I dissent upon the ground that the charter of the city of New York differs essentially from the charter construed in People exrel. City of Olean v. Western N.Y. Penn. Traction Co. (214 N.Y. 526); that the grant of power to regulate the use of the streets is a delegation of the police power of the state government (City of Buffalo v. Stevenson, 207 N.Y. 258, 261,263; Dry Dock, E.B. B.R.R. Co. v. Mayor, etc., of N.Y., 47 Hun, 221, 224); and that in the exercise of the police power, the city of New York has the right to compel a railroad company to remove its tracks from one part of a street to another, where the change is not made capriciously, but is necessary for the public safety (Macon Consol. St. R.R. Co. v. City of Macon,112 Ga. 782, 784).
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE and HOGAN, JJ., concur with COLLIN, J.; CARDOZO, J., reads dissenting memorandum, and SEABURY, J., concurs.
Order affirmed. *Page 320