also claims that whether it should be compelled to build the trestle or not is purely a question of contract, and submits that it is not within the jurisdiction of this Board to construe contracts, or to entertain actions for specific performance.

CONCLUSIONS.

First. In regard to the jurisdiction of the Board.

The Board deems that, under the general powers conveyed to it by the act of its creation, now to be found in sections 157, 160 and 161 of chapter 565 of the Laws of 1890, it can take a cognizance of this complaint. The fact that there is a contract between the complainants and the railroad company, in the opinion of the Board, simply gives them another mode of redress if they choose to exercise it in the courts. While this Board has no power to entertain actions for specific performance of contract, it deems that it can with propriety express an opinion as to what the contract meant even if it can not compel its performance.

Second. With regard to the merits of the case.

The sole consideration of the deed of Mr. Elting was the agreement of the railroad company to keep and maintain in good order and repair a suitable switch and side-track to and through the coal-shed of the said Elting. The conformation of the ground was such that to keep and maintain a suitable switch and side-track it was necessary that such track should be upon a trestle. The railroad company, in recognition of its obligations under the said deed, built such switch and side-track, and carried the same to the coal-shed of the said Elting on a trestle, and has kept said trestle in repair until very recently. The Board is of the opinion that there can be but one just conclusion as to the obligation of the railroad company in the premises, and that is, that it is its duty to still maintain the trestle.

RECOMMENDATIONS.

The Board recommends that the Wallkill Valley Railroad Company keep and maintain in good order and repair the switch and sidetrack, including the trestle, to and through the coal-shed of the complainants, and render them all needed transportation service for their coal, as it has been the habit of the company to do until recently for the last twenty years.

By the Board.

LXIII.

IN THE MATTER OF THE COMPLAINT OF C. L. NORTHROP, OF JORDAN, N. Y., v. THE WEST SHORE RAILROAD COMPANY.

November 16, 1991.

This complaint was lodged with the Board August 16, 1891, stating that ten fires had been started on the complainant's farm during the past year by sparks from West Shore railroad locomotives; that he had called the attention of the officials of the road to this fact

and in reply was informed that, while they regretted that fires had occurred, they would not pay any damages; that he has picked up cinders on his farm six rods from the railroad track.

On September 28 a reply to this complaint was received from J. D. Layng, general manager of the West Shore road, stating that "this company has in use upon its engines the best-known modern appliances for preventing fires along the line, and a regular inspection, with records of the same, are made."

On October 16 an examination of the premises was made by a member of the Board. It was then observed that Mr. Northrop's farm is located near Jordan station and north of the West Shore tracks, along the summit of a grade, where locomotives on heavy west-bound trains would be worked harder than on the level. The situation of this farm is such that southeast winds would carry cinders from passing locomotives some distance, but it is doubtful if such cinders would be alive when touching the ground, assuming they were of a size that could pass through a perfect screen.

Mr. Northrop stated that the grass along the line of this road, adjoining his farm at this point, was cut but once each season, in the latter part of July; that in many instances trackmen were near where such fires caught; that they paid no attention to them, nor in any manner aided in subduing them.

On October 17 an examination was made of all the locomotives of the West Shore road in the shop and round-house at Frankfort, N. Y. In every instance the netting was found in perfect condition, and all the engines were equipped with the extension front spark arrestor. A complete system of examination is practiced. Every locomotive is examined after each trip by an employee specially detailed for that service and a record is kept of such inspection, signed by the inspector, as to the condition of the screens. The wire cloth used by this company has the same mesh as that used by the New York Central and Hudson River Railroad Company.

This being the fact, that the company has in use upon all of its engines the best-known modern appliances for preventing fires, it is believed that if the grass and weeds were cut down as required by statute, and the section men instructed to be vigilant in discovering and in extinguishing fires in the summer season, complaints of this character would be reduced to the minimum.

By the Board.

LXIV.

IN THE MATTER OF THE COMPLAINT OF A. G. HODGES V. THE DELAWARE AND HUDSON CANAL COMPANY.

July 21, 1890.

A. G. Hodges, highway commissioner of the town of Wilton, Saratoga county, complained that the crossing known as the "Ingersoll crossing," about four miles north of Saratoga, has always been a very dangerous crossing; that now that a double track is being laid it makes it more dangerous than before, and that there is a general

desire that a "dry bridge" should be built at this point by the Delaware and Hudson Canal Company.

This statement was supplemented by a petition, signed by all of the town officers of the town of Wilton, and also by several citizens thereof, asking that a "dry bridge" be erected instead of a crossing at grade at this point.

The complaint and petition was forwarded to the Delaware and Hudson Canal Company, and a reply was received on the 17th of June from H. G. Young, second vice-president, in which he says:

"Herewith I attach report of our chief engineer with reference to the communication of A. G. Hodges, highway commissioner of the town of Wilton, N. Y., from which you will note, first, the large expense attending the construction of an overhead crossing, and, second, the fact that the crossing referred to is not used sufficiently to warrant such expense."

The Board instructed its inspector, Thomas W. Spencer, to make a personal inspection of the premises and report to the Board.

Mr. Spencer reported on the 12th of July, in substance, that he had made a careful examination of the locality, and "that an overhead crossing in this instance would be expensive and add much to the burden of teams drawing loads, as the ground on the east side of tracks falls rapidly, requiring a long approach to connect with the highway leading easterly. It would also, on both sides, be unsightly and damaging to adjoining property.

"A crossing carried under the tracks would be less expensive but more burdensome to teams, as compared with the easy approaches now used.

"As a means of greatly mitigating the danger of this crossing, it is respectfully suggested that it be moved to the south about 240 feet and the highways be changed to properly connect with it, as shown on the annexed sketch (sketch also annexed to this report); that the approaches for five rods each side of the track be three rods wide at their tops and covered with gravel at least twelve inches in depth, forming a hard road-bed, and that the planking at the rails be twenty-four feet wide; that the slopes of west side of the railroad cutting, north of the present crossing, be excavated back sufficiently to allow of a clear view of trains from the north for 1,000 feet from a person standing four rods west of westerly rail. Also that the approach of both highways on east side of tracks be made as easy as possible, and the ridge of earth between the highway and the railroad be removed."

RECOMMENDATION.

The Board recommends that the suggestions of the inspector as to the modified grade crossing be carried out.

By the Board.

The company informed the Board that it would comply with this recommendation, provided it could obtain the land necessary thereto. The town of Wilton offered the necessary land, and the improvement has been made.

APPLICATIONS FOR CHANGE OF MOTIVE POWER.

I.

IN THE MATTER OF THE APPLICATION OF THE LONG ISLAND CITY AND NEWTOWN RAILROAD COMPANY FOR THE APPROVAL OF THE BOARD OF A CHANGE IN MOTIVE POWER FROM HORSES TO ELECTRICITY, IN ACCORDANCE WITH CHAPTER 531 OF THE LAWS OF 1889.

September 29, 1890.

A notice of this application, dated May 13, 1890, was duly lodged with the Board.

After some correspondence a notice of hearing was duly advertised in the press, and the same had before the Board in the Capitol at Albany, at 2 P. M., June 11, 1890. Patrick J Gleason, president, appeared in behalf of the application. There were no appearances in opposition thereto, nor has the Board received any communication in opposition since that date.

At the request of the president adjournments were taken from time to time. A final hearing was had Monday, September the 15th, at which time the consents of the abutting property holders upon that portion of the line within the city limits of Long Island City were filed with the Board, and on September the 22d the consents of the abutting property holders on the remainder of the line.

It appears from these papers that a large majority of the consents of the abutting property holders upon those portions of the streets and highways through which the railroad runs have been obtained, as follows:

(The apparent discrepancy between the consents and the assessed valuation in Greenpoint avenue arises from the fact that the authorities of Calvary cemetery have signed the petition, representing $37,500, while it appears that the property is not on the assessment-roll.)

The consents of certain private parties over whose lands the railroad erosses are also filed with the Board.

In view of the above facts the Board approves of the change of motive power from horses to the overhead electric trolley wire system upon the present route of the Long Island City and Newtown Rail

road Company, with the following conditions, which are made part of this approval:

First. The rate of speed shall not exceed that to be definitely fixed by the mayor and common council of Long Island City and by the local authorities having charge of highways upon the other portion of the route.

Second. The poles from which the wires are to be suspended shall be of a construction and height appropriate to the streets upon which they are to be erected, so as to impair the use and appearance thereof to the least possible extent and before erection shall be approved by the mayor and common council of Long Island City and by the local authorities having charge of highways upon the other portion of the

route.

Third. No car shall be run with less than two men to operate it if run singly, if two cars are coupled together, there shall not be less than three men for the two cars.

Fourth. The company shall take all reasonable and proper means to prevent the currents from its wires, through leakage, induction or otherwise, from interfering with the currents upon the wires of other companies, whether telegraph, telephone or otherwise.

Fifth. The railroad company shall provide insulated shears at some convenient points on the route, to be designated by the local authorities, with which to cut its wires in case of fire.

Sixth. The company shall conform to all reasonable requirements of the local authorities on all portions of its route as to removing snow and ice from its tracks, paving the streets, etc.

By the Board.

II.

IN THE MATTER OF THE APPLICATION OF THE ELMIRA AND HORSEHEADS RAILWAY COMPANY FOR THE APPROVAL OF THE BOARD OF A CHANGE OF

MOTIVE POWER FROM HORSES TO ELECTRICITY ON THAT PORTION OF ITS

ROAD BETWEEN THE WATER STREET CROSSING OF THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD AND THE OLD STATE FAIR GROUNDS, IN ACCORDANCE WITH CHAPTER 531 OF THE LAWS OF 1889.

October 29, 1890.

This application, dated October the 4th, 1890, was duly lodged with the Board.

A public hearing was set down at the office of the Board of Railroad Commissioners in Albany at 2 P. M., Monday, October the 27th, and due notice thereof given in the press of Elmira.

The railroad company presented affidavits from W. A. Kingsbury, assessor of the city of Elmira, that the owners of more than one-half in value of the property fronting on that portion of Diven avenue, Grand avenue, Lake street and Water street, through which the railroad runs, had consented to the proposed change of motive power.

The consents of the owners themselves, duly acknowledged were also filed with the Board.