Cash v. Village of Franklinville — 211 A.D. 832

Majority

p. 832

Persis A. Cash, Respondent, v. Village of Franklinville and Others, Appellants.

Headnote

Villages — action to restrain village from constructing sidewalk on ground that notice served on property owner was defective — village has power to construct sidewalk irrespective of valid notice — defect in notice is defense only to proceedings to compel property owner to pay.

Appeal from a judgment of the Supreme Court, entered in the Cattaraugus county clerk’s office on July 30, 1923, upon the decision of the court permanently restraining the defendant from interfering with plaintiff’s sidewalk in front of her premises and from constructing any other or different sidewalk upon any other or different grade.

Irrespective of notice to the plaintiff, the defendant, under section 161 of the Village Law, was empowered to construct a new sidewalk. If the notice served was defective, and the village thereafter laid the walk, the plaintiff or her successor in ownership could successfully resist the payment to the village of the expense of making the improvement. The doing of the work by the defendant, however, should not be enjoined. We, therefore, need not, and do not, pass upon the sufficiency of the notice.

All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.

Judgment reversed on the law, with costs, and complaint dismissed, without costs. Finding of fact numbered ninth in the decision is reversed, and the conclusions of law are disapproved.