Matter of Petition of Deering

The learned counsel for the city fails to satisfy us that any authority exists for imposing upon the owner of adjacent property, expenses incurred by the gas company in removing and replacing its pipes. These things were not made necessary by the construction of any sewer or culvert, and consequently the ordinances of the city, as cited by him, have no application. For aught that appears here, although authorized to lay its pipes through the public streets (Laws of 1848, chap. 37, § 18), the company took the risk of their location and should be required to make such changes as public convenience or security requires, and at its own cost and charge.

Nor is the amount so small that an appellate court can disregard it, when such conclusion would require a reversal of the decision of the court below. In the case to which the learned counsel refers (Colman v. Shattuck, 62 N.Y. 349, 363), the excess of assessment did not exceed, in either instance, five cents, and we agreed with the Supreme Court that it might be disregarded. In the case before us, that court has thought the item of sufficient importance to be corrected, and in this conclusion there is certainly no legal error. Nor do the points made by the petitioner, upon his appeal, show any substantial defect in the proceedings. The objections taken by him were sufficiently considered by the General Term, and we agree with that court in the conclusion that they are untenable.

The order should, therefore, be affirmed, but as both parties have appealed, it should be without costs.

Order affirmed, without costs.

All concur, except ANDREWS, J., absent.

Order affirmed.