
    Jacob Haag, Respondent, v. The City of Mount Vernon, Appellant.
    
      Board of health — it cannot extend the work done in the abatement of a nuisance beyond the necessity of the pa/rticularr case.
    
    A local board of health, in abating a nuisance, may make a permanent improvement designed to prevent a recurrence of the nuisance, provided the improvement bears a necessary relation to the abatement of the nuisance; it cannot, however, make the nuisance a pretext for venturing into the domain of public improvements.
    The board of health of the city of Mount Vernon has no power, in abating a nuisance in a brook draining adjoining swamp land, to construct, upon its own authority, at a cost of §10,000, a drain large enough to drain the entire swamp area in the vicinity, and to levy upon the owner of the real estate bordering upon the first-mentioned portion of the swamp land an assessment based upon the foot frontage of his property along the drain, without regard to the question of benefits from the improvement, especially where the charter of the city provides that, “ whenever the board of health shall determine that it is necessary for the protection of the public health that any sewer or drain should be constructed, enlarged or repaired, and shall so certify to the common council, the common council shall immediately cause the same to be done.”
    Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 25th day of February, 1899, upon the report of a referee, adjudging an assessment on the plaintiff’s premises to be void, and vacating and setting aside a sale of such premises for the non-payment of the assessment.
    
      William J. Marshall [David H. Hunt with him on the brief], for the appellant.
    
      George C. Appell, for the respondent.
   Woodward, J.:

The appellant fails to call the attention of this court to any authorities which sustain the somewhat remarkable contention that a board of health, in the exercise of its powers in abating a public nuisance, may enter upon the construction of important permanent improvements, upon a scale bringing them within the definition of public works, and that the cost of these improvements may be assessed upon the property abutting upon such improvements without any reference to the cost of such work within the limits of such property, or the benefits which the property may have received. We are persuaded that we should look in vain for such authorities, for it has never been the policy of this State to invest boards of health with any such powers. It is not to be doubted that a board of health, in the presence of a public nuisance, may take such action, within reason, as may be necessary to abate the nuisance, but when it goes beyond this, and assumes to erect buildings or to construct drains which are not necessary to the abatement of the nuisance, it is going beyond the legitimate scope of its powers, and it cannot impose the burden upon the individual or his property. (Eckhardt v. City of Buffalo, 19 App. Div. 1.) . In the case at bar the plaintiff was the owner of certain real estate in the city of Mount Vernon, bordering upon a piece of swampy land, which was drained by a brook known as Ann Hook brook or Chester Hill drain. This brook was originally clean and wholesome, but with the growth of population in that vicinity it became polluted with the sewage of surrounding houses, and it is conceded that at the time of the proceedings on the part of the board of health the open brook or drain had become a public nuisance, and it was declared such by the board of health. Proceeding under the provisions of section 221 of chapter 182 of the Laws of 1892 (charter of the city of Mount Vernon), the board of health, after condemning the brook or drain as a public nuisance, secured from a civil engineer plans for the abatement of the nuisance, and issued its warrant to one of the policemen of the said city, directing him to abate the nuisance according to the plans furnished. The policeman made a contract with one Daniel Murray to execute the work, and it was commenced, but was subsequently stopped by an order of injunction. After some delay, during which the State Board of Health was called into the matter, it was decided that the work should be continued upon plans which had been largely elaborated by the engineer of the State Board of Health, practically doubling the original contract cost. Mr. Murray refused to proceed under the contract, and was employed by the day by the policeman to carry out the plans. The drain, as finally completed, cost something over $10,000; and it appears from the evidence that the nuisance could have been fully abated under the original contract, if, indeed, any obligation rested upon the plaintiff, the sewage producing the nuisance being admitted - to the brook from sewers and drains in the control of the defendant. Upon the completion of this work, which the evidence shows was planned to drain the entire swamp area, several hundred feet beyond the property of the plaintiff, the plaintiff refused to pay the portion of the cost of such drain assessed against' his property, and it was included in his taxes. On his refusal to pay such taxes, the property was sold for taxes under the provisions of law, and this action was brought for the purpose of clearing the property from the lien of such taxes, and other necessary relief, resulting in a judgment for the plaintiff.

The drain which was constructed under this arrangement extended through other property, and was made large enough, and was constructed upon a plan calculated .to make it permanently fitted to carry all of the drainage of the swamp land in the vicinity of the plaintiff’s property. It was an improvement in which the community at large was interested, and to attempt to impose upon this plaintiff his proportionate share of the cost of this improvement, based upon the foot frontage of his property along this conduit, leaving absolutely out.of the question those whose property was to be benefited by the resulting drainage, is so manifestly unjust that it does not seem necessary to pursue the question as to the power of the board of health to construct the drain, although it must be apparent, upon a reading of the statute under which the city is incorporated, that to the common council was delegated the exclusive power to deal with public improvements of this character, except as they might be incidental to the abatement of a public nuisance. The board of public health is authorized to abate nuisances, and, by the provisions of section 168 of the charter, “ whenever the board of health shall determine that it is necessary for the protection of the public health that any sewer or drain should be constructed, enlarged or repaired, and shall so certify to the common council, the common council shall immediately cause the same to be done.” This provision of the charter is absolutely useless if the board of health may, on its own motion, undertake a public improvement of the character of that involved in the present controversy. Why should the board of health determine the necessity of a sewer or drain, and certify the fact to the common council, if it might, without such circumlocution, accomplish the end by issuing its warrant to a police officer, directing him to have the same constructed ?

The attitude of the defendant is based upon an entire misconception of the object sought to be attained through the board of public health. This body is the local custodian of the police powers of the State, in so far as they relate to the public health; it is organized for the purpose of protecting the health of the community, and for this purpose it is given extraordinary powers, but they are all limited by the requirements of the public health, and every step beyond this limitation is an usurpation which the courts cannot sanction. It may abate a nuisance of a public character, and it may exercise every power necessary to this end, and, as an incident of this power, it might make a permanent improvement calculated to prevent a recurrence of the nuisance, provided the work bears a legitimate and necessary relation to the abatement of the nuisance; but it cannot go out into the domain of public improvements, levying arbitrary assessments upon adjacent properties, making the nuisance the pretext. That is an invasion of the field reserved by the law to the legislative department of the municipality. In the case of Health Department v. Rector, etc. (145 N. Y. 32), the court upheld the right- of the board of health, under a positive statute, to compel the-owner of a tenement house to place water pipes and faucets upon each, floor; but in that case the court was particular to point out that If the expense to the individual under such circumstances would amount to a very large and unreasonable sum, that fact would be a most material one in deciding whether the method or means adopted for the attainment of the main object were or were not an unreasonable demand upon the individual for the benefit of the public. * * * These exactions must be regarded as legal so long as they bear equally upon all members of the same class, and their cost does not exceed what may be termed one of the conditions upon which individual property is held. It must not be an unreasonable exaction either with reference to its nature or its cost. Within this reasonable restriction the power of the State may, by police regulations, so direct the use and enjoyment of the property of the citizen, that it shall not prove pernicious to his neighbors or to the public generally.”

We are of the opinion that the referee, whose intelligent opinion accompanies the case, has correctly disposed of the controversy upon its merits, and the judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, witli costs. 
      
      The following is the opinion of the referee:
      Joseph F. Daly, Eeferee:
      In the years 1892 and 1893, and for many years prior, there existed on the plaintiff's premises and adjoining premises a nuisance that was detrimental to the public health. The cause of this nuisance is disputed — the defendant claiming that the property bordering on the stream caused the nuisance, while the plaintiff claims that the real cause was the connecting by the village and city of Mount Yernon of certain public drains of the village and city and the connecting of a drain known as the Frank Wright drain with the stream. Whatever the real cause was, the fact is conceded by the plaintiff that a nuisance detrimental to public health did exist. This being so, it was the duty of the defendant’s board of health to cause this nuisance to be abated, and after the plaintiff and other owners of land upon which the nuisance existed had failed to abate the nuisance, the board of health, in accordance with the provisions of the charter of the defendant, issued its warrant to a police officer named Beckwith, commanding him to abate said nuisance. Before doing this it employed an engineer named John F. Fairchild, Esq., who, under its direction, prepared plans and specifications for the abatement of the nuisance and these plans were approved by the board of health. These plans and specifications were sufficient in themselves to thoroughly abate the nuisance according to the undisputed evidence in the case. After the approval of these plans by the board of health and under the direction of the board, the police officer, Beckwith, made a contract with one Murray to do the work required by these plans and specifications and in the contract the price for doing the work was fixed. Murray started the work under the contract and did proceed for three days when he was stopped. In the meantime the State Board of Health was consulted and their engineer, John Bogart, Esq., made certain alterations in the plans and specifications, which alterations, after being approved by the State Board of Health, were transmitted to the defendant’s hoard of health and approved by it and Murray was directed to proceed under the new plans. This Murray refused to do under the price fixed in the old contract, and a new contract was made between him and the police officer, Beckwith, that he should he paid by day’s work. He finished the work in accordance with the new contract and his hill was for §10,119.42 and an additional amount of four or five hundred dollars for other work on the same drain. He was released from the first contract and a new contract was made fixing the amount per day the men who were employed should receive. The work under the new contract cost nearly double what the work would have cost under the old contract. The new plans and specifications as prepared by the State Board of Health not only contemplated the abatement of the nuisance, but also the draining of a large area of land, and for the use at some future day of the drain as a connection for other drains to be laid in the streets of the city of Mount Vernon. The board of health certified the total amount of the work to the common council, and the common council, without giving any notice or hearing to the parties, distributed the amount on the various parcels of land in the district where the nuisance existed, and assessed each parcel, not for the amount of money it took to abate the nuisance that existed on each particular parcel, hut according to the size of the parcel as compared with the total property assessed for the abatement of the nuisance. By this process of figuring the plaintiff’s lot was assessed for §882.19, and there is no claim on the part of the defendant that it cost that amount to abate the nuisance on the plaintiff’s premises, and for all that appears in the case it may have cost more or less; but this amount is based on the theory that the nuisance was the same on all the land, and that being so that the plaintiff was to pay his proportion according to the size of his plot. The plaintiff did not pay this assessment, and in accordance with the provisions of the charter of the defendant the amount was charged and assessed upon plaintiff’s land as taxes for the year 1894, and plaintiff having failed to pay, the defendant sold the premises in the manner required by its charter and took to itself a certificate for 1,000 years for the amount of said taxes, interest and expenses. Unless the same is redeemed within three years from November 13, 1896, the defendant will be entitled to a lease of the premises for 1,000 years.
      Upon this state of facts the plaintiff asks to have the assessment or taxes levied on his property vacated and his premises discharged from the lien of the same and the sale vacated and defendant enjoined from taking any proceedings to enforce said taxes or sale, and I am clearly of the opinion that he is entitled to the relief asked. While there is no doubt in my mind that a nuisance existed upon the premises in question, and that defendant’s board of health had the right and it was their duty to abate the nuisance, yet it is clear from the evidence in this case that in attempting to abate the nuisance they far exceeded their powers. It might well be held from the evidence that the nuisance could be abated at a very trifling expense by cutting off the drain of the city of Mount Vernon and the Frank Wright drain that let sewerage into the stream in question. But even if it be conceded that this would not have abated the nuisance, there was no necessity for the construction of the large and expensive drain that was constructed in this -case by the health authorities. The evidence of their own engineer, Fairchild, shows conclusively that the plan that was adopted by the board of health was ample to abate the nuisance in question, and that the work was started under it, and that within a few days the work was stopped and a new plan proposed. The cost of this new plan was double the cost of the old one. There is no question but that it was intended for a larger purpose than the abating of the nuisance on the plaintiff’s and neighboring premises. Every witness, both for and against the defendant, agreed that this new plan contemplated the drainage of a large area and the carrying away of the contents of other drains to be subsequently built. The testimony of Fairchild, Bogart and Fiske clearly showed that not only was the drain intended for the relief of a larger territory than that of the premises assessed for the abatement of the nuisance, but that it was intended for the accommodation of other drains subsequently to be built, and that such drains have been built and have been accommodated in the drain built for the so-called purpose of abating this nuisance. To my mind the case is right within the case of Eckhardt v. City of Buffalo (19 App. Div. 1; affd., 156 N. Y. 65S), where the court laid down the rule that the expense authorized relates to work and labor necessary to the accomplishment of removing or suppressing the nuisance and not to entirely new work for the alteration and improvement of the plaintiff’s premises. In the Etkhardt case not only did the board of health abate the nuisance, but they actually improved the plaintiff’s land, and yet the court held that an assessment would not stand. In the case at bar they abated the nuisance, improved the plaintiff’s land and also land in his neighborborhood and made an outlet for the drainage of a portion of the city of Mount Vernon; and the city now seeks to hold the plaintiff responsible for his share of the cost of this immense work. I do not say that the board of health cannot build drains if the building of drains is necessary for the abatement of nuisances, but ■ in my opinion drains such as this cannot be constructed under the health section of the Mount Vernon charter. If such a drain is necessary, the board of health can have the same done in the manner provided in another section of the charter; and if the common council orders it done, the district of assessment is fixed on all the property benefited and the property owners have a right to be heard. Here the evidence shows that considerable property has been benefited at the expense of the plaintiff and his neighbors, and that a great portion of the property benefited is not charged with any cost of the improvement. I might review the testimony at great length on this point, but I do not think it is necessary except to. say that the witness Murray, on page 182 of the minutes, testifies that the nuisance could have been abated for one-half the price, and on page 139 that theFairchild plans would have abated the nuisance. To the same effect is the testimony of Fairchild at page 143, where he says his plans would have abated this, nuisance, and on page 151 the engineer of the board of health says that the present drain was constructed of such size and of such strength and durability not-only to remove the nuisance in question, but also as a trunk drain with which was to be connected thereafter a drain to drain the land north of it, and on page-155 the same witness says that if it had been designed simply to take water immediately adjacent to the line of the drain it could have been made smaller; and on page 156 that it drained other land outside of the property assessed under the assessment, and was made big enough at any future time to allow this soft marsh land to be connected with it by this North Third avenue drain; and on page 340 Mr. Bogart, the State Engineer, says the whole swamp would be benefited by this drain, and its scope was not restricted as to its usefulness to the lots immediately bordering upon the line of it; and on page 348 says that it was designed not alone for the purpose of abating any nuisance which might have existed only on the lots through which the stream ran, but for the purpose of affording permanent facilities for the drainage of a large area of territory .in that neighborhood.
      It strikes me that such a drain cannot be constructed under the health provision of the charter of the city of Mount Vernon (Laws of 1892, chap. 182), but must be constructed under the other section above mentioned. In my opinion, the mode of levying the assessment was erroneous. The section of the charter under which this proceeding was instituted (221) reads as follows:
      “ The board of health shall have power * * * to compel all premises to be connected with public sewers where existing; to compel tlie-abatement, disuse and removal of vaults, drains, basins, water conduits and cesspools; to cause any vault or cesspool to be cleaned or emptied, and to suppress, abate and remove any public nuisance detrimental to the public health; and, in addition to other remedies which it may possess by law, the board of health is liereb3r empowered to issue its warrant whenever necessary to the sheriff of the county of Westchester, or to any policeman of the city, authorizing and commanding him to forthwith suppress, abate and remove such public nuisance; and the amount of the expenses incurred in cleaning or emptying any vault or cesspool, and abating or removing any public nuisance, when certified by said board of health to the common council and filed with the city clerk, shall be paid by the common council, and Shell amount shall thereupon be and become a lien upon the lot or premises whereon such public nuisance existed, or said vault or cesspool was cleaned or emptied, with interest thereon from the date of payment in favor of the city, and the common council may enforce the collection thereof by charging the same against said lot or premises as a tax, in the tax roll of the ensuing year, or by action against the owner of the said lot or premises, or any person who may have created, permitted or maintained such public nuisance or said vault or cesspool; to ascertain and declare the cost and expense of any work, care or other expense bestowed upon private persons or property, and to audit all bills and accounts for work, care or other expenses bestowed upon or for private persons or property, or for medical care, attendants and the support of patients, cared for or supported in hospital, pesthouse or elsewhere in the city, and return the same to the common council, which shall have power to maintain an action therefor, in the corporate name of the city, against any person liable for the payment thereof; to do all things meet and necessary to protect the lives and health of all persons in the city in all sanitary matters, in addition to the powers herein expressly granted; to have and exercise all the powers now, or at any time hereafter, conferred upon boards of health in cities by any general law.”
      This section gives the board of health the power to abate nuisances and to report the same to the common council, and provides that the cost of abating the nuisance shall thereupon be and become a lien upon the lot or premises whereon such public nuisance existed. In this case, there was no attempt made on the part of the board of health or common council to ascertain the cost of abating the nuisance on the plaintiff’s premises, or on any other of the premises embraced in the assessment. The work was done as an entirety, and the total cost certified to the common council and the number of lineal feet of property counted up in the assessment district and the whole cost divided by the number of lineal feet, and then so much per lineal foot charged to the property of the plaintiff and the other property owners. The nuisance on this place might be very small or very great, but whichever it was he is required to pay according to the number of feet of land he owned.
      This does not conform to my view of the meaning of the charter. I think the charter was intended to allow the board of health to summarily enter upon a person’s premises, keep the exact cost of what the price was for removing nuisances and then to charge the exact cost and no more. This was not the procedure adopted in this case, and is in my opinion an additional reason why this assessment should not stand.
      For these reasons I am of the opinion that judgment must be given in favor of the plaintiff as prayed for in the complaint.
     