
    In the Matter of the Opening and Extending of Locust Avenue Through the Lands of Theall and Others, of the Village of Port Chester, New York. Village of Port Chester, Appellant; Margaret S. Theall, Respondent.
    
      Commission to open a village street—report which includes in the expenses thereof an item of $900 for grading —it will be vacated, not sent bach for correction — right of property owners to object.
    
    The village of Port Chester, acting under title 5 of its charter (Laws of 1868> chap. 818), procured the appointment by the County Court of a commission to open and extend a street. The village authorities, however, included in their expenditures not only the sum necessary to secure the land and open the street, but $900 for grading the same. The commissioners made a report in which they attempted to assess the total expense upon the property benefited, although the charter (Tit. 5, §§ 33, 34) required that assessments for grading should be made by commissioners appointed by the village board of trustees. Held, that the report and assessment of the commissioners were properly vacated; That, as the error in the proceedings went, to the jurisdiction of the commissioners, it would be useless to send the report back for correction;
    That the property owners affected by the proceedings had a right to insist that the statutory provisions intended for their security should be observed, notwithstanding the fact that they might have suffered no harm from the failure of the village authorities to comply with them.
    Hooker, J., dissented.
    Appeal by the Village of Port Chester from an order of the Supreme Court, made at the Kings County Spécial Term and entered in the office of the clerk of the county of Westchester on the 10th day. of November, 1903, denying the appellant’s motion to confirm the report of commissioners in the above-entitled matter, and vacating and setting aside said report; also from an order entered in said clerk’s office on the 15th day of December, 1903, denying a motion made by the said village of Port Chester to resettle the above-mentioned order, and also from an order entered in said clerk’s office on the 15th day of December^ 1903, denying the said appellant’s motion to review the taxation of costs made in this proceeding by the clerk of the county of Westchester.
    
      Jerome A. Peck [Arthur R. Wilcox with him on the brief], for the appellant.
    
      Ralph E. Prime, for the respondent.
   Woodward, J.:

The village of Port Chester is a municipal corporation organized under the provisions of chapter 818 of the Laws, of 1868 and the several acts amendatory, thereof. Title 5 of that act contains in .sections 1 to 14, inclusive, provisions for laying out and opening streets, commissioners to estimate the expenses of said improvement and to assess the same and the damages and benefits caused. thereby-upon the property benefited being appointed:by the.County or Supreme, Court on the application of the village authorities, while by sections 22 to 28, both inclusive, of the same title the law provides for the “ expense df regulating, grading and paving streets and avenues, or any part or section thereof,” etc. Chapter 219 of the Laws of 1902 is the last statute that amends the charter of the village in respect to these matters, but none of these amendments has any particular bearing upon the question presented upon this appeal, and we may consider the matter from the standpoint of the Original statute.

The village authorities* desiring to open or extend Locust avenue, instituted proceedings for that purpose, and a commission was appointed by the County Court for the purposes mentioned in the statute. But the village authorities did not stop here; they included in their expenditures not only the sum necessary to secure the land and open the street, but $900 for grading the same. The commissioners appointed by the County Court have made a report in which they have attempted to assess upon the benefited property this total expense, although the statute requires that such assessments for grading, etc., shall be made by commissioners appointed by the board of trustees, such commissioners being called upon to take an oath faithfully and fairly to discharge the duties which shall devolve upon ” them by such appointment. (Laws of 1868, chap. 818, tit. 5, §§ 23, 24.) Upon this report being offered for confirmation the learned court at Special Term refused confirmation, and vacated and set aside the report on the objection of Margaret S. Theall, whose property was ifivolved, on the ground that the two proceedings could not be conducted by the commissioners appointed by the County Court. The village df Port Chester appeals from the order entered, as well as from an order denying a motion to resettle the order, and from an order denying a motion for a retaxation of costs.

The appellant urges that the report and assessment of the commissioners should not have been vacated, but the report should have been- sent back for correction of any error discovered by the court in the proceedings; but we are of opinion that the errors in proceedings going-to the jurisdiction could not have been corrected by the commissioners, and that the only thing which remained for the court was to throw the whole report out, leaving the village free to proceed along the lines pointed out by the statute. “ To found the power to act against a private right of property, there must be affirmative proof of a compliance with the prerequisites; it is a jurisdictional fact that may not be presumed nor inferred.” (Matter of City of Buffalo, 78 N. Y. 362, 366.) The property owner or taxpayer has a right to insist that provisions intended for his security shall be observed, notwithstanding the fact that, in a particular case, he may have suffered no harm by reason of the neglect of the authorities to comply with them. (Bowditch v. Boston, 168 Mass. 239, 244; Warren v. Street Commissioners, 181 id. 6,11.) In the matter now before us the village authorities have attempted to combine two proceedings in one; they have substituted their judgment for the plain provisions of law, and the whole proceeding is vitiated by this disregard of jurisdictional facts. The commissioners, appointed by the County Court, assuming such appointment to. have been regular, had jurisdiction only to deal with the expense and the assessment .for the opening of the highway, and when they attempted, under the supposed authority of the village, to go beyond this and to include the cost of grading and improving that way, they went outside of their powers. The village trustees could not confer upon them any greater jurisdiction than that prescribed in the statute, and the effort to do so has resulted in a condition of affairs where there was nothing for the court to do except to set aside the whole proceeding. “ It is a matter of grave public concern,” say the court in Village of Fort Edward v. Fish (156 N. Y. 363, 375), “ to protect municipal corporations from the unauthorized and illegal acts of their agents in wasting the funds of thp taxpayers. It is only with the utmost difficulty that municipal officers and agents can be kept within the bounds of their authority now,” and it is the duty of the courts to insist at all times, when such action is challenged, that the authority to act shall be plainly expressed in the statute, or necessarily implied, and that all of the provisions intended for the security of the taxpayer and property owner shall be strictly complied with. (Schneider v. City of Rochester, 160 N. Y. 165, 172, and authorities there cited.)

We have examined the matters called to our attention by the appellant, but discover no reason for reversing any of the various orders appealed from. These orders, other than the one above considered, rest largely in the discretion of the court at Special Term; and while this court undoubtedly has the right to review this discretion, this-power will not be exercised by reversing, in the absence of controlling reasons affecting the interests of justice.

The orders appealed from should bé affirmed, with ten dollars costs and disbursements.

All concurred, except Hooker, J., dissenting.

Orders affirmed, with ten dollars costs and disbursements.  