
    Eva E. Govers, Plaintiff, v. City of New Rochelle, Defendant.
    (Supreme Court, Westchester Special Term,
    May, 1916.)
    City of Hew Rochelle — charter of, § 421 — fixing of district of assessment by common council — municipal corporations — actions — Code Civ. Pro. § 1638.
    Under section 421 of the charter of the city of New Rochelle its common council in fixing a district of assessment to cover one-third of the expense of laying out a new street, the city to' pay the balance, is under obligation to establish a district of assessment which shall contain all the real property which, in the judgment of the common council, is likely to be benefited by the improvement.
    In an action brought under section 1638 of the Code of Civil Procedure to cancel an assessment on plaintiff’s property on the ground that it was illegal and .void because made in excess of the jurisdiction of the common council in creating the district of assessment, it will he presumed that the common council did establish a district of assessment containing all the property likely to' be benefited by the improvement and, in the absence of fraud or bad faith, its action is conclusive.
    Action to cancel assessment for opening Division street, in the city of New Rochelle.
    Michael J. Tierney, for plaintiff.
    Edward W. Davidson, Corporation Counsel, for defendant.
   Young, J.

The plaintiff brings this action under section 1638 of the Code of Civil Procedure claiming that an assessment levied by the defendant against her property to defray a portion of the expense of laying out, opening and grading Division street, between Huguenot and Main streets, is ilegal and void because made in excess of the jurisdiction of the council of the city of New Rochelle in creating the district of assessment. Pursuant to the resolution of the council two-thirds of the expense of laying out the new street was assessed upon all the property within the city limits and paid for by a bond issue; the remaining one-third was assessed against property immediately fronting on the new street, and the plaintiff’s contention is that this assessment is illegal and void because the council failed to include other property in the immediate neighborhood of the street which was plainly benefited by the improvement. The improvement was made pursuant to the provisions of the city charter, and section 421 of said charter provides as follows:

“Power of council as to street improvements.— The council may by resolution provide for the laying out, opening, extending, widening and grading of streets, and for the construction of drains and culverts. The expense and cost of all street improvements authorized by the council as provided in this section shall be borne by the owners of the lots or parcels of land benefited thereby, and the council may establish a district of assessment which shall contain all"the real property which in its judgment is likely to be benefited by such improvements. No such improvement shall be made or contracted for until the estimated expense has been apportioned and assessed upon the property to be benefited thereby, and such apportionment and assessment has been confirmed according to the provisions of this act; but the council may authorise the making of any of the improvements mentioned in this section at the expense of the city at large, if such estimate of cost and expense does not exceed the sum of five thousand dollars; or in case the council shall deem it equitable, it may by resolution provide that a portion of the entire expense, stating the proportion in such resolution, shall be charged against the city at large and the remainder assessed as herein provided.”

In my opinion, according to the provisions of the above section, the council is obliged to establish a district of assessment which shall contain all the real property which in its judgment is likely to be benefited by the improvement, where a portion of the entire expense is to be assessed, as well as in the case where the entire expense of the improvement is to be apportioned and assessed upon the property to be benefited. In other words, in the case of this improvement, I think the council in fixing a district of assessment to cover one-third of the entire expense of the improvement was under the obligation to establish a district of assessment which should contain all the real property which in its judgment was likely to be benefited by the improvement.

I think, however, it must be presumed that the council in establishing the district of assessment in connection with this improvement exercised its judgment, and did establish a district of assessment containing all the-property likely to be benefited by the improvement. In doing this the council plainly performed a legislative act, and its action is conclusive in the absence of fraud or bad faith. Matter of Cruger, 84 N. Y. 619; Genet v. City of Brooklyn, 99 id. 296; Hoffeld v. City of Buffalo, 130 id. 387; People ex rel. New York, West. & B. R. Co. v. Waldorf, 168 App. Div. 473; affd, 217 N. Y. 96. In Matter of Cruger, supra, "Judge Finch said: “ The objection to the principle upon which the assessors acted in making their assessments for benefit is equally unavailing. (Matter of Eager, 46 N. Y. 109.) The conclusion reached by them was a matter of judgment on 'their part. It was their duty to judge. They had opportunity to examine personally. Elements went to the formation of their conclusions, which cannot be placed before us. We cannot say their determination was erroneous, even if it was exposed fully to our review. To criticise the results of their judgment would practically require that we should ourselves try every question of value and of benefit, and that too upon evidence different from that before the assessors. Their error of judgment, if in fact it existed, was not an error in the proceedings, and not the subject of our review under the statute. A similar answer disposes of the objection that the area of the assessment for benefit was too small. The law committed that question to the assessors and the board of revision. They acted upon such knowledge and observation as they had, and such proof as was presented. They had a discretion to exercise in this respect which we cannot review. The petitioner is in substance asking us to substitute the opinion and judgment of his witnesses as to the area of benefit, for that of the officers to whom it was committed by the statute. (Matter of Church street, 49 Barb. 455.) ”

I have carefully examined all the cases cited upon ■the brief submitted by the plaintiff’s attorney. It seems to me that in none of them are the facts similar to those in the case under consideration. The facts shown present rather a hard case for the plaintiff. The principal sum of the assessment levied for the improvement against her property amounts to $1,517.38. Her property as a whole was assessed at the time for $2,040. The question as to whether the assessment of the cost of this improvement upon the several parcels within the area was properly apportioned by the assessors, is not in issue here, and under the authorities as I view them the court is powerless to relieve the plaintiff in this action.

Judgment should, therefore, be for the defendant, dismissing the complaint upon the merits, but without costs.

Judgment for defendant, without costs.  