
    Abbott P. Brush, Respondent, v. The New York, New Haven and Hartford Railroad Company et al., Appellants.
    Railroads—highways — extension of street across a railroad by an overhead bridge — such extension although affecting injuriously easements of abutting landowner should not be restrained by an injunction requiring elimination of crossing in event of non-payment of damages, but only if crossing is not approved by public service commission.
    Where a street, which did not theretofore cross a railroad, was extended and carried over the railroad tracks by an overhead bridge, the opening of the street across the railroad was the opening of a new street, or new portion of a street, within the express terms of section 61 of the Railroad Law (L. 1890, eh. 565, as amd. L. 1898, ch. 520), and the erection of the bridge and its approaches without the consent of the railroad commissioners, as then required by said section 61, now section 90 of the Railroad Law (L. 1910, ch. 481, constituting Cons. Laws, ch. 49, § 90, as amd. L. 1913, ch. 744), was an unlawful obstruction of the highway, and an owner of abutting land, whose easements of light, air and access to the street were injuriously affected by such bridge and approaches, has a right of action on account of the resulting injury. He is not entitled, however, to an absolute judgment requiring the elimination of the overhead crossing in .the event of the non-payment of his damages, but only for its elimination if it is not now or hereafter made satisfactory to the public service commission which has succeeded to the functions of the board of railroad commissioners. The judgment should be modified so as to enjoin the railroad company from maintaining the bridge across its railroad unless and until the said bridge and its approaches shall receive the sanction of the public service commission under section 90 of the existing Railroad Law. (McCabe v. City of JYeio Yoi% 213 1ST. Y. 468, distinguished.)
    
      Brush v. JY. Y, 1Y. H. & II. R. R. Co., 162 App. Div. 731, modified.
    (Argued April 24, 1916;
    decided May 12, 1916.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 17, 1914, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
    
      The nature of the action and the facts, so far as matetial, are stated in the opinion.
    
      Robert L. Luce and Charles M. Sheafe, Jr., for New York, New Haven and Hartford Railroad Company, appellant.
    There was no change of grade in Baychester avenue; it was the original establishment of a grade. Section 951 of the New York city charter prohibits any damages for the original establishment of the grade of a street, or where the abutting property is vacant. (McCabe v. City of New York, 213 N. Y. 468; Triest v. City of New York, 193 N. Y. 525; People ex rel. Flaxman v. Hennessy, 74 Misc. Rep. 166; People ex rel. Massolles v. Hennessy, 149 App. Div. 952; 207 N. Y. 748; Stillman v. City of Olean, 211 N. Y. 168; Elliott on Streets & Roads [3d ed.], § 128; City of Cohoes v. D. & H. Co., 134 N. Y. 397; Matter of Olinger, 160 App. Div. 96; People ex rel. Jones v. Dickey, 206 N. Y. 581; Matter of Grade Cross ing Commissioners of Buffalo, 209 N. Y. 139.) The grade of Baychester avenue as fixed by the board of estimate and apportionment avoided a grade crossing; application to the public service commission could have accomplished nothing more. (People ex rel. Simon v. Bradley, 207 N. Y. 592; Matter of N. Y. C. & H. R. R. R. Co., 200 N. Y. 121; Matter of B. & A. R. R. Co., 170 N. Y. 619; 64 App. Div. 257; Matter of Grade Crossing Commissioners, 154 N. Y. 550; McCabe v. City of New York, 213 N. Y. 468; Smith v. B. & A. R. R. Co., 181 N. Y. 132; Matter of Grade Crossing Commissioners, 201 N. Y. 32; People ex rel. Hallock v. Hennessy, 205 N. Y. 301; People ex rel. Flaxman v. Hennessy, 74 Misc. Rep. 166.)
    
      Lamar Hardy, Corporation Counsel (Charles J. Nehrbas of counsel), for the City of New York, appellant.
    It was not necessary to comply with the Railroad Law in order to construct the bridge and its approaches in Baychester avenue. (McCabe v. City of New York, 213 N. Y. 468; Brush v. N. Y., N. H. & H. R. R. Co., 162 App. Div. 731; Stuart v. Palmer, 74 N. Y. 183; Matter of Union El. R. Co., 112 N. Y. 61; People ex rel. Astor v. Dickey, 157 App. Div. 794; 211 N. Y. 599; Matter of Hunt v. Vil. of Otego, 160 App. Div. 158; Matter of Borup, 182 N. Y. 222.) Failure to comply with the Railroad Law did not work to the disadvantage of the plaintiff. (Smith v. Boston & Albany R. R. Co., 181 N. Y. 140; People ex rel. Dole v. Town of Hamburg, 193 N. Y. 614; Code Civ. Proc. § 3383; Matter of City of New York, 163 N. Y. 10; People ex rel. Cladel v. Seaman, 168 App. Div. 67.)
    
      Ralph E. Brush for respondent.
    The city and railroad company had absolutely no right to eliminate a grade crossing without complying with section 61 of the Railroad Law. . (Matter of Ludlow St., 172 N. Y. 542; Matter of Mellenbacher v. Salamanca, 188 N. Y. 370; People ex rel. Dole v. Hamburg, 58 Misc. Rep. 643, affd., 193 N. Y. 614; Wakeman v. Miller, 147 N. Y. 657; Folmsbee v. City of New Amsterdam, 142 N. Y. 118; Fuller v. Mt. Vernon, 171 N. Y. 247.) Had the Railroad Law been complied with, plaintiff could have recovered damages under that statute, and relief should still be given thereunder. (Smith v. Boston & Albany R. R. Co., 181 N. Y. 132; People ex rel. Dole v. Town of Hamburg, 58 Misc. Rep. 614; 193 N. Y. 614; Matter of Mellenbacher v. Village of Salamanca, 188 N. Y. 370; Matter of Torge v. Village of Salamanca, 176 N. Y. 324.)
   Willard Bartlett, Ch. J.

This controversy arises over the construction of a bridge (and the approaches thereto) which carries Baychester avenue over the railroad line of the Harlem River and Port Chester Railroad Company (now leased to the New York, New Haven and Hartford Railroad Company) near Pelham Bay park in the borough of The Bronx. The plaintiff owns lands abutting on Baychester avenue and the erection of the bridge and „its approaches has partly deprived him of the beneficial use and enjoyment of his easements of light and air in and over the avenue and has interfered with convenient access to his premises, thus lessening the value thereof. The courts helow have held that the erection of the bridge and its approaches was an unlawful obstruction of the highway because the requirements of section 61 of the Railroad Law, now section 90 of the present Railroad Law (L. 1910, ch. 481, constituting Cons. Laws, ch. 49, § 90, as amd. by L. 1913, ch. 744), were not complied with in that the consent of the board of railroad commissioners to the erection of the bridge was neither sought nor obtained. The court at Special Term found that the construction of the approaches to the bridge had impaired the value of the plaintiff’s abutting land in the sum of $700, and the judgment restrains the defendant railroad company from continuing to maintain or use the bridge unless it pays the damages thus assessed.

Prior to the construction of the bridge Baychester avenue, or Main avenue as it was formerly called, did not cross the railroad line; and it appears to be conceded by all parties that there was no right of way at this point across the property of the road. Indeed, the trial court expressly found that the railroad “ has always, down to the acquisition of Baychester avenue by the city, maintained gates at the northern side of its property across Baychester avenue which gates had locks thereon.”

The opening of Baychester avenue across the railroad line was, therefore,, the opening of a new street or new portion of a street; and this fact brought the case within the express terms of section 61 of the Railroad Law (L. 1890, ch. 565, amd. L. 1898, ch. 520) which provides: “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. ” This section, as we construe it, applies only to cases where the street is new or the portion which crosses the steam surface railroad is new. Hence it had no application to the change of grade which was considered in McCabe v. City of New York (213 N. Y. 468) inasmuch as the structures which were therein assailed were not in a new street or new portion of an old street but were in Thomson avenue, a street one hundred feet wide leading from Long Island City out into Queens county which had been used as a public highway for many years.

The learned counsel for the city of New York contends that the construction of the bridge approach in the case' at bar constituted an original grading of Baychester avenue; but whether this be so or not it certainly constituted the opening of a new portion of Baychester avenue which was to be constructed across a steam surface railroad and this fact made it incumbent upon the authorities under section 61 of the Railroad Law to apply to the board of railroad commissioners upon notice to the neighboring landowners to determine whether Baychester avenue should pass over or under the railroad or at grade. (Matter of City of New York [West 134th Street], 204 N.Y. 465.) The omission to take the steps prescribed by the statute in this respect rendered the opening of this new portion of Baychester avenue unlawful; and as the construction of the bridge and its approaches was an integral part of such opening their erection was also unlawful. It matters not that the railroad company and the municipal authorities had come to an agreement between themselves as to the manner in which the new portion of Baychester avenue should be opened and the crossing effected. They could not substitute their determination for that of the official body to whom the law had committed the decision of all questions as to the manner or method of carrying a new portion of a street across a steam surface railroad.

Under these circumstances we think that the courts below were right in holding that the unlawful erection of the bridge and its approaches gave the plaintiff a right of action on account of resulting injury to the easement appurtenant to his property.

The form of the judgment, however, is incorrect. It should provide, not for the elimination of the overhead crossing in the event of the non-payment of plaintiff’s damages, but only for its elimination if it is not now or is not hereafter made satisfactory to the public service commission which has succeeded 'to the functions of the board of railroad commissioners. All parties would suffer if the bridge were taken down leaving a gap in the street over the railroad tracks. What must be done is to comply with the requirements of the statute by carrying the street over the railroad in a manner which the public service commission shall approve. It is only because the approval of that body (or its predecessor, the board of railroad commissioners) has not been procured that the structure is unlawful and its erection has entitled the plaintiff to damages. The authorities should be afforded an opportunity to make it lawful by obtaining the approval of the commission to the crossing as it now exists or as it may decide that the crossing shall be changed. To this end the judgment should be modified so as to enjoin the defendant from maintaining the bridge which carries Baychester avenue across the defendant’s railroad unless and until the said bridge and its approaches in their present or some modified form shall receive the sanction of the public service commission, signified by a determination made under section 90 of the existing Railroad Law; and in order to permit the city of New York to obtain such determination the operation of the injunction should be suspended for ninety days. In all other respects the judgment should be affirmed, with costs.

Chase, Collin, Hogan, Oardozo and Seabury, JJ., concur; Hisoock, J., not sitting.

Judgment accordingly.  