In re Keegan — 72 N.Y. St. Rep. 42

Majority

p. 42

In the Matter of the Petition of William Keegan for the Appointment of Commissioners in Grading Fifth Ave.

(Supreme Court, General Term, Second Department,

Filed December 2, 1895.)

Headnote

1. Municipal corporation—Assessments—Review.

Where no misconduct or misapprehension is charged upon the commissioners, and there is no claim that they adopted any illegal rule in making their assessments, 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.

2. Same—Town officers.

Commissioners, appointed to grade a street in a town, are not town officers and will not go out of office, under the statute annexing the town to an adjoining city.

Appeal from an order, confirming the report of the commissioners appointed pursuant to the petition.

Hubbard & Rushmore, for app’lts ; C. Fergueson, Jr., for resp’t.

—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 fhe 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 confirmed, ai)d from the order of 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 ques

p. 43

tions of amount, unless thesumt 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.