New-York tribune., 1910-01-04
ASK MANDAMUS
AGAINST CITY
PAYMENT OF 1925 600
SOUGHT BY l.. I. r. r.
Road FaUored by Corporation
Counsel in old Dispute OUer
Improvements.


of eliminating grade crossings along the
company's Bay Ridge and Manhattan
Beach branch lines under the provisions
OF the Brooklyn grade crossing act of
1908 The order is returnable on Thurs
day before Justice Blackmar, in the Su-
preme Court. Brooklyn
This action is the outcome of the three
years dispute between ex-Controller
Metz and the railroad company over the
Interpretation Of the act authorizing the
abolition of grade crossings in the Bor-
ough of Brooklyn, in which the Cor
poration Counsel's office has sided with
the railroad company. The Controllers
office has all along maintained that un-
der the opinions given by the Corpora
ton Counsel the city was being forced
into paying one-half the cost of a gi-
gantic grade betterment scheme not
contemplated in the legislation under au-
thority of which the work is being car
ried out. The amount for which the
railroad company now seeks payment is
the total Of claims certified to by the
Brooklyn Grade Crossing Commission,
which the former Controller refused to
pay on the ground that the city was not
legally liable.
The removal of grade crossings along
the lines of railroads in the Borough
Of Brooklyn was authorized by an act
OF the Legislature passed in 1908. and
supervision of the work was vested in
the Brooklyn Grade Crossing Commits
sion, which was created for that pur-
pose The title Of the act is Ito abolish
certain grade crossings of highways and
railways in the Borough of Brooklyn, in
the city of New York and county Of
Kings. and providing for necessary
changes in the grades of highways,
streets and avenues and of portions of
the railway and right of way of the
New York. Brooklyn & Manhattan Beach
Railway Company, leased to the Long
Island Railroad Company. and of the
Brooklyn Union Elevated Railway Com
panv leased to the Brooklyn Heights
Railway Company, so as TO abolish pres
ent and future crossings at grade, and
providing means for the payment for
such alterations and changes
The act states that wherever neces-
sary along the lines of these railways
10 abolish crossings at grade, to depress
or elevate the existing railroad" in the
case of the Brooklyn Heights line, and
the existing tracks and right of way"
in the case Of the Long Island branch
lines. the city shall bear one-half the
cost Of the work.
FILING OF COMPANYS PLANS.
In the year following the Jassage of
the act the railway companies filed plans
showing in detail the manner in which
the work was to be carried out The
plans filed by the Long Island Railroad
Company for the work on its Bay Ridge
ard Manhattan Beach branches assumed
that the language of the act meant that
the depression or elevation of the "eX-
listing right of way and tracks at points
where grade crossings had to be abOl-
ished was TO include the depression or
elevation of the entire right of way so
as TO constitute every part Of the COM
pany's right Of way rOadbed upon
which additional trackage could be laid.
AT the Bay Ridge end of the branch
line Of that name the existing streets
and avenues We're already carried over
the company's right of way by adequate
so constructed that il was impossible for
the railway company to use its entire
right of way as a roadbed for the laying
of additional trackage. The plans filed
by the company involved the removal
Of these existing bridges the depression
OF the right OF way for its full width.
except in TWO or three places. where the
right Of way is one hundred feet wide,
so as 10 remove grades in the existing
line, and the construction of new bridges
10 carry streets and avenues over the
improved right of way The contention
OF the company is that the city is liable
under the terms of the act to pay half
the cost of all this work
The Brooklyn Grade Crossing Commits
sion at once refused TO assent to the
ccmpany's view Of the meaning Of the
law, and sought the advice Of the Cor
porstion CounsePs office before asserting
TO the plans and proceeding with the
work The commission pointed out that
if the existing right of way and tracks"
were TO be elevated or depressed for the
entire width OF the right of way a ma
sonry retaining wall would be needed to
support the embankment in case of ele-
walton and TO support the abutting prop
erty in case of depression. II was also
pointed out that before the act was
passed the entire line was composed of
a one and two track road, with prOhibi-
tive grades. At places the existing right
Of way was sixty feet in width, carrying
two lines of track, and at others only
tbirty-five feet in width. carrying one
line of track
To convert the whole line into a two
and four track road the company's plans
involved the purchase of additional prop
erty along that part OF the right Of way
where il was only thirty-fve feet in
width, so that the entire original right
OF way might be used for roadbed to
accommodate additional trackage the
additionally acquired property To be used
for the sloping earth embankment at
places where the line was elevated. The
commission wanted to know whether it
was authorized by law TO elevate or
depress the entire width OF the existing
rsnt of way so as TO leave the top of
the enibankment or the bottom OF the
cut az the case might be. OF the same
width as the existing right of way, or
whether III a.lfborizea o,,1..