
    The People of the State of New York ex rel. Michael J. Dady, Respondent, v. The Supervisor of the Town of Gravesend, Appellant.
    Gravesend—• a new method is enacted by chapter 639 of 1895 to issue bonds to pay for local improvements in the part of that town annexed to Brooklyn—chapter 171 of 1893 repealed.
    
    Chapter 639 of the Laws of 1895, entitled “An act to provide for the payment of the cost of local improvements and bonds issued for the payment thereof in the late town of Gravesend, now the thirty-first ward of the city of Brooklyn,” established a new and complete scheme, applicable to the changed condition of things arising out of the annexation in 1894 of the town of Gravesend to the city of Brooklyn, for the issue of bonds for all local improvements (except sewers) not yet paid for in the late town of Gravesend. This statute was manifestly intended as a substitute for the method prescribed by chapter 171 of the Laws of 1893, which must be deemed to be repealed so far as the right to issue bonds for a local improvement in the town of Gravesend is concerned.
    Appeal by the defendant, The Supervisor of the Town of Graves-end, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of May, 1896, granting a peremptory writ of mandamus, commanding him to issue bonds of said town in conformity with the provisions of chapter 111 of the Laws of 1893, to an amount sufficient to defray the expenses of constructing Heptune avenue in said town, between West Fifteenth street and the westerly line of old lot Ho. 41.
    
      Alfred E. Mudge, for the appellant.
    
      James C. Church, Jerry A. Wernberg and Albert E. Lamb, for the respondent.
   Willard Bartlett, J.:

This is a renewal, on additional proofs,, of an application .which came before the General Term of this department in May, 1895 (People ex rel. Dady v. Supervisor, 89 Hun, 241).

The General Term held in substance on the former appeal that a resolution of the board of supervisors of Kings county which provided for the appointment of grading commissioners to improve Neptune avenue between West Sixth street and old lot No. 47 in the town of Gravesend did not authorize the appointment of grading commissioners to improve less than the whole of the avenue between the two points designated.

On the present application the relator produced an amendatory resolution and other papers tending to show that, before the grading commissioners qualified and entered upon the discharge of their duties, the original resolution had been in part rescinded by the board of supervisors so that in its amended 'form it provided for the grading of Neptune avenue only from West Fifteenth street instead of from West Sixth street, and the grading commissioners were appointed to grade, construct and improve only that portion of the avenue extending from West Fifteenth street to old lot 4Y. The evidence .thus indicating that .the appointment of the grading commissioners had been made in conformity with the resolution of the board of supervisors authorizing the improvement, was not before the Special Term or the General Term in the previous proceeding.

It would be necessary to consider and' determine whether this new- proof ought to change the result then reached which was adverse to the relator, were it not that he must fail for a wholly independent reason.

The relator claims' as the assignee of a contract for the grading and construction of Neptune avenue which was duly made- between one John Curran and the grading commissioners, and demands that bonds be issued to provide for the payment of the amount due him under chapter 1Y1 of the Laws of 1893, which declares that the cost of all local improvements in the town of Gravesend shall be paid in the first instance by the sale of bonds of said town. That act prescribes in much detail the manner in which sttch bonds shall be issued and sold, and requires that they shall be signed by the supervisor and town clerk and countersigned by the town treasurer. The town of Gravesend was annexed to' the city of Brooklyn by chapter 449 of' the Laws of 1894, but it is said that this statute had no effect upon the rights of parties interested in street.openings or -improvements, because the 6th section provides that “ all proceedings now pending and unfinished for the opening, regulating, grading, paving, or otherwise improving of any street or avenue in said town shall, except as otherwise provided in this act, be continued and completed in the same manner and under the same laws and with the like effect as though this act had not been passed.”

Assuming that the act of 1893, relative to the sale of bonds for local improvements in Gravesend and the provision just quoted from the Gravesend Annexation Act, taken together, would, in the absence of further legislation, warrant the issue of bonds as prescribed in the earlier statute, to defray the expenses of unfinished street construction in that town, we are, nevertheless, of the opinion that the authority to issue bonds for such improvements as that under consideration here, can no longer be found in those enactments, but must be sought in a more recent statute, to wit, chapter 639 of the Laws of 1895.

This statute is entitled “An act to provide for the payment of the cost of local improvements and bonds issued for the payment thereof in the late town of Gravesend, now the thirty-first ward of the city of Brooklyn.” It repeals all inconsistent acts and parts of acts. The 1st section "constitutes the mayor, the comptroller and the supervisor of the thirty-first ward a commission “ for the purpose of ascertaining and determining the amount of principal and interest due and unpaid upon bonds issued for local improvements, other than sewers, by the late town of Gravesend, and upon awards for lands taken for any such improvement; also upon contracts for worh done or materials furnished in a/nd about cmy such improvement, and also for and on account of all claims and expenses properly chargeable to any such improvement, including the completion of such improvements of like character now in progress and unfinished as they in their discretion may determine ought to be completed,” The 2d section provides that, “for the purpose of providing money to pay the amounts so found by the said commissioners to be due and unpaid, and of meeting the expenditures authorized by the first section of this act, the mayor and comptroller of the city of Brooklyn are hereby authorized, from time to time, upon the requisition of the said commissioners, to prepare and issue bonds of said city, to be called £ Gravesend local improvement bonds,’ signed, sealed and countersigned in the same manner as other bonds of the said city.” The proceeds of the bonds are to be paid into the city treasury, as the Gravesend local improvement fund, and are to be expended in payment of the amounts found by the commissioners to be due and unpaid on account of any of the matters mentioned in the 1st section of the act, or in payment of the amounts necessary to finish any work which they determine ought to be com- ■ pleted. The 3d section directs that the assessments heretofore or hereafter levied with the annual taxes in the late town of Gravesend for any local improvement mentioned in the 1st section, and any such assessments under $100, not levied with such taxes, .shall bé paid into the city treasury to the credit of the Gravesend local improvement fund, and shall be applied to the payment of the local improvement bonds aforesaid and the interest thereon. Finally, in the 4th section of the act, a method is provided whereby the owner of property assessed for local improvements in the town where the assessment is to be levied in installments, may procure the discharge of his property at once by payment of the unlevied installments.

We have stated the provisions of the act of 1895 thus fully in order to show that it establishes a new and complete -scheme applicable to the changed condition of things arising out of the annexation of the town to the city for the issue of bonds for all local improvements (except sewers) not yet paid for in the late town of Graves^ end. This scheme is manifestly intended as a substitute for that prescribed by chapter 171 of the Laws of 1893, and, so far as the right to issue bonds for the Neptune avenue improvement is con- j cerned, that statute must he deemed repealed. If the relator is entitled, to have any' such bonds issued, he must invoke the action of the. mayor and comptroller of the city of Brooklyn, neither of whom is a party to the present proceeding. Under this view, which we have expressed as to the effect of the act of 1895, the supervisor of the tdwn of Gravesend cannot now lawfully issue the desired bonds, and hence may not be commanded to do so. ■

It follows that the order appealed from must be reversed. It is proper to add that the point upon which this reversal is directed ¡ does not appear to have been brought to the attention of the learned judge at Special Term.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs and disbursements.  