200 N.Y. 218 | NY | 1910
In the year 1907 the village of Glens Falls adopted an ordinance under which Grove avenue was graded and paved, one-half at the expense of the village and the other half by an assessment upon the owners of lands adjoining upon the street. The assessment of the owners was made upon the basis of the feet frontage of their respective lots. The plaintiff was the owner of a lot fronting upon the street at the corner of Grove avenue and Davis street, and in addition to being assessed for the number of feet frontage upon Grove avenue was also assessed for one-quarter of the space of the paving of the intersection of Grove and Davis streets, amounting to $72.64. The assessment, however, was for the gross sum of $185.25, which left $112.61 as the assessment of his feet frontage. This amount he paid, but refused to pay *220 the other amount, $72.64, which is the subject of this controversy.
The village of Glens Falls was incorporated under the General Village Law, but by chapter 29 of the Laws of 1908 the village was changed into the city of Glens Falls, and duly incorporated as such, succeeding to all of the rights and liabilities of the village.
The Village Law, now incorporated in chapter 64 of the Consolidated Laws, unchanged so far as it may bear upon the question under consideration, in substance, provided that the board of trustees may cause a street in the village, or part thereof, to be graded or sidewalked, flagged or curbed, or the street paved, or any one or more of such acts, performed wholly at the expense of the village or of the owners of the adjoining lands, or partly at the expense of each. It further provided that "no landowner shall be required to grade, flag, curb or pave, or bear the expense of so doing, any portion of the street not in front of such land, nor beyond the center of the street." (Section 166.)
As we have seen, the village assumed one-half of the expense of the paving of Grove avenue, the other half was assessed upon the owners in the manner to which we have called attention. The question is thus presented as to whether the expense of paving the space at intersecting streets can be charged upon the owners or must be borne by the municipality. The Appellate Division reached the conclusion in this case that it must be borne by the municipality, and, therefore, gave judgment in favor of the plaintiff for the amount of his claim. The court appears to have reached this conclusion upon the theory that the plaintiff's lands were bounded by the exterior line of the street, and, consequently, that the fee of Davis street was not in him, and, therefore, the space occupied by the intersecting streets was not in front of his lands within the meaning of the statute. The inference to be drawn from this conclusion is that, as to the owners of lands upon street corners, whose title extends to the center of the street, they would be chargeable with the expense. We hesitate about *221
adopting this conclusion. It makes a distinction between the owners of the fee in the street and those who are not owners that has not heretofore been made by any authority to which our attention has been called. The general custom in the state, as stated by VANN, J., in Smith v. City of Buffalo (
We are thus brought to a consideration of the force and effect that should be given to the provision of the statute which relieves the owner of lands from being required to bear the expense of paving any portion of the street not in front of his lands. It is contended that the lands included in the intersecting streets are in front of the plaintiff's lands within the meaning of this statute, under the authority of Holmes v.Carley (
In the case of City of Schenectady v. Trustees of UnionCollege (
In view of what was said in that case we think we should hold, in construing this statute, that the intent of the legislature was to limit the liability of the owner to that which was in front and did not include the paving of the intersecting streets.
We are aware that the effect of so holding operates in this case to create a deficiency and would in every case where the assessment is made upon such basis. Such a result would be intolerable and could not have been so intended by the legislature. It, consequently, is apparent that the basis adopted was erroneous and that the deficiency created resulted therefrom.
The municipality, in this case, took upon itself the burden of paying one-half of the expense of paving the entire street. This was more than sufficient to pay for the space included in the intersecting streets and must be deemed to have been paid for that purpose. The amount of tax, therefore, assumed by the municipality should be deducted from the gross sum that the pavement cost and the balance thereof assessed pro rata upon the lands of the abutting owners according to the feet frontage of their respective lots. Had this basis been adopted then no shortage would have resulted and the entire cost of the pavement would have been provided for. This, we understand, to be the basis adopted in the case of Conde v. City of Schenectady
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CULLEN, Ch. J., GRAY and HISCOCK, JJ., concur; VANN, WILLARD BARTLETT and COLLIN, JJ., concur in result.
Judgment affirmed. *224