#### Hiram Gilmore, Resp’t, *v.*The City of Utica, The Common Council of the City of Utica, William F. Hoerlein, as Treasurer, and The Warren Scharf Asphalt Paving Company, App’lts.

*(Supreme Court, General Term, Fourth Department,*

*Filed February 15, 1890.)*

Municipal corporations—Assessments—Street railroads.

Consent of tlie city to the construction of a street railway was given on condition that it should replace and keep in good repair the pavement between and for two feet each side of its tracks. Subsequently the common council resolved to pave the street with asphalt, which was accordingly done, and one-third of the expense thereof levied upon the city at large and the balance on the adjacent owners. *Held,*that so far as the assess*782ment include 1 the paving *between and*for two feet each side of the railroad tracks it was invalid; that the harden of repaving such portion of the street rested on the railroad company, and the adjacent owners were entitled to have the common council exact performance on its part; that § 79 of the charter as amended in 1870 relieved the adjacent owners from the burden of maintaining the pavement on that portion of the street.

Appeal from a judgment entered upon a decision made at special term in Oneida county. Plaintiff is a resident of the city of Utica and a taxpayer therein, and owner in fee of a house and lot on the easterly side of that portion of Genesee street between the northerly line of Eagle street and the southerly line of said city, fronting on Genesee street, and has paid for many years the general tax assessed and the local assessment made against his property by the officers and agents of the city. Under the general railroad act of 1850 a street railway was organized in 1862, and laid its track in said street, and the same is now being operated therein.

October 24, 1862, the common council of the city of Utica adopted a resolution giving permission “ to the Utica City Railroad Company to construct, maintain and operate a horse railroad, with a double or single track, along or near the center of Genesee street, from the New York Central depot (or Bagg’s Square) to the southerly line of the city (or to Oneida Square), and thence to the southerly line of the city by the most practicable street or avenue. ** * **Upon condition, nevertheless, that the said railroad company shall and doth construct the said railroads upon the most approved plan, and in a secure and substantial manner, and replace and keep in good repair the pavement between and at least two feet in width on each outerside of the tracks, the whole to be done subject and according to the directions of the city surveyor and street commissioner. * * * Said railroad to be also subject to all the regulations and restrictions contained in the act of the legislature passed April 2d, 1850, and the several acts passed amendatory thereof or supplementary thereto.”

In December, 1886, the said railroad company was leased to the Utica Belt Line Street Railroad Company, a corporation organized under the surface railroad act of 1884, for the period of ninety-nine years, and the lessee undertook to pay, bear and discharge all taxes and assessments, ordinary and extraordinary of every description lawfully assessed, imposed, levied and accruing upon the said street surface railroads, etc., * * * do any and all paving required by law on the streets upon which said street surface railroads thereby leased are or may be operated, as may be legally imposed during said lease.”

In March, 1888, the common council “determined to repave said Genesee street from the northerly line of Eagle street southerly to the city line,” and May 28th, 1888, the common council accepted the proposal of the defendant, the Warren Scharf Asphalt Paving Company, and entered into a contract, in which the company agreed to repave said street with Trinidad asphalt, ac-11 cording to certain plans and specifications made by the city surveyor. At a meeting of the common council in 1888 the work *783was reported by said city surveyor, completed and the bill amounting to $101,358.87 therefor was audited. Thereupon the city authorities proceeded to ascertain one-third thereof, which was to be a charge upon the city at large, and to ascertain the amount of two-thirds thereof, and made an assessment upon the adjacent property, and ascertained the amount to be levied against the plaintiff’s property to be the sum of $1,410.40, which sum they included in the list or roll against the property of the plaintiff. The street railroad company constructed double tracks m the street before the same was repaved.

Before the proposal of the Warren Scharf Asphalt Paving Company was accepted by the common council, notice was given, on behalf of those owning property on both sides of that portion of Genesee street southerly from the northerly line of Eagle street to the southerly line of the city, to the common council of the city of Utica, that any attempt to impose upon the real property fronting on said street the expense of said repavement between and at least two feet in width on each outer side of said tracks, would be resisted and opposed as wrong and unlawful. The court held as conclusions of law: “ That this action is maintainable. 2. That said assessment is illegal and void and a cloud upon the title of the said real estate of said plaintiff. * * * 4. That neither the expense of that portion of said repavement between the tracks of said railroad in said Genesee street, the rails of said tracks and a space of two feet in width outside and adjoining the outside rails of said tracks, nor any part of said expense, was or is chargeable to said, the city of Utica, or assessable against the plaintiff or the said property of the plaintiff, or against any of the property fronting on said Genesee street or the owners or occupants thereof. 5. That the plaintiff is entitled to julgment perpetually enjoining and restraining said, the city of Utica, its common council, its officers, attorneys, agents, collectors and servants, and each and every of them, from proceeding in any manner to, or attempting in any manner to collect or enforce said assessment."

*Everett & Lewis*and *A. M.*Beardsley, for app’lts; *DeAngelis & Doolittle*and *W. A. Matteson,*for resp’t.

Haedih, P. J.

On the 16th of March, 1888, when the common „ council determined by a resolution to repave Genesee street, there rested upon the street railway the burden of repaving that portion thereof occupied by the railroad and two feet outside of its tracks. The burden was imposed by the resolution passed by the common council in 1862, to which the street railway had subjected itself in accepting the permission upon the condition mentioned in the resolution, and by assumption of such burden by the terms of the lease under which the present railroad became possessed of the right to operate the same in Genesee street. Besides, in chap. 28 of the Laws of 1870, § 79 of the charter was amended so as to confer power upon the common council to enforce the burden resting on the railroad.

In the fifth subdivision of § 79, it is provided, *viz.:*“ The com*784mon council is hereby authorized to require all railroad companies operating street railroads in any of the streets of the city to repave between their tracks, and at least two feet in width on each side thereof, whenever the common council shall deem such repavement necessary.” This language clearly authorized the common council to determine the necessity for repavement. Such determination was made by the common council; it then became the imperative duty of the street railway “ to repave between their tracks, and at least two feet in width on each side thereof.” We think the provision of the statute just quoted is mandatory, and that it was the duty of the common council to enforce compliance on the part of the street railway. We think the taxpayers at large had a right to have that provision of the law enforced, and that the adjacent owners were entitled to have the common council exact a performance on the part of the street railway. *The People*v. *The Board of Supervisors of Herkimer*County, 56 Barb., 452; *The People*v. *The Board of Supervisors of Otsego*County, 51 N. Y., 401. In delivering the opinion in the case last cited, the court referred to *Mayor*v. Furze, 3 Hill, 612, and approves of the language of Judge Nelson, which is as follows: “ Where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory.” A similar doctrine was laid down in *Supervisors*v. *United States,*4 Wall., 435, in which case Mr. Justice Swayne observed: *“*The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language, whenever the public interest or individual rights call for its exercise, the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. " It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.” See, also, *The City of Galena*v. *Amy,*5 Wall., 705.

If the common council had exacted from the railroad a perfor- , manee of its duty, the burden cast upon the taxpayers and the plaintiff and other adjacent owners would have been much less. The effect of the resolution of 1862, and the provision in the act of 1870 (subd. 5, § 79), relieved the plaintiff and other adjacent owners as well as the taxpayers from the burden of maintaining the pavement on that portion of the street occupied by the street railway.

In effect, the expense of repaving such portion of the street was not only imposed upon the street railway, but the liability therefor was withdrawn from the adjacent owners and from the taxpayers at large.

' We agree with the learned counsel for the appellant that “the railroad’s liability, if any, is a matter between it and the city,” but we do not agree with him in the assumption that the adjacent *785owners are not interested in the enforcement of that liability. We think they are relieved *pro tanto*from a burden which otherwise would rest upon them.

By chap. 426 of the Laws of 1887, § 99 of the charter was amended, and a mode was prescribed for enforcing the collection of expenditures in grading, leveling or paving or repaving streets; however, we find nothing in that statute which relieves the railroad from the burden resting upon it to maintain the pavement between its tracks and the two feet adjacent thereto. We think the words “ the common council shall then determine the expense of the whole work ” may receive reasonable construction by applying them to the expenditures upon that portion of the street not occupied by the street railway. We think the words were not intended to authorize a transfer of the burden resting upon the railway to the adjacent owners or to the taxpayers at large.

There is nothing in the case to indicate that the street railway company was unable to perform the obligations imposed on it The common council therefore ought to have exacted a performance on the part of the railway company. In the *Matter of Appleby,*26 Hun, 429, the court says: “ The omission to enforce it (ordinance), and to secure so much of the pavement under it as the railroad company was obliged to lay, was a material error and defect in the proceedings themselves, of which the applicant as the owner of the property fronting upon the avenue has a legal right to complain. *Matter of Casey,*5 Hun, 463; *Matter of N. Y. Prot., etc., School,*75 N. Y., 324. Ho part of the cost of this twenty-five feet of pavement was legally chargeable to him, but under the terms of the ordinance it is clear that it should have been imposed upon the railroad company. A portion of it was included in the assessment required to be paid by him, and to that extent he has been made the subject of injustice.”

*O'Reilley*v. *City of Kingston,*114 N. Y., 440; 23 N. Y. State Rep., 799, is distinguishable from the case before us, as the case arose under a different statute and a different resolution of the common council from the one we have been considering. In that case the assessment was to be made upon land bordering upon the street, and it was held that the land occupied by the railroad “ did not border on or touch the street within the meaning of the charter; it being simply a part thereof.”

Whether the contractor, the Warren Scharf Asphalt Paving Company, can enforce its contract against the city is a question which we need not now determine. As was said by Allen, J., in *Moore*v. *Mayor,*73 N. Y., 251, “ While a local assessment may be void, a contract fully performed, made in pursuance of the same ordinance, may be valid.” If the contractor has fully performed and is entitled to enforce payment of his contract price from the city, that fact does not of itself stand in the way of the plaintiff’s enforcing his legal rights, nor make against the propriety of his resisting an overburdensome assignment

Upon the questions we have alluded to, further views are expressed in the opinion delivered at special term, as well as upon *786other questions arising in the case, which are considered therein quite satisfactorily. We, therefore, do not deem it needful to further discuss the questions arising in this case.

We think the plaintiff was entitled to the relief awarded at the special term.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.