Under the view we take of this case a brief statement of the facts will answer the purpose.
The charter of the city of Buffalo confers upon the park department the exclusive power to pave, re-pave and repair park roads and places.
The board of park commissioners are the governing head of this department.
The common council is in charge of the city streets outside of the park.
A certain part of the park is known as the Circle, and is a large circular place; one of the park approaches is Porter avenue ending in the Circle; Pennsylvania street is a public *Page 335 street in the city, not included in the park system, and ends at the Circle at its junction with Wadsworth street.
In October, 1889, the city of Buffalo, by the park commissioners, entered into a contract with the Barber Asphalt Paving Company to pave the Circle with Trinidad asphalt pavement in compliance with specifications annexed and the profile in the park commissioners' office, agreeing to pay therefor the sum of $10,425.00. The profile referred to disclosed the fact that as a part of the work necessary to pave the Circle there was certain outside work to be done in Wadsworth street, Pennsylvania street and Porter avenue.
The work under this contract was duly performed.
The findings disclose that the total assessment on the property of plaintiff Kittinger was $404.38, and on property of plaintiff Wing $246.80, it appearing that only one-half of the total expense could be assessed on the adjacent property.
It is insisted by appellants that this assessment is void, as the park commissioners were without authority of law to contract for the work outside of the Circle.
The court below determined to correct the assessment and affirm it as corrected.
It was found that for the outside work there was assessed on the property of the plaintiff Kittinger the sum of $57.02, and on the property of the plaintiff Wing the sum of $34.80.
Judgment was rendered reducing the respective assessments of the plaintiffs by these amounts, and awarding them costs against the city of Buffalo in the sum of $209.72.
This judgment was affirmed by the General Term of the Superior Court of Buffalo, with costs.
The appellants now insist that the original assessment was void by reason of the outside work, and that the trial court had no authority to correct it and to adjudge it to stand as corrected.
The view we take of this case renders it unnecessary for us to consider the question whether the trial court could correct the assessment, and, in doing so, whether it adopted the proper rule in computing the amount of reduction. *Page 336
In the seventeenth finding of fact it is found as follows: "That all of the work proposed and shown on the plan and specifications prepared under the directions of the said board of park commissioners, and filed in their office as hereinbefore stated, including that outside of the lines of the Circle in Wadsworth street, Pennsylvania street and Porter avenue, was necessary and essential to a complete and finished job in the pavement of the Circle, and to furnish it with the proper drainage, watersheds, and suitable abutments and supports, and to make it safe and free from danger to travelers upon the public streets and park approaches."
It is also found by the thirty-first finding as follows: "That the pavement of the Circle under and in pursuance of the said contract with said Barber Asphalt Pavement Company was a benefit and not an injury to the plaintiffs."
The evidence is not returned on this appeal; there are no exceptions to these findings, and they must be regarded as containing the facts of this case.
It seems to us quite apparent and very reasonable that a certain amount of outside work was not only proper, but absolutely necessary, in paving the Circle, which was entered by various streets leading in from the city.
We have the express finding to that effect, and it must be deemed conclusive.
It requires no citation of authority to justify this small amount of outside work in order to make the connecting streets and park approaches safe and free from danger to travelers, but a similar question was presented to this court in a case where the plaintiff sought to recover back an assessment paid under protest for grading a certain street in the city of Albany on the ground, among others, that the assessment was void, for the reason that drains had been constructed outside of the street lines in order to carry water under the embankments, but it was held that this did not invalidate the assessment, as the outside work was essential to the proper grading of the street. (Moore v. Cityof Albany, 98 N.Y. 396.)
We hold that the original assessment was valid, and that the *Page 337 plaintiffs are, therefore, in no position to complain of a judgment which diminished the amount they ought to have paid and gave them a liberal bill of costs.
The judgment appealed from should be affirmed, with costs.
All concur, except HAIGHT, J., not voting.
Judgment affirmed.