This action is brought to recover the expense of paving between the defendant’s railway tracks on Chenango street, in the city of Binghamton, from the Erie Railway northerly to the north line of the city. The plaintiff was incorporated as a city by chapter 291 of the Laws of 1867. By this act the mayor and common council were made commissioners of highways, and given the general powers of commissioners in towns. They were also given the power to regulate, pave, repair, and improve the streets. It was, however, provided that, before any paving should be ordered, it should be necessary that two-tliirds of all the owners of real estate fronting upon the street to be paved, petition or consent that the same shall be done. The expense of paving was directed to be assessed upon the owners in proportion to the number of feet frontage, except that, when the street was paved for the first time, two-thirds only of the expense should be assessed on the owners, and the remainder be paid from the highway fund, and “such street, or part of street, shall, after such first payment as aforesaid, be kept in repair at the expense of the city.” The defendant was incorporated by chapter 501 of the Laws of 1868, passed May 1,1868. By this act the defendant was authorized to construct and operate a railroad, with a double or single track, through and along certain streets and public roads of the city and town of Binghamton. One of the designated streets of the city was Chenango street. The mayor and common council of the city and the proper authorities of the town were “authorized and directed to grant permission to the company herein named, or their assigns, to construct, maintain, operate, and use said railroads in, upon, and along the several streets and highways herein mentioned. ” It was further provided that the cars should be drawn by animal power, and “the tracks of *226the said railroad shall be laid flush with the surface of the said streets and highways, and shall conform to the grade as it now is, or shall be from time to time established or altered by the proper authorities in each case; and the said company, and their assigns, shall keep the surface of the said streets and highways within the rails, and for one foot outside thereof, and to the extent of the ties, in good and proper order and repair.” On the 21st August, 1871, the common council of plaintiff granted the defendant authority as directed by the act. Prior to January 2, 1872, the defendant, pursuant to the powers, rights, and privileges granted it, constructed its track through Chenango, Court, and Main streets, and has at all times thereafter run its cars over its track, and operated a iiorse surface railway through those streets. On the 2d January, 1872, the common council of the plaintiff adopted an ordinance in relation to street railroads, which, in substance, provided'that all street railroad companies, that should thereafter maintain railroads in any of the streets, should, under the direction of and as required by the common council, “improve with such suitable,materials as the common council shall direct, and in a proper manner, between the rails, and shall keep the surface of the street inside the rails in good repair;” and in default thereof the common council should have the right to cause the repairs to bo made, and assess the expense thereof upon the property of the company, or sue for the same. The charts' of the plaintiff was revised by chapter 214 of the Laws of 1888. Under it, as so revised, paving could be ordered without first requiring the consent of any part of the abutting owners, and in all cases one-half the expense was to be assessed upon the owners according to extent of frontage; and it was provided that “all repairs on said streets or parts of streets, not including grading and paving of repaving, as aforesaid, shall be done at the expense of the city.” On the 16th April, 1889, the common council adopted the following resolution: “Whereas, persons owning a majority of the property fronting on Chenango street, in the city of Binghamton, 2i. Y., between the railway tracks and the north line of the city, have subscribed a petition asking this council to pave said street between said points with Trinidad asphalt pavement, with concrete foundation, now, therefore, be it resolved, that we deem it for the best interest of said city, and the public good demands, that said street be paved with said pavement and foundation; and be it further resolved, that we will pave said street from the railway tracks to the north line of said city with Trinidad asphalt pavement, with concrete foundation, and that the city engineer and corporation counsel be, and they are hereby, directed to prepare propqr specifications for said pavement, and report the same to this council at the next meeting thereof, that the city clerk may prepare and give the necessary notice in the official paper for proposals to build said pavement.” On the 22d April, 1889, plans and specifications were reported and adopted, advertisement for proposals was thereafter made, and on the 21st May, 1889, thacommon council accepted the bid of the Warren Scharf Paving Company to construct the pavement at $2.80 per square yard. On the 11th June, 1889, the council adopted a resolution directing the defendant to place its tracks on the established grade, “and that it pave within its tracks, and one foot on the outer side of said track, with Trinidad asphalt pavement, with a concrete foundation, according to the specifications for the paving said street now on file in the city clerk’s office,” to be completed within 30 days after the service on the company of a copy of the resolution. The resolution was duly served on the defendant, and it put its tracks on the grade, but refused at all times to fill between the tracks with asphalt pavement, or pay for the same, but did ■offer to pave between the tracks with wooden blocks. The pavement was laid by the paving company under its contract with the city, and one-half the expense was paid by the abutting owners, and the other half by the city. The street had not at any time prior thereto been paved. The expense of paving ¿between the rails of defendant’s tracks at the rate of $2.80 per square yard *227was $5,181.12. This sum the common council assessed upon the defendant under the ordinance of 1872, but it has not been paid.
In the complaint the ordinance of January 2, 1872, is alleged as a foundation of liability against the defendant, and this position was apparently urged at the trial, but the referee held that the plaintiff could not base its claim on that ordinance. The correctness of this ruling is not here questioned by the counsel forthe plaintiff, and it need not be further here considered. The referee, however, held that, under the provisions of chapter 501 of 1868, the defendant became obligated and bound itself to pave the surface of the street within the rails of its track, and for one foot outside thereof, and to the extent of the ties, when duly requested or directed by the proper authorities of the plaintiff, and in the manner and with the material designated and directed by such authorities. Upon this theory, he ordered judgment for the amount claimed by plaintiff. The claim of the defendant is that the expression in the act of 1868, “in good and proper order and repair,” does not include paving, and that it does not impose on defendant an obligation to rc instruct the surface of a portion of the street at the arbitrary will of the plaintiff.
There are many cases in which a distinction is recognized between paving and repairing. In Re Fulton St., 29 How. Pr. 429, where Fulton street, in the city of Brooklyn, having then a cobble-stone pavement, was repaved with Belgian pavement, it was held that the work was not a repair of a street, and the expense chargeable to the city, but a local improvement, and therefore the subject of a local assessment. In State v. Railway Co., 85 Mo. 263, the obligation on defendant was that “the space between the rails of said track and the street, for a space of two feet on either side and along the line of said track, shall be kept and maintained in good repair by said railway company.” The street was then unpaved. The city authorities afterwards determined to pave the street with sand-stone blocks to be laid upon a foundation of concrete nine inches thick, and called upon the railway company to pave in that way between its tracks. It was held that the defendant was not liable, it being said that an obligation to repair a street is not an obligation to construct thereon a new pavement. A similar view was taken in Mayor v. Seharf, 54 Md. 499, 525, where the obligation on the street railroad company was to keep its track and two feet on each side of it “in thorough repair,” and the improvement was to repave with Belgian pavement in place of cobble-stone. In Western Paving & Supply Co. v. Citizens’ St. Ry. Co., (Ind. Sup.) 26 N. E. Rep. 188, 28 N. E. Rep. 88, the obligation was that “the said company shall keep the tracks, and two feet on the outside of each rail, together with all bridges and the crossings of all gutters, at all times in good repair, to the satisfaction of the common council. ” It was held that the company could not be compelled to pay the expense of regrading with asphalt. Upon the other hand, in Railroad Co. v. Wakefield, 103 Mass. 261, 266, it is said that no sound distinction can be made between needful repairs and such improvements as are required by the public good. In People v. Railway Co., 41 Mich. 413, 2 N. W. Rep. 188, it was assumed that a liability to keep “in good order and repair” included paving; and so it was in Railway Co. v. Philadelphia City, 124 Pa. St. 219, 16 Atl. Rep. 741, under an obligation to keep “in perpetual good repair.” In Huggans v. Riley, 125 N. Y. 88, 25 N. E. Rep. 993, it was held that a commissioner of highways, under the power given him to repair highways, may build a new bridge when necessary to connect the two portions of a highway interrupted by an intersecting stream. This was placed on the theory that it was necessary in order to make the highway passable.'
In the present case, the liability was assumed in 1868 at a time when the road was not paved, and it may be assumed that since that time the use of the road has largely increased. The liability, however, upon the defendant to keep it in good and proper order and repair was continuing, and what *228would be necessary for that purpose would depend upon-the situation at the time the' performance of the covenant was called for. A condition of things may be imagined that would call for some kind of paving in order to reasonably perform the agreement. Whether a kind that would amount to a reconstruction of the street would in any event be within the agreement is a matter of some doubt. The necessity of such, to say the least, should be clearly made to appear. The liability in question is somewhat similar to the liability upon a railroad company, under the general railroad act, to restore a street or highway that it uses to its former state, or to such state as not unnecessarily to have impaired its usefulness. In such case, the company is bound, not only to restore the street to its former state, but to keep the portion used by it in a reasonable state of repair. Of such a liability, Judge Earl says in Gilmore v. City of Utica, 121 N. Y. 572, 24 N. E. Rep. 1009: “That certainly does not bind a railroad company, whenever the municipality shall resolve to pave or repave a street, to conform its repairs to the absolute directions and requirements of the municipality.”
In the case before us there is no finding or proof that, at the time the common council of the city ordered the asphalt pavement, the space in the street occupied by the defendant was not in good and proper order and repair, or. that the pavement was necessary for the purpose of keeping the street in such a condition, except as it may be inferred from the act of the city authorities in directing the pavement. The question, then, arises whether such act in those respects binds the defendant, or is proof against it of any facts in controversy. The counsel for the plaintiff claims, in effect, that the resolution of the common council is presumptive evidence that the asphalt pavement was necessary and proper, and cites the case of Tingue v. Village of Port Chester, 101 N. Y. 294, 4 N. E. Rep. 625. In that case it was simply held that, in an action to restrain the sale of land for non-payment of an assessment for a local improvement, and to set aside, the assessment because of alleged invalidity in the proceedings, the burden is on the plaintiff to establish the invalidity complained of. In Mayor, etc., v. Railroad Co., 102 N. Y. 572, 7 N. E. Rep. 905, it was shown on the part of plaintiff that the street was out of repair; that the defendant, after due notice, neglected to put it in repair,.as required by its covenant; and thereupon the plaintiff proceeded to make the repairs at a certain cost for labor and materials, employing laborers at the usual wages, and purchasing materials in the usual way. It was held that prima facie the amount expended was the measure of plaintiff’s recovery. These cases do not help us here. The rights of the defendant were obtained from the act of the legislature. The city authorities had no right to increase the burden on defendant. They were given the right to establish and alter the grade, but were not given the right to say what materials the defendant should use, or to decide what was necessary for defendant to do. The defendant having accepted the grant and built its railroad, there existed between it and the people, represented, as we may here assume, by the plaintiff, an obligation in the nature of a contract. Com. v. Proprietors, 2 Gray, 339; Chicago v. Sheldon, 9 Wall. 50. That being so, it is not in the province of either party, by its own declaration, to interpret the contract or fix the extent of the liability of the other. In the case cited from Gray (page 350) it is said: “The interpretation and construction of contracts, when drawn in question between the parties, belongs exclusively to the judicial department of the government. The legislature have no more power to construe their own contracts with their citizens than those which individuals make with each other.” See, also, Cooke v. Railroad Corp., 133 Mass. 188; State v. Railway Co., 35 Minn. 138, 28 N. W. Rep. 3; 3 Wood, Ry. Law, § 491.
But it may be suggested that the city authorities had absolute authority to pave the street, and direct the kind of pavement. The same statute that *229gave this authority provided for the manner of the payment of the expense •of such paving, and did not charge any part of it on the street-railroad company. The obligation of the defendant was not in any manner affected. It still continued liable to keep the portion of the street used by it in good and •proper order and repair. So it was the duty of the common council, as commissioners of highways, to see to it that the streets were in proper repair, and the city was chargeable with the expense. This did not give them power to say what the defendant should reasonably have done in order to perform its agreement. Cooke v. Railroad Corp., 133 Mass. 188; 2 Wood, Ry. Law, p. 976, § 271. In U. S. v. Ross, 92 U. S. 281, it is said that the presumption •that public officers have done their duty does not supply proof of independent and substantive facts. It follows that the defendant is not bound by the determination of the plaintiff’s common council that an asphalt pavement should be laid. Such determination does not, as against the defendant, presumptively prove the necessity of such pavement. The plaintiff here seeks to recover damages for the non-fulfillment by defendant-of its agreement. It is therefore incumbent on plaintiff to show, according to the ordinary rules of evidence, breach of such agreement, and what expense has by reason thereof been incurred by it that was reasonably necessary, neither of these things is shown. The plaintiff cannot by its own declaration determine the fact of breach, and cannot arbitrarily fix the method of repair. Judgment reversed, and new trial ordered, costs to abide the event. All concur.