
    Bacon v. Nanny et al.
    
    
      (Supreme Court, General Term, Second Department.
    December 10, 1889.)
    Municipal Corporations—Sewers—Construction op Statute.
    Under Laws N. Y. 1870, c. 291, tit. 3, § 3, subd. 25, authorizing trustees of villages-“to construct sewers, culverts, and drains, ” as amended by Laws 1889, c. 186, authorizing them to “construct culverts and drains, ” and “to cause all necessary sewers to be built, ” the expense thereof to be assessed on the village at large, so far as the sewers crossed streets or ran along village property, and the remainder on the lots fronting on the sewers, which should not be constructed except on the petition, of a majority of the property owners, village trustees can construct sewers only on the conditions precedent prescribed by the latter statute.
    Appeal from special term, Orange county.
    Injunction by Henry Bacon against Harrison W. Manny and others, president and trustees of the village of Goshen. Defendants appeal from an order continuing until final judgment a preliminary injunction restraining defendants from incurring any liability or issuing any bonds on the credit of the village in carrying out a certain plan for providing sewers for said village.
    
      Harrison W. Nanny, for appellants. Joseph Merritt, for respondent.
   Cullen, J.

The question for decision in this case is whether the village-of Goshen, a village incorporated under the General Statutes, had the power to construct a general system of sewers at the expense of the village at large, •and issue bonds for the expense to be incurred. Under the general act, (chapter 291, Laws 1870,) by subdivision 25, § 3, tit. 3, the trustees of villages were empowered “to construct sewers, culverts, and drains.” No special provision was made as to assessing the expense on adjacent property. This is the only grant of power to construct sewers to be found in that statute. This section was from time to time amended. Chapter 78, Laws 1874; ■chapter 242, Laws 1875; chapter 281, Laws 1878. These amendments directed the cost of sewers to be assessed on the adjacent property. In 1885 (chapter 236) this subdivision was again amended so as to read substantially in the same form in which it was originally enacted. In 1887 (chapter 513) the section was again amended by adding to it subdivision 29. That subdivision authorized the president and trustees “to provide a proper and sufficient drainage and sewerage for the village, and to that end” to acquire by purchase or condemnation land or streams necessary for that purpose. No provision is made for the expense of such lands or streams. As the law stood in 1885, we think it clear that the trustees were empowered to construct sewers at the expense of the village. Such sewers were a general charge, for the reason that there was no provision to the contrary. The amendment of 1887 did not create a new system of general sewers, as distinguished from local sewers, for there was no system of local sewers at the time of the enactment ■of that amendment. It relates solely to the acquisition of lands or watercourses for the sewers, and grants power in that respect which had not theretofore been possessed by the trustees. In 1889 (chapter 186) subdivision 25 was again amended. The general authority is given to “construct culverts ■and drains,” (sewers being omitted,) and “to cause all necessary sewers to be built, ” the expense thereof to be assessed on the village at large so far as the sewers crossed streets or ran along village property, and the remainder on the lots fronting on the sewers, it is claimed that this amendment relates only to what are termed “local sewers,” and that subdivisions 25 and 27 contemplate different systems of sewers. There is nothing in the history of this legislation to justify the claim. As already seen, when subdivision 29 was enacted all sewers were a general charge, and hence, until the act of 1889, there could not be two systems, and the enactment of that amendment cannot affect the construction of the law of 1887. The last-named law does not authorize the construction of sewers in terms. That power was already granted ■toy subdivision 25. In the clause of the statute granting the general power, sewers have been stricken out by the act of 1889, leaving the authority to construct culverts and drains unaffected, while sewers are not to be constructed under the provisions of the act except upon the petition of the majority of the property owners, and the expense thereof to be charged as before mentioned. We think this the only authority now existing under the general statute for Incorporated villages to construct sewers, and that it can be exercised only upon compliance with the conditions precedent prescribed by the state. The right to construct drains at the general expense still remains, and, if it be ■necessary for the public health that a general system of sewerage should be built, that can be accomplished by proceeding under the general act for the ■construction of sewers in villages. Chapter 375, Laws 1889. The order appealed from should be affirmed, with @10 costs.  