136 N.Y.S. 471 | N.Y. App. Div. | 1912
Lead Opinion
The defendant as contractor constructed a cement walk in front of certain property in the city of Elmira owned by Ered M. Jones without having obtained a permit so to do. The action seeks to charge him therefor with a penalty of twenty-five dollars under section 166 of the city charter (Laws of 1906, chap. 177). Section 154 of the city charter reads- as follows:
Ҥ154. Said board of public works shall have exclusive power and authority to * * *
“h. Construct or build any sidewalk or any part or portion of any sidewalk in such manner and with such material as in the judgment of said board may be deemed best; repair any sidewalk upon any street or any part or any portion of any street in such manner and with such material as in the judgment of said board may be deemed best; regulate or change the width of space between a sidewalk and the curb line in the street. Provided, however, that the owner or owners of property along or in front of which a sidewalk is to be built or rebuilt, shall, upon request in writing to the superintendent of public works, be given permission to build or rebuild such sidewalk without expense to the city in conformity, however, with all requirements as to time of building or rebuilding, material*730 therefor, grade thereof, and manner and method of construction, of the board of public works. If such requirements are not complied with, the board of public works shall make said sidewalk conform therewith.”
Section 166, as far as it is applicable, provides:
“§ 166. Any person neglecting to comply with or violating any order, rule or regulation the said board is authorized by this act to make, or any of the provisions of the city charter relating to the streets, sidewalks or sewers in said city, shall be subject to a penalty not to exceed twenty-five' dollars for each offense.”
Among the rules adopted by the board of public works was the following: “That, in the construction of cement sidewalks, a strict compliance with the provisions of the city specifications, current edition, be. required,' and that permits- be refused, for a period within the discretion of the board of public works, to those who neglect or refuse to comply therewith. ” It is contended by the corporation counsel that under this rule no contractor is authorized to build a cement sidewalk who has not the permit of the board of public works.' The proper construction of the rule is not clear. It may refer simply to permits granted to owners and not to contractors. A penalty can only be imposed for the violation of a duty clearly pointed out, and the necessity of obtaining a permit by a contractor is not specified in this rule with sufficient clearness to subject him to. a penalty for the construction of the walk without, obtaming such a permit. If the rule were made clear, however, and required specifically that a contractor must obtain a permit from the board of public works in order to construct a walk, this is not a condition with which the owner is required to comply before he may employ a contractor to build his walk. By section 154 it will be seen that the owner has the right to a permit from the superintendent of public works to build a sidewalk in frontof his premises upon conf ormingwith certain requirements. One is as to the time of building; another as to the material;, another as to the grade, and another as to the manner and method of construction. If such requirements are not complied with the board of public works may, at his expense, make such sidewalk conform thereto. Among the requirements under which the
All concurred, except Kellogg, J., dissenting in opinion, in which Betts, J., concurred.
Dissenting Opinion
I cannot think that the prevailing opinion correctly interprets the charter provision. It is in error in assuming that the prohibitions of section 154 relate alone to the owner of the property. The section, by giving to the city the exclusive right to build walks, denies that right to all others, and, therefore, if any person builds a walk, it is in violation of the section and brings upon him the penalty. The owner may apply for
I favor a reversal.
Betts, J., concurred.
Judgment affirmed, with costs.