
    Valentine Voght et al., App’lts, v. The City of Buffalo, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    1. Municipal corporations—Assessments—Power op city engineer to alter contract.
    A city railroad had laid through a street a track five feet in width and had a right to lay another similar track. The common council of the city directed the street paved to a width of forty-two feet. The city engineer changed the contract as ordered and let it to pave thirty-seven feet, subtracting the width of the track. Held, that he had no such power, and that an assessment based on such a letting must be set aside.
    3. Same—Assessors—Erroneous estimate op damages.
    The assessors of the city, in estimating the assessment, determined that the side of the street upon which the track was laid was less valuable than the other side upon which the company had a right to lay it. Held, error.
    3. Same—May recover expense of paving between railroad tracks.
    A city may, in making such an improvement, pave the space occupied by the tracks of a railroad company and recover the expense from it.
    Appeal by the plaintiffs from a judgment based upon the decision of a special term in Brie county.
    
      Frank R. Perkins, for app’lts ; Philip A. Laing, for resp’t.
   Corlett, J.

On the 6th day of July, 1887, the common council of the city of Buffalo, by resolution, conferred authority upon the Buffalo Bast Side Street Bailway Company to construct its road from the Williamsville road westerly along Broadway with double tracks to Washington street. Double tracks were constructed from Washington street to Fillmore avenue, from thence easterly but a single track The width of the track is about five feet.

On the 20th day of June, 1887, the common council of the city by a two-thirds vote adopted a resolution to the effect that the city intended to order Broadway repaved forty-two feet wide with first-class Medina sandstone, the pavement to be from Fillmore avenue eastward to the end of the sewer in Broadway, and the city engineer was directed to prepare plans and specifications and advertise for bids.

On the 16th of January, 1888, the city engineer reported to the council various proposals made to him to repave Broadway forty-two feet wide in the manner specified by the common council. Albert Krause offered to do the job for $40,270. His was the lowest bid. The council decided to accept it for repaving Broadway forty-two feet in width. The engineer made a contract with Krause for the amount of his bid to repave thirty-seven feet wide instead of forty-two as authorized. The five feet omitted was the space between the tracks of the street railroad, which has not been repaved. The assessment made was to collect this amount for repaving thirty-seven feet in width. The common council at no time authorized the repavement to be less- than forty-two feet.

The assessors estimated the land on the north side of Broadway at $1.25 more per foot than upon the south side, upon the ground that the south side was encumbered by a track while the north side was not. No resolution was passed by the common council specifying the extent to which either side would be benefited in proportion to the other. The determination of that question was by the assessors, and the result is simply indicated by the way in which the assessment was made.

This action was brought by the land owners along the street to set aside the assessment, based upon the alleged jurisdictional irregularities. The central one is that the thirty-seven feet repavement was never authorized by the city. It is further claimed that the assessment is irregular and void because the assessors proceeded upon a wrong theory in estimating the value of the land, the claim on the part of the plaintiff being that the street railway had power at any moment to double its track, and when it did the reasons for discrimination between the value of the north and south lands would be removed.

It was further insisted that the publication was defective in not being published five consecutive days, it being omitted on Sunday.

A trial was had at special term, which resulted in a dismissal of the complaint, and from the judgment entered upon this decision the plaintiffs appealed to this court.

The city engineer had no power to dispense with any requirement which the corporation imposes. Smith v. New York, 10 N. Y., 504-508; Smith v. City of Newburgh, 77 id., 130; Matter of Garvey, id., 523.

All the cases are to the same effect. Matter of Burmeister, 56 How., 416 ; Ziegler v. Flack, 22 J. & S., 69 ; Ottendorfer v. Fortunato, 24 id., 495; McDonald v. The Mayor, 68 N. Y., 23-28.

Ho reason is seen why the engineer might not have made a contract for paving ten feet instead of thirty-seven. If he had power to omit five feet, he could have omitted as much as he pleased. This point was decided in Cram et al. v. City of Buffalo, affirmed 36 Hun, 638. The justice at special term stated: “If the sewer could be commenced eight hundred feet from the point mentioned and still be within the declared intention, it could be commenced eight thousand feet from that point or any other place along the ■designated line.”

The familiar rule that a statute which can result in the taking of property and divesting of title must be strictly construed, is .applicable to the case at bar. Stebbins v. Kay et al., 123 N. Y., 31; 33 N. Y. State Rep., 72 ; Matter of Pennie, 45 Hun, 391; 10 N. Y. State Rep., 90; affirmed, 108 N. Y., 364; 13 N. Y. State Rep., 790.

All the cases are to the same effect. Merritt v. Portchester, 71 N. Y., 312; Matter of Commissioners of Central Park, 35 How., 277; State v. Jersey City, 27 N. J. (3 Dutch.), 536; City of Henderson v. Lambert, 14 Bush (Ky.), 24; Owners of Ground, etc., v. Mayor, etc., of Albany, 15 Wend., 374.

In Gilmore v. Utica, 121 N. Y., 561; 31 N. Y. State Rep., 880, it was held that it is the duty of a city to- keep its streets in repair, and it cannot relieve itself from this liability because certain street railways are required to bear a portion of the expense. To the same effect is People ex rel. Markey v. Brooklyn, 65 N. Y., 349.

After repaving, the city could recover from the railway company its share of the expense. City of Brooklyn v. Brooklyn R. B. Co., 109 N. Y., 301.

In People ex rel. James v. Gilon et al., 33 N. Y. State Rep., 842, it was held that an assessment of adjoining owners including tracks which should have been assessed to the street railway would be out of proportion and was set aside on that ground. The question came up there on certiorari. ,

The city should have exacted from the street railway its just proportion of the expense for re-paving. Perhaps the council assumed that after the completion of the job that corporation would pay its proportion of the $40,270.' The trouble in the case at bar is that the contractor got the full sum for re-paving thirty-seven feet, when in fact no contract was authorized to pave less than forty-two feet. Whether the council would have accepted Krause’s bid at the sum named for paving thirty-seven feet is not before the court. Ho such contract was contemplated or authorized by the council

If the engineer under authority to pave forty-two feet for a certain sum could make a contract to pave a less width for the same price, it is evident that competitive bids would be useless. The engineer could secure the job to a favorite contractor.'

Some evidence was admitted on the trial showing that it was -the custom or to omit from the contract the between the rails. It is unnecessary to say that the right to take the property of a citizen cannot be determined- by custom or usage. The power is statutory and cannot be divested except by complying with its provisions.

No-reasons are shown for assessing the lands on the north side of the street $1.25 more than those on the south side. The railroad had as much right to occupy the north side of the road for its tracks as the south side The exercise of this privilege by the company rested in its own discretion, and the lands on the north side could not be benefited,because a track which the company had a right to lay had not actually been built. There was no reason for making a discrimination between the value' of the two sides upon that ground. The assessors, therefore, (assuming they had power) adopted an erroneous principle in imposing heavier burdens upon the lands on the north side than those upon the south.

For tire reasons above stated, the judgment must be reversed and a new trial granted.

Judgment reversed and new trial granted, with costs to abide the final award of costs.

Dwight, P. J., and Macomber, J., concur.  