As I concur with Judge BARTLETT in the view that the terms and conditions of the consent given by the city of Brooklyn in 1853 to the Brooklyn City railroad for the construction of its road, did not constitute such a contract as to exempt that company and the appellant, the Brooklyn Heights Railroad Company, its lessee, from the provisions of section 98 of the Railroad Law (Ch. 676, Laws 1892), it is necessary for me to discuss only the question whether the repavement of the street by the city authorities relieved the appellant from the duties and obligations which concededly would otherwise rest upon it under the section of the Railroad Law cited. By that section it is enacted: "Every street surface railroad corporation so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width *Page 215 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." This duty was imposed on street railroad companies for the safety and security of the traveling public as well as for the pecuniary benefit of the municipality, and rendered every company liable to any traveler who might be injured by the failure of the company to discharge its obligation. (McMahon v. Second Ave. R.R. Co., 75 N.Y. 231.) Though the city was not relieved from responsibility for the safety and security of its streets, the obligation as to the part of the street lying between and adjacent to the tracks was primarily on the railroad company. (City of Brooklyn v.Brooklyn City R.R. Co., 47 N.Y. 475.) As was said by this court in Conway v. City of Rochester (157 N.Y. 33), "the duty of keeping such portion of the streets in permanent repair (by the railroad company) is not suggested or advised, but is commanded." Such were the rights and duties of the parties when the city repaved the street with asphalt under the provisions of section 50, title 15 of the charter of the city of Brooklyn. (Ch. 583, Laws of 1888, as amended by ch. 1008, Laws of 1895.) The section directed the board of estimate to raise each year such amount "as they may deem necessary and proper for the purpose of repairing and also improving the condition of the streets and avenues of the city by repaving the same." It provided that the common council might, upon the petition of a majority of the property owners, or by a three fourths vote without such petition, "repave with asphalt, granite or other improved pavement, any street already paved at the expense of the property owners. One-half of the cost of such repavement shall be borne by the city at large and the other half by the property benefited. * * * Provided, however, that in all cases where a surface railroad is laid and operated through any such street, one-fourth of the cost of such repavement shall be assessed upon such railroad, and one-fourth thereof on the other property benefited within the district of assessment." This section does *Page 216 not purport to relieve in any manner the railroad company from its duties imposed under the Railroad Law, to keep its portion of the street in repair. If we assume, however, that as the charter authorized the city to do the repaving the railroad company could not be held responsible for the laying of such pavement, this principle would have no application as to its duty to maintain the street in repair after the pavement had been laid. The resolution of the common council which was a prerequisite to any action by the administrative officers of the city authorizes only repaving the street. My associate is of opinion that the difference between repaving and repairing the street is technical and narrow. I, on the contrary, think that a radical distinction between the two is made both by the charter itself and by the decisions of this court. Not only does section 50 distinguish between repairing and repaving by providing that money may be raised for both purposes, while authorizing an assessment to be laid only for one, repaving, but section 48 of the same title provides in express terms: "The expense of repairing the streets of said city shall be a general city charge; and the commissioner of city works shall have exclusive power in relation to the repairing of streets, but in no one year shall such expense exceed the amount raised for that purpose in the general tax levy." Thus the expenditure of all moneys raised under section 50 for the repair of streets was under the exclusive control of the commissioner, and the common council had nothing to do with it; while, on the contrary, repaving, which was to be followed by a local assessment, could only be made on the action of the common council. Therefore, if the contract entered into by the commissioner of public works with the asphalt company which provided for keeping the pavement in repair subsequent to the time it was laid down, purported to relieve the railroad company from its statutory obligation to the public, it was solely the unauthorized act of an administrative officer of the city and was in that respect of no validity.
I have said that the distinction between repaving and *Page 217 repairing the pavement is recognized by the judicial decisions. (See People ex rel. Hall v. Maher, 56 Hun, 81; City ofSchenectady v. Union College, 66 Hun, 179; People ex rel.North v. Featherstonhaugh, 172 N.Y. 112.) In the case last cited an award of a contract for repaving a street was assailed on the ground that the contract required the contractor to keep the street in repair a certain number of years. It was there said by this court: "It will readily be seen that the question raised is one of considerable importance to the public, especially to the cities whose charters provide for the construction of pavement in streets at the expense of the abutting owners of real property, or the property benefited, and that the pavement when constructed shall be kept in repair at the expense of the city." The award of the contract was upheld on the sole ground, however, that "the repairs required by the contract have reference to making good the imperfect work done, or the defective material used therein. In other words, that it is in effect a guaranty as to the quality and character of the pavement." Whether the same construction is to be given to the provisions of the contract before us it is not necessary to now determine. That question would be presented if an assessment levied for the cost of the improvement should be assailed. There is no proof in the record that the appellant railroad company has paid any such assessment. In the absence of proof no presumption to that effect arises.
The judgment should be affirmed, with costs.
GRAY, O'BRIEN, JJ. (and PARKER, Ch. J., in opinion), concur with BARTLETT, J.; CULLEN, J., reads dissenting opinion and MARTIN, J., concurs; HAIGHT, J., absent.
Judgment accordingly. *Page 218