#### The City of New York, Respondent, *v.*Augustus C. Brown, Appellant.

(Supreme Court, Appellate Term,

April, 1899.)

1. Municipal corporations — When a sidewalk -is *“*flagged ” within an ordinance requiring the removal of - snow and ice under a penalty.

Under a city ordinance requiring the removal within a certain time of ice and snow from sidewalks and gutters, but excepting streets and avenues, in certain outlying wards, “ which have not been curbed, guttered and flagged ”, a sidewalk, in a street curbed and guttered, is to be 'deemed sufficiently “ flagged ” to make the abutting owner liable for the penalty imposed by the ordinance where a line of flags four feet in width has been laid in the center of the sidewalk, although the entire width was not covered by flags.

2. Former adjudication — Oral evidence insufficient.

Mere oral testimony of the owner of property that a former action brought by the city to recover a like penalty was dismissed on the merits, no judgment roll being produced nor any. legal evidence given as to the disposition of the case, is insufficient to support the defense of a former adjudication.

Appeal from a judgment, in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhattan, for the eleventh district.

Augustus C. Brown, for appellant.

Adrian T. Kiernan, for respondent.

Leventritt, J.

This, action was brought to recover a penalty from the defendant for a violation of section 690 of the Revised Ordinances of -the Mayor, Aldermen and Commonalty of the City of New York. The violation consisted in the failure to remove snow and ice, within the time prescribed by the ordinance, from the sidewalk and gutter in front of certain unimproved property owned by the defendant and located at the northwesterly corner of Seventh avenue and One Hundred and Forty-seventh street, in the Twelfth ward of the borough of-Manhattan.

The ordinance in question is as follows:

*219“ Every owner, lessee, tenant, occupant or person having charge of any building or lot of ground in the city of New York, shall, within eight hours after the fall of any snow, and within eight hours after the forming of any ice on the sidewalk or in the gutter in front of any such building, or lot, remove, or cause the same to be removed; from such sidewalk or gutter, under the penalty of three dollars for every such neglect, to be paid by the said owner, lessee, tenant, occupant or person having charge, severally and respectively; but where such snow falls or ice forms between the hours of .eight o’clock in the evening and five o’clock in the morning, this ordinance will be complied with by removing, or causing. the same to be removed, before nine o’clock of the morning succeeding its fall or formation. The provisions of this section shall not apply to streets or avenues in the Twelfth, Twenty-third and Twénty-fourth wards, which have not been curbed, guttered and flagged, nor to the streets and avenues not opened according to law and the title thereto vested in the Corporation of the City of New York.”

The defendant, admitting his failure to remove the snow, resists liability on the ground that the premises being situate in the Twelfth ward, and the avenue in front of them not being guttered or flagged, the exception in the ordinance applies, and hence that it is not incumbent on him to remove snow and ice.

It will be observed that the provisions of the ordinance do not apply to streets or avenues in the Twelfth ward “ which have not been curbed, guttered and flagged,” and the plaintiff must, therefore, show that the conditions upon which the penalty attached clearly existed. Commissioner of Pilots v. Vanderbilt, 31 N. Y. 265. It must establish the concurrence of three physical facts in order to charge the defendant with a violation. It must show that Seventh avenue at- One Hundred and Forty-seventh street was curbed and guttered and flagged. The absence, of any one of these three prerequisites would be fatal to the enforcement of the penalty.

It is admitted that the avenue was curbed; the evidence clearly shows that it was guttered, and it is conceded that thé entire width of the sidewalk was not covered with bluestone, but that- there was a line of flagging four feet wide down its center.

Whether that street was, as a matter of fact, flagged, is the question presented for our determination. That question must be answered in the affirmative.

*220The corporation of the city of New York has plenary power over the making, repairing, improving and *paving*the streets of' the city. That power was conferred by the Dongan charter, confirmed by the Montgomerie charter and still exists. Moore v. Mayor, 73 N. Y. 238.

Flagging being a species of pavement (in the Matter of Phillips, 60 N. Y. 16) that plenary power extends to flagging. Prior to ’ the Consolidation Act, it was held that the common council of the city were the sole and exclusive judges as to the time, *mode*and *manner*of laying, out, making, grading and *paving*streets. In the Matter of Dugro, 55 N. Y. 13. That act* consolidating all the special and local laws on that subject, invests the board of aldermen with power, “ To provide for and *regulate street pavements,*crosswalks, curbstones, gutter-stones, sidewalks, and the grade of streets, and to provide for *regulating,*grading, *flagging,*curbing, guttering * * * streets, roads, and avenues.” Consol. Act, Laws 1882, chap. 410, § 86, subd. 9.

The power necessarily involves authority to determine the nature and extent of the flagging on a sidewalk in a particular locality. The character and requirements of the neighborhood dictate the extent of' the stoneway. In a sparsely-settled district the corporation sidewalk, so called, consisting of a line of flags four feet in width is deemed sufficient; in purely business sections the necessity of having stone from house limit to curb is recognized; while in some residential thoroughfares considerations of landscape gardening determine that a certain portion of the sidewalk, generally at the curb, shall remain uncovered. In each instance, however, the sidewalk is flagged. The extent to which the sidewalk is covered is not the controlling factor. The test is whether there is a substantial and suitable flagging, furnishing a convenient and sufficient mode of travel to pedestrians.

We are satisfied that the sidewalk of the street in question fulfilled these requirements.

In the Matter of Garvey, 77 N. Y. 523, Danforth, J., said: “A sidewalk furnished with a stone-way * * * may properly be said to be flagged although the whole surface is not covered.” And, in the Matter of Smith, 99 N. Y. 424, it was held that where an existing width of previously laid flagging was .left undisturbed and a new strip added, making the flagging eight feet wide instead of four, the addition constituted a new pavement. *“*The sidewalk had been once *paved*upon a plan and of a width at the tim | deemed suitable.” at p. 426.

*221In the cases just cited the additional pavement was held to constitute not a *new,*but a repavement. Had the original stoneway not been of a substantial width, the subsequent work would have created an entirely new pavement. In the Matter of Brady, 85 N. Y. 268.

The four feet of bluestone on the sidewalk under consideration was of substantial width and provided an adequate way for foot-passengers. The sidewalk was, therefore, flagged, and though the ordinance, penal in nature, be strictly construed, to the words therein must be accorded their usual and reasonable import. A flagged sidewalk does not mean one thing for the purpose of an assessment and another for the purpose of an ordinance.

The appellant urges that in the cases referred to the element of estoppel on the city, and not the actual physical situation, was the pivotal point on which the decisions turned. Thus, he claims, that in the Garvey case, *supra,*which was a proceeding to assess abutting propefty-owners for an alleged new flagging of the sidewalk when, in fact, four feet-of flagging had been previously laid under an ordinance providing for the *“*curbing, guttering and flagging,” of the street, the decision of the Court of Appeals declaring these four feet to constitute a flagged sidewalk, proceeded on the theory that the city having once declared the street to be flagged and having levied an assessment therefor, was thereafter estopped from asserting that widening the stoneway was a new sidewalk, and thus dispense with the preliminary petition of the property-owners which was a condition precedent for a repavement. Laws of 1873, chap. 757. In other words, the city having declared the street to be flagged in compliance with a former ordinance could not thereafter be heard to say that it was not flagged for the purpose of levying a second assessment under a subsequent ordinance. He claims, therefore, that the precedents cited cannot be invoked in an action for a penalty involving the fact of a flagging.

This interpretation of the cases is not warranted.

None of them turned on the question of estoppel. No reference, either express or implied, is made to that principle. In the Garvey case, for instance, the court addressed itself to a consideration of the actual physical condition of the sidewalk.

It is idle to urge grounds on which the Court of Appeals might have based its decision. In arriving at the conclusion that additional widths of stone did not constitute a new, but merely a re*222paved sidewalk, that court specifically determined that the four feet of stone constituted a flagged sidewalk.. The other cases are founded on the same reasoning.

The only further, defense pleaded was former adjudication. To sustain that plea the defendant introduced in evidencé a copy of the summons and' of his answer in a prior proceeding instituted by the city to recover from him a penalty for a like violation of the saíne ordinance with reference to the same premises. The only testimony offered on this subject is summed up in the statement of. the defendant: *“*The action was brought before Mr. Justice Davenport in this, court. The judge took the matter under advisement and dismissed the complaint on its merits.” ■ This was clearly insufficient to sustain that plea. The judgment-roll was not introduced nor its absence accounted for. There was no evidence that a trial was had; nor legal evidence- that there- was a dismissal on the merits or of any disposition of the cause. It is a well-settled rule that a former judgment does not constitute a bar to subsequent proceedings for the same cause of action, unless such judgment was rendered on the merits of the case.

The judgment must, therefore, be affirmed. _ •

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent.