Matter of McCormack.

posals for cross-walks to be laid or relaid, although they were embraced in the resolution of the common council, as well as the Nicolson pavement, was, it is true, a legal irregularity, under the act of 1858, within the decisions of this court relating thereto. (Laws of 1858, p. 574, § 2. Matter of Wood, 51 Barb. 276. Pr. 162.

Matter of Lewis, 25 How.

Matter of Babcock, 23 id. 118.

Matter of Buhler,

Matter of Astor,

19 id. 317. Matter of Beams, 17 id. 459. MS.) But under the provisions of section 27 of the act of 1870, chap. 383, it is not necessarily fatal to the assessment. That section declares that if, upon a hearing such as that which was had herein, it shall appear that by reason of any alleged irregularity, the expense of any local improvement has been unlawfully increased, the judge may order that such assessment upon the lands of the aggrieved party may be modified, by deducting therefrom such sum as is in the same proportion to such assessment as the whole amount of such unlawful increase is to the whole amount of the expense of such local improvement; and the application of these remedial provisions will obviate the objection stated. I have not discovered in the proofs submitted, any reason why this should not be done, and have determined, therefore, that the charge for crosswalks should be deducted from the assessment, in the manner and on the principle declared in the statute.

2d. The objection that the space between the rails of the Sixth Avenue Railroad Company was not paved, relates to an omission of which the petitioners cannot complain. The expense of the improvement would be increased if that work had been done; and that it was not done was a pecuniary advantage to them, lessening the burden. which they had to bear. It is not a sufficient answer to this view, that the resolution of the common council directed the Sixth avenue to be paved. Such direction must be presumed to have been resolved upon with reference to that part of the avenue the obligation to pave and VOL. LX.

9

Matter of McCormack.

repair which rested alone upon the corporation. If, however, such presumption may not be entertained, it would be equally improper to hold that a proceeding which, having due regard to the obligations of the Sixth Avenue Railroad Company to the city, and therefore designed to decrease the expense of a local improvement, was a legal irregularity, within the meaning or spirit of the act of 1858, and fatal to the assessment. The summary proceedings established by that act are for the party aggrieved by the legal irregularity, (§ 1,) and the petitioners were not aggrieved by the omission stated. It had the effect, on the contrary, to lessen the expense of the improvement, as already suggested. It is my opinion, therefore, that it was not only not a legal irregularity, within the meaning or spirit of the act of 1858, but a proper recognition by the Croton Aqueduct board, acting on behalf of the city, of the undertaking by the Sixth Avenue Railroad Company, to keep the space within their rails in repair.

3d. The objection that the pavement selected by the common council was patented, and not therefore open to competition, is equally unavailable. The decision in the Matter of Astor, made by the general term of this district, authorizing the receipt of proposals to pave with the Nicolson pavement, is substantially a declaration that the common council may select it if they think proper.

4th. The objection to the charge for collection is well taken, if such charge exceed the two and a half per cent allowed by law. (Matter of Lewis, supra.) It is not fatal to the assessment, however. The excess may be deducted, as provided by the act of 1870, (supra,) and in the manner therein declared. These are all the objections I am called upon to examine.

The point made in reference to the principle on which the assessment was made, is not justified by the evidence. The proofs do not show the rule by which they were guided; but were it otherwise, I am of the opinion that

Matter of McCormack.

the acts of the assessors, while in the lawful discharge of their duty, cannot be reviewed by proceedings under the law of 1858, although they were governed in their deliberations by an erroneous principle. Such error would not, in my judgment, constitute a legal irregularity, within the meaning of that law. It may also be said to be doubtful whether their acts could be reviewed at all, unless objections were taken and duly presented to the board of revision and correction. It is not necessary for me, however, to consider this point further.

I have thus disposed of all the questions arising upon the proofs herein. I entertained, at first, some doubt whether the expense for cross-walks was, under the provisions of the act of 1870, (supra,) an unlawful increase of the expense of the improvement; but upon reflection, determined that it was fairly within the spirit of the law; that the improvement having been made, and, as to the Nicolson pavement, properly made, the expense thereof should not, for the irregularity referred to, be thrown upon the city; and that to avoid that result, in such cases, the act of 1870 was passed.

The effect of these conclusions is, that the assessments. mentioned in the petitions herein shall not be declared void, but that there shall be deducted from them the objectionable items mentioned.

Ordered accordingly..

[NEW YORK SPECIAL TERM, December 5, 1870. Brady, Justice.]

IN THE MATTER OF THE APPLICATION OF THE COMMISSIONERS OF THE CENTRAL PARK, for and in behalf of the Mayor &c. of the city of New York, relative to the opening of certain new avenues, roads, and public squares or places, as laid out by the Commissioners of of the Central Park.

It was the intention of the legislature, by the act of 1813, (Valentine's Laws, p. 1252, ◊ 178,) to make the confirmation of the report of commissioners of estimate and assessment when lands are taken for a park, &c., as they have declared it to be, final and conclusive in reference to their proceedings, as between the commonalty of New York, and all persons whomsoever, in reference to the land taken, and the estimate and assessment made and imposed. All persons are thus advised that, being given the opportunity to be heard, they must appear, and by objection either made before the commissioners or submitted to the Supreme Court, protect whatever rights are invaded or jeopardized.

The object of notice of publication would be defeated if the abstract of the awards of the commissioners could not be altered; and although an award is made to a particular individual, in the first instance, he will not be justified in relying upon the entry of such award, and the abstract of the report. It is his duty to see, if he means to rely upon the report as originally prepared, that it is not, at the instance of any subsequent claimant having even an apparent title, altered to his prejudice.

The alteration or correction may be made, according to the statute, at any time before the report is presented to the court, after publication. Although the report of the commissioners, when confirmed, is final and conclusive, in regard to the estimates and awards, it is not conclusive upon the rights of claimants inter sese. The statute allows an action to be brought against the person to whom the award is made, after payment thereof to him, by the person to whom of right the money paid belongs, notwithstanding the report.

Hence, an application by such rightful owner to set aside the order confirming the report will be denied, upon the grounds that the confirmation of the report is final, conclusive, and an end of the proceeding; that the commissioners are functi officio; and that the court has not the power to alter the report, or send it back to the commissioners, for correction.

MOTI

OTION to set aside an order confirming the report of the commissioners of estimate and assessment appointed for the opening of "Morningside Park" in the city of New York, so far as it related to the five lots here

Matter of the Commissioners of Central Park.

inafter mentioned, and which were taken for said park; and also for an order directing the said commissioners to make the awards for said lots to Patrick Callaghan or unknown owners. The report of the commissioners was confirmed July 28, 1870, and contained awards to Phineas H. Kingsland and Wesley Smith as the owners of five leases of the lots, executed to them by the mayor, aldermen and commonalty of the city of New York, for the term of a thousand years, in pursuance of sales for unpaid taxes and assessments, and a nominal award of one dollar to Patrick Callaghan, the owner of the fee. It appeared that the award had first been made, by the commissioners, to Mr. Callaghan, and afterwards changed to unknown owners; and subsequently, when Mr. Kingsland and Mr. Smith presented their claims before them, they changed their award, and made their report as above stated. The report as first made was examined by Mr. Callaghan, and finding the award given to him, he went away to California; and he alleged that he had no notice that the awards had been changed. It also appeared that a Mrs. Currie had, in August 1870, commenced an action of ejectment, claiming that she was the owner in fee of three of the lots, in which action the mayor, aldermen, &c., Mr. Kingsland and Patrick Callaghan were made defendants.

T. James Glover, for P. Callaghan.

Henry Parsons, for Mr. Smith.

A. R. Lawrence, Jr., for Mr. Kingsland.

David J. Dean, for the mayor, aldermen, &c.

BRADY, J. The proceedings in reference to improvements, under which the assessments and awards were made and imposed in regard to the Morningside Park,