Putnam, J.
Defendants are in possession of premises situated on Maiden Lane and Lodge streets, in the city of Albany, under a lease executed on April 30, 1859, for a term of 30 years, at a yearly rent of $500. Said lease contains the following covenant: “During the continuance of said term the said party of the second part shall pay all taxes and water rents which shall be lawfully assessed or charged upon said premises, and also all assessments for paving, flagging, or repairing the streets adjoining said premises; but assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part. ” On April 25, 1889, said lease was renewed for five years, at the annual rent of $400, but with the same conditions and" covenants contained in the original lease. At the time of the execution of'said lease the streets known as “Maiden Lane” and “Lodge Street” had been laid out and graded “under the laws and ordinances applicable to the city of Albany, and had been and were then paved and curbed, and the expenses thereof had been paid for by the owners of the property adjoining said streets, and by the owners of the property in question, to the extent of their proper portion thereof. * * * The" pavement of the roadway, as so paved, was of cobblestone, which pavement, from use and the nature of the soil upon which the same was laid, required frequent, and usually annual, repair. The sidewalks of said streets had been and were at the said date laid with flagstones. Cobblestones were the pavement in universal use in the city at that time, and no other kind of pavement was then generally known in- cities. ” On the 8th of April, 1889, an act was passed by the legislature amending chapter 298 of the Laws of 1883, entitled “An act to provide for the government of the city of Albany,” under which the common council of said city of Albany, in the summer and fall of the year 1891, caused Maiden Lane to be repaved with granite block pavement, and suitable cross-walk stones, and recurbed, and the officers of the city assessed the expense of the work, labor, and services and materials for such work upon the property adjoining said street, and in part upon the property described in said lease. The said premises were duly sold for default in the payment of said assessment, which amounted to $799.79; being the amount assessed, with interest and charges. The plaintiffs claim that [158] the defendants, under the above-quoted clause of the lease, are legally bound to pay the aforesaid assessment. The defendants insist that they are only bound to pay for ordinary repairs to the street, and that, the said assessment being for unusual and extraordinary as well as permanent improvements, the assessment, therefore, under the lease, is for the plaintiffs to pay. If the covenant of the defendants bad ended with their promise to pay “all assessments for paving, flagging, or repairing the streets adjoining said premises,” no serious question would arise as to their liability, although the assessment in question was made under the provisions of a statute passed subsequently to the date of the lease. Post v. Kearney, 2 N. Y. 394. “Paving” is defined to be the laying of streets with pavement; and assuming that this word in the lease has the same meaning as “repaving,” the covenant above to pay for paving,.flagging, or repairing, if unmodified by the subsequent part of the sentence, might be construed as an agreement to pay for all that constitutes paving,—the material of which a pavement is formed as well as the work of placing it. But that part of the clause above quoted, in reference to defendants’paying for assessments, is modified by the balance thereof, viz.: “But assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part.” The covenant of defendants, therefore, taking the whole sentence together, is an agreement to pay all assessments for paving, flagging, or repairing streets adjoining said premises, except assessments for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, which shall be paid for by the parties of the first part.
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Putnam, J.
Defendants are in possession of premises situated on Maiden Lane and Lodge streets, in the city of Albany, under a lease executed on April 30, 1859, for a term of 30 years, at a yearly rent of $500. Said lease contains the following covenant: “During the continuance of said term the said party of the second part shall pay all taxes and water rents which shall be lawfully assessed or charged upon said premises, and also all assessments for paving, flagging, or repairing the streets adjoining said premises; but assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part. ” On April 25, 1889, said lease was renewed for five years, at the annual rent of $400, but with the same conditions and" covenants contained in the original lease. At the time of the execution of'said lease the streets known as “Maiden Lane” and “Lodge Street” had been laid out and graded “under the laws and ordinances applicable to the city of Albany, and had been and were then paved and curbed, and the expenses thereof had been paid for by the owners of the property adjoining said streets, and by the owners of the property in question, to the extent of their proper portion thereof. * * * The" pavement of the roadway, as so paved, was of cobblestone, which pavement, from use and the nature of the soil upon which the same was laid, required frequent, and usually annual, repair. The sidewalks of said streets had been and were at the said date laid with flagstones. Cobblestones were the pavement in universal use in the city at that time, and no other kind of pavement was then generally known in- cities. ” On the 8th of April, 1889, an act was passed by the legislature amending chapter 298 of the Laws of 1883, entitled “An act to provide for the government of the city of Albany,” under which the common council of said city of Albany, in the summer and fall of the year 1891, caused Maiden Lane to be repaved with granite block pavement, and suitable cross-walk stones, and recurbed, and the officers of the city assessed the expense of the work, labor, and services and materials for such work upon the property adjoining said street, and in part upon the property described in said lease. The said premises were duly sold for default in the payment of said assessment, which amounted to $799.79; being the amount assessed, with interest and charges. The plaintiffs claim that [158] the defendants, under the above-quoted clause of the lease, are legally bound to pay the aforesaid assessment. The defendants insist that they are only bound to pay for ordinary repairs to the street, and that, the said assessment being for unusual and extraordinary as well as permanent improvements, the assessment, therefore, under the lease, is for the plaintiffs to pay. If the covenant of the defendants bad ended with their promise to pay “all assessments for paving, flagging, or repairing the streets adjoining said premises,” no serious question would arise as to their liability, although the assessment in question was made under the provisions of a statute passed subsequently to the date of the lease. Post v. Kearney, 2 N. Y. 394. “Paving” is defined to be the laying of streets with pavement; and assuming that this word in the lease has the same meaning as “repaving,” the covenant above to pay for paving,.flagging, or repairing, if unmodified by the subsequent part of the sentence, might be construed as an agreement to pay for all that constitutes paving,—the material of which a pavement is formed as well as the work of placing it. But that part of the clause above quoted, in reference to defendants’paying for assessments, is modified by the balance thereof, viz.: “But assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part.” The covenant of defendants, therefore, taking the whole sentence together, is an agreement to pay all assessments for paving, flagging, or repairing streets adjoining said premises, except assessments for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, which shall be paid for by the parties of the first part.
The assessment for repaving and recurbing Maiden Lane in 1891 was doubtless an assessment for a public purpose, and the question to be determined is, was it ah assessment to pay for work of an extraordinary character, or in the nature of a permanent improvement? “Extraordinary” is defined to mean “beyond or out of the common order or rule; not usual, regular, or of a customary kind; ndt ordinary; remarkable; uncommon; rare.” Itappears that when the lease was made, in 1859, the streets adjoining such premises, and generally in the city of Albany, were paved with cobblestones; and I infer from the case that they remained in that condition, with ordinary repairs, until the repaving in question, in 1891, a period of over 30 years. At this time, in 1891, the whole pavement was removed and replaced with granite. The question submitted is not free from doubt, and I have had some hesitation in reaching a conclusion. I think, however, that the covenant contained in the lease on the part of the defendants was not one to pay assessments for removing a pavement, already existing, and to lay down a new and expensive pavement, with entirely different materials. I think the agreement should be construed to mean that defendants would make the ordinary repairs, keeping the pavement existing when the lease was made in proper condition. The new granite pavement for which the assessment was made was a repavement of the street in the place of the old pavement that had remained over 39 years. Hence it was a rare, unusual, infrequent kind of work. It was not ordinary. It was uncommon. The fact that the -new pavement was put down after using the old pavement for over 30 years shows that it was an extraordinary repair. The assessment was also for a public purpose of an extraordinary character, because of its amount. The annual rent reserved in defendants’ lease was $400. The assessment was for $800,—twice the amount of the annual rent. A repair costing that amount cannot be deemed ordinary. The assessment, therefore, was for a public purpose of an extraordinary character. I think this construction of the covenant in question will carry out what may be deemed was the intent of the parties to the contract. I also am of the opinion that the assessment may properly be considered as one made by the city to pay for a permanent improvement. The old cobble[159] stone pavement was taken up and replaced by granite. This pavement is of a permanent character. “Permanent” is defined to mean “not temporary or subject to change; abiding; remaining; fixed or enduring in character, state, or place.” I thinkthat the court may take judicial notice that the new granite pavement of the character described in this case is permanent, lasting, and not subject to change. In Twycross v. Railroad Co., 10 Gray, 293, Justice Thomas, in delivering the opinion of the court, remarked, (page 295,) in reference to a new pavement laid in front of the plaintiff’s premises, referred to in the opinion: “It is a permanent improvement of the estate, the benefit of which is to be found in the increased value of the estate, and in the increased rent which it would permanently command.” I conclude, therefore, that, under the clause in the lease to which our attention is called, the plaintiffs were liable to pay for the new pavement in question, and that therefore the defendants should have judgment on the case submitted, with costs.