The City of New York, Respondent, v. New York City Railway Company, Appellant, Impleaded with the Eighth Avenue Railroad Company, Defendant. (Paving Case, P. 10.)

The City of New York, Respondent, v. New York City Railway Company, Appellant, Impleaded with the Eighth Avenue Railroad Company, Defendant. (Paving Case, P. 10.) First Department, May 7, 1909. Railroad — obligation of street railroad to repave between tracks—■ liability for work done by city — contract for repaving let within thirty days of notice to railroad. A street surface railroad which has neglected to repave the street within and adjoining .its tracks, as required by section 98 of the Railroad Law, within thirty days after notice to do so, is liable to the city for the expense of doing the work although the contract for repaving was let by the city before the. expiration of thirty days after notice, if no part of the pavement within the railroad area, was disturbed by the contractors within the thirty days. Appeal by the defendant, the New York City Railway Co.mpany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of July, 1908, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived. J. P. Cotton, Jr., for the appellant. Terence Farley, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: This action was brought to recover for the expenses of repaving within the railroad tracks on Eighth avenue from Thirteenth street to Columbus circle, and on West Broadway from Dey to Canal street. The only point in this case that requires notice is the contention of the defendants that, as .the notice to repair was served on June 14, 1906, and the contract to repave the street or avenue was made on June 21,1906, work under the contract commencing about the end of June, the defendants were not given the statutory notice of thirty days, and cannot, therefore, be charged with the expense of the repavement. It is true that by the statute the railroad company was given thirty days after the service of the notice in which to repave the street. The notice was served on June fourteenth, and it had until July fourteenth to do the work. If it had during that period even intimated to the municipal authorities that it intended to comply with the notice and repave the street, as required by the local authorities, and had proceeded to discharge its obligation, whatever contract the city had made, it could not have compelled the defendants to pay any cost incurred by the city under the contract. It was entirely immaterial to the defendants when the contract was made or when the contractors of the city commenced the work of repaving the street. There is no allegation or proof that any part of the pavement within the railroad area was disturbed by the contractors or by the city within thirty days. The mere fact that the city made a contract to repave this street could not in any way have affected the defendants. Under the statute, if the defendants did not do the work required to be done within thirty days from receipt of the notice, the city could then do the work, and the defendants were charged with the obligation of paying to the city the cost of the work of repaving the street within the railroad area. The plaintiff gave the notice. The defendants did not comply with it, and the city subsequently did the work, and paid for it. The fact that the defendants did not do the work within thirty days, and took no steps then or at any subsequent time to have it done, imposed upon it the duty of paying the city for what it had paid as the cost of the repavement. It was entirely immaterial'to the defendants whether the contract to repave had been made before or after their default in performing the obligation imposed upon them by law. The other points taken by the defendants do not require discussion. It follows that the judgment appealed from should be affirmed, with costs. Patterson, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred. Judgment affirmed, with costs. , See Railroad Law (Laws of 1890, chap. 505), § 98, as amd. by Laws of 1892, chap 676.—[Rep.