
    PROVIDENCE RETREAT et al. v. CITY OF BUFFALO et al.
    (Supreme Court, Appellate Division, Fourth Department.
    May 7, 1898.)
    1. Municipal Corporations—Local Assessments—Presumption of Validity.
    Assessments for public improvements are presumed to be regular; and, in the absence of substantial injury, courts will not be overzealous in finding technical reasons for declaring them invalid.
    2. Same—Assessment District—By Whom Fixed.
    Under Laws 1870, c. 519, tit. 6, §§ 2, 3, as amended by Laws 1875, c. 407, which provide that the common council of Buffalo shall fix the amount which shall he raised hy local assessment, and the assessors shall assess the amount on the lands benefited, the assessors, and not the common council, are the persons to determine the district of assessment for local improvements.
    3. Same—Review of Assessment—Injunction.
    Where, an assessment is sought to be reviewed for jurisdictional defects, an action to restrain its collection may he maintained.
    4. Same—Duties of Assessors—Delegation.
    Under Laws 1870, c. 519, tit. 6, §§ 2, 3, as amended by Laws 1875, c. 407 (making it the duty of the assessors of the city of Buffalo to define the assessment district, and apportion the assessment), where they attempt to define a district hy adopting a map prepared in the office of the city engineer, the district is invalid.
    Appeal from special term, Erie county.
    Action by the Providence Retreat and others against the city of Buffalo and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.
    W. H. Cuddeback, for appellants.
    John Cunneen, for respondents.
   ADAMS, J.

The Providence Retreat, a domestic corporation, brought this action in its own behalf, as well as in behalf of others similarly situated, to have declared null and void an assessment roll made by the assessors of the city of Buffalo to defray the expense of constructing a sewer through Delavan avenue, in that city, and to restrain the defendants from the collection of the assessment levied thereunder. After the action had been commenced, two other domestic corporations, viz. “The Sisters of St. Joseph” and “Le Couteulx St. Mary’s Benevolent Society,” united with the “Providence Retreat/7 and were duly made parties plaintiff. It is an undisputed fact that each of these plaintiffs owns real estate in the city of Buffalo, which is affected by the lien of the assessment; that the assessment proceedings are regular upon their face; and that the defects therein, if any there are, can only be made to appear by extrinsic evidence. It may be assumed, therefore, that a case exists in which, if the proofs sustain the plaintiffs’ contention, the aid of a court of equity may properly be invoked. Marsh v. City of Brooklyn, 59 N. Y. 280.

The grounds upon which the action is sought to be maintained are: (1) That the territory or district declared to be benefited by the proposed sewer was erroneously defined by the assessors, instead of by the common council of the city; (2) that the plaintiffs’ lands were not benefited by the sewer, for the reason that they could not be drained into or connect therewith without crossing intervening lands of third parties; (3) that the assessors omitted to include in the area of assessment lands belonging to the Buffalo City Cemetery Association which will be benefited by the sewer; (4) that, in making such assessment, the assessors proceeded upon erroneous principles; and (5), that the district of assessment was not in fact defined by the assessors, but by some person in the office of the city surveyor.

In considering cases of this character, it will be well to have in mind a most salutary rule, and one which is quite general in its application, namely, that the proceedings. by which a meritorious assessment is levied for the cost of a public improvement are presumed to-be regular; and, when the objections thereto are purely technical in their character, the courts should not, in the absence of evidence of substantial injury, be overzealous to find a reason for declaring the same to be invalid. Gilmore v. City of Utica, 131 N. Y. 26, 29 N. E. 841; Voght v. City of Buffalo, 133 N. Y. 463, 31 N. E. 340. With the aid, then, of this rule and such extrinsic evidence as can be found in the record, let us ascertain what merit, if any, there is in the plaintiffs7 case.

So far as the first of the foregoing propositions is concerned, we think there is little or no opportunity for much to be said in its support; for the court of appeals has lately held in a case against the ' same defendant that the city assessors were the proper officials to determine the district of assessment for local improvements. People v. City of Buffalo, 147 N. Y. 675, 42 N. E. 344. And, although this decision is based upon a provision of the city charter which was enacted in 1891, it will be found upon examination that there is no-substantial difference between that provision and the one in operation. when this assessment was levied. Laws 1891, c. 105, §§ 144, 145; Laws 1870, c. 519, tit. 6, §§ 2, 3, as amended by Laws 1875, c. 407.

The remaining objections, however, are not so easily disposed of; for if, in fact, the plaintiffs are assessed for a local improvement, which is of no practical benefit to them, or if, in levying the assessment, the assessors arbitrarily omitted to include in the area of assessment other lands which are benefited by the sewer, or if the plaintiffs’ assessments are increased in amount by reason of the fact that the assessors have proceeded upon some erroneous principle, it is manifest that the plaintiffs are, and each of them is, substantially injured, and consequently in a position to complain. Hassen v. City of Rochester, 65 N. Y. 516; In re New York Protestant Episcopal Public School, 75 N. Y. 324; Clark v. Village of Dunkirk, 12 Hun, 181, affirmed 75 N. Y. 612; Ellwood v. City of Rochester, 43 Hun, 102, 121, affirmed 122 N. Y. 229-236, 25 N. E. 238. Upon the trial it was made to appear by evidence which was undisputed that the lands owned and possessed by the plaintiffs, which were respectively included in the assessment roll, were so situated as to derive no benefit whatever from the construction of the sewer, and that no water could be drained from them, or any of them, into the sewer, without constructing drains and ditches through intervening lands belonging to other parties, over which the plaintiffs had no control, and the learned trial court found this as an established fact of the case. In like manner, it was made to appear, and was so found by the trial court, that the Buffalo City Cemetery Association owned a large tract of land lying along the northerly side of Delavan avenue; that this land was benefited by the construction of the sewer directly in front ■of it; and that the same was wholly omitted from the assessment roll by the city assessors. By section 21 of title 6 of the defendant’s charter in force at the time of the assessment, it was provided that "no lands in the city shall be exempt from local assessments, any statute to the contrary notwithstanding.” And the charter of the cemetery association, as amended in 1886, expressly provides, that the same shall not be exempt from assessment for sewering any parts of the streets immediately in front of, or bounded on, any of the lands of the cemetery. Laws 1886, c. 240, § 3. The omission on the part of the assessors would seem, therefore, to amount to a direct violation of the fundamental law from which they derive their authority to act; and, this being the case, it is difficult to see upon what ground they can defend their action.

In this connection, however, it will be well to consider for a moment the contention of the defendant that, in determining the area of assessment, the assessors had facts before them which, it must be assumed, furnished them with a sufficient reason for omitting to include the cemetery grounds in their assessment; and it is argued that, so far as the proofs show, the cemetery may be cut off from the sewer by hills and precipices which would render connection with the same impossible; or that the assessors might have determined that a natural stream which runs through the cemetery lands furnishes adequate drainage facilities, and that their determination is consequently not subject to a collateral attack, but must be reviewed, if at all, by a writ of certiorari. Such is, undoubtedly, the rule where the irregularities complained of are formal in their character, or where the contention is simply that the amount of the assessment is excessive. Monroe Co. v. City of Rochester, 154 N. Y. 570, 49 N. E. 139. But we think the proofs upon which the decision of the trial court was based establish defects in the proceedings of the assessors which can hardly be regarded as merely technical irregularities; for they indicate.quite plainly that, in making the assessment complained of, these officers exceeded their jurisdiction, and, if so, the defect was manifestly substantial and vital.

In considering the contention that the defendants’ assessors proceeded upon an erroneous principle in making their assessment, it is to be remembered that they were furnished a guide for their action by the provision of the city charter which directs them to “assess the whole amount ordered to be assessed upon the parcels of land benefited by work, act, or improvement in proportion to such benefit” (title 6, § 3, as amended by Laws 1875, c. 407); that, in determining this question, they acted judicially; and that, consequently, their action is not open to review, unless it be made to appear that the principle adopted by them was clearly erroneous. O’Reilley v. City of Kingston, 114 N. Y. 439, 21 N. E. 1004. As respects this feature of the case, the record before us is not altogether satisfactory. Indeed, we infer from such evidence as it does furnish that the case was tried quite informally, and that in many instances presumptions were relied upon by counsel upon either side to supply proofs which were lacking; but, as' nearly as we can determine, the conclusion reached by the assessors was that lands abutting upon a street through which the sewer was laid should be assessed a certain sum per foot front, and that the remainder of the district was then subdivided, and the land in each subdivision was assessed a certain sum per square foot, regard being had, in fixing this sum, to the relative distances of the several subdivisions from the sewer, and the proportionate benefit to be derived therefrom. If this is a correct statement of the principle adopted, we are not prepared to say as matter of law that it was erroneous; but, without passing definitely upon that question, we proceed to a consideration of the remaining objection, which we think necessarily requires an affirmance of the judgment appealed from.

As has already been stated, the only source from which the assessors derived their authority to act was the city charter; and that instrument commanded them to act as a body, and consequently as a separate and distinct branch of the municipality. Moreover, their action in adopting a rule upon which the assessment was to be made was of such a nature as to require the exercise of careful, deliberate, and corporate judgment; and it could not therefore be delegated to third parties, or to any other department of the city government. Powell v. Tuttle, 3 N. Y. 396; Commissioners v. Sackrider, 35 N. Y. 154; Birdsall v. Clark, 73 N. Y. 73. It appears, however, that in this ■^articular instance the district of assessment was defined and the ssessment apportioned, not by the assessors, acting in concert, but ' y the adoption of a map prepared in the office of the city engineer by some person whose identity is not made known. In speaking of this map, one of the assessors testified, and in this he stands uncontradicted:

“That is the map we made our assessment from, and we made it absolutely as it was marked out, as these outside lines were marked. That is the rule-we follow in assessing a district. * * * We never had any meeting of the board of assessors to determine the extent of the area of this sewer district, not outside this map. * ::: * If the surrounding lands, and the cemetery association, and a hundred feet north of the present line had been left out or put in, we would never have had any reason to find fault, and would have followed it just as absolutely as we did this. We had a meeting of the board for the purpose of having the engineer with us to talk it over as to whether any part of this district could be sewered, and we took it as his judgment, absolutely, that we had got to keep within these limits.”

Upon inspection of the map thus referred to, it will be seen that whoever drew the same assumed to define the assessment district, and* thereby relieve the assessors of the duty of exercising any judgment whatever in the matter,—a privilege which they appear to have been quite swift to avail themselves of, but one, nevertheless, which placed' them in the attitude of transgressing a plain command of the charter, from which their official being was derived. And this fact of itself is sufficient, in our judgment, to overcome any presumption as to the regularity of the proceedings, and to uphold the conclusion reached’ by the learned trial court. The judgment appealed from should' .therefore be affirmed.

Judgment affirmed, with costs. All concur.  