3 Abb. Ct. App. 30 | NY | 1861
— According to the obvious construction of the charter of Buffalo, as amended in 1856 (Laws of 1856, p. 143, § 19), the common council has no power to grade and pave a street at a cost exceeding two hundred dollars, except on the application of a majority of the resident property holders interested in the improvement. The certificate of the assessors is declared to be the evidence that such an application has been made.
The improvement in question embraced not only the grading and paving of Court-street, but also cross-walks upon that and the intersecting streets, and sewers and receivers. It was signed by twelve parties, who were certified by the assessors to be a majority of the property holders interested in such improvement and taxable therefor. It appears, however, from the roll made by the same assessors, that some twelve persons were taxed as holders of property on Court-street, and that out of those persons, only four were signers of the application.
The cost of grading and paving was laid wholly upon twelve, including the plaintiff and seven others, who did not unite in the application.
The expense of the intersecting cross walks was very properly laid upon them.
Thus, more than five-sixths of the whole improvement must be paid for, if the proceedings are- valid, by persons two-•thirds of whom did not apply for it.
This was wrong in principle and results; but the question is, whether the proceedings were regular. It is said they were strictly so.
The certificate of the assessors, it is claimed, was according to the statute, although it was falsified by their own subsequent action.
In my opinion the difficulty was this:
A costly improvement, that of grading and paving the street, which required the petition of those interested, was united with the auxiliary work of malcing sewers, &c., which require no such petition. By uniting these objects, a majority of those interested in both were procured to sign the application.
In a joint meeting of both classes of persons, more than half of all the individuals composing it would be found to favor the scheme. But I think the statute means that where the paving of a street will cost more than two hundred dollars, it must be applied for by a majority of those interested in it, and who must pay for it.
How the certificate of the assessors did not speak in this sense. It put the paving and the crosswalks together, and it only said that the signers of the petition were a majority of those interested in dll the objects which were in contemplation.
This mode of paving streets and compelling citizens to pay therefor, may easily lead to serious abuses. Every one can see that the. persons interested in paving a street and those interested in making the footwallcs which cross it at the corners of the intersecting streets, may be very different.
The one kind of work improves the particular street m which it is done. The other kind is, more properly speaking, an improvement for the various streets which intersect the former. The assessment, with obvious propriety, was made
The judgment of the supreme court should be reversed and that entered on the report of the referee affirmed.
In this opinion a majority of the judges concurred, S. L. Seldes, J., delivering an opinion to the same effect.
Judgment of the general term reversed, and that of the special term affirmed, with costs.