
    HORNELLSVILLE ELECTRIC RY. CO. v. NEW YORK, L. E. & W. R. CO.
    (Supreme Court, General Term, Fifth Department.
    December 26, 1894.)
    1. Intersection of Railroads—Proceeding to Determine—Notice.
    In a proceeding by a street-railroad company to determine the right and manner of intersectien of a steam railroad, a notice annexed to the petition stating that the petition would be presented to the court at a certain time is sufficient
    2. Same—Right to Crossing.
    The right of one railroad company to intersect the track of another is not subject to the objection that it is taking land already dedicated to a public use.
    8. Same—Interfering with Use of Road.
    In a proceeding to determine the right and manner of the intersection of railroad tracks, the question whether the crossing will interfere with the use of the road crossed is for the consideration of the commissioners.
    4. Same—Costs.
    Such proceeding is not strictly a condemnation proceeding, and therefore costs are governed by Code Civ. Proc. § 3240, providing that the costs of special proceedings are in the discretion of the court.
    Appeal from judgment on report of referee.
    Proceeding by the Hornellsville Electric Railway Company against the New York, Lake Erie & Western Railroad Company tti determine the right and manner of intersection of defendant railroad company by that of plaintiff in Canisteo street, in the city of Hornellsville. From a judgment determining the issues arising on plaintiff’s petition and the answer of defendant, and directing the appointment of commissioners, and from orders confirming the report of commissioners, declaring, plaintiff’s right to such intersection, and denying the costs, defendant appeals.
    Affirmed.
    
      Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    James H. Stevens, for appellant.
    DeMerville Page, for respondent.
   BRADLEY, J.

The plaintiff was duly incorporated December 17,1891. At that time, and until June 7, 1892, the statute provided that before constructing any part of its road, or instituting any proceedings for the condemnation of real property, a railroad company should make a map and profile of the route, and file it in the office of the clerk of the county in which the road is to be made, and give written notice of the time and place they were filed to the occupants of the lands over which the proposed route passed; that they, within 15 days after such notice, might, upon 10 days’ notice, make application to the court for the appointment of commissioners to examine the route, etc.; and that the corporation should not in the meantime, nor until the determination of such application (if made), institute any proceedings for the condemnation of real property. Laws 1890, c. 565, § 6. This statute, by amendment taking effect June 7, 1892, relieved surface street-railroad corporations from the operation of the provisions before mentioned. Laws 1892, c. 676, §■ 6. The plaintiff, being such a corporation, gave no written notice of any such map and profile, and no profile was filed. Nor was it required, by the statute existing at the time the proceedings were instituted by the plaintiff, to establish and acquire the right to construct its road. But by section 90 of chapter 676, Laws 1892, it was provided that “a street surface railroad corporation may file in each, of the offices in which its certificates of incorporation are filed, a statement of the names and descriptions of the streets, roads and highways in which it proposes to extend its road. Upon filing such statement such corporation shall except as otherwise provided by law have the same power and privileges to extend, construct, operate and maintain its road in such streets, roads and highways as it acquires by its incorporation to construct, operate and maintain its-road in the streets, roads and highways named in its certificate of incorporation.” After the statutory provision requiring the filing of a map and profile, and the giving of written notice thereof, ceased to exist, and in August, 1892, this proceeding was instituted by petition made in conformity with the statute, and, with notice, was duly served upon the defendant; and the latter, after making preliminary objections, and excepting to the overruling of them, answered the petition. Thereupon further proceedings were in due form had, to their conclusion.

While such provisions of section 6, c. 565, Laws 1890, were in force in their application to street surface railroad corporations, the filing of the map and profile and such a written notice was essential to the support of a proceeding of this character, to acquire the rights which the plaintiff seeks to obtain. In re Rochester Electric Ry. Co., 123 N. Y. 351, 25 N. E. 381. But as there was no such statutory provision applicable to the plaintiff’s proceeding at the time it was commenced, or thereafter, that question does not arise for consideration. By the act of 1892 (section 2) it was provided that in the certificate of incorporation of a street surface railroad should be stated “the names and description of the streets,, avenues and highways in which the road is to be constructed.” This was not made requisite by the provisions of the statute under which the plaintiff was incorporated (Laws 1890, c. 565, § 2); and it may be that the certificate contained co such statement, nor is-such amended provision applicable to the plaintiff. Its corporate existence is not questioned, and its proceedings to acquire such rights as are necessary for the construction and operation of its road must be governed by the statutes in force at the time they are taken and conducted. On April 27, 1892, the plaintiff filed in the office of the clerk of Steuben county (that being the county in which-the plaintiff’s office is located, and in which is included the entire route of its road) a map showing the route upon Canisteo street and other streets. The map so filed was, in its contents, a substantial compliance with the statute, as it contained all that was made' requisite by the provisions. Section 90 of the act of 1892. It may be assumed that the plaintiff’s certificate of incorporation was filed in the office of the clerk of the county of Steuben as well as in the-office of the secretary of state. Laws 1892, c. 687, § 5. It does not appear in the record here that such map or statement was, or was-not, filed in the office of the secretary of state. Whether or not that was necessary requires no consideration-, as the question was-not specifically raised in the proceeding. The defendant’s counsel insisted that it was essential to the legality of the proceeding that a map and profile of the proposed route be filed in the office-of the county clerk, and notice given, as required by the act of 1890.. As has been observed, the change in the statute rendered that unnecessary. The defendant’s first proposition is not sustained.

In the petition by which this proceeding was instituted was-stated the purpose of the plaintiff to extend its road along Canisteo street, and to intersect with it the defendant’s railroad tracks-where they pass over that street, and the land which the plaintiff proposed to use there for its road was definitely described. By the-petition the defendant was advised of the purpose of the proceeding,, and of the land sought for use in the intersection of its tracks; and by the service of the petition, with the requisite notice, jurisdiction-was given to the proceeding. Code Civ. Proc. § 3360; Railway Co. v. Robinson, 133 N. Y. 242, 30 N. E. 1008. While the legislature cannot dispense with all notice, it may, by statute, prescribe the-kind of notice and the mode of giving it. Stuart v. Palmer, 74 N. Y. 183. And thus is provided what is requisite to due process of law, which merely requires that a party shall be brought into court, ochave the opportunity afforded him to be duly heard there; and it is no objection that the legislature has taken away one form of remedy or notice, and provided another. People v. Supervisors of Essex Co., 70 N. Y. 228; In re Union El. R. Co. of Brooklyn, 112 N. Y. 61, 19 N. E. 664. In the present case, notice annexed to the petition was, pursuant to the statute, duly given to the defendant of the-time and place the petition would be and was presented to a special term of the supreme court held in the judicial district where the premises are situated. Code Civ. Proc. § 3361. The defendant therefore had its day in court; and it was within the jurisdiction and power of the court to grant the relief sought and obtained in the proceeding.

The defendant’s counsel also insists that the plaintiff could not condemn lands of the defendant acquired by it for, and already appropriated to, public use, and therefore could obtain no right to cross its tracks. It is true that land already dedicated by law to a public use cannot, without power expressly conferred by statute, be appropriated to another public use. In re City of Buffalo, 68 N. Y. 167. But the statute provides for the intersection of the railroad of one company by that of another. Laws 1892, c. 676, § 4, subd. 5. And it may be added that the right of crossing sought by this proceeding is not necessarily inconsistent with the purpose to which the land is already appropriated and used by the defendant; and the objection to the proposed crossing by the plaintiff’s road on the alleged ground that it will interfere with the use by the defendant of its road was for the consideration of the commissioners. In re Boston & H. R. Co., 79 N. Y. 64. The fact that the defendant had title in fee to the land at that place in the street, subject to the easement of the public, does not, for the purposes of the question here, modify the practical effect of the proposition.

The determination by the commissioners of the question of damages is not satisfactory to the defendant. There was much evidence on the subject; and that given on the part of the defendant, in view of the number of tracks, the number and frequency of trains passing over its road at that place, and the delay and hazards which it was assumed might be encountered and their consequences, tended to prove damages largely in excess of the amount awarded by the report of the commission. This evidently was based somewhat upon speculative considerations; and while, upon the evidence, the matter of damages was a subject susceptible of opinion widely differing as to the amount, the conclusion is not fairly required that the commissioners erred in their award in that respect. It does not appear that they adopted any erroneous principle in the method of estimating them. No occasion, therefore, appears for overruling their disposition of the question of damages. .

The defendant contends that the denial of its‘motion for costs was error. The general rule applicable to special proceedings is that the allowance of costs is dependent upon the discretion of the court. Code Civ. Proc. § 3240; In re Cortland & H. H. R. Co., 98 N. Y. 336. A proceeding under the statute by a railroad company to acquire the right to cross the tracks of another railroad company is not, in the strict sense of the term, a condemnation proceeding to acquire title to land, and the rule of discretion before mentioned as to costs is applicable. In re Lima & Honeoye Falls Ry. Co., 68 Hun, 252, 22 N. Y. Supp. 967. This may, I think, be treated as such a proceeding. In re Lockport & B. R. Co., 77 N. Y. 557; Buffalo, B. & L. R. Co. v. New York, L. E. & W. R. Co., 72 Hun, 583, 25 N. Y. Supp. 265. In that view no substantial reason appears to require the court, on this review, to disagree with the special term on the subject of costs. But, if it be assumed that this case comes within the meaning of a proceeding to condemn real property, it is not seen that the defendant was, as matter of right, entitled to costs. The statute in such case provides that the moving party, before service of petition, may make a written offer to purchase the property at a specified price, that the owner may accept the offer, and thereupon an order may be entered to accomplish the purpose of the proceeding. If, however, the petitioner makes no offer, or the defendant does not accept that made, and the amount awarded exceeds that of the offer, the defendant -is entitled to costs; but if a trial is had, and all the issues are determined in favor of the plaintiff, the defendant is not entitled to costs. Code Civ. Proc. § 3372. In the present case the plaintiff made no offer, the defendant answered the petition, and all the material issues were determined in favor of the plaintiff. The trial mentioned in that section has reference to issues raised by the petition and answer, and referred to in section 3367. In Re Lake Shore & M. S. Ry. Co., 65 Hun, 538, 20 N. Y. Supp. 573, all the costs awarded may be deemed to have been allowed by the exercise of the discretion of the court. No other question requires the expression of consideration. The judgment and orders should be affirmed. All concur.  