
    The People ex rel. Michael J. Daly, App’lt, v. Supervisor of the Thirty-First Ward of the city of Brooklyn, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Municipal corporation—Opening- streets.
    Where the board of supervisors direct the opening of a street as a whole, the appointment, by the supervisor of the town, of commissioners for a part only of the street renders the proceeding void, and such defect is not cured by an order confirming the grading commissioners’ report.
    Appeal from an order, denying a motion for a peremptory mandamus.
    
    
      James G. Ghurch, for app'lt; II. B. Hubbard, for resp’t.
   Brown, P. J.

The relator, under a contract with grading commissioners, is engaged in the work of grading Neptune avenue in the town of Gravesend, and seeks a peremptory mandamus to compel the respondent, as supervisor of said town, to issue bonds of the town in compliance with the provisions of chapter 171, Laws 1893. The power of directing the improvement in question was committed by the legislature to the supervisors of Kings county, and, on June 13, 1892, by a resolution of said board, authority was given to open and grade the avenue “from West Sixth street to the westerly line of old lot 47, excepting that part between the Shell road and West Eighth street.” The resolution provided for the appointment of opening commissioners to estimate and award damages to the owners of lands, buildings, and other improvements taken from the street, and to assess the same upon the property benefited, and that the report of said commissioners should be confirmed by the supreme court or county court of Kings county, after due notice to all parties interested. It further provided that, after the confirmation of the report of said opening commissioners, the supervisor of the town should appoint three grading commissioners, who were empowered to cause the street to be graded, constructed, and improved as a public highway, and to assess the expenses thereof upon the lands and premises which, in their judgment, should be benefited by the improvement; and the report of the grading commissioners as to such assessment was required to be confirmed by the court in the same manner, and upon like notice, as the report of the opening commissioners. The report of the grading commissioners, which is attached to and made a part of the affidavit of the respondent,'states that they were appointed by the supervisor of the town, for the grading and improvement of the avenue from West Fifteenth street to the westerly line of old lot 47, and it appears that they were not appointed as such commissioners for the portion of the avenue between West Sixth street and West Fifteenth street.

The supervisor had no power to appoint commissioners, except in strict accordance with the resolution of the board of supervisors. The resolution of the board established the procedure to open the street,' and alone conferred jurisdiction upon the supervisors to act; and the intent of the resolution of June 12th was to open and grade the whole street, as therein designated, in one proceeding, and the expense thereof was to be assessed upon the lands and premises benefited by the improvement as a whole. To divide the street and grade it in sections, and make a separate assessment of the expense of each section upon property benefited by that section, might work great injustice, and would be in direct conflict with the resolution of the board of supervisors, and overthrow absolutely the intent of the board in the assessment of the expenses of opening the street. We are of the opinion, therefore, that the supervisor of the town had no power, under the resolution of June 12th, to appoint grading commissioners for a part of the street, and that such appointment, and all proceedings based thereon, including the contract with the relator’s assignor, were void. The order confirming the commissioners’ report did not cure this defect in the proceedings. The error was jurisdictional, and the order of confirmation does not reach the order of appointment. Its validity was not necessarily a question before the court on the motion to confirm the commissioners’ report. The appellant contends that this defect was cured by a subsequent resolution of the board of supervisors, passed December 12, 1892. That resolution changed the location of Neptune avenue between West Sixth and West Fifteenth streets by shifting it forty feet to the south. The northerly part of the original street was to be closed, and the resolution provided for proceedings to acquire title to the land included in the strip. It did not establish a new proceeding for the grading of the full width of the avenue between the streets named. In terms, it is made applicable only to the southerly one-half of the avenue as changed. Section 1 of the resolution provides for the “opening of the southerly one-half, * * * as thus changed, and the closing of the northerly one-half, as opened.” Section 2 provides for the appointment of three opening commissioners, “ for the purpose of opening said southerly one-half of Neptune avenue.” And section 18 provides for the appointment of three grading commissioners, “ who shall enter upon the lands and premises taken for said avenue, as aforesaid, and cause the same to be graded.” There is no reference in this resolution to the resolution of June 12th, and no reference to any other proceedings, or lands taken for the street; and the words “ lands and premises taken for said avenue, as aforesaid,” plainly have reference to the lands named in section 2, viz. “the southerly one-half of the avenue as changed,” and which were to be taken for said avenue by the opening proceedings provided for in that and subsequent sections of the resolution. The effect of the resolution of December 12th was, therefore, to repeal the prior resolution of June only so far as it applied to the northerly one-half of the avenue, as opened, but left it in full force as to the southerly one-half, as opened; and it provided an entirely new proceeding for the opening and grading of the southerly one-half, as changed. The appointment of the grading commissioners with whom the relator’s contract was made, should, therefore, have included the northerly half of the avenue, as changed, between Sixth and Fifteenth streets; and that omission is fatal to the validity of the relator’s contract It is very likely that there would have been practical difficulties in the way of grading the avenue between the streets named, and assessing the expense thereof, upon the property benefited, in two separate proceedings. But such difficulties arise from the resolutions of the board of supervisors, and that body is the only tribunal than can correct them. The bonds which it is sought to compel the respondents to issue are, by the statute authorizing them, made payable out of the assessments for grading the street, and the court should not issue a mandamus to compel their issue, if it is apparent that a serious question would arise as to their validity.

The order must be affirmed, with costs.

All concur.  