City of Schenectady v. Trustees of Union Coll

• Decision Date: 21 December 1894
• Citation: 144 N.Y. 241,39 N.E. 67
• Parties: CITY OF SCHENECTADY v. TRUSTEES OF UNION COLLEGE.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 241

39 N.E. 67

CITY OF SCHENECTADY

v.TRUSTEES OF UNION COLLEGE.

Court of Appeals of New York.

Dec. 21, 1894.

Appeal from supreme court, general term, Third department.

Action by the city of Schenectady against the trustees of Union College to recover the expense of paving a street in front of defendant's lots. From a judgment of general term (21 N. Y. Supp. 147) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Robert J. Landon, for appellant.

Alonzo P. Strong, for respondent.

EARL, J.

This action was brought under the charter of the city of Schenectady (Laws 1862, c. 385), as subsequently amended, to recover the expense of paving Union street in front of two lots alleged to have been owned by Union College. The plaintiff recovered, and this appeal brings that recovery under review.

The paving was in Union street, in front of two streets which ran into it, and in which streets Union College owned the fee of the land, subject to all street servitudes. The claim of the defendant is that under the city charter, the ordinance and proceedings for paving the street, and the allegations contained in the complaint, it cannot be made liable for the expense of paving in front of the two streets simply because it owned the fee of the land therein. Section 8 of the city charter (Laws 1873, c. 62, tit. 7) provides that ‘the common council shall have power under the restrictions and limitations hereinafter provided to lay out, open, widen, alter, construct and make any street, avenue, highway, lane, alley, public ground, square, park, sewer, drain, culvert, arch, bridge, well or reservoir in said city, and to cleanse and remove obstructions from sewers and drains. The expense and costs of all such improvements shall be borne by the owners or occupants of the lots or parcels of land benefited thereby, and shall be apportioned, assessed and collected according to the provisions hereinafter contained, and shall be a lien upon such property from and after the time of the confirmation of the apportionment and assessment thereof.’ For the improvements mentioned in that section it cannot well be contended that the land in an open public street would be liable to assessment. Section 42 provides that the common council shall have power from time to time to adopt ordinances directing any of the streets of the city, or any part of them, to be graded, paved, etc., ‘at the expense of the owners or occupants of the lots and buildings lying upon’ them, etc. The land lying in an open public street is in no proper sense a city lot, and the owner of the fee in such street is in no proper sense the owner of city lots lying upon the street to be paved. Other provisions of the charther make this more plain. Section 44 provides that ‘immediately after the adoption of any such ordinance, and at least thirty days prior to the expiration of the time therein limited for the doing of such work, the superintendent of streets shall serve, or cause to be served, a written or printed copy of such ordinance on each of the owners or occupants of the lots and buildings affected thereby, either personally or by leaving the same, directed to such owner or occupant, or both of them, with some person of suitable age and discretion upon such lot or lots.’ Section 45 provides that ‘in case any of the buildings or lots shall be vacant or unoccupied, or no person of suitable age and discretion shall be found thereon, and the owner or owners thereof shall not reside in said city, or shall be unknown, or an infant or infants, in addition to publishing such ordinance as above directed, it shall be sufficient service of notice thereof to affix a copy of the same on some conspicuous part of said vacant or unoccupied...