153 N.Y.S. 1072 | N.Y. App. Div. | 1915
On September 27,1910, the common council of New Bochelle, pursuant to article 30 of the charter (Laws of 1910, chap. 559), resolved that the cost of widening North avenue be defrayed by an assessment laid upon the entire city as the area of assessment. On March 28, 1911, the common council amended its resolution by charging one-third of the cost upon an area of assessment constituted by properties fronting or abutting on the said avenue and charged the other two-thirds upon the city at large.
It is contended that in the absence of specific statutory authority the second resolution was ultra vires the common
Another contention is that the notice published by the city clerk on March 2, 1911, in pursuance of the resolution of February 28, 1911, was insufficient notice to the relator of the proposed -change in the area of assessment. Section 423 of the charter provides that upon the presentation of the report of the committee of the common council, to whom must be referred a petition for the improvement (§ 422), the common council, if it determines to proceed with the improvement, shall direct the city clerk to give notice, by publication thereof for at least two weeks in the official newspapers, of the time and place at which the council will consider the matter. After the passage of the first resolution, the common council gave notice by due publication that it would consider the matter of said local improvement and afford a hearing thereon with reference to the district of assessment designated by its committee on its amended and supplemental report submitted to the council February 28, 1911, and that said council would take such action thereon as it deemed proper at a meeting to be held in its chambers, designating them, on a certain designated day and hour 19 days distant. The criticism that the notice was “ wholly insufficient ” in that it did not advise that the common council proposed to change or amend the district of assessment or to consider a change thereof, is hypercritical. I have italicized the words that indicate the sufficiency thereof.
The relator, the railroad corporation, contends that the property owned by it was owned, occupied and used by it for a public purpose in connection with the construction, mainte
I think that the property of the relator the Millbrook Company abuts upon the street. The relator contends that “a large part ” of its land does not abut. This is due to the fact that one side thereof is bounded by North avenue and also by another street which appears to continue North avenue. The assessment map (See § 428 of the charter) shows, however, that a part of the land lies upon, touches and meets North avenue, and thus it is bounded by it. (See Hughes v. M. E. R. Co., 130 N. Y. 26.) It is not essential to abutting upon a street that any entire boundary of the land should lie along or touch the street. The land “ abuts ” thereon within the recognized meaning of the word.
The assessment, so far as it affects the property of the relator the railroad company, was erroneous, and it and the confirmation thereof should be vacated and set aside, with costs to the said relator.
Thomas, Carr, Stapleton and Putnam, JJ., concurred.
Assessment, in so far as it affects the property of the relator railroad company, and the confirmation thereof, vacated and set aside, with costs to said relator. Order to be settled before the presiding justice.