
    Margaret S. Theall, Respondent, v. The Village of Port Chester, Appellant.
    Second Department,
    January 26, 1906.
    Municipal corporation — opening of streets in village of Port Chester — specific performance of contract by village to purchase lands denied.
    The expense of opening streets under the amendment to section 4'of title 5. of ■ the charter of the village of Port Chester, made by chapter 219 of the Laws of 1902, cannot he charged upon the village at large.
    When in an action for the specific performance of a contract by said village to purchase lands of the plaintiff for the opening of such street, the contract provides that the plaintiff’s portion of a local assessment Le deducted from the purchase price and that the plaintiff shall not he paid until the levy of such assessment, a decree of specific performance cannot be founded on the failure of the authorities to make such local assessment if the complaint' presents no such issue and the action is tried on the theory that such local assessment mis unauthorized. . . -
    Appeal by the defendant, The Village of Port. Chester, from a judgment of the Supreme Court in favor of the plain tiff,, entered in the office of the clerk of the county of Westchester on the 11th day of February, 1905, upon the decision of the court rendered after a trial at the Westchester Special Term.
    Suit for specific performance- of a contract of purchase by the ■ defendant of the plaintiff’s land. .
    The trustees of the defendant had passéd a resolution by the' unanimous vote of all of .them-to open Locust avenue, and had entered into a, .contract of purchase of the plaintiff’s land in the line thereof, all as authorized by section 4 of title. 5 of the village charter.
    The contract is in sum and substance that the trustees shall pay the plaintiff $.1,387 “in cash” for her land; that the conveyance shall be delivered “ within five days after the written .request ” of 'the trustees; that the trustees are permitted to take possession of the land whenever they see fit after they shall have made the contract for the making and grading, but in order to do so they had to give to the plaintiff a certificate of indebtedness by the village to her for the purchase price, to be by her held as a guaranty of good faith that the contract with her would be carried out, and to be surrendered up by her on the delivery of the conveyance; that she might, however, meanwhile use the said certificate of indebtedness to pay any assessment cast on her remaining lands for the improvement, on her indorsing thereon a payment equal to the amount of such assessment; that- if both parties agree the conveyance may be delivered prior to the commencement of the said work, in which ease the trustees had to give to her such a certificate of indebtedness? payable sixty days after the issuance of the warrant for the collection of the local assessments for the improvement.
    The other facts are in the opinion.
    
      Jerome A. Peek, for the appellant.
    
      Ralph E. Prime, for the respondent.
   Gaynor, J. :

This case, following the complaint, was tried on the theory that the amendment by chapter 219 of the Laws of 1902, to section 4 of title 5 of the charter of this village provided, for a new and ihde: pendent scheme in and of itself for street openings and improvements, irrespective of the rest of the said section, and that, as it prescribes, ho local assessments* the expense for improvements in am gurated under it is a charge on the village at large, and the learned court acquiesced in that construction. This we decide to be error in Matter of Locust Avenue, decided herewith (110 App. Div. 774), And the contract of purchase shows that this theory wás anafterthought.'for by its provisions local assessments' were, tp be, levied for the improvement, the assessment that would be cast against the plaintiff’s remaining land was to.be offset against the purchase price of her land, and she' was to' await the levying of the assessments before being paid. If the fund realized from the assessments should not suffice.to pay her, then the Village has topa.y her; for one whose land is taken for a local improvement cannot be made to depend for payment on local assessments therefor alone; thexState or one of its .political subdivisions or municipal corporations has to be pledged to such payment (Sage v. City of Brooklyn, 89 N. Y. 189).

The judgment, of specific performance, i. e., that the village accept the conveyance and pay the purchase price, .cannot be ;sustained on the ground of neglect or refusal to.' cast thé local assessment. The complaint presents no such.issue; on the contrary, the theory of the action is that there could -be' no local assessments. ■

The judgment should be reversed and complaint dismissed, with costs. ' . •

Hirschberg, P. J., Woodward, - Jerks and Hooker,. JJ., concurred. ■

Judgment reversed,- with cosfs, and complaint dismissed, with costs. . .  