
    The People ex rel. The Troy & Lansingburgh Railroad Company v. James W. Coffey et al., Assessors.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Municipal coepobations—Assessment—Railroads.
    The charter of Trdy provides that whenever the common council shall order any street paved, one half of the expense shall he assessed upon the taxable property of the city and the other half assessed upon the property benefited. A resolution was passed by the common council directing the abutting owners to pave River street within ten days thereafter, and in default said work to be done by the city and api ortioned and assessed pursuant to law. The work was done_ by the city, and the assessors charged about one-third of the expense against the city at large, a like amount against the abutting owners and the balance against the relator, whose street car tracks ran through the street, such balance being the actual cost of paving between its rails and eighteen inches outside thereof. The assessors claim to have charged this amount against relator, not under the charter, but under an agreement contained in an ordinance granting a license to relator to lay its. tracks, which was accepted by it in writing. Meld, that, as appears by the resolution ordering the work, the city intended to assess the expense therefor according to its charter, and the idea of holding the relator under its agreement was an afterthought, and the relator having no notice to do the work under such agreement, or opportunity so to do, the assessment was unauthorized.
    (Herbick, J., dissents.)
    
      Certiorari to review an assessment- made by the local assessors of the city of Troy against the property of the Troy & Lansingburgh Eailroad Company for a portion of the expense of paving a certain street in said city.
    
      Smith & Parmenter (R. A. Parmenter, of counsel), for relator; William J. Roche, for def’ts.
   Putnam, J.

This certiorari is brought to review an assessment made by the board of local assessors of the city of Troy against relator’s property, amounting to $25,764.74, for paving a portion of Eiver street in said city in which relator’s tracks are placed. The facts, as stated in the case, as far as necessary to detail them,. are as follows:

“ Under the city charter, as amended by chapter 317 of the Laws of 1889, which last act went into effect on the 29th day of May, 1889, it is provided that ‘ whenever the said common council shall order any street, avenue or highway, which is forty feet or upwards in width, to be paved or macadamized and new curbstone to be set in connection with said pavement, one-half of the entire expense of such pavement or macadamizing and curbstone, including the pavement or macadamizing and cross-walks at the intersection of streets, avenues, highways, squares and alleys, shall be charged upon the real and personal property liable to taxation in the city of Troy, and shall be paid by the city at large, and the other half if such expense shall be assessed and be a lien upon the property benefited or to be benefited thereby as provided by this act ’

“ On the 9th day of September, 1889, the said common council passed, and in due time the mayor of said city of Troy approved, a resolution in these words, to wit: Eesolved. That the owners of property on Eiver street, from Hoosick street to the north boundary line of the city, be and are hereby ordered to cause said street to be paved with granite block pavement, and set twenty inch curbstone along the gutter line. Said work to be performed within ten days, and in default thereof the contracting board is hereby directed to cause the said work to be done, and the expense thereof shall be apportioned and assessed by the local assessors upon the property benefited pursuant to law.’

“ That the local improvement ordered by said resolution comprised the paving of said Eiver street with 'granite block pavement with a twenty inch curbstone along the gutter line of said street from Hoosick street to the north boundary line of the city of Troy, through and over the entire length of eleven city blocks, a distance of about four thousand six hundred and fifty-four feet, and said roadway of said street so ordered to be paved is about thirty-six feet in width, and the track of the Troy & Lansing-burgh railroad runs through the entire length and still further north and south, and the width of Eiver street is about sixty feet.”

It is conceded that the work directed by the foregoing resolution could not have been done in ten days. The authorities of the city afterwards performed the work directed to be done by said resolution, not however for the entire distance of River street, at an expense of $78,295.47.

The board of local assessors charged the said expense as follows r $25,764.74 against relator, $26,764.74 against the city at large and a like sum against the several owners of land abutting on River-street along the line of said improvement.

It appears by the return of the defendants that there are 7,487.53 square yards of paving between the tracks of said company in River street and for and including a distance of eighteen inches outside of each rail, which at the contractor’s price for said pavement, $3.40 per yard, and including a proper proportion incurred for incidental expenses, amounts to the sum above mentioned charged against relator. It thus appears that the board of local-assessors assessed against relator the actual cost of paving between its rails and eighteen inches outside thereof. The defendants in the return state that the relator is in fact benefited to the full amount charged against it by the new pavement.

It is evident that if chapter 317 of the Laws of 1889, which was in force when the ordinance of the common council of the city of Troy above referred to was passed, is applicable to the assessment complained of by relator, the action of the board of assessors was unauthorized. Under the statute, the board should have divided the expense of the pavement, $78,294.04, in two parts, one of which should have been charged to the city at large, and the other assessed against relator’s and the other property benefited.

But defendants in charging against relator the sum of $25,-764.73, on account of said pavement, did not, as appears by their return, attempt to do so under chapter 317 of the Laws of 1889, {supra), but claimed that such act did not apply to the assessment in question, because of the clause therein that “ nothing herein contained shall be held to repeal, modify or affect the condition or obligations of any existing contract or license between the city of Troy and any person or corporation. ” That on January 29,1867,. defendants passed an ordinance granting a license to relator to lay its tracks on the street in question, and other streets. That § 4 of said ordinance is as follows:

“ Section 4. That in laying down the rails they shall put trap rock or Belgian blocks on the inside and the outside of the rail, and also lay a line of granite or trap rock blocks on the outside of each rail, which shall be six inches deep, and alternating blocks eight inches square with six by eight inches, with sufficient cobblestone pavement to keep the blocks in place, and pave the space between the rails, and eighteen inches outside thereof, with Belgian pavement, and shall hereafter conform to such style of paving and stone used as the common council may order; and in case said company refuse, omit or neglect to do any act required to be done by this ordinance, then the same may be done by and under the direction of the common council, or the proper officers of the city, and the expense thereof shall be a lien upon said road; and the company, in accepting the license given under this ordinance, agree to pay such expense, and that such expense shall be a claim against said company, to be collected in an action to be brought by the mayor, recorder, aldermen and commonalty of the city of-Troy against said company.”

Said ordinance also provided that it was passed on condition, that the relator accept the same in writing, and it is not denied that said acceptance was afterwards duly made. Defendant insists, that this license, which was accepted by relator, created a valid contract on its part or liability to pave between its rails and eighteen inches outside thereof with such pavement as should be directed by the common council of the city, and on its failure to obey the order of the common' council the latter might lawfully do the work and charge the expense to relator as provided in the ordinance, and that under § 10 of the act of 1889, above quoted, this contract theretofore made between the city and relator, and the liability of the latter to obey the direction of the city in regard to pavement, was not affected.

I assume in this discussion that this position of defendants is correct, and without any careful examination of the matter am inclined to agree with the view of the counsel for defendants in that regard.

It being assumed, therefore, that the contract or liability of the relator made by the license above mentioned and its acceptance remains in full force, notwithstanding the act of 1889, can the assessment complained of be sustained ?

Although the city might enforce the contract or liability created by the license of January 29, 1867, and the acceptance thereof, it could also proceed and do the work in question and. assess therefor under the act of 1889. If the city intended to. pave the street its whole width pursuant to the provision of the latter act, its proper course was to pass such a resolution as it did, order the work to be done, stating that if not performed such paving and curbing would be done by the city and the expense apportioned and assessed on the property benefited.

If the city desired and intended to hold the relator to do th,e paving between its rails and for eighteen inches outside thereof,, under the aforesaid contract or license, it was bound to so inform the company. In some way to notify it that the city, under the license, required it to pave with granite'such portion of the street as it was bound thereunder to pave: It will be seen, under § 4? {supra), that if pavement other than “ Belgian ” is required to be used, an order of the common council is necessary. The city was also required to give relator a reasonable time within which to perform the work. It is conceded that it was impossible to do so within ten days or within a much longer time.

It is evident that when the common council passed the resolution referred to, it was not with the view of holding the company to the liability imposed upon it by the license. It was intended to. charge the whole expense as provided by the act of 1889 upon the city and property benefited. But the city, being about to place in the street in question a new granite pavement, was compelled, if it desired to hold the company to its obligation to pave, under § 4 of the ordinance of 1867, to pass a proper ordinance, to give notice of what it required, to demand performance, and to allow a reasonable time to do the work.

I am unable to see that defendants have ever given any such notice. The resolution of the. common council referred to was in fact a notice that no claim was made under the license, It was not directed to relator, but to owners of property on the street, and states that the expense of the improvement would be charged on the property benefited. Under the license relator is not charged with the improvement on the ground of benefit to its property, but on the ground of the liability incurred by the acceptance of the license; a liability incurred in consideration of the right of running its cars in the streets of the city. The com-, pony would be liable if the new pavement, instead of being a* benefit to it, was in fact an injury. It, therefore, never had any notice that the city intended to hold it to the liability under the license, or that it was required to do the paving, or any opportunity to do such work. 1, therefore, am of the opinion that no liability on the part of the relator to pay for the expense of the aforesaid paving existed except such liability to an assessment for its pro rata part of one half of the cost of the work as may exist under the act of 1889.

I also think that under § 4 of the ordinance of 1867 the defendants were not authorized to make the assessment in question. The remedy of the city as provided by the ordinance, if it was in fact authorized to do the work in question at the expense of the company, is by action. The assessment in question for such work, if not reviewed after four months, might be deemed made under the act of 1889, and by lapse of time conclude the company.

Defendants suggest that it appears by the return that relator made no objection to the work as it was progressing, but assisted and aided therein, taking an active and affirmative part in connection with such work. That having laid by until the paving was done, relator should now be estopped from objecting to the assessment therefor. The answer to this proposition is that relator1 had no notice, direct or indirect, that the city was paving between the rails and for eighteen inches outside under the provisions of § 4 of the ordinance of 1867. By the resolution of September 19, 1889, under which the pavitfg was done, the company had the right to believe that the city did not intend to enforce its liability under § 4, supra. Such resolution was notice to the company that the city did not so elect Under it the expense of all the work was to be apportioned and assessed upon the property benefited pursuant to law, that is under the act of 1889, one-half on the property benefited and one-half on the city at large. Therefore, the company is in no way estopped, no. demand being made and no notice, express or implied, given that the city was doing the work under the license of 1867. It might be argued with considerable force that the city, by and under the language of the resolution of September 19, supra, is estopped from making any claim against relator as licensee for the work done thereunder.

As above suggested, it is evident that when the city passed the resolution in question the liability of relator under the ordinance of 1867 was not thought of. It was then intended to assess the-expense of the work provided by the resolution under the act of 1889, and the idea of holding the company under the provisions, of § 4 of the sáid ordinance was an afterthought.

I think, therefore, that assuming that the city could have compelled relator to do the paving in question by giving proper notice,, making a proper demand and affording the company a reasonable-time to do the work, yet, having failed to give the notice or make; the demand or afford any reasonable time to do the paving, the assessment in question is unauthorized.

There are other questions raised in the case which it is unnecessary to discuss.

I think the assessment in question should be reversed and set aside, with fifty dollars costs and disbursements.

Mayham, P. J., concurs; Herrick, J., dissenting.  