
    THE STATE, ELKANAH I. RANDOLPH AND ISAAC STELLE, PROSECUTORS, v. THE INHABITANTS OF THE CITY OF PLAINFIELD. THE STATE, NATHAN H. RANDOLPH, EDWARD F. RANDOLPH AND JONATHAN CLAWSON, PROSECUTORS, v. THE INHABITANTS OF THE CITY OF PLAINFIELD.
    When a legal and illegal assessment for benefits are so blended that they cannot be separated, the whole assessment will be set aside— but application may be made for a re-assessment.
    Oil certiorari to review the ordinance, reports, resolutions, of proceedings, in respect to the grading of Park avenue, and sidewalks, from Eighth street to the city lines, &c.
    Argued at February Term, 1875,
    before Justices Woodhull , Van Syckel and Scudder.
    For the plaintiffs, W. J. Magie.
    
    For the defendants, W. H. Maxon and G. P. Suydam.
   The opinion of the court was delivered by

Scudder, J.

The charter of the city of Plainfield (Laws, 1872, p. 1134, § 14,) gives to the common council the power to pass ordinances for grading streets, &c., and for grading sidewalks, &e., in said city.

Section 60, page 1159, enacts, that all expenses for improvements in grading streets, and for grading sidewalks, where such grading is included in a contract for grading the street adjoining such sidewalk, shall be assessed upon and paid by the lands and real estate benefited by the same, in proportion to the benefit received.

Section 55, page 1156, provides for an assessment where the owners shall neglect to comply with the ordinance directing a street to be paved or macadamized, or the sidewalk curbed, graded, &c.; but there is no provision in the charter for an assessment where the owner neglects to comply with the ordinance to grade the street in front of his lands, and the city contracts for the work.

The ordinance in this case, adopted August 18th, 1873, enacts, that the owners of ground fronting on Park avenue, from Eighth street to the city line, shall grade the road bed of said avenue, and the sidewalks along the same, to the established city grade; and further, that upon the neglect or refusal of said owners to comply with the provisions of the ordinance by the 1st day of October then next, that the city council should cause such work to be done and assessed for as the city charter provides.

The work was done by the city, under contract with Campbell & Hand, upon advertised proposals.

December 22d, 1873, the common council, by resolution, appointed three commissioners to assess the cost of grading Park avenue, as per terms of contract entered into by the street committee. The report of the commissioners, which was confirmed by the common council, assessed a portion of the entire expense of grading the roadway and sidewalks upon the lands of the prosecutors at the rate of thirty-seven cents per front foot.

This uniting the assessment for the two kinds of work— the grading of the road bed and the grading of the sidewalks — annuls the entire assessment. There is no provision in the charter for assessing the expenses of grading the road bed, and making it a charge upon the abutting lands. The respective assessmént and expense of grading the two kinds of work cannot be separated, and the entire assessment must be set aside, with costs.

Application may, however, be made for re-assessment.  