People ex rel. Rudiger v. Earl — 26 N.Y.S. 382

Majority

p. 382

(74 Hun, 81.)

PEOPLE ex rel. RUDIGER v. EARL et al.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Municipal Corporations—Street Assessments.

Where two successive reports of commissioners appointed to assess the cost of a street improvement have been disapproved by the village trustees, and a new commission appointed, the trustees cannot vacate the appointment of the new commission, and adopt the second report of

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the first commission, but they must continue to send back the reports or appoint successive commissions until a satisfactory result is reached; Laws 1887, c. 544, tit. 10, § 20, providing that where the report is not satisfactory the trustees may “send it back to the same or other commission.” Pratt, J., dissenting.

Certiorari by Joseph H. Rudiger to review the action of Frederick Earl and others, trustees of the village of Mt. Vernon, in assessing relator’s land for the grading of Sixth street.

Reversed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Robert P. Getty, Jr., and Chas. F. Moody, for petitioner.

David Swits, for respondents.

The full record of the proceedings which preceded the appointment of commissioners to assess the cost of improving Sixth street, in the village of Mt. Vernon, is not returned. The regularity of the appointment of Commissioners Adee, Pendergrast, and Toumine must be assumed. They were required to take an oath that they would fully and faithfully discharge the duty devolved upon each of them by the appointment. They did take such oath, and the appointment was complete. The first report was disapproved of by the trustees, and sent back for correction. This was proper, and according to Laws 1887, c. 544, tit. 10, § 20. A second and corrected report was made and returned to the trustees. This report was unsatisfactory to the trustees, and a new commission was appointed. This was in accordance with legislative power given by section 20 to “send back to the same or other commission.” The new commission made an appraisal, and the trustees refused to confirm this appraisal, vacated the appointment of the new commission, and adopted the second report and appointment of the first commission. By the appointment of the new commission the second report of the first commission was abrogated, and the only way to pursue legally was through the new commission, or by successive commissions until a satisfactory result was reached. The proceedings should therefore be reversed, with costs and disbursements.

DYKMAN, J., concurs.

(dissenting.) We see no valid reason in the papers ■submitted for setting aside the report of the commissioners in the matter of grading Sixth street in the village of Mt. Vernon. The first objection urged by the relator is that the commissioners did not take the oath of office required by law which is negatived by the returns, so that this objection may be dismissed as in no respect true. The same may be said of the objection that the commissioners were not freeholders, and not interested in or affected by said improvement. It clearly appears that they were each freeholders, and disinterested, by their several oathsj which is sufficient proof until some evidence to the contrary appears. The sending back of the original report of the commissioners for correction was entirely proper, and within the jurisdiction of the

Dissent

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board of trustees. The attempt to appoint new commissioners was-a nullity, as their report was never confirmed. The only objection which seems upon its face to be of any moment is, a portion of relator’s land lies outside the village limits; but this statement, like-others in the petition, is not true. The return shows that the district of assessment was fixed “from Second avenue to the eastern boundary of the village of Mt. Vernon,” beyond which it could not extend. This limited the power of the commissioners, and it nowhere appears in the return that they exceeded that limit. The assessments, so far as appears, are upon lots fronting on Sixth street, within the village limits from Second avenue to eastern boundary. The suit should be quashed, with costs and disbursements.