FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86. expenses, including the costs of this appeal, and to retain in his hands a sufficient amount to pay the remaining installments when they come due.

The claim of the city is founded upon the following facts, which are undisputed: March 13, 1900, an assessment was made for a local improvement, an asphalt pavement, on Pierpont avenue, payable in ten annual installments, commencing May 1, 1900. The whole assessment to deceased on lot 23, Pierpont avenue was three hundred and seventy-nine dollars and fifty cents, each annual installment, thirty-seven dollars and ninety-five cents. July 3, 1900, another assessment was made for a local improvement, an asphalt pavement on Birr street, payable in ten annual installments commencing September 1, 1900. The whole assessment to deceased on lot 23, Birr street was sixty-two dollars and twenty-five cents, each annual installment, six dollars and twenty-two cents. The lot assessed for these two improvements was the same lot 23, bounded on the two streets named. There has been no payment of any of these installments. The payments due for the years 1900 and 1901 were added to the general city taxes for 1901 and 1902, and the property has been sold thereon. The amount of the claim is made up as follows:

The last eight installments of the first assessment, with interest...

$345 93

Those of the second assessment..

56 22

The first two installments of the first assessment in city

The surrogate held that the claim for the installments coming due after the death of the deceased, July 30, 1901, could not be enforced against the personal estate, but only against the land assessed, and that the claim for installments coming due before and after her death could not be enforced against the personal estate, because the city had elected to pursue the remedy of selling the land assessed, and could not pursue both remedies at the same time. These are the only questions we are called upon to determine.

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

There is concededly a fund in the executor's hands sufficient to dis charge the whole or any part of this claim. The only question is what if any claim there is which the executor should be required to

pay.

By section 206 of the charter of Rochester (Laws of 1880, chap. 14) it is provided that an assessment for a local improvement creates a personal obligation or liability against the owner of the lot or parcel of land assessed to pay the city of Rochester the amount of such assessment, for the collection of which, together with interest, costs and expenses, said city may maintain, in its own name, an action in any court of competent jurisdiction, in addition to any other remedies now provided by law for the collection thereof." This statute is plain and under it there would seem to be no doubt that deceased was personally liable for these assessments, and that such liability could be enforced by action, and that this remedy exists in addition to any other remedy the city may have. The city is here attempting to enforce the personal liability of the deceased by claim against the personal estate left by her. While the surrogate seemed to doubt the existence of such personal liability, the respondent's counsel in his brief upon this appeal makes no such claim, but regards it as settled against the respondent in this State.

The only question remaining is whether by taking the proceeding against the property, and selling and bidding in the property, the city has precluded itself from pursuing this remedy against the personal estate of the deceased. The statute above quoted expressly provides for this remedy in addition to any other provided by law. The city can collect the assessment but once, and when by any one remedy it secures the amount of the assessments, the other ceases and all interests acquired by the city thereunder are determined. The city has not yet acquired the absolute title to the property assessed, and as soon as the assessment is collected in this proceeding, all liens or other interest of the city in the property will terminate, and the owner thereof, under the will of the deceased, will hold title thereto, relieved of such lien or interest under the assessments and the proceedings for the collection thereof against the property. The only escape from this proposition is the claim App. Div.—VOL. LXXXVI.

14

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

that the city cannot pursue the personal remedy having commenced and continued the remedy against the property.

No authority is cited by the respondent and none was cited by the surrogate in support of this claim. Counsel for the respondent contents himself with criticizing and attempting to distinguish the cases cited by counsel for appellant.

The policy of the law is to require the burden of local improvements to be borne by the property to be benefited thereby, and to relieve the general taxpayer therefrom; and to insure this result the charter (§§ 206, 209, as amd. by Laws of 1897, chap. 784) not only provides for a lien upon the property directly benefited, but for a personal liability against the owner of such property, and the remedy to enforce this personal liability is given in addition to the remedy against the property. The object sought can be better and more certainly accomplished by holding that the city may pursue both remedies together until such time as the amount of the assessment is secured. No harm is done the property owner. He may stop both proceedings by paying the assessment, and if he does not pay, the amount can be collected but once, and then the proceedings both end. The charter requires the proceedings to be taken against the property. The officers are given no choice or discretion in the premises. They must move along, and this being so, it will render the personal liability statute above quoted nugatory if both remedies cannot be pursued at the same time.

The city does not want the property, but the money, so as to relieve the general taxpayers of the burden of local improvement, which ought not to be thrown upon them. Both remedies have the same end in view, the securing of the money, and the design of the charter is that the remedy against the property shall be pursued until this result is reached. The proceeding is not yet ended. The city has not yet full title to the property, may never have. A foreclosure must be had in the end, and until that is terminated there may be a redemption from the sale to the city. If this proceeding succeeds, that one must be terminated.

The result of the views herein expressed is that the decree so far as appealed from should be reversed, and the executor should, by provisions to be inserted in the decree, be required to pay to the city the installments of the assessments past due, with costs and

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

expenses, including costs of this appeal, and to retain in his hands a sufficient amount to pay the remaining assessments when they come due.

All concurred.

Decree of Surrogate's Court so far as appealed from reversed, and decree modified by inserting therein a provision directing the executor to pay the installments of assessments past due, with interest, costs and expenses, including the costs of this appeal, and to retain in his hands a sufficient amount to pay the remaining installments when they become due.

In the Matter of the Claim of CAROLINE TORGE, Respondent, against THE VILLAGE OF SALAMANCA, N. Y., Appellant, for Damages from Change of Grade of Main Street in Said Village of Salamanca, N. Y.

Change of a railroad grade crossing — the remedy of a property owner injured thereby is by action and not by proceedings under the Village Law.

Where a railroad crossing in a village is changed from a grade crossing to an overhead crossing pursuant to sections 62 et seq. of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1897, chap. 754 and since amended), and the village neglects to acquire, by purchase or by condemnation proceedings, the lands, rights and easements necessary for the purpose of carrying out the improvement, as the sections of the Railroad Law in question contemplate that it shall do, the remedy of a property owner who has suffered damage in consequence of the change of grade is to bring an action to recover damages against the village which is alone liable therefor. The property owner is not entitled to proceed against the village under section 159 of the Village Law (Laws of 1897, chap. 414, as amd. by Laws of 1901, chap. 68), relative to a change of grade, by a village, of a street over which it has exclusive jurisdiction and control, as this provision of the Village Law is not applicable to the case.

APPEAL by the defendant, The Village of Salamanca, N. Y., from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 21st day of March, 1903, appointing commissioners to ascertain the damages sustained by the respondent by reason of the change of grade of Main street in the village of Salamanca, N. Y.

FOURTH DEPARTMENT, JULY TERM, 1903.

Henry P. Nevins and G. W. Cole, for the appellant.

Niles C. Bartholomew, for the respondent.

WILLIAMS, J.:

[Vol. 86.

The order should be reversed and the proceeding dismissed, with

costs.

The proceeding was commenced by petition. An answer was served by the village. It was referred to W. S. Thrasher as referee to take proof as to the issues, except damages. The referee heard the matter and made findings of fact and of law, and thereupon the court adopted the findings of the referee and made the order appealed from. The parties stipulated to leave the evidence taken by the referee out of the record, and, therefore, the findings of fact will be regarded as supported by the evidence and as true. The facts, briefly stated, are as follows: The petitioner's property was situated on Main street, where the Erie railroad crossed that street. September 28, 1899, the trustees of the village passed a resolution authorizing an application to the State Board of Railroad Commissioners to cause the Main street crossing of the Erie railroad to be changed from a grade crossing to one where the street should be carried under the tracks of the railroad; and, again, June 7, 1900, the trustees passed resolutions that they take all proper and necessary steps to agree with the Erie railroad that an order be made by the Railroad Commissioners that such change be made in the crossing; that as soon as such order was made proper steps should be taken by the village to acquire by condemnation the rights and easements necessary to carry out the order; that the village was willing to acquire such rights and easements and pay such damages as might be awarded by the court, and was willing to accept the offer or option of Mrs. Torge for her damages, if the same should be advised and approved by the Erie Railroad Company. Thereafter, and on April 11, 1901, the Railroad Commissioners made an order reciting that a petition, under section 62 of the Railroad Law, in the form of a resolution by the trustees of the village, had been filed January 16, 1900, asking that such change be made in the crossing in question; that a public hearing, after notice, as required by the statute, had been given at Albany March 20, 1900, at which the village, the property owners and the Erie Railroad Company had appeared;