Lilienthal v. City of Yonkers

Full title: SUSAN P. LILIENTHAL, Respondent, v . THE CITY OF YONKERS, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 1, 1896

6 App. Div. 138 (N.Y. App. Div. 1896)

39 N.Y.S. 1037

Opinion

June Term, 1896.

James M. Hunt, for the appellant.

Frederick W. Holls and Joseph F. Daly, for the respondent.

BROWN, P.J.:

We deem it sufficient in this case to state our conclusions upon the questions presented and the result we have reached upon the whole case.

First. The work done on North Broadway in the year 1875 and for which an assessment was levied upon the plaintiff's property was not paving. In the assessment roll put in evidence by the plaintiff the work is designated as "gravelling." The claim that the road was paved appears to rest upon the provision of the specifications that it was to be "ballasted" with stone. This was required, however, only upon a strip twenty feet wide "where designated on plans," and it is conceded that the points so designated on the plans were all south of the plaintiff's property. The estimates for ballasting and gravelling contained in the specifications show that the road was to be ballasted upon less than one-fifth of its entire length. It was to be covered over its entire length with five inches of gravel and one inch of earth, which was to be rolled with a city roller, as directed by the inspector in charge. The charter of the defendant distinguishes between gravelling and paving, and the work done in 1875 could not, in our judgment, be properly designated as a pavement.

Second. The work for which the present assessment was levied was pavement. In the specifications the work to be done on the street is designated as "Macadam pavement" and "Telford Macadam." The "gutter pavement" was to be of stone. The character of the work called for fulfills the meaning of the word "pavement" as defined by lexicographers and as it is understood in ordinary intercourse. The meaning of the word cannot be limited by the particular material used on the street, nor has it reference solely to the manner in which the material is spread upon the street. Any substance which is spread upon the street so as to form a compact, hard or level surface or floor, may be properly designated as pavement. ( In re Phillips, 60 N.Y. 22; Warren v. Henly, 31 Iowa 31; Burnham v. The City of Chicago, 24 Ill. 496.)

Third. The proceedings of the common council in the awarding of the contract were regular and valid. The respondent's contention on this branch of the case is answered completely by the case of Tingue v. The Village of Port Chester ( 101 N.Y. 294). The provision of the charter of Port Chester there considered was as follows: "Upon the day mentioned in the notice, or upon such other day as the trustees may adjourn to for such purpose, the president shall, in the presence of the trustees, open the sealed proposals for constructing the work; * * * the trustees shall then determine whose is the most favorable proposal, and may then, by a vote of two-thirds of all its members, to be ascertained by taking and recording the ayes and noes, authorize and direct the construction of the proposed work, and accept the most favorable proposal." (Laws of 1868, chap. 818, tit. 5, § 23.)

The provision of the defendant's charter required the mayor or the presiding officer to open the proposals in the presence of the common council on the day named in the notice, or upon such subsequent day as the common council might adjourn to, and provided that "the common council shall determine which proposal is the most favorable." It differs from the Port Chester charter only in the omission of the word "then" from the last sentence. We have not been impressed with the force of the respondent's argument by which he attempts to distinguish the present case from the case cited. If the contention that the trustees of the village of Port Chester were bound to determine the most favorable proposal immediately upon the opening of the bids and before adjournment could not be sustained under the language of the charter of that village, a similar contention based upon the provisions of the defendant's charter must certainly be overruled.

Fourth. It follows from these conclusions that the plaintiff's property was not under the defendant's charter wholly exempt from an assessment for the work done on the street, but was liable for one-third of the expense thereof. (§§ 2, 16, tit. 7 of the charter [Laws of 1881, chap. 184], as amended by chap. 465, Laws of 1890.) We are of the opinion, however, that these sections do not relate to the setting of the curb and the pavement of the gutter. The law relating to the assessment for that part of the work is contained in section 21, title 7 of the charter, as amended by chapter 19 of the Laws of 1887, and directs that "the expense therefor shall be assessed by the assessors with the expenses of * * * paving such street or highway, in the same report and assessment upon the lots of land only that shall front upon such street * * * and in proportion to their respective frontages thereon."

The expense of paving the street is to be assessed upon the several lots of land benefited by the improvement, but the expense of setting the curb and making the gutters is to be assessed only upon lots fronting upon the street, in proportion to their respective frontages.

Our conclusion is that the judgment should be modified so as to provide that the plaintiff's property is liable to be assessed for its proportionate part of one-third of the total expense thereof, to wit, for the sum of $791.53 and for the sum of $931.59 for the expense of gutters and curbs, amounting in all to $1,723.12, and as so modified the judgment should be affirmed, without costs of appeal.

All concurred, except PRATT, J., not voting.

Judgment modified as stated in the opinion, without costs.