
    In the Matter of the Petition of Emily J. Hollister and Others, Appellants, to Vacate an Assessment for Local Improvement in the City of Rochester, for Paving and Improving South Culver Street, Between East Avenue and the Erie Canal Bridge, Assessing the Property of the Above-Named Petitioners. City of Rochester, Respondent.
    
      Assessment for street pavement — it may be levied on land outside of the city limits when the work is done, when the land is included therein at the completion of the work — reassessment where an original assessment is vacated—rights of a purchaser, after the work is done and before the assessment is levied; of lots subsequently assessed.
    
    In May, 1894, the east line of the city of Rochester ran along the center line of Culver street, the property on the west side of the street being within the city and that on the east side without the city.
    At that time the property owners on the west side of that street petitioned the common council of the city of Rochester to pave the street its full width. The owners of the property on the east side of the street also presented a similar petition and agreed to pay one-half the expense of the work.
    The common council thereupon adopted an ordinance directing the paving of the street, and providing that the entire expense thereof should be assessed upon the property on the west side of the street.
    In May, 1895, the eastern line of the city was extended so as to take in most of the lots lying on the east side of the street. The paving was completed in October, 1895.
    The assessment for the improvement was imposed upon lots on the west side of the street. It was confirmed in July, 1896, and in an action brought in 1901 by one of the owners of the lots on the west side of the street, the assessment and the ordinance authorizing it were declared void.
    The common council thereupon vacated the assessment and repealed the ordinance, and then adopted an ordinance directing that the cost of the improvement should be assessed upon the lots abutting upon both sides of the street so far as such lots were, located in the city.
    
      Held, that the Legislature had power to extend the city limits;
    That the assessment for the improvement was to be made as of the date of the completion thereof, and that as the lots on the east side of the street were then within the city, the common council had power to levy the original assessment on those lots;
    That the original assessment having been declared invalid, the common council had power to direct the reassessment;
    That the claim that persons who purchased lots on. the street after the completion of the improvement, without knowledge that the cost thereof had not been paid, were bona fide purchasers and should be protected as such, was untenable, as the improvement was patent to all and the purchasers could readily ascer- . tain whether the cost thereof had been paid.
    Stover, J., dissented.
    Appeal by the petitioners, Emily J. Hollister and others, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 23d day of November, 1903, confirming an assessment for a local improvement.
    
      George B. Reed, John F. Kinney and Scott Cummings, for the appellants.
    
      William W. Webb and B. B. Cunningham, for the respondent.
   Williams, J.:

The order should be affirmed, with costs.

There were five proceedings commenced by different petitions which were consolidated. Issues were formed by the answer of the city, and evidence was taken, tending to establish the following facts: In May, 1894, when the improvement in Culver street was contemplated, the east line of the city of Rochester ran along the center of that street from East avenue to the Erie canal bridge. The lot owners .on the west side of the street, whose property was within the city limits, petitioned the common council to improve the street by paving the same the full width thereof, and about the same time the owners of lots on the east side of the street, whose property was not then within the city limits, but who owned also about two-thirds of the lands fronting upon the west side of the street within the city limits, petitioned the common council to make the improvement, and agreed to pay one-half the expense thereof proportionately according to the number of feet owned by them respectively on the easterly side of the street. Thereupon the common council adopted an ordinance that the improvement was necessary and should be made and directing the expense thereof, estimated at $23,000, to he assessed, the whole of it, upon the lots lying on the west side of the street, being within the city limits. In August of the same year this Ordinance was amended by reducing the estimated expense of the improvement to $21,500, and directing a bearing of the parties interested at the next regalar meeting of the common council, and thereafter in the same month the final ordinance was adopted after hearing such persons as appeared.

The city thereupon made the improvement and it was completed and accepted in October, 1895. In May, 1895, the easterly boundary of the city of Rochester was extended by. the Legislature (Laws of 1895, chap. 617, amdg. Laws of 1880, chap. 14, § 2), so as to take into the city most of the lots on the easterly side of Culver street. The entire cost of the improvement was assessed upon the lots on the west side of the street under an ordinance adopted in 1895 and the assessment was confirmed by the common council in July, 1896, and some portions of the tax were thereafter paid. One of the west side property owners brought an action against the city in 1901 to vacate the assessment against the city, and it was therein determined that the ordinance and assessment were illegal and void. Thereupon the common council vacated the assessment and repealed the ordinance under which it was made, and in 1902 adopted an. ordinance determining that the cost of the improvement should be assessed upon the lots upon both sides of the street, so far as they were then located within the city. In February, 1903, after hearing the parties interested, the final ordinance was adopted, directing such assessment, and it was made and confirmed by the common council in June, 1903. These proceedings were .then commenced under the charter of second class cities (Laws of 1898, chap. 182, § 466 et seq) to vacate or reduce the assessment. The common council evidently directed the first .assessment upon “ the theory that the petition signed by the residents of the city of Rochester, when read in the light of the * * * petition signed by the property owners of Brighton,

authorized the assessment of the entire expense of the improvement upon the property upon the Rochester side of the said Culver street, leaving the property owners thus assessed to collect one-half of such assessment from the petitioners owning property on the Brighton side of South Culver street.”

The court held this would not do, and the city bowed to that decision, and its common council proceeded to correct the assessment under the power given by section 215 of its charter (Laws of 1880, chap. 14, as amd. by Laws of 1897, chap. 784), At the time the improvement was completed and accepted the property on both sides of the street was in the city of Rochester and subject to its jurisdiction. The property on the east side was brought in by act of the Legislature while the improvement was being made and before its completion. The Legislature clearly had power to extend the city limits. (20 Am. & Eng. Ency. of Law [2d ed.], 1152; Dillon Mun, Corp. [4th ed.] § 185; Smith Mun. Corp. § 1464.)

The common council had power to direct the assessment of the cost of the improvement upon all the property on both sides of the street, which was then within the city, and it should have done so. The assessment could not be made until the completion of the improvement and the ascertaining of the cost thereof. (Charter, §§ 198, 199, as amd. by Laws of 1890, chap. 561.) If it be said that the assessment had to be directed in accordance with the former determination as to the portion of the city to be assessed, which was necessarily made at an early stage of the proceeding, yet the common council had power to change and increase the territory so to be assessed under section 172 of the charter (as amd. by Laws of 1890, chap. 561), and should have done so. The assessment was to be made as of the date of the completion of the improvement. (Matter of Mayor, 46 App. Div. 52; affd., 162 N. Y. 658; Matter of Mayor [Opening E. 176th St.], 85 App. Div. 347.)

The common council having had power to direct. the assessment of the property on the east side of the street. when the original assessment was made in 1895, and that assessment having been determined by the court to be invalid, the common council had power to direct the reassessment, as it did in February, 1903, and to confirm the same as it did in 1903. (Charter, § 215, as amd. supra.)

There is no merit in the claim that some of the petitioners were purchasers of their lots after the improvement was made, without knowledge or notice that the cost thereof remained unpaid, or that there was a claim against their property therefor; that they were, therefore, bona fide purchasers and should be protected as such. The improvement itself was patent to all who saw the lots and they could easily ascertain by proper inquiry whether it had been paid for. (Matter of Deering, 14 Daly, 89; affd., 105 N. Y. 667.)

Interest was properly .included in the reassessment. (See charter, §§ 198, 215, as amd. by Laws of 1901, chap. 719, and Laws of 1897, chap, 784, respectively.) Whether the amount included was in excess of the amount allowed by law is not properly before us, it not having been passed upon by the trial court. The petitioners were given an opportunity to be heard upon that question and to furnish further proof if they desired. They did not avail themselves of such opportunity.

The design of the statute was to make the city whole so that the cost of local improvements should fall upon the property owners to be benefited thereby and not upon the taxpayers at large, and we must assume in the absence of proof to the contrary that only such interest was included in the assessment as was proper under the charter. The property upon this street in question has had the benefit of this expensive improvement which was necessarily completed before the assessment could be made and collected. The attempt by the owners of the property benefited to escape payment for the improvement and impose the burden thereof upon" the taxpayers at large is not favored by the courts. It will succeed only when the law actually demands it.

We think in this case the assessment was properly confirmed and the petitions were properly dismissed.

The order should, therefore, be affirmed, with costs.

All concurred, except Stover, J., who dissented in a memorandum.

Stover, J. (dissenting) :

I dissent from the view that the city had the right to assess this improvement upon the petitioners,

The paving was done by the city under an agreement that it should be paid by the individuals whose property .was benefited. This did not give the city a right to assess the expense upon the property benefited, but gave it only such rights as it: obtained by the contract, namely, to, compel the individuals to pay in accordance with the contract. The expense of paving, therefore, was in no sense a lien upon the property, nor can it be said that anything in the proceedings shown upon this proceeding gave jurisdiction to the municipality to assess the property. At the time the property was purchased there was no lien either perfect or inchoate, and the purchasers had the right to rely upon the apparent situation. That the city subsequently thought there were .some equitable rights existing in its favor, and undertook to assert those rights in accordance with its idea of equity, did not confer jurisdiction, nor did its action create a valid lien against the "property.

The" municipality acquired its only jurisdiction to levy a tax upon the inception of the proceedings to lay the pavement. Concededly, it had no authority at that time to lay the basis for a charge against the property involved here, and the fact that the Legislature thereafter extended the city limits so as to take in the property, did not enlarge the power of the municipality to levy taxes. These property owners were entitled to be admitted into the municipality with no greater special liens upon their property than then existed, and the law admitting this property cannot properly be construed to be so far retroactive as to permit the assessment of an unauthorized expenditure of money by the municipality, or one which, if warranted at all, is so by special agreement with certain individuals upon this property.

I think the tax was illegally imposed and the order should be reversed. .' .

Order affirmed, with costs.  