Opinion
November Term, 1901.
Present — Parker, P.J., Smith, Kellogg, Edwards and Chase, JJ. All concurred.
Determination of the Board of Railroad Commissioners reversed.
This is a writ of certiorari to review the determination of the Board of Railroad Commissioners, made October 15, 1900, under section 68 of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1897, chap. 754), determining that the railroad of the Niagara Falls Street Railway Company should cross at grade the tracks of the New York Central and Hudson River Railroad Company at or near the intersection of Second and Niagara streets in the city of Niagara Falls. Upon motion, the Niagara Falls Street Railway Company has been made a party to the proceedings for the purpose of responding to this appeal. Upon the argument such respondent did not appear. It has since been given an opportunity to file a brief herein, but has failed to do so. Under all the circumstances of this case, we think the default of the said respondent should be deemed a waiver of the authority granted by the Railroad Commissioners, and for this reason should cause a reversal of their determination.