Opinion
Argued June 19, 1889
Decided June 28, 1889
George C. Holt for appellants. Joseph F. Daly for respondents.
Proceedings were instituted by the proper authorities of the city of Yonkers for extending one of its sewers — called the Ashburton avenue sewer — and a district of assessment proposed, which included lands owned by the several plaintiffs. It is apparent that all the property within this district will, in fact, be benefited by the improvement, for without it the existing sewer cannot discharge its contents, and the extension is not merely to remove an obstruction, but to furnish a new mouth at a point somewhat distant from the old outlet. The fact is not denied, but this action is instituted upon the theory that the work required is in the nature of repairs and not construction, and that under the charter of the city an assessment cannot be laid for its payment. The relief asked, therefore, is that the defendant be perpetually enjoined from confirming the proposed assessment, or from imposing any assessment for the purpose of paying the expenses, and the immediate occasion of this appeal is the refusal of the court below to grant an order to that effect pending the litigation.
Such a determination is not the subject of review in this court, but, as the facts are undisputed, we have looked into the merits of the controversy. The question is, whether a public sewer, once completed and paid for by an assessment upon the property adjacent thereto, can, when necessary, be extended at the expense of property benefited thereby, including that assessed for the original improvement, or whether payment shall be made by the city at large out of funds raised by general taxation? That will depend upon the construction of certain provisions of the charter of the city, and we are of opinion that, by virtue of these provisions, the matter is entirely within the jurisdiction of the public authorities, and that neither what they have done or propose to do is at all irregular. By virtue of that charter, as it stood in 1881, the common council might extend or enlarge sewers and apportion the expense upon the lands benefited. (Laws of 1881, chap. 184.) The intended improvement which forms the subject of this action is included within these terms, and they also form part of the charter as amended by chapter 19 of the Laws of 1887. How much further that amendment goes we need not consider.
Although we agree with the court below in its disposition of the motion, we must, for the reason above stated, dismiss the appeal, but, as the objection was not raised by the defendant, it should be without costs in this court.
All concur.
Appeal dismissed.