35 N.Y.S. 91 | N.Y. Sup. Ct. | 1895
The relator, under a contract with grading commissioners, is engaged in the work of grading Neptune avenue in the town of Gravesend, and seeks a peremptory mandamus to compel the respondent, as supervisor of said town, to issue bonds of the town in compliance with the provisions of chapter 171, Laws 1893. The power of directing the improvement in question was committed by the legislature to the supervisors of Kings county, and, on June 13, 1892, by a resolution of said board, authority was given to open and grade the avenue “from West Sixth street to the westerly line of old lot 47, excepting that part between the Shell road and West Eighth street.” The resolution provided for the appointment of opening commissioners to estimate and award damages to the owners of lands, buildings, and other improvements taken for the street, and to assess the same upon the property benefited, and that the report of said commissioners should be confirmed by the supreme court or county court of Kings county, after due notice to all parties interested. It further provided that, after the confirmation of the report of said opening commissioners, the supervisor of the town should appoint three grading commissioners, who were empowered to cause the street to be graded, constructed, and improved as a public highway, and to assess the expenses thereof upon the lands and premises which, in their judgment, should be benefited by the improvement;" and the report of the grading commissioners as to such assessment was required to be confirmed by the court in the same manner, and upon like notice, as the report of the opening commissioners. The report of the" grading commissioners, which is attached to and made a part of the affidavit of the respondent, states that they were appointed by the supervisor of the town, for the grading and improvement of the avenue from West Fifteenth street to the westerly line of old lot 47, and it appears that they were not appointed, as such commissioners for the portion of the avenue between West Sixth street and West Fifteenth street.
The supervisor had no power to appoint commissioners, except in strict accordance with the resolution of the board of supervisors. The resolution of the board established the procedure to open the street, and alone conferred jurisdiction upon the supervisor to act; and the intent of the resolution of June 12th was to open and grade the whole street, as therein designated, in one proceeding, and the •expense thereof was to be assessed upon the lands .and premises benefited by the improvement as a whole. To divide the street and grade it in sections, and make a separate assessment of the expense of each section upon property benefited by that section, might work great injustice, and would be in direct conflict with the resolution of the board of supervisors, and overthrow absolutely the intent of the board in the assessment of the expenses of opening the street. We are of the opinion, therefore, that the supervisor of the town had no power, under the resolution of June 12th, to appoint grading commissioners for a part of the street, and that such appointment, and
The order must be affirmed, without costs. All concur..