APPEAL by the defendant, The New York, New Haven and Hartford Railroad Company, from an order of the Supreme Court, made at the Westchester Special Term, bearing date the 6th day of May, 1910, and entered in the office of the clerk of the county of Westchester, confirming the report of a referee.
Walter C. Anthony [Charles M. Sheafe, Jr., with him on the brief], for the appellant.
C. Morschauser, for the respondents.
The vital question in this case is as to the meaning of the words 'local authorities' in section 33 of the Railroad Law (Gen. Laws, chap. 39; Laws of 1890, chap. 565). Among other things this section provides as follows: 'At any point where a railroad crosses a street, highway, turnpike, plank-road, or traveled way, at grade, or where a steam railroad crosses a horse railroad at grade, and the corporation owning or operating such railroad refuses, upon request of the local authorities, to station a flagman or erect gates, to be opened and closed when an engine or train passes, the Supreme Court or the County
Court, may, upon the application of the local authorities and upon ten days' notice to the corporation, order that a flagman be stationed at such point, or that gates shall be erected thereat, and that a person be stationed to open and close them when an engine or train passes, or may make such other order respecting the same as it deems proper.' This statute requires that the 'local authorities' shall, in the first instance, present their request to the corporation, and, in the event of its refusal, to the court. This requirement is either arbitrary or rests upon reason. If the latter, it must be that the Legislature intended by the words 'local authorities' those persons having control and authority over the highways, who are responsible for the safety thereof, and who in the first instance were called upon to determine as to the necessity of such gates or flagman. This construction is sustained by authority. Section 91 of the Railroad Law (as amd. by Laws of 1907, chap. 156), which relates to the consents necessary to the construction of a street surface railroad, is explicit that such consent shall be 'of the local authorities having control of that portion of a street or highway upon which it is proposed to build or operate such railroad.' In construing that section the court uses this significant language: 'It is very evident, by reference to the connection in which the Legislature frequently uses the term 'local authorities,' that what is meant is, those officers on whom the administration of the government of the particular political subdivision of the State, by virtue of their office, devolves, in relation to the subject matter of the legislative provision. I think we need not delay to enforce this seemingly self-evident proposition by abundant illustration from the laws.' (Matter of Rochester Electric R. Co., 123 N.Y. 351.)
In Matter of Highway Commissioners, Town of Niagara (72 Hun, 575), the proceedings were instituted by the highway commissioners. The point was raised that they were not the local authorities referred to in the statute. It was held that they were, 'for the reason that they are the authorities who are particularly charged with the care of the highways of the town,' and the proceeding was sustained.
In Matter of Highway Commissioners, Town of Islip
Matter of Highway Commissioners, Town of Brook
haven (Id. 46), and Matter of Highway Commissioners, Town of Islip (Id. 48), the proceedings were in each instance instituted by the highway commissioners, and the question was not raised in those cases that they were not the proper authorities.
In the case of Town of Lysander v. S., L. & B. R. Co. (31 Misc. 330) the question was with regard to the necessary consent to operate a street surface railroad across the bridge over the Seneca river, and the question in the case was whether, by the words 'local authorities,' are intended the trustees of the village or the commissioners of highways of the town. It was held that the latter officers were the ones referred to, and referring to the Rochester Electric R. Co. case, above cited, the court said: 'The Court of Appeals has said that the local authorities, to whom the statute refers, as the source of consent to be given, are the officers of the city, town or village, ...