Heffernan, J.
The facts in this proceeding are comprehensively stated in the dissenting opinion of Mr. Justice Crapser on the former determination (249 App. Div. 871) and their repetition is unnecessary. We then affirmed the determination of the town board. We directed a reargument principally for the purpose of a consideration and determination of the nature, scope and extent of our power of review on an appeal of this character. After more deliberate consideration and reflection we have concluded that our former decision should be overruled. That decision was predicated on the ground that the court was without power to pass upon the necessity of laying out a town highway across the tracks of appellants’ railroads. In that decision we held, in substance, that we had no authority to annul the order appealed from unless it appeared that it was unreasonable, unlawful, arbitrary or capricious. The reason for that rule so far as it applies to regulatory tribunals is discussed in People ex rel. N. Y. & Queens Gas Co. v. McCall (219 N. Y. 84). The rule of limitation to review stated in the McCall case was restated and applied in Matter of Grade Crossings (N. Y. C. R. R. Co.) (255 N. Y. 320) and Niagara Falls Power Co. v. Water Power & Control Commission (267 id. 265).
The rule as to the scope of review of questions of fact applicable to the determinations of regulatory bodies should not be extended to include decisions of a town board. The cases cited in the dissenting opinion of Mr. Justice Rhodes, when properly analysed, do not hold anything to the contrary. These cases were dealing with orders of the Public Service Commission or its predecessor, the Board of Railroad Commissioners.
The inquiry as to whether the proposed highway in the instant case is necessary is a judicial and not a legislative question. This court has heretofore asserted and exercised the power to review the determination of a town board as to the necessity of laying out a public highway in Matter of Tennessee Avenue (213 App. Div. 540). The Court of Appeals has defined the scope of review in a like proceeding in Matter of Delavan Avenue (167 N. Y. 256). In that case the city of Buffalo had extended Delavan avenue over certain railroad tracks pursuant to the provisions of section 61 of the Railroad Law of 1890 (present section 90). The question presented was whether section 62 of the Railroad Law (present section 91) allowed an appeal from the determination of the municipal corporation, or only an appeal from the determination of the [644] Railroad Commissioners directing the manner of crossing. The court held that the statute gave a separate appeal from the determination of the municipal corporation. In the course of its opinion the court also made the following statement as to the scope of review: “ It is further objected in behalf of the city that the determination of the municipal authorities is not an exercise of any judicial function, but is an act of political sovereignty, legislative in its nature, to be exercised by the body to whom the Legislature has delegated the authority, and, therefore, not the proper subject of judicial review. If the Legislature had delegated the authority to the municipal body without qualification to determine as to the necessity of this crossing, the case would be different. (People ex rel. Herrick v. Smith, 21 N. Y. 595; Matter of Townsend, 39 N. Y. 171; Matter of Fowler, 53 N. Y. 60; Matter of Sackett Street, 74 N. Y. 95.) But section 61 provides that the municipal body must give fifteen days’ notice of its intention to the railroad company, and of the time and place of hearing, and expressly provides that the railroad company shall have a right to be heard upon the question of the necessity of such street. The reason is manifest. The railroad company is already using its railroad by virtue of the right of eminent domain, and although that is not prohibitive of legislative authorization of new street and highway crossings (Prest., etc., Delaware & Hudson Canal Co. v. Village of Whitehall, 90 N. Y. 21; Buffalo, B. & L. Ry. Co. v. N. Y., L. Erie & W. R. R. Co., 72 Hun, 587), yet it presents such questions of fact of a judicial nature, touching relative necessities, public uses, public danger, comparison of cost to benefits, promotion of private enterprises under guise of public uses, all of which are suggested by this record, as might well induce the Legislature to submit the question of necessity to municipal determination, subject to judicial review. There is no constitutional restriction upon such a delegation of authority and such an exercise of judicial jurisdiction. The cases first above cited, and the statutes touching railway crossings, and statutes regulating the exercise of the power of eminent domain (Condemnation Law; Code C. P. sec. 3357), show that judicial jurisdiction and revision are, whenever the State does not directly act for itself, an important feature of its policy. The same judicial revision may not be necessary, but it may be proper in cases where the State itself is the direct actor; it is for the Legislature to decide.”
Respondents apparently find some consolation in the opinion of the Appellate Division of the Fourth Department (62 App. Div. 492) when the same case again appeared there on the question of the contents of the record on appeal. There, however, the court [645] clearly recognized that the review of the “ propriety and expediency ” of laying out the highway was before it for determination. In his brief the learned counsel for appellants has traced the history of legislation dealing with the power of municipalities to lay out streets and highways over railroads in this State. From that history it convincingly appears that dangerous crossings were to be eliminated and the necessity for new crossings was confided to the courts through the power of review. From earliest times this State made the question of “ necessity ” of a new road to be laid out, or “ uselessness ” of an old one to be discontinued, a judicial question. The Highway Law, sections 173-179, provides for the appointment of commissioners by the court, their duties including the obligation to determine the question of “ necessity ” or “ uselessness,” as the case may be, and their determination is subject to review by the court which appoints them (People ex rel. Hanford v. Thayer, 88 Hun, 136; Matter of Thompson, 70 Misc. 285; Matter of Lawton, 22 id. 426) and will be reversed if against the weight of evidence. (Matter of Coe, 19 Misc. 549.)
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Heffernan, J.
The facts in this proceeding are comprehensively stated in the dissenting opinion of Mr. Justice Crapser on the former determination (249 App. Div. 871) and their repetition is unnecessary. We then affirmed the determination of the town board. We directed a reargument principally for the purpose of a consideration and determination of the nature, scope and extent of our power of review on an appeal of this character. After more deliberate consideration and reflection we have concluded that our former decision should be overruled. That decision was predicated on the ground that the court was without power to pass upon the necessity of laying out a town highway across the tracks of appellants’ railroads. In that decision we held, in substance, that we had no authority to annul the order appealed from unless it appeared that it was unreasonable, unlawful, arbitrary or capricious. The reason for that rule so far as it applies to regulatory tribunals is discussed in People ex rel. N. Y. & Queens Gas Co. v. McCall (219 N. Y. 84). The rule of limitation to review stated in the McCall case was restated and applied in Matter of Grade Crossings (N. Y. C. R. R. Co.) (255 N. Y. 320) and Niagara Falls Power Co. v. Water Power & Control Commission (267 id. 265).
The rule as to the scope of review of questions of fact applicable to the determinations of regulatory bodies should not be extended to include decisions of a town board. The cases cited in the dissenting opinion of Mr. Justice Rhodes, when properly analysed, do not hold anything to the contrary. These cases were dealing with orders of the Public Service Commission or its predecessor, the Board of Railroad Commissioners.
The inquiry as to whether the proposed highway in the instant case is necessary is a judicial and not a legislative question. This court has heretofore asserted and exercised the power to review the determination of a town board as to the necessity of laying out a public highway in Matter of Tennessee Avenue (213 App. Div. 540). The Court of Appeals has defined the scope of review in a like proceeding in Matter of Delavan Avenue (167 N. Y. 256). In that case the city of Buffalo had extended Delavan avenue over certain railroad tracks pursuant to the provisions of section 61 of the Railroad Law of 1890 (present section 90). The question presented was whether section 62 of the Railroad Law (present section 91) allowed an appeal from the determination of the municipal corporation, or only an appeal from the determination of the [644] Railroad Commissioners directing the manner of crossing. The court held that the statute gave a separate appeal from the determination of the municipal corporation. In the course of its opinion the court also made the following statement as to the scope of review: “ It is further objected in behalf of the city that the determination of the municipal authorities is not an exercise of any judicial function, but is an act of political sovereignty, legislative in its nature, to be exercised by the body to whom the Legislature has delegated the authority, and, therefore, not the proper subject of judicial review. If the Legislature had delegated the authority to the municipal body without qualification to determine as to the necessity of this crossing, the case would be different. (People ex rel. Herrick v. Smith, 21 N. Y. 595; Matter of Townsend, 39 N. Y. 171; Matter of Fowler, 53 N. Y. 60; Matter of Sackett Street, 74 N. Y. 95.) But section 61 provides that the municipal body must give fifteen days’ notice of its intention to the railroad company, and of the time and place of hearing, and expressly provides that the railroad company shall have a right to be heard upon the question of the necessity of such street. The reason is manifest. The railroad company is already using its railroad by virtue of the right of eminent domain, and although that is not prohibitive of legislative authorization of new street and highway crossings (Prest., etc., Delaware & Hudson Canal Co. v. Village of Whitehall, 90 N. Y. 21; Buffalo, B. & L. Ry. Co. v. N. Y., L. Erie & W. R. R. Co., 72 Hun, 587), yet it presents such questions of fact of a judicial nature, touching relative necessities, public uses, public danger, comparison of cost to benefits, promotion of private enterprises under guise of public uses, all of which are suggested by this record, as might well induce the Legislature to submit the question of necessity to municipal determination, subject to judicial review. There is no constitutional restriction upon such a delegation of authority and such an exercise of judicial jurisdiction. The cases first above cited, and the statutes touching railway crossings, and statutes regulating the exercise of the power of eminent domain (Condemnation Law; Code C. P. sec. 3357), show that judicial jurisdiction and revision are, whenever the State does not directly act for itself, an important feature of its policy. The same judicial revision may not be necessary, but it may be proper in cases where the State itself is the direct actor; it is for the Legislature to decide.”
Respondents apparently find some consolation in the opinion of the Appellate Division of the Fourth Department (62 App. Div. 492) when the same case again appeared there on the question of the contents of the record on appeal. There, however, the court [645] clearly recognized that the review of the “ propriety and expediency ” of laying out the highway was before it for determination. In his brief the learned counsel for appellants has traced the history of legislation dealing with the power of municipalities to lay out streets and highways over railroads in this State. From that history it convincingly appears that dangerous crossings were to be eliminated and the necessity for new crossings was confided to the courts through the power of review. From earliest times this State made the question of “ necessity ” of a new road to be laid out, or “ uselessness ” of an old one to be discontinued, a judicial question. The Highway Law, sections 173-179, provides for the appointment of commissioners by the court, their duties including the obligation to determine the question of “ necessity ” or “ uselessness,” as the case may be, and their determination is subject to review by the court which appoints them (People ex rel. Hanford v. Thayer, 88 Hun, 136; Matter of Thompson, 70 Misc. 285; Matter of Lawton, 22 id. 426) and will be reversed if against the weight of evidence. (Matter of Coe, 19 Misc. 549.)
Prior to the present Highway Law and under the early Revised Statutes by which town commissioners of highways were empowered to lay out or discontinue a highway, and a person aggrieved by their decision could appeal to the three judges of the county, it was held that the sole question for the judges to consider on appeal was the “ necessity or propriety ” of the road. (Commissioners of Highways of Warwick v. Judges of Orange County, 13 Wend. 433.) The principle of that case was reaffirmed in People ex rel. Hubbard v. Harris (63 N. Y. 391) and People ex rel. Cook v. Hildreth (126 id. 360). In Citizens’ Savings Bank v. Town of Greenburgh (173 N. Y. 215) the Court of Appeals asserted its right to pass upon the question of necessity of a town highway authorized to be constructed by special act of the Legislature. Recently the Appellate Division, Second Department, in Matter of Crouch (232 App. Div. 698), in dismissing a motion to confirm the report of commissioners determining the necessity for a new town highway, reviewed the facts of the case and stated that the “ necessity ” for the highway was not shown.
In Matter of Mayor, etc., City of Yonkers (248 N. Y. 593) the Court of Appeals reviewed the evidence in a proceeding under section 91 of the Railroad Law before the Public Service Commission to alter a bridge carrying a street over railroad tracks, in which proceeding a finding of “ necessity ” by the Commission is required by statute, and held that the petitioner failed to show that alteration of the bridge was “ necessary ” within the meaning of section 91 of the [646] Railroad Law. The Commission had dismissed the proceeding for lack of jurisdiction.
The necessity for exercise by the courts of the full scope of the power of review granted under section 91 of the Railroad Law becomes apparent in considering the divided power over crossings in the present state of the law. The Public Service Commission has general regulatory powers over the railroads of the State, including the power to eliminate all existing grade crossings. Municipalities are authorized to conduct proceedings to lay out streets and highways over railroads. This dual authority should be exercised in such a manner that there may be no conflict. To avoid that result it is imperative that the power of the court to pass upon the question of the necessity of the action of local officials should not be circumscribed.
In granting to an aggrieved person the right to appeal, the statute (Railroad Law, § 91) provides that it may be taken “ in the same manner and with like effect as is provided in the case of appeals from an order of the Supreme Court.” On appeal from such an order the court has power to reverse, affirm or modify. (Civ. Prac. Act, § 584.)
Our power to review a determination of a town board is no less comprehensive than a review in a certiorari proceeding. Unquestionably in such a proceeding we may pass upon the evidence. (Civ. Prac. Act, § 1304, subds. 4, 5.) Possessing the power to review the merits on this appeal we would be remiss in our duty if we failed to do so.
As heretofore pointed out in the dissenting opinion of Justice Crapser, a consideration of the evidence requires an annulment of the determination appealed from and a dismissal of the proceeding.
The determination appealed from should be annulled, with fifty dollars costs and disbursements to appellants.
Crapser and Bliss, JJ., concur; Bliss, J., in a separate memorandum, in which Heffernan, J., concurs; Rhodes, J., dissents, with an opinion, in which Hill, P. J., concurs.