Schuster v. Forty-second Street , Manhattanville & St. Nicholas Avenue Railway Co. , 102 N.Y.S. 1054 ( 1907 )

Scott, J.:

The only question necessary to be considered on this appeal is whether or not section 98 of the Railroad Law^* imposes a duty upon a street surface railroad company to keep in permanent repair the pavement between its tracks and two feet in width outside its tracks, irrespective of any request or demand on the part of the local authorities. The defendant’s position is that no such duty is imposed unless and until the company is required by the local authorities to make repairs. The contrary appears to have been held in Conway v. City of Rochester (157 N. Y. 38) and Doyle v. City of New York (58 App. Div. 588). Upon the authority of these cases the judgment should be affirmed, with costs.

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Patterson, P. J., and Clarke, J., concurred; Ingraham and McLaughlin, JJ., dissented.

* Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676.— [Rep.