In respect to the first objection, it is stated, in an affidavit verified October 20, 1897, that the affiant has examined the records in the office of the clerk of the county of Onondaga, and that it appears from those records that October 18,1856, the Syracuse and Southern Railroad Company mortgaged its road, extending from Syracuse toBinghamton, to trustees, to secure the payment of $1,400,000, and that there appears to be due on that mortgage $2,750; also, that it appears by said records that May 29, 1867, the Syracuse, Binghamton and New York Railroad Company mortgaged its said road to-secure the payment of $600,000, upon which mortgage there appears to be due $5,000. It is further stated that Percy R. Pyne has been substituted as trustee under both mortgages in the place of the original trustees, and the contention is that these proceedings are invalid, because no notice of the application was mailed to, or served on, him.
Without considering whether Percy R. Pyne is an “ owner ” within the 167th section of the charter, I think this objection is disposed of by the maxim de minÍ7nis non curat lex.
Assuming that there is a liability of $7,750 existing under the two mortgages, the sum is so insignificant in proportion to the value of the railroad, consisting of eighty-one miles of single track, extending from Syracuse to Binghamton, that it may well be disregarded in this proceeding, as it is apparent that the security, if a lien exists, will not be impaired in the slightest degree by the extension of this street. Courts are not bound to a strictness in the construe*270tian of the application of statutes which is harsh and pedantic. (The Reward, 2 Dod. 265, 269; White v. Beard, 2 Curt. Ecc. 480, 492.) Such a construction is allowed only for the protection of a substantial right threatened with invasion. The first objection is untenable.
The second objection is not sustained by the record, for it appears that a map of the proposed extension was made by the city engineer and duly filed July 12,1897, in the offices of the clerk of the city and of the clerk of the county of Onondaga.
The third objection is untenable, for it appears by the undisputed evidence contained in the record that, when the proposed extension was surveyed, monuments were placed on the ground showing the location of the extension.
In respect to the fourth objection, it appears that the resolution of ■July 6,1897, was adopted by a two-thirds vote of the common council, but that the ayes and nays were not called, and it also appears that the resolutions of July 12, 1897, were adopted by the affirmative votes of sixteen of the nineteen members of the common council upon a call of the ayes and nays. Section 29 of the charter provides : “ The ayes and nays shall be called and recorded on all motions and resolutions authorizing the expenditure or collection of money or the making of local improvements or repairs.”
The resolution of July 6,1897, neither authorized the expenditure ■or collection of money, nor the making of a local improvement, but ■simply authorized the engineer of the city to make a survey and map of the proposed extension of the street, and the question whether it should be extended was left until the coming in of his survey and map, and afterwards, July 12, 1897, the resolutions •directing the extension of the street were adopted upon a call of the ayes and nays.
Is section 167 of the charter unconstitutional in so far as it relates to these proceedings ? The section provides that notice of the application for the appointment of commissioners to ascertain and report the just compensation to be paid to persons owning or having an interest in the property proposed to be taken and shown to be benefited by the map adopted and .filed, but the section does not, in express terms, provide that notice shall be given to the ■owners of property taken but not benefited. If the provision of *271the section which relates to the opening of streets upon lands taken but not benefited be unconstitutional, it does not render the portion of the section unconstitutional which relates to a proceeding for the opening of a street through lands all of which are deemed by the common council to be benefited, and which are described as benefited on the map adopted and filed, and in the resolutions, for it is well settled that in case two provisions are contained in a statute, one of which is unconstitutional, such unconstitutional provision will not vitiate the other provision, provided it can be carried into effect without the aid of the unconstitutional provision. (People ex rel. Angerstein v. Kenney, 96 N. Y. 294; Matter of New York & Long Island Bridge Co., 148 id. 540.) The proceedings at bar affect only lands which are to be benefited by the proposed opening, as is shown by the map and resolutions. The section provides that the resolutions shall designate the time when and the place where application will be made for the appointment of commissioners, and that a copy of the resolutions containing a notice of the time and place when application will he made shall be published in the two official papers of the city, and served personally or by mail upon the persons benefited, at least ten days before the time designated for making the application, which provisions were strictly complied with in this proceeding. The publication was duly made, and a notice was duly and personally served July 29, 1897, on the railroad, that the application would be made August 27, 1897.
I am unable to see that any substantial legal defect in these proceedings is pointed out by the counsel for the railroad. Mere technical objections interposed by railroads to the opening of new streets and highways over their lines because it will involve some expense on their part, are not favored by the courts, for the reason that railroads hold their lands subject to the interest of the public; and such corporations are largely interested in the growth of cities and villages on their lines, for it increases their revenues, and cities and villages cannot grow without opening new streets and avenues.
The order should be reversed, with costs'.
All concurred.
Order reversed, with costs.