- It may be conceded that no obligation rests upon the railroad company to pave the streets upon which its tracks are laid except such as is imposed either .bjr ordinance or statute, or as the result of conditions affixed to the franchise or the permit under right of which the-road' was constructed.
It is contended by the-appellant that pursuant to, chapter 815 of the Laws of 1866, which amended section 3 of chapter 361 of the Laws of 1863, the cost of repaving the street to the extent- of one-sixth was imposed upon the .railroad company. Section 3 of chapter 361 of the Laws of 1863 was subsequently amended by chapter 658 of the Laws of 1871, and it is contended by the respondent that the effect of this latter enactment of 1871 was to repeal the a'ct of 1866. Whether this is. true or not, we deem it unnecessary to decide, though our inclination would be, wei-e it' necessary, to hold that the act of 1871 did repeal the ac.t of 1866.
Assuming that the act of 1866 was repealed by- the act of 1871, there was imposed by, the latter the obligation to repair, and although this is a requirement general in its nature, there is strong reason for holding that the. provision was sufficient' to compel the relaying by the railway company of pavement of modern character and appropriate, to changing conditions in the street upon which, the tracks were laid when called upon to do so by the municipal authorities. -Thus-in the case of Philadelphia v. Railway Co. (143 Penn. St. 444) it was-said, with reference to a similar provision.: “ The duties specified in its charter were imposed with reference to the changes and improved methods of street paving which experience might sanction as superior to and more economical than old methods.
Upon another ground, however, we think the defendant is liable in whole or in part for the amount sued for.
■The record shows that after obtaining the franchise an application was made by the railroad to the park department, which then had jurisdiction over that part of the territory in which it was proposed to construct the road, for permission to lay the tracks, and that the department, in granting the permit, affixed as a condition-that, “ The said company shall replace the pavement * * • * in accordance with the specifications in use by the Department of Public Parks for laying new pavements and to be renewed at such times and places as may be required by the Commissioners * * * immediately upon notice being given to said company, * * * In the relaying of the pavements the said railway company shall furnish and provide at its cost and expense whatever new'material may be required. * * * Along that portion, of the route which is unpaved * * * the space between the rails of each track and between the tracks and outside and adjoining the-outer rails for a space of two (2) feet wide, shall be paved with trap-block pavement * * * in such manner as shall be directed by the Commissioners. * * * If the said company * * * shall refuse or neglect to carry out any of the provisions or requirements of this permit, the Commissioners * * * shall have the right and power to do the same at the expense and cost of said company.”
Thereafter the company laid its tracks in the street in question, thus accepting the terms of this permit, and it appears, that on" December 11, 1888, a resolution of the board of aldermen was approved by the mayor that said street “be paved with granite block pavement * * * under the direction of the Commissioners ; ” and the defendant by its answer admits that, on or about March 4, 1889, it received a notification from the department of parks that it was required “to pave the surface of said street inside the rails * * * and for one foot outside thereof,' with, granite block pavement, * * * in* accordance with specifications * * of the Department of Public Parks,” and was further notified that unless it commenced- the construction of said pavement
It will be noticed that by the terms of the permit the character'of the pavement which the railroad was to lay when necessary, as compared with the pavement which was actually laid, to recover the cost of which this suit was brought, wag different, and it may be that the true rule of liability would be to charge the defendant with the cost only of such pavement as it was required to lay pursuant to the permit, an amount which is susceptible of proof. The more important question, however, is whether the terms of the permit are binding upon the company. , i
It will be conceded1, we think, taking the law as it stood when the permit was applied for, that an obligation rested upon the rail-' road company to keep the street between the rails in good order and repair; and, for the purpose of having some means of determining when the necessity arose for repairing, it was important that the right of deciding that question should rest with the department having control of the streets. To the end that there should be a uniform policy with respect to the entire street as to the kind and -character of the pavement arid that the railroad company should not be free tp repair the portion of the street near the tracks and keep :it in. order by adopting one system of. pavement while the remainder of the street under the control of the department had a pavement of a different kind, the right of determining the nature of the pavement to be used should rest with the department. It was, therefore, competent for the head1 of that department to arrarige With the railway company as to the manner in which these ends should be accomplished; and, in granting the permit, which was accepted arid acted upon by the company and which contained the condition to which we have referred, we think' the fulfilling of this condition became obligatory upon the company. At the time it might have refused to accept the permit to lay its rails on the street when coupled with such a condition; but, having accepted it, we think it should fulfill in good faith the condition.
It may be that if no obligation rested upon the railway company under the law to pave or keep in repair the streets to any extent," the head of a department could not, in the absence of legal warrant,
Having applied for and secured the permit which had annexed to it the conditions referred to, we do not think that the railroad can in justice repudiate the conditions, and' thus obtain only the advantages, and become absolved from any of the burdens. Upon the ground, therefore, that it was competent for the department and the railway company to agree Upon the conditions- upon which the permit should be issued, and^ there being evidence here of what the conditions were with respect to the pavement, we think they are binding upon the company, and it should be required to discharge its obligations by paying the amount of the expense to which the city was put in repairing or in paving that portion of the street between and adjacent to the tracks which, upon proper notice, the company failed to do.
■ To the extent, therefore, of what it would cost to so pave it with trap block pavement, the company should be held responsible on proof that in the way of repairs a repavement was necessary.
It follows, accordingly, that the judgment and order appealed from should be reversed and a new trial granted) with costs to the appellant to abide the event. • .
Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. —