(concurring.) The action was brought to recover the cost of paving a portion of Madison avenue between 125th and 131st streets, adjoining and between tracks used and occupied by the New York & Harlem Railroad Company in the operation of a street railroad along Madison avenue. The defendant was incorporated by chapter 263 of the Laws of 1831, and it was authorized, upon obtaining the permission of the plaintiff, to use a single or double track railroad in certain parts of the city. In 1832 the city consented to the building of defendant’s railroad from Twenty-Third street to Prince street by an ordinance which provided for an agreement to be entered into between the city and the railroad company, and which required, as a condition upon the part of the company, that it should pave the streets in and about the rails “in a satisfactory and permanent manner, and keep the width of twenty feet of said paving, including the rails, in good repair at all times during its continuance in use thereof.” In 1851 another agreement was entered into, by which the company was authorized to lay its tracks in Chat-ham street, under an agreement that provided that the company would grade all the portion of the street occupied by the track, and four feet on each side thereof, and keep the same in good repair, at its own expense. In 1858 an*70other ordinance was passed authorizing an extension of the road up Forty-Second street to Madison avenue, and up Madison avenue to Seventy-Ninth street. Nothing is said in this last ordinance with regard to paving or grading to be done by the company. In 1872 an act of the legislature authorized the extension from Seventy-Ninth street to Harlem river, and provided for compensation to be made for such right and- privilege; and thereafter, upon proceedings had in the supreme court, commissioners were appointed to ascertain the amount of compensation which should be paid by the railroad company, which report was confirmed in 1885.
It is contended by the appellant that chapter 825 of the Laws of 1872, which contains the privilege last referred to, and which authorized the extension of the defendant’s route from Seventy-Ninth street to Harlem river, should be so construed as to impose upon the defendant the obligation of paving the streets between its tracks and on each side thereof to the same extent as was imposed by the ordinance and agreement relating to the building of the defendant’s road south of Twenty-Third street. It is insisted that, when the privilege'of extending defendant’s railroad north of Twenty-Third street was granted by the legislature by this act, the obligation imposed upon defendant as to paving between its tracks south of Twenty-Third street was extended by implication to the tracks north of that point; in other words, that the extension of the privileges carried with it an extension of all liabilities and obligations. It will be noticed, however, that the rights granted to the railroad company from time to time, affecting four different sections of its route as at present operated, imposed different duties and obligations. If the argument in regard to all the obligations imposed by ordinance or agreement in reference to tracks south of Twenty-Third street is to be extended to all that portion of the route north of Twenty-Third street, then not only the obligation of paving, but also of grading and the other duties imposed, should be included among the obligations to be assumed by the company in respect to its road north of Seventy-Ninth street. In other words, the same argument which would require an extension of the obligation to pave north of Seventy-Ninth street would also apply to all other obligations imposed by the terms of the ordinances and agreements relating to the route south of Seventy-Ninth street. However liberally we may construe in favor of the public, and strictly against the grantee, the privileges conferred by chapter 825 of the Laws of 1872, we have been referred to no authority where, in the absence of any ambiguity or obscurity in the terms of the grant, the court is at liberty to interpolate into the contract made between the state and the railroad company a condition which the legislature itself did not include. We think it clear from authority that, in order to enforce the claim here made by the city, some specific obligation imposed upon the company, either by its charter or special agreement or the law, should be pointed out. This the plaintiff has failed to do. And we think that in construing the act of 1872, and the court proceedings thereunder, it must be held that they constituted the grant of a new franchise to the defendant, the compensation for which was fixed by the commissioners, which was the agreed price to be paid therefor; and that the common council has no power to impose, as a further condition, price, or compensation, the obligation that the company shall pay for the paving of the avenue between its tracks. We have been referred to some cases in which it has been held that where a corporation uses a highway for its special benefit it must maintain the same in reasonable repair. These, however, related to railroads operated by steam, and involved an entirely different principle from the one for which the plaintiff here contends, which is that it is the duty of a street railway to keep the space between its tracks in a reasonably safe condition, although no. provision to that effect is contained in its charter, or in any city ordinance, or imposed by legislative act. This view we do not think can be supported by authority, and we are therefore of *71opinion that the disposition made by the learned trial judge in directing a verdict for the defendant is correct, and we think, accordingly, that the exceptions should be overruled, and judgment ordered for the defendant, with costs.