75 N.Y.S. 104 | N.Y. App. Div. | 1902
In and by his last will Billings P. Learned gave, devised and bequeathed to Leonard G-. Hun in trust certain. real estate situate in the city of Albany to receive the income, rents, issues and profits
We think the sewers and pavements must be considered to be permanent improvements. The law which authorizes the cost of their construction to be assessed upon the property intended to be benefited ” (see § 29, tit. 9, chap. 298 of 1883) proceeds upon the assumption that it is thereby made of greater permanent value. While it is true that sewers and ¡lavements will wear out with time and use the same is equally true of almost all material structures, and it seems to be the rule now that new structures added to the land which are of a beneficial character are to be regarded as permanent improvements. As between the owner and the city the land is primarily liable for the assessments, since such assessments are made liens thereon, and the land may be sold to pay them, but as between the life tenant, who has the present beneficial estate, and the remainderman, to whom the land is to ultimately come, equity will sometimes apportion the cost of such improvements as are here involved. (Thomas v. Evans, 105 N. Y. 611.) In Peck v. Sherwood (56 id. 615) there was a municipal
All concurred.
Judgment ordered in conformity with the opinion handed down.