
    The People of the State of New York ex rel. Charles Holtzmann and Theodore Arnstein, Relators, v. The City of Schenectady, Respondent.
    Third Department,
    December 30, 1909.
    Municipal corporations — assessment for improvement, city of Schenectady — effect of refusal of common council to confirm assessments — power of subsequent common council — remedy of landowner aggrieved.
    Where a majority of the common council of the city of Schenectady, pursuant to section 245 of the former charter, defeated a resolution to confirm an assessment for a local improvement without setting it aside or referring it to the, same or to new assessors, there was no final determination and the matter remained as unfinished business. . -
    Although, subsequent to the refusal to confirm the assessment, the charter was repealed and the city adopted the uniform charter for cities of the second class which contains similar provisions as to the confirmation of assessments, the new common council, although composed of different persons, may reconsider the matter and confirm the assessment.
    
      It seems, that if the result of such confirmation is .unfair to property owners, and if they are prejudiced by not having notice and a hearing before the confirmation, their remedy is by appeal.
    Certiorari issued out of the Supreme Court and attested on the 10th day of August, 1908, directed to The City of Schenectady, commanding it to certify and return to the office of the clerk of the county of Schenectady all and singular the proceedings had in the matter of assessing the relators for a local improvement.
    
      Miles R. Frisbie, for the relators.
    
      William P. Nolan, Corporation Counsel, for the respondent.
   Kellogg, J.:

In April, 1908, the common council of the city confirmed the report of the assessors which was before the common council December 10,1907, made the assessments therein recommended and ordered the same to be collected by the city treasurer. Under the stipulation upon which this case is heard we are to determine whether the action of the common council, December 10,1907, with reference to that, report, was a final determination with reference thereto so that the board of 1908 had no jurisdiction or power to take action wi-tli reference to it.

We may assume that the report of the assessors recommending the assessment roll was properly before the council for its action December 10, 1907. Section 245' of the city charter (Laws of 1903, chap. 371) then in existence provided : “ The common council may thereupon [after the notice and hearing] confirm such report, without any alterations, or with such alterations therein as. they may deem proper, of may set the same aside an'd refer the matter to the same or new assessors to be appointed by the common council, who shall proceed thereupon in the manner above provided.- The confirmation of such report by the common council shall be final and con • elusive unless an appeal be taken therefrom as hereinafter provided.”.

A resolution was then offered to the council that the report of the assessors be and hereby is in all things confirmed;- that the assessment be made as recommended in the report and that the city treasurer- proceed with the collection' of the assessment in the manner prescribed by law. A vote taken upon the resolution resulted in seven ayes and eleven nays. Do further-proceeding was taken with reference to the matter until April 23, 1908, when it was moved and carried that the Van Vranken avenue matter be taken from the table and -adjourned to: April twenty-eighth, at which latter date the council voted to reconsider the vote of December 10, 1907, and.then -passed the resolution under review. Van Vranken avenue had been widened, and the proceeding taken there for. would not end until the report of the assessors,-which was duly before the council, was confirmed with or without alterations,.or set aside, and if set aside the duty rested upon the council to refer the matter to the same of new assessors for their consideration. - A refusal at the time to approve of the report did. not set it aside or necessarily pass upon its merits.. It only shows that the council at that time was not ready to approve of the. report, levy, the assessment and cause it to be collected. Perhaps it was deemed wise to give it further consideration, to consider contemplated alterations, ' or for some reason to delay action upon it to some other time. The. vote did not take the report from the council but simply left it as unfinished business. „

Chapter 756 of the Laws of 1907 repealed chapter 371 -of. the Laws of 1903, which was the charter of the city, and took effect January 1, 1908, and the common council whose action is under review was elected pursuant to the act of 1907 and the uniform charter of cities of the second class (Laws of 1906, chap, 473), and the personnel of the common council was substantially changed. The repeal of the city charter, and the fact that the city became a city of the second class, did not alter the character of the report or change the fact that the proceeding for widening Van Vranken avenue, had proceeded up to such report and could not be continued further except by the confirmation or setting aside of such report.

The common council of a city is a continuous body. (People ex rel. N. Y. C. & H. R. R. R. Co. v. City of Buffalo, 123 App. Div. 141.) The provisions of the law of 190J with reference to this subject are substantially the same as those of the former charter. The law of 1907 expressly provided, at section 228, that its provisions, so far as they are substantially the same or cover the same subject-matter as those of a law thereby repealed, shall be construed as a continuance of such repealed law, modified or amended according to the language employed, and not as new enactments. The fact that Schenectady became a second class city and was operating under a new charter is, therefore, immaterial, as it was in effect the same city operating under substantially the same law so far as the matter under consideration is concerned.

It is unnecessary to consider the effect of the vote to take the Van Vranken avenue matter from the table and to rescind the vote of December tenth. Such action was probably unnecessary, as the resolution remained unfinished business before the council and the vote of December tenth at most ivas a vote that the council was not at that date prepared to confirm the report.

The old and the new charter alike contemplate that after the report of the assessors is filed notice shall be given to all parties interested. Such notice was given of the hearing which resulted in the action of December tenth. Considering the fact that a long time had elapsed; that the present members of the common council did not hear the oral claims of the parties contesting such report, but only had before them the written objections filed, it would have been equitable and proper that notice be given that the matter was to be considered by the council of 1908. But as we construe the stipulation upon which this case is heard, it .turns upon the question whether final action had been taken in December, 1907, upon the report so as to deprive the new board of power to act thereon, and it isj therefore, unnecessary to consider the question whether the relators were prejudiced by a failure to receive notice of the proposed action by the new council. The statutory notice to give jurisdiction to the council to act had been duly given. If for any reason the result is unfair towards the relators, the statute gave them a remedy by appeal, and if they were prejudiced by not having a rehearing, that matter would be proper for consideration upon such appeal and is not now before'ns for consideration. The determination under review should, therefore, be confirmed, with fifty dollars costs and printing disbursements.

Determination unanimously confirmed, with fifty dollars costs and disbnrsements.  