The People of the State of New York ex rel. J. Warren Lawton, Appellant, v. Henry S. Clark, President, and Herbert A. Quackenbush and Others, Trustees, of the Village of New Rochelle, Respondents

The People of the State of New York ex rel. J. Warren Lawton, Appellant, v. Henry S. Clark, President, and Herbert A. Quackenbush and Others, Trustees, of the Village of New Rochelle, Respondents. A milage not compelled by mandamus to carry a street across railroad tracks — a contract obligation not enforced by manda/mus. A writ of mandamus will not be issued to compel'a municipal corporation to carry a street across the tracks of a railroad, as the grade- of the street is a matter resting in the discretion of the municipal authorities, and the courts cannot, by mandamus, compel them to exercise such discretion in any particular direction. ■ Qucere. whether the performance of an obligation imposed upon a municipal Corporation by contract can be enforced by mandamus,- Appeal by the relator, J. Warren Lawton, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of January, 1899, denying the relator’s motion for a peremptory writ of mandamus commanding the- defendants to cause to be removed the bridge and bridge abutments and steps at and upon Centre' avenue where said avenue crosses the tracks of the New York, New Haven and Hartford Railroad Company, in the village of. New Rochelle, or to cause to be made and-constructed approaches to said bridge upon both sides suitable for vehicles and foot passengers, or to make, or cause to be made, a proper and lawful crossing over said railroad tracks with approaches for vehicles and foot passengers. The relator’s petition alleges that the land comprised within the boundaries of Centre avenue was conveyed to the village of New Rochelle to be used, enjoyed and maintained by the village' as a public road or street, and that the village accepted the deed for such purposes,. . . George Bell [Roger A. Pryor with him on the brief], for the appellant. J. Addison Young, for the respondents. [MAJORITY — Per Curiam:] Per Curiam: The affidavits on behalf of the village' allege that rio part of the land lying iii the line of the street, at its intersection with the railroad track, was conveyed to it by the deed. On ap application for a peremptory writ of mandamus this allegation must be taken as true. If such be the case, then the village, by its acceptance of the deed from the relator and his co-owners, did not assume any obligation to carry the. street across the railroad track. Even if such obligation were assumed, as it would proceed from contract and not from law, we doubt very much whether its performance could be enforced by mandamus. Further, the municipality has the power at any time to change the grade of the streets lying within its limits. If we should compel it to elevate the grade of this street there is no reason why, immediately on the completion of the work, it might not lower the grade again to the present elevation. We think the grade of the street is a matter resting within the discretion of the municipal authorities, and the courts cannot by mandamus compel them to exercise that discretion in any particular direction. . The order appealed from should be affirmed. All concurred. Order affirmed, with ten dollars costs and. disbursements.