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So far as the petitioner's appeal touches the validity of the contract, it must fail, because of the action of the commissioners, and for reasons which led to our decision In theMatter of Kendall (85 N.Y. 302), where they are fully stated; and in regard to surveyors' fees, Matter of Merriam
(84 id. 607), Matter of Pelton (85 id. 651), Matter of Lowden
(89 id. 548), are against him. On the other hand the appeal by the corporation should succeed. The question presented by it relates to the item of "$1,206.53, awarded to the Manhattan Gas-light Company," for the expense it may be, the contrary does not appear, of removing and relaying their gas pipes, in consequence of the construction of the sewer in question, and in performance of a duty to do so, imposed upon them by a city ordinance. (Rev. Ord. of 1866, p. 243, § 16; of 1880, pp. 105, 106, §§ 166, 171.) The same ordinance declares that all expenses or damage incurred or sustained by such company shall form a portion of the expenses of such sewer and be assessed and collected in the same manner as the other expenses thereof. Its disallowance is not justified by our decision in Deering's Case (93 N.Y. 361). The assessment there in question was for regulating and grading a street, and an item similar to that now under consideration was rejected because the occasion which required it was not within the ordinances above referred to. It is otherwise with the case now before us. If the item was for a purpose different from that suggested, it was the duty of the petitioner to point
it out, and establish an error, if one existed. (In re Eager,46 N.Y. 109.) It is not even alluded to in the petition, and the proof is only that such an item forms part of the general sum.
The learned counsel for the petitioner calls our attention to the Matter of Lilienthal (28 Hun, 641), and to the HoughtonCase (20 id. 395). In the first, the opinion of the court does not appear, and we have no means of knowing the circumstances of the case, or the view taken of them. The other seems to have turned upon a provision of the contract then in question. In the case before us the contract is not produced, nor is there evidence that it contains the provision on which reliance was placed in the case cited.
So far, therefore, as the order of the General Term modifies the order of the Special Term, it should be reversed, and the order of the Special Term affirmed, but in other respects the order of the General Term should be affirmed, and the petition dismissed, with costs to the city of New York.
All concur.
Ordered accordingly.