#### The Mayor, Aldermen and Commonalty of the City of New York, Appellant, *v.*Broadway and Seventh Avenue Railroad Company, Respondent. (Paving Case No. 3.)ϯ

First Department,

March 12, 1909.

Railroad — liability for repaving streets — waiver of notice required by section 98, Railroad Law.

Where, subsequent to the enactment of section 98 of the Railroad Law, imposing upon a railroad the expense incurred by a municipality in paving or repairing the portion of a street between its tracks and two feet outside thereof in case the railroad does not make such repairs within thirty days after notice to do so, hut before said section went into effect, a municipality gave notice to a *835railroad that it would be held for the cost of such repaving if it did not make arrangements to bear its share of the expense and the railroad replied that it would reimburse the city for the expense of any repavement for which “it might be lawfully liable,” there was a waiver of the notice required by said section even though the notice was insufficient under the section.

Having expressly waived the statutory notice, the railroad can be held to its statutory liability for the cost to the city of repaving the street between and adjoining the tracks.

The provision of section 98 of the Railroad Law requiring a railroad to “have and keep in permanent repair that portion of such street * * * between the tracks,” etc., charges a railroad with liability for its portion of the cost of a new and improved pavement when required by new conditions, not merely for the cost of repairing an old pavement.

A railroad unwilling to meet the obligations imposed by statute may give up its franchises, but if it continues to operate its road then it must meet its statutory duties.

Appeal by the plaintiff, The Mayor, Aldermen and Commonalty of the City of Ne.w York, from a judgment of, the Supreme Court in 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.

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

*Arthur H.*Masten, for the respondent.

ϯ

 For opinion of referee see N. Y. Supr. Ct. Cases & Briefs of Counsel (State Law Library), Vol. —, No. —, p. 256 *et*seq.-— [Rep.

Ingraham, J.:

In this case the plaintiff seeks to hold the defendant liable for the cost of repaving certain streets in the city of New York occupied by the defendant’s tracks. John Kerr and others acquired the right to use certain streets in the city .of New York for a street railroad under the provisions of chapter 513 of the Laws of 1860, and by an agreement with the individuals named in that act the rights thereby acquired were sold, and transferred to the defendant; and by subsequent agreements and leases, the defendant acquired the right to construct and operate its railroad in several other of the streets of the city of New York.

It seems that prior to the year 1890 those streets had been paved with what was called trap block pavement; that that pavement had become much worn and out of repair, and it became necessary to replace it with a new and improved pavement. This trap block *836pavement had become obsolete, and a granite block pavement laid upon .concrete was substituted for it. In the year 1890 the Railroad Law (Laws of 1890, chap. 565) was passed, to take effect on May 1, 1891. Section 98 of that act provided that: “ Every such corporation (street surface railroad company), so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village, shall have and keep in permanent repair that portion of. such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the sujieiwision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe. In case of the neglect of any corporation to make pavements or repairs after the expiration of thirty days’ notice to do so, the local authorities may make the same at the expense of such corporation.” This act had been passed in 1890 and was to take effect on May 1, 1891. After the act was passed but before it took effect, the city had determined that this new granite block pavement was necessary, and on October 15, 1890, the commissioner of public works wrote a letter to the defendant, calling its attention to a former letter “ of 30th ultimo,” which was not produced but which is stated to have notified the defendant that the department was about to repave Church street from Canal street to Chambers street, and that the defendant was responsible for the condition of the pavement in and about its railroad tracks, and that the department had called upon the defendant to state whether it would have the work done by the contractor of the city’s portion of the work or what the defendant proposed to do in the matter, and said that the commissioner had not received any reply to the letter, and, therefore, renewed the notice and request for a prompt reply, the letter then stating: “ If your company does not make arrangements for'its share of the repavement work, the work will be done by this Department, and the cost of repavement in and about the rail-tracks charged against the company.” On October 16, 1890, the defendant replied to this letter, stating that the defendant was not advised that it was responsible for any part of the expense connected therewith, but if in error as to this, they would be glad to have the commissioner designate the authority for the obligation indicated by his letter. There is no letter of *837the commissioner of public works in reply to this letter of October sixteenth in evidence, but on March 21, 1891, the defendant wrote to the commissioner of public works that in reply to his letter “ of the 26th ultimo ” the company had to say that it would put its track rails in proper repair at the points indicated at or before the time ' when the new pavement was laid, *“*and for any repavement done by the Department, for the expense of which it may be lawfully liable, it will reimburse your Department.” The case shows that there had been considerable correspondence prior to this time between the commissioner of public works and the defendant in relation to the repavement of various streets in the city of Hew York, and that the department had notified the railroad from time to time that it was the intention of the department to relay the streets through which the defendant’s railroad ran with new pavement ; and in the letter of October 15, 1890, express notice was given that if the defendant did not make arrangements for its share of the repavement work, the work would be done by the department and the*cost of repaving .in and about the railroad track charged against the company; and in reply to that letter the defendant' stated that any repavement done by the department for the expense of which it might be lawfully liable it would reimburse the department.

As before stated, the General Railroad Law imposing an express liability upon the railroad company .for this pavement had been passed,, and was to take effect about a month after this letter was written. Here was an express notice given to the company that the streets were to be repaved, with a demand that the company should relay the pavement between its tracks, and a notice by the company that for any repavement for which it was legally liable it would reimburse the department for the expense. I think this was a clear waiver by the defendant of notice to repave, and justified the department in understanding that the railroad company did not wish to do the repaving itself but authorized the department to repave the streets, and agreed to reimburse the department for the expense for which the railroad company would be legally liable. It is not essential that we should determine whether the actual notice that was given to the defendant by the plaintiff was sufficient under section 98 of the Railroad Law, because the act of the *838defendant was a distinct waiver of such notice, with an agreement to pay such part of the cost of the repavement as to which it was legally liable if the city did the work. That justified the department, in making contracts and going on with the pavement between the railroad tracks, as well as outside of them, and an obligation would then arise by which the railroad company would be liable for the cost of such pavement incurred by the city in carrying out the work. The contracts proved by the plaintiff were all let- after the law went into effect,* with the exception of the Church street contract. That contract was dated December 11,. 1890 ; work was commenced on it on April 24, 1891, and the work was completed on June 4, 1891; and as to this contract, while it was dated prior to March 21, 1891, the date of the letter, work was not commenced until after that date, and but seven days before the statute, went into effect. So, it seems to me, that whatever obligation there was upon the part of the plaintiff to give the defendant thirty days’ notice, it was waived by this letter of the defendant, and the defendant was liable to pay for -the cost to the city of all pavefiient in this street which the defendant was bound to make, made after the receipt of this letter, upon which a liability was imposed by section 98 of the General Bailroad Law. This section required the railroad to *“*have and keep in permanent repair that- portion of such street,” etc., “ between its tracks, the rails of its tracks, and two feet in width outside of its tracks.” Having and keeping the street in permanent repair requires something more than patching up an old pavement when, in consequence of changed conditions, a new and improved kind of pavement is required. It was so expressly held in *Mayor, etc., of N. Y.*v. *Harlem Bridge, M. & F. R. Co.*(186 N. Y. 304).

I think, therefore, that the defendant waived the right to require notice under section 98 of the Bailroad Law; that the city was authorized to go on and repave these streets ; that the defendant was responsible for the cost of such repavement, and that in this case for such cost the city was entitled to a judgment.

It is not necessary to discuss the constitutional objection raised by the defendant to the imposition of this liability. The defendant was under no obligation to operate its railroad in these streets in *839the city of New York. It could have resigned its franchise and refused to proceed under it upon the terms imposed by the statute; but, having accepted the franchise and having continued to operate its road, it became liable for the conditions imposed by the Legislature.

It follows that the judgment appealed from must be 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 1893, chap. 676.— [Rep.