sued, under subdivision 1 of section 8, to a person in connection with the business of keeping a hotel, was authorized to traffic in liquors not to be drunk on the premises where sold, when the majority of the votes cast upon the second question was in the negative. While the vote was against question No. 1, as to the selling of liquor to be drunk on the premises where sold, and also against question No. 2, as to the selling of liquor not to be drunk on the premises where sold, yet the affirmative vote upon question No. 4 modified the negative decision upon question No. 1, as to selling liquors to be drunk on the premises where sold, by reason of the condition contained in question No. 4, "if the majority of the votes cast on the first question submitted are in the negative," to the extent of permitting liquor to be sold, to be drunk on the premises where sold, in connection with the business of keeping a hotel; but, question No. 4 containing no such condition as to question No. 2, said vote in no way whatever modified the negative decision as to question No. 2, as to selling liquors not to be drunk on the premises where sold. But it is claimed by respondent that he had the right to traffic in liquors not to be drunk on the premises where sold by reason of the following provision of subdivision 1 of section 8: "The holder of a liquor tax certificate under this subdivision is entitled to traffic in liquors as though he held a liquor tax certificate under subdivision two of this section, subject to the provisions of section thirteen of this chapter." In section 13, entitled "Local option to determine whether liquor shall be sold under the provisions of this chapter," we find this provision: "If the majority of the votes shall be in the negative * no person shall thereafter so traffic in liquors or apply for or receive a liquor tax certificate under the subdivision or subdivisions of section eight, referred to in the question or questions upon which the majority of the votes Subdivision 2 of sec * * cast shall have been cast in the negative.' tion 8 was referred to in question 2 as follows: "Shall any person be authorized to traffic in liquors under the provisions of subdivision two of section eight of the liquor tax law, namely, by selling liquor not to be drunk on the premises where sold?" The vote upon question 2 having been in the negative, the above-quoted provision of section 13 constituted a positive restriction of the right of the respondent to traffic in liquors under subdivision 2 of section 8, and negatived any right which respondent might claim to have to traffic in liquors by reason of the provisions of subdivision 1 of section 8, hereinbefore quoted. Prior to the passage of chapter 485 of the Laws of 1910, and since the amendment of section 13, then section 16, by chapter 312 of the Laws of 1897, the keeper of a hotel, who was the holder of a liquor tax certificate, had the right to traffic in liquors to be drunk in the hotel, and also off the premises, by reason of the following provision of section 13: "But if the majority of the votes cast on the fourth question submitted. is in the affirmative, and a majority of the votes cast on the first question submitted is not in the affirmative, a liquor tax certifi cate may be granted under subdivision one of section eight to the keepers of hotels, who may traffic in liquor to be drunk in the hotel and off the premises, though the majority of the votes cast on the second question submitted is not in the affirmative." By chapter 485 of the Laws of 1910, which went into effect June 14th of that year, the Legislature repealed this provision of section 13, since which time there has been no provision of law authorizing the holder of a liquor tax certificate under subdivision 1 of section 8 to traffic in liquors in towns in which the majority vote on question No. 2 was in the negative, as though he held a liquor tax certificate under subdivision 2 of section 8. Attention may be called to the amendment of section 36 by chapter 485, Laws of 1910, by the insertion of the words, "by reason of the result of a vote on the local option questions," as further indicative of the intent of the Legislature. [2] The objection that the indictment is defective upon the ground that it stated that the four questions were "duly submitted," instead of expressly alleging the various preliminary steps requisite to the legal submission of such questions, is without merit. The words "duly submitted" imply the existence of every fact essential to the regularity of the proceedings. Hall v. People, 90 N. Y. 498; Brownell v. Town of Greenwich, 114 N. Y. 518, 527, 22 N. E. 24, 4 L. R. A. 685; Baxter v. Lancaster, 58 App. Div. 380, 68 N. Y. Supp. 1092. For the foregoing reasons, we are led to the conclusion that the facts stated in the indictment constituted a crime; and hence that the judgment allowing the demurrer should be reversed, the demurrer disallowed, and the defendant required to plead. All con cur. (77 Misc. Rep. 532.) PEOPLE ex rel. KELLER et al. v. CITY OF BUFFALO. 1. MUNICIPAL CORPORATIONS (§ 414*)-STREETS-"REPAVEMENT." For other definitions, see Words and Phrases, vol. 7, p. 6102.] 2. MUNICIPAL CORPORATIONS (§ 414*)-STREETS-PAVEMENT "REPAVING." "REPAIRING”— "Repairing" a pavement means restoration of the paved surface, while "repaving" means replacement of old pavement with new. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 1008, 1017; Dec. Dig. § 414.* For other definitions, see Words and Phrases, vol. 7, pp. 6096–6102; vol. 8, p. 7785.] For other cases see same topic & § NUMBER in Dec. & Am, Digs. 1907 to date, & Rep'r Indexes 3. MUNICIPAL CORPORATIONS (§ 460*)-STREETS-IMPROVEMENT-REMOVAL OF LAMP POSTS AND HYDRANTS. A street paving assessment properly includes items of cost for removing lamp posts and hydrants. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1102-1104; Dec. Dig. § 460.*] 4. MUNICIPAL CORPORATIONS (8 460*)-STREETS-IMPROVEMENT ASSESSMENTS -IRREGULARITIES MATERIALITY. A meritorious local improvement assessment should not be set aside on account of any improper inclusion of relatively small items of cost. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1102-1104; Dec. Dig. § 460.*] Certiorari by the People, on the relation of Charles Keller and another, against the City of Buffalo to review a local assessment for paving, etc., a part of a street. On motion for judgment on writ and return. Motion overruled. Frank M. Spitzmiller, of Buffalo, for the motion. POUND, J. Relator raises by this motion certain questions as to the legality of the assessment to pay the cost of the proposed improvement, to be decided on the undisputed facts. [1] First. It is urged that, the street having once been paved, the proposed improvement is a repavement, although the new pavement is to be five feet wider on each side than the old paved portion of the street. If the relator is correct in this contention, one-third of the entire expense of the improvement must be met by general taxation; but, if the contention of the city prevails that the improvement is a repavement only to the width of the old pavement, the expense of the strips of new pavement on either side of the old roadway must be paid by local assessment on the property benefited and the assessment is properly so laid. City Charter, §§ 279, 400. No case is cited which holds that, where a street has been paved part of its width, the subsequent pavement of those parts where no pavement has ever been laid is a repavement, and the question is a novel one. Matter of Grube, 81 N. Y. 139, 141, where the Burmeister Case, 76 N. Y. 174, and the Garvey Case, 77 N. Y. 523, cited by relator, are explained and distinguished, indicates that it is only the relaying of the old pavement that can be termed a repavement. Matter of Astor, 53 N. Y. 617, cited by relator, does not touch the question. Although Ten Eyck v. Rector, 65 Hun, 194, 20 N. Y. Supp. 157, contains some loose expressions, defining paving and repaving, which might uphold relator's contention that "paving" means when pavement is laid for the first time in a dirt road and that any subsequent paving thereof is "repaving," it decided merely that an agreement between landlord and tenant, whereby the latter is to pay all assessments for paving, is broad enough to include assessments for repaving. [2] The charter (section 279) recognizes (a) repair of paved streets by the commissioner of public works, and (b) repaving, when the commissioner certifies that it is not expedient to make further repairs. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-30 "Repairing" means restoration of the paved surface. "Repaving" means paving again, taking up the old pavement and replacing it with new. To the extent that the new pavement extends beyond the lines of the old, the street is not repaved, but is paved for the first time. If a street is paved for one-half its width by local assessment, and later the pavement is extended to the entire width of the street without disturbing the first pavement, probably no one would claim that the new pavement was a repavement. The circumstance that the old pavement is relaid at the same time that the new pavement is laid does not make the work one of repaving. The purpose of the charter is, it would seem, to impose the entire original cost of new pavement on the property benefited, and to charge the city at large with one-third of the expense of replacing the old pavement when it be comes worn out. [3] Second. It is urged that the assessment is erroneous because it includes an item of $70 for moving lamp posts and an item of $520 for moving hydrants. The work of moving lamp posts and hydrants is necessary in connection with widening the pavement. If it were not done, the lamp posts and hydrants would obstruct the new pavement. While it is not included in the plans and specifications nor in the contract, it is work which the commissioner of public works might do, if authorized thereto by the common council. City Charter, §§ 271, 272, Title X. When the common council ordered the improvement without other provision for this work, it, by reasonable implication, authorized the commissioner of public works to set back the lamp posts and hydrants. When it ordered the expense to be included in the assessment, it provided for the payment thereof pursuant to section 272 of the charter. Section 279 of the charter authorizes the commissioner "to lay water pipes" without advertising for proposals to do the work, although the expense may exceed $500, and moving the hydrants comes fairly within the meaning of the term "to lay water pipes." [4] The contract for repaving and paving was let for $23,850, and the above items are relatively so small that the court "should not be astute to find some means of setting aside what so far as the evidence shows is a meritorious assessment levied for the payment of the cost of a public improvement." Gilmore v. City of Utica, 131 N. Y. 26, 34, 29 N. E. 841, 843. Motion denied, and trial ordered to proceed forthwith. (152 App. Div. 601.) TURNER v. BRYANT. (Supreme Court, Appellate Division, Third Department. September 27, 1912.) VENDOR AND PURCHASER (§§ 172, 196, 199*)-CONTRACT TO CONVEY-ACCOUNT ING. On an accounting under a contract to convey a sawmill and its site, the purchaser is not chargeable with interest on the price while the vendor was in possession with the purchaser's assent, nor is the vendor •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexer chargeable with use and occupation during that time. The purchaser is properly charged with premiums on insurance paid by the vendor for the purchaser's benefit, with interest thereon to the time of a fire which destroyed the mill; and the purchaser should be credited with insurance proceeds received by the vendor, entitling him to a conveyance on payment of a balance due under the contract. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 349-351, 401-406, 1440; Dec. Dig. §§ 172, 196, 199.*] Appeal from Trial Term, Franklin County. Action by Charles H. Turner against Edwin R. Bryant. Judgment for plaintiff, and defendant appeals. Modified and affirmed. See, also, 143 App. Div. 972, 127 N. Y. Supp. 1147. Argued before SMITH, P. J., and KELLOGG, HOUGHTON, BETTS, and LYON, JJ. Kellas & Genaway, of Malone, for appellant. R. M. Moore, of Malone, for respondent. SMITH, P. J. The judgment appealed from authorizes a discontinuance of the action by the plaintiff upon his request and dismisses the defendant's counterclaim. To understand the questions involved, a short history of the litigations between these parties becomes necesIn 1896 the defendant Bryant contracted to purchase of one Parmelee a mill site containing 5.67 acres of land. Bryant was to take possession and to keep the buildings in repair, and insured for two-thirds of the value. In the same contract was an agreement to sell to Bryant certain standing timber, and the consideration was to be the sum of $14,207. In the next year, 1897, this plaintiff purchased from Parmelee the mill site and the standing timber which Parmelee had contracted to sell to Bryant, and at the same time entered into a contract with Bryant, which recites: "Whereas, the said Charles H. Turner has purchased of A. B. Parmelee & Son all their interest in and to a certain contract made by them with said Edwin R. Bryant, dated February 15th, 1898, for the sale of certain lands and timber duly set forth in said contract, and "Whereas, the said Edwin R. Bryant has duly surrendered and assigned all his interest in said contract to said Charles H. Turner, and has received from said Turner a discharge of his, said Bryant's, indebtedness upon said contract." The contract then provides that Bryant agrees to saw and load upon cars certain timber at the price of $2 per thousand feet, and Bryant guarantees that there are 6,000,000 feet of spruce and pine upon said land in merchantable logs for lumber, and that he will make up any deficiency in said 6,000,000 feet. Turner agrees to pay $2 per thousand feet for the sawing of the lumber, and for a deficiency of the lumber Bryant is to pay $2.50 per thousand feet. At the termination of the contract, Turner agrees to convey to Bryant by warranty deed the said mill site, containing 5.67 acres of land. It was agreed that Turner should keep the mill insured at the expense of Bryant, and the contract was to be completed in two years from date. The contract recites the mill as "the mill now occupied by said Bryant." It *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |
