Opinion
November Term, 1899.
S.M. Lindsley, for the relators.
G.C. Morehouse, for the respondents.
In the year 1897, the city of Utica, through its common council, assumed to assess upon the property abutting upon the improvement in Whitesboro street in said city, two-thirds of the entire cost of repaving said street, which sum included the cost of paving a strip two feet in width on the outside of the rails of the street railroad which occupied the street.
Under the decision of the case of Conway v. City of Rochester ( 157 N.Y. 33) we are of the opinion that chapter 933 of the Laws of 1895, amending section 90 of the Railroad Law (Laws of 1890, chap. 565), is applicable to street railroads in the city of Utica, and that it was mandatory upon the city to collect the cost of paving such strip from the railroad company occupying said street with its tracks, and that no part of the cost of paving the two-foot strip was assessable upon abutting property.
It follows that the assessment complained of should be vacated and set aside, with fifty dollars costs and disbursements to the relators, and that a reassessment should be made by the board of assessors of the city of Utica of two-thirds of the cost of such repaving, deducting therefrom the cost of paving the said two-foot strip, and that said remaining sum should be assessed upon the property abutting upon said improvement, ratably and in accordance with the provisions of the charter of said city.
By a stipulation made in open court by the counsel for the city of Utica, and subsequently reduced to writing and by consent made a part of the record, it was stipulated and agreed on behalf of the city of Utica that there might be deducted from the total cost of repaving the street in question, which was $9,182.71, two-thirds of the amount of a bond for $3,500, which is $2,333.33, and which bond was given by a corporation which had previously paved said street to secure the performance of the obligation that the pavement laid by it would remain in perfect condition and repair for a period of ten years, which obligation was not fulfilled, and said company became liable to pay to the city of Utica the amount of said bond.
We think such offer on the part of the city of Utica was fair and reasonable, and that it should inure to the benefit of the relators and other abutting property owners, in case they elect to avail themselves of the same.
It is, therefore, determined that in case the relators so elect within thirty days, two-thirds of the amount of said bond, to wit, $2,333.33, should be deducted from the total cost of said repaving, and that only the remaining sum, to wit, the sum of $6,849.28, should be assessed upon the property abutting upon said improvement; and in case said offer is accepted, then the assessment complained of should be amended accordingly, and said sum of $6,849.38 should be assessed upon the property ratably and in accordance with the provisions of the charter of the city of Utica for the levying and assessment for paving or repaving the streets of said city, and in case the relators accept such offer, neither party shall recover costs of this proceeding as against the other.
All concurred.
Assessment vacated, with fifty dollars costs and disbursements, and reassessments ordered, unless the relators, within thirty days, shall accept the modification mentioned in the stipulation given upon the argument and filed with the clerk, in which event the assessment, as so modified, is affirmed, without costs to either party.