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Silsbee v. Smith,

concede to be due. Without one or other of these averments, the complaint does not set forth a cause of action. (Beekman v. Frost, 18 John. 544. Frost v. Beekman, 1 John. Ch. 288.) There is a misjoinder of causes of action in the complaint, and this misjoinder has led to bringing in parties proper as to one cause of action, but wholly unnecessary as to several others. This mingling of causes of action is claimed to be analogous, in principle, to the practice which permits, in creditors' bills, the making of Bundry debtors, or fraudulent assignees, or grantees of the judgment debtor, parties defendant. But there is no analogy in the cases. A creditor's bill has but one object -the satisfaction of the debt; and all who are liable to contribute to that object are proper parties.

But in this case, the objects of the action are numerous, and in some respects inconsistent. Such pleading cannot be sustained.

The order appealed from is affirmed, with leave to the plaintiffs to amend, on payment of costs of the demurrer and of this appeal, within twenty days after service of a copy of the order.

(FOURTH DEPARTMENT, GENERAL Term, at Rochester, March 6, 1871, Mullin, P. J., and Johnson and Talcott, Justices.)

IN THE MATTER OF THE APPLICATION OF HENRY J. ANDER

son, to vacate assessment for flagging on First avenue, in the city of New York.

Where an ordinance of the common council of the city of New York directed

an avenue to be curbed and guttered, and the sidewalks to be flagged, without directing that new flagging should be used; Held that it was no objection to the assessment that a part of the old flagging was relaid, and the old

curb reset, the expense of the labor, only, being charged. Nor is it an objection to the assessment that the lots are charged for the work

done opposite each lot, while the expenses are charged on all the property,

per foot, equally. Although the street directly in front of a lot may not require much expense

to bring it to the grade, still the lot may be very much benefited by the grading beyond it; and the assessors are to judge of the extent of such

benefit. Per INGRAHAM, J. The objection that more than one lot, owned by the same person, is included

in one assessment, is not a valid ground for vacating the same; provision being made for apportioning the amount upon each lot, if necessary; although it would be better to assess each lot by itself.

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OTION to vacate an assessment for flagging, in the city

of New York.

INGRAHAM, J. It is objected, to this assessment, that part of the old flagging was relaid and old curb reset, and the expense included. The ordinance directed the avenue to be curbed and guttered, and sidewalk flagged. It did not direct that new flagging should be used; and if the contractor under the direction of the street commissioner, finds good flagging on part of the line and resets it, only charging the expense of the labor, the petitioner has no cause to complain. The ordinance is not violated; it does not appear that he has been injured ; and there is clearly no fraud shown ; but on the contrary, a piece of honesty in fulfilling the contract, which is to be commended, rather than to be condemned. It is neither fraud nor legal irregularity in laying the assessment that warrants setting it aside.

Matter of Anderson.

The second objection is, that the lots are charged for the work done opposite each lot, while the expenses are charged on all the property, per foot, equally.

For a long time past it has been the custom to assess all expenses for work, and for making the assessment, alike, equally on all the owners, per foot. I believe this mode of assessment was first adopted in grading Tenth avenue, more than thirty years since, and has, in most instances, been followed since that time. The reason of the charge, in the avenue, was, that a large mass of rock had to be removed, and preparing the avenue for travel was an equal benefit to all the owners alike. If that rule had been adopted in this case, it would have been within the discretion of the assessors, who are to make the assessment according to the amount of benefit each lot receives, from the improvement. It must be remembered that although the street directly in front of the lot may not require much expense to bring it to the grade, still the lot may be very much benefited by the grading beyond it; and the assessors are to judge of the extent of such benefit. There is no wrong done, or irregularity committed, in making that assessment.

Nor is the objection that more than one lot is included in one assessment, any ground for vacating the same. The numbers are given, both for ward and street, and the amount for all, included in one sum. Provision is made for apportioning this amount on each lot if necessary; and although it would be better to assess each lot by itself, yet where the same person owns the whole, no injury can be sustained by putting them together. There is no allegation that the petitioner is not the owner of all.

No good reason is shown for interfering with this assessment.

Application denied.

(New YORK SPECIAL TERM, May 1, 1871. Ingraham, Justice.]

IN THE MATTER OF WILLIAM DUNNING, on petition to vacate

assessment for grading &c. 129th street, in the city of New York.

When objections are made by a person assessed, to an assessment for a local

improvement in the city of New York, and are disallowed by the assessors, it is the duty of the assessors to present such objections, with the assessment, to the board of revision, for the purpose of enabling that board to

correct the errors, if any, of the assessors. And an omission by the assessors to submit such objections the board of

revision is an "irregularity” in “ the proceedings relative to an assessment,” within the meaning of the statute of 1858, in relation to "frauds in assessments for local improvements in the city of New York,” (Laws of 1858, ch. 338, 5 1,) which authorizes an application to a judge of this court, to vacate the assessment.

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OTION to vacate an assessment for grading &c. One

hundred and twenty-ninth street, in the city of New York.

M

INGRAHAM, J. It is conceded that the objections of the petitioner to the assessment were regularly made, to the assessors, and that the same were not allowed by them. It is also admitted that these objections were not sent to the board of revision, and that the assessment was confirmed by .that board without any notice on their part that such objections had been made.

The statute (Laws of 1841, ch. 171,) provides that if, on receiving objections, the assessors shall not deem it proper to alter their assessment, it shall be their duty to present such objections, with the assessment, to the persons authorized to confirm the same. It is apparent, from these provisions, that it was intended that objections made to the assessors should be submitted to the board of revision for the purpose of enabling them to correct the errors (if any were made) of the assessors. No other mode is provided by which the parties assessed can obtain relief; and if the assessors can refuse to submit such objections to the board, and excuse such refusal by saying the statute is

Hines v. City of Lockport.

merely directory, the persons assessed are to be left without remedy. This deprives them of a substantial right to have their objections heard and passed upon by the board of revision, and was not only clearly irregular, but was the means of depriving them of any relief from unjust assessment at the mere will of the assessors.

There can be no doubt that it was, under any view of it, an irregularity in levying the assessment. The submission to the board of revision was for the express purpose of confirming the assessment, and making it a lien on the property, and an omission so to submit it comes within the terms used in the act of 1858, as “the proceedings relative to an assessment,” (Laws of 1858, ch. 338, $ 1;) and being an act in violation of law, is at least a legal irregularity, as provided for in that statute.

I think the assessment should be vacated.

Motion granted.

[New YORK SPECIAL TERM, May 1, 1871. Ingraham, Justice.]

HINES vs. THE CITY OF LOCKPORT,

60 378 5L 16 7L 438 10h 479 50a 230

The common council of the city of Lockport has the power, and it is its duty, to

make and repair crosswalks in that city. Such power and duty are not

left to be inferred, but are expressly given and imposed by the city charter. If the common council, although cognizant of defects in a crosswalk, render

ing it unsafe, gives no directions to any person or officer to repair the walk,

it is guilty of neglecting a duty clearly imposed. Besides the duty of repairing crosswalks, in terms imposed upon the common

council, by the city charter, it has also the powers of commissioners of highways of towns conferred upon it, by the charter; and under that power, it is the imperative duty of the common council to cause crosswalks, &c., to be repaired; and if it is not done, the city is liable for whatever damages

individuals may sustain by reason of such omission. Although the language of the charter is permissive, “ The common council may

regulate, repair," &c., it may not omit, in its discretion, to perform the duty, without being liable for damages resulting from such omission.

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