In the Matter of Phillips (60 N.Y. 16), this court held that flagging was a species of pavement, and that consequently a second flagging of a sidewalk, where it had previously been flagged, was a repavement. That if the sidewalk had once been paved with bricks, or in any other manner, a relaying of the same surface with flat stones would be a repavement. That the difference of material could not change the general identity of the work as embraced in the generic term. In the Matter ofBurke (62 N.Y. 224), it was held that the laying of a crosswalk with flat stones was a pavement, and that consequently relaying a crosswalk where one had previously been laid was a repavement.In the Matter of Burmeister (76 N.Y. 174), the same ruling was repeated, and it was held that the exception contained in the act of 1872, in regard to repavements of streets, applied to the reflagging of sidewalks which had once been flagged; that the street included the sidewalks as well as the carriageway, and that the legislature intended that all parts of the street, and every description of pavement, should be embraced in the exception, and that it was not intended to be confined to the repavement of the carriageway.
There is certainly nothing in any of these decisions which sanctions the idea that where the sidewalks of a street have once been paved, the pavement of the carriageway for the first time is to be treated as a repavement. But the later case of Re Garvey,
decided June, 1879 (77 N.Y. 523), is relied upon as sustaining that view. That case arose under section 22 of chapter 757 of the Laws of 1873, which provided that no street which had once been paved and the expense thereof paid for by adjacent owners by assessment, should be thereafter paved at their expense, unless upon petition of a majority of the owners, etc. A sidewalk which had once been paved with flagging, covering, however, only one-third of the width of the sidewalk, was afterward directed to be "flagged and reflagged
where not already done." The original pavement had been paid for by assessment. It was held that that sidewalk had once been paved within the meaning of the act. That the city, having once determined the character and extent of the pavement and laid it, had, under the act of 1873, no further jurisdiction to flag or pave that sidewalk at the expense of the property owners, without a petition as prescribed by the act. The remarks of the court are strictly confined to the sidewalk which was paved, and cannot fairly be construed as meaning that by once having paved the sidewalk the city had precluded itself, even under the act of 1873, from paving the carriageway if no pavement had ever been laid there. The present case arises under a different act, viz.: the act of 1875, chapter 476, section 1, which provides that in case any street shall have been once paved and the expense assessed upon property owners, the cost of repaving it shall be paid by a general assessment on all taxable property in the city. It cannot be pretended that the pavement of the carriageway of a street, where no pavement has ever been laid, is a repavement, because the sidewalks have previously been paved, and it is difficult to conceive how any such doctrine could be deduced from the cases cited. The case of Garvey does not even hold that where a sidewalk has been paved part of its width, the subsequent pavement of those parts where no pavement has ever been laid is a repavement. There was no question of repavement in the Garvey case. The word "repavement" does not occur in the act of 1873, section 22, which is the act under which the Garvey case arose. What is held in the Garvey case is that by the original pavement of the sidewalk and assessment therefor, notwithstanding that the pavement did not cover the entire width of the sidewalk, the city had, under the terms of the act of 1873, exhausted its power to pave that sidewalk at the expense of the property owners, without the required petition, and that is all that it decides.
The order of the General Term should be reversed and that of the Special Term affirmed, with costs.
All concur; MILLER, J., concurring in result.
Ordered accordingly.