5-2 ties of such city; provided, that where in any such city the exclusive control of any street, road, bridge, viaduct, highway or avenue which is to be used or occupied by any railroad or railroads constructed under the provisions of this act, is by law vested in any local authority other than the board of estimate and apportionment of such city, the approval of the aforesaid plans and conclusions and the consent to the construction of a railroad thereunder shall be given by such local authority in place of and, if required, in addition to such approval and consent by said board of estimate and apportionment and with like effect.

3. Upon obtaining the approval and consent of the local authorities as above provided the public service commission shall also, unless such approval and consent of local authorities shall have been refused, take the necessary steps to obtain, if possible, the said consents of the property owners along the line of the said route or routes. For the purposes of this act the value of the property bounded on that portion of any street or highway in, upon, over or under which it is proposed to construct or operate such railroad or railroads, or any part thereof, shall be ascertained and determined from the assessment roll of the city in which the said property is situated, confirmed or completed last before the local authorities shall have given their consent, as above provided. If such consents of property owners can not be obtained, the commission may, in its own name, make application to the appellate division of the supreme court in the department in which such railroad is to be constructed for the appointment of three commissioners to determine and report after due hearing whether such railroad ought to be constructed and operated. Three weeks' notice of such application shall be given by publication thereof once in each week in two daily newspapers published in the city where such proposed railroad is to be constructed, if there be so many newspapers published in said city, and if not, then in all the daily newspapers published in said city. The newspapers in which said publication

shall be made shall be designated by the appellate division 5-3 of the supreme court to which such application is to be made on the application of the commission without notice.

4. The said appellate division upon due proof of the publication aforesaid, shall appoint three disinterested persons who shall act as commissioners, and such commissioners within ten days after their appointment shall cause public notice to be given in the manner directed by the said appellate division of their first sitting, and may adjourn from time to time until all their business is completed. Vacancies in such commission may be filled by said appellate division after such notice to persons interested as the appellate division may deem proper, and the evidence taken before as well as after such vacancy occurred shall be deemed to be *property before such commissioners. The said commissioners shall determine after public hearing of all parties interested whether such railroad ought to be constructed and operated and shall report the evidence taken to said appellate division, together with a report of their determination whether such road ought to be constructed and operated, which report, if in favor of the construction and operation of such road, shall, when confirmed by said court, be taken in lieu of the consent of the property owners above mentioned. Such report shall be made within sixty days after the appointment of said commissioners, unless the said court, or a judge thereof, shall extend such time.

5. The board of estimate and apportionment of the city of New York shall, with respect to that city, be hereafter for all purposes of this act and be deemed to be the local authority in control of the streets, roads, bridges, viaducts, highways, avenues, boulevards, driveways, parks, parkways, docks, bulkheads, wharfs, piers and public grounds and waters which are within or belong to the said city; and the consent of such board of estimate and apportionment and the mayor, without the consent of the common council, board of aldermen or other board or officer of the city, shall

* So in original

be the only consent of local authorities required hereunder.* (Laws 1891, ch. 4, § 5, as amended by L. 1895, ch. 519, § 2; L. 1904, ch. 564, § 2; L. 1905, ch. 631, § 1, and L. 1909, ch. 498, §1.) 6-1 § 6. Detail plans; tunnels for pipes and wires; work affecting sewers and other sub-surface structures. I. When the consents of the local authorities and the property owners, or, in lieu thereof, the authorization of the said appellate division of the supreme court upon the report of commissioners, shall have been obtained, the public service commission shall at once proceed to prepare detailed plans and specifications for the construction of such rapid transit railroad or railroads in accordance with the general plan of construction, including all devices and appurtenances deemed by it necessary to secure the greatest efficiency, public convenience and safety, including the number, location and description of stations and plans and specifications for the suitable supports, turnouts, switches, sidings, connections, landing places, buildings, platforms, stairways, elevators, telegraph and signal devices, and other suitable appliances incidental and requisite to what the commission may approve as the best and most efficient system of rapid transit in view of the public needs and requirements, including in its discretion operation of such railroad or railroads or some portion thereof by any device or means, other than separate cars or trains, in the construction of which stationary means for guiding a conveyance in a definite path and means for propelling such conveyance are necessary elements, and the commission may, in its discretion, include in said plans provisions for galleries,

* Prior to the amendment of 1905, which took effect May 26, 1905, this section provided that a copy of the plans and conclusions of the rapid transit board should be transmitted "to the common council of said city." Chapter 631, Laws of 1905, § 2, provides as follows:

§ 2. This act and all the amendments hereby made to the sections thereof hereby amended, shall be applicable to every grant, franchise or contract heretofore made, authorized or issued by the said board of rapid transit railroad commissioners but not yet consented to by the common council or board of aldermen of the city, as well as to all grants, franchises and contracts hereafter made, authorized or issued by the said board of rapid transit railroad commissioners.

ways, subways or tunnels for sewers, gas or water pipes, 6-1 electric wires and other sub-surface structures and conductors proper to be placed underground, whenever necessary so to do, in order to permit of the proper construction of any railroad herein provided for in accordance with the plans and specifications of the board of rapid transit railroad commissioners or of the commission, or for any other purpose in furtherance of the public interest or convenience.

2. Stations and station approaches may be under or over streets of the route or cross streets, and the board of aldermen, or other legislative body, of any such city shall have power to regulate by general or special ordinance or resolution, the erection, alteration and maintenance upon or in connection with any building used, wholly or in part, for station purposes, or approaches, or any and all structures or parts of structures extending over the whole or any part of any sidewalk or sidewalks adjacent thereto. The commission may, from time to time, alter such detailed plans and specifications, but always so that the same shall accord with the general plan of construction; but whenever a contract shall have been made for the construction of any railroad herein provided for, no such alteration shall be made by the commission without the consent of the contractor and his sureties, except as liberty shall have been reserved in such contract by said board of rapid transit railroad commissioners or by the commission for such alteration.

3. Whenever the construction of any railroad, depressed way, subway or tunnel under the provisions of this act shall interfere with, disturb or endanger any sewer, waterpipe, gaspipe, or other duly authorized sub-surface structure, the work of construction at such points shall be conducted in accordance with the reasonable requirements of the officer or local authority having the care of and the jurisdiction or control over such sub-surface structures so interfered with, disturbed or endangered.

4. Where under the direction of the commission or in

6-4 pursuance of any general plan adopted or of any contract made by the said board or the commission, galleries, ways, subways or tunnels shall be constructed to contain sewers, pipes or other sub-surface structures, the said galleries, ways, subways or tunnels shall be maintained by the said city and shall be in the care and charge of the commission and subject to such regulations as it shall prescribe not inconsistent with the provisions of this act, and any revenue derived therefrom shall be paid into the treasury of said city, except that where bonds shall have been issued to provide for the cost of construction or equipment of such railroads, such amounts shall be paid into the sinking fund of the city, if there be one, or if not then into the sinking fund to be established and created out of the annual rentals of said road, as provided in section thirty-seven of this act. Provided, however, that any person or corporation who or which at the time of the construction of the said galleries, ways, subways, or tunnels shall own pipes, subways or conduits in a street, avenue or public place in which said galleries, ways, subways or tunnels shall be constructed pursuant to this act, shall be entitled to the use of such galleries, ways, subways or tunnels for his or its said pipes, subway or conduits in the same manner as the said person or corporation shall be entitled by law to the use of such street, avenue or public place, and that no rent shall be charged for such use, except a reasonable charge to defray the actual cost of maintenance, unless such pipes, subways or conduits shall be of greater capacity than those theretofore owned by such person or corporation in said street, avenue or public place, and that, if the capacity of any such pipe, subway or conduit, so placed in the said galleries, ways, subways or tunnels shall be increased, the rent shall be charged only for such increased capacity; and provided further, that the placing in any such galleries, ways, subways or tunnels of the subways or conduits of any corporation owning subways or conduits for electrical conductors, shall not in any wise affect the right of such corporation to charge and demand such compensation or rent for the