City of Amsterdam v. Fonda, Johnstown & Gloversville Railroad , 104 N.Y.S. 411 ( 1907 )

Kellogg, J.:

Plaintiff recovered judgment for the cost of paving a public street two feet in width outside of each rail of the defendant’s single track. The defendant 'admitted its liability for the paving of one foot outside of each rail. The decision of this appeal depends, therefore, entirely upon the proper construction to be given to section 98 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676), which requires the company to keep in repair that portion of the street “ between its trades, the rails of its tracks and two feet in width outside of' its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe.”

The ties upon which the defendant’s track is laid are' eight feet in length, and the track is five feet wide, outside measurement. We. may fairly assume that the tie is about the standard length tie for railroads, and that the object of this section was to require the company to keep in repair that part of the .street which it more particularly occupies and it is liable to disturb in laying, changing, improving or altering its tracks. Assuming a track to be about five feet wide on the outside, two feet each side' of this would make the total width to be repaired by the company nine feet, and in putting in an . eiglit-fo'ot tie it is very probable that at least nine feet of the roadway would be disturbed and require attention. The situation, therefore, fairly seems to indicate that the intention was to cover a space two feet outside of each rail, and the language of 'the statute requiring the company to repair that portion of the. street two feet in width outside of its tracks seems to indicate that the two feet to be kept in repair is a continuous two feet measured from the track, and not two strips one foot in width measured from each outside rail. I think the language of the statute, as well as its evident. purpose, shows that the .part of the street to be repaired by. the company is two feet in width. measured from the outside of each outside rail.

The judgment should, therefore, be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.