Chester, J.:
The position of the appellants, that the court had no jurisdiction Or power to grant the order for a temporary crossing, is based, in substance, upon the claims, first, that at the time the order for such •crossing was made no proceedings had been lawfully instituted or commenced for the appointment of commissioners to determine the [288]*288compensation; or the manner of crossing, and that the petition is insufficient to confer jurisdiction upon the court to appoint commissioners ; Second, that the determination of the Board Of Eailroad Commissioners as to the manner of crossing' was a har to the granting of the order for a temporary crossing, and,; third, that section Í2 of the Eailroad Law and section 1 of chapter 239, Laws of 1893, under which the petitioner was trying to proceed, had both been repealed by the enactrnent of the Laws of 1897, chapter 754, which added section 68 to the Eailroad Law and provided in section 3 df such chapter for the repeal of all acts and parts of acts inconsistent therewith:
It is urged in support of the first contention that the statute ■requires the proceeding to be commenced and conducted under the Condemnation Law and that that law as found in section '3361 of the Code of Civil Procedure provides that a copy of the petition and notice for the' appointment of commissioners must be served “ at least eight days prior to its presentation,” and, therefore, that the petition accompanied by an order to show cause returnable'in a less time, having been used to institute the proceedings, it Was not brought as required by law. The answer to this, it seems to' me, is that the proceeding is not one commenced or. required' by laiv' to: be conducted under the Condemnation Law. It is true that section 12 of the Eailroad Law requires that the commissioners should “ be appointed by the court as is provided in the Condemnation Law,” but nowhere is it provided that. the proceeding should be commenced and conducted under such law, and it has been expressly held that the Condemnation Law does not govern the proceeding. (Matter of Lockport & Buffalo R. R. Co., 77 N. Y. 557.)
This proceeding, therefore, could have been commenced by the service upon the defendants of the petition and the usual eight days’ notice of the motion or application which it was proposed to make to the .court, and instead of such notice of motion the court or justice had the power under section 780 of the Code of" Civil Procedure, upon an affidavit showing grounds therefor, to make art order to sh'ow causé, returnable in less than eight days. The orders to show cause in this case were each based upon sufficient affidavits showing the grounds and the necessity for a less time for the hearing than would be required ■ by giving the usual notice of motion, and were each, I think, properly granted. The case last cited is also [289]*289an authority that the petition need not state the matters required by the Condemnation Law in a proceeding to acquire title to lands. . Judge Earl in writing the unanimous opinion of the Court of Appeals in that case says (at p. 561) : “ What then must the petition state ? Obviously that the petitioner is a- corporation; that the route . of its road as laid down by it crosses the other road; and that it _ desires to cross or. intersect such road, specifying the place; and that the two corporations ‘ cannot agree upon the amount of compensation to be made therefor or the points and manner of such crossings and connections.’ ”
In Matter of Saratoga Electric Ry. Co, (58 Hun, 287) it was held that because of an amendment to the law (Laws of 1884, chap. 252) it was also essential to allege in the petition that the requisite . consents of property owners and municipal authorities to the construction of the road had been procured.
■ In the case at bar it is alleged in the petition not only that the petitioner had received such consents but that its road was actually in operation on both sides and up to the point of intersection with defendants’ road. In addition to this, all the facts mentioned in the . above quotation from Judge Earl’s opinion are alleged. The petition is clearly sufficient to confer jurisdiction,
. The decision of the Board of Eailroad Commissioners under section 68 of the Eailroad Law does not, in my opinion, serve as a bar to the application for the order for the temporary crossing. That decision related to a perma/neni crossing and as to whether such crossing should be above, below or at grade and to the expense thereof. It determined that such permanent crossing should be at • grade and that the relator should bear the entire expense of the construction and maintenance of it. Section 68 gives to such board authority to determine these questions and these only. For these reasons the decision is not a bar to the granting of the order for the provisional or temporary crossing.
So far as the provisions of chapter 239 of the Laws of 1893 and of section 12 of the Eailroad Law are not inconsistent with section 68 of the Eailroad Law, they remain in full force, for the reason that the repealing clause contained in the Laws of 1897, chapter 754, which added section 68 to the Eailroad Law, was only of “ all' [290]*290■ácts and parts of acts inconsistent with. this act.” ' (Laws of 1897, - chap. 754, § 3.)
: The Appellate Division in the fourth department has recently decided that section 1 of chapter 239 of the Laws of 1893 was not inconsistent with chapter 754 of the Laws of 1897, as amended by ‘chapter 739 of the Laws of 1900 (Railroad Law, § 68), and, therefore, was not repealed by it, and we agree with that conclusion. (Olean Street Railway Co. v. Penn. R. R. Co., 75 App. Div. 412.)
Neither is section 12 of the Railroad Law, so far as the petitioner • has sought relief under it, that is, so far as it authorizes the appoint- • ment of- commissioners by the court to determiné the amount of compensation to be made by one road for intersecting another and the manner of such intersection, at all inconsistent with section 68 of that law, and, therefore, can stand with it. ;
The petitioner, therefore, had the right to invoke the aid of both' these laws in this proceeding.
I think, for the reasons already given, that the court had the jurisdiction and power to make the order appealed from.
More than this, I think such order' was right under the circumstances appearing here.
The petitioner had the right under the law to have its road cross and intersect that of' the defendants. (Railroad Law, § 4, subd. 5,, as amd. by Laws of 1892, chap. 676.) After the Board of Railroad Commissioners had determined that such crossing should be at gradé ■ and the petitioner had attempted to agree with the defendants upon the grades, points and manner of the intersection and the amount of compensation to be made therefor and the defendant's had refused to allow the petitioner to proceed under the decision of such board,, the petitioner had, of necessity, if it was not to be defeated entirely in its efforts to secure such crossing, to apply to the Special Term as. it did, under section 12 of the Railroad Law, for the appointment of commissioners to determine said matters concerning which it was unable to agree with the defendants.
- When¿ on such application coming on, the defendants servéd .
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Chester, J.:
The position of the appellants, that the court had no jurisdiction Or power to grant the order for a temporary crossing, is based, in substance, upon the claims, first, that at the time the order for such •crossing was made no proceedings had been lawfully instituted or commenced for the appointment of commissioners to determine the [288]*288compensation; or the manner of crossing, and that the petition is insufficient to confer jurisdiction upon the court to appoint commissioners ; Second, that the determination of the Board Of Eailroad Commissioners as to the manner of crossing' was a har to the granting of the order for a temporary crossing, and,; third, that section Í2 of the Eailroad Law and section 1 of chapter 239, Laws of 1893, under which the petitioner was trying to proceed, had both been repealed by the enactrnent of the Laws of 1897, chapter 754, which added section 68 to the Eailroad Law and provided in section 3 df such chapter for the repeal of all acts and parts of acts inconsistent therewith:
It is urged in support of the first contention that the statute ■requires the proceeding to be commenced and conducted under the Condemnation Law and that that law as found in section '3361 of the Code of Civil Procedure provides that a copy of the petition and notice for the' appointment of commissioners must be served “ at least eight days prior to its presentation,” and, therefore, that the petition accompanied by an order to show cause returnable'in a less time, having been used to institute the proceedings, it Was not brought as required by law. The answer to this, it seems to' me, is that the proceeding is not one commenced or. required' by laiv' to: be conducted under the Condemnation Law. It is true that section 12 of the Eailroad Law requires that the commissioners should “ be appointed by the court as is provided in the Condemnation Law,” but nowhere is it provided that. the proceeding should be commenced and conducted under such law, and it has been expressly held that the Condemnation Law does not govern the proceeding. (Matter of Lockport & Buffalo R. R. Co., 77 N. Y. 557.)
This proceeding, therefore, could have been commenced by the service upon the defendants of the petition and the usual eight days’ notice of the motion or application which it was proposed to make to the .court, and instead of such notice of motion the court or justice had the power under section 780 of the Code of" Civil Procedure, upon an affidavit showing grounds therefor, to make art order to sh'ow causé, returnable in less than eight days. The orders to show cause in this case were each based upon sufficient affidavits showing the grounds and the necessity for a less time for the hearing than would be required ■ by giving the usual notice of motion, and were each, I think, properly granted. The case last cited is also [289]*289an authority that the petition need not state the matters required by the Condemnation Law in a proceeding to acquire title to lands. . Judge Earl in writing the unanimous opinion of the Court of Appeals in that case says (at p. 561) : “ What then must the petition state ? Obviously that the petitioner is a- corporation; that the route . of its road as laid down by it crosses the other road; and that it _ desires to cross or. intersect such road, specifying the place; and that the two corporations ‘ cannot agree upon the amount of compensation to be made therefor or the points and manner of such crossings and connections.’ ”
In Matter of Saratoga Electric Ry. Co, (58 Hun, 287) it was held that because of an amendment to the law (Laws of 1884, chap. 252) it was also essential to allege in the petition that the requisite . consents of property owners and municipal authorities to the construction of the road had been procured.
■ In the case at bar it is alleged in the petition not only that the petitioner had received such consents but that its road was actually in operation on both sides and up to the point of intersection with defendants’ road. In addition to this, all the facts mentioned in the . above quotation from Judge Earl’s opinion are alleged. The petition is clearly sufficient to confer jurisdiction,
. The decision of the Board of Eailroad Commissioners under section 68 of the Eailroad Law does not, in my opinion, serve as a bar to the application for the order for the temporary crossing. That decision related to a perma/neni crossing and as to whether such crossing should be above, below or at grade and to the expense thereof. It determined that such permanent crossing should be at • grade and that the relator should bear the entire expense of the construction and maintenance of it. Section 68 gives to such board authority to determine these questions and these only. For these reasons the decision is not a bar to the granting of the order for the provisional or temporary crossing.
So far as the provisions of chapter 239 of the Laws of 1893 and of section 12 of the Eailroad Law are not inconsistent with section 68 of the Eailroad Law, they remain in full force, for the reason that the repealing clause contained in the Laws of 1897, chapter 754, which added section 68 to the Eailroad Law, was only of “ all' [290]*290■ácts and parts of acts inconsistent with. this act.” ' (Laws of 1897, - chap. 754, § 3.)
: The Appellate Division in the fourth department has recently decided that section 1 of chapter 239 of the Laws of 1893 was not inconsistent with chapter 754 of the Laws of 1897, as amended by ‘chapter 739 of the Laws of 1900 (Railroad Law, § 68), and, therefore, was not repealed by it, and we agree with that conclusion. (Olean Street Railway Co. v. Penn. R. R. Co., 75 App. Div. 412.)
Neither is section 12 of the Railroad Law, so far as the petitioner • has sought relief under it, that is, so far as it authorizes the appoint- • ment of- commissioners by the court to determiné the amount of compensation to be made by one road for intersecting another and the manner of such intersection, at all inconsistent with section 68 of that law, and, therefore, can stand with it. ;
The petitioner, therefore, had the right to invoke the aid of both' these laws in this proceeding.
I think, for the reasons already given, that the court had the jurisdiction and power to make the order appealed from.
More than this, I think such order' was right under the circumstances appearing here.
The petitioner had the right under the law to have its road cross and intersect that of' the defendants. (Railroad Law, § 4, subd. 5,, as amd. by Laws of 1892, chap. 676.) After the Board of Railroad Commissioners had determined that such crossing should be at gradé ■ and the petitioner had attempted to agree with the defendants upon the grades, points and manner of the intersection and the amount of compensation to be made therefor and the defendant's had refused to allow the petitioner to proceed under the decision of such board,, the petitioner had, of necessity, if it was not to be defeated entirely in its efforts to secure such crossing, to apply to the Special Term as. it did, under section 12 of the Railroad Law, for the appointment of commissioners to determine said matters concerning which it was unable to agree with the defendants.
- When¿ on such application coming on, the defendants servéd . answers denying the right of the petitioner to any crossing and raising issues concerning most of the matters alleged in the petition, the petitioner, in order to avoid the delay incident to the trial of the [291]*291issues thus raised, was justified in resorting to the court for permission to make a temporary crossing under section 1 of chapter 239, Laws of 1893. (Olean Street Railway Co. v. Penn. R. R. Co:, 75 App. Div. 413.) That section provides for relief in just such a case as this, and the purpose of the statute in permitting an application for a temporary crossing was evidently to enable a Street railroad company to avoid the delay in laying its tracks which otherwise would result from awaiting the trial-of issues so raised: (Geneva & Waterloo P. Co. v. N. Y. C. & H. R. R. R. Co., 90 Hun, 9.)
The criticism made by the appellants upon the order granting the temporary crossing, that by it such crossing is permitted without compliance with some of the conditions imposed by the determination of the State Board of Railroad Commissioners for the permanent crossing at grade, has no force in view of the fact that the Special Term required the bond given by the petitioners before granting the temporary crossing to be conditioned upon full and faithful performance by the petitioner of all conditions which may be imposed upon it by such board pursuant to section 68 of the Railroad Law.
It appears that after the answers had been served and after the granting, but before the return, of the order to show cause why a temporary crossing should not be permitted, the defendants, through their attorneys, consented in writing that the engineer of the Board of Railroad Commissioners or any- engineer it may designate “ shall determine the point of crossing by said plaintiff at Chestnut street, such consent to be without prejudice to any of the other questions raised or presented upon either of the applications herein.” The purpose of this carefully guarded consent, coming so late and at the time it did, was, undoubtedly, to influence the court favorably towards the defendants’ position; but it is not apparent- how it could facilitate in any way the early consummation of the petitioner’s right to a crossing, in view of the fact that all the issues raised by the answers, including that raised by the defendants’ denial of petitioner’s right to cross their track at all, remained to be tried. The court was right in not permitting this consent to stand in the way of granting the order for the temporary crossing.
. The appeal here not being from a final order in a special proceed[292]*292ing, the specification in the notice of appeal of an intention to bring np' the intermediate orders for review is not effective for that purpose. (Code Oiv. Proc. §§ 1301, 1358.).
What has been said concerning the orders to show cause was made necessary by the alleged want of jurisdiction in the court to make the order appealed from.
The order should be affirmed, with ten dollars costs: and printing disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.