Local Authorities v. New York, New Haven & Hartford Railroad

Rich, J. (dissenting):

I dissent. The town hoard of the town of Pawling, composed of its supervisor, town clerk and justices of the peace, are “local authorities ” of such town within the meaning of those words as used in section 33 of the Railroad Law, which authorizes the Supreme Court to order a flagman or gates at a grade crossing. The appellant contends that under Matter of Highway Commissioners (72 Hun, 575), Matter of Highway Commissioners (74 id. 48) and Matter of Highway Commissioners (Id, 46), the commissioner of highways is the only local authority upon whose application the court can acquire jurisdiction of a proceeding of this character.. Section 80 of the Town Law provides for the election of 'a “superintendentof highways” in each town. Section 33 of the Railroad Law uses the term “local authorities.” While a superintendent of highways is a local authority of a town, I do not think that the Legislature intended to confer the power of proceeding under the provisions of section 33 upon that officer but upon the local authorities.

I vote for affirmance.

Hirschberg, J., concurred.

Order reversed, with ten dollars costs and disbursements, and proceedings dismissed, with costs of a special proceeding to the appellant.