
    John Mitchell, App’lt, v. Edward Lane, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    
      1. Municipal corporations—Assessments.
    Where a statute authorized commissioners to open, enlarge and straighten: one drain and they open two, the inclusion in the assessment of the expense for the second drain vitiates it and renders it absolutely void, and a sale under such assessment is a nullity and confers no title on the purchaser.
    3. Ejectment—Extra allowance.
    Defendant induced plaintiff to purchase his land at a sale for such void assessment, promising to repay the bid. As he did not do so plaintiff brought ejectment, in which defendant recovered. Held, that under the circumstances defendant was not entitled to an extra allowance.
    Appeal from judgment in favor of defendant.
    Action of ejectment.
    
      H. S. Hustis, for app’lt; Schlosser & Wood, for resp’t.
   Dykman, J.

On the 24th day of April, 1866, the legislature of the state of New York passed a law appointing three commissioners who were named in the act, for the purpose of opening, enlarging and straightening a drain in the town of Fishlcill, which was particularly described.

The commissioners executed the work and performed their duties specified in the law, and in ■ addition thereto they cut and dug a lateral ditch, not specified in the law, and included the expense of both in the assessment which they made for such expense under the statute.

The lands of the defendant were sold under the assessment, and purchased by the plaintiff, who received a conveyance therefor from the commissioners, and now brings this action of ejectment for the recovery of the land.

The powers conferred upon the drainage commissioners by the statute were qualified and special, and it became necessary for the plaintiff, who claims title to the premises under a conveyance from them, to show that they had in all things followed the statute without exceeding or violating its provisions.

They could take no power or authority by implication and proof of their strict pursuit of the statute was an essential prerequisite to his recovery.

Instead, however, of producing proof of strict observance of the statute, it appeared that the commissioners exceeded their power, and .opened two ditches instead of one.

The statute authorized them to open, enlarge and straighten one drain and they opened two, and included the expense of both in their assessment.

Within well settled rules of law the inclusion of the expense for the second ditch in the assessment levied by the commissioners .vitiated the same and rendered it absolutely void.

The assessment being thus void the sale under it was a nullity and conferred no title upon the purchaser.

It appeared from the record before us that the proceedings of those commissioners were brought before the supreme court by certiorari for review in the year 1871, and that their proceedings were adjudged to be regular and valid, and that adjudication is now set up as conclusive and binding upon this court in this action.

We think there was some misconception of the facts induced by the returns in that proceeding, for the decision is plainly erroneous, and we cannot follow or Ire led by it.

There was an additional allowance to the defendant in this action of $100, which was excessive in any view; five per cent, upon the highest amount claimed would amount to only $29, but we think there should have been no allowance.

The defendant occupies quite an ungracious position. His land has received the benefit of the drainage and we have no difficulty in finding that he induced the plaintiff to buy in the land for him, and promised to repay him his bid.

The judgment should be modified by striking out the additional allowance of $100 and, as so modified, affirmed, without costs to either party on this appeal.

Pratt, J., concurs; Barnard, P. J., not sitting  