The defendant, theretofore organized under a special act of the legislature, in August, 1901, reincorporated under the Village Law (Chap. 414, Laws of 1897) and thereupon became subject to all the provisions of that statute. In October of that year the trustees of the defendant resolved that the sidewalks of the village be constructed by the abutting property owners at their own expense. Thereafter said trustees directed the plaintiff to lay a four-foot flag walk on certain streets adjoining his property in said village. Under this direction the plaintiff laid said walk and brought this suit to compel the defendant to credit him with three-quarters of the cost thereof on his assessment for street taxes or to pay him one-half of said cost, the trustees of the village having declined either to allow said credit or make such payment. The courts below have held that the plaintiff was not entitled to the relief sought.
The question presented by this appeal is the construction of sections 161 and 162 of the Village Law as the law stood before the amendment of 1894. It must be confessed the proper interpretation of those sections is not very clear and that there is some conflict between their provisions. By section 161 the trustees of the village are authorized to adopt one *Page 23 of three plans for defraying the expense incurred in the construction of sidewalks. They may provide for their construction at the sole expense of the village or at the sole expense of the abutter, or at the expense partly of the village and partly of the abutters. If the plan adopted should impose either the whole or part of the expense on the abutters, then in case such abutter fails to construct the sidewalk as required the trustees are authorized to do the work and assess the cost or his proper share thereof upon the abutter. Section 162 provides that whenever the abutter with the consent of the trustees constructs a sidewalk of stone, cement, brick or similar material of the width of four feet or more, of the value of at least four dollars per linear rod, said board shall credit the abutter on his assessment for street taxes with three-quarters of the actual expense of constructing the walk; or in lieu thereof may pay to him from the street fund of the current year one-half of such cost. It is on this section that the claim of the plaintiff rests. The defendant contends that the direction of the trustees requiring the plaintiff to lay the sidewalk was not a consent thereto within the terms of section 162, and that the board having previously adopted a general resolution that sidewalks should be constructed at the expense of the abutters the provision of that section did not apply to sidewalks directed to be laid in pursuance of that resolution. We are not inclined to accede to this claim. Section 162 does not deal with all sidewalks but only with sidewalks of a particular character which would be regarded as of a better grade than those, if not generally, at least often found in use. By bearing in mind this distinction the two sections can be harmonized. It was doubtless the intention of the legislature to encourage the adoption of the better grade of sidewalks, offering as an inducement to the abutter, in case he should construct such a walk, reimbursement by the village for a part of the expense. On the other hand, to prevent the imposition upon a village of an outlay which, from its size or other reasons, it could not afford, it was made a condition of the abutter's right to reimbursement that the sidewalk should be laid with the consent of *Page 24 the trustees of the village. We think that the provisions of the section are general and that the intention of the legislature was that, subject to the limitation of a consent of the village trustees, when the sidewalk was of the material, size and cost prescribed in the statute the abutter should in all cases be reimbursed therefor, either to the amount of one-half of such cost in money or to three-quarters thereof in credit on his street taxes. The direction of the trustees that the plaintiff lay the sidewalk was a consent to his so doing within the meaning of the section. It follows that the judgment appealed from should be reversed and a new trial granted, costs to abide the event.
CULLEN, Ch. J., GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN and WERNER, JJ., concur.
Judgment reversed, etc.