
    John Copcutt, Resp’t, v. City of Yonkers, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    1. Municipal Corporations—Local Improvements.
    A resolution of the common council, directing the laying out and opening of a street, is fatally defective, if it fails to specify according to which of two plans and descriptions, then on file in the city clerk’s office, the street is to be laid out.
    2. Same.
    This defect cannot be obviated by the action of the city clerk in thereafter attaching to the resolution a map not before the common council at the time of their action, nor by the paroi evidence of the aldermen as to which map they had in mind.
    
      3. Same.
    But such defect will not justify the interference of a court of equity.
    4. Same—Injunction.
    An improvement may he enjoined, at the suit of an owner of land assessed, as creating a cloud on his title, where other land henefltted is not included in the assessment district.
    Appeal from a judgment in favor of plaintiff.
    
      Ralph E. Prime, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the special term enjoining the defendant from laying out and opening a street through a tract of land owned by the plaintiff, and from fixing a district of assessment for such improvement We agree with the special term that the resolution adopted by the common council directing the improvement is fatally defective, in failing to specify according to which of the two plans and descriptions then on file in the city clerk’s office the the street is to be laid out This defect could not be obviated by the action of the city clerk in thereafter attaching to the resolutions a map not before the common council at the time of their action, nor by the parol evidence of the aldermen as to what map they had in mind. The case in this respect wholly differs from that of Lyth v. City of Buffalo, 48 Hun, 175 ; 15 St. Rep. 477. But, granting this proposition, such defect did not justify the interference of a court of equity. Mooers v. Smedley, 6 Johns. Ch. 28; Mayor, etc., of Brooklyn v. Meserole, 26 Wend. 132; Guest v. City of Brooklyn, 69 N. Y. 506. The remedy must be had at law, and the objection can be raised in any legal proceedings taken to open a street.

But the objection to the district assessment presents a different question,—a question not free from doubt It appears that, some time past, the city constructed a sewer through the plaintiff’s land, and that the easement for such purpose was obtained by condemnation, the plaintiff being paid $10,000. The new street is laid out over the line of the sewer. By defendant’s charter (§ 2, chap. 184, tit. 7, Laws 1881), the expense of improvements of this character “shall be assessed and be a lien upon the property benefited thereby according to such benefit.” By section 4, same title, the common council is required, at the time of ordering any improvement, to fix a district of assessment for the expense of the improvement. The district fixed in this instance is confined wholly to plaintiff’s land, excluding from it some land that, under any practice that has come before us would form part of an assessment district. The improvement was ordered, not on the petition of the property owners, but by a unanimous vote of the aldermen, under a provision of a charter authorizing such action. On the trial of this action, it was proved by the evidence of the aldermen, and the trial court so found, that the fact of the previous award was stated at the meeting of the common council, and by the direct admission of some of the aldermen themselves that the action of the board in fixing the assessment district was based upon the ground that the plaintiff had already béen paid enough for his land, and that hence the assess-

ment should be wholly imposed upon him. That this action of the common counsel proceeded from improper considerations is unquestionable. What award that plaintiff should receive for the additional easement was, under the constitution, to be determined by commissioners or a jury. Under the statute, the assessment was to be levied according to benefit. The fixing of a district is as much a part of the assessment proceedings as the action of the assessors in apportioning the expense on the various lands within the assessment district Where the assessors adopt an erroneous rule in apportioning such expense, and fail to assess lands properly liable to assessment, the assessment is void; and, as sucli defect will not appear on the face of the proceeding, an action in equity would lie to restrain the creation of a cloud on plaintiff’s title. Clark v. Village of Dunkirk, 12 Hun, 181, affirmed 75 N. Y. 612. We do not see why the same rule should not apply in the case at bar. We assert no power in the court to review the discretion of the common council or a determination made by it in good faith under the powers confided to it by statute. ' But the power granted by the statute was to fix an assessment district according to benefits. This the common council has failed to do. It is very rarely that the fact that the common council in making its determination has not proceeded according to law can be proved; but when the fact is proven, we think redress against such action may be obtained.

The judgment appealed from should be affirmed, with costs.  