In re Anderson , 1871 N.Y. App. Div. LEXIS 97 ( 1871 )

Ingraham, J.

It is objected, to this assessment, that part of the old flagging was relaid and old curb reset, and the expense included. The ordinance directed the avenue to be curbed and guttered, and sidewalk flagged. It did not direct that new flagging should be used; and if the contractor under the direction of the street commissioner, finds good flagging on part of the line and resets it, only charging the expense of the labor, the petitioner has no cause to complain. The ordinance is not violated; it does not appear that he has been injured; and there is clearly no fraud shown ; but on the contrary, a piece of honesty in fulfilling the contract, which is to be commended, rather than to be condemned. It is neither fraud nor legal irregularity in laying the assessment that warrants setting it aside.

[New York Special Term, May 1, 1871.

The second objection is, that the lots are charged for the work done opposite each lot, while the expenses are charged on all the property, per foot, equally. ;

For a long time past it has been the custom to assess all expenses for work, and for making the assessment, alike, equally on all the owners, per foot. I believe this mode of assessment was first adopted in grading Tenth avenue, more than thirty years since, and has, in most instances, been followed since that time. The reason of the charge, in the avenue, was, that a large mass of rock had to be removed, and preparing the avenue for travel was an equal benefit to all the owners alike. If that rule had been adopted in this case, it would have been within the discretion of the assessors, who are to make the assessment according to the amount of benefit each lot receives, from the improvement. It must be remembered that although the street directly in front of the lot may not require much expense to bring it to the grade, still the lot may be very much benefited by the grading beyond it; and the assessors are to judge of the extent of such benefit. There is no wrong done, or irregularity committed, in making that assessment.

Hor is the objection that more than one lot is included in one assessment, any ground for vacating the same. The numbers are given, both for ward and street, and the amount for all, included in one sum. Provision is made for apportioning this amount on each lot if necessary; and although it would be better to assess each lot by itself, yet where the same person owns the whole, no injury can be sustained by putting them together. There is no allegation that the petitioner is not the owner of all.

Ho good reason is shown for interfering with this assessment.

Application denied.

Ingraham, Justice.]