
    The City of Schenectady, Resp’t, v. The Trustees of Union College, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 21, 1894.)
    
    1. Municipal cobbobation—Local improvements—Assessments.
    The word "lot” cannot be held to designate land in an open, public street.
    2. Same.
    The charter of the city of Schenectady contains no provision, conferring authority to imp ise the expense of paving a street, in front of an open intersecting street, upon the owner of the fee of the land in such street.
    3. Sam:e.
    Under the city charter, the paving in front of such open streets can, it seems, be done at the expense of the city, and, in equity and justice, it should be so done.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an Order which affirmed a judgment in favor of plaintiff entered upon a report of a referee.
    
      Robert J. Landon, for app’lt; Alonzo P. Strong and Everett Smith, for resp’t.
    
      
       Reversing, 49 St. Rep. 161.
    
   Earl, J.

This action was brought under the charter of the city of Schenectady, chapter 385 of the Laws of 1862, as subsequently amended, to recover the expense of paving Union street in front of two lots alleged to have been owned by Union College. The plaintiff recovered and this appeal brings that recovery under review.

The paving was in Union street in front of two streets which ran into it and in which streets Union College owned the fee of the land subject to all street servitudes. The claim of the defendant is that under the city charter, the ordinance and proceedings for paving the street, and the allegations contained in the complaint, it cannot be made liable for the expense of paving in front'of the two streets, simply because it owned the fee of the land therein. Section 8 of the city charter provides that “ the common council shall have power under the restrictions and limitations hereinafter provided to lay out, open, widen, alter, construct and make any street, avenue, highway, lane, alley, public ground, square, park, sewer, drain, culvert, arch, bridge, well or reservoir in said city, and to cleanse and remove obstructions from sewers and drains. The expense and costs of all such improvements shall be borne by the owners or occupants of the lots or parcels of land benefited thereby, and shall be apportioned, assessed and collected according to the provisions hereinafter contained, and shall be a lien upon such property from and after the time of the confirmation of the apportionment and assessment thereof.”

For the improvements mentioned in that section it cannot well be contended that the land in an open public street would be liable to assessment. Section 42 provides that the common council shall have power from time to time to adopt ordinances directing any of the streets of - the city, or any part of them, to be graded, paved, etc.. “ at the expense of the owners or occupants of the lots and buildings lying upon ” them, etc. The land lying in an open public street is in no proper sense a city lot, and the owner of the fee in such street is in no proper sense the owner of city lots lying upon the street to be paved. Other provisions of the charter make this more plain. Section 44 provides that Immediately after the adoption of any such ordinance, and at least thirty-days prior to the expiration of the time therein limited for the doing of such work, the superintendent of streets shall serve, or cause to be served, a written or printed copy of such ordinance on each of the owners or occupants of the lots and buildings affected thereby, either personally or by leaving the same, directed to such owner or occupant, or both of them, with some person of suitable age and discretion upon such lot or lots.” Section 45 provides that “ In case any of the buildings or lots shall be vacant or unoccupied, or no person of suitable age and discretion shall be found, thereon, and the owner or owners thereof shall not reside in said city, or shall be unknown, or an infant or infants, in addition to publishing such ordinance as above directed, it shall'be sufficient service of notice thereof to affix a copy of the same on some conspicuous part of said vacant or unoccupied premises, directed to the owner generally, if not known, or by name if known.”

These sections show that the lots spoken of are such that notices may be affixed upon them, and that certainly cannot be done upon an open, public traveled street. Section 48 provides that the expense of paving in front df a lot may be recovered by suit against the owners thereof; and under § 49, instead of suing the owner, the common council may assess the expense upon such lot, and the assessment may be enforced by a sale of the lot, and in case of a sale “ the same notice of sale shall be given and the same proceedings had, and the sale of such lot shall be conducted and effected in the same manner and with the like effect as above provided in reference to the sale of lands for unpaid assessments for the laying out, opening and constructing streets, el cetera, and the purchaser shall be entitled to the same remedies to obtain possession of the premises sold.” Certainly an open, public street cannot'be a lot within the meaning of that section whereof the purchaser of the tax sale can obtain title and possession.

We have carefully examined the city charter, and we find in none of its provisions any authority to impose the expense of paving a street in front of an open intersecting street upon the .owner of the fee of the land in such street.

In all the proceedings of the common- council relating to the paving of Union street, the persons to be made liable for the expense thereof were spoken of as the owners of the lots of land abutting and-fronting upon Union street; and in the contract made in pursuance of the ordinance for the paving of the street, the work in front of each lot was separately provided for, and a distinct price was stipulated for paving in front of each lot upon the street. The whole number of lots was upwards of fifty, and for the paving in front of the two alleged lots now in question the stipulations in the contract were as follows:

“ Upon that portion of said street lying in front of the lot on the north side thereof and abutting thereon, reputed to be owned by the trustees of Union College, etc., aforesaid (which lot is bounded easterly by the easterly line of Gillespie street, and westerly by the center line thereof), and lying between said lot and the center line of Union street, and between the extensions of the easterly and westerly lines of said lot to’the center line of Union street, the sum of $134.64.”
“ Upon that portion of said street lying in front of the lot on the north side thereof and abutting thereon, reputed tó be owned "by the trustees of Union College, in the town of Schenectady, in the state of New York (which lot is bounded on Union street easterly by the center line of Union avenue, and westerly by the westerly line of Union avenue), and lying between said lot and the center line of Union street, and between the extensions of the east and west lines of said lot to the center line of Union street, -the sum of $346.92.”

This action is to recover the sums thus stipulated; and it is thus seen that what the plaintiff seeks to recover is not for paving in front of any other lots owned by the defendant, but for paving in front of the open streets which the common council assumed to designate as lots.

In the complaint the action is based solely upon the claim to recover for paving in front of these open streets. There is no allegation as to the ownership 'by the college of any other lots bounded on Union street, and its liability is in no way based upon its ownership of any other lots.

It is argued on behalf of the city that the college should be treated as the owner of a lot in front of this paving done in Union street, because it owned the corner lots on Union street and the intersecting streets. But it has paid, as we must assume, for the paving in front of the corner lots, and the sums sought to be collected in this action have been treated in all the proceedings of the city, and in the complaint in this action, as due from the defendant solely on account of its ownership of the fee of the land in the intersecting streets.

It is further argued that it must have been the intention of the legislature that the owners of the fee of the land in the intersecting streets should be liable for the paving in front of such streets, so that the streets to be improved may be continuously paved and the expense thereof provided for. But there can be no doubt that under the city charter the paving in front of these open streets could be doné at the expense of the city, and equitably and justly it should be so done.

According to the common, ordinary use of the word lot it cannot be held to designate land in an open, public street. The fee of a street is of such inconsiderable value that the owner thereof is rarely, if ever, spoken of as the owner of the street. The public, represented by the city, has the paramount right in the streets, and may, with greater propriety, be called the owner of the streets.

Without, therefore, considering the other defenses in this action, which have been much relied on by the defendant, we have reached the conclusion that the paving here in question was not in front of any lot owned by it, within the meaning of the charter, and that it was not. therefore, liable for this paving.

The judgment should, therefore, be reversed, and as a recovery upon a new trial is not possible the complaint should be dismissed, with costs.

All concur. Judgment accordingly.  