
    In the Matter of the Petition of SOPHIA R. C. FURNISS AND OTHERS, APPELLANTS, TO VACATE AN ASSESSMENT.
    
      Chapter 388, Laws of 1858; chap. 312, Lams of 1874—when application to vacate assessment camrwt be made under.
    
    When an assessment has been made to pay the compensation awarded for land taken to open streets in the city of Hew York, in pursuance of 2 Revised Laws of 1813, page 409, section 178, as amended by chapter 483, 'Laws of 1862, an application to vacate it under chapter 338, Laws of 1858, as amended by chapter 312 of 1874, can only be made for fraud or substantial error, in cases where no investigation could be had in the first instance or in the proceeding itself.
    The statute does not apply to assessments imposed when no fraud is alleged, and when no error is urged other than that the land assessed is not subject to assessment.
    
      In matter of Aaron Arnold (Court of Appeals, Feb. 1875) followed.
    Appeal from an order made at the Special Term, denying an application to vacate an assessment for opening Twelfth avenue from Fifty-ninth to One Hundred and Thirty-third street; and for opening One Hundred and Fourth, One Hundred and Fifth and One Hundred and Sixth streets, from Eighth avenue west to the public drive. The petitioner alleged that the lots were all below high-water mark, and actually covered by water, being in the navigable portion of the Hudson river, and that for this reason they were not subject to assessment.
    
      Daniel Lord, Jr., for the appellants.
    
      E. Delafield Smith and William Barnes, for the respondent.
   Opinion

by Brady, J.

Daniels, J., concurred.

Order affirmed.  