In re Fifth Avenue — 36 N.Y.S. 141

Majority

p. 141

In re FIFTH AVENUE. In re KEEGAN.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Headnote

1. Municipal Corporations—Street Assessments—Review.

Appellate tribunals will not Interfere with the assessments of grading commissioners on mere questions of the amounts, unless they are palpably unjust, or the commissioners were guilty of misconduct, or acted under some misapprehension, or adopted an illegal rule or principle in making the assessment.

2. Town Officers—Street-Grading Commissioners.

Commissioners appointed to grade a street in a town are not town officers, and will not go out of office, under a statute (Laws 1894, c. 451), annexing the town to an adjoining city, section G of which provides that all officers, commissioners, etc., except justices of the peace and constables, shall cease and determine at the time of the taking effect of the act.

Appeal from special term, Kings county.

Petition by William Keegan for the appointment of commissioners-for the purpose of grading Fifth avenue from Sixty-Fifth street to the city line of Brooklyn, in the town of New Utrecht. The petition was filed under Laws 1892, c. 289, and commissioners were appointed thereunder September 29, 1893. They made their report May 10, 1894, which was confirmed November 15, 1894. On July 1, 1894,-Laws 1894, c. 451, annexing the town of New Utrecht to the city of Brooklyn, took effect. Section 6 of said act, after providing that justices of the peace shall continue to hold their offices, provides that “the terms of office of all other officers and boards, commissions- and commissioners of said town, except constables, and of every department and district thereof shall cease and determine at the time this act shall take effect, except only when and in such cases as it shall be necessary that such officers shall be continued for the purposes of carrying out the provisions of this act.” From an order confirming' the report of the commissioners appointed pursuant to the petition, Charles C. Goodrich and William H. Langley, as executors of the last will of William C. Langley, and Henry C. Hopkins, as executor of the last will of Henry A. Kent, appeal.

Affirmed.

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

Hubbard & Rushmore, for appellants.

C. Furgueson, Jr., for respondent.

This is an appeal from an order affirming the report of grading commissioners, and the controlling facts are these: By a resolution of the board of supervisors of the county of Kings, passed September 13,1893, in pursuance of the authority of chapter 289 of the Laws of 1892, provision was made for the opening and draining of Fifth avenue, in the. town of New Utrecht. Commissioners were appointed, and the streets were opened. Thereupon grading commissioners were appointed. When the presentation of their report for confirmation took place, objections were made thereto by the appellants, who were the owners "of property within the assessment district. The objections were overruled, and the report.

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confirmed, and from the order of the confirmation the property owners have appealed to this court. The objections'are: First, in relation to the amount of the assessment; second, as to the legality of opening a portion of the avenue; and, third, that the commissioners have been legislated out of office.

No misconduct or misapprehension is charged upon the commissioners, and there is no claim that they adopted any illegal rule or principle in making their assessments. Under such circumstances, appellate tribunals refuse to interfere upon mere questions of amount, unless the sums awarded are so inadequate or so large as to be palpably unjust. No such case is presented by this record. The second objection requires no consideration. It is plainly frivolous. The third objection presents no error. These proceedings are special, and the commissioners appointed therein are not town officers, and cannot properly be denominated town officers.

The order should be affirmed, with $10 costs and disbursements. All concur.