The only question necessary to be considered in this case arises out of the notice stamped in red ink upon the printed forms furnished for the applications. It is plain that the defendant’s charter imposes upon it the obligation of paying one-half the cost of a sidewalk if it does not exceed two dollars per square yard, and the inquiry, therefore, is, as to legal effect of the notice, whether it controlled or affected the rights of the parties. It is clear that it does not, but admitting, for the sake of the argument, that the commissioner of public works had a right or duty in respect of the city’s share of the cost of construction, and that he could, by a special mutual contract, protect it or reduce its liability below the amount fixed by the charter, I am of the opinion that the notice was not such a *536contract. It was at most a notice brought home to the owners that the city would not abide the liability which its charter imposed on it. It is clear- that such a notice does not amount in law to a special contract in the absence of proof that the owner assented to its terms. The notice is no evidence of an assent on the part of an owner, and it must be conceded that if the construction of the walk authorizes an implication of any kind the presumption is as strong, to say the least, that the owner intended to insist on his legal rights as it is that he consented to a reduction of the liability of the city. A special contract cannot, I think, be implied where there is such an equipoise of probabilities, .and in no other manner is it contended that one was established.
The city being, by the express terms of its charter, under a legal obligation to pay one-half the cost of constructing a walk (§§ 178, 179), and an owner being under a legal obligation to construct it (§§ 171-176), it is difficult to understand how the mere building of the walk authorizes the inference that the owner agreed that the liability of the city should be less than the amount fixed by the statute. Such a conclusion, I think, overlooks the important consideration that an owner has the right to insist that he shall be paid the amount fixed by the statute, and that he is not required to object under penalty of the loss of his legal rights. To infer, under the circumstances of this case, an assent to a contract waiving the statutory liability of the city would be not only making an inference contrary to the natural import of the transactions, but contrary to the expressed intention of the owners as set forth in their applications. The presumption rather is that the owners built the walks under the contract which the law creates and not upon the terms of the notice. It is, however, not necessary to rest the decision of this case upon the proposition that a special contract may not be inferred from the notice and the acts of the owners in building the walks.
If a special contract between the commissioner and the owners, or between the city and the owners, can be implied from such a notice, its terms are quite immaterial, for the extent of the city’s liability does not depend on such a contract. It is declared by law. If the city can, by such a notice, reduce the *537liability imposed upon it by the statute, no reason is perceived why it may not, in the same way, except itself from any liability. We are referred to no case in support of the position that where a corporation or a man is chargeable to a certain extent by the operation of law he can, by an act of his own, discharge himself. There is no principle upon which such a conclusion can be founded. If the entire cost of a walk should not exceed ninety cents per square yard “for five foot wide sidewalk ” it is the business of the Legislature to make that sum the limit of the cost for the purpose of fixing the amount to be paid by the city, and not of the courts. It follows.that the judgment should be affirmed, with costs.
All concurred, except Kellogg, J., dissenting in opinion.