Andrews, J.
The ISTew York, West Shore and Buffalo Company, by the acceptance of the deed of February 8, 1882, became bound to perform the obligation recited therein to locate the highway on the westerly side of the strip of land conveyed by the deed, and to construct a crossing for the use of the plaintiff. The undertaking of the corporation was a part of the consideration of the grant, and although the deed was not signed and sealed by the corporation, it became effectual on delivery to and acceptance of the same by the grantee as a con[588]*588tract on its part to perforin the undertaking recited (Atlantic Dock Co. v. Leavitt, 54 N. Y. 35); and upon a refusal of the company to perform, the plaintiff was, according to the general rule, entitled to maintain. an action for specific performance or for damages. It is not denied that the West Shore Bail-way Company, the successor in title of the original corpora■tion, on becoming vested with the rights and property which belonged to its predecessor, also became subject to and bound by the same obligation in respect to the highway and the railroad crossing created by the deed of February 8,1882, which before rested upon the grantee therein alone. The deed under which the West Shore Bailroad Company acquired its title is not printed in the case, and so far as appears that company may have expressly assumed the performance of the obligation of the prior company. If that fact is material, it must here be assumed.
The point is now made in behalf of the defendants that the contract between the plaintiff and the Bew York, West Shore and Buffalo Bailway Company is void as against public policy, because as is claimed, it is a contract between private parties providing for the abandonment of a part of an existing highway, and the substitution of a new location to take the place of the highway so abandoned, without the sanction of the commissioner of highways of the town. We are of opinion that this contention cannot be supported.
The Bew York, West Shore and Buffalo Bailway Company did not acquire its right to construct its road upon and along the Catskill and Saugerties highway as against the public by virtue of its deed from the plaintiff of February 8, 1882. The right to use the highway for the purpose was vested in the corporation by the General Bailroad Act on obtaining the consent of the Supreme Court, subject only to the duty to restore it to its former state, “ or to such state as not unnecessarily to have impaired its usefulness ” (Laws of 1850, eh. 140, ■§ 28, subd. 5; Laws of 1880, cli. 133),' and when it becomes necessary for a railroad company, in order to discharge the duty of restoration, that the highway interfered with should [589]*589be removed in whole or in part outside of its original limits, the-corporation may acquire, by purchase or condemnation, the-lands necessary for the purpose, and the reconstructed highway in the new location becomes a part of the legal highway. (People ex rel. Green v. Dutchess & Columbia R. R. Co., N. Y. 152.) The corporation has in general the right to determine the route of 'its road, except where its line is coincident with the route of a mgiiway, subject to the right given by the statute to parties interested to apply for a change of location in the manner provided.
The commissioner of highways is vested by statute with the care and supervision of the highways of the town (1 Rev. St. p. 502, § 1), but this, we' think, gives him- no power to control the location of the railroad within the line of the highway. That power is vested in the railroad corporation, subject to the approval of the Supreme Court. The statute requires notice of the application to the court to be given to the highway commissioner. But his consent to the location of the railroad within the limits of the highway is not required, and if given would confer no authority upon the company in addition to what it before possessed. So, also, in respect of the duty imposed on a railroad company whose road is located in a highway to restore it to its former state, or to such state as not unnecessarily to impair' its usefulness. The duty is solely a corporate duty which the company is bound to perform, and for any failure in its performance, in addition to other remedies, the commissioner of highways is authorized, by chapter 255 of the act of 1855, to maintain an action to enforce the performance, or, for damages sustained by the town from non-performance. But it is for the company in the first instance to determine the method of restoration. The responsibility is not divided between the company and the commissioner. The obligation is cast upon the company, and “ it takes the risk of its act being in accordance with its obligation.” (Johnson, J., Wademan v. Albany, etc., R. R. Co., 51 N. Y. 570 ; see, also, People v. N. Y. C. & H. R. R. R. Co., 74 id. 302; People v. N. Y., N. H. & H. R. R. Co., 89 id. 266.)
[590]*590In the present case the company, hy the deed from the plaintiff, acquired the fee to the highway, subject to the public easement, and additional land adjoining sufficient for the highway when changed. We think the contract between the parties providing how the restoration should be made was legal. The public was not concluded, and its right of action for a failure by the railroad company to perform its statutory duty remained unimpaired.
It is further contended that the performance of the contract, on the part of the railroad company, was prevented by the action of the town commissioner. It appears "that in the fall of 1882, he objected to the construction by the company of the new highway under the hill for prudential reasons. The answer heretofore given to the point made that the contract was opposed to public policy, applies here also. The commissioner could not dictate how the work of restoration should be accomplished. It might be> very reasonable that the company should desire to consult the wishes of the town officers on the subject, and thereby avoid any future question or difficulty. But the covenant with the plaintiff was not discharged by the objection of the commissioner, for the company was under no legal compulsion to follow his direction m the matter. It certainly does not appear that the construction by the company of the highway, at the place agreed upon between it and the plaintiff, would not have satisfied the statutory duty resting on the company. Moreover we think it is a very grave ques tion whether, assuming that the company had no right as between itself and the town to locate the road under the hill, the plaintiff was not, nevertheless, entitled to enforce the contract so far as to give him a road for his use at the place indicated. The main purpose of the contract was to insure the plaintiff a convenient road to and from his premises. This the plaintiff could have provided, although the road should no longer continue a public legal highway. (Sto. Eq. Jur. § 779.)
The point that the plaintiff waived the provision in the contract by selling to the company the land for the road over the hill and receiving pay therefor, followed by the construe[591]*591iion of the hill road by the company at large expense, is not supported by any facts proved or found, and in addition, which alone is conclusive, the defendants’ counsel did not request any finding on the subject; nor is the point raised by any exception in the case.
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Andrews, J.
The ISTew York, West Shore and Buffalo Company, by the acceptance of the deed of February 8, 1882, became bound to perform the obligation recited therein to locate the highway on the westerly side of the strip of land conveyed by the deed, and to construct a crossing for the use of the plaintiff. The undertaking of the corporation was a part of the consideration of the grant, and although the deed was not signed and sealed by the corporation, it became effectual on delivery to and acceptance of the same by the grantee as a con[588]*588tract on its part to perforin the undertaking recited (Atlantic Dock Co. v. Leavitt, 54 N. Y. 35); and upon a refusal of the company to perform, the plaintiff was, according to the general rule, entitled to maintain. an action for specific performance or for damages. It is not denied that the West Shore Bail-way Company, the successor in title of the original corpora■tion, on becoming vested with the rights and property which belonged to its predecessor, also became subject to and bound by the same obligation in respect to the highway and the railroad crossing created by the deed of February 8,1882, which before rested upon the grantee therein alone. The deed under which the West Shore Bailroad Company acquired its title is not printed in the case, and so far as appears that company may have expressly assumed the performance of the obligation of the prior company. If that fact is material, it must here be assumed.
The point is now made in behalf of the defendants that the contract between the plaintiff and the Bew York, West Shore and Buffalo Bailway Company is void as against public policy, because as is claimed, it is a contract between private parties providing for the abandonment of a part of an existing highway, and the substitution of a new location to take the place of the highway so abandoned, without the sanction of the commissioner of highways of the town. We are of opinion that this contention cannot be supported.
The Bew York, West Shore and Buffalo Bailway Company did not acquire its right to construct its road upon and along the Catskill and Saugerties highway as against the public by virtue of its deed from the plaintiff of February 8, 1882. The right to use the highway for the purpose was vested in the corporation by the General Bailroad Act on obtaining the consent of the Supreme Court, subject only to the duty to restore it to its former state, “ or to such state as not unnecessarily to have impaired its usefulness ” (Laws of 1850, eh. 140, ■§ 28, subd. 5; Laws of 1880, cli. 133),' and when it becomes necessary for a railroad company, in order to discharge the duty of restoration, that the highway interfered with should [589]*589be removed in whole or in part outside of its original limits, the-corporation may acquire, by purchase or condemnation, the-lands necessary for the purpose, and the reconstructed highway in the new location becomes a part of the legal highway. (People ex rel. Green v. Dutchess & Columbia R. R. Co., N. Y. 152.) The corporation has in general the right to determine the route of 'its road, except where its line is coincident with the route of a mgiiway, subject to the right given by the statute to parties interested to apply for a change of location in the manner provided.
The commissioner of highways is vested by statute with the care and supervision of the highways of the town (1 Rev. St. p. 502, § 1), but this, we' think, gives him- no power to control the location of the railroad within the line of the highway. That power is vested in the railroad corporation, subject to the approval of the Supreme Court. The statute requires notice of the application to the court to be given to the highway commissioner. But his consent to the location of the railroad within the limits of the highway is not required, and if given would confer no authority upon the company in addition to what it before possessed. So, also, in respect of the duty imposed on a railroad company whose road is located in a highway to restore it to its former state, or to such state as not unnecessarily to impair' its usefulness. The duty is solely a corporate duty which the company is bound to perform, and for any failure in its performance, in addition to other remedies, the commissioner of highways is authorized, by chapter 255 of the act of 1855, to maintain an action to enforce the performance, or, for damages sustained by the town from non-performance. But it is for the company in the first instance to determine the method of restoration. The responsibility is not divided between the company and the commissioner. The obligation is cast upon the company, and “ it takes the risk of its act being in accordance with its obligation.” (Johnson, J., Wademan v. Albany, etc., R. R. Co., 51 N. Y. 570 ; see, also, People v. N. Y. C. & H. R. R. R. Co., 74 id. 302; People v. N. Y., N. H. & H. R. R. Co., 89 id. 266.)
[590]*590In the present case the company, hy the deed from the plaintiff, acquired the fee to the highway, subject to the public easement, and additional land adjoining sufficient for the highway when changed. We think the contract between the parties providing how the restoration should be made was legal. The public was not concluded, and its right of action for a failure by the railroad company to perform its statutory duty remained unimpaired.
It is further contended that the performance of the contract, on the part of the railroad company, was prevented by the action of the town commissioner. It appears "that in the fall of 1882, he objected to the construction by the company of the new highway under the hill for prudential reasons. The answer heretofore given to the point made that the contract was opposed to public policy, applies here also. The commissioner could not dictate how the work of restoration should be accomplished. It might be> very reasonable that the company should desire to consult the wishes of the town officers on the subject, and thereby avoid any future question or difficulty. But the covenant with the plaintiff was not discharged by the objection of the commissioner, for the company was under no legal compulsion to follow his direction m the matter. It certainly does not appear that the construction by the company of the highway, at the place agreed upon between it and the plaintiff, would not have satisfied the statutory duty resting on the company. Moreover we think it is a very grave ques tion whether, assuming that the company had no right as between itself and the town to locate the road under the hill, the plaintiff was not, nevertheless, entitled to enforce the contract so far as to give him a road for his use at the place indicated. The main purpose of the contract was to insure the plaintiff a convenient road to and from his premises. This the plaintiff could have provided, although the road should no longer continue a public legal highway. (Sto. Eq. Jur. § 779.)
The point that the plaintiff waived the provision in the contract by selling to the company the land for the road over the hill and receiving pay therefor, followed by the construe[591]*591iion of the hill road by the company at large expense, is not supported by any facts proved or found, and in addition, which alone is conclusive, the defendants’ counsel did not request any finding on the subject; nor is the point raised by any exception in the case. The facts found show that there was no waiver, and that in the negotiation which resulted in the second purchase, the plaintiff expressly refused to release the company from the original contract and insisted upon the road provided for therein. Under such circumstances there could be no estoppel.
The point that there was no evidence to justify the court in awarding $2,500 damages for the non-construction of the road provided for in the covenant, is not, we think, well taken. The witnesses placed the damage to the plaintiff’s farm by reason of the obstruction of the old highway and the failure to construct a new one under the hill, in the aggregate at $5,000. The claim is that as the damages arose from two causes, the non-construction of the road and the failure to build the crossing, and as the damage from each cause was not separately stated by the witnesses, they could not be separated by the court in its findings. But by stipulation of the parties the court, after the testimony was in, viewed the premises. There was evidence in the case showing the increased cost of carrying on the farm by reason of the plaintiff being cut off from the use of the old highway and being required to use the hill road in the transportation of the products of the farm, enough, we think, to justify the specific' finding in question. The defendants cannot justly complain of any injustice. By the judgment they have been relieved from a specific performance of the contract to construct the road, which they' proved would cost $13,000, and in lieu of such performance a payment of $2,500 damages was adjudged.
There was no error, we think, in decreeing a specific performance of the contract to construct a crossing, nor in requiring that it should be under and not over the track. (See Jones v. Seligman, 81 N. Y. 191.)
There was error, we think, in charging the West Shore [592]*592Railroad Company with damages at the rate of $200 per year, which accrued prior to December 5, 1885, the date when that company obtained, its title. The sum of $600 should, therefore, be deducted from the judgment, and as amended, the judgment should be affirmed, without costs in this court to either party.
All concur.
Judgment affirmed.