In re the Grading, Construction & Improvement of Fifth Avenue

Majority

p. 259

In the Matter of the Grading, Construction and Improvement of Fifth Avenue from Sixty-fifth Street to the City Line of Brooklyn in the Town of New Utrecht. Henry Martin and Others, Commissioners, Respondents; Charles C. Goodrich and William H. Langley, as Executors, etc., of William C. Langley, Deceased, and Henry C. Hopkins, as Executor of Henry A. Kent, Deceased, Appellants.

Headnote

Grading commissioners, appointed by the board of supervisors for a town, are not town officers — finality of an award.

Where commissioners have been duly appointed to grade a street and no misconduct or misapprehension is charged upon them, and no claim is made that they adopted any illegal rule or principle in making their assessment, an appellate court will refuse to interfere upon mere questions of amount, unless the sums awarded by the commissioners are so inadequate or so large as to be palpably unjust.

Commissioners appointed pursuant to chapter 289 of the Laws of 1892, by a resolution of the board of supervisors of the county of Kings, to open, drain and grade streets in a town of that county, are not town officers and cannot be properly denominated town officers. The proceedings under the statute are special.

Appeal by the contestants, Charles C. Goodrich and another, as executors, etc., of William C. Langley, deceased, and another, 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 29th day of May, 1895, confirming the report of the commissioners theretofore appointed in the above-entitled proceeding.

II. IS. HuVba/rd, for the appellants.

James G. Ohureh, for the respondents.

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 subdivision 9 of section 1 of chapter 482 of the Laws of 1815, as amended by chapter 289 of the Laws of 1892, provision was made

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for the opening and grading of Fifth avenue in the town of New Utrecht.

Commissioners were appointed and the street was opened. Thereupon grading commissioners were appointed.

When the presentation of their report for confirmation took place objections were made thereto by the appellants, whose respective testators were the owners of property within tire assessment district.

The objections were overruled and the report confirmed, and from the order of confirmation tire contestants 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 part of 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 bo properly denominated town officers.

The order should be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.