On the 14th of March, 1888, when the common council determined by a resolution to repave Genesee street, there rested upon the street railway the burden of repaving that portion thereof occupied by the railroad, and two feet outside of its tracks. The burden was imposed by the resolution passed by the common council in 1862, to which the street railway had subjected itself in accepting the permission upon the condition mentioned in the resolution, and by assumption of such burden by the terms of the lease under which the present railroad became possessed of the right to operate the same in Genesee street. Besides, in chapter 28 of the laws of 1870, section 79 of the charter was amended so as to confer power upon the common council to enforce the burden resting on the railroad. In the fifth subdivision of section 79 it is provided, viz.: “The common council is hereby authorized to require all railroad companies operating street railroads in any of the streets *914of the city to repave between their tracks, and at least two feet in width on each side thereof, whenever the common council shall deem such repavement necessary.” This language clearly authorized the common council to determine the necessity for repavement. Such determination was made by the common council. It then became the imperative duty of the street railway “to repave between their tracks, and at least two feet in width on each side thereof.” We think the provision of the statute just quoted is mandatory, and that it was the duty of the common council to enforce compliance on the part of the street railway. We think the tax-payers at large had a right to have that provision,of the law enforced, and that the adjacent owners were entitled to have the common council exact a performance on the part of the street railway. People v. Board of Supervisors of Herkimer Co., 56 Barb. 452; People v. Board of Supervisors of Otsego Co., 51 N. Y. 401. In delivering the opinion in the case last cited, the court referred to Mayor v. Furze, 3 Hill, 612, and approves of the language of Judge Helson, which is as follows : “Where a public body or officer has been clothed by statute with power to do an act which concerns the public interest, or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive, merely, and not peremptory.” A similar doctrine was laid down in Supervisors v. U. S., 4 Wall. 435, in which case Mr. Justice Swayne observed: “The conclusion to be deduced from the authorities is that, where power is given to public officers in the language of the act before us, or in equivalent language,—whenever the public interest or individual rights call for its exercise,—the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.” See, also, City of Galena v. Amy, 5 Wall. 705. If the common council had exacted from the railroad a performance of its duty, the burden cast upon the tax-payers and the plaintiff and other adjacent owners would have been much less. The effect of the resolution of 1862, and the provision in the act of 1870, (subdivision 5, § 79,) relieved the plaintiff and other adjacent owners, as well as the tax-payers, from the burden of maintaining the pavement on that portion of the street occupied by the street railway. In effect, the expense of repaving such portion of the street was not only imposed upon the street railway, but the liability therefor was withdrawn from the adjacent owners, and from the tax-payers at large. We agree with the learned counsel for the appellant that “the railroad’s liability, if any, is a matter between it and the city;” but we do not agree with him in the assumption that the adjacent owners are not interested in the enforcement of that liability. We think they are relieved pro tanto from a burden which otherwise would rest upon them. By chapter 426 of the Laws of 1887, section 99 of the charter was amended, and a mode was prescribed for enforcing the collection of expenditures in grading, leveling, paving, or repaving streets. However, we find nothing in that statute which relieves the railroad from the burden resting upon it to maintain the pavement between its tracks and the two feet adjacent thereto. We think the words “the common council shall then determine the expense of the whole work” may receive reasonable construction by applying them to the expenditures upon that portion of the street not occupied by the street railway. We think the words were not intended to authorize a transfer of the burden resting upon the railway to the adjacent owners or to the tax-payers at large.
There is nothing in the case to indicate that the street railway company was unable to perform the obligations imposed on it. The common council, therefore, ought to have exacted a performance on the part of the railway *915company. In Re Appleby, 26 Hun, 429, the court says: “The omission to enforce it, [ordinance,] and to secure so much of the pavement under it as the railroad company was obliged to lay, was a material error and defect in the proceedings themselves, of which the applicant, as the owner of the property fronting upon the avenue, has a legal right to complain. In re Casey, 5 Hun, 463; In re N. Y. etc., School, 75 N. Y. 324. Ho part of the cost of this twenty-five feet of pavement was legally chargeable to him; but, under the terms of the ordinance, it is clear that it should have been imposed upon the railroad company. A portion of it was included in the assessment required to be paid by him, and to that extent he has been made the subject of injustice.”
O’Reilley v. City of Kingston, 114 N. Y. 440, 21 N. E. Rep. 1004, is distinguishable from the case before us, as the case arose under a different statute, and a different resolution of the common council, from the one we have been considering. In that case the assessment was to be made upon land bordering upon the street, and it was held that the land occupied by the railroad “did not border on or touch the street, within the meaning of the charter; it being simply a part thereof. ”
Whether the contractor, the Warren Scharf Asphalt Paving Company, can enforce its contract against the city, is a question which we need not now determine. As was said by Allen, J., in Moore v. Mayor, 73 N. Y. 251, “ While a local assessment may be void, a contract, fully performed, made ■ in pursuance of the same ordinance, may be valid.” If the contractor has fully performed, and is entitled to enforce payment of his contract price from the city, that fact does not of itself stand in the way of the plaintiff’s enforcing his legal rights, nor make against the propriety of liis resisting an over burdensome assessment.
Upon the questions we have alluded to, further views are expressed in the opinion delivered at special term, as well as upon other questions arising in the case, which are considered therein quite satisfactorily. We therefore do not deem it needful to further discuss the questions arising in this case. We think the plaintiff was entitled to the relief awarded at the special term.
Judgment affirmed, with costs. All concur.