#### The Mayor, Aldermen and Commonalty of the City *of*New York, Appellant, *v.*Ninth Avenue Railroad Company, Respondent. (Paving Case No. 4.) *

First Department,

March 12, 1909.

Railroad — liability for repaving street — obligations where repaving required by franchise — waiver of notice required by statute.

Where a franchise to maintain a surface railroad on the city streets granted by resolution of the common council and confirmed by statute requires the grantee to keep the space between the tracks and a space for two feet on each side in thorough repair, the grantee and its successors are-obliged to lay from time to time such pavement as may be necessary to keep the street in thorough repair.

A railroad which, on receiving notice that it is required to repave the space between its tracks and two feet outside and that the city will lay such pave'ment at its expense if it fails to do so, replies that it is not responsible for the proposed new pavement and, therefore, has no desire to negotiate with the . municipal contractors for repaving any portion of the street within or about its tracks, waives the thirty days’ notice to which it is entitled under section 98 of the Railroad Law and is liable to the city for the cost of such repaving, even though the demand by the city, while made subsequent to the enactment of said section, was made before it took effect.

Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court *840in favor of the defendant,, entered in the office of the clerk of the county of New York on the 3d day of February, 1908, upon the report of a referee dismissing the complaint herein.

*Theodore Connoly*and *Royal E. T. Riggs,*for the appellant.

*Arthur H. Masten,*for the respondent.

*

 For opinion of referee see N. Y, Supr. Ct. Cases & Briefs of Counsel (State Law Library), Vol. —, No. —, p. 293 *et seq.—*[Rep.

Ingraham, J.:

This action was to recover for the expense of repaving certain streets in the city of New York occupied by the defendant’s railroad. The case was argued with the case of *Mayor*v. *Broadway & 7th Ave. R. R. Co., Paving Case No. 3*(130 App. Div. 834), decided herewith. The defendant in this ease -acquired a franchise by . virtue of a resolution of the common council of the city of New York passed on the 28th day of December, 1853, which provided that the said grantees (the defendant’s predecessors in title) “ shall keep the space between the tracks and the space for two feet each side of the same at all times in thorough repair.” By chapter 411 of the Laws of 1860 this grant was confirmed and the grantees were authorized and empowered to lay, construct, operate and run a railroad over, upon and through the avenues, streets and places in .said resolution mentioned, with the like power and subject to the like regulations as those specified in the said resolution. The deféndant subsequently acquired the right of grantees in this franchise and constructed the road under its provisions. It seems to me that this clearly imposed upon the defendant the obligation from time to time to' lay such pavements in the street as should be necessary to keep it in thorough repair. By the provisions of section 98 of the General Bailroad Law (Laws of 1890, chap. 565*), which took effect on May 1, 1891, the obligation was imposed upon all street surface railroads to have and keep in repair the pavement between their tracks, the rails of their tracks, and two feet outside of their tracks, a provision which was discussed in the opinion in the *Broadway da 7th Ave.*case, decided herewith. On February 24, 1890, the commissioner of public works addressed a letter to the defendant calling its attention • to the fact that the city was about to repave certain streets with granite block pave*841ment; that the defendant was under an obligation to repave the space between the tracks, and notifying the defendant that unless it complied with its obligation to repave these streets the department would proceed to make such repavement at the expense of the defendant. No reply having been received to this letter, on June 10, 1890, the commissioner again notified the defendant that the department was about to enter into a contract for repaving certain streets, asking the defendant whether it would do the work or preferred to have the work done under the department contracts and pay the city for the expense incurred. On February 26, 1891, a similar notice was given to the defendant in relation to certain other streets specified in the notice; and on March 19,1891, the commissioner again called attention to these notices and stated that he was without reply and that no reply had been received; whereupon the defendant wrote to the commissioner that the pavements between the defendant’s rails and the space for two feet each side of the same in the street had been kept by the company at all times in thorough repair, and it was advised that the company was not responsible for the proposed new pavement mentioned in the commissioner’s letter. “We therefore have no desire r to negotiate with your contractors for repavement of any portion of the streets within or about our tracks.” Following this notice, the city went on and completed the pavement.

I think this was a waiver of the requirements for notice and justified the city in proceeding with the repavement required without further notice to the defendant, and as both by the original resolution of the common council under which the defendant acquired the right to construct its railroads in these streets, and under the provisions of section 98 of the Eailroad Law of 1890, the defendant was bound to repave the streets when necessary, that the defendant was liable to the plaintiff for the cost of the repavemeuts.

It follows that the judgment in this case is reversed and a new trial ordered before the same referee, with costs to the appellant to abide the event.

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

Judgment reversed, new trial ordered before the same referee, costs to appellant to abide event.

*

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