This is a submitted controversy which presents the sole question whether it is the duty of the defendant to repair the roadway of a certain bridge. Before September 28, 1905, there was a public highway in the town of Cortlandt which crossed defendant’s right of way and was carried over defendant’s tracks by a bridge. Such bridge was constructed and used for several years prior to January 1, 1897. In September, 1905, the local authorities of the town permitted the defendant to make a temporary change of such overhead crossing. Between 1906 and 1910, at the instance of the defendant, the old highway was discontinued and a new highway was substituted nearby, which included a new overhead bridge. These changes were made necessary solely by the defendant’s establishment of yards, tracks, repair shop, etc., at Harmon, and by defendant’s work of excavation for sand. The new bridge was constructed by the defendant, and. now forms part of a public highway of the said town of Cortlandt in place of the said former highway.
The plaintiff contends that the duty to repair the bridge, including the replanking of it, is cast upon the defendant perforce of the said exception. I think that the present bridge, in the eye of the law, was constructed prior to July 1, 1897, because admittedly it is but a substitute for a bridge which had been constructed before that time. But he who relies upon the exception cannot rest upon showing that the bridge was constructed prior to July 1, 1897, but he must go on to show that the railroad company was obliged to maintain and to repair the roadway and approaches of that bridge. For such is the express limitation of the exception. I think that the obligation of the railroad company was confined to a bridge which had been necessary to continue an existing highway because that highway had been interfered with by the railroad company in the construction, maintenance and working of its railroad. (See Bush v. D., L. & W. R. R. Co., 166 N. Y. 210.) The physical facts that a highway is continued by a bridge, and that beneath the bridge lies the right of way, the tracks and the like, of a railroad company, do not justify the conclusion that the bridge was made necessary by the railroad company in the construction, maintenance and working of its system.
The origin of the old bridge is not told. This case was continued that the parties might look into it. And now the learned and able counsel for the plaintiff states with commendable frankness in his brief upon the resubmission: “ There is no proof when this old bridge was constructed or by whom
The present scheme applicable to such a bridge requires the railroad company to maintain and to repair the framework and the abutments, and the municipality to maintain and to repair the roadway and the approaches. (Railroad Law, § 93; City of Yonkers v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 142; Matter of City of New York v. N. Y. C. R. R. Co., 168 App. Div. 6; affd., 216 N. Y. 722.)
The plaintiff has failed to shift its burden upon the defendant by invocation of the exception which I have quoted, and, therefore, there must be judgment dismissing the complaint, without costs, in accord with the terms of the submission.
Thomas, Stapleton and Putnam, JJ., concurred; Mills, J., not voting.
Judgment dismissing the complaint on reargument, without costs.