
    The People of the State of New York ex rel. Cecelia B. O’Reilly, Relator, v. The Common Council of the City of Kingston, New York, and Others, Respondents.
    Third Department,
    June 27, 1906.
    Municipal corporation — certiorari to review assessment for grading street and laying sewer in city of Kingston — assessment sustained — when assessment not inequitable. _
    When the “ established ” grade of a city street merely exists on paper in the form of an ordinance, and an adjoining owner of vacant lands has not incurred any expense in improving her property with reference to such grade, she is not aggrieved because of a slight change in such established grade made by a second ordinance, and cannot urge that an assessment therefor is void because the change was not petitioned for by a majority of the owners fronting the street, as required by the city charter. Such change is not a change of an established grade within the meaning of the charter.
    Such statute prohibiting the change of an established grade, except upon petition, is designed to protect property owners and to provide compensation for injuries received by reason of such change.
    A property owner is not injured because the work of grading three streets and laying one sewer was let for a single sum under one contract if the work was authorized by four separate ordinances and the assessments levied on the estimated cost of each separately.
    Although a city charter provides that a certain proportion of an assessment for street grading shall be laid on property fronting the improvement, and that assessments for sewers shall belaid on property immediate!y benefited thereby, an adoption of a foot-front assessment both for the grading and for the sewer is not necessarily inequitable. Such assessment will be sustained when the assessor’s return shows that in no case was any lot assessed at a fixed foot rate without taking into consideration the benefit derived from the improvements.
    In determining the benefit to the owner of unimproved lands, the fact that the lands are opened up and made available may be considered.
    The court will not consider objections to an assessment not made before the assessor on1 grievance day or set out in the petition on certiorari.
    Coche ane, J., dissented, with opinion, .
    
      Oertiobari issued out of the Supreme Court and attested on the 18th day of August, 1905, directed to the common council of the city of Kingston, Mew York, and others, requiring them to certify and return to the office of the clerk of the county of TJlster all and singular their proceedings had in relation to the laying of sewers and grading in certain streets in the city of Kingston.
    The proceeding is one brought to review a special assessment to defray the expenses of grading Mary’s avenue, Andrew street and Lavan street, in the city of Kingston, and for constructing a sewer in such avenue and streets. The grading of each of these streets and avenue was authorized by a separate ordinance for each, and a' separate ordinance was passed for the construction of the sewer. The common coimcil by a resolution thereafter adopted consolidated all of said improvements into one general plan and authorized the city engineer to prepare plans and specifications for the work of grading the three streets and for the construction of the sewer therein and 'thereafter the whole work was let in one contract. The plans and specifications so prepared contain a detailed statement of the number of cubic feet excavation and filling necessary for the grading of each of the streets stated separately. Thereafter a committee of the common council ascertained and reported the cost of grading each street and avenue separately, and the cost of the construction of the said sewer. Such report was adopted by the common council and it, by resolution, directed the assessor to make the assessments therefor in accordance with the provisions of the charter of said city and the ordinances relating thereto. The assessment was made for the cost of grading each street and for the cost of the sewer separately. With the exception of one piece of property ail of the relator’s property within the entire assessment district is unimproved vacant property and is used for a cow pasture. ¡ Much of the other property within such district is improved property. The relator has no property on Lavan street. Pursuant to the charter twenty-five per centum of the cost of grading said streets and constructing said sewer was charged upon the city at large and seventy-five per centum was assessed upon the property claimed to have been benefited thereby.
    
      John G. Van Etten and N. Frank O'Reilly, for the relator.
    
      Frederick E. W. Darrow and Philip Elting, for the respondents.
   Chester, J.:

• The relator first attacks the several assessments made against her property as having "been made without jurisdiction, because there was a change of the established grade of Andrew street without any petition therefor, in violation of section 148 of the city charter (Laws of 1896, chap. 747), which, so far as material, reads as follows ; When the grade of any street or highway has been established, it shall not be changed except upon the petition of the owners of a majority of the lineal feet fronting on the street, or part thereof, on which the grade is to be changed, nor unless compensation be made to the owners claimed to be injured by such change of grade.”

It appears that the common council in 1898 passed an ordinance establishing the grade of Andrew street; that another ordinance was passed establishing the grade in 1900 and that a third ordinance amending the ordinance of 1898, repealing the ordinance of 1900 and establishing the grade of such street, was passed in October, 1903, and'that the work resulting in the assessment complained of was done pursuant to the last-named ordinance. It appears that until the work in question was undertaken there had been no change in fact on the surface of the ground on Andrew street, except that the city had at its own expense removed a portion of a ledge of rocks thereon. Until that time the established - grade existed only on paper in these ordinances. The relator had made no improvements and had incurred no expenditure with reference to such established grade. The grade “ established ” by the final ordinance made slight changes only in that fixed by the prior ordinances and it is questionable whether the cost of the improvement with the grade as finally nxea was much, if any, greater than it would have been with the grade as stated in the two ordinances which have been displaced. The statute preventing the change of an established grade, except upon a sufficient petition, was made for the protection of property owners and to provide compensation for any injuries sustained by them by reason of a change of grade. Ho such injury to the relator appears in this case.

The case of Folmsbee v. City of Amsterdam (66 Hun, 214; affd., 142 N. Y. 125), cited by the relator as authority for her contention, is fairly distinguishable from the case here, for in that case the change was a substantial one and the grade had been established by a long user and had existed for many years. The street had in fact been graded and improved by the municipality and many houses were built compactly on each side of the street conforming to the grade of the street as it existed before the change was made.

I think the relator is not afforded such a grievan.ce by the change in the ordinance establishing the grade, made as it was before she had incurred any expense in improving her property with reference to the grade first fixed and before anything had in fact been done to change the surface of the street to conform to such grade, as will enable her to urge that the assessment against her is void because the change was not petitioned for as required by such section 148, and that the facts presented do not constitute a change of an “ established ” grade within the meaning of that section.

]N"or do I think that the relator is aggrieved because the work of grading the three streets and the laying of the sewer was let in one contract for a single sum when four separate ordinances were passed authorizing the work. By the aid of the contractor’s and engineer’s estimates the cost of each separate piece of work was ascertained and the assessments were made separately for each. The common council deemed it advantageous for the city to let the entire work in a single- contract and nothing appears to show that the relator was injured thereby.

It is also urged by the relator that the assessments are unjust and inequitable and not in proportion to the benefits derived from the improvements.

Section 147 of the city charter (Laws of 1896, chap. 747) provides that when the common council causes any street which has not been previously graded at the expense in whole or in part of the property fronting thereon, to be graded, it may determine what part, if any, not exceeding twenty-five per cent, of-the expense is to be paid by general tax upon the city and what part shall be paid by special assessment on the “ property fronting on such improvement.” The same section authorizes the common council to construct sewers and in like manner determine the proportions to be paid by general tax and by special assessment against the property immediately benefited thereby.” It also provides that the assessor “ shall make a just and equitable assessment of the costs and expenses of such improvement as audited by the common council against the owners or occupants V the lands deemed to be benefited, assessing each parcel in prolortion to the benefit which, in his judgment, has been derived from aid improvement.”

It is clear under these provisions of the charter that the assess.nents for grading the streets and for the sewer must be laid upon {lie ownbrs or occupants of the property deemed to be benefited in jroportion to the benefits which in the judgment of the assessor lave been derived from the improvement, but that in case of the gradng of a street the area of the assessment is limited to the property fronting on the improvement. The grading assessments appear to have been so limited, but in laying the assessments for both the grading and the sewer a computation shows that the assessor followed what is known as the foot front ” pilau; that is, that he Apportioned the cost among the lot owners in piropiortion to the frontage of each lot upon the street. The relator ui-ges that this has resulted in a gross inequality as to her, as her propierty, with the exception of one lot, is vacant and unimproved, while much of the other property is built upon, which largely increases its value. This does not necessarily follow. No plan of assessment has yet been devised which will result in absolute equality between piropierties differing in use and in value.

The assessor was charged with a judicial duty in apportioning the cost of these improvements, and was required to assess it upion the property which, in his judgment, had derived benefit therefrom in proportion to the benefits derived. Nothing indicates that he has not done this. If he exercised his best judgment, and if he has not followed an erroneous principle in making the assessment, it should not be set aside simply because he has made it upon the “ foot-front ” plan. It may be that after taking into account all the improvements and the differences in value between the separate pieces of property assessed, caused by such improvements, he deemed this rule'to be the most just and equitable. It would seem that this pilan is sanctioned by authority with reference to assessments for grading and paving where the law requires them to be laid upon the piropierty fronting upon the improvement. (O'Reilley v. City of Kingston, 114 N. Y. 439.) So, too, the same rule has been appilied to assessments for the construction of sewers laid upon property deemed to be benefited. (City of Ithaca v. Babcock, 72 App. Div. 260; Providence Retreat v. City of Buffalo, 29 id. 160.)

While the assessor here has followed the “ foot-front ” plan in laying the assessment he denies the allegation in the petition that it was not made against each parcel in proportion to the benefit which in his judgment had been derived from said improvement, and says in his return that in making the assessment he “ took in consideration the market values of the properties assessed, whether the lands assessed were improved or not, their value and character and nature of the improvements, if any; the value of said lands as derived from such improvement, if any, and as derived from the location of said improvements, and as to the prospective expense or difficulty of connecting said lands and the buildings thereon with the sewer so as to make use of the same; the nature of the lots, for what purpose they were used or could be put to; whether the lot was used for residential or business purposes; the market and assessed value of the lot; whether or not the lot could be connected with the sewer; whether it was near or at some distance from the sewer, and in no case was any lot assessed at a fixed rate per foot front without taking into consideration all the matters hereinbefore stated, and that in all portions of the whole territory assessed in which a fixed r.ate per foot front was used, such rate was determined by taking into consideration all the matters, things and considerations above mentioned.” He also says that the property of the relator has no particular value except as building lots, and for these purposes it has considerable value, as it lies in the center of the city immediately off Broadway, the main street of the city, and that in order to make the property worth anything for sale it was necessary to open up streets through it and to improve them. It does not necessarily follow that because the assessments were made at a fixed rate per lineal foot front that the assessor did not take into consideration the things which he says he did in fixing the rate, for that differs upon the different streets. The plan has undoubtedly resulted in some inequalities when the present uses of the property only are considered, but when taking into account the benefits received because of uses for which the relator’s property has been made available by reason of the improvements, and to which it may be put in the future, it cannot be said that there are any inequalities of such a character as require the assessments to be vacated to prevent injustice to her.

The relator also points out one lot upon which she claims there has been a double assessment, and also the omission of several lots included within the assessment district shown upon the map prepared for the sewer assessment, but as these questions were not raised before the assessor or by the petition of the relator they cannot be reviewed in- this proceeding. (Matter of Clark, 31 Hun, 198.) If these matters had been called to the attention of the assessor on grievance day they might have been remedied. It is too late to complain of them now.

The writ of certiorari should be vacated and the proceedings dismissed, with fifty dollars costs and- disbursements to the respondents.

All concurred, except Cochbane, J., dissenting, in opinion.

Cochrane, J. (dissenting):

Section 147 of the charter (Laws of 1896, chap. 747) requires that the special assessment for the grading must be “ on the property fronting on such improvement; ” that the special assessment for the sewer must be “ against the property immediately benefited thereby,” and that in either case the assessor “shall make a just and equitable assessment of the costs and expenses of such improvement as audited by the common council against the owners or occupants or the lands deemed to be benefited, assessing each parcel in proportion to the benefit which in his judgment has been derived from said improvement.”

By section 151 of the charter it is required that “ all improvements to be paid for by special assessment shall be by contract let to the lowest responsible bidder, and shall be paid for only from the funds raised, levied and collected for such improvements.”

It thus appears that the special assessments for the grading and for the sewer fall on different classes of projierty. In the case of grading such assessment is limited to “ the property fronting on such improvement.” In the case of a sewer the assessment is “ against the property immediately benefited thereby,” which may include other property than such as fronts on the improvement. The cost of the grading and of the sewer was included b'y the common council in one contract. Separate bids were not asked for or received. How, then, could the assessor apportion the cost of the grading and the cost of the sewer on the separate classes of property as required by the statute ? My notion is that there can be no compliance with this statute unless separate bids are received for the grading and for the sewer. Appreciating the difficulty, the ■common council directed the contractor to divide his bid after it had been accepted, and undertook to apportion the contract price so as to make a part thereof the price of the sewer and the remainder the price of the grading. But, of course, this was no compliance with the statute. Such a method was an entire departure from the scheme of the statute, which requires the cost of the improvements to be fixed by competitive bidding, and then that the portion of such cost as thus determined, which is to be paid by special assessment, shall in the case of grading be assessed against one class of property, and in the case of a sewer be assessed against another class of property. Probably it is not necessary for a person to raise this objection before the contract is made, for the reason that he cannot be supposed to know beforehand that the common council will ignore the statute. But it is worthy of note that the relator, in her objections presented to the common council at the same meeting when the bids were received and before the contract was let, specified as one of her objections “ that there can be no equality in the assessment if said Lavan, Andrew Streets and Mary’s Avenue are graded and sewered if the contract is let under one contract.”

Moreover, the common council divided the contract price of the improvements into four amounts, and'arbitrarily directed that one specified amount be assessed for the construction of the sewer; that another specified amount be assessed for the grading of Andrew street; that another specified amount be assessed for the grading of Lavan street; and that another specified amount be assessed for the grading of Mary’s avenue; and by resolution directed the assessor to make the assessments accordingly, and in this manner the special assessments against the individual property owners were made. It seems to me that this was a clear usurpation of the functions of the assessor, who by statute is charged with the duty of making the assessment “ against the owners or occupants or the lands deemed to be benefited, assessing each parcel in proportion to the benefit which in his judgment has been derived from said improvement.” I do not think the assessor can be deprived or relieved of this duty or of any part thereof by the common council, or that an assessment made in this way, partly by the common council and partly by the assessor, is a compliance with the statute.

The statute must be strictly pursued, and any departure in substance from the formula prescribed by law vitiates the proceedings. The party wfiose property is to be reached may insist upon the observance of every form prescribed by statute which will in the least tend to his protection. In other words, the form must be strictly followed.” (Merritt v. Village of Portchester, 71 N. Y. 309 ; Stebbins v. Kay, 123 id. 35 ; Newell v. Wheeler, 48 id. 486.)

Writ of certiorari vacated and proceedings dismissed, with fifty dollars costs and disbursements to the respondents.  