
    John Archer, Respondent, v. The City of Mount Vernon, Appellant.
    
      Mount Vernon —power of, to change the grade of a street—when it can be done only on the petition of an interested party —• a grade may be established by usage — damages where no buildings are on the abutting land— review on the theory of the-trial court — an assessment made up of legal and illegal items.
    
    A statute, delegating to a municipality the power to charge the property of individuals with the expense of local improvements, must be strictly pursued, and any departure in substance from the formula prescribed by the statute-vitiates all proceedings under it.
    The court cannot declare to be immaterial the things which the Legislature misdirected to be done or the steps prescribed by it to be merely directory.
    Sections 180-186 of'the charter of the city of Mount Vernon (Laws of 1892, chap. 182), conferring on the common council the power, on its own motion, to establish the grades of streets and highways, only relates to streets and highways having: no established grade. The sole power of the common council to alter the grade of a city street having an established grade is conferred by section 187 of the charter which provides that such power shall be exercised on the written, petition of any party interested.
    
      Semble, that the grade of a street may he established by usage.
    
      Quaire, whether an owner of vacant land in the city of Mount Vernon can recover damages from the city for a change in the grade of the street upon which the land abuts.
    A case will be disposed of on appeal on the theory on which it was tried.
    
      Under section 180 of the charter of the city of Mount'Vernon the expense of repaving a street which has once been paved must not be assessed upon the. abutting lots, but upon the property in the city generally.
    Where a legal assessment is made uo of different items, some of which are illegal and others legal, and it is impossible to determine what portion of the assessment is made up of the legal items, the entire assessment is void.
    Appeal by the defendant, The City of Mount Vernon, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 28th day of February, 1901, upon the decision of the court rendered after a trial at the We'stchester Special Term.
    
      William J. Marshall, for the appellant.
    
      Arthur M. Johnson, for the respondent.
   Goodrich, P. J.:

This action was brought to vacate two assessments upon plaintiff’s lots on Central boulevard, in the city of Mount Vernon, part, of the assessment being for the purpose of regrading and repaving that highway and Columbus avenue. The plaintiff claimed that, the common council in taking the proceedings which resulted in the assessments did not comply with the provisions of section 187 of the charter of the city of Mount Vernon, that it was, therefore,, without jurisdiction to alter an established grade, and consequently that the assessments are void. The court at Special Term rendered judgment as prayed for and the city appeals.

We are to construe, the meaning of the words, established grade,, as used in the charter, in connection witli an assessment upon abutting property owners for a change of the grade of a highway as it. existed previously to the charter. There is abundant authority for the doctrine that a statute delegating local power to charge the. property of individuals with the expense of local improvements must be strictly pursued, that any departure in substance from the. formula prescribed by the statute vitiates the proceedings under it,, and that what the legislature has directed to be done the courts cannot declare immaterial or the steps prescribed merely directory, and so cannot hold that the omission to take any such step does not vitiate the proceedings. (Merritt v. Village of Portchester, 71 N. Y. 309; Stebbins v. Kay, 123 id. 31.)

■ The charter is chapter 182 of the Laws of 1892. Section 180 reads: “ The common council shall have power to establish the grade, construct, make, grade, regulate and repair streets, highways, sidewalks, bridges, sewers and aqueducts, or cause the same to be done.”

Section 182 provides: “ The regulating, reregulating, grading, regrading, paving, repaving and graveling of streets and highways, 'or any part thereof; the completion of the regulating and grading of all streets or highways, or of any part thereof * * * may be contracted for by the common council, and the expense thereof, except for repaving, and two-thirds of the expense of paving, shall be apportioned and assessed upon the several lots of land benefited thereby by the assessors in proportion to the benefit which the same shall derive from the improvement.”

Section 183 requires the common council to prepare and file plans, fix a district of assessment, publish notice, and make a contract for the work. Section 184 requires the assessors to report the assessment and assessment district, hear objections of interested parties, and, when proper, correct the report.

Section 186 reads : “ Whenever the common council shall determine to regulate, reregulate, grade, regrade, or pave any street or highway, or any part thereof, it may direct a curb to be set and a gutter to be made on each or either side of such street or highway, and the expense therefor shall (be assessed by the assessors with the expenses of regulating, reregulating, grading, regrading or paving such street or highway in the same report and assessment upon the lots of land only that shall front upon such street or highway, and in proportion to their respective frontages thereon.” It should be observed that this section relates only to the setting of gutters and curbs and assessing the expense thereof on abutting lots.

The sections thus quoted conferred upon the common council the power to establish the grades of all public streets and highways, but only where there was not already an established grade. This is evident from the language of section 187, which reads in .part as follows: The common council shall have power, on the written petition of any party interested, to alter the grade of any street or highway, or of any part thereof. Before determining to make such alteration it shall cause to be made and deposited in the office of the city clerk a profile showing the intended alteration, and cause to be published in one or more of the official city newspapers once in each week for two successive weeks, a notice that such. petition has been received and shell profile so deposited, setting forth their intention to make such alteration, and requiring all persons interested to present their objections, in writing, to the common council, at a time and place to be mentioned therein, not less than two weeks from the first publication thereof. The common council may, at any time within one year thereafter, by a vote of three-fourths of all its members, so alter such grade.”

Then follows a provision for ascertaining the damages to any building which has been previously erected, “with reference-to or to conform with the previously established grade.”

It is evident that, if there was not at the time of the proceedings of the common council an already established grade of the highway; avenue or boulevard, the proceedings 'were properly instituted under sections 180 to 186 ; otherwise, they should have been instituted under section 187. From the sections referred to it is manifest that it was the intention of the Legislature to confer upon the common council the power, on its own motion, to establish grades and to charge a portion of the expense thereof once only upon the land benefited thereby, but whenever there was an established grade it could be changed only on the petition of any party interested.

We are thus brought to the question whether, at the time of the passage of the charter, there was an established grade of the old White Plains post road.

In 1869 an act was passed by the Legislature (Chap. 906) “ to regulate, grade, widen, gravel and improve ” the old White Plains post road, of which the portion of Columbus avenue now in question formed a part. The act authorized the towns of Eastchester, Scarsdale and White Plains to regulate, open, grade, work and macadamize -the road. In 1872, in pursuance of that act, that portion of the road now known as Columbus avenue was graded to the width of forty-nine and one-half feet, and macadamized to the width of thirty feet, and the expense thereof was paid by the issue of bonds, which have been paid partially by taxation upon the territory then included in the town of Eastchester, the defendant’s predecessor, and partly by the city. The plaintiff’s lots were within the town of Eastchester.

In 1892 Central boulevard was graded and paved by the Corcoran Manor Association, then the owner of a large tract of adjacent land-The association, in 1894, dedicated the boulevard to the city as a public street, and such dedication having been accepted by the city, the boulevard became a pmblic .street, • Plaintiff’s lands abut this boulevard.

In 1898 the common council of the city passed a resolution adopting plans, profiles and specifications for the regulation, grading, paving, etc., of the boulevard, and fixing a district of assessment • and a contract was made for the work. Under this contract the grades of Columbus avenue- and Central boulevard were changed and the expense thereof was included in an assessment upon the plaintiff’s lots. All of these proceedings were taken under sections 180 to 186 of the charter, and not under section 187.

The court held that at the time of the resolution, contract and working, the avenue and boulevard were public streets of .the city and that each had at that time an established grade which was altered by the work in question; and that such work should have been done under section 187 of the city charter. The city contends that there was no. established grade at the time of the resolution, and that the work was properly done and the assessments imposed under sections 180 to 186 of the charter.

This difference involves the simple question whether the grades of the avenue and boulevard had been established previously to-1898. As to Columbus avenue, which was a part of the old White Plains post road, there can be no question. The act of 1869 conferred upon the commissioners therein named the power to grade the road. ' The evidence shows that they graded the road, and this - was the -establishment of grade under legislative authority. We must' assume that when subsequently the charter was passed the Legislature had in mind its previous enactments and intended to-grant to the city the power to establish grades and assess the expenses thereof upon adjacent lands, under, sections 180 to 186,-only in cases where no grade had been previously established. The power to-change established grades was defined in section 187.

It is- unnecessary to express an opinion whether the grade off Central boulevard was established by the city’s acceptance of the street in its graded and paved condition.

The case of Aldrich v. Aldermen of Providence (12 R. I. 241), cited by the corporation counsel, seems to be direct authority against his own contention. It there appeared that the highway in ques-tion had been graded by surveyors under their general authority, in 1847. At that time the board of aldermen had no power to establish a grade. This power was afterward conferred upon the board by an act of the Legislature in 1866. The court said (pp. 242, 243) that it was contended by the board that there has been no change, but merely the establishment of a grade where none previously existed, the grade created in 1847 being, as they contend, no grade in contemplation of law because not established by the board of aldermen. Their contention is that under the statute there can be no grade of any street or highway, unless it is established, in the city of Providence, by the board of aldermen * * * but we think it (the board) is mistaken in claiming that there can be no grade existing unless it lias been established, in the city of Providence, by the board of aldermen * * * After a grade has been established and houses have been built to it, in the faith that it is going to be permanent, the same evils result from changing it, by whatever authority it may have been originally established.”

The case at bar has similar conditions. Commissioners were authorized by the Legislature to grade the old White Plains post road, and they did so, just as surveyors had graded the Providence road. The subsequent grant of authority to the common council of the defendant, to “ establish the grade,” did not confer authority to alter a grade and assess the expense otherwise than is provided in section 187, just as the Rhode Island court said that to hold that at the time chapter 310 of the Laws of 1859 was passed (that being an act to give damages for a change of grade), street or highway grades could exist only when established by the aldermen, would have rendered the chapter utterly nugatory.

In Farrington v. City of Mount Vernon (166 N. Y. 233), also-cited by the corporation counsel, the court held that sections 180 to 186 conferred upon the city the power to establish the grade and that the proceedings were properly taken thereunder. Then follows this language differentiating that case from the one at bar: Manifestly, that section (§ 187) has no application to this case, where the defendant has constructed or repaired one of its streets in pursuance of the power conferred by sections one hundred and eighty and one hundred and eighty-two of that act. The change that was made in the grade of North Fourth avenue was.to level its surface only so-far as was necessary to enable the city to properly construct the street. There was no proof that a/ny grade had been previously established.”

Aside from the question whether, the gradé was established under the act of 1869, we have authority in Folmsbee v. City of Amsterdam (142 N. Y. 118) as to what constitutes establishment of a grade and that a grade can be established by usage. In that case Éabl, J., said (pp. 124, 125): “ It is said, however, on the part of the defendant, that the grade of this ¡street had never been previously established, and, therefore, that this was not a case of a change of grade. We think, upon the undisputed facts in this case, that the grade of the street had become established. It had been used as a public street for more than forty years. Houses were built compactly on both sides, conforming to the grade of the street as it then existed, and the street was graded and improved by the city and its predecessor, the village of Amsterdam. Sidewalks had been built' under direction of 'the municipal authorities upon grades given by them, and thus it is clear that the grade had become established by long usage, and by the acquiescence and recognition of the village and the city. The claim that the grade of a street could become established within the meaning of the statute under consideration only by a formal ordinance of the municipality finds no sanction in the language used. ■ There are many streets in cities and villages the grades of which have not been established by ordinances. They have either been left in' their natural condition or worked and improved from time to time by the municipal authorities without the formal establishment of any definite grade; and when upon such streets buildings are erected conforming to the existing grade, if that grade be changed, the mischief arises for which the' provision in section 95 was' intended to provide. Without referring minutely to the evidence in this case, we think sufficient appears to show that the grade had become established prior to 1887 when the defendant caused the change of the grade of which the plaintiff complains. There are precedents for the conclusion that the grade of a street may become established by usage, acquiescence and recognition without any formal ordinance on the part of the municipality. (McCall v. Village of Saratoga Springs, 29 New York State Reporter, 699; Bartlett v. Village of Tarrytown, 30 id. 341; O’Reilley v. City of Kingston, 114 N. Y. 439; Whitmore v. Village of Tarrytown, 137 id. 409.) Therefore, as there was no petition for changing the grade of this street as required by the section of the statute referred to, the defendant was wholly without authority to inaugurate the change, and its interference with the street was wrongful and illegal, and it became responsible to the plaintiff for any damages thereby caused to his property.”

We thus reach the conclusion that when the proceedings of the common council were instituted there was an established grade on Columbus avenue, and consequently that the proceedings were illegally taken under sections ISO .to 186, and could be taken only under section 187. It is not a mere question of regularity but of result, according to the sections under which such proceedings are instituted. Under section 187 the owners of buildings have certain rights to compensation. Under the other sections the expenses may be assessed upon the lands benefited by the improvement, and under the proceedings the plaintiff’s lots .have been assessed! Neither does it matter that the plaintiff is not the owner of a building. His .lots have been burdened with an unauthorized assessment under proceedings illegally instituted.

The question is not whether an owner of abutting land on which there is no building can have damages of the city. Probably he could not. The point that there was no building on the plaintiff’s land Avas not raised at the Special Term and it is too late to raise it now. The case was tried on the theory that there was no change of any established grade, and we must dispose of the appeal on that theory. (Sears v. Wise, 52 App. Div.118 ; Drucker v. Manhattan Railway Co., 106 N. Y. 157.) If the point- had been raised it might have been met possibly by "proof that there Avere buildings along the line of the avenue or boulevard, but we are without evidence upon the subject.

Another objection to the assessment is that it includes the expense -of repaving Columbus avenue. .That highway", while it was the old post road, was paved pursuant to the act of 1869. The clear intention of section 180 is that where a road has once been paved, the expense of repaving it shall not be assessed upon abutting lots alone but upon the property in the city generally. The inclusion of this expense of repaving, was, therefore, illegal.

It was held in Poth v. Mayor, etc. (151 N. Y. 16), that where it appears that an assessment, sought, to be enforced against a property owner, is made up pf different items or ■ elements, all blended together, some of which are illegal and others legal, he may resist the payment of the whole, in the absence of some statute which ■modifies the general rule.

The Special Term found that the portion of the expenses for the repaving of Columbus avenue and. the alteration of grades was included in the assessment upon the. plaintiff’s lots (and this related to the grade of both avenue and boulevard), and formed a substantial part thereof, but that as it did not appear what part, arid as there' was no .provision in the charter for the modification or reduction of such assessment, the entire assessment was illegal and void.

We, therefore, reach the conclusion that the judgment is correct and should he affirmed.

All concurred.

Judgment affirmed; with costs.  