Plaintiff seeks to recover the cost of certain repaving adjacent to tracks of the Second Avenue Railroad Company. The action is brought under section 98 of the former Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. -565], as amd. by Laws of 1892, chap. 676), now section 178 of the present Railroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], as since amd. by Laws of 1912, chap. 368), which reads as follows:
*293“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 "x" * * between its tracks, the rails of its tracks, and two feet in width 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. In case of the neglect of any corporation to make pavements or repairs after the expiration of thirty days’ notice to do so, the local authorities may make the same at the expense of such corporation.”
The defendant, who was appointed by this court in an action to foreclose a mortgage covering the property and franchises of the. railroad company, and who has operated the road in pursuance of such appointment, objects to any recovery on grounds going to the right of the city to maintain any action against him on account of the matters in controversy, and also objects to specific items on which recovery has been had because of insufficiency of proof. The objection to any recovery rests principally upon the form of the action, the defendant claiming that he is not hable in an action at law, but that the proper procedure is by way of petition, in which proceeding the equities between him and the railroad company, as determined by their respective periods of “use” of the tracks, can be determined; that to permit the present action to he maintained “ is virtually to compel the receiver to pay compensation for the use of the streets by the railroad company prior to his appointment as receiver.” I think this argument is based on an erroneous construction of the statute. True, liability arises because of “use” of the tracks, but it may be enforced only after notice and failure to repair. Although a company which has leased its road may continue to be hable on the theory of a “ beneficial use ” (See Trial Term opinion, Bischoff, J., City of New York v. Central Park, N. & E. R. R. R. Co., N. Y. L. J., June 3, 1911; affd., 149 App. Div. 944; 208 N. Y. 548), the lessee is similarly hable if the tracks are in use by it. (Id.; Pennsylvania Steel Co. v. New York City R. Co., 191 Fed. Rep. 216.) But if the lease has expired when the occasion for serving the notice arrives, and the lessee is not *294then in possession or use of the tracks, no valid notice to repair could be given to it, and the lessor in such case would be solely liable. If the statute is to have a practical construction, it must be that liability arises from the conjunction of use, disrepair and service of notice, and that the length of the prior use is immaterial. The road or roads which are, in fact or as matter of law, found to be using the road when repairs become necessary and notice to repair is given, are liable without Regard for any so-called equities between each other. So construed, the statute creates, what it was clearly intended to create, a liability at law, which in the case of, this receiver can be determined in this action as well as in any other form of proceeding. If any question should hereafter arise in the foreclosure action as to the rank to be given to the judgment in the adjustment of claims, it can then be disposed of.
The specific items to which defendant objects are numbered 2, 5, 6, 16 and 18. As to items 2, 5 and 6, it is claimed that there was no proof of use by the receiver, and that the proof of service of notice to repair was deficient.
Items 2 and 5 affect First avenue from Fourteenth to Twenty-third street, and the facts are as follows:
The franchises of the railroad as originally acquired in 1852 included the right to operate a single track on First avenue between the above streets. The railroad company constructed and operated a single track in the center of the avenue until some time in 1872, when it entered into an agreement with the Dry Dock, East Broadway and Battery Railroad Company, which had a franchise for a double-track road on First avenue, by which it was provided that the Dry Dock Company might remove the tracks of the Second Avenue Company from the center of First avenue to a position in a line with the proposed westerly track of the Dry Dock Company, and that such track should thereafter be used jointly between the two companies, the Dry Dock Company agreeing to pay $500 per year for such use on its part, and the Second Avenue Company agreeing to keep the tracks in repair. It was also agreed that whenever the Second Avenue Company should be authorized to operate a double-track road through the part of the avenue in question, *295it might use the two lines of track without cost and thereupon the Dry Dock Company’s annual trackage payments should cease.
The receiver testified that he had never operated any cars over this stretch of track; had never leased to others the right so to do; had never received any rent for its use, and had never exercised any control whatever over it, but that the Dry Dock Company operated its cars over the fine. It was conceded that the Second Avenue Company had itself continued to assert ownership of or rights over the several tracks.
Under these circumstances, I do not think the receiver is liable. Assuming that there may have been some form of “beneficial use” remaining to the Second Avenue Company in the stretch of track in question (see cases above cited), the fact that the receiver has never in any sense used the tracks or assumed dominion over them clearly relieves him from any obligation under the statute.
Item 6. This affects an area on Allen street at the intersection of Rivington. The Second Avenue Company originally had a franchise for a 'single track at this point, which track it constructed and for a time operated and continued to claim ownership of down to the time of the receivership, but the receiver never assumed possession of or used the tracks in any Way, and hence cannot be held liable. If recovery is denied on the above -items for failure of proof of use, it is unnecessary to determine the sufficiency of the notice served.
Items 16 and 18. The controversy with respect to these items brings up a question of performance. The testimony was conflicting, and as there was sufficient evidence to sustain the findings of the trial court, they should not be disturbed. A further objection is raised as to these items with respect to the right of the city to compel defendant to repave with a particular kind of pavement; but in City of New York v. N. Y. City R. Co. (132 App. Div. 156) it was held that the city might require a street to be repaved with any kind of material necessary to make the new paving conform to the paving in the remainder of the street.
For the reasons above given the judgment should be modified by reversing so much thereof as includes items 2, 5 and 6, *296and as so modified affirmed. Appropriate findings for the judgment to be entered hereon may be submitted on settlement of the order.
. Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs. Order to be settled on notice.