
    In the Matter of the Petition of THOMAS RAE, Respondent, to Vacate an Assessment for Grading Willis avenue.
    Assessment— ehap. 383, 1870, not repealed by chap. 312, 1874.
    Appeal by the mayor, etc., of the city of New York, from an order of the Special Term, vacating an assessment.
    The assessment of which the petitioner complains, was averred to be in excess of the amount of the expense (as per contract) for grading the street, $6,666.50; and it was alleged that the board of trustees of the town of Morrisania had so declared by bringing an action against the contractor to recover from him that sum, paid, they say, by mistake. He denied the claim thus made, insisting that he was entitled to the charges of which the item was composedj and that the plaintiffs were indebted to him. The court held, that the issue thus presented must be tried in that action, and should be determined adversely to the defendant before it could say that the sum named was paid in excess. If the defendant should succeed, then there would be no excess; if he should not, then there would be, and the assessment, so far as it included that sum, would be illegal and should be so declared. If this court, on this application, which is summary and without the valuable forms of trial on issues joined, should hold the contractor to have been overpaid, it might, upon a more elaborate and therefore more satisfactory examination, be pronounced that' he had not been overpaid, and the petitioner would then have escaped a just burden, lawfully imposed upon him. That the order made in the court below should be reversed, and the proceedings remitted to Special Term, there to remain m statu quo, until the decision of the action herein mentioned, the order to be made providing that until then the petitioner’s property should not be sold. That if the appellants fail to prosecute diligently, the attention of the court could be called to it by a proper application, and the necessary relief given.
    The court further held, that, under chapter 383 of the Laws of 1870, it would not vacate the assessment absolutely, but only to the extent of the overcharges, there being no pretense of fraud in this matter. That there could be no doubt that the act of 1870 (supra), relating to the act of 1858, by which proceedings of this character were made a part of the remedial laws of New York city, had not been repealed, the statute of 1874, amendatory of that act (Laws of 1874, chap. 312) being amendatory only of the sections thereof, and not expressly or by implication repealing the act of 1870 {supra), which enlarges the powers of the court, and declares in effect that although the assessment may be erroneous, yet, in the absence of fraud, where it shall appear that the alleged irregularity is an unlawful increase of the expense of the improvement, the court may order the assessment modified.
    
      Wm. Barnes, for appellant. Irving Wan'd, for respondent.
   Opinion by

Beady, J.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.  