
    Stebbins et al. v. Kay et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Municipal Corporations—Assessments—Apportionment—Power op Legislature.
    The legislature has power, in an act providing for laying out and improving an avenue and establishing an assessment district, to direct that the expenses shall be apportioned on such district “according to the ownership per lineal foot of frontage on said avenue. ”
    3. Same—Recitals op Certificate.
    Where it appears that the assessment was actually made according to such direction, the omission to state such fact in the certificate of the commissioners is immaterial; the commissioners not having made the assessment.
    3. Same—Collection—Warrant.
    A warrant to the collector, to which is attached the ordinary taxes and the amounts due for opening the avenue, is sufficient to cover the assessment for that purpose, though the word “ assessment ” is omitted therefrom.
    Pratt, J., dissenting.
    Appeal from circuit court, Kings county.
    
      Ejectment by Jean R. Stebbins and John C. Winslow against James ICay, Patrick R. Gains, and John Given. Plaintiffs claimed the land by virtue of a tax-deed, having purchased the land at "a sale for non-payment of an assessment for opening and constructing Gravesend avenue, in the town of Graves-end, Kings county. Trial by the court without a jury, and judgment for plaintiffs. Defendants elected to take a new trial under Code Civil Proe. X. Y. § 1525, on payment of costs, and judgment was again entered for plaintiffs. Defendants appeal.
    Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    
      Wm. J. Gay nor, for appellants. Wei ton C. Percy, for respondents.
   Barnard, P. J.

The legislature, by chapter 531, Laws 1873, laid out Gravesend avenue. This act was amended by chapter 264, Law's 1874. A district of assessment was provided for, upon notice to all persons interested, and proceedings were instituted to the end that the land-owner should be paid for the land taken. Section 12. So far the law seems to be without valid objection, under the case of Stuart v. Palmer, 74 N. Y. 183. The Graves-end act then provides for the improvement of the avenue after the report upon the opening is confirmed,-and directs that the expenses be apportioned upon the district of assessment, “estimated according to the ownership per lineal foot of frontage on said avenue.” The act in question, in the case of Stuart v. Palmer, directed this expense to be assessed upon the owner, and no notice was provided for to the owner. In the act under consideration the legislature apportions the tax per lineal foot. The sole question then under this section is whether the legislature could lay the tax and apportion it, in the law which creates the tax. The legislature has this power. In re Van Antwerp, 56 N. Y. 261. There the act imposed two-thirds of the assessment upon a district, of assessment. The case of Stuart v. Palmer disapproves of a' tax arbitrarily imposed “ w'ithout reference to some system of just apportionment.” The apportionment of the tax is part of the taxing power. People v. Mayor, 4 N. Y. 419; Litchfield v. Vernon, 41 N. Y. 123; Gordon v. Cornes, 47 N. Y. 608; Genet v. City of Brooklyn, 99 N. Y. 296, 1 N. E. Rep. 777. The court say in this case the legislature may itself fix a district of assessment, or the power may be delegated by the supreme legislative body to other official agencies, as may also the incidentals of the taxing power, such as the apportionment and distribution of the tax as between the person and property on which it is laid. The assessment and apportionment of the tax upon the land equally per lineal foot was a valid legislative act, within the principle of the cases.

The remaining objections are to the regularity of the proceedings. The case shows, and it is found, that the apportionment was according to the legislative directions. The omission of the statement of this fact from the certificate of the commissioners was unimportant. The assessment was not made by the commissioners, and, in this respect, the0ease is different from In re Cameron, 50 N. Y. 502, and In re Hearn, 96 N. Y. 378.

The warrant for collector in 1874 was sufficient. The ordinary taxes, and the amounts due for the opening of Gravesend avenue were all annexed to the warrant. The omission of the word “assessment” was not material. An order to collect the tax annexed' to the warrant would cover the assessment in question. The judgment should therefore be affirmed, with costs.

Dykman, J., concurs. Pratt, J., dissents.  