NY-RAT Rapid Transit Law NY

Section 1. Short title. This chapter shall be known as the rapid

transit law.

Definitions. a. Unless expressly otherwise provided, whenever

used in this chapter, the following terms shall mean or include:

1. "Board of assessors." The board in the city charged with the duty

of making assessments for assessable improvements other than those

required by law to be confirmed by a court of record.

2. "Board of estimate." The board of estimate or other analogous local

authority of the city.

3. "Board of revision of assessments." The board authorized by law

finally and conclusively to determine objections to proposed awards or

assessments fixed and determined by the board of assessors.

4. "Board of transportation." The board in the city established

pursuant to section ten of this chapter.

5. "Bonds." Bonds, corporate stock, debentures, notes and other

evidences of indebtedness maturing more than one year after their

respective dates, secured or unsecured.

6. "Bondholders." The owners of bonds.

7. "City." A city containing a population of more than one million

inhabitants according to the last federal census.

8. "Commission." The public service commission--state division of the

department of public service.

9. "Comptroller." The comptroller, auditor or other chief financial

officer of the city.

10. "Contract" or "lease." A contract, agreement, grant, franchise,

consent, certificate, authorization, authority, license or any other

form whereby rights are granted to use streets for railroads or to

construct, equip, provide, maintain or operate railroads.

11. "Corporation counsel." The corporation counsel or other principal

legal adviser of the city.

12. "Devices and appurtenances." Devices and appurtenances deemed

necessary by the board of transportation or the commission, within their

respective jurisdictions, to secure the greatest efficiency, public

convenience and safety, including the number, location, description and

plans and specifications for the stations, suitable supports, turnouts,

switches, sidings, connections, landing places, buildings, structures,

platforms, stairways, elevators, telegraph and signal devices,

facilities for access to the surface, and other suitable appliances

incidental and requisite to what such board or commission, within their

respective jurisdictions, 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 a railroad 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.

13. "Equipment." When used in a contract for equipment of any

railroad, shall include all such rolling stock, motors, boilers,

engines, wires, ways, conduits and mechanisms, machinery, tools,

implements and devices of every nature whatsoever used for the

generation or transmission of motive power and including all power

houses, and all apparatus and all devices for signaling and ventilation

as may be required for the operation of such road and specified in the

contract for such equipment.

14. "Facilities." Routes, tracks, extensions, connections, terminals

or facilities.

15. "Mayor." The mayor of the city.

16. "Person." A natural person, firm or corporation.

17. "President of the borough." A president of a borough or other

chief executive officer having principal charge of the streets of the

city.

18. "Property" or "property rights." Real estate, real property,

lands, rights, terms, interests, privileges, franchises or easements of

owners, abutting owners or others.

19. "Railroad." A rapid transit railroad, street surface railroad,

omnibus line, any other transit facility and any railroad in the city

used for local service in the transportation of passengers as common

carriers for hire, jurisdiction whereof is vested in the board of

transportation or the commission whether any such railroad exists or is

constructed in the future, and any portion thereof and the rights,

leaseholds or other interests therein, together with the equipment

thereof and power plants and other instrumentalities used or useful

therefor or in connection therewith. For the purposes of subdivisions c

through l of section thirty-four of this chapter the term shall also

include improvements, additions, property, devices and appurtenances

other than rolling-stock, necessary either for construction or

operation.

20. "Railroad company." The owner, lessee or operator of a railroad.

21. "Recapture" or "recaptured." The exercise by the city of its right

to retake a railroad of the city or any part thereof leased to a

railroad company under lease made pursuant to the provisions of this

chapter by terminating the lease as to such railroad or any part thereof

pursuant to and in accordance with its terms and provisions.

22. "Street." A public street, marginal street, avenue, road, bridge,

viaduct, highway, boulevard, driveway, park, parkway, dock, bulkhead,

wharf, pier, ground, river, water, square, place or land within the

city.

23. "Sub-surface structures." Galleries, ways, subways or tunnels for

pipes, sewers, gas or water pipes or mains, electric wires, conduits,

and other sub-surface structures and conductors proper to be placed

underground or for the transmission of electricity, steam, water, air or

other source or means of power or of signals or messages necessary or

convenient for or in the construction or operation of a railroad, or for

the transportation of materials necessary for such construction or

operation or to provide temporary or permanent ways or courses for any

such structures or other means or sources of transportation.

b. Words in the singular number shall include the plural, and those in

the plural number shall include the singular.

c. The term "may" is permissive in character, and not mandatory or

directory, as to any action or function to which it is related in the

text.

d. The term "shall" is mandatory, except when used as a synonym for

the term "will" indicating a future tense.

Board of transportation established; appointment; term; removal.

a. There shall be a board of transportation in the city. Such board

shall possess the powers and duties hereinafter specified. The board

shall consist of three members, to be appointed by the mayor of such

city. The term of office of a member of the board shall be six years

from the first day of July of the calendar year in which he shall be

appointed. Vacancies shall be filled by appointment by the mayor of such

city for the unexpired terms. A member of the board designated by the

mayor shall be the chairman during his term of office. Each member shall

be a resident of such city. He shall receive an annual salary to be

fixed by the board of estimate. Such salary shall not be decreased

during the term of office of such commissioner. He shall take, subscribe

and file in the office of the city clerk of such city the constitutional

oath of office before entering upon the duties of such office.

b. The mayor of such city may remove any member of the board for

inefficiency, neglect of duty or misconduct in office, giving him a copy

of the charges against him and an opportunity of being publicly heard in

person, or by counsel, in his own defense, upon not less than ten days'

notice. If such member shall be removed, the mayor shall file in the

office of the city clerk a complete statement of the charges made

against such member, and his findings thereon, together with a complete

record of the proceedings.

Meeting of board; official seal. The board of transportation

shall hold stated meetings at least once a month during the year at its

principal office. The board shall have an official seal, the design of

which shall be adopted by the board and filed with the city clerk. A

majority of the members of the board may transact any business, perform

any duty or exercise any power of the board. Any member or commissioner,

or deputy commissioner, may hold any hearings authorized or required to

be held by or before the board or superintend the opening of any bids or

proposals, but a record shall be made of all hearings upon charges and

together with any recommendations, shall be referred to the board for

decision. All proceedings of the board and all documents and records in

its possession shall be public records, and open to public inspection,

except such documents and records as shall be prepared by or for the

counsel for use in actions or proceedings to which the city or the board

of transportation is a party.

Record of proceedings. The secretary of the board of

transportation, or other officer or employee designated by it, shall

keep a full and true record of all its proceedings. The record of

proceedings shall be printed as the minutes of the transactions of the

board.

Actions and proceedings. a. The board of transportation may sue

in the name and behalf of the city. It may in the name of and in behalf

of the city bring action of specific performance or may bring a special

proceeding to compel the performance within such city by any person of

any duty or obligation with reference to or arising out of the

construction or operation of any railroad under, or by reason of, any

grant made or right acquired under this chapter, or out of or by reason

of any contract made or authorized by it or any predecessor board,

commission or commissioner within the city, or it may in behalf of and

in the name of such city bring actions to recover damages for any

violation of contract or duty, or for any wrong committed by any such

person by reason of any nonperformance or violation of duty under the

provisions of this chapter or under any contract or stipulation made in

pursuance of any provisions of this chapter.

b. Every action or proceeding brought by the board of transportation,

and every action or proceeding in which an injunction is had or sought

against the board or such city, or against any person who or which shall

have entered into a contract under the provisions of this chapter, by

reason of any act or thing done, proposed or threatened under or by

virtue of any provision of this chapter, or is sought against any person

claiming or claiming to act under any grant or franchise under this

chapter, and every action or proceeding in which the constitutionality

of any part of this chapter shall or may be brought in question, shall

have a preference above all causes not criminal on the calendar of every

court, and may be brought on for trial or argument upon notice of eight

days for any day of any term on which the court shall be in session.

Offices, assistants and employees. a. The board of

transportation may rent such offices for a period not to exceed

twenty-one years and employ such deputy commissioners, engineers,

attorneys and other persons, from time to time, as, in its discretion,

it may deem necessary to the proper performance by it of its duties as

prescribed in this chapter.

b. The board of transportation is empowered to organize an operating

division for the operation and maintenance of a publicly owned and

operated railroad, separate and distinct from the organization engaged

in planning and supervising the construction and equipment of railroads

prior to operation, and is hereby authorized to establish and specify

the duties and the regulations which shall govern the work and conduct

of employees in such division and the penalties which may be imposed for

disobedience of or violation of such regulations. Appointments and

promotion to any position in any class of employment in such division

shall be subject to the provisions of the civil service law. Employees

holding positions in such operating division shall be notified in

writing of any charge or accusation of dereliction of duty which is to

be considered by the board of transportation, and shall be allowed at

least five days for answering such charge in writing and be entitled to

a hearing thereon, at which he shall be entitled to be represented by a

person of his own choosing. If in the judgment of the board such charges

of delinquency or misconduct are sustained, such employee may be

suspended without pay for a period not to exceed thirty days, or may be

dismissed from such employment as provided in section twenty-two of the

civil service law. The board may temporarily suspend without pay any

such employee charged with dereliction of duty pending hearing on any

such charges, but if the board shall determine that such charges are not

sustained by the evidence adduced at the hearing thereon, the employee

so suspended shall be entitled to pay for the time of such temporary

suspension.

Payment of salaries and expenses. The salaries of the members

of the board of transportation and the salaries and expenses paid or

incurred in the exercise of their powers and duties shall be chargeable

to such city, and shall be audited and paid as follows: The board of

estimate, on requisition duly made by the board of transportation,

stating the purposes for which such moneys are required, shall

appropriate such sums of money as the board of estimate may deem

necessary for the payment of such salaries and expenses. The city shall

not be liable for any indebtedness incurred by the board, or any member

thereof, in excess of such appropriations. It shall be the duty of the

comptroller, after such appropriation shall have been duly made, to

audit and pay the salaries and expenses of the board, upon vouchers

therefor to be furnished by the board, which payment shall be made in

like manner as payments are made by the comptroller of claims against

and demands upon such city. In case of municipal operation all salaries

and expenses incurred in connection with such operation shall be

included in the expense of operation.

Vacations. The board of transportation shall grant to every

employee under its supervision, who shall have been in such employ for

at least one year, a vacation of not less than two weeks in each year

and for employees in such employ less than one year, a vacation

pro-rated on the basis of one day per month while in such employ, and

for such further period of time as in the opinion and judgment of such

board, the duties, position, length of service and other circumstances

may warrant, at such time as such board may fix. During such vacations

such employees shall be allowed the same compensation as if actually

employed.

Sick leave. 1. Subject to the limitations hereinafter set

forth, the New York city transit authority, successor to the board of

transportation of the city of New York under title fifteen of article

seven of the public authorities law and hereinafter referred to as the

authority, shall grant to every employee under its supervision, other

than a member of the uniformed force of the New York city transit

police, who shall have been in its employ for at least one year, sick

leave with pay on each working day when he is unfit for work on account

of illness, up to a total, in any one year, of twelve days plus the

number of days, not exceeding eighty-four, by which the total amount of

sick leave with pay allowed to such employee by the board of

transportation and the authority in prior years since the thirtieth day

of April, nineteen hundred forty-one, shall have been less than one day

per month of employment during such prior years, but in no event shall

the authority be required to allow any employee sick leave with pay for

more than a total of ninety-six working days in any one year. To every

employee in its employ less than one year, the authority, subject to the

limitations herein set forth, shall grant sick leave with pay on each

working day when such employee is unfit for work on account of illness,

up to a total of one day for each calendar month during which, or the

major part of which, the employee shall have been in such employ. The

term "year", as used in this section, shall mean a period of twelve

months beginning on the first day of May and ending on the following

thirtieth day of April. For the purpose of this section an employee

shall not be deemed to have been in the employ of the board of

transportation or the authority during a period of leave of absence

without pay excepting where such leave of absence is for ordered

military duty. For any day on which sick leave with pay is required by

this section to be granted to an employee, the pay to be allowed him

shall be the same as if he had worked in accordance with his regular

work schedule on that particular day. Sick leave with pay shall not run

concurrently with any vacation.

Notwithstanding the foregoing provisions of this section, the

authority shall not be required to pay an employee for the first working

day in any period of leave of absence for illness unless such leave of

absence shall reach a total of nine or more consecutive working days, in

which event the employee shall receive pay for the total leave up to the

allowable limit.

2. The authority may grant to a member of the uniformed force of the

New York city transit police, who shall have been in its employ for at

least six months, sick leave with pay at the rate of one-half of his

rate of pay for the first three working days of illness and full pay on

and after the fourth consecutive working day on which he is unfit for

work on account of illness, until such illness shall have continued for

one year. If such member of the uniformed force of the New York city

transit police shall become temporarily disabled for performance of duty

as a natural and proximate result of service as such member, he may be

granted sick leave with full pay from the date of such disability until

he recovers therefrom and is restored to duty. In the event the

authority determines not to grant to members of the uniformed force of

the New York city transit police the sick leave benefits contemplated in

this subdivision, or having granted such sick leave benefits

discontinues such benefits, then such members shall be considered

employees of the transit authority subject to the provisions of

subdivision one of this section, notwithstanding the exception as to

such members set forth in subdivision one hereof.

3. The authority may adopt rules and regulations within the specific

limitations of this act to implement this section. No waiting period in

excess of one working day shall be required of any employee before he

shall be granted a leave of absence once he shall have become unfit for

work on account of illness. The authority may require that an employee

submit satisfactory medical evidence of illness and further the

authority may require that an employee submit to physical examination by

a physician employed by the authority, provided such physical

examination is without charge or loss of compensation to said employee,

as a condition of the granting of sick leave with pay. The authority may

grant sick leave with pay to any employee for a period of time beyond

that required by this section if, after a physical examination by a

physician employed by the authority, and in the opinion and judgment of

such authority, the duties, position or length of service of the

employee, or other circumstances surrounding his employment, warrant

such additional sick leave with pay.

Advertising for proposals. The board of transportation before

awarding any contract except where there is an extraordinary emergency

involving danger to life or property or where the estimated expense of a

contract does not exceed twenty-five thousand dollars shall advertise

for proposals for such contract by a notice to be printed once a week

for two successive weeks in no less than two of the daily newspapers

published in such city, and in such newspapers published elsewhere than

in such city as such board shall determine. Such notice shall set forth

and state the points within the city, between which such road is to run,

the general method of construction, the route to be followed, the term

of years for which it is proposed to make such contract, and such other

details and specifications as the board shall deem to be proper. Such

notice shall state the time and place at which such proposals will be

opened. The board shall attend at the time and place so specified, and

shall publicly open all proposals that shall have been received, but the

board shall not be bound to accept any proposals so received, but may

reject all such proposals and readvertise for proposals in the manner

provided in this chapter, or may accept any of such proposals as, in the

judgment of such board, will best promote the public interest, and award

a contract accordingly. All such contracts must before execution be

approved as to form by the corporation counsel and consented to by the

board of estimate and the mayor of such city.

Board of transportation to determine necessity for railroads;

routes; plan; consents; streets excepted. a. The board of

transportation upon its own motion may proceed, from time to time, to

consider and determine whether it is for the interest of the public and

the city that a railroad should be established therein, or whether it is

for the interest of the public and such city that any railroad which is

to be or is owned by such city by virtue of the provisions of this

chapter or any other law, should be extended beyond its previously

established routes, or that any such routes should be modified or

changed, or that any of such previously established methods of

transportation should be replaced by other more convenient and

serviceable methods. Upon the request in writing of the board of

estimate at any time, such board of transportation shall proceed

forthwith to consider and determine such questions, and in each case

such board of transportation shall conduct such an inquest and

investigation as may be deemed necessary in the premises. If, after any

such consideration and inquest, such board of transportation shall

determine that a railroad, in addition to any already existing,

authorized or proposed, or any extension, modification or change of the

route or method of transportation of any previously established railroad

that may be or is owned by such city by virtue of the provisions of any

law, are necessary for the interest of the public and such city, it

shall proceed to determine and establish the route thereof and the

general plan of construction. Such general plan shall show the general

mode of operation and contain such details as to manner of construction

as may be necessary to show the extent to which any street is to be

encroached upon and the property abutting thereon affected. Such board

of transportation, from time to time, may locate the route of such

railroad over, upon, under, through and across any streets, including

blocks between streets, or partly over, under, upon, through and across

any streets and partly through blocks between streets. The consent of

the owners of one-half or more in value of the property bounded on and

the consent also of the board of estimate shall be first obtained, or in

case the consent of such property owners cannot be obtained, the

determination of the appellate division of the supreme court, given

after due hearing of all parties interested, shall be taken in lieu of

the consent of such property owners as provided in section twenty-one of

this chapter.

b. No public park nor any lands or places, lawfully set apart for, or

occupied by, any public building of any city or county, or of the state,

or of the United States, nor those portions of Grand, Classon, Franklin,

Bedford avenues and Downing street in the borough of Brooklyn, city of

New York, lying between the southerly line of Lexington avenue and

northerly line of Atlantic avenue, nor that portion of the borough of

Brooklyn lying between and circumscribed by such avenues and streets

exclusive of that portion of the streets in the foregoing territory upon

or through which elevated railroads were in operation on the

thirty-first day of January, eighteen hundred ninety-one; nor that

portion of Classon avenue in such borough lying between the northerly

line of Lexington avenue and southerly line of Park avenue, nor that

portion of Washington avenue in such borough lying between Park and

Atlantic avenues, nor that portion of Nostrand avenue in such borough

lying northerly of the northerly line of Eastern parkway, nor Debevoise

place, Irving place and Lefferts place, Lee avenue, Waverly avenue, St.

James place, Cambridge place, Vanderbilt avenue and Clinton avenue in

such borough of Brooklyn, nor that portion of the city of Buffalo lying

between Michigan and Main streets, nor any part of Fifth avenue, in the

borough of Manhattan, city of New York, nor that portion of any street

which, on the thirty-first day of January, eighteen hundred ninety-one

was actually occupied by any elevated railroad structure, shall be

occupied by any corporation for the purpose of constructing a railroad

in or upon any of such streets, or upon or along either of such excepted

streets. It shall be lawful for such board of transportation to locate

the route of a rapid transit railroad by tunnel under any such streets

and to locate the route of any railroad to be built, under this chapter,

across any of the streets which, on the thirty-first day of January,

eighteen hundred ninety-one, were occupied by an elevated railroad

structure in the city of New York, or across any of the streets excepted

in this chapter at any point at which, in its discretion, the board of

transportation may deem necessary in the location of any route, or

under, or under and along, any of such streets which, on such date, were

so occupied or so excepted in this chapter. Nothing in this chapter

shall authorize the construction of an elevated railroad on Broadway

south of Thirty-third street, nor on Madison avenue in the borough of

Manhattan, city of New York. It shall not be lawful to grant, use or

occupy, for the purposes of an elevated railroad, except for the purpose

of crossing the same, any portion of the following named streets in the

borough of Manhattan, city of New York, that is to say: Second avenue,

below Twenty-third street; Fourteenth street, between the easterly line

or side of Seventh avenue, and the westerly side of Fourth avenue; nor

Eleventh street, west of Seventh avenue, nor any part of Bank street;

Nassau street; Printing House square, south of Frankfort street; Park

row, south of Tryon row; Broad street and Wall street.

c. The provisions of this section, with reference to any railroad for

which routes and a general plan had been adopted by the board of rapid

transit railroad commissioners of the city before the twenty-third day

of April, nineteen hundred, and for the municipal construction of which

a contract had been made by the city before such date, shall be deemed

to have been in full force from before the time when the routes and

general plan for such railroad were so adopted by the board of rapid

transit railroad commissioners.

d. Upon the adoption of any route and general plan of construction of

any railroad, under this chapter, the board of transportation shall

prepare and file in the office of the secretary of the board of

estimate, at or prior to the time of submission of such route and

general plan of construction to the board of estimate and the mayor for

approval, a statement signed by at least two members of the board of

transportation and countersigned by its chief engineer, showing in

detail the estimated cost of construction and equipment of such railroad

and the estimated time required for the completion of such construction

and equipment, together with an estimate by years of the prospective

results of the operation of such railroad over a term of ten years from

the estimated date of the beginning of operation thereof.

Approval and consent of board of estimate and the mayor. a.

After any determination by the board of transportation of any such route

and of any general plan of construction or establishment of such

railroad the board shall transmit to the board of estimate a copy of

such plans and conclusions as adopted. It shall be the duty of such

board of estimate upon receiving such copy of plans and conclusions, to

hold a public hearing upon the proposed route or any extension,

modification or change of route, other than a rapid transit route, at

which citizens shall be entitled to appear and be heard. No such hearing

shall be held until after notice thereof and of the proposed route,

extension, modification or change of route, other than a rapid transit

route, and the proposed resolution authorizing the same shall have been

published in full for at least fifteen days, except Sundays and legal

holidays, immediately prior thereto in the City Record, and at least

twice in two newspapers published in the borough or boroughs affected,

to be designated by the board of estimate. Within sixty days after the

copy of such plans and conclusions adopted by the board of

transportation shall have first been received by such board of estimate,

a final vote shall be taken thereon, by ayes and nays, according to the

number of votes by law pertaining to each member of such board in the

form of a vote upon a resolution to approve such plans and conclusions

and to consent to the construction of a railroad in accordance

therewith. The board of estimate within sixty days shall transmit its

written consent or refusal to the board of transportation. The period

of sixty days, however, may be extended by resolutions adopted by both

such boards.

b. Upon the adoption of such a resolution by a majority vote of all

the members of such board of estimate, according to the number of votes

by law pertaining to each member of any such board and the approval of

the mayor, such plans and conclusions shall be deemed to have been

finally consented to and adopted.

c. Upon obtaining the approval and consent of the board of estimate

and the mayor, as above provided, the New York city transit authority

shall publish a notice of the intent of the authority to construct the

railroad in accordance with the route and general plan for which

approval and consent of the board of estimate and the mayor has been

obtained, which notice shall be published for fifteen days in the city

record and at least twice in two newspapers of general circulation in

the borough or boroughs affected. Said notice shall contain a

description of the route of the railroad proposed to be constructed and

a notice to abutting property owners setting forth the time within which

such owners may file with the authority objections to the construction

of said railroad. Such time shall be not less than ninety days after the

first publication of the said notice in the city record and said two

newspapers. An abutting property owner who fails within said period to

file with the authority a verified objection setting forth a general

description of his property, the assessed valuation thereof and the

grounds for the objection, shall be deemed to have consented to the

construction of the railroad in accordance with the route and general

plan approved and consented to by the board of estimate and the mayor.

For the purposes of this chapter, the value of the property bounded on a

route along which it is proposed to construct a railroad shall be

ascertained and determined from the assessment rolls of the city,

confirmed or completed last before the board of estimate and the mayor

shall have given their consent as above provided. In the event that the

owners of less than one-half in value of the property bounded on object

within the time limited therefor to the construction of such railroad,

the authority shall certify to the mayor and to the board of estimate

that the notice provisions hereof have been complied with and that less

than the owners of one-half in value of the property bounded on have

duly filed objections, whereupon the authority may construct and operate

the said railroad. In the event that the owners of one-half or more in

value of the property bounded on shall within such period object to the

construction of the railroad as in this section provided, consent for

the construction of the said railroad shall be obtained in the manner

provided in paragraph d of this section.

d. In the event that the owners of one-half or more in value of the

property bounded on any route file objections to the construction of a

railroad as provided in paragraph c of this section, the New York city

transit authority shall apply ex parte to the appellate division of the

supreme court in any department in which such railroad or a part thereof

is to be constructed, for the appointment of a commissioner to determine

and report after due hearing whether such railroad ought to be

constructed. Such appellate division shall appoint a disinterested

person who shall act as a commissioner and such commissioner within ten

days after his appointment shall cause public notice of his first

hearing to be given in a manner directed by such appellate division and

he may adjourn from time to time. After public hearing of all parties

interested in whether such railroad ought to be constructed such

commissioner shall report the evidence taken to such appellate division,

together with his recommendation whether such railroad ought to be

constructed, which report shall be submitted for confirmation by the

appellate division. Such report shall be made within sixty days after

the appointment of such commissioner unless the court, for good cause

shown, shall extend such time for an additional period of not to exceed

thirty days. If such appellate division determines that the railroad

ought to be constructed the authority may proceed to construct such

railroad in accordance with the route and general plan approved and

consented to by the board of estimate and the mayor.

e. No such city shall be required to obtain the permission and

approval of, or a certificate of public convenience and necessity from,

the department of public service or any division thereof, to operate any

surface railroad, unless the route of such railroad shall parallel over

the major portion thereof the route of an existing railroad, not

publicly owned and less than three blocks distant therefrom.

Construction and equipment of a rapid transit railroad tunnel

or tunnels. a. The city of New York and the New York city transit

authority, acting under and pursuant to the provisions of this chapter

and of title nine of article five of the public authorities law, are

hereby authorized to effect the construction and equipment of a rapid

transit railroad tunnel or tunnels between the boroughs of Manhattan and

Queens in the city of New York, along the following route:

A route lying wholly within the boroughs of Manhattan and Queens which

shall begin at a point on East Sixty-third street at the westerly line

of York avenue in the borough of Manhattan where a connection can

conveniently be made to other future rapid transit railroads; thence

extending easterly along East Sixty-third street under York avenue and

Franklin D. Roosevelt drive; thence continuing easterly under the West

channel of the East river, Welfare island and the East channel of the

East river to the borough of Queens; thence continuing easterly under

Queens bridge park and Vernon boulevard to a point on Forty-first avenue

at the easterly line of Vernon boulevard where a connection can

conveniently be made with other future rapid transit railroads.

b. For the purposes of this chapter, such rapid transit railroad

tunnel or tunnels shall be deemed to be a rapid transit railroad.

Construction and equipment of a rapid transit railroad line.

1. The New York city transit authority, acting under and pursuant to the

provisions of this chapter and of title nine of article five of the

public authorities law, is hereby authorized to effect the construction

and equipment of a rapid transit line in the borough of Queens in the

city of New York, along the following route:

A route lying wholly within the borough of Queens beginning at a point

under Forty-first avenue at or near Twenty-ninth street, where a

connection can conveniently be made with the tracks at the easterly end

of the Sixty-third street line; thence curving and extending

northeasterly to a point under Northern boulevard across Fortieth

avenue, Thirty-first street, Thirty-ninth avenue, Honeywell street,

Thirty-second street, and Thirty-third street to a point under

Thirty-fourth street and Northern boulevard.

2. Notwithstanding any defect, irregularity or omission of any lawful

requirement or lack of statutory authority therefore, the acts and

proceedings heretofore taken by the New York city transit authority in

adopting, approving or consenting to plans and conclusions, general plan

of construction, route or any other matters, with respect to the rapid

transit line provided for in this section, are hereby legalized,

ratified, validated and confirmed.

3. Notwithstanding any other state or local law, this section shall

constitute the sole state or local governmental authority required for

the construction and equipment of the route set forth in subdivision one

of this section.

Detailed plans; sub-surface structures. a. When the consents of

the board of estimate, the mayor and the property owners, or, in lieu

thereof, the authorization of such appellate division of the supreme

court upon the report of commissioners, shall have been obtained, the

board of transportation shall at once proceed to prepare detailed plans

and specifications for the construction of such railroad in accordance

with the general plan of construction, including all devices and

appurtenances. Such board, in its discretion, may include in such plans

provisions for sub-surface structures, whenever necessary so to do, in

order to permit the proper construction of any railroad herein provided

for in accordance with the plans and specifications of the board of

transportation or for any other purpose in furtherance of the public

interest or convenience.

b. The board of transportation, from time to time, may 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 such board without the

consent of the contractor and his sureties, except as liberty shall have

been reserved in such contract by such board for such alteration.

c. Whenever the construction of any railroad, depressed way, subway or

tunnel under the provisions of this chapter shall interfere with,

disturb or endanger any duly authorized sub-surface structures, the work

of construction at such points shall be conducted in accordance with the

reasonable requirements of the agency of the city having the care of and

the jurisdiction or control over such sub-surface structures so

interfered with, disturbed or endangered.

d. Where, under the direction of the board of transportation or in

pursuance of any general plan adopted or of any contract made by such

board, galleries, ways, subways or tunnels shall be constructed to

contain sub-surface structures, such galleries, ways, subways or tunnels

shall be maintained by such city and shall be in the care and charge of

the board of transportation and subject to such regulations as it shall

prescribe not inconsistent with the provisions of this chapter. Any

revenue derived therefrom shall be paid into the treasury of such 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 such road, as provided in section thirty-four of this

chapter. Provided, however, that any person who or which at the time of

the construction of such galleries, ways, subways, or tunnels shall own

sub-surface structures in a street in which such galleries, ways,

subways or tunnels shall be constructed pursuant to this chapter, shall

be entitled to the use of such galleries, ways, subways or tunnels for

such sub-surface structures in the same manner as such person shall be

entitled by law to the use of such street, and that no rent shall be

charged for such use, except a reasonable charge to defray the actual

cost of maintenance, unless such sub-surface structures shall be of

greater capacity than those theretofore owned by such person in such

street.

e. If the capacity of any such sub-surface structure, so placed in

such gallery, way, subway or tunnel shall be increased, the rent shall

be charged only for such increased capacity. The placing in any such

galleries, ways, subways or tunnels of the sub-surface structures of any

person owning such structures for electrical conductors, shall not in

any wise affect the right of such person to charge and demand such

compensation or rent for the use of such structures by other persons as

is, or may be, permitted by law.

f. Nothing in this chapter shall be construed as granting, enlarging,

changing, or in any manner validating any right, privilege or franchise,

or any claimed or alleged right, privilege or franchise, to maintain,

operate, or possess any sub-surface structures in any street.

Interference with tracks and sub-surface structures. a.

Wherever or whenever the route selected by the board of transportation

or one of its predecessors for the construction of such railroad shall

intersect, cross or coincide with any railroad track occupying the

surface of any street, or the construction or operation of such railroad

shall interfere with any sub-surface structures, any person constructing

any railroad or part of a railroad under any contract made with the

board of transportation or one of its predecessors, is hereby

authorized, for the purpose of constructing such work, to remove the

track of any such railroad, or any of such sub-surface structures. Such

removal shall be done in such manner as to interfere as little as

possible with the practical operation or workings of such railroad, or

the works or business of the owners of any of such sub-surface

structures. Upon the construction of such railroad built under and in

conformity with the provisions of this chapter, where such removals or

changes have been made, such track or sub-surface structures shall be

restored as nearly as may be to the condition in which they were

previous to the construction of any such railroad built under the

provisions of this chapter. Any damages which such owner may sustain

shall be ascertained by a commissioner to be appointed in the manner

provided by the condemnation law.

b. For the purpose of the construction or operation of any railroad

under the provisions of this chapter, the board of transportation may

remove or cause to be removed, any sub-surface structures underneath any

street. Such structures shall be replaced as soon as practicable, either

in the same position as before or in a secure and convenient position

underneath such street or underneath such other street, as may be

approved by the head of the agency of the city having jurisdiction

thereof. This section shall not authorize the permanent removal from any

street of any subways or conduits for the reception of electrical

conductors which shall have been placed in such street prior to the

construction of the railroad, without the consent of the owner and

lessee of such subway or conduit.

c. All such removals and restorations shall be made at the proper cost

and charge of such person as may have made such removals, but subject to

the provisions of his contract, if any, with the board of transportation

or one of its predecessors. For the purpose of facilitating

construction, and to diminish the period of occupancy of any street for

the transportation of material, any contractor acting under a contract

made in pursuance of this chapter, with the approval of the board of

transportation, may lay upon or over the surface of any street,

temporary tramways, to be used only for the removal of excavated

materials or the transportation of materials for use in such

construction. Any such tramway shall be removed forthwith upon the

direction of the board of transportation. This section shall not

authorize the construction or operation of any street railroad or grant

to any person the right to lay down railroad tracks.

General powers of board of transportation. The board of

transportation is empowered to operate any railroad acquired, owned,

constructed, or provided by such city in accordance with the provisions

of law. The board of transportation shall also be empowered to purchase

all necessary materials and supplies for such operation and maintenance,

and, generally, to exercise all requisite and necessary authority to

manage and direct the operation and maintenance of such road for the

convenience and safety of the public, provided, however, that, except as

otherwise provided in section seventeen of this chapter, any contract

for the purchase of such materials and supplies or work or labor to be

performed, the estimated cost of which exceeds the sum of twenty-five

hundred dollars shall be made by the said board only upon public letting

founded on sealed bids, except in a case where the board, by resolution,

declares the existence of an emergency or the existence of other

circumstances making competitive bidding impracticable. Notice of the

invitation for such bidding stating the date and place of the receipt

and opening of bids shall be published in the city record in five

successive issues immediately preceding such opening. The board may

reject all such bids and readvertise for new bids if it shall deem it

for the public interest so to do; if not, it shall award the contract to

the lowest responsible bidder unless the board, by unanimous vote, shall

determine that it is for the public interest that a bid other than that

of the lowest responsible bidder shall be accepted.

Municipal construction of railroads. It shall be the duty of

the board of transportation to consider the routes, plans and

specifications, if any, previously laid out and adopted by them or their

predecessors, and for which the consents have been obtained referred to

in section twenty-one of this chapter; and either to proceed with the

construction of such railroad, and provide for the operation thereof, or

to change and modify such routes, plans or specifications in such

particulars as to such board may seem to be desirable, or from time to

time and with or without reference to former routes or plans to adopt

other or different or additional routes, plans and specifications for

such railroad. In all cases in which any such change or modification

shall be of such character as to require the consents thereto referred

to in section twenty-one of this chapter and in all cases where other or

different routes or general plans may have been so adopted, the board of

transportation shall proceed to secure the consents required to be

obtained by section twenty-one of this chapter. Prior to the time of the

final grant of any franchise under the provisions of this chapter or the

making of a contract for construction of any railroad under the

provisions of this chapter, the board of transportation shall have power

to rescind and revoke any resolution of such board or its predecessors

adopting any routes or general plan for a railroad adopted by such board

or its predecessors and, in the discretion of such board, in lieu

thereof to adopt new routes and a general plan. Every such rescindment

or revocation which shall have been made by such board of transportation

or its predecessors shall be deemed to have been lawful and authorized

by the rapid transit act, as the same was in effect on the twenty-third

day of April, nineteen hundred.

b. As soon as such consents, where necessary, shall have been obtained

for any railroad and the detailed plans and specifications have been

prepared as provided in section twenty-two of this chapter, such board

of transportation, for and in behalf of such city, may enter into a

contract with any person, which in the opinion of such board shall be

best qualified to fulfill and carry out such contract for the

construction of such road, including such sub-surface structures as such

board may include in the plans for such road under the authority of

section twenty-two of this chapter, upon the routes and in accordance

with the plans and specifications so adopted, for such sum of money, to

be raised and paid out of the treasury of such city, as provided by this

chapter, or to be contributed in part or in whole for the construction

of such road by the contractor having the contract for the equipment and

operation of such road as a consideration for the making of such

contract for equipment and operation as provided by this chapter. Such

contract for construction shall contain such terms and conditions, not

inconsistent with the aforesaid plans and specifications, as such board

shall determine to be best for the public interests. The sum of money

to be paid for the construction of such road shall be separately stated

in the contract from the sum to be paid for any sub-surface structures,

the construction of which is provided for in such contract. Such board,

in any case, may contract for the construction of the whole road, or all

the roads provided for by such plans in a single contract, or, by

separate contracts, executed from time to time, or at the same time,

with one or more such persons, may provide for the construction of a

part of such road or for the construction at first of two or more tracks

over a part of such road and afterwards of one or more additional tracks

over a part of such road as the necessities of such city and the

increase of its population or the advantageous and economical

performance of the work in the judgment of such board may require. In

the alternative such board, in its discretion by separate contracts

executed from time to time or at the same time, may contract with one or

more persons for the performance of any kind of work or any portion of

the work or for the furnishing of any material or for the performance of

any labor necessary for or incidental to the construction of such road.

In any case where any such contract which shall have been entered into

provides that upon the happening of any event or default specified in

such contract such board shall have the right and be entitled to take

over and perform or complete or contract for the performance or

completion of the work embraced in such contract or any part of such

work, such board, upon the happening of any such event or default so

specified in such contract, with the approval of the board of estimate

and the mayor, also may employ such persons and purchase or hire such

plant, tools, machinery, supplies and materials as may be necessary, and

itself perform or complete the work embraced in such contract or any

part of such work as in its judgment the public interests require.

c. The board of transportation, in the contract for a part of any such

railroad, also may insert a provision that at a future time, upon the

requirement of the board, the contractor shall construct the remainder

or any part of the remainder of such road, as the growth of population

or the interests of the city, in the judgment of the board, may require.

Such board may insert in such contract provision for a method for fixing

and ascertaining at such future time the amount to be paid to the

contractor for such additional construction, and to the end of such

ascertainment may provide for arbitration or for determination by court

of the amount of such compensation, or of any other details of

construction which shall not be prescribed in the contract, but which

shall be deemed necessary or convenient by such board. If the public

interest, in the opinion of the board, shall justify the provision, any

such contract may provide that the construction of any section or

portion of the railroad included in such contract, with the consent of

such board, may be suspended during the term of operation of the

railroad as provided in this section, or any part of such term. During

such term or part of term there shall be available for use, in lieu of

such portion of the road, a railroad or a portion or section thereof,

which, with the railroad or portion of railroad constructed under such

contract, shall form a continuous and convenient route.

d. Any such contract may be made for the construction of such road in

sections, or for the construction of any section thereof. Except as

otherwise provided in this chapter, every such contract shall specify

when the construction of the railroad or the section thereof included

therein shall be commenced in each case, and, in each case, the date of

completion. The board of transportation may by any such contract

determine when and how the work of construction of the railroad included

therein shall proceed. The board may also provide for the equipment at

public expense of such railroad in connection with the construction

thereof, and may include in any contract for construction authorized by

this chapter provision for the equipment, or any part thereof, of such

railroad, but may make a separate contract for the whole or any part of

such equipment with the constructing contractor or any other responsible

persons. Any such contract, in lieu of requiring the contractor to

provide equipment or any part thereof for generation or furnishing of

motive power, may authorize the contractor to enter into a subcontract

for purchase and delivery as required of motive power for operation of

such railroad, provided such subcontract, as to the parties thereto, the

sureties thereon and the terms thereof, shall be first approved by the

board. In the alternative such contract may provide that the

construction or completion of equipment, or any portion thereof, for

generation or furnishing of motive power included in such contract, with

the consent of the board, may be suspended during a period designated,

provided that during such period there shall be available for use when

required, in lieu of such equipment, motive power furnished to the

contractor under and pursuant to the terms of a contract for the

purchase of power, which contract shall, as to the parties thereto, the

sureties thereon and the terms thereof, be first approved by the board.

In case of the expiration or termination, of the contract for equipment,

maintenance and operation of such road, as provided in this chapter, any

subcontract for the furnishing of power may be terminated or taken over

by the city without making any allowance or paying any amount to the

contractor for or on account of any unexpired term of such subcontract.

e. Any railroad constructed by and at the expense of the city shall be

and remain the absolute property of the city, and shall be and be deemed

to be a part of the public streets of the city, to be used and enjoyed

by the public subject to such reasonable rules and regulations as may be

imposed and provided for by the board of transportation.

Maintenance and operation by the board of transportation. a. If

in the opinion of the board of estimate and the mayor, or in the opinion

of the board of transportation, either a contract for equipment,

maintenance and operation, or a contract for maintenance and operation

as provided in this chapter would be inexpedient, impracticable or

prejudicial to the public interest, the board of transportation shall

devise and prepare a plan for the maintenance and operation by the board

of transportation of any railroad which such city owns or is empowered

to acquire or operate by virtue of any law, and any combination of

city-owned railroads, or devise and prepare a plan for leasing under a

contract the use of the tracks of any railroad for operation of cars

thereon during a term of not more than five years for the carrying of

passengers and property by one or more persons owning or operating any

railroad in the city, or organized for the purpose of operating cars as

aforesaid over or upon any such railroad, and when such plan shall have

been approved by the board of estimate and the mayor, the board of

transportation shall either maintain and operate such road for and on

behalf of the city, or allow the use of the tracks of such railroad for

the operation of cars for the transportation of persons or property by

any such person. The compensation to be made or the rates of fare

provided for shall be stated by such board of transportation in any

operating contract or plan aforesaid. Whenever it shall seem practicable

to reduce rates of fare, the reduction shall in the first instance be in

favor of school children, and then, next in order, in favor of all the

public between six and nine o'clock ante meridian, and between four and

seven o'clock post meridian, and then for all the public from five

o'clock ante meridian until seven o'clock post meridian, and, lastly,

for all the public at all times.

b. No part of any road, or of its structures and appurtenances,

constructed under the authority of this chapter, shall be used for

advertising purposes or for any trade, traffic or occupation, other than

required for the operation of such road, except such advertising and

such sale of newspapers, periodicals, magazines, books, flowers,

confectionery and other similar articles usually sold in railway

stations, as from time to time, always with the right of revocation, may

be permitted by the board of transportation. Such board, however, may

authorize the installation, maintenance and operation of telephones in

the stations of such road for public use. Such board of transportation

may authorize or enter into a contract for the granting and exercise of

such privileges for such period of years and upon such terms and

conditions as, in the judgment of such board, the public interests

require.

Acquisition of railroads or interests therein. a. The board of

transportation, with the approval of the board of estimate and the

mayor, may purchase, or acquire an option to purchase from time to time,

for such price and upon such terms and conditions as may be agreed upon,

and acquire by conveyance or grant to such city, to be delivered to such

board of transportation, any line of railroad, or part of any such line

and/or equipment therefor already constructed or provided or in process

of construction or provision, of the character which might be

constructed or provided as a railroad and/or equipment under the

provisions of this chapter, and which in the opinion of the board of

transportation it is for the interest of the public and the city to

acquire for rapid transit purposes. The payment for such line of

railroad, or a part thereof, and equipment may be made out of funds made

available pursuant to the local finance law, or by the application of

revenues derived from the operation of any such line alone or in

conjunction with other railroads owned by such city, or the payment may

be made partly by one method and partly by the other method as the board

of transportation, with the approval of the board of estimate and the

mayor, shall determine. The moneys necessary to be paid for any such

railroad and equipment purchased, together with all expenses necessarily

incurred in connection therewith shall be raised through the application

of revenues from operation as above provided or shall be raised pursuant

to the local finance law. The method of payment for the line to be

purchased shall be described and specified in a form of proposed

contract for purchase and sale which shall be submitted for approval to

the board of estimate and the mayor by the board of transportation. The

form of proposed contract may incorporate such terms and conditions as

provide for a deferred payment of the agreed purchase price. Any such

railroad or equipment acquired in accordance with the provisions of this

section, and any railroad acquired in accordance with the provisions of

article eight of this chapter or former article seven of the public

service law, shall be deemed to have been constructed or provided for at

the expense of the city within the meaning of this chapter and the cost

of acquisition thereof shall be deemed and considered as the cost of

such construction or provision, in like manner as though such railroad

or equipment had been constructed or provided pursuant to the provisions

of this chapter.

b. Unless all the consents to the construction and operation of any

such railroad so purchased required by article three, section seventeen,

of the constitution shall have been obtained prior to such purchase, the

board of transportation shall proceed to secure such consents as

required by section twenty-one of this chapter. As soon as such consents

shall have been obtained, the board of transportation for and on behalf

of the city, with the approval of the board of estimate and the mayor,

may enter into a contract with any person for the equipment, in whole or

in part, at the cost and expense of such person, and for the maintenance

and operation of any such railroad so purchased, either alone or in

conjunction with other railroads then owned or thereafter constructed or

acquired by such city, for a term of years to be specified in the

contract, not to exceed twenty-five years. Such contract may contain a

covenant for one renewal of not to exceed twenty-five years, unless the

purchase price or some part thereof is to be paid out of the revenues as

provided in subdivision a of this section, in which event such contract

may be for a longer period than twenty-five years but shall provide for

its termination by such city, at its option, on one year's notice given

at any time or after the expiration of any specified period not

exceeding ten years, upon the payment by or for such city of the amount

of any balance of such purchase price then remaining unpaid and the

unamortized portion of the cost and expense of any equipment constructed

or provided at the cost of such person after the date of such contract.

Any such contract providing for the payment of the purchase price of any

such railroad or equipment wholly or in part out of the revenues shall

provide for the application of revenues derived from the use or

operation of the railroads included therein and the order of priority of

such application. Such contract shall provide for the payment out of

such revenues of current annual interest charges at a rate of not

exceeding six per cent per annum, and current annual amortization

charges at a rate to be specified, on the amount of the balance of the

purchase price remaining unpaid, of such railroad or equipment so

purchased by such city, and on the actual cost of any equipment,

constructed or provided by such person after the date of such contract.

Every such contract shall contain such terms and conditions as to the

rates of fares to be charged and the character of services to be

furnished and the rental to be paid, or the terms upon which such

railroads are to be operated, as the board of transportation shall deem

to be best suited to the public interests and as the board of estimate

and the mayor shall approve. Any domestic railroad corporation owning

any line of railroad which the city is authorized by this section to

purchase and acquire as above provided, with the consent of the holders

of record of at least two-thirds of its outstanding shares of capital

stock entitled to vote thereon, given as provided in section one hundred

forty-eight of the railroad law, may transfer and convey to such city

such railroad and equipment or any part thereof, and the devices and

appurtenances and franchises thereof or used in connection therewith,

subject, however, to the rights of appraisal of the shares of any

dissenting stockholder as provided in section one hundred sixty-one of

the railroad law.

c. If a contract has been made for equipment, in whole or in part,

maintenance and operation of a railroad constructed or to be constructed

by the city and owned by the city upon any route established and

consented to as provided in this chapter, which contract provides for

construction by the city and equipment, maintenance and operation by the

contractor of branches and extensions of such railroad and additional

lines also to be owned by the city upon terms and conditions as provided

in such contract, the board of transportation in lieu of constructing a

branch or extension or an additional line with the consent of the board

of estimate and of the mayor may acquire by conveyance or grant to such

city to be delivered to such board of transportation the right to

connect such railroad with and to operate within the city over any track

of a railroad already constructed or in process of construction and

which right in the opinion of the board of transportation it is for the

interest of the public and the city to acquire for rapid transit

purposes in lieu of constructing such branch, extension or such

additional lines. The grant shall contain such terms and conditions as

to the compensation to be paid for such right, the term during which it

shall be enjoyed, which with any renewal shall not be more than

twenty-five years, and such other terms and conditions to effectuate the

purpose of the grant, including the right of revocation upon terms and

conditions to be specified in such grant, as the board of transportation

shall deem best suited to the public interest and the board of estimate

and the mayor shall approve.

Lease by the city of railroad. 1. Such city may lease from any

railroad corporation any railroad or steam surface railroad located

wholly within one county in such city, or may lease from any railroad

corporation any part of any railroad or steam surface railroad within

one county in such city substantially all of the lines of which are

located wholly within one county in such city, for a term not exceeding

ten years, with the right of renewal not to exceed ten additional years,

upon such terms and conditions as to annual compensation to be paid by

such city for such lease and such other terms and conditions as the

board of estimate shall deem best suited in the public interest. Payment

for such lease may be made out of moneys raised by taxation or out of

any proceeds arising out of the sale or lease of real property acquired

by such city for rapid transit purposes.

2. The board of estimate may by contract provide for the maintenance

and operation of such leased railroad, steam surface railroad or part

thereof by any railroad corporation which in the opinion of such board

shall be best qualified to fulfill and carry out such contract. Such

contract shall contain such terms and conditions as the board of

estimate shall deem best suited in the public interest.

3. Notwithstanding any other provisions of law, such railroad

corporation operating such leased railroad, steam surface railroad or

part thereof shall be subject to the jurisdiction, regulatory powers and

supervision of the public service commission.

Issue of bonds by city. a. For the purpose of providing the

necessary means for such construction, or equipment, or both, as the

case may be, or acquiring by purchase, at the public expense, of any

such road or subsurface structures, and the necessary means to pay for

property rights which shall be acquired by the city for the purposes of

the construction or the operation of any such road as provided in this

chapter, and the necessary means to pay awards made as provided in this

chapter for damages for change of grade on any street and to pay the

expenses of proceedings to determine such damages, and of meeting the

interest on obligations, issued for the purposes of this section,

accruing thereon prior to the completion and readiness for operation of

the portion of such road, and such sub-surface structures, for the

purchase, construction, or equipment of which such obligations shall

have been respectively issued, the mayor, from time to time, as the same

shall be necessary, upon the requisition of the board of transportation,

shall make available such sums as may be necessary, upon vouchers

certified by the board of transportation. In case any person shall claim

to be entitled to any money on account of a contract entered into under

the terms of this chapter, for the construction of any part of a

municipal railroad and the board of transportation shall fail, neglect

or refuse to certify a proper or sufficient voucher for the payment of

the money so claimed, a proper or sufficient voucher shall not be a

condition precedent to the liability of the city, but an action may be

brought directly against the city for the recovery of such money as such

person may be entitled to. This section shall not affect the powers of

the board or its engineers, as set forth in this chapter or as they may

be prescribed in any contract entered into pursuant thereto, or to

change or alter in any respect the existing rules of law as to the force

or effect of any certificate which shall have been or may hereafter be

made under any contract. This section shall be deemed to apply also to

any such actions instituted before May sixth, nineteen hundred

twenty-one. If bonds are issued by the city for the purposes of this

section they may be made payable out of a sinking fund to be established

and created out of the annual rentals or revenues of such road,

including sub-surface structures, as provided in this chapter. In case

the board shall request the mayor to have any part of the work of

restoration of street surfaces or property incidental to the

construction of any such road performed by or under the direction of any

head of an agency of such city or any subdivision of such city, the

mayor may set apart out of any appropriation theretofore made under the

foregoing provisions of this section such amount as the board of

transportation may specify and shall make such amount available for the

use of such head of such agency for the purposes of such restoration of

street surfaces or property.

b. A contract for the construction of such road shall not be made

unless and until the mayor shall have consented thereto and prescribed a

limit to the amount of funds available for the purposes of this section

which shall be sufficient to meet the requirements of such contract in

addition to all obligations theretofore incurred and to be satisfied

from such funds. The board of transportation of the city of New York, in

its discretion, may request the mayor to make available either such

amounts from time to time as it shall deem the progress of the work to

require, or the full amount sufficient to pay the entire estimated

expenses of executing any contract made pursuant to this chapter. The

certificate of the comptroller, mentioned in section 93c-3.0 of the

administrative code of the city of New York shall not be necessary to

make any such contract binding on the city. Before finally fixing the

terms and conditions of any contract for any of the purposes contained

and set forth in this chapter, the board of transportation may set a

date or dates for a public hearing upon the proposed terms and

conditions thereof, at which citizens shall be entitled to appear and be

heard. No such hearing shall be held, however, until notice thereof

shall have been published for at least two weeks immediately prior

thereto in the city record, or other official publication of the city,

and at least twice in two daily newspapers published in the city. In any

case where such a public hearing has been scheduled, it shall be the

duty of the board of transportation to cause as many copies of a draft

of the proposed contract to be printed at least two weeks in advance of

such hearing as may be necessary. Such notice of such public hearing

shall state where copies of such drafts may be obtained upon payment of

a fee, to be fixed by such board, but not to exceed one dollar for each

copy. The board, after the hearing to be held as above required, may

alter, modify or amend such draft contract in any manner in its

discretion.

c. A railroad owned or to be owned by the city, and for the

construction of which with public money in whole or in part a contract

was or is authorized by this chapter to be entered into as aforesaid,

shall be a local improvement the cost of which railroad may be met in

whole or in part by assessment on the property benefited. The board,

with the approval of the board of estimate and of the mayor, shall have

power to determine whether all or any, and if any, what portion of the

cost and expense necessary to be incurred for any such road shall be

assessed upon property benefited thereby, and whether all or any, and if

any, what portion of the cost and expense necessary to be incurred, or

which shall have been already necessarily incurred, for the acquisition

of any property for the construction or operation of such railroad shall

be assessed upon property benefited by such railroad. An assessment upon

the property so benefited may be laid, confirmed, enforced and collected

in accordance with such determination and pursuant to the provisions of

the charter, administrative code of such city and other laws respecting

assessments for local improvements in such city.

d. At any time after the consents have been obtained for any such

railroad and the detailed plans and specifications therefor have been

prepared as authorized and directed by this chapter, the board may

certify and transmit to such board of estimate an estimate of the cost

and expense necessary to be incurred for the construction of such

railroad, and for the acquisition of any property, including equipment

other than rolling stock, that shall be necessary either for the

construction or the operation of such railroad, or from time to time an

estimate of the cost and expense necessary to be incurred or a statement

of the cost and expense which has been necessarily incurred for the

acquisition of any property for the construction or operation of such

railroad. With such estimate or statement the board of transportation

shall transmit a statement which shall show:

1. The proportion of such cost and expense, together with the amount

thereof in money, which should be assessed upon the property benefited;

2. The boundaries of the district in such city upon which an

assessment aggregating such amount should in the opinion of the board be

levied, and

3. The amount so to be levied in every such district.

Thereupon the board with the approval of the board of estimate and of

the mayor, shall have power to, and, if in their judgment the interests

of the public so require, after publishing a notice at least one week in

advance in the City Record and in such other newspapers published in

such city as such board of estimate with the approval of the mayor,

shall designate as sufficient, stating the time, place and subjects to

be considered, and after a joint hearing, pursuant to such notice by and

before the board of transportation and the board of estimate, which may

be adjourned from time to time, in accordance with the charter, code,

and laws aforesaid, they shall fix and determine the boundaries of the

district upon which such assessment shall be levied, the whole amount or

proportion of any such cost and expense to be assessed upon property

benefited by such improvement, and the amount or proportion of such

whole assessment to be levied in such district benefited by such

improvement, and take such other and further proceedings as shall be

necessary to levy and collect such assessment. Such decision of the

board of transportation so approved by the board of estimate and the

mayor, shall be final as to each matter so fixed and determined and

shall not be subject to review.

e. The board of estimate, with the approval of the mayor, shall

certify to the board of assessors of such city the amount of such cost

and expense so directed to be assessed upon property benefited in each

such district. Such board of assessors shall thereupon proceed forthwith

to levy and assess such amount upon the real property within the

district benefited thereby in proportion to the amount of such benefit

and shall not be limited in the levying of such assessment to one-half

of the fair value of any house or lot or improved or unimproved land.

Such assessment when laid shall be subject to, and protected by, all

provisions of the charter and administrative code of such city

applicable to assessments for local improvements levied pursuant to such

charter and code.

f. An assessment levied against any property in accordance with this

section shall be payable as follows, namely: one-tenth thereof within

sixty days from the date of the confirmation and entry of each

assessment and the remainder of such assessment in nine installments as

nearly equal in amount as may be with interest thereon from the date of

entry and confirmation at the rate of six per centum per annum in one,

two, three, four, five, six, seven, eight and nine years respectively

thereafter, but all installments not due may be paid at any time with

interest to the date of payment. If any installment and interest thereon

be not paid within three years after it shall become due and payable the

entire assessment less such part thereof as shall have been already

paid, shall become due and payable and must be immediately collected, or

the tax lien therefor sold or enforced in the same manner as other

delinquent assessments are required to be collected by the charter,

administrative code and other laws of such city.

g. Obligations of the city issued in advance of the collection of such

assessments shall be payable out of the rapid transit construction fund

as hereinafter directed to be constituted. They shall be a legal

investment for the sinking funds of such city and for trustees and other

fiduciaries charged with the investment of trust funds.

h. All moneys derived from the sale of such obligations, and all

moneys derived from the collection of such assessments shall be kept

separate and apart from all other funds of the city and shall be known

as the rapid transit construction fund of such railroad. Unless the

assessment be made separately for the cost and expense of acquisition of

property as aforesaid, they shall be applied only to the following uses

and, among such uses, only in the following order as nearly as may be:

1. To the cost and expenses of the construction of such railroad and

the acquisition of property necessary for such construction, including

equipment other than rolling stock;

2. To the acquisition of real property necessary for the operation

thereof;

3. To the retirement of the obligations therefor.

In case an assessment is made separately for the cost and expense

incurred or to be incurred for the acquisition of any property for the

construction or operation of any such railroad, the money derived from

the sale of such obligations, and all moneys derived from the collection

of such assessment shall be applied only to pay or reimburse the cost

and expense of acquisition of the property for which such assessment was

made or to the retirement of the obligations issued in advance of the

collection of such assessment.

i. In case of default in the payment of any installment of interest or

principal of any such obligations the holder thereof may require, if

necessary, by peremptory order of mandamus, any tax lien of such city

for the amount of any assessment upon the property benefited which is

then due and payable, to be immediately sold or enforced in accordance

with the charter, administrative code and other laws of such city. If at

such time the tax lien so sold shall include, in addition to the lien of

the assessment aforesaid, any lien for delinquent taxes or other

lienable charges due to the city, and if it shall become necessary to

reduce the amount of the tax lien pursuant to such charter, code and

laws of such city, the lien shall not be reduced so as to make it less

in value than the amount of the assessment aforesaid with the interest

thereon. Notwithstanding any reduction as aforesaid, the proceeds of the

sale of such a lien, to the extent of the full amount of the assessment

and interest, shall be paid into the rapid transit construction fund of

the railroad aforesaid, and the balance, if any, shall be applied as

proceeds of the rest of the tax lien.

j. If any assessment shall be reduced for fraud, substantial error or

other reason, the cost and expense aforesaid may be reassessed, and the

reassessment shall stand as security for the obligations aforesaid to

the same degree and in the same manner as if it had been an original

assessment. In case any assessment is reduced below its original amount,

however, either the amount to be expended in constructing the railroad

aforesaid and for acquisition of property necessary for construction and

operation thereof as aforesaid, or to be expended for acquisition of

property, if the assessment reduced is for cost and expense thereof

separately, shall be correspondingly reduced or else the difference

between the original assessment and the reassessment shall be paid by

the city into the rapid transit construction fund of the railroad

aforesaid, either from current revenue or from sums to be made available

as the board of estimate shall determine.

k. If the cost and expenses of construction of any such railroad and

for acquisition of property necessary for construction and operation

thereof as aforesaid shall be only partially assessed as aforesaid upon

the property benefited, no provisions in any contract for the

construction thereof shall become operative until the board of estimate

and the mayor shall have consented thereto and shall have prescribed a

limit to the amount of city funds if any, available for the purpose of

such contract as hereinbefore provided. No provisions in any contract

for the construction of any railroad which construction is to be paid

for wholly or partly by means of local assessments shall become

operative until the board of estimate shall have levied an assessment to

provide for the construction thereof, and until either assessments shall

have been paid in, or obligations issued in advance of the collection of

such assessments, shall have been sold in sufficient amounts when paid

for, to cover the cost and expense payable from assessments levied as

aforesaid and until the board of estimate and the mayor shall have

consented to such a contract.

l. In a case where the moneys collected pursuant to such an assessment

shall be insufficient to discharge the obligations so issued as

aforesaid, or if the amount arising on the sale of such obligations is

insufficient to pay the expenses incurred for the construction of such

railroad and for acquisition of property necessary for construction and

operation thereof as aforesaid, or incurred for acquisition of property,

if the assessment is for cost and expense thereof separately, the

deficiency up to an amount not in excess of ten per centum of the total

amount of the assessment shall be paid by such city into the rapid

transit construction fund, either from current revenue or from sums made

available as the board of estimate and the mayor shall determine.

Vehicular tunnels and other means of transportation. a.

Notwithstanding any provisions to the contrary contained in any city

charter, administrative code, or in any general, special or local law,

the board of transportation may act as the agent of any such city, at

the request of the mayor thereof, to prepare and submit to such mayor a

plan for the building and construction of a tunnel under any stream or

waterway within or adjoining the limits of such city and the approaches

thereto, or a vehicular tunnel or two or more vehicular tunnels,

together with the necessary approaches thereto, between the several

boroughs of the city of New York, or between two points in the same

borough, and as such agent of such city, with like request and approval,

may proceed with the construction and equipment or enter into contracts

for the construction and equipment of such part or section of any such

tunnel as such mayor shall require. The advertising and award of any and

all contracts entered into pursuant to this section shall be subject to

the provisions of section seventeen of this chapter. The city, from time

to time, on requisition duly made by the board of transportation, may

appropriate such sums of money as it may deem requisite and necessary to

enable the board of transportation to prepare such plans or to carry on

such construction and equipment. Such sums shall be paid out and

expended for such purposes upon vouchers certified by such board of

transportation. If bonds are issued for such purposes, they may be made

payable at maturity out of a sinking fund to be established and created

out of the rates and charges fixed by the board of estimate for the use

of any such tunnel by pedestrians and vehicles. Upon the completion

thereof the commissioner of public works or other like officer of such

city shall have cognizance and control of the management, maintenance,

operation and repair of every such tunnel and the approaches thereto.

b. The board of transportation, with like request and approval of the

mayor, may conduct such hearings and investigations with respect to

streets, tunnels or other ways, railroads, ferries or other methods or

means for the transportation of passengers or property within the limits

of any such city as such mayor shall require, and make reports and

recommendations with respect thereto, from time to time, as shall

likewise be required.

Rates of fare. The board of transportation, with the approval of

the mayor, is hereby empowered to fix and adjust from time to time the

rate of fare that may be charged any passenger traveling on any railroad

publicly or municipally operated pursuant to the authority of this

chapter, provided, however, that any change in such rate of fare shall

become effective on the first day of the next ensuing fiscal year of the

city.

Municipal operation; deficiencies. If the board of

transportation shall undertake or engage in public or municipal

operation of any railroad pursuant to the authority of this chapter, the

city shall provide for the payment of any expenses of operation,

maintenance, interest, principal payments on indebtedness, contribution

to sinking funds, and reserves on account of depreciation, to the extent

and in the amount not provided for by the revenues derived from such

operation. For such purposes such city shall, with respect to any such

expenses heretofore or hereafter not provided for by revenues derived

from operation, use money raised by taxation. Nothing in this section

contained shall be construed to imply that the powers herein defined

have not heretofore been vested in such city by law.

Municipal operation; revenue and accounts; operating and other

funds. a. The aggregate amount of the gross receipts of moneys derived

directly or indirectly from or in connection with the operation by the

city of any road shall be known as the revenue thereof. Such revenue

shall be derived from fares to be charged persons riding thereon; from

rates to be charged for carrying property thereon; from rentals or fees

to be charged for concessions or privileges thereon in connection

therewith; from the sale of surplus power, and any other receipts from

whatever source derived.

b. The board of transportation shall establish and maintain a system

of accounts to show at all times the cost of the several classes of

property used in operation and the sources of funds used in the

acquisition of such property; the several classes of operating revenue

and other income; maintenance expenses; interest, amortization,

depreciation and all other charges against earnings. Such accounts shall

be kept in accordance with the uniform system of accounts prescribed for

railroads by the public service commission or other duly constituted

authority and published in the City Record.

c. The revenue derived from all sources of income of any such road

shall be deposited daily by the board in the name of the city in banks

to be designated by the board of transportation and shall be held

separate and apart from all other funds of the city as the operating

fund for the payment therefrom of the expenses of operation, maintenance

and repairs, and depreciation, interest and amortization charges. An

accurate report of all moneys received shall be made daily to the

comptroller of the city, who shall have power and whose duty it shall be

to audit currently all the financial details of municipal operation,

which audit shall not preclude examination of such account by any other

properly constituted authority. An itemized report of the result of such

municipal operation shall be filed each month by the board of

transportation with the mayor and the board of estimate.

d. From the operating fund thus derived there shall be deducted the

following charges in the order named and a separate accounting be made

of each:

1. Operating expenses, exclusive of maintenance, including all

expenses for personal service, materials and supplies used in operation.

2. Expense of maintenance and repairs of structures and equipment,

which shall be the actual cost of keeping the structures and equipment

in thoroughly good order and repair, and shall include the replacement

of parts of construction and parts of equipment units, but shall not

include the renewal or replacement of any complete units of property, as

such units are defined and specified from time to time by the board of

transportation for renewal or replacement from the capital reserve fund.

3. The amount of interest actually payable by the city and the

proportionate annual contributions to sinking fund or other funds to

amortize and retire the bonds, corporate stock or other evidence of

indebtedness issued by the city on account of any road.

4. Contributions to a depreciation fund for replacement or renewal of

worn-out, obsolete or inadequate units of structures or equipment, of

the amount the board of transportation shall determine is the estimated

net loss of value, after maintenance has been applied, of such complete

units of property, with due provision for obsolescence or inadequacy of

such units.

e. The deduction for expenses of operation and maintenance shall be

made currently as required, and the deductions for depreciation,

interest and amortization installments shall be made after the close of

operations each month and shall be the monthly proportion of the annual

amount required for such purposes.

f. In addition to the principal operating fund in which all the

revenue shall be deposited as above provided, there shall be established

and maintained in the custody of the comptroller a separate fund and

bank account, to be designated as the capital reserve fund, to which

shall actually be transferred the amounts deducted from revenue on

account of interest, amortization and depreciation. Any surplus or

balance which shall accrue from the revenue at the end of the fiscal

year, in excess of an amount equal to the average cost of operation and

maintenance for one month during such fiscal year, shall also be paid

into such capital reserve fund. Such fund shall be available for

disbursement in the same manner as the principal operating fund for the

following purposes in the order specified:

1. Interest payable by the city on account of bonds or other evidences

of indebtedness issued, and contributions to sinking funds established

for the retirement thereof;

2. Amounts necessary for renewals or replacements on account of

depreciation and obsolescence.

Any surplus accruing in the capital reserve fund over and above the

amounts disbursed for the purposes specified shall be retained in such

fund and may be expended only for the support, installation or extension

of such transportation facilities. All interest earnings of such fund

shall be added to the fund. The comptroller shall make all payments out

of the capital reserve fund, and shall report quarterly to the board of

estimate the condition of the fund, itemized as to the amount on hand

for interest, amortization of bonds or other evidences of indebtedness,

depreciation and surplus, and shall keep the account of the fund so

subdivided.

g. Payments or withdrawals of moneys from the operating fund and the

capital reserve fund shall be made by checks drawn and signed by the

comptroller upon vouchers certified by a member or an officer of the

board of transportation, duly authorized by resolution of such board,

except that payments of interest, contributions to sinking funds and on

account of retirement of bonds or other evidences of indebtedness shall

be made by the comptroller upon his own initiative as such payments

become due and payable, but a memorandum of such payments shall be

transmitted by the comptroller to the board of transportation for entry

in the accounts thereof. The comptroller from time to time shall inform

the board of transportation in writing as to the amount to be

periodically deducted from revenue on account of interest and

amortization requirements, and the monthly charges and vouchers for such

amounts shall be made in accordance with such devices.

Notwithstanding any other provision of law, the board of

estimate or other analogous local authority of any such city is

authorized to issue evidences of indebtedness to be known as budget

notes in an aggregate amount not to exceed nineteen million dollars, for

the purpose of providing funds for the payment of any deficit of

revenues derived from operation of any railroad owned and operated by

such city, arising out of any adjustments in the salaries or

compensation of officers and employees of any such railroad during the

fiscal year ending on the thirtieth day of June, nineteen hundred

forty-seven. Such budget notes shall be redeemed in three equal

installments from appropriations to be included in the annual expense

budgets of such city for the fiscal years nineteen hundred

forty-seven--nineteen hundred forty-eight, nineteen hundred

forty-eight--nineteen hundred forty-nine and nineteen hundred

forty-nine--nineteen hundred fifty.

Contract for equipment, maintenance and operation. a. Subject

to the approval of the board of estimate and of the mayor, the board of

transportation shall have full power and authority to provide for the

maintenance, supervision, care and operation of any railroad and also of

the subsurface structures and all other devices and appurtenances,

constructed or to be constructed for and at the expense of such city

pursuant to the provisions of this chapter. With like approval, such

board of transportation may enter into a contract with any person, who

in the opinion of such board shall be best qualified to fulfill and

carry out such contract, for the equipment, or any part thereof not

provided for pursuant to section thirty-one of this chapter, of a

railroad, at his own cost and expense, and for the maintenance and

operation of such road for a term of years to be specified in such

contract and not to exceed twenty years. In lieu of such definite term

of twenty years the contract may be for a longer period to be fixed

therein and in such case it shall provide that the city upon giving a

specified notice shall have the right to terminate the contract for the

equipment, maintenance and operation of such road as to all and if

deemed advisable as to any specified portion thereof at any time after

the expiration of ten years from the date when operation of any part of

such road or of such specified portion thereof shall actually begin, but

such right of termination shall be upon condition as follows:

1. If the title to the equipment of such railroad shall not be vested

in the city then that the equipment of such railroad or portion thereof

suitable to and used for purposes of such contract shall be purchased

and taken by the city at an amount which shall be ascertained as

provided in the contract, but which shall not be greater than the actual

cost thereof, plus fifteen per centum thereof. Such equipment shall upon

such termination of such contract become and be the property of the city

on paying to the contractor such amount, or in case the title to the

equipment of such railroad shall be vested in the city then that the

city shall pay to the contractor an amount for his investment in the

equipment of such railroad, or portion thereof, which shall not exceed

the actual cost to the contractor of the equipment of such railroad or

portion thereof, plus fifteen per centum thereof, and shall decrease

under the provisions of the contract as the term thereof continues so

that at the end of the full term of the contract no such amount shall be

paid. If additional equipment shall be required and supplied after the

railroad, or portion thereof, shall have been put in operation, and if

the contract shall provide that title to such additional equipment shall

vest in the city when supplied, then the city shall pay an amount for

the investment of the contractor in such additional equipment which

amount shall not exceed the actual cost to the contractor of such

additional equipment plus fifteen per centum thereof, and shall diminish

so that at the end of the full term of the contract the city shall be

required to pay for such investment in additional equipment only such

amount as shall be provided in such contract, and

2. Upon the further condition if such railroad shall be constructed

wholly or in part at the cost of the contractor that the city shall also

pay to the contractor an amount for his investment in the construction

of such road or portion thereof which shall not exceed the actual cost

to the contractor of constructing such road or portion, plus fifteen per

centum thereof, and shall decrease under provisions of the contract as

the term thereof continues so that at the end of the full term of the

contract no such amount shall be paid. If betterments, additions or

improvements shall be required by the board of transportation or

approved by such board prior to the construction thereof and be

constructed wholly or in part at the cost of the contractor, then that

the city shall pay an amount for the investment of the contractor in

such betterments, additions or improvements which shall not exceed the

actual cost to the contractor of constructing such betterments,

additions or improvements plus fifteen per centum thereof and which

amount shall diminish so that at the end of the full term of the

contract the city shall be required to pay for such investment in

betterments, additions or improvements only such amount as shall be

provided in the contract.

b. The contract shall provide a method of ascertaining the amount to

be paid for such equipment and for such investment of the contractor in

the construction of such road upon termination by the city of any such

contract and for the equipment of such railroad at the end of the full

term of the contract. The contract may provide for determining from time

to time in default of agreement by arbitration or by the court a

valuation of such investment of the contractor in the construction of

such road and of the equipment or any part or portion of either thereof

for any purpose under such contract. The contract may provide that the

title to the equipment as well as to such road, shall vest in the city

from the beginning and that the amount to be paid by the city for the

investment of the contractor in such equipment shall decrease as the

term of the contract continues, so that at the end of the full term of

the contract no amount shall be payable therefore except for additional

equipment as aforesaid.

c. The contract shall provide that upon the expiration of a period

fixed in the contract, the term of such contract shall end without

compensation to the contractor except as provided in the contract, for

betterments, additions or improvements to any such railroad required to

be made or approved by the board of transporation prior to the

construction thereof during the term of any such contract, and, if the

title to the equipment be not vested in the city, for equipment suitable

to and used for the purposes of such contract to the amount, if any,

ascertained as provided in the contract, and that in such event such

equipment shall become the property of the city upon payment to the

contractor of such amount or, if the title to the equipment be vested in

the city, then an amount for the investment of the contractor in

additional equipment for any such railroad to be ascertained as provided

in the contract. The contract may also provide that the city in

exercising the right so to terminate any contract shall for such

compensation as may be reasonable and which shall be determined pursuant

to the contract permit the contractor whose contract is so terminated or

the assignee or lessor of the contractor to use the tracks, structure

and line equipment of a portion of such road when necessary or

convenient to reach terminals, yards or other facilities of the

contractor or such assignee or lessor then located thereon. The contract

may also provide for assuring that in case a new contract under this

section for equipment and for maintenance and operation of such railroad

is made after such termination pursuant to notice or after the

expiration of the full term of the contract that the title to and

possession of the equipment so taken and the right to the possession of

the railroad so constructed may be transferred directly to the new

contractor upon his paying the amount so required.

d. If such contract be made with a railroad corporation organized for

the purpose of maintaining and operating a railroad, including the

equipment or any part thereof, constructed pursuant to the provisions of

this chapter, and which has entered into a contract for the maintenance

and operation of a railroad theretofore constructed in whole or in part

at the expense of the city as provided in this chapter, and is engaged

in the maintenance and operation thereof within such city, and if such

contract shall make provision for the equipment, maintenance and

operation of such road of the city in connection with such railroad

theretofore constructed as aforesaid at the expense of the city, and for

a single fare, such corporation and the city may in such contract or by

modification of an existing contract provide that the original term of

any contract for operation of such railroad theretofore constructed in

whole or in part at the expense of the city, may be extended or reduced

and any right to a renewal thereof may be abrogated or waived so that

such term as extended or reduced shall become and be co-terminous with

the term for equipment, maintenance and operation of such road of the

city to be fixed in and by any such contract; and that if the city shall

elect to terminate the contract for equipment, maintenance and operation

of such road as to any line or portion thereof, which with a connecting

line or portion of such railroad theretofore constructed and then

operated by such corporation shall make a continuous line, then the city

may when so terminating such contract as to any such line or portion

thereof, take over such connecting line or portion thereof theretofore

constructed in whole or in part at the public expense and then operated

by such railroad corporation and terminate the contract of such

corporation as to the same, provided that in lieu of such connecting

line or portion thereof so taken over such corporation shall for the

then unexpired term of the contract for operation of the railroad

theretofore constructed have the right to maintain and operate without

right of recapture by the city another line of road or portion thereof

specified in such contract which with such lines of the railroad

theretofore constructed shall make a continuous line. The contract shall

in such case provide for adjustment between the city and the corporation

of the difference in the value of the right to operate the lines or

portions thereof so exchanged by agreement or arbitration or by the

court and for payment of such difference between them. The city and the

corporation, in such contract, may also provide that if the city, under

any provision of law, shall terminate the contract for the maintenance

and operation of such road of the city after the expiration of ten years

from the date when operation of any part of such road shall actually

begin, the city, at any time after thirty-five years from such date, may

terminate such contract for the maintenance and operation of the

railroad theretofore constructed at the public expense, and take over

any such railroad upon payment to such company of a sum not exceeding

the then present worth of the unexpired portion of the term of such

contract to be ascertained as provided in such contract, which may

provide that in default of agreement such sum may be determined by

arbitration or by the court.

e. The contract between the city and such corporation may also provide

that in consideration of the operation of any such railroad as provided

for in such contract and any such railroad theretofore constructed in

whole or in part at public expense in connection with each other for a

single fare, and of the payment by such company of moneys to be applied

as authorized by this chapter to or toward the construction by the city

of the road to be maintained and operated under such contract. In

further consideration of any covenants or agreements by the company to

modify the term of any of its leases or to waive or modify any of the

other provisions of any of its contracts, the gross receipts of the

operation of any such railroad theretofore constructed and of such road

of the city to be maintained and operated under such contract may be

combined during the term of such contract, and that the city shall

receive for the use of such additional road at intervals named a

specified part or proportion of the income, earnings or profits of the

railroads whose receipts are so combined. In such case the contract may

apportion out of the amount so to be received by the city and specify a

portion thereof which shall be deemed to be the rental for the use of

each of the roads of the city maintained, equipped and operated under

such contract. Any such contract shall provide for determining the

amount of income, earnings or profits of the railroads whose gross

earnings are so combined, and for such considerations may authorize the

retention by such railroad corporation for each year of the term of such

contract, prior to the payment of any sums or of any part or portion of

the income, earnings or profits to the city as rental for the use of the

roads specified or provided for in such contract, of:

1. A specified sum of money, which sum may represent the average

annual income from operation of such railroad theretofore constructed

and operated by such corporation for any two or more years;

2. A sum not exceeding six per centum per annum for each year upon the

investment of such company, including brokerage charges not exceeding

three per centum, in the construction and equipment of such road of the

city to be maintained and operated under such contract; and

3. A sum not exceeding the annual expense or cost to the contractor

plus one per centum per annum on account of the investment of the

contractor in betterments or improvements upon or additions to such road

and equipment.

Such contract may also provide that such annual payments shall be

cumulative, and that any deficiency with respect thereto shall be paid

off and discharged annually out of such gross receipts before any

payments by way of rental or compensation for the use of such roads

shall be made to the city.

f. Every such contract shall contain such terms and conditions as to

the rates of fare to be charged and the character of services to be

furnished and otherwise as the board of transportation shall deem to be

best suited to the public interests, and subject to such public

supervision and to such conditions, regulations and requirements as may

be determined upon by such board, with like approval. In case different

parts of a road shall be constructed at different times or at intervals

of time, or if the contract shall provide for the use by the contractor

of an existing railroad as part of a continuous route as aforesaid, then

and in any such case the board of transportation, in its discretion, may

prescribe periods for the operation of the different parts of such road

so that at one period of time in the future the board may be enabled to

make a single operating contract or lease of the entire road. Such

board, in its discretion, as one of the terms and conditions of any such

contract, may provide that as a consideration for the making of such

contract the contractor in addition to any sums to be paid as provided

by this chapter by way of rental or otherwise for the use of such road

shall contribute a part of the cost of construction of such road which

shall be contributed and disbursed by such method, in such manner and at

such times as may be provided for in any such contract. Such

contribution shall be deemed to be an investment by the contractor in

the construction of such road or to be part of the cost to the

contractor of constructing such road within the meaning of subdivision a

of this section providing for termination of such contract by the city.

Any such contract may provide for the construction during the term of

such contract of any branches or extensions of such road and the

construction of additional lines and for the equipment and operation

thereof by the contractor in connection with such road and may make

separate provision for apportioning the receipts of such road and of

such branches, extensions or additional lines and as to the compensation

to be paid to the city for the use of any such branches, extensions or

additional lines. The city may enter into a contract for the equipment,

maintenance and operation of any such road before any contract for

construction of such road or any portion thereof shall have been made,

and in such case the contract may provide that the city may construct or

complete such road or additions thereto or betterments thereof from time

to time at the expense of the city, or partly at the expense of the city

and partly at the cost or through contribution of the contractor as

aforesaid in such proportion as may be agreed upon between the city and

the contractor. Such contract for the equipment, maintenance and

operation of such road or any portion thereof may be made and entered

into as provided in this chapter before the consents shall have been

obtained for any such road or for any portion thereof as provided in

section twenty-one of this chapter, and before the detailed plans and

specifications shall have been prepared as provided in section

twenty-two of this chapter. In such case such contract for equipment,

maintenance and operation of such road or any portion thereof shall be

upon condition that such contract shall not become operative or go into

effect as to such road or such portion thereof unless and until the city

shall acquire the right to construct such road or portion thereof by

obtaining such consents. The board of transportation in any contract

may reserve the right, upon conditions and for compensation to the

contractor, as provided in the contract, to permit other persons and the

municipality itself to use the tracks, structure and line equipment of

the railroad, or any portions thereof.

g. Every such contract shall further provide that the person so

contracting to equip, maintain and operate such road annually or at

specified intervals, shall pay into the treasury of such city, such

rental for the use of such road, as shall be prescribed therein. The

rental may be either a specified sum of money or a specified part or

proportion of income, earnings or profits of such road, or both a sum of

money and a part or proportion of income, earnings or profits, as such

board shall deem best suited to the public interest and the board of

estimate and the mayor shall approve. Every such contract may further

provide that the amount and character of such rental may be readjusted

at the expiration of a prescribed period of not more than twenty years,

and be readjusted from time to time in the future at intervals each of

not more than twenty years, and may prescribe a method of determining by

arbitration or by the court the amount to be paid upon any readjustment

thereof. If such contract be made with a person owning or actually

operating or agreeing to operate a railroad wholly or in part within the

limits of the city and shall make provision for the equipment,

maintenance and operation of such road of the city in connection with

such railroad and for a single fare, the contract may provide that the

gross receipts from the operation of such railroad within the limits of

the city and from the operation of such road of the city may be combined

during the term of such contract and that the city shall receive for the

use of such road at intervals named a specified part or proportion of

the income, earnings or profits of the railroads whose receipts are so

combined and the contract, in such case, may apportion out of the amount

so to be received by the city and specify a portion thereof which shall

be deemed to be the rental for the use of each of the roads of the city

maintained, equipped and operated under such contract. In any such case

the contract shall provide for determining the amount of the income,

earnings or profits of the railroads whose gross earnings are so

combined, and may authorize the retention, prior to the payment of any

sums to the city for or on account of the investment of the city in the

construction of such road or for the use of the same, of:

1. A specified sum of money, which may represent the average annual

income from operation of such railroad theretofore constructed during a

period specified in such contract;

2. A sum not exceeding six per centum per annum for each year upon the

investment of the contractor, including brokerage charges not exceeding

three per centum, in the construction and equipment of such road of the

city to be maintained and operated under such contract, and in the

construction and equipment of extensions of any railroads and tracks not

owned by the city thereafter constructed and to be operated under such

contract; and

3. A sum not exceeding the annual expense or cost to the contractor,

plus one per centum per annum, on account of the investment of the

contractor in betterments or improvements upon, or additions to such

road of the city, and upon or to any railroads not owned by the city and

operated under such contract, and upon or to the equipment thereof.

Such contract may also provide that such payments shall be cumulative,

and that any deficiency with respect thereto shall be paid off and

discharged annually out of such gross receipts before any payments by

way of rental or compensation for the use of such roads shall be made to

the city. The contract may provide for a readjustment at specified

intervals of the part or proportion of such income, earnings or profits

of the railroads, which the city shall receive, or of the portion of the

amount received by the city which shall be deemed to be the rental of

each such road owned by the city, and may prescribe a method of

determining by arbitration or by the court the amount which the city

shall receive as its part or proportion of such income, earnings or

profits or as such rental upon any such readjustment thereof.

h. Such rental and the term for the operation of the railroad included

in any such contract shall begin, as to such road, or any section

thereof, at such time as may be provided in the contract. The aforesaid

rental shall be paid at such times during each year or at such intervals

as the board of transportation shall require. If a contract to equip,

maintain and operate such road be made with the person having or to have

the contract to construct the same and such contract shall provide that

such road shall be constructed wholly or in part at the cost of such

person such road, however, to be the property of the city in the same

manner and to the same extent as if constructed wholly with public

money, then the contract may provide as an alternative in lieu of the

rental above provided for that any and all income and increase derived

by the contractor or on his behalf in any manner from the enterprise of

constructing, equipping, maintaining and operating such road, after

deducting operating expenses, taxes, payments to reserve and

amortization funds as provided for in the contract, and not exceeding

six per centum interest per annum payable quarterly upon the actual cost

to the contractor of construction and equipment of such road, shall be

divided share and share alike between the contractor and the city. The

rental and any sums payable under such contract, except any sum of money

that may be contributed toward the construction of any road by the

contractor having the contract for the equipment and operation of such

road, shall be applied first to the payment of the interest upon

obligations issued by such city for the construction and equipment of

such road, as the same shall accrue and fall due. The remainder of such

rental and moneys not required for the payment of such interest shall be

kept separate and apart from any and all other moneys of such city and

shall be securely invested and, with the annual accretions of interest

thereon, shall constitute a sinking fund for the payment and redemption

at maturity of the aforesaid obligations. Such rental, moneys and

accumulations of such fund over and above so much as may be required for

payment of interest and principal of such obligations, shall be paid

into the rapid transit fund provided in section thirty-four of this

chapter.

i. Any such contract also may provide for a renewal or renewals not to

exceed twenty years in the aggregate of the lease of such road upon the

expiration of an original term of not more than twenty years upon such

terms and conditions, to be approved by the board of estimate and the

mayor, as to the board of transportation may seem just and proper. Such

contract also may contain provisions for the valuation of the whole or a

part of the property of such contractor employed in and about the

equipment, maintenance and operation of such road, and for the purchase

thereof by the city, at such valuation, or a percentage thereof, should

such lease not be so renewed at any time, or should it be terminated or

expire as aforesaid. Such contract also shall state the date on which

the operation of the road, or any section thereof, shall commence.

j. In case the title to the equipment of such road shall not be vested

in the city, the city also shall have a first lien upon the rolling

stock and other property of such contractor, constituting the equipment

of such road and used or intended for use in the maintenance and

operation thereof, as further security for the faithful performance by

such contractor of the covenants, conditions and agreements of such

contract, on his part to be fulfilled and performed. In case of the

breach of any such covenant, condition and agreement such lien shall be

subject to foreclosure by action, at the suit of such city, in the same

manner, as far as may be, as is then provided by law in the case of

foreclosure by action of mortgages on real estate. The board of

transportation, however, from time to time, may relieve from such lien

any of the property to which it may attach, upon receiving additional

security, which may be deemed by such board to be the equivalent of that

which it is proposed to release and otherwise upon such terms as to such

board shall seem just.

k. The contract shall further provide that in case of the failure or

neglect on the part of such contractor, after such notice as the

contract may prescribe, faithfully to observe, keep and fulfill the

conditions, obligations and requirements of such contract, the city, by

the board of transportation, may either terminate the contract or take

possession of such road and the equipment thereof, and as the agent of

such contractor, either maintain and operate such road, or enter into a

contract with some other person, for the maintenance and operation

thereof. Such contract shall contain such terms, conditions and

provisions in relation thereto as such board shall deem necessary or

desirable for adequately safeguarding and protecting the rights and

interests of the city. Such contract shall also contain appropriate

terms, conditions and provisions for accomplishing such termination or

taking possession.

l. Any existing railroad corporation owning or actually operating a

railroad wholly or in part within the limits of the city and approved by

the board of transportation, shall be competent and is hereby authorized

to enter into any contract for the equipment, maintenance and operation

of any railroad pursuant to the provisions of this chapter, or, after

such a contract shall have been made, shall be competent and is hereby

authorized, with the approval of such board, to contract with the

original contractor or his assignee or assignees for the maintenance and

operation (including the equipment or any part thereof) of any railroad

constructed or in process of construction or to be constructed pursuant

to the provisions of this chapter, and shall have all the powers

necessary to the due performance of such contract. A corporation may be

organized under the railroad law, for the purpose of constructing,

equipping, maintaining and operating a railroad pursuant to the

provisions of this chapter or for the purpose of maintaining and

operating a railroad, including the equipment or any part thereof,

already constructed, in process of construction or to be constructed

pursuant to the provisions of this chapter. Any corporation so

organized, upon the approval in writing of the board of transportation,

in addition to the powers conferred by the general act under which such

corporation is organized, shall be empowered, and is hereby authorized

to enter into any contract permitted by law for the maintenance and

operation when constructed, including the equipment or any part thereof

if desired, as the case may be, of any such railroad owned or to be

owned by the city, constructed or to be constructed at the expense of

the city or of such corporation or both as provided by this chapter. The

certificate of such approval shall be filed in the office of the

secretary of state, and a copy thereof certified to be a true copy by

the secretary of state or his deputy, shall be evidence of the fact

therein stated. A corporation so organized shall not be required to

procure the consent of the public service commission as provided for in

section nine of the railroad law.

m. Where in this section or in section thirty-one of this chapter the

consents referred to in section twenty-one of this chapter are

mentioned, they shall be construed to include any consent given by the

commissioners appointed by the appellate division of the supreme court,

and confirmed by such appellate division in lieu of the consent of

property owners as provided in this section.

Contract for maintenance and operation. a. If in the opinion of

the board of estimate and the mayor, a contract for the equipment,

maintenance and operation as provided for in the preceding section shall

be inexpedient, impracticable or prejudical to the public interest, the

board of transportation, with the approval of the board of estimate and

the mayor, may equip such road in whole or in part, or purchase power

for operation thereof, for and at the public expense, by contract

therefor subject to the provisions of section seventeen of this chapter,

and enter into a contract with any person, who or which in the opinion

of such board of transportation shall be best qualified to fulfill and

carry out such contract for the maintenance and operation of such road

for a term of not to exceed ten years to be specified in such contract.

The provisions of the foregoing sections in respect of contracts for the

equipment, maintenance and operation of such road shall apply to such

contract for maintenance and operation so far as such provisions are

pertinent and applicable thereto except that the renewal or renewals of

such contract provided for therein shall not exceed ten years in the

aggregate.

b. Every grant or contract made under the provisions of this chapter,

as part of which the city shall have a right to terminate any right or

franchise or any contract for maintenance and operation of any railroad,

shall provide that if at any time in ascertaining the amount to be paid

by the city as a condition of such termination or at the expiration of

the full term, it shall be necessary that a valuation of any plant,

property, equipment, construction or any investment in any thereof,

shall be determined, such valuation shall in default of agreement be

determined by arbitration or by the court. Every such grant or contract

shall also make provision to assure supervision by the board of

transportation of all operations of such grantee or contractor in and

about such enterprise and for keeping and for access to and examination,

use and production of any and all books, records and memoranda of such

operations, not only of the grantee or contractor but of any contractor,

sub-contractor, banker or person furnishing money, material or supplies

directly or indirectly to such enterprise, to the extent that such

books, records and memoranda have to do therewith, and for ascertaining

the cost to the grantee or contractor and the value of any equipment,

property or construction furnished or done pursuant to such grant or

contract, including permanent additions to construction from time to

time and for a method of determining the amount of such cost forthwith

upon the furnishing or completion of the same by arbitration or by the

court in default of an agreement upon the amount thereof. The grant or

contract may provide that if the amounts to be paid to the grantee or

contractor upon any such termination shall not have been finally

determined or paid prior to or at the time when the termination is under

such notice given to take effect the title to and right of possession of

the property, and the right of possession of such railroad may

nevertheless pass to the city or to a new contractor, and that the city

or such new contractor having given proper and sufficient sureties shall

pay to the contractor the amount so determined, with interest from the

time aforesaid.

c. Every grant or contract made under the provisions of this chapter

by the terms of which the city in lieu of rental shall be entitled to a

portion of income or increase derived from the enterprise shall make

provision for definition and determination from time to time of the

items to be included in operating expenses, taxes, payments to reserve

and amortization funds and for the percentages or amounts to be set

aside therefor and for interest upon construction cost. The board of

transportation shall prescribe in the grant or contract a period for

amortization by the grantee or contractor of the actual cost of plant

and property other than equipment, or actual cost to the contractor of

the construction of such road and the period so prescribed shall end

with the term of the grant. Any and all sums of money received by the

city from or under any grant or contract made under the provisions of

the rapid transit act or this chapter, over and above such sum as is

required by law to be paid into a sinking fund to meet the payment of

interest or principal on city bonds issued for construction and

equipment of any railroad pursuant to any such contract, and except any

sum of money that may be contributed toward the construction of any road

by the contractor having the contract for the equipment and operation of

such road, shall be kept separate and apart from any and all other

moneys of such city and paid into a fund to be known as the rapid

transit fund, and shall be applied under the direction of the board of

estimate with the approval of the mayor only to or toward the

construction of railroads, or the purchase of plant and property or

equipment of railroads, pursuant to the provisions of this chapter, or

to deficiencies in the operation or rental of railroads owned by the

city, or in the operation of railroads owned and operated by the city

pursuant to this chapter.

d. Unless otherwise provided by law the board of transportation, with

the approval of the board of estimate and the mayor, shall have and

exercise the powers, rights and privileges reserved or given to the city

to terminate any right, privilege, franchise, authority or contract

granted or entered into, or which may be exercised under the provisions

of this chapter, and may do and perform any and all things requisite and

necessary to any such termination.

Contract for construction or operation. a. Every contract for

the construction or operation of such road shall provide by proper

stipulations and covenants on the part of the city, that the city shall

secure and assure to the contractor, so long as the contractor shall

perform the stipulations of the contract, the right to construct or to

operate the road as prescribed in the contract, free of all right, claim

or other interference, whether by injunction, suit for damages or

otherwise, on the part of the owner, abutting owner, or other person.

The person bidding or contracting for the construction, equipment,

maintenance or operation of the railroad included in any such contract

shall make such deposit of cash or securities and shall give a bond to

such city, in such amount as the board of transportation shall require,

and with sureties to be approved by such board, who shall justify each

in double the amount of his liability upon such bond. Such bond shall

be a continuing security, and shall provide for the prompt payment by

such contractor, of the amount of annual rental, if any, specified in

the aforesaid contract, and also for the faithful performance by such

contractor of all the conditions, covenants and requirements specified

and provided for in such contract. In lieu of such continuing bond such

contractor, upon the approval of the board of transportation, may

deposit with the comptroller cash equal in amount to the entire amount

of such bond or securities which are lawful for the investment of the

funds of savings banks within this state and are worth not less than the

entire amount of such bond. If such bond shall have been given then

after the deposit of cash and securities in lieu thereof as aforesaid,

and the approval thereof by such board, such bond shall be surrendered

by the city to the contractor duly canceled by the comptroller. In the

event of the deposit of cash or securities as aforesaid, the contract

may provide for the payment to the contractor of the income of such

securities or of interest upon such moneys at a rate not higher than the

highest rate received by the city upon the deposit of its funds with

banks, and may also provide for withdrawal of securities so deposited

upon deposit of cash or securities of the same value, provided that all

such securities shall be such as are so lawful for the investment of the

funds of savings banks. The board of transportation, in or by any such

contract and in its discretion, may require, and the rapid transit act

shall be deemed to have authorized the board of transportation or any of

its predecessors to have required, prior to the sixteenth day of May,

nineteen hundred six, any other security upon any such contract.

b. No contract entered into under authority of this chapter shall be

assigned without the written consent of the board of transportation.

Such contractor, with such written consent and upon such terms and

conditions as such board shall prescribe, may either assign the whole of

such contract or separately the right or obligation to maintain and

operate such road for the remainder of the term of years specified in

such contract and all rights with respect to such maintenance and

operation, or included in the leasing provisions of such contract, but

subject to all the terms and conditions therein stated. The assignee, in

and by such assignment, shall assume all of the obligations of the

original contractor under or with respect to such leasing provisions and

all obligations which relate in any way to such operation and

maintenance. Such board before giving its consent shall be satisfied

that the pecuniary responsibility of the assignee shall be no less than

that of such original contractor. All of the security or securities

which the city shall have received for the performance by the original

contractor of such leasing provisions and of all provisions of the

contract with respect to such operation and maintenance shall continue

in full force as provided in such contract or any modification thereof,

as security for the performance by such assignee of all obligations of

the contractor under or with respect to such leasing provisions and such

maintenance or operation.

c. It shall be deemed to be part of every such contract that, in case

the board of transportation shall cease to exist, the legislature may

provide what public officer of the city shall exercise the powers and

duties belonging to such board under or by virtue of any such contract,

and that in default of such provision, such powers and duties shall be

deemed to be vested in the mayor of the city. Every such contract shall

contain appropriate terms, conditions and provisions for safeguarding

the interests of the city in the event of the failure or neglect of such

contractor to construct, equip, maintain or operate the railroad

according to the terms of the contract, and such board may bring such

action in the name and in behalf of the city as may be necessary for the

sufficient and just protection of the rights of the city, or upon such

terms as seem just to it, and with such person as to such board may seem

proper, may make another operating contract and lease of such road for

the residue of the term of the contractor in default. Such board may

bring action in the name and on behalf of the city to recover from the

contractor the amount due from the contractor, less the amount which

shall have been received by the city, under or by virtue of such new

contract, and for all other damages sustained by the city by reason of

such default.

Persons with whom contracts may be made. Nothing contained in

this chapter shall be deemed, or be construed as intending to limit, or

as limiting, in any manner, the discretion of the board of

transportation, provided in the opinion of the board of estimate and the

mayor, it is expedient, practicable and in the public interest to do so,

to enter into contracts for construction, equipment, maintenance and

operation with the same person, or for any one or more of such purposes

with the same person or with different persons either in one contract or

in separate contracts, and at any time or times.

Modification of and changes in contracts. a. The board of

transportation for and on behalf of the city, from time to time with the

consent, in writing, of the bondsmen or sureties of a person, who has

contracted with such board or its predecessors to construct, equip,

maintain or operate any road, may agree with such contractor upon

changes in and modifications of such contract, or of the plans and

specifications upon which such road is to be constructed, but no change

or modifications in the plans and specifications consented to and

authorized pursuant to section twenty-one of this chapter shall be made

without the further consent and authorization provided for in such

section.

b. The board of transportation, from time to time, but only with the

approval of the board of estimate and the mayor, may agree with railroad

companies upon changes in and modifications of the terms and conditions

of any contract under or pursuant to which any railroad, or any part

thereof, has been or is to be constructed, equipped, maintained or

operated, and with like approval such contract may be cancelled and

replaced by a new contract to include the railroads embraced in such

existing contract. The board of transportation may include therein

provision for the acquisition by the city of the railroads or any of

them or portions of any of them and is authorized and empowered on

behalf of the city to accept title thereto or control thereof and to

provide for the payment thereof through amortization or otherwise as the

board of transportation may determine.

c. Any other provision of this chapter to the contrary

notwithstanding, the board of transportation shall not make any new

contract or modify any contract for the construction, equipment,

maintenance or operation of any railroad without the approval or consent

of the board of estimate and the mayor.

d. If any contract for construction or equipment of a railroad or

section thereof has been awarded and a part of the work therein required

to be performed by the contractor has been done or is in process of

being done as to a portion of the route of such road and if another

route for a railroad has been or shall be established by the board of

transportation under section twenty of this chapter and consented to as

provided in section twenty-one of this chapter, which, or a portion of

which, in the opinion of such board should in the public interest be

substituted in place of a portion of the road to be constructed or

equipped under such contract, then the board with the consent of the

board of estimate and the mayor, as soon as the detailed plans therefor

have been prepared as prescribed in section twenty-two of this chapter,

without advertising for proposals, may agree as provided in this

subdivision with such contractor upon changes in and modifications of

his contract for the purpose of making such substitution. Such agreement

in such case may provide, in consideration, among other things, of a

surrender by the contractor of his right to construct or equip a

designated portion of the road or section or road described in his

contract, that such contractor shall complete the construction or

equipment of the remainder of the road or section described in such

contract and shall in place of the portion surrendered construct or

equip a railroad or section of a railroad upon such substituted route

and in accordance with the plans and specifications adopted therefor for

such sum of money as may be provided in such modifying agreement. As

part of the consideration of such modifying agreement, the agreement may

also provide that such contractor shall guarantee to the city, with

proper and sufficient sureties, that in the event that the city shall

enter into such modifying agreement providing for construction of such

substituted route or section thereof by the contractor, the cost to the

city of providing for the construction of any additional section of such

railroad upon such substituted route in continuation of that portion

thereof which is to be constructed by the contractor under such

modifying agreement, shall not be in excess of an amount specified in

such modifying agreement or that if the contract for construction of any

such additional section is to be awarded after advertisement for

proposals under section seventeen of this chapter, that a responsible

bidder for the construction thereof acceptable to the city shall be

obtained at a price not exceeding a specified amount.

e. If any contract for equipment, maintenance and operation of a

railroad has been made and part of the work of construction thereof has

been done or is in process of being done, and if another route for a

railroad has been or shall be established by the board of transportation

under section twenty of this chapter and consented to as provided in

section twenty-one of this chapter, which, or a portion of which, in the

opinion of the board in the public interest, should be substituted in

place of a portion of the road to be equipped and operated under such

contract, for use and operation in connection with or as part of the

route, a portion of which has been in part already constructed or is in

process of construction, then the board with the consent of the board of

estimate and the mayor may agree as provided in this subdivision with

the person having the contract for equipment, maintenance and operation

of such railroad, upon changes and modifications of such contract. Such

agreement in such case may provide, in consideration, among other

things, of the surrender by the contractor of his right to equip,

maintain and operate a designated portion of the railroad described in

his contract, that in place of the portion surrendered, he shall equip,

maintain and operate a railroad or portion of a railroad upon such

substituted route. The rental to be received by the city under such

contract, as changed and modified, representing compensation to the city

for the use of such substituted part of such railroad operated

thereunder necessarily need not be a portion of the income, earnings or

profits from the operation of the railroads combined as provided in

subdivision d or subdivision g of section forty of this chapter equal

annually, if earned, to the interest and one per centum for sinking fund

upon the amount of city bonds issued for the investment of the city in

the construction thereof but may be either a specified sum of money or a

specified part or proportion of income, earnings or profits of such

substituted road, or both a sum of money and a part or proportion of

such income, earnings or profits, or may be such portion of the income,

earnings and profits of the railroads so combined as may be provided in

such modified contract as rental for such substituted railroad and for

the other railroads of the city to be equipped, maintained and operated

under such contract as so modified.

Extensions and additional lines. a. Whenever the board of

transportation shall determine that the public interests so require, it

may with the approval of the board of estimate and the mayor, without

advertising for proposals, but only after a public hearing under section

thirty-four of this chapter, enter into a contract with the person

owning, operating or agreeing to operate, any existing railroad for the

construction, equipment, maintenance and operation, or for the

equipment, maintenance and operation of any additional or proposed

railroad to be owned by the city for which necessary consents as

provided in section twenty-one of this chapter shall have been obtained,

provided that such proposed railroad shall be operated in conjunction

with such existing railroad for a single fare. Such contract for the

equipment, maintenance and operation of such road or any portion thereof

may be made and entered into before consents shall have been obtained

therefor as provided in section twenty-one of this chapter. In such case

such contract for equipment, maintenance and operation of such road or

any portion thereof shall be upon condition that such contract shall not

become operative or go into effect as to such road or such portion

thereof unless and until the city shall acquire the right to construct

such road or portion thereof by obtaining such consents.

b. Such contract for construction, equipment, maintenance and

operation or for equipment, maintenance and operation may be made in

either of the two following ways:

1. If such existing railroad be wholly or in part within the limits of

the city, such contract may be made under and pursuant to the provisions

of sections thirty-one, forty, and forty-two, so far as such sections

shall be applicable, with the railroad corporation owning or actually

operating or agreeing to operate such existing railroad, but the term

for equipment, maintenance and operation of such proposed road, as

specified in such contract, pursuant to such sections, shall not be for

a period longer than the unexpired term of the franchise or contract for

the maintenance and operation of such existing railroad and any renewals

provided for in such franchise or contract.

2. If such existing railroad be a rapid transit railroad constructed

wholly or in part at the public expense under the provisions of the

rapid transit act or this chapter and wholly or in part in operation

such contract may be made with the person having the contract for the

construction and operation of such existing rapid transit railroad by

the terms of which such proposed rapid transit railroad if not

constructed or to be constructed by the board of transportation under

separate construction contracts shall be constructed as extra work under

the terms of such existing contract either without expense to the city

or for such sum of money or such proportion of the actual cost thereof

as may be agreed upon to be paid by such city for or toward the

construction thereof, the railroad when so completed as extra work to be

subject to the terms and conditions of such original contract except so

far as shall be otherwise specified and agreed.

c. Every such contract for such construction, equipment, maintenance

and operation or for such equipment, maintenance and operation of such

proposed railroad made in either of the foregoing specified ways, shall

also make provision that the city, upon giving a specified notice, may

terminate the contract for equipment, maintenance and operation of any

such proposed railroad as to all and if deemed advisable as to any

specified portion thereof at any time after the expiration of ten years

from the date when operation of any part of such proposed railroad or of

such specified portion thereof shall actually begin, but such right of

termination of any such contract shall be upon condition as follows:

1. If the title to the equipment of such proposed railroad shall not

be vested in the city then that the equipment of the proposed railroad

or portion thereof suitable to and used for the purposes of such

railroad as apportioned pursuant to the contract, shall be purchased and

taken by the city at an amount which shall be ascertained as provided in

the contract, but which shall not be greater than the actual cost

thereof, plus fifteen per centum thereof, and such equipment, upon such

termination of such contract, shall become and be the property of the

city on paying to the contractor such amount. In case the title to the

equipment of such proposed railroad shall be vested in the city then

that the city shall pay to the contractor an amount for his investment

in the equipment of such proposed railroad, or portion thereof, which

shall not exceed the actual cost to the contractor of equipment of such

railroad or portion, plus fifteen per centum thereof, and shall decrease

under provisions of the contract as the term thereof continues so that

at the end of the full term of the contract no such amount shall be paid

except that if additional equipment shall be required and supplied after

the railroad, or portion thereof, shall have been put in operation, and

if the contract shall provide that title to such additional equipment

shall vest in the city when supplied, then the city shall pay an amount

for the investment of the contractor in such additional equipment which

amount shall not exceed the actual cost to the contractor of such

additional equipment plus fifteen percentum thereof and shall diminish

so that at the end of the full term of the contract the city shall be

required to pay for such investment in additional equipment only such

amount as shall be provided in such contract.

2. Upon the further condition if such proposed railroad shall be

constructed wholly or in part at the cost of the contractor that the

city shall also pay to the contractor an amount for his investment in

the construction of such proposed road or portion thereof, which shall

not exceed the actual cost to the contractor of constructing such road

or portion, plus fifteen per centum thereof, and shall decrease under

provisions of the contract as the term thereof continues so that at the

end of the full term of the contract no such amount shall be paid,

except that if betterments, additions or improvements shall be required

by the board of transportation or approved by such board prior to the

construction thereof and be constructed wholly or in part at the cost of

the contractor, then that the city shall pay an amount for the

investment of the contractor in such betterments, additions or

improvements which shall not exceed the actual cost to the contractor of

constructing such betterments, additions or improvements plus fifteen

per centum thereof and which amount shall diminish so that at the end of

the full term of the contract the city shall be required to pay for such

investment in betterments, additions or improvements only such amount as

shall be provided in the contract.

d. The contract shall provide a method of ascertaining the amount to

be paid for such equipment and for the investment of the contractor in

the construction of such proposed road upon a termination by the city of

such contract and for the equipment of such proposed railroad at the end

of the full term of the contract. The contract may provide for

determining from time to time, in default of agreement, by arbitration

or by the court, a valuation of such investment of the contractor in the

construction of such proposed road and of the equipment or any part or

portion of either thereof for any purpose under such contract. The

contract may provide that the title to the equipment as well as to such

road shall vest in the city from the beginning and that the amount to be

paid by the city for the investment of the contractor in such equipment

shall decrease as the terms of the contract continues so that at the end

of the full term of the contract no amount shall be payable therefor

except for additional equipment as aforesaid. The contract shall provide

that upon the expiration of the term fixed in the contract, the contract

shall end without compensation to the contractor except as provided in

the contract, for betterments, additions or improvements to any such

railroad required to be made or approved by the board of transportation

prior to the construction thereof during the term of any such contract,

and, if the title to the equipment be not vested in the city, for

equipment suitable to and used for the purposes of such contract to the

amount, if any, ascertained as provided in the contract, and that in

such event such equipment shall become the property of the city upon

payment to the contractor of such amount, or, if the title to the

equipment be vested in the city, then an amount for the investment of

the contractor in additional equipment for any such railroad to be

ascertained as provided in the contract.

e. The contract also may include a provision for modification of the

lease or contract for equipment, maintenance and operation of such

existing railroad so that such latter lease or contract may be

terminated by the city upon giving a specified notice at the same time

and in connection with the termination of the contract as to such

proposed railroad, but such right of termination of any such contract as

to such existing railroad shall be upon condition:

1. That the equipment of such railroad suitable to and used for the

purposes of such contract shall be purchased and taken by the city at an

amount which shall be ascertained as provided in the contract, but shall

not be greater than the actual cost thereof plus fifteen per centum

thereof, and such equipment, upon such termination of such contract,

shall become and be the property of the city on paying to the contractor

such amount, or

2. Upon the further condition, if such existing railroad shall have

been constructed wholly or in part at the cost of the contractor, that

the city also shall pay to the contractor or to his assignee in

possession an amount for the investment in the construction of such

existing road which shall not exceed the actual cost to the contractor

of constructing such road plus fifteen per centum thereof, and shall

decrease under the provisions of the contract as the term thereof

continues, so that at the end of the full term of the contract, and of

any renewal thereof contained therein, no such amount shall be paid.

The contract as so modified shall provide a method of ascertaining the

amount to be paid for such equipment and for the investment of the

contractor in the construction of such road upon a termination by the

city of such contract, and for the equipment of such existing railroad

at the end of the full term of the contract. Such contract as so

modified may provide for determining from time to time, in default of

agreement, by arbitration or by the court, a valuation of such

investment of the contractor in the construction of such road and of the

equipment, or any part or portion of either thereof, for any purpose

under such contract. The contract also may provide for assuring that in

case a new contract for equipment, and for maintenance and operation of

such existing railroad, or proposed railroad, is made after such

termination, pursuant to notice, or after the expiration of the full

term of such contract, that the title to and possession of the equipment

so taken and the right to the possession of the railroad so constructed

may be transferred directly to the new contractor upon his paying the

amount so required.

Franchise for private construction, maintenance and operation.

a. If or when the necessary consents have been obtained and the detailed

plans and specifications have been prepared by the board of

transportation for a railroad, such board, with the approval of the

board of estimate and the mayor, may grant a franchise to construct,

maintain and operate such a railroad. The board of transportation shall

have power to prescribe all such terms and conditions of such grant and

to require such security to be given and filed for the keeping and

performance of such terms and conditions as it may deem to be for the

interest of the public and of the city and may provide that in

connection with the construction of such railroad by the grantee at its

own expense any galleries, ways, subways or tunnels for sub-surface

structures which may be included in any such plans shall be also

constructed by the grantee at the public expense, and in such case the

sum to be paid therefor shall be separately stated and the amount

appropriated and paid out of the funds hereafter authorized to be

provided in case of such construction, and such board may provide

separately for the maintenance, supervision, care and operation thereof

as authorized by the provisions of section forty of this chapter.

b. The grant shall provide that such railroad shall be constructed by

and at the expense of the grantee under the direction and supervision of

the board of transportation and in accordance with such detailed plans

and specifications; that the construction shall be begun within a time

to be specified and shall be finished within a specified time

thereafter; and that operation of such railroad shall be begun within a

specified time, and may fix the time within which portions of such

railroad shall be begun and finished and put in operation, and may

provide that such board may extend the time of beginning, of completion

and of operation of such railroad or portion thereof, and that if the

grantee shall fail to begin or to finish the construction or begin the

operation of such road or portion thereof at or within any time so

fixed, or shall fail to comply with any of the terms or conditions of

such grant, a penalty specified, or the grant and any construction

pursuant thereto, may be forfeited to the city.

c. Such grant shall contain a reservation to the city of the privilege

upon giving a specified notice to terminate such franchise and to

purchase and take the plant and property of the grantee suitable to and

used for the purpose of such railroad at any time after the expiration

of ten years from the date when operation of any part of such railroad

shall begin upon paying an amount for such plant and property as

property, excluding any value for the franchise, which amount shall not

exceed actual cost of such plant and property, plus fifteen per centum

thereof, and shall decrease under provisions of the grant as the

franchise continues so that at the end of the full term of the grant no

amount shall be paid except for equipment as hereinafter provided. The

grant shall provide a method of ascertaining the amount to be paid for

such plant and property upon termination by the city of such franchise

and for the equipment of such railroad at the end of the full term of

the grant. The grant may provide for determining from time to time, in

default of agreement, by arbitration or by the court, a valuation of

such plant and property, or any part or portion thereof, for any purpose

under such grant. The grant shall make adequate provision for lien upon

plant and property and by way of penalty or forfeiture of the grant and

any construction pursuant thereto or otherwise to secure compliance with

the terms of such grant, efficiency of service at reasonable rates and

the maintenance of the property in good condition throughout the full

term of the grant.

d. The grant shall provide that any and all income and increase

derived by the grantee or his assignee or any successive holder of the

grant or on his or their behalf in any manner from or in connection with

the enterprise of constructing, equipping and operating such railroad,

after deducting operating expenses, taxes, payments to reserve and

amortization funds as provided for in such grant, and not exceeding six

per centum interest per annum payable quarterly upon the actual cost of

construction and equipment of such road, shall be divided share and

share alike between the grantee and the city, and that upon the

expiration of the period specified in the grant the franchise shall end

and the plant and property suitable to and used for the purposes of such

railroad, except equipment as defined in the grant, shall become the

property of the city without compensation to the grantee, and that such

equipment shall also become the property of the city upon payment to the

grantee of an amount to be ascertained as provided in the grant. The

grant may also provide for assuring that in case a new grant of a

franchise to maintain and operate such railroad is made after any such

determination of such franchise and purchase and taking of such plant

and property pursuant to such notice or after the expiration of the full

term of the grant, that the title to and possession of the plant and

property so taken and of the equipment at the end of such full term may

be transferred directly to the new grantee upon his paying the amount

required as aforesaid. At any time within one year prior to the date

when the franchise shall be terminated or forfeited by the city or shall

come to an end by the expiration of its full term or at any time

thereafter, the board of transportation with the approval of the board

of estimate and the mayor, may grant a new franchise under the

provisions of this section for the construction wholly or in part of

such railroad and for the maintenance and operation thereof from and

after the date of such termination, forfeiture or end of such grant, or

the board of transportation, with like approval, may enter into

contracts for the equipment, maintenance or operation of such railroad,

or may itself operate such road, after such termination, forfeiture or

end of such grant as provided in sections thirty-two, forty, forty-one,

forty-two and forty-three of this chapter in respect of railroads

constructed at the public expense.

e. A certificate shall be prepared by the board of transportation

attested by its seal and the signature of its presiding officer, setting

forth in detail the action taken and grant made by such board with

respect to such railroad, and the terms and conditions aforesaid which

shall be delivered to such grantee upon the receipt by such board of a

written acceptance of the terms, conditions and requirements of the

grant duly executed by such grantee so as to entitle it to be recorded.

Such certificate shall be filed in the office of the secretary of state

and a duly certified copy thereof shall be filed in the office of the

clerk of the county in which such railroad or some part thereof is

situated. Upon the fulfillment by such grantee of such terms, conditions

and requirements enumerated in such certificate as such board may

require to be fulfilled as a condition precedent to commencing such

work, the grantee shall in such cases possess in addition to its

existing powers, all the powers conferred by this chapter upon

corporations receiving a grant of a franchise thereunder with respect to

the railroad so authorized to be constructed and when such certificate

shall have been duly filed, such grantee may construct such railroad

with all the rights provided in such certificate but in every case

subject to all the provisions and conditions of such certificate. Such

certificate, when delivered to and accepted by such grantee, shall be

deemed to constitute a contract between the city and such grantee

according to the terms of such certificate. Such contract shall be

enforceable by the board of transportation acting in the name of and in

behalf of the city, or by the grantee according to the terms thereof,

but subject to the provisions of this chapter. The terms of such

contract, from time to time with like approval and with the consent of

the grantee, may be modified by such board.

f. Any existing railroad corporation owning or actually operating a

railroad wholly or in part within the limits of the city and approved by

such board shall be competent and is hereby authorized to bid for and

receive any grant pursuant to the provisions of this section. If the

successful bidder or bidders be not a corporation, then a corporation

may be organized under the railroad law by him or them for the purpose

of receiving such grant and of constructing, equipping, maintaining and

operating a railroad pursuant to the terms of any such certificate and a

corporation so organized shall not be required to procure the

certificate or approval of the public service commission as provided for

in section nine of the railroad law or section fifty-three of the public

service law.

g. After the proposed certificate shall have been prepared and

approved as to the form thereof by the board of estimate, the board of

transportation, prior to the granting of any such franchise, shall

advertise for proposals or bids for such franchise under such

certificate by a notice to be printed once a week for two successive

weeks in not less than two daily newspapers published in such city, and

in such newspapers published elsewhere than in such city as such board

shall determine, and may require security from bidders for the execution

of their bids if accepted. Such notice shall set forth the points within

such city between which such railroad is proposed to be operated, the

route in general terms to be followed, and such other details and

specifications as the board shall deem proper, and shall refer to such

proposed certificate and such route, detailed plans and specifications

on file in its office for further details. Such notice shall state the

time and place at which proposals will be received and opened. All such

proposals shall refer to such proposed certificate and shall offer the

terms upon which any such proposer or bidder shall undertake to

construct, maintain, equip and operate such railroad in so far as to set

forth all or any of the following matters as may be required by the

board of transportation:

1. The annual interest desired upon the cost of construction and

equipment prior to payment of any part of income or increase to the

city;

2. The period at the end of which the plant and equipment except

equipment as aforesaid shall become the property of the city without

compensation;

3. The amount of money for which galleries for subsurface structures

to be paid for with public money in connection with the construction of

such railroad will be constructed;

4. Such transfer conveniences with other roads, specifications as to

the cost of construction and other provisions as such board may think

proper to require.

The board of transportation shall attend at the time and place

specified and shall publicly open all proposals that shall have been

received, but such board shall not be bound to accept any proposals so

received, but may reject all such proposals and readvertise for

proposals in the manner hereinbefore provided, or may accept any of such

proposals as will, in the judgment of such board, best promote the

public interest, and grant a franchise and execute such certificate

accordingly, subject to the approval of the board of estimate and of the

mayor.

h. Every such corporation shall have power:

1. To take and hold such voluntary grants of property as shall be made

to it, to aid in the construction, maintenance and accommodation of its

railroad, but the real estate received by voluntary grant shall be held

and used for the purposes of such grant only.

2. To purchase, lease, hold and use all such property as may be

necessary for the construction and maintenance of its railroad and

necessary devices and appurtenances.

3. To cross, intersect, join and unite its railroad with any other

railroad at any point on its route and upon the grounds of such other

railroad company, with the necessary devices and appurtenances.

4. To take and convey persons and property on its railroad by the

power or force of electricity or compressed air so used as to involve no

combustion or impurity of air in tunnels or cars or any other power of

like description approved by the board of transportation, and to receive

compensation therefor.

5. To enter upon and underneath the several streets designated by the

board of transportation and enter into and upon the soil thereof; to

construct, maintain, operate and use, in accordance with the plan

adopted by such board, a railroad upon the route and to the points

decided upon, and to secure the necessary foundations and erect the

structures which may be required to secure safety and stability in the

construction and maintenance of the railroads constructed upon the plan

adopted by such board, and which may be necessary for the operation

thereof, except that nothing in this chapter shall authorize the

construction of a railroad crossing the track of any steam railroad in

actual operation at the grade thereof. It shall be lawful to make such

excavations and openings along the route through which such railroad

shall be constructed as shall be necessary from time to time. In all

cases the surface of such streets around such foundations, and

structures shall be restored to the condition in which they were before

such excavations were made, as near as may be, and under the direction

of the proper local authorities. In all cases the use of the streets

designated by such board, and the right of way through them, for the

purpose of a railroad, as herein authorized and provided, shall be

considered, and is hereby declared, to be a public use, consistent with

the uses for which the streets are publicly held. Such corporation shall

not have the right to acquire the use or occupancy of public parks or

squares, or the use or occupancy of any of the streets, except such as

may have been designated for the route of such railroad, and except such

temporary privileges as the proper authorities may grant to such

corporations to facilitate such construction.

i. Every corporation which shall have taken or shall take or hold any

franchise or contract to construct, maintain and operate a railroad

under the provisions of this chapter shall have the right to acquire and

hold such property or property rights appurtenant thereto, as may be

necessary to enable it to construct, maintain and operate such railroad

and such as may be necessary for devices and appurtenances. In case any

such corporation cannot agree with the owner or owners of such property

it shall have the right to acquire title to the same in pursuance of the

terms and in the manner prescribed in the condemnation law. The

existence of an easement acquired or reserved by any such corporation

for any of the purposes specified in this section, shall not be deemed

an incumbrance under any law relating to investments in mortgages upon

real property by corporations, trustees, executors, administrators,

guardians or other persons holding trust funds, but the effect of such

an easement upon the real property which it affects, shall be taken into

consideration in determining the value thereof. When any corporation

authorized under any provision of this chapter to construct, maintain or

operate an additional track added to any elevated railroad in existence

on the sixteenth day of June, nineteen hundred ten, or to construct,

maintain or operate an extension of such railroad or to acquire terminal

or other facilities for any such railroad or extension shall have duly

instituted condemnation proceedings, under the provisions of the

condemnation law, by serving a petition and notice in such proceedings,

to acquire such property or property rights appurtenant thereto, as may

be necessary to construct, maintain or operate such additional track,

extension or terminal or other facilities, the court, upon due hearing

had at a special term of the supreme court held in the judicial district

where the property or some portion of it is situated, and upon notice in

such proceedings served upon all the owners of the property at least

eight days prior to such hearing, in the manner prescribed in the

condemnation law for the service of the petition and notice, may, where

it appears to its satisfaction that the public interests will be

prejudiced by delay, direct that the plaintiff be permitted to enter

immediately upon the property to be taken and devote it temporarily to

the public use specified in the petition, upon depositing with the court

such sum or giving an undertaking in such amount and subject to such

conditions as the court may deem sufficient to secure the payment of the

award that may be made, and the costs and the expenses of the

proceedings and for the payment of any damages which the defendant in

such proceedings may have sustained by such entry upon and use of his

property. The sum so deposited or undertaking so given shall be at least

equal to twice the assessed valuation, if any, of any real estate to be

so taken. The court, at any time, upon like hearing and notice given by

either party to such proceedings, may give such further directions in

respect to any such deposit, undertaking or condition as it may deem

just and proper, and in every case the owner may conduct the proceedings

to a conclusion if the plaintiff delays or neglects to prosecute the

same and if the sum so deposited or security so given shall be

insufficient to pay such award and costs, expenses and damages, and if

the plaintiff shall fail to pay the amount of such deficiency, judgment

shall be entered against the plaintiff for the deficiency and the

possession of the property shall be restored to the defendant.

Acquisition of property. a. For the purpose of constructing or

operating any road for the construction or operation of which a contract

shall have been made by the board of transportation or any of its

predecessors, or for the purpose of constructing or operating any part

of any railroad or portion thereof relocated under the provisions of

section eighty-two of this chapter, for the construction of which a

contract shall have been made pursuant to such section, including

necessary stations and station approaches, or for the purpose of

operating or securing the operation thereof free of interference and

right of interference and of action and right of action for damages and

otherwise, whether by abutting owners or others, or to provide, lay or

maintain sub-surface structures, such board for and in behalf of such

city may acquire, by conveyance or grant to such city to be delivered to

such board and to contain such terms, conditions, provisos and

limitations as such board shall deem proper, or by condemnation or other

legal or other proceedings, as provided in this chapter, any property

rights and any and all rights, privileges, franchises and easements,

including such of any thereof as may be already devoted to a public use,

whether of owners or abutters, or others to interfere with the

construction or operation of such road or to recover damages therefor,

which, in the opinion of the board, it shall be necessary to acquire or

extinguish for the purpose of constructing and operating such road free

of interference or right of interference. Any such city also may

exercise any of the rights to acquire such property rights upon the

validation of a route in the manner prescribed in sections twenty and

twenty-one of this chapter, provided that if any such right shall be so

exercised prior to the time a contract for construction or operation of

such route shall be entered into, the board of estimate and the mayor,

as a condition precedent, shall approve such acquisition. An option

granted to the board of transportation or to the city to purchase any

property rights or an award in a condemnation proceeding for a period

not to exceed ninety days in case of purchase of property rights, and

for a period not to exceed six months in case of purchase of such an

award shall not be withdrawn or cancelled during the period therein

named. Upon the trial of a condemnation proceeding on behalf of the

board of transportation under the provisions of this chapter, no

evidence shall be admitted, as against an owner of an offer made by or

on behalf of such owner for the sale of his real estate or any part

thereof to such board for or on behalf of such city, or for the sale or

assignment of any right and title to an award, or any part thereof, to

be made for such real estate, or any part thereof, in the proceeding;

nor shall any evidence be received, as against such city, of any offer

made to such owner by the board for or on behalf of the city for the

purchase of such real estate, or any part thereof, or for the purchase

of any award or any part thereof, to be made for such real estate, or

any part thereof, in the proceeding.

b. Where any contractor for the construction or operation of such

railroad shall require any property for such construction and operation,

such property shall be deemed to be required for a public purpose; and

with the approval of the board of transportation such property may be

acquired by such contractor in all respects as such property may be

acquired by such board for the city. All proceedings to acquire such

property shall be conducted under the direction and subject to the

approval of such board. It shall be the duty of the board whenever any

property which the city shall have acquired as provided in this chapter

shall be unnecessary for rapid transit purposes, to surrender the same

for other public use or purpose of the city or to sell and convey the

same in behalf of the city, provided, however, that no such sale or

conveyance shall be made except with the approval of the board of

estimate, and provided further that the proceeds of any such sale or

conveyance, together with all rent received for the use, occupation or

lease of any property acquired as provided in this chapter, shall, under

the direction of the board of transportation, be applied either to the

acquisition of other property necessary for rapid transit purposes or,

in the case of rent so far as necessary, to the maintenance of property

acquired for rapid transit purposes or shall be applied in all respects

as the payments of rental to be made by the contractor as provided in

this chapter. Whenever the city shall have acquired any property rights

as provided in this chapter and shall have thereafter acquired such

property in fee, such property rights shall be deemed to be merged in

such fee estate. Whenever any property rights which the city shall have

acquired as provided in this chapter in or to any property shall be

unnecessary for rapid transit purposes, the board of transportation may

sell and release the same in behalf of the city to the owner of such

property, provided, however, that no such sale or release shall be made

except with the approval of the board of estimate. Whenever any property

shall be sold as provided in this chapter, the grant or conveyance may

contain such terms, conditions, provisos and limitations as the board of

transportation may deem proper, and such board, in and by such grant or

conveyance may make such covenants and give such warranty in behalf of

the city as such board may deem proper, including covenants as to the

size, weight or character of building which any such rapid transit

railroad for which an easement in such property is reserved will

support. In the case of any such sale or conveyance such board also may

accept in part payment for the property sold a bond or other obligation

to the city secured by purchase money mortgage on such property, such

bond or other obligation and such mortgage to contain such terms and

conditions as such board may deem proper, including in the discretion of

the board provision for the payment of the amount of such bond or other

obligation in installments.

c. The board of estimate with the approval of the mayor, upon the

requirement of the board of transportation, may establish the grade of

any street or change the grade of any street for the purpose of

constructing or operating a rapid transit railroad or its appurtenances.

There shall be no liability to abutting owners for changing for such

rapid transit purposes a grade once established by lawful authority,

except where the owner of the abutting property has built upon or

otherwise improved the property in conformity with such established

grade, and such grade is changed after such building or improvements

have been made. In such cases damages occasioned by such change of grade

to such buildings and improvements shall be ascertained as provided in

this chapter. A grade shall be deemed established by lawful authority

within the meaning of this subdivision where it was originally adopted

by the action of the public authorities, or where the street or avenue

has been used by the public as of right for ten years and been improved

by the public authority at the expense of the public or of the abutting

owners. In case the grade of any such street shall be changed for the

purpose of constructing and operating a rapid transit railroad or its

appurtenances and graded according to the new grade, the board of

transportation shall transmit to the board of assessors a certificate

stating that the grade of the street has been changed for the purpose of

constructing and operating a railroad or its appurtenances, and

accompany such certificate with a plan indicating the original grade,

the changed grade and the buildings or other improvements affected

thereby. It shall be the duty of the board of assessors to cause to be

published at the expense of the board of transportation in the City

Record, or other official publication of the city, daily for two weeks,

and in two daily newspapers published in the city, twice in each week

for two weeks, immediately prior to such hearing, a notice which shall

contain a request for all persons claiming to have been injured by such

change of grade, to present, in writing to the secretary of the board of

assessors, their claims. Such notice shall specify a place where, and a

time when the board of assessors will receive evidence and testimony of

the nature and extent of such injury. After hearing and considering such

testimony and evidence, the board of assessors shall make such awards

for such loss and damage, if any, as it may deem proper. The proceedings

and determination of the board of assessors shall be subject to review

by the board of revision of assessments of the city, as in the case of

other awards of damages for change of grade of streets in such city. The

city shall, within four months after the making of any such award, pay

to the respective parties entitled thereto the amount of such award, and

in case of its neglect or failure to pay the same at the expiration of

such period, and after demand, it shall be lawful for the persons

entitled to the same to sue for and recover the amount of their awards.

In case any such award or compensation shall be paid to any person not

entitled thereto, when the same ought to have been paid to some other

person, it shall be lawful for the person to whom the same ought to have

been paid to sue for and recover the same with interest and costs, as so

much money had and received to his use by the person to whom the same

shall have been so paid; provided that when the name of the owner or

party is not set forth in the report of the assessors, or where such

owner, party or person being named therein shall be under legal

disability or absent from the city, or after diligent search cannot be

found, or his title to receive such award is disputed, it shall be

lawful for the city to pay the sum mentioned in such report, or that

would be coming to such owner, party or person, to the comptroller to be

secured, disposed of and invested as the supreme court shall direct, and

such payment shall be as valid and effectual in all respects as if made

to such owner, party or person, himself, according to his just rights,

if he had been known and had not been under legal disability.

d. Whenever the board of transportation for and in behalf of the city

shall have acquired or shall hereafter acquire an easement in property

by conveyance or grant for the purpose of the operation or construction

of a railroad, such board in behalf of the city and as part

consideration for the grant or conveyance of the easement, may enter

into an agreement with the grantor of such easement or right of way,

giving to such grantor or his assigns, the right of lateral or other

support through, in or under such property, or any adjoining lands or

space occupied by such railroad for any building erected or to be

erected upon the land over which the easement or right of way has been

obtained for the support and maintenance of any such building, provided

that any structure that shall be built for the support of any such

building shall be approved by such board and shall not extend in or

under any street beyond the curb lines as fixed by the appropriate

authority of such city.

e. The board of transportation temporarily may let or allow the use

and occupation of any property acquired as provided in this chapter, and

receive rent therefor between the time of the acquisition thereof and

the time when it shall be required for construction or operation of such

road, or shall be sold as aforesaid, and in case of default of any

tenant may prosecute any action or proceeding to recover possession of

the premises so let or used and occupied. The board of transportation,

with the approval of the board of estimate, also may lease any property

acquired as provided in this chapter for the highest marketable rental

at public auction or by sealed bids, and always after public

advertisement for a period of at least fifteen days in the City Record,

for such term not exceeding twenty-one years and upon such conditions as

the board of transportation may deem proper, and, in the discretion of

such board, may provide in such lease for one renewal of not more than

twenty-one years. All rent received for the use, occupation or lease of

any such property shall be paid to the comptroller and shall be applied

in like manner as the proceeds of sales of property acquired hereunder

are directed to be applied in subdivision b of this section.

f. Whenever any property owned by the city and in use by any

department of the city including property acquired for park purposes

shall be deemed available by the board of transportation for the purpose

of operation or construction of a railroad and wherever any property

acquired for and on behalf of the city by such board or any of its

predecessors shall be deemed available by the head of any department of

the city for the use of such department, the board of estimate,

notwithstanding any provision of law, may authorize an exchange of such

properties at a valuation and upon such terms as may be agreed upon by

the board of transportation and the board of estimate. Whenever any

property of the city shall have been turned over by any department of

the city to the board of estimate to be disposed of according to law,

such property or any portion thereof, upon the application of the board

of transportation, may be turned over to the board of transportation at

a valuation and upon such terms as may be agreed upon by such board and

the board of estimate. Notwithstanding any provision of law, such

property shall be used for the purpose of operation or construction of a

railroad or any other purpose of the board of transportation under this

chapter. The board of estimate may accept in payment or in part payment

therefor property previously acquired by the board of transportation for

and on behalf of the city which is no longer required for the purpose of

operation or construction of a railroad or other purpose of such board

under this chapter, but which in the judgment of the board of estimate

may be used by the city or one or more of its departments.

g. The existence of an easement acquired for and in behalf of a city

under this chapter shall not be deemed an incumbrance, under any law

relating to investments in mortgages upon real property by corporations,

trustees, executors, administrators, guardians or other persons holding

trust funds, but the effect of such an easement upon the real property

which it affects shall be taken into consideration in determining the

value thereof.

Right of board of transportation to enter upon property. It

shall and may be lawful for the board of transportation, and for all

persons acting under its authority, to enter in the day time into and

upon any and all property which it shall deem necessary to be acquired,

or to which there may be appurtenant property rights which it shall deem

necessary to be acquired or extinguished by the city, for the purpose of

making the maps or surveys provided for by section fifty-two, and also

to enter in like manner and for the same purpose upon any property

adjacent to and within five hundred feet of the property to be so

surveyed.

Maps and plans to be filed. The board of transportation shall

cause three similar maps or plans to be made of each parcel of property

which it may deem necessary so to be acquired, or to which there may be

appurtenant property rights necessary so to be acquired or extinguished,

designating each of such parcels by a number. Upon each map or plan so

made or in a memorandum accompanying it and to be deemed part thereof

such board shall cause to be clearly indicated the particular property

rights to be acquired or extinguished for the purposes of this chapter,

together with the assessed valuation of the fee on the tax rolls of the

city for each of the three years preceding the date of the approval and

adoption of such map or plan by such board, in relation to each and

every piece or parcel of property described upon such map or plan. Such

board shall have power to cause a triplicate set of maps or plans and

memoranda as herein provided for to be made as often and at such times

as they shall determine, and each set of maps or plans and memoranda so

made shall contain the particulars above enumerated within such district

as such board shall in each case provide. The maps or plans and

memoranda provided for by this section, when approved and adopted by

such board, shall have written thereon a certificate of such approval,

signed by the members of the board adopting and approving it, and one

copy thereof shall be filed in the office of the president of the

borough, there to remain as a public record, and the other two sets of

maps or plans and memoranda shall be transmitted to the corporation

counsel. Such board, from time to time, may make and file further maps

or plans and memoranda amending those already filed, but not so as to

defeat or impair any property or interest which shall have been already

acquired, or to revive any property right which may have been already

extinguished by the city.

Corporation counsel to acquire property. a. Whenever and as

often as the board of transportation shall deem it to be necessary and

proper that the city should acquire any such property and shall have

caused such maps or plans and memoranda specifying and defining the

property to be acquired, or to which are appurtenant the property rights

to be acquired or extinguished, to be made and shall have certified,

filed and transmitted the several copies of such maps or plans as

prescribed in section fifty-two of this chapter, such board may direct

the corporation counsel to take legal proceedings to acquire the same

for the city, and the corporation counsel shall thereupon take legal

proceedings as provided in this chapter.

b. The corporation counsel, either in person or by such counsel as he

shall designate for the purpose, shall appear for and protect the

interests of the city in all such proceedings. He shall furnish the

court with such necessary clerks and other employees as it may require.

All necessary expenses incurred by the corporation counsel in and about

the proceedings provided for by this chapter for the proper presentation

and defense of the interests of the city, shall be paid by the

comptroller out of the funds referred to in section sixty-nine of this

chapter. Property owners appearing in proceedings under this chapter

shall not be entitled to recover counsel fees, costs, disbursements or

allowances.

Disposition of maps. The corporation counsel shall cause one of

the maps or plans, so transmitted to him, to be filed in the office of

the register of the county, or if there be no such register, then in the

office of the county clerk of the county in which the property covered

by the map is situated. The map, hereinafter denominated the third map,

being the second of the two transmitted to the corporation counsel,

shall be disposed of as provided in section sixty-five of this chapter.

Notice of intention to condemn property. The corporation

counsel shall give or cause to be given notice by publication in two

public newspapers published in the city, of his intention to make

application to the such court that the compensation which should justly

be made to the respective owners of or persons interested in the

property proposed to be taken or extinguished by such proceeding be

ascertained and determined by the court without a jury. Such notice

shall state the time and place of such application, shall briefly state

the object of the application, and shall briefly describe the property

sought to be acquired or affected, and refer to a fuller statement to be

filed in the office of the board of transportation, in which shall be

set forth the location and boundaries of the several lots or parcels of

property, and the property rights sought to be taken or affected, and a

brief statement as to each of such lots or parcels, of the property

rights therein or appurtenant thereto sought to be acquired or

extinguished, with a reference to the dates and places of filing such

maps or plans and memoranda, shall be a sufficient description of the

property sought to be so taken or affected. Such notice shall be

published in such newspaper twice a week for two weeks immediately

previous to the time fixed in the notice for the presentation of each

petition.

Application to condemn property. After such maps shall have

been filed in the office of the register or county clerk, the

corporation counsel, for and on behalf of the city, shall, and he may

from time to time, upon first giving the notice required by section

fifty-five of this chapter, apply to the supreme court at any special

term thereof, to be held in the judicial district in which such county

is situated, to have the compensation which should justly be made to the

respective owners of or persons interested in the property proposed to

be taken or extinguished by such proceedings ascertained and determined

by such court without a jury. Upon each such application he shall

present to the court a petition, signed by a majority of the members of

the board of transportation and verified in the manner prescribed by law

for the verification of pleadings, according to the practice of such

court, setting forth the action or determination theretofore taken or

had by such board with respect to the property to be acquired, and the

filing of such maps or plans and memoranda, and stating the amount or

valuation at which each parcel of the property to be acquired has been

assessed for purposes of taxation on the tax-rolls of the city for each

of the three years preceding the date of the petition, and praying that

the compensation which should justly be made to the respective owners of

or persons interested in the property proposed to be taken or

extinguished by such proceeding be ascertained and determined by such

court without a jury. Such petition shall contain a general description

of all the property to, or in or over or appurtenant to which any

property right is sought to be acquired, or extinguished, and of every

property right sought to be acquired by the city for public purposes,

each lot or parcel being more particularly described by a reference to

the number of such lot or parcel as given on such maps, and the property

right sought to be acquired, or extinguished, to or in or over or

appurtenant to each of such lots or parcels, shall be stated in such

petition.

Procedure in case property is situated in two or more counties.

If the property to be acquired or extinguished in any proceeding be

situated in two or more counties, the maps or plans and memoranda

required to be filed by section fifty-four of this chapter shall be so

filed in the respective offices therein provided in each county in which

such property or any part thereof is situated, and the application to

condemn such property may be made to the supreme court at any special

term thereof held in any judicial district in which any one of such

counties is situated. If the property to be acquired or extinguished in

any proceeding be situated in two judicial districts the application to

condemn such property may be made in either judicial district. The order

granting the application to condemn in any such proceeding shall be

entered, and the final decree therein shall be filed in the office of

the clerk of any one of the counties in which a part of the property to

be thereby acquired or extinguished is situated, as directed by the

court, and a certified copy of the order granting the application to

condemn and a certified copy of the final decree shall be filed in the

office in which instruments affecting real property are required to be

recorded in each county in which any part of the property thereby

acquired or extinguished is situated. In all other respects the

proceeding shall be conducted in the same manner as a proceeding

affecting property situated in only one county.

Order granting application to condemn. At the time and place

mentioned in such notice, unless the court shall adjourn such

application to a subsequent date, and in that event at the time to which

it may be adjourned, the court, upon due proof to its satisfaction of

the publication aforesaid and upon filing the petition, shall enter an

order granting the application, which order shall be filed in the office

of the clerk of the county in which the property to be acquired is

situated. The corporation counsel shall cause to be published in two

public newspapers published in the city twice a week for two weeks a

notice containing a general description of the property to be acquired

or affected and requiring every owner of or person in any way interested

in any property taken or extinguished in such proceeding to file with

the clerk of the court of the county in which such property is situated,

on or before a date specified in the notice, a written claim or demand

duly verified in the manner provided by law for the verification of

pleadings in an action, setting forth the property owned by the claimant

and his post office address, together with an inventory or itemized

statement of the fixtures, if any, for which compensation is claimed. In

case such claim or demand for compensation in respect of any fixtures is

made by a lessee or tenant of the real property to be acquired, a copy

of such verified claim or demand, together with such inventory or

itemized statement, shall be served upon the owner of such real property

or his attorney. The claimant or his attorney shall at the same time

serve on the corporation counsel a copy of such verified claim. The

proof of title to the property to be acquired or extinguished in all

cases where it is undisputed, together with proof of liens or

encumbrances thereon, shall be submitted by the claimant to the

corporation counsel or to such assistant as he shall designate. Such

corporation counsel shall serve on all parties or their attorneys who

have served on him verified claims a notice of the time and place at

which he will receive such proof of title. In all cases where the title

of the claimant is disputed, it shall be the duty of the court to

determine the ownership of such property upon the proof submitted to the

court during the trial of the proceeding. The court shall also have

power to determine all questions of title incident to the trial of the

proceeding. After all parties who have filed verified claims as herein

provided have proved their title or have failed to do so after being

notified by the corporation counsel of the time and place when and where

such proof of title would be received by him, the corporation counsel

shall serve upon all parties or their attorneys who have appeared in the

proceeding a notice of trial thereof and file a notice of issue with the

clerk of the court of the county in which the trial is to be had. The

trial shall be had in such county within the judicial district in which

the property affected by the proceeding is situated as the corporation

counsel shall designate in the notice of trial. The notice of trial

shall be served at least ten days before, and the note of issue shall be

filed at least eight days before the date for which the same is noticed

for trial. The note of issue shall briefly state the title of the

proceeding, the date and place of the entry of the order granting the

application to condemn, the names and addresses of the parties who have

filed claims, the names and addresses of their respective attorneys, and

a brief statement as to the extent of the property to be acquired. The

clerk of the court must thereupon enter the proceeding upon the proper

calendar according to the date of the entry of the order granting the

application to condemn. When notice of trial has been served and note of

issue filed, the proceeding must remain on the calendar until finally

disposed of. It shall be the duty of the justice trying any such

proceeding to view the property to be thereby acquired or extinguished

and if he shall deem a view of the property in the vicinity of the

property to be acquired or extinguished necessary or useful, he shall

make such view. Where title to real property being acquired in a

proceeding shall have been vested in the city, and buildings or

improvements situated thereon shall have been removed or destroyed by

the city or the board of transportation or pursuant to the authority of

either the city or the board prior to the trial of the proceeding, and

thereby the justice trying the proceeding is deprived of a view of the

buildings or improvements so removed or destroyed, the fact that the

justice did not have a view thereof shall not preclude the court from

receiving on the trial of the proceeding testimony and evidence as to

the damage sustained by the claimant by reason of the taking thereof

when offered on behalf of either the claimant or the city.

Examination before trial. A proceeding by the board of

transportation to acquire title to property or any right therein for the

purposes of this chapter by condemnation shall be deemed a special

proceeding, in which testimony may be taken by deposition pursuant to

the provisions of the civil practice law and rules and subject to the

provisions of this section. Such deposition may be taken upon any

question or issue in the proceeding and for the purpose of obtaining

testimony as to any sale or lease as described in section sixty of this

chapter, at the instance of the corporation counsel or of any owner or

at the direction of the court at any time after the expiration of the

date fixed for filing claims. Any owner desiring to obtain testimony by

deposition shall give at least five days' notice or, if service is made

through the post office, at least eight days' notice to the corporation

counsel and to all other owners or their attorneys who have duly filed

their verified claims. If the corporation counsel shall desire to obtain

testimony by deposition he shall give like notice to all owners or their

attorneys who have duly filed and served on him their verified claims.

For the purpose of any such examination before trial brought on by an

owner and noticed for and held at an office of the corporation counsel

in the borough in which the real property is situated or at such other

place as the corporation counsel shall designate, the corporation

counsel, at the expense of the city, shall provide proper stenographic

service and shall furnish to the owner bringing on such examination a

copy of the typewritten transcript of such examination, duly certified

by the officers before whom it was taken. In all other cases, the party

bringing on such examination shall at his own cost and expense provide

proper stenographic service and shall furnish to the corporation counsel

two copies of the typewritten transcript of such examination duly

certified by the officer before whom it was taken. The deposition of a

witness need not be subscribed by him, if such subscription shall be

waived by the parties appearing upon his examination. The corporation

counsel, at the office address subscribed by him upon the papers in the

proceeding, from and after the date of his receipt thereof, shall keep

on file, available for inspection by all parties to the proceeding a

certified copy of each deposition taken in the proceeding.

Trial; evidence of value. a. Upon the trial, evidence of the

price and other terms upon any sale, or of the rent reserved and other

terms upon any lease, relating to any of the property taken or to be

taken or to any other property in the vicinity thereof shall be

relevant, material and competent, upon the issue of value or damage and

shall be admissible on direct examination, if the court shall find:

1. That such sale or lease was made within a reasonable time of the

vesting of title in the city,

2. That it was freely made in good faith in ordinary course of

business, and

3. In case such sale or lease relates to other than property taken or

to be taken, that it relates to property which is similar to the

property taken or to be taken.

b. No such evidence shall be admissible as to any sale or lease, which

shall not have been the subject of an examination before trial either at

the instance of the city or of an owner:

1. Unless at least twenty days before the trial the attorney for the

party proposing to offer such evidence shall have served a written

notice in respect of such sale or lease. Such notice shall specify the

names and addresses of the parties to the sale or lease, the date of the

making thereof, the location of the premises, the office, liber and page

of the record thereof, if recorded, and the purchase price or rent

reserved and other material terms; or

2. Unless such sale or lease shall have occurred within twenty days

before the trial.

Such notice by the corporation counsel shall be served upon all owners

or their attorneys who have appeared in the proceeding; or if served on

behalf of an owner, shall be served upon the corporation counsel and

upon all other owners or their attorneys who have appeared in the

proceeding. The testimony of a witness as to his opinion or estimate of

value or damage shall be incompetent, if it shall appear that such

opinion or estimate is based upon a sale or lease of any of the property

taken or to be taken or of any of the property in the vicinity thereof,

which shall not have been the subject of an examination before trial,

unless it shall have been specified in a notice served as aforesaid or

shall have occurred within twenty days before the trial.

c. Upon the trial, no map or plan of proposed streets, drains or sewers

for the subdivision and improvement of any property, nor any drawing or

other specification of excavation or filling or piling or of any other

proposed structure above or under ground deemed necessary or proper to

provide a foundation for a suitable or adequate improvement or of any

other structure or improvement not existing on the property on the date

that title thereto may vest in the city nor any oral or written estimate

of cost or expense of constructing the streets, drains or sewers in

conformity with such map or plan, nor any oral or written estimate of

the cost of making such excavation or filling or piling or of

constructing any such other proposed structure or improvement in

conformity with such drawing or other specification thereof, nor any

evidence of value or damage based upon any of the foregoing, shall be

received in evidence, unless the party offering the same in evidence

shall have served upon the adverse party, at least thirty days prior to

the trial, a notice of intention to offer such evidence on the trial and

of the particulars thereof, including a true copy of the map or plan or

drawing and other specification and estimate of cost or expense to be so

offered in evidence, provided, however, that when offered such evidence

shall be subject to objection upon any legal ground.

Order to expedite proceeding. At any time after the date of

entry of the order granting the application to condemn the corporation

counsel or any owner may apply to the court for an order directing any

owner or the corporation counsel, as the case may be, to show cause why

further proceedings under this article on the part of such owner or

owners or of the corporation counsel should not be expedited, and upon

the hearing directed by such order to show cause the court, in its

discretion, may make an order directing that such proceedings be

expedited in the manner stated therein and also making such further

directions with respect to the particulars shown upon the application as

shall be just and proper in the premises.

Time when city becomes seized. Upon the date of the entry of

the order granting the application to condemn, the city shall be and

become seized and possessed in fee or absolute ownership of all those

parcels of property and property rights which are in the maps or plans

and memoranda referred to in section fifty-two of this chapter,

described as parcels of property or property rights which are to be

acquired, and also shall become seized and possessed of all the property

rights appurtenant to any lots or parcels of property indicated on such

maps or plans as parcels in regard to which it is deemed necessary to

acquire such rights, or such rights shall be extinguished, as the case

may be. The board of transportation, immediately or at any time

thereafter, may take possession or enter into the enjoyment of such

property or of any part thereof, without any suit or proceeding at law

for that purpose. Such board, or any person acting under its authority,

may enter upon and use, occupy and enjoy all the parcels of property and

all the property rights appurtenant to any of the parcels of property

and all property rights described on such maps or plans or in such

memoranda, for any of the purposes authorized and provided for by this

chapter. But on the entry of such order granting the application to

condemn, the city shall be and become forthwith liable to the respective

owners or persons interested in the several parcels of property and the

several property rights appertaining thereto, and of such property

rights acquired as aforesaid, for the true and respective values

thereof, together with interest thereon from the time of the entry of

such order, provided, however, that no such interest shall be payable to

any owner or person interested in any such property or property right

during any period during which the city or such board may by any

resistance, whether by legal proceeding or otherwise, of such person or

with his authority, be prevented from taking possession thereof or

enjoying the same.

Partial payment of awards. In any proceeding instituted

pursuant to the provisions of this chapter for the acquisition of title

to property by the city, in which title thereto shall have become vested

in the city by virtue of the entry of an order in compliance with

section sixty-two of this chapter, the city shall be authorized to pay

to the person entitled to an award for property acquired in such

proceeding, in advance of the final determination of his damages, a sum

equal to seventy-five per centum of the assessed valuation of such

property less the liens and encumbrances of record thereon. Before any

such advance payment shall be made the comptroller shall procure the

certificate of the corporation counsel showing that the person to whom

payment is to be made is the person legally entitled to receive the

same. If the city shall authorize a partial payment in advance to any

person entitled to an award, interest on the sum so authorized to be

paid in advance shall cease to run five days after such person shall

have been notified by mail or otherwise that the comptroller is ready to

pay the same. In case the person entitled to an award at the date of the

vesting of title to the property in the city shall have transferred or

assigned his claim, such transfer or assignment made by him, or by his

successor in interest or legal representative, shall not become binding

upon the city unless the instrument evidencing such transfer or

assignment shall have been executed and filed in the office of the

comptroller as provided in this chapter, prior to any such advance

payment. When any such advance payment shall have been made, the

comptroller, on paying the awards made for the property acquired, shall

deduct from the total amount allowed as compensation the sum advanced

plus interest thereon from the date of the payment of such advance to

the date of payment of the final award, and the balance shall be paid as

provided by this article. In case an advance payment shall have been

authorized and the person entitled thereto shall have been notified by

mail or otherwise that the comptroller is ready to make such advance

payment, interest on the amount so authorized to be paid in advance from

a date five days after notification by the comptroller that he is ready

to make such advance payment to the time the person entitled thereto

shall accept such advance payment, shall be deducted by the comptroller

on paying the awards therefor from the total amount allowed as

compensation to such person. Such advance payment shall be made in

accordance with the provisions of section sixty-nine of this chapter.

Payment of liens and encumbrances. Whenever a person would be

entitled to the payment of any advance under section sixty-three of this

chapter and there shall exist mortgages or other prior liens on such

property, the holder of any such prior lien may apply to the city for

payment of his mortgage or encumbrance. If after five days' written

notice given by the corporation counsel to the owner of such property to

file a verified statement of his objections, if any, to the payment of

such mortgage or lien, the corporation counsel shall be satisfied as to

the amount due to such mortgagee or lienor, and shall so certify, the

city shall, to the extent of the moneys available under such section

sixty-three, after providing for prior liens or encumbrances, if any,

pay such mortgage or lien with the interest due thereon.

Tentative decree; objections thereto. The court, after hearing

such testimony and considering such proofs as may be offered, shall

ascertain and estimate the compensation which ought justly to be made by

the city to the respective owners of or persons interested in the

property so acquired or extinguished by such proceeding for the

improvement and shall instruct the corporation counsel to prepare a

transcript of its estimate of damage. Such transcript of estimate shall

be accompanied by the third set of maps or plans and memoranda referred

to in section fifty-four of this chapter and therein denominated the

third set, or a copy thereof, and shall refer to the numbers thereon and

shall state the several sums respectively estimated for each of such

parcels with the names of the owners or persons interested therein as

far as ascertained, together with all of the affidavits and proofs upon

which the same are based. Such transcript shall be signed by the justice

trying the proceeding and filed with the clerk of the county in which

the property affected by the proceeding is situated and when so filed

shall constitute the tentative decree of the court. Upon the filing of

the tentative decree, the corporation counsel shall give notice by

publication twice a week for two weeks in two public newspapers

published in such city of the filing of such tentative decree and that

the city and any person whose rights may be affected thereby and who may

object thereto, or any part thereof, may, on or before a day to be

specified in such notice subsequent to the last publication thereof, set

forth his objections thereto in writing, duly verified in the manner

required by law for the verifiation of pleadings in an action, setting

forth the property owned by the objector and his post-office address,

and file the same with such clerk. The notice shall also state that the

corporation counsel on the date specified therein will apply to the

justice who made the tentative decree to fix a time when he will hear

the parties so objecting. Every party so objecting, or his attorney,

within the same time, shall serve on the corporation counsel a copy of

such verified objections. Upon such application the justice shall fix

the time when he will hear the parties so objecting and desiring to be

heard. At the time so fixed the justice shall hear each person who has

objected to the tentative decree and who may then and there appear and

shall have the power to adjourn from time to time until all persons who

have filed objections and desire to be heard shall be fully heard.

Final decree. After considering the objections, if any, and

making any corrections or alterations in the tentative decree which the

court shall consider just and proper, it shall give instructions to the

corporation counsel as to the preparation of the final decree, which

shall consist of the tentative decree altered and corrected in

accordance with the instructions of the court, together with a statement

of the facts conferring on the court jurisdiction of the proceeding, and

that the amounts set opposite each parcel in the column headed "final

awards" constitute the compensation to which the respective owners of or

persons in any way interested in the property taken or extinguished in

such proceeding are justly entitled to receive from the city and a

statement of the respective owners and interested parties. In all cases

where the owners or persons interested are unknown, or not fully known

to the court, it shall be sufficient to set forth and state in general

terms the respective sums to be allowed and paid to the respective

owners and interested parties without specifying their names or their

estates or interests. The final decree shall be filed in the office of

the clerk of the county where the property affected by the proceeding is

situated.

Payment of awards and expenses. Within four calendar months

after the date of the filing of the final decree of the court, the city

shall pay to the parties entitled thereto the respective sums of money

determined in their favor as set forth in the final decree, with legal

interest thereon from the date of the entry of the order granting the

application to condemn. In case of neglect or default in the payment

thereof within the time aforesaid, the respective persons in whose favor

the same shall be so determined, after application to the comptroller

for payment thereof, may sue for and recover the same, with lawful

interest as aforesaid and costs of suit. No fees or expenses incurred by

the city or the corporation counsel in connection with any proceeding

instituted under this chapter shall be paid until they shall have been

taxed by the court upon five days' notice to the corporation counsel and

upon proof of the nature and extent of the services rendered and

disbursements charged. No unnecessary costs or charges shall be allowed.

All costs, fees, expenses or disbursements to be taxed shall be stated

in detail in the bill of costs and shall be accompanied by such proof of

the reasonableness and necessity thereof as is required by law and the

practice of the court upon taxation of costs and disbursements in other

special proceedings or actions.

Moneys of persons under disability; moneys paid to wrong

persons. Whenever the owner or any person interested in any property

taken or affected in such proceedings or in whose favor any such sum or

compensation shall be determined by the final decree of the court is

under legal disability or absent from such city, and when the name of

the owner or person interested in the property shall not be set forth or

mentioned in the final decree, or when the owner or person interested,

although named in the decree, cannot upon diligent inquiry be found, or

where there are adverse or conflicting claims to the money awarded as

compensation, the city shall pay such award into court to be secured,

disposed of, invested and paid out as the court shall direct, and such

payment shall be as valid and effectual in all respects as if made to

the person entitled thereto. And in default of such payment into court,

the city shall be and remain liable for such award with lawful interest

thereon from the date of the entry of the order granting the application

to condemn. Where an award shall be paid to a person not entitled

thereto, the person to whom it ought to have been paid may sue for and

recover the same, with lawful interest and costs of suit, as so much

money had and received to his use by the person to whom the same shall

have been so paid. Payment of an award to the person named in the final

decree of the court as the owner thereof or person entitled thereto, if

not under legal disability, in the absence of notice in writing to the

comptroller of adverse claims thereto, shall protect the city.

Cost of acquiring property. The moneys necessary and sufficient

to be paid for any property acquired in any manner under the provisions

of this chapter, together with all expenses necessarily incurred in

surveying, locating and acquiring title to such property, and for

preparing the necessary maps and plans in connection therewith, shall be

raised by the city, and all such expenses so incurred in surveying,

locating and acquiring title, and for preparing necessary maps and

plans, and also those incurred as provided in subdivision b of section

fifty-three of this chapter, shall be deemed a part of and included in

the cost of constructing the road, the construction of which rendered it

necessary to acquire the property, in the course of the acquisition of

which such expenses may be incurred.

Amendments of defects. The special term of the supreme court,

in the judicial district in which the property affected by the

proceeding is situated, at any time may amend any defect or informality

in any notice, petition, pleading, order or decree in a proceeding

instituted under this chapter or cause property affected by such defect,

informality or lack of jurisdiction to be excluded therefrom or other

property affected by such defect, informality or lack of jurisdiction to

be included therein, by amendment, upon notice published twice a week

for two weeks in two public newspapers, published in such city, and may

direct such further notices to be given to any party in interest as it

shall deem proper.

Appeal to the appellate division. The city, or any party or

person affected by the proceeding and aggrieved by the final decree of

the court therein, may appeal to the appellate division of the court. An

appeal from the final decree of the court must be taken within thirty

days after notice of the filing of the final decree. Except as herein

otherwise provided, such appeal shall be taken and heard in the manner

provided in relation to appeals from judgments in special proceedings,

and such appeal shall be heard and determined by such appellate division

upon the merits both as to matters of law and fact. The determination

of the appellate division shall be in the form of an order. But the

taking of an appeal by any person shall not operate to stay the

proceedings under this chapter, except as to the particular parcel of

property with which the appeal is concerned. The final decree of the

court shall be deemed to be final and conclusive upon all parties and

persons affected thereby who have not appealed. Such appeal shall be

heard upon the evidence taken by the court, or such part or portion

thereof as the court may certify or the parties to the appeal may agree

upon as sufficient to present the merits of the questions in respect to

which such appeal shall be had. An appeal taken but not prosecuted

within six months after the filing of the notice of appeal, unless the

time within which to prosecute the same shall have been extended by the

court, shall be deemed to have been abandoned, and no agreement between

the parties extending the time within which the appeal may be prosecuted

shall vary the provisions hereof.

Appeal to court of appeals. An appeal to the court of appeals

may be taken by the city or any person or party interested in the

proceeding and aggrieved by the order of the appellate division. Such

appeal shall be taken and heard in the manner provided in relation to

appeals from judgments in special proceedings. An appeal taken but not

prosecuted within six months after the filing of the notice of appeal,

unless the time within which to prosecute the same shall have been

extended by the court, shall be deemed to be abandoned and no agreement

between the parties to the appeal extending the time to prosecute the

same shall vary the provisions hereof. The court of appeals may affirm

or reverse the order appealed from, and may make such order or direction

as shall be appropriate to the case.

Property deemed acquired for public use. All property acquired

under the provisions of this chapter shall be and shall be deemed to

have been acquired for public uses and purposes, and for the purpose of

affording increased facilities for rapid transit between points within

the city acquiring such property.

Connecting routes and extension of lines. a. The commission,

from time to time, with the approval of the board of estimate and of the

mayor may grant a right or franchise or enter into a contract, upon

application to such commission of any railroad corporation for the

purpose of constructing and operating a tunnel railroad from an

adjoining state under the North or Hudson or Harlem river to a terminus

within the city; or under the North or Hudson river and thence

transversely across and under the surface of the borough of Manhattan

and thence under the East river by the shortest practicable route; such

railroad to be connected with some trunk line railroad whose terminus is

in this or an adjoining state, thereby forming a continuous line for the

carriage of passengers and property.

b. A similar grant may be made, or a similar contract entered into,

upon the application of a railroad corporation, owning or actually

operating a trunk line railroad whose terminus is within the city, or of

a railroad corporation owning or actually operating, or by the

certificate of the commission required to own or actually operate, a

railroad wholly or partly within such city and engaged or intended, and

in such certificate so recited and required, to be, in interstate

commerce in connection with a trunk line railroad and which shall have,

or be required by such certificate to have a terminus in such city, for

the purpose of constructing and operating a railroad from such terminus

by the shortest practicable route to and under or over the East river or

the North or Hudson river, or the Harlem river, to any point in this or

an adjoining state, or to connect such terminus with the railroad or

terminus of any other such railroad or trunk line railroad in this state

or to straighten or improve the grade or alignment of any such railroad

or more directly connect any points thereon.

c. If and when in the judgment of such commission the public interests

so demand, the commission, with like approval, may fix and determine the

route by which any such railroad corporation making such application may

so establish and construct or so extend its lines into or within such

city, and may authorize any such railroad corporation to construct and

operate any such railroad or connecting railroad under any streets, and

also in the case of any such railroad or connecting railroad which is,

or by the terms of such certificate is required to be, operated or used

as a part of an interstate trunk line, to construct and operate the same

over and across any such streets, but not over and lengthwise of any

streets, with all necessary devices and appurtenances and with the right

to emerge to the surface upon private lands at the termini, and to

transport over the same passengers or freight or both and to run over

the same either passenger trains or freight trains or mixed trains.

d. The commission, with like approval, shall fix and determine the

locations and plans of construction of the railroad upon such route, the

times within which portions thereof shall be constructed, the

compensation to be made therefor to the city by the railroad corporation

to which the grant shall be made, or with which the contract shall be

entered into, and such other terms, conditions and requirements as to

the commission may appear just and proper. Every such grant shall be

made and every such contract entered into, however, upon the condition

that the railroad corporation to which the grant shall be made or with

which the contract shall be entered into, from the time of the

commencement of the operation of any such railroad, shall annually pay

to such city a sum or rental. The amount of such sum or rental for a

period of not more than twenty-five years, beginning with such operation

of any such railroad, shall be prescribed by the commission in such

grant or contract. Every such grant or contract shall provide for the

readjustment of the amount of such sum or rental at the expiration of

the period for which it shall be so prescribed and for readjustment from

time to time in the future of the amount of such annual payment at

intervals each of not more than twenty-five years. The grant may also

provide that the city shall have the right after the expiration of a

period fixed in the grant which shall not be more than twenty-five years

from the date on which operation of any portion of such railroad shall

commence to purchase and take the right or franchise so granted and any

tunnel and railroad, thereby authorized, or any portion of such tunnel

and railroad, provided the city shall determine that such tunnel and

railroad or such portion of such tunnel and railroad is necessary or

desirable for use as part of some municipal system of rapid transit to

be owned by the city, upon giving a specified notice and upon payment of

the value of such tunnel and railroad, or portion of tunnel and

railroad, but not including the franchise thereby granted, nor to exceed

the actual cost in money of construction thereof and of property

connected therewith. The grant may provide in default of agreement

thereon for ascertainment and determination by arbitration or by the

court of the amount to be paid by the city therefor. Any certificate

granted by the board of rapid transit railroad commissioners or by the

public service commission before the twenty-sixth day of May, nineteen

hundred nine authorizing the construction and operation of any tunnel

and railroad under the provisions of this section, and any right

theretofore given to the city in or by any such certificate so granted

to purchase and take any tunnel and railroad, or any portion of such

tunnel and railroad shall be deemed to have been authorized, and every

such certificate is hereby ratified and confirmed as to such right given

thereby.

e. A certificate shall be prepared by the commission attested by its

seal and the signature of its presiding officer, setting forth in detail

the action taken and grant made or contract entered into by the

commission with respect to such railroad and the terms, conditions and

requirements aforesaid, including provisions as to such annual payments

and the future readjustments thereof. A like certificate shall be

prepared in like manner upon every modification of the terms of the

grant or contract as provided in this chapter. Each such certificate

shall prescribe the terms and conditions of the readjustments of such

annual payments and may provide for the determination of such amount

upon such readjustments by arbitration or by the supreme court. Such

certificate shall be delivered to such railroad corporation upon the

receipt by such commission of a written acceptance of the terms,

conditions and requirements of the grant or contract, duly executed by

such railroad corporation, so as to entitle it to be recorded.

f. Such certificate shall be filed in the office of the secretary of

state, and a duly certified copy thereof shall be filed in the office of

the clerk of each county in which such railroad is situated, and

thereupon, and upon fulfillment by such railroad corporation, so far as

it relates to such railroad, of such of the requirements and conditions

as are necessary to be fulfilled in such cases, under section seventeen

of article three of the constitution, and upon fulfillment by such

railroad corporation of such other terms, conditions and requirements

enumerated in such certificate, as the commission may require to be

fulfilled as a condition precedent to commencing such work, such

railroad corporation shall in such cases possess in addition to its

already existing franchises all the powers conferred by this chapter

upon corporations with respect to its railroads authorized to be

constructed as aforesaid. When any routes, rights or franchises, shall

be so fixed and determined, and a certificate as aforesaid shall have

been duly filed, such railroad corporation may construct the same with

all the rights and with like effect as though the same had been a part

of the original route of its railroad then in actual operation, or as

may be provided in such certificate, but in every case subject to all

the provisions and conditions of such certificate. Every certificate

prepared by the commission or any of its predecessors as aforesaid when

delivered to and accepted by such railroad corporation, shall be deemed

to constitute a contract between such city and such railroad

corporation, according to the terms of such certificate. Such contract

shall be enforceable by the commission acting in the name of and in

behalf of such city or by such corporation according to the terms

thereof, but subject to the provisions of this chapter. The terms of

such contract, from time to time, with like approval and with the

consent of such corporation, may be modified by the commission.

g. But the construction and operation of such railroad is authorized

only upon the condition that the consent of the owners of one-half in

value of the property bounded on, and the consent also of the board of

estimate and the mayor be first obtained, provided that such board of

estimate and mayor, upon the presentation to them of any such grant or

contract, without requiring the execution of any other agreements than

those herein provided for, shall either approve or disapprove the same.

Every such approval shall be and be deemed to be, free of all

limitations except those contained in this chapter or the constitution.

In case the consent of such property owners can not be obtained, the

appellate division of the supreme court in the department in which such

railroad is proposed to be constructed, upon application, in the same

manner and on the same notice specified in section twenty-one of this

chapter, may appoint three commissioners, who shall determine after a

hearing of all parties interested, whether such railroad ought to be

constructed or operated, and their determination, confirmed by the

court, may be taken in lieu of the consent of such property owners.

h. No grant or contract shall be made hereunder affecting in any way

the liabilities and obligations of the grantee or contracting railroad

corporation with reference to taxation for state or local purposes. The

state shall not be liable for injuries to persons or property in

connection with any railroad or other construction which may be

authorized under the provisions of this chapter, nor shall the state be

liable for any damages in any event for any act or omission of the

commission.

Connection with other railroads or transit facilities. a. The

commission, from time to time, with the approval of the board of

estimate and the mayor, upon application of any person owning, leasing,

constructing or actually operating or having the right by contract to

thereafter operate a railroad wholly or in part within the limits of the

city, if in the judgment of such commission, the public interests so

demand, may also fix and determine the route by which any such person

may connect with other railroads, or the stations thereof, or with

ferries or bridges, or may extend any line which he operates or has the

right to operate as aforesaid within such city, or upon the application

of a corporation organized under the railroad law for any of the

purposes specified in subdivision 1 of section forty of this chapter,

and agreeing to equip, maintain and operate or to procure to be

equipped, maintained and operated, any road of the city in connection

with any existing railroad of a railroad corporation and any extension

thereof wholly within such city, on the basis of a division of income,

earnings or profits as herein provided, the commission with like

approval, if in its judgment the public interests so demand, may fix and

determine the route by which such person may construct, maintain and

operate such extension, and with like approval, may authorize such

person to construct, maintain and operate any such extension, and may

with like approval authorize any such person to lay an additional track

on, above, under or contiguous to a portion or the whole of the route of

his railroad within such city and to acquire terminal or other

facilities necessary for the accommodation of the traveling public on

any street except the place known as Battery Park on which such railroad

shall be located. The commission, with like approval, may also

authorize any such person to lay his tracks and operate his railroad to

any terminal within such city, and to transport thereover passengers or

freight or both, and to run either passenger trains or freight trains or

mixed trains thereover. The commission, with like approval, shall fix

and determine the locations and plans of construction of the railroads

upon such facilities, the times within which they shall be respectively

constructed, the compensation to be made therefor to the city by such

person, and such other terms, conditions and requirements as to such

commission and board of estimate with the approval of the mayor may

appear just and proper. Every such determination, authorization and

license shall be made upon the condition that such person, from the time

of the commencement of the operation of any such railroad under such

determination, authorization or license, shall annually pay to such city

a sum or rental which may be a part or proportion of gross or net

receipts, and that the amount of such sum or rental for a period of not

more than twenty-five years, beginning with such operation of any such

railroad shall be prescribed by the commission in such determination,

authorization and license, and that every such determination,

authorization and license shall provide for the readjustment of the

amount of such sum or rental at the expiration of the period for which

it shall be so prescribed and for readjustment from time to time in the

future, to the end of the period of renewal, if any, of the amount of

such annual payment at intervals each of not more than twenty years.

Such determination, authorization or license may provide that for the

whole or any portion of the life of the grant in lieu of such annual

rental the gross or net receipts derived from the operation of such

railroad owned, operated or to be operated by such person within the

limits of such city, and from the operation of such connecting or

extending facilities may be combined, and that the city may receive as

such compensation at intervals named a specified part or proportion of

the income, earnings or profits of the railroad, and the facilities

whose receipts are so combined or of those and any other railroads which

may be operated in connection therewith in like manner, which part or

proportion may be deferred to a previous distribution to such person,

which distribution may be cumulative. In such case such determination,

authorization or license may apportion out of the amount so to be

received by the city and shall specify a portion thereof which shall be

deemed to be the rental for the use of such facilities. Such

determination, authorization or license shall also provide for

determining the amount of the income, earnings or profits of the

railroad within the limits of the city and of the facilities whose

receipts are so combined. It may also provide for readjustment of the

proportion which the city shall receive or of the portion thereof which

shall be deemed to be the rental for the use of such facilities at

specified intervals. In addition, it may prescribe a method of

determining by arbitration or by the court the amount which the city

shall receive as its proportion of such income, earnings or profits or

as such rental upon any such readjustment thereof. Such determination,

authorization or license shall contain a reservation to the city of the

privilege, upon giving a specified notice, to terminate the franchise,

right or authority granted under this section as to all, and, if deemed

advisable, as to any specified portion of such facilities, and to

purchase and take the plant and property as defined in the grant at any

time after the expiration of ten years from the date when operation of

any part of such facilities or of such specified portion thereof shall

actually begin, upon paying an amount for such plant and property as

property, excluding any value for the franchise, right or authority,

which amount shall not exceed actual cost as defined in the grant of

such plant and property plus fifteen per centum thereof. Such amount

shall decrease under provisions of the grant as the franchise continues,

so that at the end of the full term of the grant or at the end of a

period specified therein, no amount shall be paid except for

betterments, additions, improvements and additional equipment as

hereinafter provided. The grant shall provide a method of ascertaining

the amount to be paid for such plant and property on termination by the

city of such franchise, right or authority and for the betterments,

additions, improvements and additional equipment at the end of the full

term of the grant. The grant may provide for determining, from time to

time in default of agreement by arbitration or by the court, a valuation

of such plant and property or any part or portion thereof for any

purpose under such grant. Such determination, authorization or license

may also make suitable provision to the end that if the city, after so

terminating such franchise, right or authority or at the end of the full

term of the grant shall propose to give a new franchise, right or

authority in the enjoyment of which such plant and property or any part

thereof may be utilized, the title to and possession of such plant and

property or any part thereof may be transferred directly to the grantee

of any such new franchise, right or authority when such new grantee

shall pay the amount so required. In the case of additional track added

to any elevated rapid transit railroad, however, the determination,

authorization or license may provide that such privilege of the city to

terminate the franchise, right or authority therefor and to purchase and

take the plant and property shall not be for railroad transit operation

either by the city or by any other party, and shall be without prejudice

to the rights of such person in the lines of such existing elevated

railroad, and may make adequate provision for the protection of such

rights. The commission, with like approval may authorize the re-location

of any devices and appurtenances of such person in any street in which

they exist, any such re-located structure to be held under all the terms

and privileges of the original franchise.

b. A certificate shall be prepared by the commission, attested by its

seal and the signature of its presiding officer, setting forth in detail

the action taken by the commission with respect to such connecting or

extended facilities, and the terms, conditions and requirements

aforesaid, including provisions as to such annual payments and the

future readjustments thereof. A like certificate shall be prepared in

like manner upon every modification of the terms of the contract as

provided in this chapter. Every such certificate shall prescribe the

terms and conditions of the readjustments of such annual payments and

may provide for the determination of such amount upon such readjustments

by arbitration or by the supreme court. Such certificate shall be

delivered to such person upon the receipt by such commission of a

written acceptance of such terms, conditions and requirements, duly

executed by such person so as to entitle it to be recorded.

c. Such certificate shall be filed in the office of the secretary of

state, and a duly certified copy thereof shall be filed in the office of

the clerk of each county to which such privileges granted hereunder

pertain, and thereupon, and upon fulfillment, by such person so far as

it relates to such facilities, of such of the requirements and

conditions as are necessary to be fulfilled in such cases, under section

seventeen of article three of the constitution. Upon fulfillment by such

person of such other terms, conditions and requirements enumerated in

such certificate, as the commission may require to be fulfilled as a

condition precedent to commencing such work, such person shall in such

cases possess in addition to existing franchises all the powers

conferred by this chapter upon corporations with respect to his

railroads authorized to be constructed as aforesaid. When any

facilities, shall be so fixed and determined, and a certificate as

aforesaid shall have been duly filed, such person may construct them

with all the rights, and with like effect as though they had been a part

of the original route of his railroad then in actual operation or in

process of construction. A franchise, right or authority shall not be

granted under this section to extend any railroad, make any connections,

lay any additional track or acquire any terminal or other facilities for

a longer period than the unexpired term of the original grant, franchise

or contract of the railroad and any renewal thereof contained in such

contract to which such facilities are added. Any such franchise, right

or authority granted hereunder shall also be subject to be terminated by

the city in like manner and under the same terms and conditions and at

the same time as may be provided in such original grant for the

termination or taking by the city of that grant if provision therefor be

made.

d. The certificate prepared by the commission as aforesaid when

delivered and accepted by such person shall be deemed to constitute a

contract between such city and such person according to the terms of

such certificate. Such contract shall be enforceable by the commission

acting in the name of and in behalf of such city or by such person

according to the terms thereof, but subject to the provisions of this

chapter. The terms of such contract, from time to time with the consent

of such person, may be modified by the commission. In the case of any

grant under this section for the extension of any railroad or the

making, laying or acquisition of facilities under the provisions of this

section, the commission may make provision as a condition of such grant

for the termination by the city of the original grant or franchise or

contract, for the railroad to which such facilities are to be added and

for the taking over at the same time of the plant and property of the

grantee or holder of such original franchise or contract suitable to and

used for the purpose of such original grant or contract in connection

with the termination of the franchise, right or authority granted under

this section, upon giving a specified notice and paying an amount for

such plant and property, as property, excluding any value for the

original franchise or contract, which amount shall not exceed actual

cost of such plant and property plus fifteen per cent. thereof. Such

amount shall decrease under the provisions of the grant made hereunder

as the franchise or contract continues, so that at the end of the grant

or contract no amount shall be paid except for equipment as defined in

the grant. The grant shall provide a method of ascertaining the amount

to be paid for such plant and property on termination by the city of

such original franchise or contract or for equipment at the end of the

full term thereof. The grant may provide for determining from time to

time in default of agreement by arbitration or by the court a valuation

of such plant and property or any part or portion thereof for any

purpose under such grant. The grant in such case may also make suitable

provision to the end that if the city shall after so terminating such

original grant or franchise or at the end of the full term thereof

propose to grant a a new franchise, right or authority in the enjoyment

of which such plant and property or any part thereof may be utilized,

the title to and possession of such plant and property or any part

thereof may be transferred directly to the grantee of any such new

franchise.

e. But the construction and operation of such facilities are hereby

authorized only upon condition that the consent of the owners of

one-half in value of the property bounded on, and the consent also of

the board of estimate and of the mayor be first obtained, or in case the

consent of such property owners cannot be obtained, the appellate

division of the supreme court in the department in which they are

proposed to be constructed, upon application, in the same manner, and on

the same notice specified in section twenty-one of this chapter, may

appoint three commissioners who shall determine after a hearing of all

the parties interested whether such facilities ought to be constructed

or operated, and their determination, confirmed by the court, may be

taken in lieu of the consent of the property owners.

f. Every such certificate granting any franchise, right or authority,

as aforesaid, except for additional track added to any elevated rapid

transit railroad, shall provide that upon the expiration of a period

fixed therein the franchise shall end and that upon such termination

thereof all the rights of property of the grantee in the streets shall

cease and terminate without compensation and shall further provide that

upon such expiration of such franchise, right or authority the plant and

property together with the appurtenances thereto, of the grantee,

constructed pursuant to such certificate, except betterments, additions,

improvements and additional equipment as defined in the grant, shall

become the property of the city without further or other compensation to

the grantee; and that such betterments, additions, improvements and

additional equipment shall be and become the property of the city on

paying the grantee the amount ascertained as provided pursuant to such

certificate. The provisions of this section shall apply to any railroad

constructed, constructing or contracted for under the provisions of

section thirty-one of this chapter and to any person constructing or

operating any such railroad.

Relocation of railroads. a. Upon application of any person

owning a railroad wholly or in part within the limits of the city, the

commission, if in its judgment the public interests so demand, with the

approval of the board of estimate and the mayor, may fix and determine

the route upon which such person may relocate its railroad, or some

specified portion thereof, including devices and appurtenances. The

commission shall fix and determine the location and plan of construction

of such railroad or portion thereof as so relocated upon such new route,

the times within which it shall be constructed upon such new route, and

such other terms, conditions and requirements as to such commission

shall appear just and proper for the exercise of the franchise of such

person upon such new route. Such railroad or portion thereof with the

devices and appurtenances when so relocated shall be held by such person

under the terms and privileges of his franchise except as may be

otherwise specified and agreed in such grant, in place of the railroad

or portion thereof as it existed prior to such relocation. Such railroad

or portion thereof theretofore existing prior to such relocation shall

thereupon be removed and all right to hold, maintain or operate it upon

the former route, except the portion if any thereof not so relocated,

shall cease. Provided, however, that the construction and operation of

such railroad or portion thereof as so relocated upon the new route,

fixed and determined by the commission as aforesaid, are authorized only

upon condition that the consent of the owners of one-half in value of

the property bounded on, and the consent also of the board of estimate

and the mayor, be first obtained. In case the consent of such property

owners cannot be obtained, the appellate division of the supreme court

in the department in which such relocation is proposed, upon application

in the same manner and on the same notice, specified in section

twenty-one of this chapter, may appoint three commissioners who shall

determine after a hearing of all the parties interested whether such

proposed relocated railroad ought to be constructed or operated, and

their determination, confirmed by the court, may be taken in lieu of the

consent of the property owners.

b. As part of the consideration for surrender by such person of any

and all right to maintain and operate its railroad or portion thereof

and the structures therefor upon any street in its existing route and

the grant of the right to relocate, the grant may provide that the

expense of taking away the structure and restoring the streets and of

reconstructing the structure in the new location, including the

acquisition of property necessary therefor, shall be borne by the person

or by the city or partly by the such person and partly by the city. The

grant may provide as to the amounts of contributions therefor and by

whom and at what time such contributions shall be made. The grant may

also provide as to the measure of compensation to be made for existing

railroad rights and structures and for such new rights and structures

acquired under such grant or for either thereof, and the manner of

paying for them, as to the mode and manner of making and carrying into

effect such relocation and the conditions upon which it is to be done

and how and when it shall take place and be completed and fix the

details incident and necessary to the removal, abandonment or rebuilding

of the old structure or any part thereof. If the public interests, in

the opinion of the commission shall justify the provisions, the grant

may provide that the construction of any part of the railroad or portion

thereof so relocated upon such new route included in such grant, with

the consent of the commission, may be suspended during the term of such

grant or any part of such term, provided that during such term or part

of term there shall be available for use, in lieu of such part of the

railroad or portion thereof, a railroad or a portion of a railroad

which, with the part of the railroad or a part of the portion of the

railroad relocated and constructed under such grant, shall form a

continuous and convenient route.

c. The grant may provide that in case the necessary consents have been

obtained the city shall itself in whole or in part construct, or shall

in whole or in part equip, the railroad or portion thereof as relocated

upon such new route, and in such case the commission, acting for and on

behalf of the city, as soon as such consents where necessary have been

obtained, with the approval of the board of estimate and the mayor, may

enter into a contract with any person which, in the opinion of the

commission, may be best qualified to carry out such contract for the

construction or equipment of such railroad or portion thereof, or such

part of such construction or equipment, for such sum of money to be

raised and paid out of the treasury of such city as provided in this

section and upon such terms and conditions as the commission shall

determine to be best for the public interests. The commission, in its

discretion, by separate contracts executed from time to time or at the

same time, may contract with one or more persons for the performance of

any kind of work or any portion of the work, or for the furnishing of

any material, or for the performance of any labor necessary for or

incidental to the construction or the equipment of such railroad or

portion thereof so relocated, or any part thereof, which, under the

terms of such grant, the city may be under obligation to construct or

equip.

d. For the purpose of constructing or of equipping such railroad or

portion thereof as relocated, for the construction or equipment of which

a contract shall have been made by the commission as aforesaid, and for

the operation thereof when constructed, the commission for and on behalf

of the city may acquire by conveyance or grant to such city, or by

condemnation or other legal or other proceedings, any and all property

which in the opinion of the commission it shall be necessary to acquire

or extinguish for the purpose of constructing, equipping or operating

such railroad or portion thereof, free of interference or right of

interference, in the same manner and to the same extent and with like

power and authority as provided in this chapter with reference to the

acquisition of property for the constructing or operating of any

railroad for the construction or operation of which a contract shall

have been made under section thirty-one or section forty of this

chapter.

e. For the purpose of providing the necessary means for the

construction or equipment by the city of any part of any railroad or

portion thereof relocated upon any such new route and the necessary

means to pay for property rights which shall be acquired by the city for

the purposes of the construction or the equipment or for the operation

of such part of any railroad or portion thereof relocated upon such new

route hereunder the city, from time to time, and as the same shall be

necessary, and upon the requisition of such commission, shall make funds

available therefor and the proceeds of the same shall be paid out and

expended for such purposes upon vouchers certified by such commission.

No contract for the construction or equipment of any part of such

railroad or portion thereof to be so relocated upon such new route shall

be made unless and until the city shall have consented thereto and

prescribed a limit to the amount of money available for the purposes of

this section which shall be sufficient to meet the requirements of such

contract in addition to all expenses theretofore incurred and to be

satisfied from such money.

f. A certificate shall be prepared by the commission, attested by its

seal and the signature of its presiding officer, setting forth in detail

the action taken by the commission with respect to such relocation of

such railroad or portion thereof and the terms, conditions and

requirements aforesaid. A like certificate shall be prepared in like

manner upon every modification of the terms of the contract. Such

certificate shall be delivered to such person upon the receipt by such

commission of a written acceptance of such terms, conditions and

requirements duly executed by such person so as to entitle it to be

recorded. Such certificate shall be filed in the office of the secretary

of state, and a duly certified copy thereof shall be filed in the office

of the clerk of each county to which the privilege granted thereunder

shall pertain.

g. Upon the filing of such certificate and upon fulfillment by such

person, so far as it relates to such relocation of such railroad or

position thereof of such of the requirements and conditions as are

necessary to be fulfilled in such cases under section seventeen of

article three of the constitution, and upon fulfillment by such person

of such other terms, conditions and requirements enumerated in such

certificate as the commission may require to be fulfilled as a condition

precedent to commencing such work, such person, in such cases, shall

possess in addition to its already existing franchises all the powers

conferred by this chapter upon corporations with respect to the

railroads authorized to be relocated as aforesaid. When any route for

the relocation of such railroad or portion thereof shall be so fixed and

determined, and a certificate as aforesaid shall have been duly filed,

such person may construct such railroad or portion thereof upon such new

route, with all the rights and with like effect as though the same had

been a part of the original route of such railroad then in actual

operation, except as may be otherwise provided in such certificate. A

franchise, right or authority shall not be granted under this section to

relocate any railroad or portion thereof for a longer period than the

unexpired term of the original grant, franchise or contract of the

railroad, and any renewal thereof contained in such contract, as to

which railroad or portion thereof such relocation may be authorized. Any

such franchise, right or authority granted hereunder shall also be

subject to be terminated by the city in like manner and under the same

terms and conditions and at the same time as may be provided in such

original grant or contract for the termination or taking by the city of

that grant, if provision therefor be made thereunder.

h. Such certificate when delivered and accepted by such person, shall

be deemed to constitute a contract between such city and such person

according to the terms of such certificate. Such contract shall be

enforceable by the commission, acting in the name of and in behalf of

such city, or by such person according to the terms thereof, but subject

to the provisions of this chapter. The terms of such contract, from time

to time, with the consent of such person, may be modified by the

commission.

i. A grant, certificate or contract resulting therefrom, or any

modification thereof, shall be invalid unless first approved by the

board of estimate and the mayor.

j. Whenever any railroad or portion thereof is to be removed from any

street and relocated on property, including existing railroad tracks,

structures, equipment, and appurtenances thereof, acquired by and

belonging to the city or held by or for it and used for bridge, bridge

approach, plaza or railroad or other purposes, the provisions of this

section shall be applicable to such removal and relocation.

Notwithstanding the provisions of any charter or administrative code of

such city or of any other act or law general, special or local or of any

local law of such city, any and all property rights in such property

including existing railroad tracks, structures, equipment and

appurtenances thereof constructed thereon or to be constructed thereon

under any such plan for such relocation may be granted under and in

accordance with the provisions of this section as may be necessary or

convenient to carry out such relocation in accordance with the terms of

such grant.

Commission to prepare plan. a. The commission after making the

necessary studies and investigations shall prepare a plan for the relief

of the emergency which is hereby declared to exist, and for the

improvement of transit in any such city. Such plan shall contain

provisions which in the judgment of the commission, will accomplish as

nearly as may be the following purposes:

1. The acquisition and unification, under public ownership or control,

of railroads by purchase and direct conveyance or transfer, or by lease,

recapture, assignment of lease, modification or extinguishment of

existing contract or by contracts for equipment, maintenance and

operation or maintenance and operation, by or under supervision of a

board of transportation, or partly by one of such methods and partly by

one or more of the others, so that service thereon may be increased,

extended and improved to the fullest extent possible,

2. The receipt as soon as practicable by the city of net revenues from

the operation of the railroads which will be applicable to the payment

of interest and amortization charges on corporate stock or bonds of the

city after deduction of all expenses of maintenance and operation,

reserves for depreciation and otherwise, interest and amortization

charges and other deductions as may be provided in a plan or in any

contract or lease made in pursuance of its provisions, and

3. The assuring to the people of the city the continued operation of

the railroads at the present or lowest possible fares consistent with

their safe and economical operation and the performance by the board of

its obligations under any plan and under any lease or contract made in

pursuance of its provisions.

In case a plan or any amendment thereof or supplement thereto or

separate plan adopted with the approval of the board of estimate of the

city as provided in this article, shall include any street surface

railroads, it may also include any stage coach or omnibus lines,

together with the plant, property and equipment thereof, owned or

operated in conjunction with, or as a part of the same system as, such

street surface railroads.

b. The commission shall include in the plan appropriate provision for

the protection of tort creditors; and shall provide for the continuance

in original or modified form of any existing plan or provision of

railroad companies for employees' pension and sick benefit relief, but

such continuance shall in no manner or form impair the actuarial status

or benefits of employees who are members of the New York city employees'

retirement system. Without limiting the authority and discretion of the

commission, it may consider the incorporation in the plan of provisions

whereby the title to such railroads as are not already owned by the city

and whose ownership thereby is deemed by the commission to be desirable

may be vested in the city and whereby rights under existing contracts

for the construction, equipment and operation of rapid transit railroads

already owned by the city may be acquired by the city. Such title and/or

such rights may be vested in the city directly or may first pass through

an intervening corporation and then to the city, either free and clear

of liens and encumbrances or subject to specified liens and

encumbrances, in return for a lease or leases by the city of such

railroads and of any other railroads owned by it and such other or

additional considerations as the commission may determine with the

approval of the board of estimate. In the event of the incorporation of

such provisions in the plan the commission shall outline an arrangement

whereby outstanding securities of the railroad companies may be retired

by application of the amounts paid by the city for the railroads

acquired and whereby such securities may be amortized or otherwise paid.

Any railroad company included in the plan, with the consent of the

holders of record of at least two-thirds of its outstanding shares of

stock entitled to vote thereon, given as provided in section one hundred

forty-eight of the railroad law, may transfer and convey its property,

appurtenances and franchises, or any part thereof, to the city and/or

such intervening corporation as provided in the plan, subject, however,

to the rights of appraisal of the shares of any dissenting stockholder

as provided in section one hundred sixty-one of the railroad law. Any

railroad company included in a plan whose entire outstanding capital

stock or whose railroad facilities are acquired by the city as provided

therein may be dissolved without judicial proceeding in the same manner

as provided in and subject to the same provisions as contained in

section one hundred five of the stock corporation law with respect to

the dissolution of stock corporations, and upon filing the certificate

of dissolution in the office of the secretary of state, titles to and

ownership of the railroad, franchises, properties and assets of such

railroad company shall pass to and vest in the city. The certificate of

dissolution of any such railroad company shall bear endorsed thereon, in

addition to the consent of the state tax commission, the approval and

consent of the commission to the filing of such certificate.

c. In connection with the preparation of any plan the commission shall

cause a valuation to be made of the railroads, properties and interests

therein, including leases and leasehold interests and outstanding

contracts the assignment to or cancellation of which by the city may be

deemed advisable but excluding franchises and going value, of the

railroad company or railroad companies it proposes to include therein.

Any such valuation including the value of contracts acquired may be in

such detail and include such elements of cost or value and be made in

such manner as the commission from time to time may determine and

prescribe, with due regard to the past, present and estimated

prospective earnings of such railroads, properties and interests at the

rate of fare that the railroad company prior to April twenty-seventh,

nineteen hundred twenty-one was entitled to charge under the provisions

of the contracts or franchises under which such properties are operated

or held or of any lawful order then in force fixing or regulating rates

of fare, or under existing law, and in view of the competition of other

lines and with due regard to all other pertinent facts and conditions;

but such valuation shall not in any case exceed the fair reproduction

cost of such properties less depreciation, and, in the case of leasehold

interests and contracts to be assigned, acquired or cancelled, the fair

value of any such leaseholds and contracts. Any such valuation as

finally determined by the commission may be the basis for the inclusion

of such railroads, properties, contracts and interests in the plan and

for fixing the allowances and returns on account thereof under the plan

and under any leases or contracts made in pursuance of its provisions.

d. In connection with the preparation of the plan the commission may

include in the plan provision for railroads operating between a point

within the city and a point without the city and connecting railroads

whose lines stop at or near the city line. The plan may also include, in

addition to and in conjunction with the railroad of a railroad company

included therein, a railroad owned by the city and/or a railroad leased

or to be leased by the city from the owner or lessee of such railroad.

Procedure under plan. a. Upon the completion of such plan, but

before final adoption thereof, the commission shall hold a public

hearing thereon at which citizens shall be entitled to appear and be

heard. The commission shall transmit a copy thereof to the board of

estimate of the city and to each of the railroad companies which owns,

leases or operates any of the railroads included therein with a request

for the statement of the views of such board of estimate and such

railroad companies thereon. Such board of estimate and each such

railroad company may transmit such views and be heard thereon within a

period of time to be prescribed by the commission. Thereafter the

commission, from time to time, may make such changes in or modifications

of such plan as the commission in its discretion may deem to be

advisable. The commission shall then formally adopt the plan and call

upon each of the railroad companies which owns, leases or operates any

of the railroads included therein or whose leasehold, contract or other

interests are to be acquired to inform it within a period of time to be

fixed by the commission whether it accepts such plan. Any such plan as

formally adopted by the commission may provide that the commission, with

the approval of the board of estimate, from time to time, shall

determine whether and when a sufficient amount of the securities to be

adjusted have been deposited under or have otherwise assented to the

plan to render it advisable to declare the plan operative, and in such

latter event the plan shall not be or become operative until so declared

by the commission with the approval of the board of estimate. If the

railroad companies or one or more of them do so accept, or if in the

judgment of the commission a sufficient number of them so accept as to

justify carrying out the plan, and if the board of estimate also

approves the plan, and the plan is or is declared operative in

accordance with its terms, the board of estimate shall take all such

action as may be necessary or convenient to carry out the plan. All

deeds, assignments or surrenders of leaseholds and contracts and other

interests, leases, mortgages, contracts and other documents shall be

approved by the commission.

b. The plan may include all the railroads or systems of railroads and

controlling or leasehold interests therein which the commission decides

should be included thereunder or may in the first instance include one

or more railroads or systems of railroads, or controlling or leasehold

interests therein and may thereafter, with the approval of the board of

estimate be amended or supplemented at any time or from time to time,

either before or after the completion thereof, to include one or more

additional railroads or systems of railroads, or controlling or

leasehold interests therein as the commission may decide, or there may

be several plans each comprising different railroads or systems of

railroads. The commission, if in its judgment such action is necessary,

but only after a public hearing, and with the consent of the board of

estimate and of each railroad company whose railroads or interests

therein are included therein, from time to time may modify such plan

after formal adoption thereof. The commission may further extend any

period of time prescribed in this article or by it thereunder with like

authority.

c. The grant of power herein conferred shall embrace, and the words

"the railroad" as used herein shall be deemed to embrace, contracts and

leases for the use and operation of railroads, including existing

contracts and leases between the city and a railroad company for the

construction, equipment, maintenance and operation of railroads under

this chapter; provided, however, that the acquisition of any such

contract so made by the city or its transfer to the city shall not

operate as a merger or cancellation of such contract, unless otherwise

provided in the plan, but such contract may be held in trust by the city

for the beneficiaries thereunder, including the city, as provided in the

plan until such time as the obligations in respect thereto under the

plan shall have been discharged.

e. Railroads and interests therein may be acquired by the city subject

to all or any mortgages that may be existing thereon. In the event that

railroads or interests therein are acquired in whole or in part subject

to existing mortgages, all the obligations of any mortgage subject to

which the railroads are acquired in its discretion, may, and if required

by the terms of such mortgage, shall be assumed by the city, provided,

that any such acquisition and assumption shall in no respect increase,

diminish, alter or otherwise affect any rights vested in the trustee or

the bondholders under any such mortgage.

f. The plan and any contract, lease or mortgage made in pursuance

thereof may contain such other terms, conditions and covenants, not

inconsistent with this article, as the commission or board of estimate

shall deem to be necessary or advisable, including provision whereby

elevated railroads or portions thereof acquired by the city may be

removed under arrangements between the mortgage trustees and the board

of estimate.

g. After the approval of such plan, as provided in this section, and

thereupon, if the plan is or is declared to be operative in accordance

with its terms, the board of estimate may consummate the transaction by

the execution and delivery of the deeds of conveyance and instruments of

transfer, leases, mortgages, contracts and all other instruments and

documents, necessary or advisable for carrying the plan into effect

which shall be approved by the commission.

h. All the provisions of this article and all powers hereby granted

with reference to railroads and properties and interests therein shall

likewise apply with equal force and effect to recaptured railroads;

provided, however, that nothing contained in this article with respect

to recapture or recaptured railroads shall alter or affect any rights or

remedies of the city or of any railroad company under any existing

contract.

i. If, pursuant to a plan, the city shall become the owner or holder

of securities of a corporation owning the railroads to be acquired under

the plan, or the securities of a corporation holding the securities of

such owning corporation, or securities to which such railroads are

subject, such securities shall be delivered into the custody of the

comptroller of the city. The city, acting by the board of estimate or by

such person as the board of estimate may designate, may exercise such

powers with respect to such securities as might any other holder hereof.

Approval of contracts to effectuate plans. Anything contained

in this article to the contrary notwithstanding, the commission shall

not execute and deliver any plan, or any lease thereunder, without

obtaining the consent and approval of the board of estimate.

Construction of chapter. a. This chapter shall not be

construed to repeal or in any manner affect article six of the railroad

law, except so far as such article would, if this chapter had not been

passed, authorize the appointment hereafter of any commissioners applied

for as provided in section two hundred twenty of such law in any city or

authorize any commissioners already appointed pursuant to such section

in any such city to fix, determine or locate any new route pursuant to

the provisions of such article of the railroad law.

b. This chapter shall not repeal or in any manner affect the railroad

law, except as expressly provided, or except so far as the provisions

thereof conflict with the provisions of this chapter. But nothing in

this section shall prevent the board of transportation from laying out a

route for a railroad and constructing and operating a railroad, and such

board shall have the right to lay out such route and construct and

operate such railroad over, under, along or across any street in, along,

under or over which there shall be any existing railroad, provided that

the routes so laid out by the board and the railroad so constructed by

it shall so pass over or under or at the side of such existing railroad

as not to interfere with its operation.

c. This chapter shall not be construed in any manner to affect the

exercise or enjoyment at any time of any right acquired, exercised or

enjoyed before the thirty-first day of January, eighteen hundred

ninety-one by any corporation duly incorporated and organized before

such date or deriving powers and rights under the laws of this state.

d. This chapter shall not affect or impair the exercise or enjoyment

of any right or rights possessed before the thirty-first day of January,

eighteen hundred ninety-one or acquired or authorized to be acquired,

exercise or enjoyed by any street surface railroad corporation before

such date, except as herein otherwise expressly provided.

Construction of terms. Whenever the term public service

commission, or board of rapid transit railroad commissioners, or transit

construction commissioner, or transit commission, occurs in any law,

contract or document relating to a subject or matter jurisdiction

whereof was transferred to the board of transportation, or when in any

law, contract or document reference is made to such commission, board or

commissioner in connection with a subject or matter jurisdiction whereof

was so conferred, such term or reference shall be deemed to refer to and

include the board of transportation, so far as such law, contract or

document pertains to matters which are within the jurisdiction of such

board.

Additional powers and duties of commission and board of

transportation. Subject to the provisions of this chapter, the

commission and the board of transportation within their respective

jurisdictions, shall have such powers as may be requisite to the

efficient performance of the duties imposed upon them by this chapter,

any contract or any law.

Exemption from taxation. The bonds and securities issued by

the city and the income or profits therefrom, the railroads and property

owned by the city and the gross receipts or income derived from such

railroads and property or from the operation thereof, and the

transportation or right to or privilege of transportation of persons or

property upon any such railroads, shall at all times be free from

taxation or assessment by the state or by any subdivision thereof.

Transfer of officers and employees. Officers and employees of

the transit commission exercising functions and performing service in

respect to subject or matters, jurisdiction of which was transferred to

the board of transportation, shall be eligible for transfer and

appointment without examination to offices and positions in the office

of the board of transportation; and, so far as necessity for such

service exists, shall be so transferred and appointed. Officers and

employees of the transit commission, having prior to July first,

nineteen hundred forty exercised functions and having performed services

in respect to subjects or matters, jurisdiction of which was transferred

to the board of transportation, shall be eligible to have their records

of service transferred to the municipal civil service commission to be

credited as service rendered for the city.

Transfer of records. The transit commission shall transfer and

deliver to the board of transportation all contracts, books, maps,

plans, papers and records of whatever description pertaining to subjects

or matters, jurisdiction whereof was transferred to the board of

transportation; and such board is authorized to take possession of all

such contracts, books, maps, plans, papers and records. If any documents

or records of the transit commission pertaining to a subject or matter,

jurisdiction whereof was transferred to the board of transportation, are

so combined or connected with documents or records pertaining to other

subjects or matters within the jurisdiction of such commission as to

render it impracticable to deliver such documents or records to the

board of transportation as required by this section, the transit

commission shall cause to be prepared certified copies of the parts of

such documents and records as pertain to the subject or matter,

jurisdiction whereof was transferred to the board of transportation, and

shall deliver the same to such board. The transit commission shall also

turn over to the board of transportation such supplies, furniture and

equipment as such commission shall determine are no longer needed for

its purposes.

Records; prima facie evidence. The record of the proceedings

of the board of transportation, and the records and printed minutes of

the transit commission, of the former transit construction commissioner,

of the former public service commission for the first district, and of

the former board of rapid transit railroad commissioners, transferred to

the board of transportation, or certified copies thereof when such

certified copies are authorized by this chapter to be delivered to the

board of transportation instead of originals, shall be prima facie

evidence of the proceedings of the board of transportation, of the

transit commission, of the former transit construction commissioner, of

the former public service commission for the first district, or of the

former board of rapid transit railroad commissioners, as the case may

be, in respect to matters concerning which such records or minutes

relate. Certified copies of such records or papers shall in like manner

constitute prima facie evidence.

Pending actions and proceedings. This chapter shall not affect

any action or proceeding, civil or criminal, brought by or against the

transit commission, or the former transit construction commissioner,

public service commission for the first district, or the board of rapid

transit railroad commissioners in respect of rights, powers, duties and

obligations transferred to and conferred upon the board of

transportation; but such action or proceeding may be prosecuted or

defended in the name of the board of transportation and, upon

application to the court, the board of transportation shall be

substituted as a party in such pending action or proceeding. Any

investigation, examination or hearing, undertaken, commenced or

instituted by the transit commission or the transit construction

commissioner or the public service commission for the first district or

the board of rapid transit railroad commissioners before the time this

article takes effect, and relating to a subject or matter jurisdiction

whereof was transferred to the board of transportation, may be conducted

to final determination by the board of transportation.

Continuity of jurisdiction. The board of transportation shall

be deemed and held to constitute a continuation, as to matters within

its jurisdiction, of the transit commission, and not as a new

commission, for the purpose of succession to all such of the rights,

powers, duties and obligations of the transit commission transferred to

such board of transportation.

Inconsistent laws inapplicable. The provisions of any laws or

parts of laws which are inconsistent with this chapter, and in so far

only as they are inconsistent with this chapter, shall have no

application to the rights, powers and obligations conferred or created

by and under authority of this chapter or to any proceedings taken

thereunder.

Separability. If any clause, sentence, paragraph, section or

part of this chapter shall be adjudged by any court of competent

jurisdiction to be invalid, such judgment shall not affect, impair or

invalidate the remainder thereof, but shall be confined in its operation

to the clause, sentence, paragraph, section, or part thereof directly

involved in the controversy in which such judgment shall have been

rendered.

Legislative intent. Insofar as this chapter revises,

consolidates, codifies, continues or restates the provisions of the

rapid transit act, as amended and supplemented, and articles seven and

eight of the public service law in force when this chapter shall take

effect, such provisions shall be deemed unchanged in substance and

effect. If in this chapter there shall have been incorporated any

provision of law that heretofore shall have been superseded or

specifically or impliedly repealed, the incorporation of any such

provision shall not revive such superseded or repealed provision, nor

shall such incorporation be construed to indicate any legislative

determination that such provision had not been theretofore so superseded

or repealed. If in this chapter there shall have been incorporated any

new provision, which is not a revision, consolidation, codification,

continuance or restatement of the provisions of the rapid transit act,

as amended and supplemented, and articles seven and eight of the public

service law in force when this chapter shall take effect, such new

provision shall not become effective, but shall be deemed an

inadvertence or error.

Schedule of laws repealed. Of the laws enumerated in the

schedule hereto annexed, that portion specified in the last column is

hereby repealed.

Effective date. This act shall take effect immediately.