in Conway v. City of Rochester (157 N. Y. 33) where Chief Judge Parker, referring to section 98, said: “It will next be observed that the party charged with the performance of the duty is specifically pointed out. The street surface railroad corporation continuing to use any of its tracks shall,’ says the statute, keep in permanent repair ’ such portion of the street. This language is mandatory. The municipal authorities áre given no authority to relieve the railroad corporation of the whole or any portion of the needed repairs, or to impose the whole or any portion of the cost upon the abutting owners or the city at large.”

To hold that the county of Queens had the: power to do what-the appellant claims is, in effect, to hold it could, by contract, repeal section 98 of the Railroad Law so far as it imposed upon street surface railroad companies lying' within' the county the duty of sharing the expenses of paving public streets. This ought not to be idone, certainly in the absence of clear and •specific enactment. (Village of Mechanicville v. S. & M. St. R. Co., 35 Misc. Rep. 513; affd., 67 App. Div. 628; 174 N. Y. 507.)

It is urged by the respondent that the provision in the deed relieving the railroad company from the expense of paving and keeping in repair the street was not for the purpose of exempting defendant from-sharing its portion of the burden of taxation applicable toi street surface railroads; but was a part of the consideration for the conveyance. This is more plausible than sound. No matter what may be said, the purpose of it was to thereafter prevent the railroad coming within the provisions of section 98 of the Railroad Law which required it to keep a portion of the street in repair. ■ The deed expressly recited that the consideration was “ the sum of one dollar.”

Attention is called to authorities- involving contracts whereby cities and villages have agreed, in consideration of water to be furnished to them.; by water companies, to pay a certain proportion of the taxós levied upon the companies, and that it has been held that such contracts were not illegal. (Utica Water Works Co. v. City of Utica, 31 Hun, 426; Grant v. City of Davenport, 36 Iowa, 396; Cartersville I., G. & W. Co. v. Mayor, etc., of Cartersville, 89 Ga. 683; Maine Water Co. v. City of Waterville, 93 Maine, 586.) But the contracts in. these cases were sustained, not on the theory of an exemption to. pay taxes, but on the ground tha/t the municipalities agreed to compensate the water companies for services to be performed each year by the payment of a certain sum proportionate to the amount of the taxes levied against the companies for that year.,

These authorities are not controlling, nor do I think them applicable to the question here under review. It may be if the •defendant is subject to the provisions of section 98 of the Railroad Law and compelled to repave the street as therein provided that the consideration of the agreement for the conveyance, at least to that extent, fails; but if so, the defendant has its remedy, but not in this action. So long as it operates its railroad, unless relieved by the Legislature, it must repair the surface of the street between its tracks, the rails of its tracks, and two feet in width outside of its tracks, and if it does not do that when required by the plaintiff, then it must pay the expense to which the plaintiff is put in doing it.

The judgment appealed from, therefore, should be affirmed, with costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment affirmed, with costs.  