
    In the Matter of Laying Out and Opening Ludlow Street, from Hawthorne Avenue to the Westerly Line of Lands of The New York Central and Hudson River Railroad Company, in the City of Yonkers. James B. Ludlow and Jacob E. Miller, as only Surviving Executors of and Trustees under the Last Will and Testament of Thomas W. Ludlow, Jr., Deceased, Appellants; The New York Central and Hudson River Railroad Company, Respondent.
    
      Laying out a street across a railroad—notice must be given under chapter 754 of 1897 although the proceeding was begun before its passage.
    
    Chapter 754 of the Laws of 1897, requiring notice of an intention to lay out a street, avenue or highway across a steam surface railroad to be given to .the railroad company by the municipal corporation, and giving the railroad company the right to be heard before the authorities of the municipal corporation upon the question of the necessity of such street, avenue or highway, is not rendered inapplicable to a proceeding, begun under the charter of the city of Yonkers (Laws of 1895, chap. 685) before the act was passed, by section 81 of the Statutory Construction Law (Laws of "1892, chap. 677) relating to the effect of the repeal of a statute, as the act of 1897 only affects the procedure. '
    Appeal by James B. Ludlow and another, as only surviving executors of and trustees under the last will and testament of Thomas W. Ludlow, Jr., deceased, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of April, 1900, granting the motion of The Hew York Central and Hudson River Railroad Company to vacate and set aside an order appointing commissioners of estimate and assessment and all proceedings in the above-entitled matter had subsequent to the making of such order.
    
      James B. Ludlow, for the appellants.
    
      Ira A. Place [Robert A. Kutschbock with him on the brief], for the respondent.
   Sewell, J.:

Under the provisions of chapter 635 of the Laws of 1895, being the charter of the city of Yonkers, the appellants, as property owners, on the 23d day of November, 1896, presented a petition to> the common council of the city of Yonkers, praying that a street be laid out across the steam surface railroad of the respondent The petition was referred to the board of street openings for their approval, and on the 27th day of December, 1897, it was returned,duly approved, and the common council caused a notice to be published in the official city newspapers that such petition had been received, and that the common council would act thereon at a meeting to be held on the 11th day of April, 1898.

At the time stated in said notice the common council determined that the laying out and opening of said street was necessary, allowed the improvement and directed that the property rights and easements be taken. Thereafter, on an application made by the common council on the 30th day of April, 1898, an order was made at a Special Term of this court appointing three persons as commissioners to estimate and assess the expenses of the improvement and the amount of damages and benefits.

The respondent appeared at a meeting of the commissioners to hear the proofs and allegations of the parties, and objected to the proceedings on the ground that notice of intention to lay out such street had not been'given to the railroad company by the municipal corporation, and that section 61 of the Railroad Law had not been complied with. (Laws of 1890, chap. 565, as amd. by Laws of 1897, chap. 754.) The commissioners made their report, which was confirmed, and the railroad company appealed. The Appellate Division held that an appeal from an order confirming the report of the commissioners did not bring up for review any question relating to the regularity of the proceedings, and affirmed the order “without prejudice to the appellant to take such proceedings as it may be advised in respect to vacating and setting aside the order appointing commissioners in this proceeding, and all subsequent proceedings herein.”

Thereafter, and on the seventeenth day of February, the order appointing the commissioners' and all subsequent orders and proceedings were vacated and set aside upon motion of the railroad company, and from that order this appeal is taken.

Chapter 754 of the Laws of 1897, being an amendment to the Railroad Law, which was passed on May 22, and took effect on July 1, 1897, provides that “When anew 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. Mo tice of intention to lay out such street, avenue or highway, or new portion of a street, avenue or highway, across a steam surface railroad, shall be given to such railroad company by the municipal corporation at least fifteen days prior to the making of the order laying out such street, avenue or highway by service personally on the president or vice-president of the railroad corporation, or any general officer thereof. Such notice shall designate the time and place and when and where a hearing will be given to such railroad company, and such railroad company shall have the right to be heard before the authorities of such municipal corporation upon the question of the necessity of such street, avenue or highway. If the municipal corporation determines such street, avenue or highway to be necessary, it shall then apply to the board of railroad commissioners before any further proceedings are taken, to determine whether such street, avenue or highway shall pass over or under such railroad, or at grade.”

It is undisputed that no notice was given to the railroad company or any of its general officers of an intention to lay out the street; that the company was not given an opportunity to be heard as to the necessity of such street, and that no application was made to the Board of Railroad Commissioners. The question is, therefore, presented whether this statute, which is known as the Grade Cross, ing Law, applied to and affected this proceeding by imposing upon the authorities of the municipal corporation of the city of Tonkers the duty of giving the notice and hearing as therein provided.

The object of this statute was to provide a complete scheme as to crossings, whether the tracks of the railroad cross a street already laid out, or streets are laid out, opened or extended across the tracks of a railroad; and that it was not intended to be confined" to the actual physical construction of the street, as claimed by the appellants, is apparent from its provisions. The statute has a direct reference to a proceeding for laying out streets. It requires personal service of a notice of the intention to lay out the street “ prior to the making of the order laying out such street,” and gives the railroad company the right to be heard before the authorities upon the question of the necessity of such street. The right of the municipality to lay out streets across the property of a railroad remains unaffected by this legislation (People ex rel. City of Niagara Falls v. N Y. C. & N. R. R. R. Co., 158 N. Y. 410, 413), but it alters and regulates the procedure in the proceeding for that purpose in that it imposes certain additional duties with respect to a notice and hearing. Nothing can be found in the act in any way inconsistent with this conclusion, which is in harmony with the determination in Matter of North Third Avenue (32 App. Div. 394), where this court expressed an opinion that a railroad company had “ the right of appeal on the question whether the road should be laid out at all.”

The appellants also contend that this proceeding was not affected by the passage of the Grade Crossing Act, in that it was commenced before that act was passed or took effect, and was saved from its operation by section 31 of the Statutory Construction Law (Laws of 1892, chap. 677), which declares that the repeal of a statute shall not affect or impair any act done or right acquired prior to the time that such repeal takes effect, but the same may be asserted or enforced as fully and to the same extent as if the repeal had not been effected.

If the presentation of the petition to the common council commenced the proceeding for laying out the street, the effect of the Statutory Construction Law was to preserve the proceeding, but the procedure was governed by the law regulating it at the time the questions arose. It is well settled that the Legislature may change the practice of the court; and that the change will at once affect pending actions and proceedings in the absence of words of exclusion. (Southwick v. Southwick, 49 N. Y. 510; Matter of Davis, 149 id. 539.)

It is unnecessary to determine whether or not the proceeding to lay out the street in question was pending at the time this statute took effect. It is quite sufficient for the purposes of this case to note that the repealing clause of the Grade Crossing Act only repealed or affected acts inconsistent with it, and that its provisions in respect to notice and hearing are in no sense inconsistent with the charter. It invalidated nothing which had been done under .the prior act, and only imposed upon the municipal corporation additional duties relating to the procedure which ,by the terms of the act did not become imperative until more than nine months after its passagé. The act was prospective and not retrospective, and conferred upon the respondent the right to a notice of an intention to lay out the street, and the right to be heard before the authorities of the municipal ■ corporation upon the question of its necessity.

These express statutory prerequisites to jurisdiction not having been complied with, the court had no jurisdiction to make the order appointing the commissioners, and the order of the Special' Term must be affirmed, with costs.

All concurred; Jenks, J. not sitting.

Order affirmed, with ten dollars costs and disbursements.  