In re a Proposed Change in the Map or Plan of the City of New York so as to Establish the Lines & Grades of a Temporary Pedestrian Bridge in East One Hundred & Third Street Across Turnbull Avenue, & Across the Tracks of New York Rapid Transit Corp.

The board of estimate and apportionment of the city of New York, on November 1, 1935, purporting to act under the provisions of section 442 of the Greater New York Charter, and of section 90 of the Railroad Law, made a decision and determination contained in two separate resolutions adopted, (1) favoring the change of the map or plan of the city of New York by establishing the lines and grades of a temporary pedestrian bridge in East One Hundred and Third Street, across Turnbull avenue and across the tracks of the New York Rapid Transit Corporation, in the borough of Brooklyn, city of New York, in accordance with a map bearing the signature of the commissioner of public works of the borough, dated April 22, 1935; and (2) determining that public necessity requires that a temporary crossing for pedestrians be carried across the property of New York Rapid Transit Corporation in East One Hundred and Third street, borough of Brooklyn, requesting the Transit Commission to determine the method by which a temporary crossing for pedestrians shall be carried across said tracks at said street, and requesting the Transit Commission to determine that a temporary crossing for pedestrians be laid out over said tracks at said street, in accordance with said map dated April 22, 1935, and so adopted by said board on November 1, 1935. Prom said decision and determination the New York Rapid Transit Corporation appeals. (Railroad Law, § 91.) Determination of the board of estimate and apportionment of the city of New York reversed and annulled as a matter of law, with costs. In our opinion, in the relevant provisions of section 442 of the Greater New York Charter, and section 90 of the Railroad Law, properly construed, there is delegated to the board of estimate and apportionment no power, jurisdiction or authority to make the decision and determination contemplating such temporary crossing for pedestrians. (See Peace v. McAdoo, 110 App. Div. 13; 1 McKinney Statutes & Statutory Construction, § 140, pp. 209, 210; Rensselaer & Saratoga R. R. Co. v. Davis, 43 N. Y. 137,146; Matter of N. Y. & H. R. R. Co. v. Kip, 46 id. 546, 551.) Section 90 of the Railroad Law provides for new streets across railroads. The resolutions of the board of estimate and apportionment do not propose to open a street across a railroad, but to erect a temporary pedestrian bridge. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.