Bouton v. President

2 Wend. 395 | N.Y. Sup. Ct. | 1829

By the Court, Savage, Ch. J.

By the return to the certiorari in this case, it appears that an application was made to the trustees for pitching and paving Bridge-street, from Prospect-street to the East river; that the work was done ; that an estimate was duly made, and afterwards an assessment of the expense, in which the plaintiff was assessed $277, complains of this on two grounds : 1. That.the as- . sessment was not made upon the principle contained in the statute; and 2. That the proceedings were irregular for want of due notice.

The village of Brooklyn was incorporated in 1816, and additional powers were given to the trustees in 1824. (Statutes, vol. 4, a. 90, and vol. 6, c. 224.) By the third section of the latter act, the trustees are to order and direct the pitching and paving the streets, and to cause a just and equitable assessment to be made of the expense among the owners or occupants of all the houses and lots intended to be benefitted thereby, in proportion; as nearly as may be, to the advantage which each shall be deemed to acquire. The' plaintiff, and .some others, complained of the assessment as unjust, because the assessors had considered all the property as equally benefitted. The assessment was confirmed by the trustees. In the case of Le Roy v. Mayor of New-York, (20 Johns. R. 430,) under a statute nearly similar in its phraseology, it was ■ decided that this court has power to establish the principle as to the persons to be assessed, but the quantum of the benefit is a subject for the discretion of the assessors. It is not denied that the lot of the plaintiff is benefitted, but the complaint is, that it is not equally benefitted with the lots in the sand hills. It seems to me, therefore, that this court has no power to correct the error, if it has been committed. It consists, if at all, in the quantum of the assessment' upon the plaintiff’s lot, which is a subject over which we have no jurisdiction. On this point, therefore, we cannot interfere.

2. Was there sufficient notice 1 An appeal is given to the party conceiving himself aggrieved, in the manner provided by the third section of the act of 1816. By that section, such person may appeal from the assessors to the trustees of the village, in ten days after the assessment is made and public notice thereof given, giving notice to the assessors, &c. If an. appeal may be made within ten days, surely the assessment ought not to be confirmed till after the expiration of ten days. Only nine days notice was given in this case; but as the plaintiff within that time did appeal, and had the benefit of a hearing before the trustees, he comes too late to object to a want of due notice. It appears that the trustees, instead of deciding instanter, referred the matter back to the assessors, and then confirmed the assessment without any further notice being given. No other notice was necessary, nor needed they to have referred it back. They might have confirmed it without such reference ; and I see no object in giving further notice, as the party had an opportunity of being heard before the trustees, the appellate jurisdiction, for which purpose the notice is required to be given.

I am of opinion, therefore, that the proceedings of the trustees ought to be confirmed.