In re Welsh ( 1883 )

Davis, P. J.:

This matter was disposed of by the Special Term solely on the authority of In re Phillips (60 N. Y., 16) The distinction between that case and the present is found in the fact that when the first assessment for laying a sidewalk was made and paid it was made against the city of New York, which was then the owner of the premises, and paid by that corporation. Afterwards the premises were sold by the city and conveyed to the petitioner. No private property holder had ever been previously assessed for any improvement of the kind. The city had simply flagged its own property, paying for it itself. It was its voluntary act and not a compulsory one and is not within the spirit of the statute which, as held by the Court of Appeals, was intended to compel the corporation to bear the expense of “ repaving a street which has once been paved by the compulsory proceeding of assessment against a private owner.”

The statute does not declare, nor do we think it was intended to do so, that if the city has voluntarily paved a street or flagged a sidewalk in front of its own property it shall, therefore, forever afterwards bear the whole expense of repaving or reflagging the same street or sidewalk when the property is sold to private owners. Such a construction is not within the spirit or intention of the statute, and is against public policy, inasmuch as it would exempt all the real estate of the city from the burden of sharing in the cost of public improvements when sold to private owners, because the city had seen fit to make at its own expense similar improvements while holding the title.

We think the order should be reversed, with ten dollars costs of the appeal, and the prayer of the petitioner denied.

Daniels, J., concurred.

Present — Davis, P. J., and Daniels, J.

So ordered.