
    Mark S. Hotchkiss, Respondent, v. The City of Binghamton, Appellant.
    Third Department,
    December 28, 1911.
    Municipal corporation — highway—construction of sidewalks — statutory obligation of city to pay part of cost — charter of city of Binghamton—notice — special contract.
    As the charter of the city of Binghamton requires the city to pay one-half the cost of new sidewalks constructed by property owners provided such cost does not exceed two dollars per square yard, and as property owners are by the charter obliged to construct sidewalks in front of their property, a notice stamped by the commissioner of public works upon an application made to him for the grade and specifications for a sidewalk which states that the permit to construct the walk is granted upon the express condition that the entire cost shall not exceed ninety cents per square yard for a five-foot walk and one dollar per square yard for a six-foot walk does not in any way affect or limit the liability of the city to pay one-half the cost of the walk constructed provided it is not more than two dollars per square yard.
    Where a corporation or person is chargeable by operation of law he cannot, by any act of his own, discharge himself.
    In the absence of proof that the property owner making the application assented to the terms of the notice, stamped thereon by the commissioner the notice does not amount to a special contract between him and the city.
    The mere building of the walk does not authorize the inference that the owner agreed that the city’s liability should be less than the amount fixed by the charter. ■ '
    
      It seems, that even if the notice constituted a special contract between the property owner and the city, its terms were immaterial, for the extent of the city’s liability was fixed by the statute and could not be changed by such a contract.
    Kellogg, J., dissented, with opinion.
    Appeal by the defendant, The City of Binghamton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 9th day of June, 1911, upon the decision of the court rendered after a trial at the Broome Trial Term, certain questions of fact having been submitted to the jury.
    The action was brought to recover the sum of eighty-three dollars and eighty-five cents, one-half the cost of constructing two cement sidewalks in the city of Binghamton, under section 178 of chapter 751 of the Laws of 1907, being'the charter of the city of Binghamton.
    This sectionprovid.es that “In case any sidewalks shall be paved or curbed by the owner with stone or any other material other than wood, approved hy the commissioner of public works, and such walk or curb being built for the first time, one-half the cost of such paving or curbing, exclusive of the cost of grading, shall, subject to the limitations in the next section provided, be paid by the city, but in no case shall the entire cost of such walk exceed two dollars per square yard for the purpose of fixing the amount to be paid by the city.” The next succeeding section, so far as material to this case, provides that the amount to be expended for the city’s share of the construction of permanent walks and curbs during any one year shall not exceed the sum of $20,000, and that whenever the cost to the city in any one year shall exceed that sum the excess shall not be collectible from the city during said year, but shall be paid from the amount authorized to be appropriated for sidewalk construction in the next succeeding annual tax budget.
    An application was made to the commissioner of public works by each of two property owners, assignors of the plaintiff, for grade and specifications for a cement walk. The applications were prepared by using printed forms furnished by the commissioner, and, when completed by filling in the written portion, were signed by the applicants. Each blank was as follows:
    “ Binghamton,--, 191-.
    “ To the Commissioner of Public Works :
    
    .“Sir.— I hereby make application for grade and specifications for a cement sidewalk to be laid on the-side of
    ——1- Street, Ho.--. My object in making this application is that the said sidewalk or Curbing may be laid in conformity with the rules and regulations of the commissioner of public works, and that on the completion thereof I may receive the rebate allowed in accordance with sections 178-179 of the City Charter.
    “I am the owner of said property, duly appointed by power of attorney recorded in the office of the Clerk of Broome County.
    
      it__V
    
    
      Above the applications and upon the upper margin of each blank, the commissioner had caused to be stamped in red ink some time prior to its delivery to the owners the following:
    “ This permit is granted upon the express condition that the entire cost of the sidewalk shall not exceed ninety cents per square yard for five foot wide sidewalk, and one dollar per square yard for six foot wide sidewalk, for the purpose of fixing the amount to be paid by the city.”
    The grade and specifications were furnished and the sidewalks were constructed five feet' wide in accordance therewith, and that fact was certified to by the city engineer and the commissioner of public works.
    It appeared upon the trial that the cost of the walks was one dollar and eight cents per square yard, and that the total cost was one hundred and sixty-seven dollars and seventy cents; that the comptroller refused to audit the claim at more than forty-five cents per square yard; that he did not question the statement of the owners that the walk cost twelve cents per square foot, but that he based his refusal solely upon the effect of the notice.
    
      Burr W. Mosher and Charles W. Yeomans, for the appellant.
    
      Edward K. Clark, for the respondent.
   Sewell, J.:

The only question necessary to be considered in this case arises out of the notice stamped in red ink upon the printed forms furnished for the applications. It is plain that the defendant’s charter imposes upon it the obligation of paying one-half the cost of a sidewalk if it does not exceed two dollars per square yard, and the inquiry, therefore, is, as to legal effect of the notice, whether it controlled or affected the rights of the parties. It is clear that it does not, but admitting, for the sake of the argument, that the commissioner of public works had a right or duty in respect of the city’s share of the cost of construction, and that he could, by a special mutual contract, protect it or reduce its liability below the amount fixed by the charter, I am of the opinion that the notice was not such a contract. It was at most a notice brought home to the owners that the city would not abide the liability which its charter imposed on it. It is clear- that such a notice does not amount in law to a special contract in the absence of proof that the owner assented to its terms. The notice is no evidence of an assent on the part of an owner, and it must be conceded that if the construction of the walk authorizes an implication of any kind the presumption is as strong, to say the least, that the owner intended to insist on his legal rights as it is that he consented to a reduction of the liability of the city. A special contract cannot, I think, be implied where there is such an equipoise of probabilities, .and in no other manner is it contended that one was established.

The city being, by the express terms of its charter, under a legal obligation to pay one-half the cost of constructing a walk (§§ 178, 179), and an owner being under a legal obligation to construct it (§§ 171-176), it is difficult to understand how the mere building of the walk authorizes the inference that the owner agreed that the liability of the city should be less than the amount fixed by the statute. Such a conclusion, I think, overlooks the important consideration that an owner has the right to insist that he shall be paid the amount fixed by the statute, and that he is not required to object under penalty of the loss of his legal rights. To infer, under the circumstances of this case, an assent to a contract waiving the statutory liability of the city would be not only making an inference contrary to the natural import of the transactions, but contrary to the expressed intention of the owners as set forth in their applications. The presumption rather is that the owners built the walks under the contract which the law creates and not upon the terms of the notice. It is, however, not necessary to rest the decision of this case upon the proposition that a special contract may not be inferred from the notice and the acts of the owners in building the walks.

If a special contract between the commissioner and the owners, or between the city and the owners, can be implied from such a notice, its terms are quite immaterial, for the extent of the city’s liability does not depend on such a contract. It is declared by law. If the city can, by such a notice, reduce the liability imposed upon it by the statute, no reason is perceived why it may not, in the same way, except itself from any liability. We are referred to no case in support of the position that where a corporation or a man is chargeable to a certain extent by the operation of law he can, by an act of his own, discharge himself. There is no principle upon which such a conclusion can be founded. If the entire cost of a walk should not exceed ninety cents per square yard “for five foot wide sidewalk ” it is the business of the Legislature to make that sum the limit of the cost for the purpose of fixing the amount to be paid by the city, and not of the courts. It follows.that the judgment should be affirmed, with costs.

All concurred, except Kellogg, J., dissenting in opinion.

Kellogg, J.

(dissenting):

The walks were constructed on standard specifications and many such walks were laid in the city at an expense of ten cents per square foot, and undoubtedly contracts could have been made with responsible parties to perform the work according to the specifications in every respect at that price.. When the contract was let to the plaintiff the owner called his attention to the rubber stamp provision which allowed only ten cents per square foot, but the contractor claimed that the city could pay two dollars under the charter. The plaintiff had taken several contracts to build walks upon these specifications at ten cents and less, and had taken many contracts at twelve cents. He says it costs more per foot to build a 50 foot walk than one of 100. The walks in question were one 136 feet, one 143 feet. As the plaintiff puts it, he usually gets twelve cents whether the walk is 50 feet or more; that the long job would help to make up what they lost on the short one. He says: “The man who had 200 feet of walk had to help pay to build the walk of a man who had but 50 feet of walk.” If the property owner is paying for his own walk he can undoubtedly employ the highest bidder if he chooses, but when the city is to pay a part of the cost it is but fair and reasonable that he should take advantage of the lowest bidder if the work is done according to the specifications. No effort was made to obtain a contract for these walks at ten cents, although it is evident that such contracts could have been made. The evidence tends to show that the walk in question had a granite finish, which finish was not called for by the specifications, made the walk more expensive and it is claimed that such walks are better. The rubber stamp provision was not intended to annul the charter provision or to deprive the property owner of one-half of the cost of the walk, but it was to limit the expense to the city to what was a reasonable and fair price and to what competent contractors were willing to" contract for according to specifications.

The plaintiff’s evidence is confined to proof of the cost of the particular walks in question with a granite finish. He offered no proof as to the cost of constructing the walks according to the specifications named in the application and permit. It appearing that responsible contractors were ready to build walks at ten cents, the action of the property owners in contracting with the plaintiff for twelve cents was unreasonable and the plaintiff and the property owners are fairly limited to •the ten cents mentioned in the rubber stamp provision.

The defendant was not permitted to show that at the time these claims were coming in there were other claims of the same character for sidewalks built by others than the plaintiff at ten cents per square foot and that other contractors were laying walks under those specifications at that price. The witness Meeker was building many walks under contract, and the defendant was not permitted to show that the contract price was ten cents. The exceptions to the exclusion of this class of evidence were well taken. It bore directly upon the question at issue as to the cost and the good faith of the agreement that ten cents should be the maximum price which should be considered in adjusting with the city. Under the charter the city was chargeable only where the application for a walk was approved of by the commissioner of public works, and in case he deemed its construction at that time unnecessary he could withhold his permit. If he knew that walks could be constructed by responsible parties according to the specifications at ten cents and he had known that the property owners were without question to pay twelve, it would be a proper discharge of his duty to say that the construction of the walk at that time was not necessary. When .lie was called upon to determine whether this walk should be built he knew, and probably the property owner knew, that some contractors were doing the work at ten cents and others at twelve, and they agreed between them that so far as the city was concerned it should be considered a ten-cent job. In other words, the construction of the walk on these specifications was permitted with the understanding that the highest bidder- was not to have the work. I think it was well within the power of the city and the property owners to make this contract, and, under the circumstances, it was entirely reasonable and proper. I, therefore, favor a reversal of the judgment and the order upon the law and the facts and the granting of a new trial, with costs to the appellant to abide the event.

Judgment affirmed, with costs.  