
    Dennis Donovan, Respondent, v. The City of Oswego and Others, Appellants.
    
      Assessment for a local impi'ovement in the city of Oswego — unequal assessments reviewed by certiora/ri -r- where the entire assessment is illegal the review may be by suit in equity— the assessors in determining the principle of assessment act judicially— adoption of a uniform rate per foot of frontage allowable — inclusion therein of a sum for incidental expenses — consent of property owners where part is to be paid out of the highway fund — inclusion of the cost of gas and water connections —public notice thereof— consent of owners thereto.
    
    If a person assessed for a local improvement claims that his property has been unequally assessed in comparison with that of other property in the assessment area, his remedy is by a writ of certiorari to review the assessors’ action. In such a case the vice does not pervade the entire assessment, but a reassessment may be ordered by the court.
    If the local improvement was made without authority or if the assessors did not have jurisdiction to levy the assessment or levied it upon an entirely wrong principle, the vice extends to the entire assessment and .the property owners may attack the assessment by an action in equity.
    In determining the principle upon which an assessment for a local improvement shall be based the assessors act judicially, and their determination will not be disturbed unless it is apparent that the principle adopted was incorrect and unfair to the property owners.
    The adoption by the assessors charged with the duty of apportioning the expense of paving a city street nearly half a mile in length, of a uniform rate per foot of frontage is not improper, even though the buildings upon one of the blocks of the street in question are worth twenty times as much as the buildings on another block of such street.
    The inclusion in the estimated cost of a local improvement in the city of Oswego of a five per cent contingent fund, intended to meet reasonable and incidental expenses which would inevitably arise in the construction of the improvement and which it was difficult to itemize, does not render the assessment for the local improvement invalid, especially in view of the provision of section 256 of the charter (Laws of 1895, chap. 394, as amd. by Laws of 1897, chap. 263) which requires the excess of the assessment to be returned ratably to those from whom it was collected.
    Under section 258 of the charter, which prohibits the common council from ordering a local improvement, the cost of which shall exceed §10,000, except upon the consent of a majority of the property owners liable to assessment therefor, and that such section shall not be applicable to a local improvement, the cost of which is “to be defrayed from moneys raised or to be raised by virtue of a special election,” the consent of a. majority of the property owners is not necessary where a portion of the cost of a local improvement is to be paid out of the highway fund raised by virtue Of a special election.
    
      The power given to the common council to include'in a local assessment for paving a. street “ all curbing or other structures incident to such pavement and . laid at the same time therewith” extends to water and gas connections with mains existing in the street at the time the pavement is being laid.'
    The public notice of the intention to order the public improvement required by section 141 of the charter need not mention the making of the gas and water connections, as they are subsidiary to the laying of the pavement.
    Section 44 of the charter, which provides, “ The common council shall not have power, and is hereby forbidden to grant permission to any person, company or corporation to lay or place in, upon or under, or encumber in any manner, any of the streets * * * with * * * gas or water mains or pipes * * ";t without and until the legal consent in writing, duly acknowledged, of at least one-half of the owners of abutting property shall first have been obtained and filed with the city clerk,” does not apply to the making of the gas and water connections in such á case.
    Appeal by the defendants, The City of Oswego and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 2d day of January, 1903,. upon the decision of the court, rendered after a trial at the Oswego Special Term, vacating and setting aside certain assessments.
    
      Elisha B. Powell, for the appellants.
    
      Spencer Brownell, for the respondent.
   Spring, J.:

This is an action in equity 'to vacate an assessment levied upon property- of the plaintiff located on the south side of East Bridge street in the city of Oswego. One entire assessment is for $18,482.91 for the construction of an asphalt pavement on that street, and the other of $2,310.97 for putting in water and gas connections and lateral sewers. The assessment levied against the property of the plaintiff was $1,700, and the pavement taxes thereon $589.91. Plaintiff’s lot has one hundred feet frontage. The westerly twenty-five feet has upon it a cheap building, but the remaining seventy-five feet is a vacant lot used as a woodyard.

It is unnecessary to enter into a minute analysis of the various sections of the city charter (Laws of 1895, chap. 394, as amd. by Laws of 18.97, chap. 263) which are applicable. It is sufficient to note that the initial steps for the paving of a street or the making of any local improvement thereon are lodged with the department of works. (Charter, § 140, as amd., supra). The plan requires public notice of the improvement contemplated and the hearing of any objections which may be presented (§ 141, as amd., supra). In its determination the department determines- what proportion of the cost of the improvement is to be raised by local assessment and what part, not exceeding one-half, is to be paid from the highway fund (§ 140, as amd., supra). The common council upon this determination orders the improvement to be made by the department of works and the assessment to be made by the local assessors (§§ 142, 312, subd. 4). Section 320 (as amd., supra) in further defining the powers of the department of works provides in subdivision 2: “To determine, by a resolution to be entered in the minutes of the proceedings of said department, what portion, if any, of the expenses of making any sewer or sewers, pavement or curbing, shall be paid by the city at large, and what part or portion thereof shall be defrayed by local assessment upon such portions of the real estate in said city as the board of local assessors shall deem more immediately benefited thereby.” The assessment is to be “ apportioned as equitably as may be ” (§ 250), which general direction seems to be the only requirement in that regard. Ample provision is also made for the hearing of objections by the assessors upon the review^ of their assessment and appeal may be taken from their decision to the common council (§§ 250, 251).

On the 23d day of February, 1898, the department of works gave notice of an intention to construct a pavement on East Bridge street from First to Ninth streets, a distance of about 2,500 feet. The estimated cost of the improvement was apportioned as follows: $18,482.91 to be assessed upon the property benefited, $9,807.60 from the highway fund, $5,241.99 to be paid by the street railway company and there was a $15 charge for the cost of advertising. The, proceedings culminated in a resolution of the common council, April 25, 1898, directing the department of works to make the improvements, and ordered the necessary assessment to be laid. Upon the review day the plaintiff appeared and objected to his assessment and his objections and those made by others interested were heard and considered by the board of assessors. The assessment was laid and the improvements made and the property of the plaintiff subsequently sold to pay the taxes levied against it, upon the failure of the plaintiff to pay the same.

The mode of assessment adopted was by the front foot, each bordering lot being subjected to the same front foot assessment.

At the outset it is contended that the action to remove the cloud on the plaintiff’s title is a collateral attack upon the assessment and is not permissible. The rule, is a salutary one that where assessors are charged with making an unequal assessment the review of their action should be by certiorari. The determination of the question does not then in any event utterly invalidate the entire assessment but a reassessment may be' ordered by the court and no substantial injury may result to the municipality. If, however, the board of assessors did not possess the jurisdiction to make the assessment, or if the improvements resulting in the tax levy is without authority of law or upon an entirely wrong principle the remedy may be by action if extrinsic evidence is essential to establish its legality. (Alvord v. City of Syracuse, 163 N. Y. 158; County of Monroe v. City of Rochester, 154 id. 570, 579.) In the present case it appears, as already noted, that the method of assessment resorted to by the board of assessors was a uniform rate per front foot of the abutting premises. If the plan was erroneous in principle the vice extended to the whole assessment rendering it invalid, and the plaintiff or any taxpayer charged with.the payment of a tax could attack it as has been done in the present case by an action in equity. If a 'taxpayer claims that his property is unequally assessed compared with those of his neighbors or of other owners of property within the taxing district the remedy to relieve him from the disproportionate assessment is by certiorari. (Matter of Adler Bros. & Co., 76 App. Div. 571, 576 et seq.; affd., 174 N. Y. 287.) The whole assessment is not vitiated by the unequal assessment in that case. Here the vice, if any there be, pervades the whole assessment for if the position taken is tenable the mode chosen was erroneous.

But was the rule adopted erroneous ? It was not wholly by an arbitrary criterion, for the assessors examined the situation, taking into consideration the buildings and existing conditions and determined that the assesssment by uniform foot frontage was the most equitable of any which could be chosen. They acted judicially in this determination (O'Reilley v. City of Kingston, 114 N. Y. 439, 448), and their decision will not be disturbed unless it is apparent that the principle adopted was incorrect and unfair to the property owners. The bare fact that the assessment was apportioned among the abutting owners according to the lineal foot frontage of their several lots does not by any means establish that the method chosen was erroneous. (Case last cited.) In People ex rel. Scott v. Pitt (169 N. Y. 521) the Legislature fixed the assessment for the construction of sewers in the city of New Rochelle at a definite sum per front foot. The court in passing upon the validity of this requirement uses this language (at p. 528) : Hence the principle adopted in this case of distributing the burden according to frontage at a fixed sum for each linear foot of sewer constructed, was a valid exercise of power, not prohibited by any constitutional provision or any legal principle applicable to taxation for local improvements. Some other principle might, indeed, operate more fairly upon some particular individual, but upon the whole the rule adopted by the Legislature in the charter was, perhaps, as fair as any other that could be devised. It has one decided merit that, perhaps, any other rule would not have, and that is that every property owner is required to pay only according to the extent of his possessions, and all are on á basis of equality. It may be that the sewer was a greater benefit to one than to another, but objections of this character could be made whatever principle was adopted. The principle of distributing the •cost of a local improvement, or some part of it, upon property located "upon the street where the improvement is made according to the frontage of lots, or upon the basis of a specified sum per linear foot, is within the power and discretion of the Legislature, and so long as the burden is less than the actual cost of the improvement in front •of the lot the property owner has no just ground to complain.” The keynote of every such assessment is that it must be made according to the benefits conferred. The- assessment upon any hypothesis can never be computed with exact equality and fairness. The discretion and good judgment of the assessors who view the property must ordinarily be controlling as to the justice of the assessment made.

The pavement in question extended- along East Bridge street from the heart of the city to East Ninth street, nearly half a mile. The property at First street was more valuable than that at the other end of the pavement. For instance, the block on the south side of said street between First and East Second streets with a frontage of 200 feet was' assessed upon the general assessment roll at $68,000. The block on the same side of East Bridge street between East Eighth and East Ninth streets with a like frontage and which included the land of the plaintiff was assessed upon the same roll at $3,000. Each of these blocks was chargeable with about the same sum for the cost of the improvement on East Bridge street. It does not follow, however, there was any injustice in this apportionment. The assessors concluded that each square would derive an equal benefit from the construction of the pavement, The vacant lot might be rendered the more accessible with a greater probability of being brought into the market as salable property by reason of the improvement. We cannot say that because one block is worth by reason of the buildings upon it twenty times more than another block that it will receive the same proportionate enhancement in value from the construction of the pavement as the less valuable , tract. This pavement was all on. one street and .the assessors could readily take into cognizance the comparative effect its construction Avould have upon each bordering lot. The plaintiff gave proof tending to show that the value of the lot had not increased by the laying of the pavement, That is no satisfactory standard to aid us in determining whether the assessors adopted an erroneous principle or not. Their judgment may not be sustained by subsequent events. Other circumstances and conditions may enter into the question affecting the value of plaintiff’s premises. We are inclined, therefore, to think the court beloAV erred in determining that this assessment was invalid by reason of the plan adopted by the assessors in making the assessment.

Some of .the other objections urged to the validity of the assessment we will briefly advert to. In the estimated cost of the improvement was included a five per cent contingent fund of $1,596.98, and it is contended that this addition was unwarranted. This item was intended to meet reasonable and incidental expenses which would inevitably arise in the construction of the improvement and which it was difficult to itemize. Had the officers made an estimate of- these various items which in their judgment composed this gross sum, if fairly made, it could not be claimed that the assessment was vitiated thereby. Nor do we think that is the effect now, especially in view of the provision of section 266 of the charter which requires that “ the excess shall be refunded ratably to those from whom it was collected.”

In 1896, in accordance with section 125 of the charter, the taxpayers at a special election voted that $10,000 be raised each year for' three successive years and added to the highway fund to be exclusively used in making local improvements of a permanent nature. The resolutions voted upon further provided that any unexpended balance of said ten thousand ($10,000) dollars remaining in either of said three years may be expended in any following year for the same purpose and subject to the same conditions and limitations as if expended in the fiscal year in which, the sajne was raised:” The city’s contribution of $9,807.60 was .ordered, paid from this fund, and, as already noted, such payment must come from the highway fund. At the time the resolution was adopted the charter (§ 258) prohibited the common council from ordering a local improvement the cost of which should exceed $10,000 except upon the consent of a majority of the property owners liable to assessment therefor or of the owners of one-half in value of the property affected thereby. It, is claimed the present assessment is violative of that provision. Before any preliminary steps had been taken looking towards the paving of East Bridge street this section had been amended by chapter 263 of the Laws of 1897 so that it was not applicable to a local improvement the cost whereof is “ to be defrayed from moneys .raised or to be raised by virtue of a special election.” Under this act the consents were unnecessary.

There is no question over the amount of the money which was chargeable to the city for its proportion of the cost of this pavement. It is of little concern to the plaintiff; from what fund the money was paid. The other objections urged by the respondent to the validity of the assessment we do not deem necessary, to discuss separately. Suffice it to say we think the charter provisions were fairly complied with.

The plaintiff was assessed upon local assessment roll No. 77 for water and gas connections and lateral sewers seventy-five dollars and fifty cents1, and it is claimed this assessment is illegal. A water company owned a plant in said city whose line extended along under the surface of East Bridge street at the time said pavement was put in and that is equally true of a gas line. In order to make the connections with these lines before the pavement was laid the municipal authorities notified the owners to make them, and advised such owners that the same would be made by the city and the expense thereof charged to each owner benefited unless done by him within the time specified in the notice. The plaintiff did not comply with the notice, and the connections were thereafter made under the direction of the city by the company which constructed the pavement, and a local assessment roll was prepared conforming to the requirements of section 250 of the charter and the plaintiff’s tax thereon was seventy-five dollars and fifty cents.

It is contended that there is no specific warrant in the charter for making these gas and water connections. The control of the streets and of their improvement and of the ordering of public improvements and of the apportionment of the expenses thereof are vested in the department of works. (§§ 130, 140, 320, subd. 2, as amd., supra.) The common council, in levying a local assessment for paving a street, may include therein “ all curbing or other structures incident to such paving and laid at the same time therewith.” (§ 322, as amd., supra.) Connections of this kind are evidently incidental .to the construction of the pavement, and the necessity or wisdom for making them before the pavement is laid is obvious. Otherwise the pavement must be torn up and its usefulness seriously impaired every time an abutting owner desires to connect his premises with the water or gas line in the street.

Section 141 of the charter (as amd., supra), as already noted, requires the department of works to give public notice of its intention- to order any local improvement. This notice is not to be accompanied with any statement of expense, nor are the details of the proposed improvement up for consideration, but the propriety of making it 'at all and the hearing of the abutting owners preliminarily, are the reasons for this requirement. The notice, was published and the plaintiff appeared and objected to the improvement intended. The notice said nothing as to making gas and water connections, nor do we deem it necessary, for they- were subsidiary to the laying of the pavement, and unless that was ordered, the necessity for the incidental expenditures would not arise.

On March seventh following the department of works in due form ordered the pavement made, including all necessary connections with sewer, gas and water mains in any of said streets. All in accordance with specifications on file in the office of the City Engineer.”

The required advertisement of this determination was published and the date of the hearing fixed for March fourteenth, at which time several parties appeared and were heard. In all the proceedings subsequent these connections were included as part of the improvement to be made. In the resolution accepting the bid for the construction of the pavement, in accordance with the specifications adopted by the defendant, the city engineer and superintendent of works were “ directed to prepare estimates of the cost of the said local improvements * * * according to the terms of said specifications for pavements proposed to be laid, * * * all necessary curbing, catch-basins, connections, headers and all necessary connections with sewers, gas and water mains at any of said streets, showing separately the estimated cost of that part of said pavements lying within the lines of street intersections.”

This excerpt is a type of those appearing in each of the resolutions and notices pertaining to this improvement. The plaintiff had full knowledge that these connections were to be made and objected thereto. The fifth finding of fact on the second cause of action by the court in its decision contains the following: “ That all of said connections were placed in front of plaintiff’s property against his objection, with the exception of one water connection.”

The certificate of the cost of these improvements was presented to the common council with the request of the department of works that the common council authorize the making of the local assessments therefor upon the property benefited, which was done. - The plaintiff appeared before the assessors and objected to the assessment against him and appealed to the common council from the adverse decision, and that decision was affirmed. The proceedings from the outset seem to have been carried on pursuant to the charter and the plaintiff had all the notice to which he was entitled, and apparently availed himself of it to oppose the putting in of the improvements.

The court below held, and it is now strenuously urged, that section 44 of the charter applies to these gas and water connections. That section, so far as material, reads: “ The common council shall not have power, and is hereby forbidden to grant permission to any person, company or corporation to lay or place in, upon or under, or encumber in any manner, any of the streets * * * with * * * gas or water mains or pipes * * * without and until the legal consent in writing, duly acknowledged, of at least one-half of the owners of abutting property shall first have been obtained and filed with the city clerk.”

The consents of the abutting owners to the making of these connections were not obtained. No permission was granted in this case to any corporation to lay mains in the streets. The mains were' already laid, and the department of works, and then the common council, ordered the company putting in the pavement to make these connections upon the refusal of the owners to do so. They were already provided for in the. estimates and specifications, and the municipal authorities, in their discretion, deemed it feasible that they should he made before the complétion of the pavement. As a practical measure the authorities knew the connections would ultimately he made with the abutting premises, and they determined, as they might, where each connection should be placed, and directed it to be made. It was never intended that the common council must defer the ordering of these connections with a line already laid until the abutting owners consented thereto. Again, the legal consent of at least one-half of the owners ” is made a prerequisite by section 44 referred to. It was of no importance to the plaintiff whether his neighbor had these connections or was without them. The valué or usefulness of his- premises was not affected thereby. The section implies that there is a common interest among the abutting owners where "the improvement is to bé made which must be preceded by the consent of a certain number of the owners. It does not apply where the effect of the improvement is distinct and separate in its bearing upon each owner’s premises.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein. 
      
      
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