
    Pierson E. Sanford, Appellant, v. The Village of Warwick, Respondent.
    
      Village Law■—what direction of milage trustees to construct a sidewalk is not the consent required by lection 163 of the Village Law.
    
    Section 161 of the Village Law (Laws of 1897, chap. 414) provides that the hoard of trustees of a village may construct sidewalks upon the streets of the village, “wholly at the expense of the village, or of the owners or occupants of the adjoining land, or partly at the expense of each.”
    Section 163 of the Village Law provides: “Whenever the owner or occupant of lands adjoining a street shall, with the consent of the board of trustees, construct a sidewalk of stone, cement, brick or other similar material along the line of such land, of the width of four feet or more, and of the value of at least four dollars per lineal rod, the board of trustees * * * may pay to such owner or occupant from the street fund of the current year one-half of the cost of such sidewalk.”
    The board of trustees of a village, the residents of which had usually constructed stone sidewalks at their own expense, claiming to act under the provisions of section 161, adopted a resolution directing a property owner to construct a flagstone walk four feet wide in front of his premises. Previous to the adoption of this resolution the board had, at the same meeting, passed a resolution providing that the sidewalks in the village should “be laid by the abutting property owners at the cost of said property owners as heretofore.”
    
      
      Held, that the resolution directing the construction of a flagstone walk four feet in width did not constitute the consent required by section 162 of the Village Law and entitle the property owner to recover from the village one-half of the cost of constructing the sidewalk.
    Hirschberg, J., dissented.
    Appeal by the plaintiff, Pierson E. Sanford, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 18th day of September, 1902, upon the decision of the court, rendered after a trial at the Orange Special Term, dismissing the plaintiff’s complaint.
    
      John J. Beattie, for the appellant.
    
      M. N. Kane, for the respondent.
   Woodward, J.:

The plaintiff brings this action to recover one-half of the cost of construction of a certain flagstone walk in the village of Warwick, claiming the right under the provisions of section 162 of the Village Law (Laws of 1897, chap. 414), the defendant having recently abandoned its special charter (Laws of 1867, chap. 385, as amd.) and coming within the provisions of the general law. The board of trustees of the defendant village, claiming to act under the provisions of section 161 of the Village Law (as amd. by Laws of 1899, chap. 326), which provides that the board may “ construct and repair sidewalks upon such a street (the streets of the village) wholly at the expense of the village, or of the owners or occupants of the adjoining land, or partly at the expense of each,” adopted a resolution directing the plaintiff, with others, to construct a flagstone walk, four feet in width, in front of his premises. The board had, at the same meeting, adopted a resolution that “ the sidewalks in the village of Warwick be laid by the abutting property owners at the cost of said property owners as heretofore,” and the notice served upon the plaintiff by the village clerk stated that the walk was to be constructed at his own expense. The walk was constructed, and the plaintiff now seeks to recover one-half of the cost of the same, urging that the direction of the board of trustees of the village to construct a flagstone walk four feet in width constitutes the consent required by section 162 of the Village Law. This section provides : “ Whenever the owner or occupant of lands adjoining a street shall, with the consent of the board of trustees, construct a sidewalk of stone, cement, brick or other similar material along the line of such land, of the width of four feet or more, and of the value of at least four dollars per lineal rod, the board of trustees shall credit such owner or occupant on account of his assessment for street taxes in such village, three-fourths of the actual and necessary expense of constructing such sidewalk; or, instead of such credit, may pay to such owner or occupant from the street fund of the current year one-half of the cost of such sidewalk.” This provision must be read and construed in connection with the absolute power given to the board of trustees under the provisions cf section 161, and it seems entirely clear to us that it was the intention of the Legislature, in adopting section 162, to give an additional discretionary power, not inconsistent with the powers already granted, but supplemental thereto, which would enable villages which had been using plank or other inferior materials, to offer an inducement for the construction of stone, cement or brick walks. For instance, where under the provisions of section 161 or similar statutory provisions the owners of property had been compelled to construct plank walks of varying widths at their own expense, and where it would be inequitable to compel their neighbors to construct more expensive walks, it was intended that the board of trustees should have the power by a formal manifestation of their consent to bear a portion of the expense of making better walks. This would enable the owner of a plank walk to make use of the same, and to rebuild it if he saw fit, or to take advantage of the provisions of section 162, with the consent of the board, and make a permanent walk, which the community would help to pay for, and in this way there could be a gradual change of ■sidewalks without working any hardship to any one. In Warwick, it appears, they have usually constructed stone walks; that was the custom to a considerable extent, we may infer, under the special act of incorporation {supra), and the board of trustees, acting under the authority of section 161, resolved to continue that policy,'as well as to continue the policy of compelling the owner to pay all of the expense, and the resolution directing the constructing of a stone walk was not, therefore, the consent contemplated by the provisions ■of section 162, and the learned court below did not err in reaching the conclusion that the plaintiff had failed to establish a cause of Action.

The judgment should be affirmed, with costs.

Goodrich, P. J., Bartlett and Jenks, JJ., concurred; Hirsch-RERG-, J., dissented.

Judgment affirmed, with costs.  