
    Cecilia B. O’Reilley, App’lt, v. The City of Kingston, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    1. Municipal corporations—Grading op public streets — Ordinance PROVIDING FOR, WHEN WITHOUT AUTHORITY—LAWS 1873, CHAP. 150.
    The charter of the defendant prohibited the change of the grade of a, street which had been established, except upon the petition of the owners of a majority of the lineal feet frontage on the part of the street to be graded, etc. No petition of a majority of the owners of the land fronting on the avenue, the grade of which was changed by ordinance, was presented to the common council. Reid, that the ordinance providing for the change was without authority, if a material change was effected by it.
    3. Same—Power op general term to review pacts
    The trial court was requested to find as a fact that the change of the grade of the new pavement did not increase the cost of the work, and that the amount of the assessment upon plaintiff’s lot was not increased by any change made in the grade. The request was refused The general term held that, as the request was material, it should have been found. Reid, that the general term had the power to review the facts, and determine whether a finding was against the weight of evidence, or whether a request to find was supported by a preponderance of evidence, and should have been found.
    3. Same—When assessment not void.
    If there was no cost of grading the street in question to conform to a changed grade embraced in the assessment made upon the plaintiff’s premises, then the plaintiff would not be injured by reason of the assessment, and would have no standing in court to have it adjudged void.
    4. Same—When action op assessors reviewable.
    In apportioning the assessment among the owners to be assessed, the assessors act judicially, and their judgment upon the question as to the amount of benefit derived, cannot be reviewed, unless they acted upon an erroneous principle in making the assessment.
    5. Same—Section 46, Code Civ. Pro.—Has no application to assessors.
    Section 46 of the Code of Civil Procedure, which providesithat a judge shall not sit as such, or take any part in the decision of a cause or matter if he is related by consanguinity or affinity to any party in the controversy within the sixth degree, refers to judges or justices, or other per sons holding a court eo nominé, and has no application to assessors.
    ■6. Same—Interest op assessors in premises assessed—How shown— Laws 1873, chap. 150, § 98.
    Showing that one of the assessors levied upon the premises assessed, was not sufficient to establish that he was interested; to do that, it must appear that he was an occupant within the meaning of the statute, and liable to be assessed for the improvement, as such.
    ‘7. Same—When railroad using the street need not be taxed.
    The statute provided that no part of the expenses of grading or paving the street shall be assessed upon any lands not bordering on or touching the street; the resolution of the common council is that the expenses of the pavement “ be defrayed by a special assessment upon the real estate in said city bordering on or touching said Union avenue, as the assessors of said city shall deem to be more immediately benefitted by such improvements. Held, that the fact that no assessment was made upon the street railroad company, is evidence that the assessors did not deem the company “immediately benefitted.” The land occupied by the street railroad company is a pari of the street; it does not border on the street, 'nor does it touch the street; and the fact that no portion of the expenses of the work was imposed upon the railroad company did not invalidate the assessment.
    Appeal from a judgment of the general term, third department, reversing a judgment entered upon a decision of the Ulster special term, and granting a new trial.
    
      John D. Van Etten and M. Sehoonmaker, for app’lt; W. Lounsbury, for resp’t.
    
      
       Affirming 39 Hun, 285.
    
   Haight, J.

This action was brought to set aside and adjudge void an assessment made upon the lands of the plaintiff, for the paving of Union avenue, in the city of Kingston. It is claimed, in the first place, that the assessment is void, because of the change of the grade of the .street,without the consent of the adjoining owners, and that the expense of such change was incorporated in the assessment. The ordinance was passed on the 23d day of March, 1879, and. is entitled, An ordinance for amending the grade of Union avenue, from St. James street to -Greenkill avenue”. Section 1 of the ordinance provides that “the grade of that portion of Union avenue, in said city, lying between the southerly line of St. James street and the northerly line of Greenkill avenue, is hereby changed and .amended, and shall be as follows.” It then proceeds with the specific description of the grade as established On the same day, another ordinance was passed, providing for the pavement of Union avenue, lying between the easterly line of Holmes street and the southerly line of Albany .avenue, excepting that portion of the roadway occupied by the bracks of the Kingston and Rondout Horse Railroad Company. That ordinance provided for the pavement of the street, and that it should be “ adjusted and regulated to conform to the proper grades;” that twenty-five per centum of the cost should be paid by general tax upon the city, and that seventy-five per centum of such cost should be defrayed by special assessment upon such portions of the real estate of the city bordering on or touching the avenue, and against the owners thereof, as the assessors of the city shall deem more immediately benefitted by such improvement.

The charter of the defendants prohibited the change of the grade of a street, which had been established, except upon the petition of the owners of a majority of the lineal feet frontage on the part of the street to be graded, etc. Mo petition of a majority of the owners of the lands fronting upon the avenue was presented to the common council for a change of the grade, and consequently the ordinance was without authority, if a material change was effected by it. The trial court was requested to find, as a fact, that the change of the grade of the new pavement did not increase the cost of the work, and that the amount of the assessment, upon the plaintiff’s lot, was not increased by any change made in the grade. The request was refused in these words: “Declined and, as I think, immaterial.” The general term held that this request should have been found, and that it was material. The general term had the power to review the facts, and determine whether a finding was against the weight of evidence, or whether a request to find, was supported by a preponderance of evidence, and should have been found: As we have seen, the trial court did not base its refusal to find the request upon the ground that it was not supported by the evidence, but chiefly upon the ground that it was deemed immaterial. In determining these questions, it becomes important to ascertain whether there was any material change in the grade made by the ordinance complained of. In the first place there is no record of any previously established grade of the street, yet it appears from various resolutions of the directors of the village of Kingston, that some attempt had been made to establish a grade, and to grade the street so as to conform to that established; but in no place are we given a description of the grade so established, only, as it appears from the testimony of the witnesses, to the effect that the street was worked to conform to the stakes that were set by the surveyor,” and that the. summit of the street was at a different point from that established by the ordinance of 1879; that when the street was paved, in some places it was filled in, so as to raise the surface of the street five or six inches, and, in one place about eighteen inches. On the other hand, there is abundant evidence, that is not contradicted, showing that the surface of the street, as it existed prior to the pavement, was very irregular; that the side of the street, in some places, was lower than the other side; that there were low places in which the water would stand, and that the grade was not uniform.

Under this evidence, even if we concede that there was a change in the grade from that previously established, we are left powerless to determine as to the particulars or the extent of the change made. If a previous grade had been established, we must assume that it was intended to be comparatively uniform so far as the surface was concerned, and that it did not provide for holes or low places in which the water would stand, or that one side of the grade should be lower on one side of the street than on the other. If there was no material change in the grade, or if the changes made were of a trivial and unimportant character, it might well follow that the cost of the pavement was not increased. It devolved upon the plaintiff to show that she was damaged by the assessment made, and in order to invalidate the assessment, she must show that a material-change in the grade had been effected by the ordinance; that the ordinance was void, and that the expenses of such change entered into the assessment.

Upon the question of the expenses of .the grading and as to whether it entered into the assessment, we have first the testimony of the engineer of the city, to the effect that no change in the actual surface of the street, which was made by the paving, made any additional expense, which increased the amount of the final estimate. We then have the agreement with the contractors, in which they undertake to grade, regulate and pave the street, and to receive therefor “the following prices, as full compensation for furnishing all the materials and labor which may be required in the prosecution of the whole of the work to be-done under this agreement, and in all respects performing and completing the same, to wit, for the Telford pavement per square yard the sum of seventy-seven cents, including all excavations therefor, and labor and materials used or employed thereon; for cobble stone pavement in gutters per square yard the sum of 37£ cents, including all excavations therefor, and labor and material used or employed thereon; for regulating and adjusting the curb and gutter per lineal foot, the sum of three cents; for regulating and re-laying sidewalks per lineal foot the sum of three cents.” No charge appears to have been made, or agreed to be paid for any filling of any irregular or uneven surface of the roadbed. We next have the resolution of the council, passed after the submission of the final estimate-of the cost of paving the avenue, in which the assessors-are directed to assess seventy-five per cent, of the' expenses of such paving as determined by such final estimate, upon the real estate bordering on, or touching Union avenue, as the assessors shall deem to be more immediately benefitted by such improvement.

Union avenue, before the pavement, was occupied by a street railroad which ran along the side of the street near the gutter: It had been occupied by a plank road which some years before had been taken up, and a stone road substituted in the place of it. When the street was repaved, the street railroad, under an arrangement made between the company and the city, was removed to, and constructed in the center of the street. The paving of the street made it necessary to remove the stone road previously existing, and to conform the surface of the roadbed for the new pavement. The conforming of the roadbed of necessity required some grading, but did not necessarily effect a change of the established grade.

Under the evidence to which we have called attention, it appears to us that the conclusion was warranted that there was no change of the grade which increased the cost of the pavement, and that the assessment upon plaintiff’s lot was consequently not increased by any such change, and that the general term properly held that such facts should have been found by the trial court. James v. Cowing, 82 N. Y., 449.

If there was no cost of grading the street to conform to a changed grade embraced in the assessment made upon the plaintiff’s premises, then the plaintiff would not be injured by reason of the assessment, and would have no standing in court to have it adjudged void; consequently the facts requested to be found by the trial court were material.

Objection is made to the assessment, upon the ground that it was apportioned among the owners of the lots fronting upon the avenue, in proportion to the frontage of each lot upon the street, some of the lots being vacant and others occupied by valuable buildings. The charter provides that “the common council shall have power to cause any street, alley, lane, highway or public ground or any part or parts thereof in said city to be graded, paved or repaired * * * .and to determine by resolution what part or portion if any not exceeding 25 per centum of the expenses of such grading, paving,' etc., * * * shall be paid by a general tax upon the city, and such part or portion of such expenses shall thereupon become a charge upon said city, and shall be added to and raised with the “ next general assessment and tax for city purposes; and what part or portion of such expense shall be defrayed by special assessment upon such portions of the real estate in said city and against the owners thereof as the assessors of said city shall deem more immediately benefited by such improvement. No part of the expense of grading or paving a street shall be assessed upon any lands not bordering on or touching said street.” Laws of 1872, chap. 150, § 98.

It will be observed that the land to be assessed must be-that bordering.on or touching the street, and that it was the duty of the assessors to determine the benefits derived by the owners of such land as does border on or touch the street improved. In thus determining the benefits, the assessors act judicially. They had an opportunity to examine the premises personally, and were thus possessed of information which cannot be brought before a court on review; consequently their judgment, upon the question as. to the amount of benefit derived, cannot be here reviewed, unless they acted upon an erroneous principle in making the assessment.

It appears that they reached the conclusion that the tax should be apportioned among the owners of the real estate bordering upon the street, according to the number of feet front owned by each individual. This is not necessarily an erroneous principle, if it was their judgment that each owner was benefitted in that proportion. On the other hand it may be the most just and equitable of any that could be adopted. In the Matter of Cruger, 84 N. Y., 619; In the Matter of Eager, 46 id., 100, 109.

Further objection is made to the assessment, upon the ground that the street railroad company was not assessed by the special assessment ordered by the common council. It appears that the company had a grant from the city to construct and operate a street railroad through Union avenue; and, before the paving, it entered into an agreement with the city to remove its tracks to the centre of the street, and to pave the street between its rails with block stone, and that this was done.

It does not expressly appear that the pavement between, the rails by the street railroad company was to be in lieu of an assessment, and yet such was doubtless the understanding of the parties. But it appears to us that the objection is answered by the statute and resolution of the council directing the assessment. As we have seen, the statute provides that no part of the expense of grading or paving the street shall be assessed upon any lands not bordering on or touching the street. The resolution of the council is that the expenses of the pavement “be defrayed by a special assessment upon the real estate in said city bordering on or touching said Union avenue, as the assessors of said city shall deem to be more immediately benefitted by such improvement.”

The fact that no assessment was made upon the street railroad company is evidence that the assessors did not deem the company “immediately benefitted.” Under the statute and resolution, it is the land bordering on, or touching the street, that is to be assessed. The land occupied by the street railroad company is a part of the street; it does not border on the street nor does it touch the street, for, being a part of the street, it is the thing touched and not which does the touching. A street cannot well touch itself, for touching ordinarily implies different bodies or parcels brought in contact with each other.

It is now contended that the assessment is void, for the reason that one of the assessors was interested in one of the lots assessed ; that he was the father of the owner to whom it was assessed, and lived thereon. No such defect was alleged in the complaint. The general term, however, was of the opinion that, the question being jurisdictional, it was properly before the court for consideration. But is this so ? The record of the assessment disclosed no such defect. It appears to have been made by the city assessors, and it does not appear that either had any interest in the property assessed, or was related to any of the owners thereof. Had such interest or relationship appeared, the proper mode of review would have been by certiorari. It is the fact that such interest or relationship does not appear upon the record, that a court of equity is given jurisdiction. The interests or relationship of the assessor can only be determined by extrinsic evidence de hors the record.

Suppose, therefore, that this" defect was the only one upon which the plaintiff relied, to annul the roll, and that the complaint alleged that the roll was illegal without specifying in what the illegality consisted. Can there be any doubt but that the complaint would be demurrable? There would be nothing upon which the defendant could take issue, or that would apprise it of the claim it was to meet. It appears to us that the question is fully answered by the case of Knapp v. The City of Brooklyn, 97 N. Y., 520-523.

It may be urged that the relationship of the assessor, etc., was received upon the trial. Very true, but it was admitted under the objection of the defendant, and the city ought not now to be held responsible for the evidence so improperly received under its objection.

But, assuming that the question is properly before this court for consideration, we are of the opinion that no cause is shown for equitable relief. So far as the question of consanguinity or affinity is concerned, it is sufficient to say that the provisions of section 46 of the Code of Civil Procedure, which provides that a judge shall not sit as such,, or take any part in the decision of a cause or matter, if he is related by consanguinity or affinity to any party to the controversy within the sixth degree, refer to judges or justices, or other persons holding a court eo nomine, and have no application to assessors. Were it otherwise, many of the small villages would be unable to find persons qualified to serve as assessors. . Foot v. Stiles et al„ 57 N. Y., 399-406; People v. Wheeler, 21 id., 82-86.

The question of interest requires more consideration. The defendant’s charter provides that “ if the assessors, or any or either of them, be interested in the property, liable to be affected by such assessment, or from any cause incapable of acting," the common council may appoint in place of such assessor that is disqualified, a disinterested freeholder of said city, residing therein, to perform the duties of such assessor, under this section, as to such assessment.” Laws 1872, chap. 150, §98. “May” should doubtless be read as must; and, under the charter, the duty devolved upon the common council to appoint a disinterested freeholder in case one of the assessors was interested in the property to be affected by the assessment. The question is, therefore, whether assessor Osterhoudt was interested in the lot on which he lived, and which was assessed to his son William, who was the owner thereof. It is claimed that Osterhoudt, as occupant, was liable to be assessed, and was consequently interested. The provisions of section 98 of the charter upon this point are not in entire harmony. The first clause provides that the “ expense shall be defrayed by special assessment upon such portions of the real estate in said city, and against the owers thereof, as the assessors of said city shall deem more immediately benefited,” etc. Under this provision, the assessment is to be made against the “owners,” and the occupants are not mentioned. But, further on, the assessors are required to make a “ certificate of such special assessment, entering therein the names of owners or occupants of the land assessed,” etc.

And again, it provides that “they shall make a just and -equitable assessment of the amount fixed by the common ■council, against the said owners or occupants, and upon the lands deemed to be benefited,” etc. We have not thought it necessary to construe these provisions and determine whether an occupant can be personally bound or made liable to pay a special tax of this nature, for we are of the opinion that the question should be disposed of on another ground. It appears from the evidence that Osterhoudt lives in the house on the lot assessed to his son William, and that William is the son; that the house is a hotel and was run as such at the time of the assessment. It does mot appear whether William, the owner, lived on the premises, or who run the hotel. If William lived in and conducted the hotel, he was both owner and occupant and no other person could be properly assessed. If the hotel was run by some other person, and Osterhoudt lived with him as a guest, he would not be an occupant, within the meaning of the statute, liable to be assessed. Showing that Osterhoudt lived upon the premises was not sufficient to establish that he was interested. To do that, it must appear that he was an occupant within the meaning of the statute, and liable to be assessed for the improvement, as such.

It follows that the exceptions taken to the finding of fact and conclusion of law upon this subject were well taken.and that the order of the general term should be affirmed, and final judgment ordered for the defendant on the stipulation, with costs.

All concur, Bradley, J., in result, Parker, J., not voting. _  