#### The Mayor, Aldermen and Commonalty of the City of New York, Appellant, *v.*Bleecker Street and Fulton Ferry Railroad Company, Respondent. (Paving Case No. 2.)

First Department,

March 12, 1909.

Railroad — common-law liability to repair city street — when not liable for. cost of new pavement laid within its tracks — when notice insufficient to charge railroad with obligations of section 98, Railroad Daw

*It seems,*that it is the common-law duty of a railroad occupying public streets to keep its structures in such repair that the street will be safe for travel, and if the municipal authorities change the grade of the street and lay a new pave-. *831ment the railroad is obliged to change its structures to conform to the new grade and to the materials used in the pavements and crosswalks.

But in the absence of an express statutory obligation or a contract with the municipality a railroad is not bound to bear the cost of a new and' improved pavement between its tracks when the old pavement has become worn out through use.

In the absence of a contract with the municipality the liability of a railroad to bear the expense of repaving a street is measured by section 98 .of the Railroad Law which took effect May 1, 1891. But a notice to the railroad served prior to that date which contained no distinct notice requiring it to repair a pavement or lay a new one within thirty days and which failed to'state the portions of the pavement the railroad will be required to pay for, is not sufficient to bring the railroad within the provisions of said section.

Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the City of Bew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bew York on the 3d day of February, 1908, upon the report of a referee dismissing the complaint herein.

*Royal E. T. Riggs,*for the appellant.

*Arthur H. Masten,*for the respondent.

Ingraham, J.:

This action was brought to recover from the defendant the expenses sustained by the city of New York in laying a new pavement upon certain streets occupied by the defendant railroad within the area of its tracks. The plaintiff seeks to sustain this action to recover from the defendant the cost of this repavement upon three grounds: *Fi/rst,*public policy; *second,*common law; and *third,*the General Railroad Act of 1850,* under which the defendant was incorporated. The opinion of the learned referee ϯ very satisfactorily disposes of the right of the plaintiff to recover upon the statutes in force at the time this new pavement was laid. It will be necessary to say but a few words in relation to the first two grounds upon which the plaintiff claims that the defendant is liable for the cost of this repavement.

The two grounds stated as public policy and common law *832really present one question, as to whether, without any. legislative mandate, a railroad company, legally operating a line of street railroad in the streets of a city, is under an implied obligation to pave the streets, or any part thereof, through which their lines run. It most, 1 think, be conceded that it is the duty of a railroad company, legally occupying a public street, to keep its structure in such a condition of repair that the street will be safe for travel, and it would be liable for a neglect of that duty. And that obligation would undoubtedly continue, notwithstanding any change in the character of the street, the nature of the pavement, or the grade of the street, that was made by the municipal authorities. Thus, if the municipal authorities had changed the grade of a street and laid a pavement at a new grade, the railroad company could not maintain its tracks at the former grade and thus create a condition which would make the use of the street dangerous of inconvenient for the public. So far as its stfucture was concerned, the railroad company was bound to keep it in such a condition as would conform to the established grade of the street and the established materials used in the pavement or crosswalks. But there is no claim in this case that the defendant failed in that duty. What is here claimed is not that the railroad company was bound to maintain its structure upon which it operated its cars so that the street would be safe for travel, but that it was bound to bear the cost of a new pavement within the boundaries of its tracks when the old pavement had been worn out. It is undoubtedly true, where there is a duty imposed upon a railroad company either' by express provision of law or by a contract with the municipal authorities, under which it acquired the right to use the streets, to keep the pavement within its tracks in repair, and where in consequence of the changing condition of the locality or the improvement in street paving a new kind of pavement is required, that the railroad company is bound to bear, its proportion of the expense by constructing a new pavement within the boundary which it is required to keep in repair. But all the cases in this State that have imposed this liability, to which our attention has been called, upheld the liability upon one of two grounds, either an express statutory obligation or a contract with the municipality.

The city relies upon two cases of the Supreme Court of Pennsylvania. *(Reading*v. *United Traction Co.,*202 Penn. St. 571; *833*Reading*v. *United Traction Co.,*215 id. 250.)- The liability of the railroad company in those cases, however, seems to have been restricted to one of repair, and imposed no duty upon it to tear up a pavement of antiquated style and replace it with a dif-. ferent and better one. Undoubtedly, after a new pavement had been laid, the railroad company would be required to keep such portion of the pavement as was adjacent to or a part of its structure in repair with the materials and in accordance with the new improved pavement. The question in this case is not one of repair, but to impose upon the defendant the cost of constructing the new pavement., I can find no case and no principle established in this State which imposes upon a railroad company the duty bf paying the cost of the new pavement within the boundary of its tracks where no such liability is imposed upon it by statute or contract.

In the later case in Pennsylvania (215 Penn. St. 250) the liability of the defendant seems to have been placed upon the ground that “ When the State gives up a portion of one of its highways to a particular use, without providing that what had been the duty of the municipality as to it shall continue, such duty devolves upon the party acquiring the right to use it, and a street railway company, given the right to use such portion of a street as is needed for its tracks, in taking charge of it, is charged with thé duty of properly maintaining it.” This clearly is not the law of this State. In the late case of *Mayor, etc., of N. Y.*v. *Harlem Bridge, M. & F. R. Co.*(186 N. Y. 304) the liability of the company is based upon the provisions of its original act of incorporation, which imposed the duty upon the corporation of keeping the surface of the streets inside the rails and for one foot outside thereof in good and proper order and repair. And it was held in the cases of *Mayor*v. *N. Y. & Harlem R. R. Co.*(46 N. Y. St. Repr. 349; affd., 139 N. Y. 643) and in *Mayor*v. *Eighth Avenue R. R. Co.*(7 App. Div. 84) that in the absence of some contract express or implied, or some-express statutory provision, the defendant was not liable to repair the pavement within its tracks. The conclusion, therefore, seems irresistible that in the absence of some statute or contract, no obligation is imposed upon a railroad company occupying the streets of a city to bear the expense of laying a new pavement between its tracks.

*834I am inclined to think that section 98 of chapter 565 of ..the Laws of 1890,* which took effect May 1, 1891, applied, as most of this work was done after this law took effect, and the liability of the defendant must be measured by the obligation imposed by that section. The learned referee has arrived at the conclusion that the notice given to the defendant was not sufficient to impose the liability Upon this defendant to pay the expenses incurred upon contracts made before that act took effect. The notice was served on the 26th of February, 1891. There was no distinct notice to the defendant to repair the pavement or lay a new pavement within thirty days; it made no statement as to what portion of ,the pavement the defendant was required to pay for; and the letter itself seems to refer to the change in the rails or motive power, or repairs, that would necessitate - a disturbance of the new pavement when laid. We agree with the referee that this notice, which referred to only four of the localities for which the claim is made, was not sufficient to charge the defendant under the provisions of that act.

I think, therefore, this judgment should be affirmed, with costs.

McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred.

Judgment affirmed, with costs.

*

 Chap. 140, as amd.— [Rbp.

ϯ

 For opinion of referee see N. Y. Supr. Ct. Cases & Briefs of Counsel (State Law Library), Vol.-, No.-, p. 237 *et*seq.— [Rep.

*

 Amd. by Laws of 1892, chap. 676.— [Rep.