
    Cyrus Cleveland, App’lt, v. The City of Yonkers, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889,)
    
    Municipal Cobpobations—Extension of sewers—Assessment—Charter city Yonkers, Title 7, §§ 16, 17.
    Where the state has granted lands under water in front of the mouth of a sewer, and unless the old sewer is extended it will become useless and dangerous, as the grantee has filled in the space in front to the river bank, the extension thereby rendered necessary amounts to a construction of a section of the sewer, within the provisions of the city charter, by which the construction, extension and enlargement and repairs of sewers are to be paid by an assessment upon the property benefited, and such work cannot be classified as repairs.
    Appeal from an order of the special term, Westchester county.
    The action was brought to sustain defendant’s power, imposing or confirming an assessment for work on a sewer.
    The following is the opinion of the special term:
    Barnard, P. J.—The assessment in question is justified under title 7, § 17, of the charter of the city of Yonkers. By section 16 of the same title, the construction, extension, enlargement and repair of sewers were to be paid for by an assessment upon the property benefited. If the enlargement in question had been made at the same time with the Ashburton Avenue sewer, which ended at low-water mark, there would have been no question. This extention is made necessary because the state has granted the lands under water in front of the mouth of the sewer; and, unless the old sewer is extended, it will become useless and dangerous, as the grantee from the state has filled in the space in front to the channel bank of the river. The power to extend sewers is a continuing power, and therefore the case does not fall within the cases cited, where the power had been spent when one assessment had been made. The length of time intervening between the construction of the Ashburton Avenue sewer and the grant from the state gives no right what ever to the city of Yonkers as against the state and its grantees.
    The motion for an injunction should, therefore, be denied, with ten dollars costs.
    
      George C. Hart, for app’lt; Joseph F. Daly, for resp’t.
   .Dykman, J.

—A careful examination discloses no errors in the proceedings for the prolongation of the sewer in Ashburton avenue.

The extension amounted only to a construction of the sewer in sections. It was all new work and cannot be ■ classified'with repairs in any way or by any construction. We concur entirely with the views of the judge who made the order appealed from, and the order should be affirmed ■upon his opinion.

Order affirmed, with ten dollars costs and' disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.  