The question is whether the board of railroad commissioners in determining the manner of crossing Clinton street by the railroad yard herein mentioned might impose conditions as to the future maintenance and repair of the approaches to the bridge over the yard, not on the railroad property.

It is unnecessary to recite the details of the long history of the proceedings herein. Briefly, petitioner's predecessor, the Terminal Railway, desiring to construct, in addition to its double-track road on grade, extensive yards in the towns of Cheektowaga and West Seneca several miles in length and nearly half a mile in width, crossing certain highways, including Clinton street, in West Seneca by as many as one hundred and twenty tracks, which yard when completed was to be the largest in the *Page 4 country, made application to the board of railroad commissioners to determine the manner in which the tracks should cross the highway. The Railroad Law (Cons. Laws, ch. 49) contained no express provisions dealing with the situation which exists when such a great yard is constructed across highways. It is something different from the construction of the railroad itself across the highway on grade (§ 21), in which case it is the duty of the railroad to restore the street "to its former state, or to such state as not to have unnecessarily impaired its usefulness" and construct and maintain a roadway across its tracks, and different from the mere crossing of a railroad by a highway by an overhead bridge (§ 93), in which case "the roadway thereover and the approaches thereto shall be maintained and kept in repair by the municipality having jurisdiction over and in which the same are situated." The board of railroad commissioners made its order on April 30, 1907, determining that the Clinton street highway grade crossing be changed to an overhead bridge crossing and that the Terminal Railway of Buffalo should maintain the roadway and sidewalk on the overhead bridge and approaches thereto, irrespective of the provisions of section 64 (now § 93) of the Railroad Law. The railway paid all the expense of eliminating the grade crossing although a small part thereof for the expense of crossing the main tracks might perhaps have been charged to the town and the state to the extent of one-half the total expense incurred for that purpose. (Matter of Erie R.R. Co., 208 N.Y. 486,490-492.)

On the subsequent unsuccessful appeal of the towns from this order the courts sustained the general powers and jurisdiction of the board of railroad commissioners in the matter. (Matter ofTerminal Railway of Buffalo, 122 App. Div. 59; 122 App. Div. 896;192 N.Y. 534.) The railway did not appeal from any part of the order but sought unsuccessfully among other modifications to have the board of railroad commissioners, and thereafter the *Page 5 public service commission, which had in 1907 succeeded that board, modify the original order by providing that the roadways and approaches be maintained pursuant to the statute governing the maintenance of highways in the towns, which is construed as referring to the provisions of section 64 (now § 93) of the Railroad Law.

The towns unsuccessfully sought a writ of prohibition to prevent the commission from acting on the second application. (People ex rel. Town of West Seneca v. Pub. Service Com.,130 App. Div. 335; 195 N.Y. 562.) Thereafter the railway company proceeded with and completed the work which was on January 29, 1918, approved by the public service commission. On May 11, 1918, the town of West Seneca filed with the commission a complaint that the Clinton street roadway and approaches to the bridge were out of repair and that the railway company had refused to make the necessary repairs. On July 30, 1918, the New York Central railroad, having succeeded to the rights and duties of the Terminal Railway Company, was ordered by the public service commission to make the repairs, and the commission thereafter having denied an application for a rehearing, the relator herein sued out a writ of certiorari to review the determination. The Appellate Division dismissed the writ and the relator appealed to this court.

The relator and its predecessor have at all times consistently objected to that portion of the order which imposed upon the railway the duty of keeping the approaches to the bridge in repair, maintaining that the commission was without jurisdiction to make it, and has thus sought to reserve its right to test the question of jurisdiction until it should be called upon to make repairs as required by the order. If there is no tenable construction of the statute which authorized the state board of railroad commissioners to do what it attempted to do in this case the portion of its order now before us was in excess of its jurisdiction and void (People ex rel. *Page 6 N.Y. Central Hudson R.R.R. Co. v. Public ServiceCommission, 227 N.Y. 248, 261), but if it was error only, it should have been reviewed on appeal. The fact that the railroad went ahead and constructed the crossing was no waiver of its rights if the order itself was a nullity.

The decision must depend largely on whether the order complained of was a valid condition of a discretionary consent acted upon by the railroad or was the independent determination of a duty imposed on the railroad against its will. Plainly it was, on its face, an attempt on the part of the railroad commission to relieve the towns from the provisions of section 64 (now § 93) of the Railroad Law above quoted. But such provisions apply naturally only to the highway over a railroad in the common acceptance of the word, i.e., a track or tracks formed by rails, over which trains pass from place to place, and could be properly applied to the situation before us only by the addition of language that the legislature has not seen fit to use in this connection, although it has in Public Service Commissions Law (Cons. Laws, ch. 48), section 2 (6), to include bridges over yards like the one under consideration, equipment, stations and terminal facilities.

The authority of the railroad company to construct tracks across the highway came not from the state board of railroad commissioners but from the Supreme Court. (Railroad Law, § 21.) The court doubtless had power to impose conditions upon its consent of the nature here indicated, to be accepted by the railroad if it would go on with the proposed plan. But the railroad commission might thereafter determine only "the method of crossing." (Railroad Law, § 60, now § 89.) In determining the method of crossing to be by an overhead bridge, it had no power either to impose conditions or to legislate as to the repair and maintenance of the bridge and the approaches thereto when constructed. The fair implication of the law is that when railroad yards are constructed *Page 7 across a highway, whether the highway is carried over the yard on a bridge or on grade, the railway company shall bear the burden of maintaining the roadway on or over its property and also the burden of restoring the town highways to such state as not necessarily to impair their usefulness (Railroad Law, § 11, now § 21), but I find no authority for putting the burden on the railroad company of thereafter keeping in repair the town highway, outside the railroad property, and I find no statute which puts the burden on the town thereafter to maintain the bridge constructed by the railroad company or any part thereof.

While it is here alleged by the town of West Seneca that the approaches were improperly constructed, the determination of the public service commission is to the effect that the roadway is out of repair; that the railroad company built the bridge under the determination now complained of and is thereby bound to repair "the roadway and approaches of the bridge in question." So far as such roadway and approaches, having been once properly restored to usefulness as a part of the original construction, are outside the railroad property, the order was not, as we have indicated, a condition which the board of railroad commissioners had jurisdiction to impose over the objection of the railroad company as to the manner of crossing.

The order of the Appellate Division dismissing the writ of certiorari should, therefore, be reversed; the determination of the public service commission modified in accordance with opinion, and as modified affirmed, with costs in this court and in the Appellate Division.

CHASE, McLAUGHLIN and ANDREWS, JJ., concur; CARDOZO, J., concurs in result; HISCOCK, Ch. J., and CRANE, J., not sitting.

Ordered accordingly. *Page 8