#### Hugh P. Skelly, Appellant, *v.*The City of New York and Others, Respondents.

Second Department,

May 16, 1913.

Tax —action to cancel assessments for improvement of street — resolutions of board of supervisors — appointment of grade commissioners.

In an action to cancel assessments for improving an avenue, so far as the same affect plaintiff’s property lying between certain streets in a town subsequently brought within the city limits, it appeared that the board of supervisors of such town had passed three resolutions. The first provided for the improvement of the avenue between a certain street and lot; the second purported to shift forty feet to the south the lines of the avenue and to grade it; the third purported to rescind the first resolution so far as it provided for improving the avenue between two streets. The certificate required from town officers upon which the second resolution was based was not signed by the commissioner of highways, and for that reason was void, so that when the grading commissioners were appointed the lines of the avenue were unchanged, although the supervisors considered that they had phanged them.

*Held,*that a judgment dismissing the complaint should be affirmed.

Appeal by the plaintiff, Hugh P. Skelly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 6th day of August, 1912, upon the decision of the court rendered after a trial at the Kings County Special Term.

*Arthur J. Stern [Louis J. Somerville*with him on the brief], for the appellant.

*John B. Shanahan*[ *James D. Bell*and *Archibald B. Watson*with him on the brief], for the respondents.

Thomas, J.:

The plaintiff has been dismissed in an action to cancel assessments made for the expense of improving Neptune avenue so far as the same affects his property, lying between West Fifteenth street and old lot 47 (West Thirty-sixth street) in the town of Gravesend, afterward brought into the city of Brooklyn, and later in the city of New York. The board of supervisors passed three resolutions severally on June 13, December 12, *2341892, and January 30, 1893. The first resolution, with exception not herein important, provided for improving the avenue between West Sixth and old lot 47; the second purported to shift forty feet to the south the lines of the avenue and to grade it. The third resolution purported to rescind the first so far as it provided for improving the avenue between West Sixth and West Fifteenth streets. Hence, assuming the validity of the resolutions, the supervisors enacted that Neptune avenue should be shifted in location between West Sixth and West Fifteenth streets, and should be improved by grading, etc., between West Fifteenth and West Thirty-sixth streets. But the board of supervisors had no power to open or to improve without the petition of the property owners of more than one-half of the frontage on the avenue, or in lieu thereof upon the certificate of certain town officers that the improvement was, in their judgment, proper and necessary for the public interest. (Laws of 1892, chap. 289; *People ex rel. Dady*v. Supervisor, 154 N. Y. 381.) Such a proper certificate, dated May fifth, was furnished before the passage of the resolution of June 13, 1892, and the validity of that resolution is unquestioned. Another certificate, dated December 7,1892, was presented, upon which the resolution of December twelfth was based. But that certificate was not signed by the commissioner of highways and for that reason was void, as was decided by the Supreme Court at Special Term, by the Appellate Division and by the Court of Appeals in *Schafhaus*v. *Coney Island & Gravesend Electric Railway Co.*(120 App. Div. 890; 196 N. Y. 557). It is true that in *Schafhaus*v. *City of New York*(28 App. Div. 475; affd., without opinion, 159 N. Y. 557) it was decided that the resolution of December twelfth was valid, and that the resolution to rescind it on May 1, 1893, was invalid in the absence of proper preliminary certificate. But the decision was upon a submitted controversy wherein it was stipulated that precedent condition had been performed, which was not the fact, unless the certificate of May 5, 1892, served the purpose. But that certificate did not relate to the subject of the resolution of December twelfth. Hence the resolution of December twelfth was void, and indeed it is ignored by the resolution of January 30, 1893, that sought to exempt from the resolution of June *235thirteenth that part of the avenue between Sixth and Fifteenth streets. The result was that when the grading commissioners were appointed, in terms at least, pursuant to the first and third resolutions, the lines of Neptune avenue were unchanged, although the supervisors considered that they had changed them. But I do not understand that this vain attempt to change the lines is claimed to affect the present question, but the primary inquiry is whether the board of supervisors could, on the basis of the certificate of May 5, 1892, which authorized the resolution of June 13, 1892, for the grading of the avenue between West Sixth street and old lot 47 (save as excepted), rescind on January thirtieth so much of the first resolution as related to the avenue between Sixth and Fifteenth streets. It is not the question whether it could rescind its resolution *in toto,*but could it, unmoved by a certificate authorizing the improvement of an avenue of many blocks, limit the improvement to a portion thereof, disregarding the scheme adopted by the authorities of the town, and selecting a plan of its own. The power of the Legislature is plenary; that of the supervisors to legislate is conditional. What a town would do within its limits the supervisors could adopt and further reject, but it was not the intention of the statute that the supervisors should disintegrate the plan certified and use such fragment of it as it would select. In the *JDady*case allegations that all the preliminary requirements upon which the power of the supervisors to pass the resolutions of June thirteenth and December twelfth was conditioned had been complied with were not denied, nor was the illegality of the resolution of January thirtieth affirmed. The opinion states: “While some of the statements of the petition are very general, yet, as they stand uncontradicted except as modified by a single averment in the opposing affidavits that will presently be considered, they must be taken as true on this appeal. *(People*v. *R., W. & O. R. R. Co.,*103 N. Y. 95.)” The “single averment” was later considered, but it does not relate to the present question. The court was urged by the corporation counsel to consider and decide that the later resolutions were invalid for the very reason now urged, but it was decided that they were valid in these words: “It is argued that the grading commissioners *236who made relator’s contract with Curran must have been appointed under the resolution of June 13th, 1892, and that the resolutions of December 12th, 1892, and January 30th, 1893, did not in any way qualify or control their appointment. If this position can be maintained the law laid down in the first proceeding, which was under the resolution of June 13th, 1892, must control the case now before us, and the appointment of the grading commissioners is to be regarded as covering only a part of the work contemplated, and, therefore, void. *(People ex rel. Dady*v. *Supervisor,*89 Hun, 241.) We have heretofore referred to the substance of these resolutions, and it is sufficient now to say that the effect of the resolutions of December 12th, 1892, and January 30th, 1893, is to so amend the resolution of June 13th, 1892, as to limit the work of constructing and grading Neptune avenue to the portion thereof between West Fifteenth street and old lot forty-seven, and covered by the relator’s contract, and consequently the appointment of grading commissioners for that portion of the original work contemplated by the resolution of June 13th, 1892, is regular, unless the point taken by the respondent in his opposing affidavits must be sustained, to the effect that, as the resolution of January 30th, 1893, was not approved by the supervisor at large until February 2nd, 1893, and was not valid until so approved, it follows that the certificate of appointment of the grading commissioners, bearing date February 1st, 1893, is void.” The action was to compel the supervisors of the town to issue bonds to pay for work done under a contract authorized if it all by the proceedings taken, and the defense among other things was that the supervisors had not the power to pass the restricting resolution. Did the court decide the question in view of the fact stated by it that there was undenied allegation of compliance or, irrespective of such state of the record, did the court decide that the proceeding was valid ? The discussion in the opinion was quite needless if the' record showed that the validity of the resolutions was not in issue, and the decision constrains the conclusion that the resolution of January thirtieth is valid, although I should otherwise consider it void inasmuch as the board of supervisors had jurisdiction only to enable the town to do what its officers certified *237should be done, and not to reject a part or make selection of some fractions of the work proposed by the town. The Legislature of the State had delegated to the supervisors power to permit the town to do certain things pertaining to its local affairs, but it did not empower the supervisors to initiate or refashion plans for the internal improvement of the town.

The other objections to the validity of the proceeding have been severally considered, but none of them require the disturbance of the judgment, which should be affirmed, with costs.

Jenks, P. J., Burr, Carr and Rich, JJ., concurred.

Judgment affirmed, with costs.