In the Matter of Laying Out, Opening and Extending Glenwood Avenue from Ravine Avenue to the Land of the New York Central and Hudson River Railroad Company, Respondent, in the City of Yonkers. James C. Colgate and Others, Appellants

In the Matter of Laying Out, Opening and Extending Glenwood Avenue from Ravine Avenue to the Land of the New York Central and Hudson River Railroad Company, Respondent, in the City of Yonkers. James C. Colgate and Others, Appellants. Second Department, March 12, 1909. Municipal corporations — street opening, city of Yonkers — right of remaindermen to file remonstrance. Although the charter of the city of Yonkers provides that the common council shall allow the opening of a proposed street in the absence of a remonstrance signed by a majority of the persons who shall be assessed therefor, where one who owned lands within the district liable to assessment devised the same to his wife for life, with remainders over at her death, with a power of sale in the ■ executors before that time, the remaindermen are not entitled to file a remonstrance as individual owners during the life of the life tenant, for she, not the remaindermen, will be called upon to meet the assessment. Appeal by James C. Colgate and others from an order of the Supreme Court, made at the Westchester Special'Term and entered in the office of the clerk of the county of Westchester on the 9th day of Povember, 1908, appointing commissioners of estimate and . appraisal herein, and also from an order entered in said clerk’s office on the 4th day of January, .1909, denying the appellants’ motion to vacate and set aside such order. James M. Hunt, for the appellants. John F. Brennan, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The charter of the city of Yonkers (Laws of 1895, chap. 635) provides in the 4th section of title J for the opening of streets. The proceeding must be opened by a petition signed by one-third of the persons owning land oh the line of said street or-proposed street, and it does not appear to be questioned here that this muph of the proceeding is regular. But it is provided that the common council, a If no remonstrance signed by a majority of the persons who will be assessed therefor, shall be presented to it oh or before the day specified in said notice, it may then * * * allow such improvement to be made, or the; property, rights or easements to be taken.” It is then provided,, among other things’, that the common council shall fix the assessment district, and that that .body may, notwithstanding a remonstrance, authorize the work or the taking of the rights by unanimous action of all the members. The appellants herein did make a remonstrance, and it does not appear to be questioned here that the action of the common council in authorizing the proceeding here in question did not act by unanimous voice of all its members, so that the question before the court is as to the sufficiency of the remonstrance. This remonstrance was signed by James C. Colgate, Susan F. Colgate and Mary Colgate, individually, and by the executors of the last will and testament of James B. Colgate and by James C. Colgate and George G. De Witt as trustees, and the record shows that the only other persons owning land within the assessment district are Laura McDonald and the Mew York Central and Hudsor River Railroad Company, the moving parties in the original petition. James B. Colgate was, in his lifetime, the owner of all the land in. the assessment district aside from the moving petitioners. By his last will and testament lie devised to his wife, Susan F. Colgate, for life, these lands within the assessment district, and upon her death the property is to be divided in three parts, one of these to go to Mary Colgate, another to James C. Colgate and the third part to James C. Colgate and George G. De Witt as trustees. It does not seem to be claimed that the addition of the names of the trustees adds anything to the remonstrance, and it seems to us that the.purpose of the statute was not to include all persons who might have an interest in real estate, but to afford a reasonable protection to the owners óf real property to be assessed. If James B. Colgate had been alive at the time this proceeding was institued, he alone would have been qualified to remonstrate; he was dead, but this property was vested for life in his widow, subject to be divested at her election and sold by the executors under the provisions of the will, so that there was no certainty that any one of the signers of the remonstrance, aside from Susan F. Colgate, would ever be called upon to meet any part of the assessment; certainly not that they would ever be assessed, and the statute gives the right to effectively remonstrate only to a “ majority of the persons who will be assessed therefor.” There was only one property involved (the estate of James B. Colgate, deceased), and we are of the opinion that with that property tied up in a life estate, liable to be sold at the election of the holder of the life estate, the mere fact that some of the expense might ultimately fall upon the remaindermen did not give them any standing to protest against this proposed public improvement. We are not dealing with a judicial settlement of accounts, or with the equities as between life tenants and remaindermen, but with a statutory privilege accounted to a class; to persons who will' be assessed for a public improvement, and the possible remainder-men .(for they have no vested right in the real estate within the assessment district under the provisions of the will) have no place in this class. The orders- appealed from should be affirmed, with ten dollars costs and disbursements. Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred. Orders affirmed, with ten dollars costs and disbursements.'