
    THE PEOPLE on the relation of MEEKER against THE CITY OF BROOKLYN.
    
      Supreme Court, Second Department, Second District;
    
    
      General Term, February, 1873.
    Assessments.—Certiorari to Vacate.
    The court will not, on certiorari, vacate proceedings for a local improvement, for an irregularity which does not goto the entire assessment; there being a sufficient remedy for an irregularity affecting but part of the assessment, under the act of 1871 (Lems of 1871, p. 1010, ch. 483), extending to the city of Brooklyn the act of 1858, which relates to the city of New York (Laws of 1858, p. 574, ch. 333).
    Certiorari.
    Samuel M. Meeker procured the issue of a certiorari to remove to the supreme court proceedings had by the city of Brooklyn, in the matter of the assessment for the grading and pavement of Ralph Avenue. The grounds relied upon by the relator sufficiently appear in the opinion of the court.
    
      D. P. Barnard, for the relator,
    Insisted that by the act of 1859, the assesment was illegal, and that the proceedings must be reversed, with costs.
    
      Jesse Johnson, for the city of Brooklyn, respondent, moved to quash the writ.
    I. The presumption is in favor of the regularity of the proceedings of this board, and in reviewing by certiorari an assessment laid under its authority, the recitals of its proceeding will be taken as true (People ex rel. Crowell v. Lawrence, 41 N. Y., 137, 138).
    II. The motion addresses itself to the discretionary power of the court (People v. Supervisors of Livingston, 43 Barb., 232; People v. Stilwell, 19 N. Y., 531). Courts under the writ of certiorari will not set aside either assessment or taxes laid by municipal bodies because of slight or technical irregularities (People v. Supervisors of Alleghany, 15 Wend., 206; People ex rel. Underdonk v. Supervisors of Queens, 1 Hill, 195; In the matter of Mount Morris Square, 2 Id., 14, 28; approved in People v. Stilwell, supra; People v. Overseers of the Poor, 44 Barb., 467). This assessment has now been laid one year; the city’s bonds, issued as the work progressed, are maturing; to vacate the entire assessment would be disastrous to its interests. In the city of Brooklyn a new summary and ample remedy in such cases has been given by express statutes (Laws of 1871, p. 1010; Laws of 1858, p. 574). This remedy has been held- sufficient and proper by the court of appeals in a great variety of cases (See Matter of petition of Douglass, 46 N. Y., 42; Matter of petition of Eager, Id., 100). Whenever the grievance complained of is an illegal increase of the assessment, the assessment should not be vacated on certiorari, but suitors should be remitted to that remedy (Matter of Eightieth-street, 17 Abb. Pr., 324; People ex rel. Hudson v. City of Brooklyn, in the matter of Fulton street, argued before the general term of this department, in February, 1872). In that case it was conceded by the city that the expense there incurred for crosswalks, curbstones, &c., was not legally incurred, and was therefore improperly assessed. The court ordered that the writ should be quashed.
    III. By statute no assessment laid on any lot in the city of Brooklyn for such an improvement can exceed one-half the assessed value of the lot. An excess in this respect is occasionally inevitable ; and these irregularities, wherever they existed, have heretofore been promptly corrected by petition under the statute above referred to. To vacate an entire assessment therefor, would jeopard the entire local improvement fund of the city.
   By the Court.—Tappen, J.

This is an application to review the proceedings of the city authorities in the matter of grading and paving Ralph-avenue, and to have such proceedings declared defective, with the view of vacating certain assessments thereby imposed.

The petition of the property owners was for grading, curbing and guttering—paving was not stated.

The petition appears to have come to the common council and they "decided it as signed by a majority of the owners. The petition, it seems, cannot now be found, and it is not returned with the other papers sent up in response to the writ of certiorari. Jurisdiction seems to.have been acquired by the. city authorities. At all events the fact that the report of the committee set forth “that said petition is signed by a majority of the owners on said Ralph-avenue,” instead of using the exact language of the statute, ch. 213, act of 1859, to wit—“petition signed by a majority of the persons owning land situated on the line of the improvement, each of such persons being the owner of at least one building lot on said line, of the usual size of city lots,” cannot be construed to the prejudice of the petition itself on this proceeding (People ex rel. Crowell v. Lawrence, 41 N. Y., 137).

The act of 1859 was materially amended before these proceedings were taken, and they are governed by the amended act of 1861, ch. 169, which does not contain the language above quoted from the act of 1859, but does contain the provisions in substance which the committee use in their report.

Section 5 of the act of 1861 limits the assessment so that it shall not exceed one-half of the value of the land assessed, to be ascertained in a prescribed mode. The relator has a right to reduce any unlawful asssessment by application under the act of 1871, ch. 483, p. 1010, and by the act of 1858, ch. 338, p. 574.

The difficulty presented here is that while the improvement and proceedings initiated by the petition were limited to have Ralph-avenue “graded, curbed and guttered,” the common council went further and included a contract and assessment for paving with the best bank' paving stones. There having been no previous proceedings looking to “paving,” it would seem that the assessment for the cost of this portion of the work is unlawfully imposed. It may be possible to distinguish it from the cost of the other part of the work, so that the relator can be relieved of the cost of paving by the provisions of the laws above cited.

Until and unless the provisions of those statutes appear to be insufficient to correct the errors complained of, the entire proceedings and assessment should not be declared invalid, because, to the extent of curbing, grading and guttering, the proceedings and assessment are regular and valid.

The writ of certiorari should therefore be quashed, without costs.'

J. F. Barnard and Gilbert, JJ., concurred.

Writ quashed.  