
    Matter of PEARSALL.
    
      Supreme Court, First District; Special Term and Chambers,
    
    
      April, 1870.
    Assessments. — Confirmation oe Illegal Act. Adoption oe Minutes.—Functus Oeeicio.
    Two members of the board of revision having assumed to confirm an assessment, the foil board subsequently unanimously confirmed it anew.—Held, that the latter was a valid act.
    
    The powers of the board were not exhausted by the ineffectual action first taken.
    Matter of Palmer, 1 Abb. Pr. N. S., 30,—explained and limited.
    Petition to vacate assessment.
    Denton Pearsall presented a petition to vacate an assessment for the building of a sewer in Eighty-sixth-street, in the city of New York, for alleged legal irregularities, which appear in the opinion.
    
      
      John Ely and Mr. Miller, for the petitioner.
    
      
      Ratification of such assessment, by statute. 1 Laws of 1870, p. 004, ch. 383, §38
    
   Brady, J.

— The confirmation of the assessment in 1861 was irregular—there being but two of the board of revision and correction present. The subsequent confirmation in December, 1869, was legal and valid.

This case is unlike the Palmer case (1 Abb. Pr. N. S., 30). It appeared, in reference to that assessment, that two members of the board met and acted upon it by confirming it, and that, at the next meeting of the board, all being present, the minutes of the previous meeting were read and approved. In this case it appears that in December, 1869, the assessments which had, as already suggested, been acted upon by two of the board only, were, at a full meeting of the board, presented by the comptroller, and, on motion of the counsel to the corporation, unanimously confirmed. It differs, therefore, materially from the Palmer case. The minutes in reference to the confirmation of the assessment in that case when two of the board were present, were read and approved only, and the approval was of an irregular proceeding; but here the whole board acted, independently of the previous act, or attempted act, of confirmation, and confirmed the assessment. In the Palmer case, the whole board approved the minutes recording a proceeding by two of the board only, without acting upon the subjects embraced in them ; and such approval was a formal proceeding, not involving judicial action; but if it did, then it was the adoption, as their act, of a proceeding unauthorized and illegal.

Adopting the conclusion arrived at by Justice Sutbebland, in the Palmer case, that the assessment lists are not confirmed. under the act of 1861, by the omission of the board to act upon them within thirty days after their presentation, if two of the board undertake to act upon them, then the subject was kept before the board by such action, and the time within which they could act again in relation to it was not limited. I adopt the suggestion of Justice Sutherland mentioned, to meet the objection that the board having once acted, their powers were exhausted, and they could not confirm the assessments in 1869. On this assumption, the board did not act regularly and legally until 1869, and their duties were not discharged till that time.

Order in accordance with these views.  