In re the Laying Out & Opening Ludlow Street

Willard Bartlett, J.:

This is a proceeding conducted in conformity with the provisions <of the charter of Yonkers to lay out and open a-street in that city. (Laws of 1895, chap. 635, tit. 7.) The petition, praying that the street should be laid out across the. steam surface railroad of the appellant, was presented to the common council of Yonkers on November 23, 1896. That body did not resolve that the improvement should be made until April 11, 1898. Meantime the Legislature had enacted the statute commonly known as the Grade Crossing Law, which took effect on July 1, 1897. (Laws of 1897, chap. 754, amending the Railroad Law, Laws of 1890, chap. 565.) The position of the appellant upon the present appeal is that this enactment became applicable to the city of Yonkers upon the day it took effect, notwithstanding the special provisions of law in 'the charter of that city in reference to the opening of streets ; and hence that the present proceeding is invalid so far as it assumes to authorize the laying out and construction of the proposed street on, over or under the appellant’s railroad line.

There is much force in the arguments which are advanced in support of this view. The manner in which the question is raised, however, precludes us from deciding it upon this appeal. The appellant has brought uj> for review simply the order of the Special Term confirming the report of the commissioners of assessment. There appears to be no appeal from the original order appointing the commissioners', nor does the notice" of appeal from the order of confirmation express any intention to bring up the prior order for review. But an appeal from the order confirming the report pf commissioners of assessment in a street opening matter does not bring up-any question relating to the regularity or validity of the proceeding. It-involves only the question whether the commissioners have correctly exercised their functions in imposing the necessary assessments and making the necessary awards. (Matter of the Department of Public Parks, 85 N. Y. 459; Matter of Grand Boulevard, 33 App, Div. 210.)

This rule, clearly recognized by the Court of Appeals and the Appellate Division in the" cases cited, compels the appellant to resort to some other means of attacking the validity of the proposed street opening across its railroad. • It would seem that the purpose might readily be accomplished by an application to vacate and set aside the entire" proceeding as being void so far-as it relates to. the crossing of the railroad, or by resisting any steps which may be taken by the city authorities of Yonkers toward the actual construction and opening of that part of the street.

The Matter of Citizens’ Water Works Co. (32 App. Div. 54) is not an authority to the effect that we may properly determine the validity of the proceeding upon this appeal. In that case, although the appeal was from an order confirming the report of commissioners of appraisal in condemnation proceedings, there was express notice of the appellant’s intention to bring up for -review a prior judgment, which determined that the condemnation of the property in question was necessary for the public use. It was because that judgment was before us, and not merely the order confirming the report of the commissioners, that we were able to reverse, the proceeding for non-compliance with the requirements of the statute under which it was conducted.

It is to be noted that the order confirming the report of the commissioners of estimate and assessment in the present case contains the following provision:

“ Ordered, That the report aforesaid is confirmed without prejudice to any rights of the New York Central and Hudson River Railroad Company under the provisions of. chapter 754 of the Laws of 1897 (Grade Crossing Act), and any amendments of the said act now in force and reserving any rights which it may have under said act.”

In affirming that order, as we feel bound -to do for the reasons which have been stated, the rights of the appellant under the Grade Crossing Act will still remain unaffected ; and it will be at liberty to take such course as it may be advised to raise the -principal question which has been argued here in such a manner as to have it judicially determined.

All concurred.

Order affirmed, without costs.