People ex rel. North v. Featherstonhaugh

• Decision Date: 07 October 1902
• Citation: 172 N.Y. 112,64 N.E. 802
• Parties: PEOPLE ex rel. NORTH v. FEATHERSTONHAUGH et al.
• Court: New York Court of Appeals Court of Appeals

172 N.Y. 112

64 N.E. 802

PEOPLE ex rel. NORTH

v.FEATHERSTONHAUGH et al.

Court of Appeals of New York.

Oct. 7, 1902.

Appeal from supreme court, appellate division, Third department.

Certiorari by the people, on the relation of Louise North, to review the proceedings of James D. Featherstonhaugh and others, constituting the public improvement commission of the city of Cohoes and others. From a judgment of the appellate division (73 N. Y. Supp. 1144) affirming the proceedings, relator appeals. Dismissed.

Lewis E. Carr, for appellant.

J. Newton Fiero and Walter H. Wertime, for respondent public improvement commission of the city of Cohoes.

Harry T. O'Brien, for respondent New York & Bermudez Company.

HAIGHT, J.

The court, upon the petition of the relator, issued a writ of certiorari to review the proceedings of the public improvement commission of the city of Cohoes in awarding a contract to the New York & Bermudez Company to curb and pave Saratoga street, in that city, from the south line of Newark street to the Mohawk river. On the 31st day of March, 1901, the public improvement commission of the city of Cohoes caused a map and general plans, with the specifications of the work to be done for the paving and curbing of Saratoga street in that city, to be filed in the office of the clerk of the city, together with an estimate by the engineer of the cost of the improvement. They then passed resolutions unanimously directing the improvement to be made, and that notice be given for a hearing of all persons interested. Thereupon a notice was published in the official paper of the city, in accordance with the provisions of the statute, of the determination made by the commissioners to pave Saratoga street between the points named with vitrified brick, and to construct a granite curb on each side of the street, with receiving basins, etc., and that a meeting of the commission would be held at their rooms in the city hall on the 4th day of April, 1901, to hear all persons interested in the improvement. On the day named for the meeting the relator and others appeared and filed a protest against the construction of the curbs with granite, and asked that the bluestone curbing, already in, be retained, and also filed a request that the pavement be made of asphalt blocks instead of vitrified bricks. Thereupon the hearing was, upon the request of the relator, adjourned until the 10th of April, 1901, at which time the testimony of several witnesses was taken, bearing upon the question of the necessity of the change from bluestone to granite curbing. At the conclusion of the testimony there was a further adjournment until the 24th of April, 1901, at which time bids were received, pursuant to a notice previously published, inviting bids for the proposed improvement with granite curbing, and with the paving of either sheet asphalt, asphalt blocks, granite, Medina sandstone, repressed vitrified brick, and pressed vitrified block. The relator then made further objections to the proceedings, covering all the points which we shall hereinafter consider. Thereupon the bids were opened, and subsequently the contract was awarded to the New York & Bermudez Company to pave the street with sheet asphalt and to construct the curbs of granite for the sum of $34,753.72.

The public improvement commission of the city of Cohoes was created by chapter 227 of the Laws of 1898, and derives its powers from the provisions of that act, as amended by chapter 550 of the Laws of 1899, chapter 213 of the Laws of 1900, and chapter 632 of the Laws of 1901. The amendment of 1901, having become a law after the contract herein referred to was issued, need not now be considered. The commission being a statutory body, we shall assume that the measure of its powers is confined to the legislative acts which called it into being.

The first contention on behalf of the relator is that the determination of the commission to construct a granite curb along Saratoga street at the lot owners' expense was without legal authority, and was not new work, but the repair of old work. We regard this contention as raising a question of fact, which was disposed of by the court below, and is not reviewable in this court. The evidence tended to show that the old curbing was of bluestone; that some portions of it had been in use for many years and was badly out of repair; that none of it was set in a concrete base, so as to prevent water from getting underneath; that the commissioners had determined to put the pavement and curbing upon a concrete base; that bluestone is composed of layers, some of which admit of the penetration of water, and when it freezes the stone is liable to crack; that in case of cracking it would necessitate the taking up of the curbing out of the concrete, and the insertion of new curbing, which would largely increase the original cost; that granite curb, when dressed and set in concrete, does not allow water to reach its base; and that it is not subject to cracking or deterioration by reason of the action of water or frost. After the conclusion of testimony upon the subject, the commissioners made a personal examination of the existing curbing, and thereafter determined to construct the new curb of granite instead of bluestone. In their return they state that the reasons for the determination were ‘that in their opinion, for the pavement on a concrete base, it would be necessary to use a curb stronger than the bluestone, and a stone which is not a layer or sandstone; that, in their opinion, the water falling upon the top of bluestone curb frequtntly gets in between the layers, and a frost occurring under those conditions will separate the layers, and it is, in their opinion, impossible to distinguish between bluestone which will separate and one which will not.’ We think it cannot be held that there was not any evidence to sustain the determination of the commissioners. Under the statute the commission is given power to cause any street and highway in the city to be paved, ‘and to construct any and all curbstones at the curb line which it may deem necessary for properly paving or repaving.’ Section 4. Also the said commission shall have power to pave any street, highway, etc., and to construct all necessary curbstones for the purpose of such paving, ‘when and whenever the public convenience in their judgment requires the same.’ Section 6. It will thus be seen that the statute provides for the construction of curbing by the commissioners whenever they deem the same necessary, and whenever the public convenience in their judgment requires it; and the commissioners, as we have seen, have exercised their judgment upon the evidence to which we have alluded, and determined that it was for the best interest of the public that the curbing should be constructed of granite. No question of law arises thereon which we think is reviewable in this proceeding.

In the next place, it is contended that the requirement of the specifications that the contractor will keep the pavement in repair without expense to the city for a period of eight years necessarily tended to impose upon the property owners burdens which were unwarranted and illegal. Under the statute onehalf of the expense of paving the street was required to be borne by the real estate adjacent and contiguous to that part of the street which the commissioners determined to pave, and the other half was to be paid by the city at large. The specifications complained of are as follows: ‘Years Guaranty of Maintenance. The contractor will be required to keep all his work in repair for the period of eight years from and after its acceptance by the city, without expense to the city. From the date of the acceptance of the work by the city the contractor guaranties the asphalt pavement, that he will keep it in repair for the period of eight years as a part of the cost of the work; that is to say, that, from a date commencing with the acceptance of the work by the city to a date eight years subsequent thereto, he will maintain the asphalt pavement. The maintenance consists in repairs, renewals, and furnishing materials necessary to maintain the surface of the street paved by the contractor, at all times, in a perfect state of uniformity; the uniformity of the street to be equal to that possessed by it when first accepted, and to be sufficient to present no marked hollows or projections, and not to admit of water standing in depressions either on the crown of the street or in the gutters. The surface of the street shall not show any cracks, scaling off, or other signs of disintegration by any action of the elements, and the pavement shall not show any wear greater than is usual with asphalt pavement of the best quality under equally heavy traffic. All imperfect work in the pavement, consisting of open joints, cracks, scaling off, or any other sings of failure, whenever found, are to be repaired in such manner as is prescribed heretofore for asphalt pavement.’ Then follow provisions for restoring the pavement when the street has been opened by permission of the city or by water commissioners or abutting owners, but for such restoration the contractor is to be compensated.

In the case of People v. Maher, 56 Hun, 81, 9 N. Y. Supp. 94, the general term held that an ordinance of the city providing for the pavement of the street, containing a provision requiring the contractor to agree to keep the pavement in repair for seven years after its acceptance by the city without expense to the city, was in effect a charge of the cost of repairs upon the property of abutting owners, and was in violation of the provision of the charter which charges such expense upon the city at large. It will readily be seen that the question raised is one of considerable importance to the public, especially to the cities whose charters provide for the construction of pavement in streets at the expense of the abutting owners of real...