We would affirm this judgment upon the opinion of Mr. Justice Taylor at Special Term except for the fact that we do not agree with his conclusion of law that the sole statutory authority under which this proceeding is taken is the Condemnation Law; because we think the proceedings in 1905, instituted by the railroad company for elimination of grade • crossings under former section 62 (now section 91) of the Railroad Law followed by the determination of the Board of Railroad Commissioners in 1907, accepted by all the parties without appeal, furnishes express legislative authority for this proceeding, in addition to the ordinary requirements of the Condemnation Law. In that statutory proceeding in 1905-1907 the railroad company, asserting its desire to eliminate grade crossings, agreed to abandon the operation of its railroad on the property now sought to be condemned, and to construct and operate its railroad at this point on an elevated structure. On this theory of the abandonment of the operation at grade with the resulting additional safety to the public, the railroad company obtained the payment *345of twenty-five per cent of the cost of the change by the State of New York, and twenty-five per cent said to have been liquidated at the sum of $75,750 from the city of Mount Vernon. The State of New York through its duly constituted authorities ratified this agreement for the removal of the railroad from the surface. The railroad company agreed to abandon the operation at grade and to immediately sell the abandoned right of way, the proceeds of sale to go into its treasury. Notwithstanding this agreement, and the subsequent construction and operation of the railroad on the elevated structure, it appears that the railroad company held on to the old right of way and apparently without objection by the city authorities continued to use one of the old tracks at grade for freight or switching purposes, in violation of its agreement with the State and the city, and in violation of law. When the city in 1924 desired, to obtain this abandoned right of way for use in widening its streets, the railroad company refused to deal with the corporation counsel and by an auction sale, after the lapse of seventeen years, sold the property to one of its subsidiary companies which immediately reconveyed the property to the railroad company. It is this unlawful use which is pleaded as a reason for denying the city the right to acquire the property for street purposes. We think the position of the appellants is inequitable, unjust and, unfair in the extreme, not only to the plaintiff, the city of Mount Vernon, but to the State of New York which contributed its share of the expense of the removal of the tracks from grade and to the People whose safety was intended to be conserved by the proceedings under the Railroad Law.
The judgment should be affirmed, with cpsts.
Present — Kelly, P. J., Rich, Jaycox, Kelby and Kapper, JJ.
Judgment unanimously affirmed, with costs.