In 1869 that portion of Madison avenue described in the petition was "graded, curbed, guttered and flagged" in pursuance of an ordinance and the petitioner paid therefor. The side-walk is twelve feet wide and the improvement then made consisted of a single strip of flagging four feet wide running through the center of the side-walk. The ordinance now in question provides that on the same premises "curb and gutter stones be set and reset and the side-walks be flagged and reflagged where not already done." This ordinance was not petitioned for as required in certain cases by section 115 of Laws of 1873, chapter 335, as amended by section 22 of chapter 757, Laws of 1873. I think the case before us falls within the statute. A side-walk furnished with a stone-way four feet in width may properly be said to be flagged although the whole surface is not covered. It was one mode of improvement and furnished a convenient and sufficient way for travel. The statute last referred to permits the owner to judge of the necessity or expediency of a new, or better, or different improvement and unless it applies to a case like the present the city may pave one-third of the walk at one time, one-third at another, and afterwards the rest. This would be contrary to the plain reading and obvious purpose of the statute. The city having once determined the character and extent of the pavement and laid it, can have no farther jurisdiction over the flagging or pavement of that side-walk until a petition has been presented therefor "by a majority of the owners of the property on the line of the proposed improvement." (Statute of 1873 [supra].)
The order should be affirmed, with costs.
All concur, except RAPALLO, J., absent.
Order affirmed. *Page 525