
    People ex rel. Charles Keller and one, Relators, v. The City of Buffalo, Defendant.
    (Supreme Court, Erie Special Term,
    September, 1912.)
    City of Buffalo — pavement of streets in—assessment upon property benefited — municipal corporations.
    Where after a street in the city of Buffalo had been paved for part of its width the pavement is extended its entire width, there is a repavement only to the width of the old pavement relaid at the same time; and under the provision of the city charter the expense of the new pavement on either side of the old roadway must he paid by assessment upon the property benefited and not by general taxation.
    Where, in connection with the widening of said pavement, it | became necessary to remove lamp posts and hydrants, the expense thereof is properly included in the assessment by order of the common council pursuant to section 272 of the charter.
    The authority vested in the commissioner of public works, under section 279 of the charter, “ to lay water pipes ” is broad enough to justify moving said hydrants.
    Motion for judgment on the writ 'and return in certiorari proceedings to review local assessment for repaving, etc., Main street, from the sonth curb of Amherst street to the south approach of the proposed grade crossing improvement.
    Frank M. Spitzmiller, for motion.-
    Clark H. Hammond, corporation counsel (Herbert A. Hickman, of counsel), opposed.
   Pound, J.

Delator raises by this.motion certain questions as to the legality of the assessment to pay the cost of the proposed improvement, to be decided on the undisputed facts.

First. It is urged that, the street having once been paved, the proposed improvement is 'a repcuvement, although the new pavement is to be five feet wider on each side than the old paved portion of the street. If the relator is correct in this contention, one-third of the entire expense of the improvement must be met by general taxation, but if the contention of the city prevails that the improvement is a repavement only to the width of the old pavement, the expense of the strips of new pavement on either side of the old roadway must be paid by local assessment on the property benefited and the assessment is properly so laid. City Charter, §§ 279, 400.

Ko case is cited which holds that, where a street has been paved part of its width, the subsequent pavement of those parts where no pavement has ever been laid is' a repavement, and the question is a novel one.

Matter of Grube, 81 N. Y. 139, where the Burmeister case, 76 N. Y. 174, and the Garvey case, 77 N. Y. 523, cited by relator, are explained and 'distinguished, indicates that it is only the relaying of the old pavement that can be termed a repavement.

Matter of Astor, 53 N. Y. 617, cited by relator, does not touch the question. Although TenEyck v. Rector, 65 Hun, 194, contains some loose expressions, defining paving and repaving, which migjht uphold relator’s contention that “ paving ” means when pavement is laid for the first time in a dirt road and that any subsequent paving thereof is “ repaving,” it decided merely that an agreement between landlord and tenant whereby the latter is to pay all assessments for paving is broad enough to include assessments for repaving.

The charter (§ 279) recognizes (a) repair of paved streets, by the commissioner of public works, and (b) repaving, when the commissioner certifies that it is not expedient to make further repairs. Repairing ” means restoration of the paved surface. “ Repaving ” means paving again, taking up the old pavement and replacing it with new. To the extent that the new pavement extends beyond the lines of the old, the street is not repaved but is paved for the first time.

If a street is paved for one-half its width by local assessment, and later the pavement is extended to the entire width of the street without disturbing the first pavement, probably no one would claim that the new pavement was a repavement. The circumstance that the old pavement is relaid at the same time that the new pavement is laid does not make the work one of repaving.

The purpose of the charter is, it would seem, to impose the entire original cost of new pavement on the property benefited and to charge the city at large with one-third of the expense of replacing the old pavement when it becomes worn out.

Second. It is urged that the assessment is erroneous because it includes an item of $70 for moving lamp posts and an item of $520 for moving hydrants. The work, of moving lamp posts and hydrants is necessary in connection with widening the pavement. If it were not done the lamp posts and hydrants would obstruct the new pavement. While it is not inducted in the plans and specifications nor in the contract, it is work which the commissioner of public works might do, if authorized thereto by the common council. City Charter, §§ 271, 272, Tit. X.

When the common council ordered the improvement without other provision for this work, it, by reasonable implication, authorized the commissioner of public works to set back the lamp posts and hydrants. When it ordered the expense to be included in the assessment, it provided for the payment thereof pursuant to section 272 of the charter. Section 279 of the charter authorizes the commissioner to lay water pipes ” without advertising for proposals to do the work, although the expense may exceed $500, and moving the hydrants comes fairly within the meaning of the term “ to lay water pipes.”

The contract for repaving and paving was let for $23,850, and the above items are relatively so small that the court “ should not be astute to find some means of setting aside what so far as the evidence shows is a meritorious assessment levied for the payment of the cost of a public improvement.” Gilmore v. City of Utica, 131 N. Y. 26, 34.

Motion denied and trial ordered to proceed forthwith.  