MARK S. HOTCHKISS, Respondent,
THE CITY OF BINGHAMTON, Appellant.
APPEAL by the defendant, The City of Binghamton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 9th day of June, 1911, upon the decision of the court rendered after a trial at the Broome Trial Term, certain questions of fact having been submitted to the jury.
The action was brought to recover the sum of eighty-three dollars and eighty-five cents, one-half the cost of constructing two cement sidewalks in the city of Binghamton, under section
178 of chapter 751 of the Laws of 1907, being the charter of the city of Binghamton.
This section provides that 'In case any sidewalks shall be paved or curbed by the owner with stone or any other material other than wood, approved by the commissioner of public works, and such walk or curb being built for the first time, one-half the cost of such paving or curbing, exclusive of the cost of grading, shall, subject to the limitations in the next section provided, be paid by the city, but in no case shall the entire cost of such walk exceed two dollars per square yard for the purpose of fixing the amount to be paid by the city.' The next succeeding section, so far as material to this case, provides that the amount to be expended for the city's share of the construction of permanent walks and curbs during any one year shall not exceed the sum of $20,000, and that whenever the cost to the city in any one year shall exceed that sum the excess shall not be collectible from the city during said year, but shall be paid from the amount authorized to be appropriated for sidewalk construction in the next succeeding annual tax budget.
An application was made to the commissioner of public works by each of two property owners, assignors of the plaintiff, for grade and specifications for a cement walk. The applications were prepared by using printed forms furnished by the commissioner, and, when completed by filling in the written portion, were signed by the applicants. Each blank was as follows:
'BINGHAMTON, -------------, 191_.
' To the Commissioner of Public Works:
'SIR.--I hereby make application for grade and specifications for a cement sidewalk to be laid on the------side of ------------- Street, No. ------. My object in making this application is that the said sidewalk or curbing may be laid in conformity with the rules and regulations of the commissioner of public works, and that on the completion thereof I may receive the rebate allowed in accordance with sections 178-179 of the City Charter.
'I am the owner of said property, duly appointed by power of attorney recorded in the office of the Clerk of Broome County.
Above the applications and upon the upper margin of each blank, the commissioner had caused to be stamped in red ink some time prior to its delivery to the owners the following:
'This permit is granted upon the express condition that the entire cost of the sidewalk shall not exceed ninety cents per square yard for five foot wide sidewalk, and one dollar per square yard for six foot wide sidewalk, for the purpose of fixing the amount to be paid by the city.'
The grade and specifications were furnished and the sidewalks were constructed five feet wide in accordance therewith, and that fact was certified to by the city ...