#### Martha A. Mansfield, Plaintiff, *v.*The City of Lockport and J. Charles Harrington, as City Treasurer, Defendants.*

(Supreme Court, Niagara Equity Term,

March, 1898.)

1. Assessment — Review in equity — Fraud.

*Semble,*that a provision in a city charter that the decision of the city common' council, upon the question whether petitions for a local paving improvement have been signed by persons owning at least one-third of the frontage of the lands to.be assessed for such improvement, shall be “ final and conclusive and not subject to question or appeal,” precludes any collateral review by a court of equity, except for fraud.

*¡2.*Same — Vote of common, council.

An unanimous vote of all the twelve members of a common council in favor of the adoption of an ordinance for a local improvement, required to be passed by a two-thirds vote “ of the aldermen in office ”, is valid and sufficient, although it may subsequently appear that three of the aldermen voted under the influence of improper motives.

3. Same — Omission from assessment district of state lands.

Where a common council is required by law to fix the assessment district, its omission from that district of two narrow strips of land, on either side of the Erie canal, within its “ blue line,” and which from time immemorial have been used as a highway, is, it seems, not an omission which affects the validity of the assessment, and, in any event, does not constitute an objection to it which can be made available in a collateral action in equity.

4. Same — Assessment district — Review of the discretion of a common council.

The action of the common council in determining that only the frontage on the street improved and a part of the depth of certain lots, covered by entire buildings, are benefited by the improvement and its decision not to assess rear portions of these lots, fronting on other streets,.involves a question of discretion and the court should not, in a collateral action in equity, without other evidence that the common council acted upon an erroneous principle or on a rule wrong in law, annul the decision where the effect of the action of the court would be to relieve lands, especially benefited, from the payment of any part of the expense of the improvement, excepting such as would be borne by all of the taxpayers of the city alike.

*265. Same — Union school lands in Lockport.

Union school lands, in the city of Lockport, are exempted from assessments for local improvements by the provisions of chapter 51 of the Laws of 1847.

6. Same — Frontage rule, applicable to improved and vacant property»

An assessor, directed by a common council to spread an assessment for a local improvement, may properly adopt the frontage rule of assessment that all lands similarly situated to the improvement are benefited alike, and is justified in applying the rule generally, although some lots are built upon.while others are vacant.

7. Same — Manner of assessment.

In the exercise of his duty, the assessor must determine not only the amount of the benefits to the respective parcels, but his principal duty rests in determining in what proportion to each other the respective parcels have been benefited.

Action in equity to vacate an assessemeiit on. the lands of plaintiff levied to defray part of the expenses of a local improvement.

Washington H. Ransom and P. F. King, for plaintiff.

Charles M. Southworth and John E. Pound, for defendants.

*

Reeeived too late for insertion in proper place.— [Reporter,

Laughlin, J.

This is a suit in equity to vacate an assessment on plaintiff’s lands in the city of Lockport, levied to defray part of the expenses of a local improvement.

The improvement was the grading, curbing and paving of West avenue, East Main street and East avenue, which form one continuous street from Transit street on the west, through the principal business and residence part of the city to the easterly city line, a total distance of nearly one and a half miles. The plaintiff owns a tract of lánd situate on the northerly side of East avenue which is used as a family residence and for agricultural proposes.. It consists of twenty-nine and thirtyrseven one-hundredths acres, and has a frontage of 372 21/100' feet on that part of the avenue so improved, and is bounded easterly by the city line, but lies wholly within the city limite.

The total cost or contract price of the improvement was $84,930.13) of which $2,066.25 was assessed- on plaintiff’s said lands..

*27The plaintiff asks to he relieved from paying this assessment and to have the lien thereof canceled, upon the following grounds: (1) that the local authorities never acquired jurisdiction to order the improvement; (2) that the common council wilfully, wrongfully and fraudulently omitted from the district of assessment abutting lands which were necessarily benefited; (3) that the common council wilfully and wrongfully failed to include all of certain indivisible parcels, part of which were included and the assessor omitted to assess the same; (4) that the specifications and plans or some of them were not filed as recited in the ordinance and no opportunity given interested parties to inspect or object thereto; and (5) that the assessor did not assess according to benefits or on a uniform rule.

This action purports to be brought for the benefit of all others assessed upon this roll who' may come in and contribute to the expense thereof, but no other person assessed has come in and asked to be made a party or to be-given the benefit of any judgment that may be entered herein, and, therefore, we are only called upon to consider these questions so far as they affect the plaintiff. Knell v. City of Buffalo, 54 Hun, 80.

These objections and the grounds therefor will now be considered in the order stated. The claim of want of jurisdiction is twofold; first, that sufficient property-owners did not petition for the improvement, and, secondly, that the determination of the common council as to such sufficiency was wilful, wrongful, fraudulent and unlawful. Section 202 of the charter of Lockport confers jurisdiction on the common council to determine that the expense of such an improvement shall be defrayed by an assessment upon the real estate which it deems benefited thereby, and to order such improvement by adopting an ordinance in the form therein prescribed, specifying the portion of the city which it deems will be benefited thereby, after, *“*there shall be filed with the city clerk a petition or petitions to the common council for such improvement, signed by persons owning at least one-third of the street frontage on the street or streets wherein such assessment is to be laid, of the lands to be assessed for the improvement.” Section 203 of the charter provides as follows: “ The decision of the common council as to whether any petition or petitions for a local improvement is or are signed by persons owning at least one-third of the frontage *of the lands to be assessed for such*improvement shall be final and conclusive and not subject to question or appeal, but it shall not base its action on signatures on more than one petition, if such petitions *28ask for different improvements; said decision shall be by resolution, wherein the vote shall be taken by yeas and nays, and entered in the minutes, and it shall require an affirmative vote of two-thirds of the aldermen in office to make such decision, or to. pass any ordinance for a local improvement, except as herein otherwise provided.” Petitions for this improvement, a brick pavement with Medina sandstone curbing, in due form and signed by many of the owners of the ■ land fronting on these streets between Transit street and the easterly city line, were duly presented to the council on July 31, 1893, and referred to its committee on streets, which was the appropriate committee. This committee advised with the city engineer as to the sufficiency of th,e petitions and consulted the general tax-rolls and official maps as did also the mayor and most of 'the aldermen not on the committee, and on the 7th of August, 1893, the committee reported to the council in favor of granting the prayer of the petitions and directing the city clerk to prepare an ■ordinance, and the engineer to prepare specifications, and such re-, port was unanimously adopted, the twelve aldermen, being all .of the members elected to the council, voting in the .affirmative. At the same- session of the common council a resolution determining that such petitions were signed by persons owning at least óne-third of the frontage of the lands to be assessed for the improvement, was adopted by a like vote, the ayes and noes being called and recorded. On August 14,1893, pursuant to such-direction the clerk prepared and reported a draft of a. proposed ordinance for a brick pavement with Medina sandstone curbing, according to specifications which it recites were filed with the city clerk by the engineer on August 14, 1893, and determining that the expense, when determined and entered on the minutes, be defrayed by local assessment, to be made by Assessor William J. Gold, and determining and describing the lands deemed benefited and determining the sufficiency nf the petitions. Thereupon a resolution was offered, directing the city clerk to publish the ordinance and in .and with the minutes of the council a notice to all owners or occupants of or other persons interested in any of the real estate in said ordinances described, that the question of the adoption or rejection of such ordinance, would be considered by the common council at a meeting thereof on August 21, 1893, and that all persons interested therein would be heard at that time, as to the adoption or rejection, of said ordinance. Section 205 of the charter requires such a notice and expressly provides that it *29símil be sufficient notice to all such owners, occupants and persons-interested, of the facts therein stated. The proposed ordinance and resolution were referred to a committee of the whole, which met and after considering them, rose and reported in favor of the adoption of the resolution, and the same was adopted unanimously. Such notice in due form was embodied in the minutes of the common council, and it and the proposed ordinance were duly published more than three days before the time set for the hearing as required by the charter. At the same session of the council the plans and specifications filed by the engineer were referred to the committee on streets and notice was published in the council minutes, inviting-interested parties to be present at the committee meeting on the-evening of August 18th, when the same would be considered, and they were considered at such meeting. I do not find that the charter required such notice or hearing with respect to the specifications. On August 21st a hearing was duly given by the common council on the question of the adoption or rejection of the ordinance pursuant to the published notice, and after such hearing the ordinance was-adopted unanimously, all of the aldermen being present and voting-in the affirmative. By a like vote, a resolution-was adopted directing the clerk to advertise for sealed proposals for doing the work. The mayor vetoed this ordinance on August 28th, and assigned as his reasons for so doing, the objections presented, the magnitude of the improvement and the danger of its becoming a general fund expense if there were any irregularities, and he urged reconsideration for the purpose of making changes and alterations to satisfy the few objectors, if possible, and obviate any grounds for contesting the assessment. The veto was sustained by a unanimous vote and the clerk was directed to return the sealed proposals received that day. The council thereupon unanimously adopted a resolution directing the engineer to again prepare plans and specifications and the clerk to present an ordinance for the improvement in accordance with the petitions on file. On August 30th, the clerk presented a new draft of a proposed ordinance, in some respects more clear, full and specific than the first, and it recited the filing of the new plans and specifications with the clerk by the engineer on that day. Thereupon another resolution and notice of hearing in due form for September 4rth, were adopted by an affirmative vote of nine, no votes being recorded in the negative. The new ordinance and notice of hearing were also duly and seasonably published and at the time specified another hearing was duly given by the common council, and no one *30appeared in opposition, and, on motion, the ayes and noes being called and recorded, a resolution adopting the ordinance was passed unanimously,, all members.of the council being present and voting therefor: At the same meeting a resolution directing the clerk to advertise for sealed proposals was adopted by a similar vote. The mayor approved this ordinance and resolution. In and by section 3 of the last ordinance, and the first ordinance as well, it was ordained, declared and determined that the petitions theretofore presented to the common council and then on file with, the city clerk, for the improvement therein described, had been signed by the persons owning at least one-third of the street frontages of the lands to be assessed, and that the' action of the council in ordering the improvement was based on such petitions.

The clerk duly advertised for, and on September 11th, reported the proposals received, and they were read and a recess taken to examine them, after which they were referred to the committee of. the whole which met, and after considering the proposals, rose and reported in favor of awarding the contract to Charles Whitmore *&*Co., on their proposal to pave with Chnton shale repress brick, at' $2.02 per square yard, and by resolution adopted by a vote of seven ayes to five noes, the council determined that the proposal of said firm was the lowest and directed the mayor'and city clerk to contract .with' them for the work. The mayor approved this resolution on the 18th day of September, 1893, and the city clerk, pursuant thereto, in behalf of the city, signed a contract with said firm for doing the work, for paving the streets with Canton shale. repress brick and Medina Sandstone curbing, in accordance with the plans ‘ and specifications and proposals therefor. Thereafter the total cost of the improvement, according to such contract, was ascertained and determined, and the making of this assessment was ordered by resolution of the cpmmoiL council, adopted by an affirmative vote of eleven, there being no vote in the negative.

The petitions of certain property-owners, in due form, for this improvement and the giving of the notice' of hearing on the ordinance, as required by the charter, gave the common council jurisdiction, and it became the duty of that body to inquire into the sufficiency of the petitions and determine whether they were signed by the owners of one-third of the frontages to be assessed for the improvement. ■

The legislature, realizing that it is difficult and in most cases impossible for a common council to determine such questions with *31indisputable certainty, has protected the general fund of the city against the expense of local improvements in cases of mistakes and errors as to genuineness of signatures, authority of signers, ownership of lands and computations, by enacting that the determination of the common council manifested by the requisite affirmative two-thirds vote, as was done in this case, and made after such .hearing and based oh such petitions, shall be “ final and conclusive and not subject to question or appeal.”

It will be observed that the plaintiff and all others interested had due notice of the hearing on the adoption of thq last ordinance involving the determination of the sufficiency of the petitions and that neither the plaintiff nor any other person appeared in opposition to the improvement or questioned the proposed determination that the same had been applied for by the necessary proportion of property-owners.

It is manifest from the action of the council on the mayor’s veto message, and from the testimony of the aldermen, that there was an honest effort to remedy defects and remove objections, and no objections having been made to the last ordinance, they had reason to believe that they had accomplished the end desired. If the members of the common council acted honestly and had any facts before them tending to support their determination, there would seem to be no propriety in a court of equity’s undertaking to- review such determination at tins late day after the improvement has been made and paid for by the city. The determination of the common council, if made in good faith, pursuant to this statute, surely cannot be attacked collaterally as in this suit in equity, for such errors or mistakes. Such determination is an adjudication in the nature of a judgment and can only be reviewed by a direct proceeding where the error or mistake may be correctéd or the determination may be reversed and the municipal authorities may be at liberty to proceed anew. Porter v. Purdy, 29 N. Y. 106; Matter of Commissioners of Central Park, 50 id. 493; Matter of Kiernan, 62 id. 457; Hunt v. Hunt, 72 id. 217; Matter of Department of Parks, 73 id. 560; People ex rel. Francis v. Common Council, 78. id. 33; Matter of Kendall, 85 id. 306; De Peyster v. Mali, 92 N. Y. 269; Moody v. City of Lockport, MS Opinion, Justice Corlett; Miller v. City of Amsterdam, 149 N. Y. 288.

Section 226 of the Lockport charter provides that an appeal may be "taken to the County Court from such an ordinance within *32twenty days from its first publication, and that if the county judge is disqualified the appeal shall be heard in the Supreme Court. Section 228 requires where such an appeal is taken, a return by the city clerk within twenty days of all the proceedings of the council and of the other officers of the city in the premises, and all petitions, papers and other documents relating to the ordinance, or relating or pertinent to any or all the questions involved in such appeal, and the court is expressly authorized to compel a further or amended return as often as the same may be necessary. Section 229 provides that the appeal may be brought to a hearing at any term of the County Court, or if in the Supreme Court, then on eight days’' notice at a Special Term in Niagara, Erie or Orleans counties, and that all proceedings shall be had and conducted as nearly as may be in accordance with the provisions of the Code of Civil Procedure, and the general rules of practice, except as therein' otherwise provided. Section 230 provides that: “Upon the' hearing of the appeal *the appellate court shall hear and determine*all questions as to the legality or regularity of the matter or proceedings appealed from, and if such matter or proceedings appear to be not. in accordance with law, said appellate court shall give judgment setting aside, vacating and annulling the same and the same, shall thereafter be held and deemed illegal and invalid,” and that if in accordance with law, the judgment shall be an affirmance. • It is further provided in the same section that if a local- assessment (section 221 provides for a similar appeal from an order of the council confirming such an assessment) be vacated on account of any irregularity in the proceedings or defect in levying the same, the council may cause a new assessment to be made. The plaintiff duly took an appeal to the County Court from the ordinance and a return' thereto.was promptly filed, but the plaintiff has not brought the appeal on for a hearing. .

An expression of an opinion as to whether the action of the council in determining the sufficiency of these petitions can be reviewed on the appeal from .the ordinance would be *obiter dicta-*and not binding on the court in which such appeal is pending, and, therefore, I shall not attempt to decide the point. If this question, is reviewable on the appeal, then that furnishes an adequate remedy and the appeal having been taken in form to review it, the question is pending in another litigation between the same parties which., has been pleaded here as a bar and such we hold it to be. Bell v. Merrifield, 109 N. Y. 202.

*33But if the legislature while providing for an appeal from the ordinance and assessment has seen fit to exempt the action of the council in determining the sufficiency of the petitions from such appeal and review, surely a comt of equity ought not to travel beyond the bounds of well-established precedent and assert its jurisdiction over such a question when the legislature could have and frequently does authorize the local authorities to make such improvements without" any petition or consent of property owners. People ex rel. Holler v. Board, etc., of Albany, 2 How Pr. (N. S.) 423; Genet v. City of Brooklyn, 99 N. Y. 296; Spencer v. Merchant, 100 id. 585; Van Deventer v. Long Island City, 139 id. 133.

Counsel have exhaustively argued the question as to the authority of a court of equity to annul such a determination of a municipal legislature for fraud; but no case in point has been cited, and I believe that the proposition has not been directly involved in any of the reported decisions. I have for a number of years had occasion to give the subject some little consideration and have no doubt as to the jurisdiction of the courts of equity, or as to the propriety of their intervening in such cases. I think, the claim for such authority is sustained by legislation and analogous decisions.

The law known as the Taxpayers Act, authorizing the courts to enjoin threatened illegal or fraudulent acts of public officers which include municipal councils, emanated not from a want of jurisdiction in the courts, but for the purpose of giving' individual taxpayers a standing in the courts where those who represent the city as .its governing body and should protect its taxpayers, are either parties to the fraud or connive thereat. Ayers v. Lawrence, 59 N. Y. 192; Talcott v. City of Buffalo, 125 id. 280.

Chapter 338, Laws 1858, as amended by chapter 312, Laws 1874, provides summary remedy to review local assessments in New York city, by petitions, and expressly provides that no suit in equity shall be brought to set aside such assessment on the ground of fraud. Eno v. Mayor, 68 N. Y. 214.

The learned justice writing in People ex rel. Holler v. Board, etc., of Albany, 2 How. Pr. (N. S.) 423, assumed that if fraud were shown, such a determination made final by the statute could' be reviewed. Assessments have been set aside for fraud on the part of assessors. Brennan v. City of Buffalo, 13 App. Div. 453. Municipal contracts may be enjoined and annulled for fraud, and why should not the court have power to annul assessments for the fraud of the common council as well as that of other officers? I think such *34action whether in the form of resolutions or ordinances is not legislative in the sense that the motives' of the legislators cannot be inquired into to vitiate their action. Davis v. Mayor, 1 Duer, 458, 494, 502-8; S. C., 9 N. Y. 263; State v. Cin. Gas *&*Coke Co., 18 Ohio, 272; Dil. on Mun. Corp. (4th ed.), §. 211; Brady v. Mayor, 20 N. Y. 212; Baird v. Mayor, 96 id. 567; Nelson v. Mayor, 131 id. 4.

•" This improvement was needed and was generally favored by the taxpayers. I am not satisfied that the vote of any member of the common council was fraudulently cast in favor of the adoption of the ordinance for the improvement. Alderman Davis was at that time agent of the Canton Shale Brick Exchange and expected a commission on all brick of that company’s manufacture used by the city contractors. The petitions and specifications did not, however, require the use of tins particular kind and brand of brick, but permitted of open competition. In view of these facts and of the further fact that nearly all of the property-owners who- took an interest in the matter wanted a brick pavement and there being no satisfactory evidence tha(t any other member of the common council or city official was either directly or indirectly interested at that time, I do not feel warranted in finding, that even Alderman Davis would not have voted for the improvement ordinance, but for the fact that he was such agent, or that his vote on the adoption of such ordinance was controlled by fraud or corruption. Later on in voting on awarding the contract, he was directly interested in having it awarded to the contractors who had submitted proposals for furnishing Canton shale repress brick, one of whom! have no doubt in consideration agreed to and did give him $1,00.0, represented by two $500 accommodation notes. . It has also been established to my satisfaction that the vote of Alderman O’Connor on awarding the contract was improperly .influenced and controlled by a promise made to him by a representative of said Shale Brick Exchange at the time the contract was awarded, that if the contract were awarded as he voted to award it, the brick company would give him $600 for pretended services in inspecting and supervising the piling of the brick on the street along the line of work. The evidence shows that the brick company’s contract with Whitmore & C’o. only required it to deliver the brick free on board the. cars at Lock-* port. It had nothing to do with "unloading the brick, or delivering them on the street. The pretended services were not rendered, but the money was paid pursuant to agreement. It should be said here' *35that Alderman O’Connor’s version of this transaction has not been heard by this court and we do not hold or decide that -he has committed a crime nor is it our province to do so; we merely rule that the evidence before us indicates that he was actuated by fraud in awarding this contract to Whitmore & Co. Counsel for plaintiff has strenuously .argued that the court should also find that Aider-man Stevens was bribed by the brick company. This request is largely based on his close and somewhat suspicious relations -with Alderman Davis. It is a general rule of law that public officials are entitled to the benefit of the presumption that they have acted honestly in the discharge of public duties, and to warrant a contrary finding there must be sufficient evidence of fraud to exclude the supposition of mistake. Matter of Petition of Babcock, 23 How Pr. 118; People ex rel. Con., etc., Co. v. Barker, 16 Misc. Rep. 258; People ex rel. M. R. Co. v. Barker, 146 N. Y. 304.

As has been seen, no fraud is alleged with respect to awarding the contract and the evidence as to fraud at that time was only received as bearing on the alleged fraud in adopting the ordinance.

I am of opinion that upon principle and grounds of public policy, the action of the common council in adopting the ordinance by the unanimous affirmative vote of twelve could not be annulled even if it satisfactorily appeared that all three of these aldermen whose good faith is questioned acted fraudulently and corruptly in so voting, for the reason that there would still be an honest three-fourths vote in favor of the ordinance. Owners, etc. v. Mayor, 15 Wend. 378; Throop on Public Officers, § 567; 19 Am. *&*Eng. Ency. of Law, 459; Brooklyn El. R. R. Co. v. City of Brooklyn, 11 App. Div. 128.

The next question to be considered is, did the common council wilfully, wrongfully and fraudulently omit from the district of assessment, lands abutting on the improvement which were necessarily. benefited?*

The omission of lands acquired and held by the state as part of the Erie canal furnishes the sole ground of this complaint. The blue lines which mark the exterior boundaries of the Erie canal lands are ninety-two and one-half feet apart, the waterway being several feet narrower. At about the center of the city of Loekpor't, the canal, Avhich runs nearly east and west, is spanned by a wooden bridge, knoAvn as the Big Bridge, about seventy-five feet in Avidth and* extending along the canal 300 feet. The. northerly blue line passes 7.90 feet northerly of the northerly side of this bridge apd *36the southerly blue line passes about 9.25 feet southerly of the southerly side of the bridge. East Main street extends southeasterly from the bridge and West avenue extends northwesterly from the bridge, on the lines of Main street continued across the bridge, so that the line of travel from one to the other is diagonally across the bridge. The.ordinance and specifications provided, for paving each of those streets up. to the bridge. Other streets extend along the canal banks and connect with the Big Bridge, and from time immemorial this bridge and all lands abutting thereon, on the north and south have been used and enjoyed by the public either as an open market place or as a public highway and such lands have not been and arc not now used for any other purpose. Whether the strips of land hereinbefore described as lying between the bridge and the blue lines were owned by the state and dedicated to this public use, ' or Avhether they were acquired by the city or dedicated by other OAvmers, does not appear from the evidence, but in the view I take of the case, it is not very material. The city could not have assessed for a local improvement those lands which have by long user or dedication become a public highway. Smith v. City of Buffalo, 90 Hun,. 118. 1 .

Possibly the common council could have determined that the narroAy strips of land forming the banks and support for the canal upon either side thereof east and west of the Big Bridge, and considerably removed from this improvement were benefited thereby and could have assessed the same; but it has not been satisfactorily shown how such lands could receive more than mere nominal, if any, benefit. The law does not deal with trifles and it is incumbent-on the plaintiff to show substantial prejudice. Colman v. Shattuck, 62 N. Y. 363; O’Reilly v. City of Kingston, 39 Hun, 287; Workman v. City of Worcester, 118 Mass. 168; Petition of Voorhis, 5 Supt. Ct. (T. *&*C.) 345. The Constitution expressly provides that such lands cannot be sold even by the* legislature, and requires that they, shall be forever held and used-for eana^ purposes. FTo error can be predicated on the. omission of such lands from a district for a local assessment. § 6, art. 7, State Constitution; Elwood v. City of Rochester, 43 Hun, 114; People ex rel. Dillon v. Gilon, 41 id. 510; People ex rel. Howlett v. Mayor, 63 N. Y. 291; Matter of Mayor, 11 Johns. 77; In re. Albany St., 11 Wend. 149; Owners of Grounds, etc., v. Mayor, 15 id. 378; Gilbert v. City of New Haven, 39 Conn. 467; Chicago, B. & Q. R. R. Co. v. Siders, 88 Ill. 321-7.

*37The Hassen case, 65 N. Y. 516, and 67 id. 528, is clearly distinguishable, for there the common council had determined that the state land was benefited and the assessors failed to impose the assessment as directed by the ordinance. The court did not consider the limitation upon the use of the property because that question was not directly involved, and, although the premises in question there were a large tract of land adjacent to the canal, yet that fact is not alluded to in .the opinion. I have not overlooked the recent case of County of Monroe v. City of Rochester, 154 N. Y. 570, where Judge Gray, in delivering the opinion of the court, states that there is no authority to make any distinction with respect to the uses of property coming under assessment. I think that statement must be read in view of the particular facts and case which the learned justice had under consideration at the time. The rule that assessors may take into consideration in determining the amount of benefit the fact that property is permanently devoted to a particular úse has been repeatedly held by the General Term, and affirmed by the Court of Appeals, and it is founded upon reason, and if it had been intended to announce a different- rule, I believe the question would have received greater consideration. • Local assessments have been sustained by the trial courts in Buffalo, where canal lands abutting on the improvement were not assessed and where the other owners not only paid for improving in front of the canal lands, but also for a retaining wall along the same.

The connection between and relative location of the property assessed and the improvement and the ability of the owner of the land to use and enjoy the improvement all enter into the question of benefits. Voght v. City of Buffalo, 133 N. Y. 463.

If the canal lands should have been assessed, then omission was an error of judgment on the part of the common council in determining the lands benefited and the plaintiff’s remedy was by *certiorari*and not by suit in equity. Kennedy v. City of Troy, 77 N. Y. 493; Hoffeld v. City of Buffalo, 130 id. 387; County of Monroe v. City of Rochester, 154 id. 570.

The next complaint is that the common council wilfully and wrongfully failed to include in the district of assessment all of certain indivisible parcels of land, part of which were included, and that the assessor failed to assess the lands thus omitted.

The Grand Hotel is built on the junction of West avenue and Canal street, upon two lots, which are, according to the record title and official maps, separate and distinct parcels. One of these lots *38fronts upon West avenue, and is assessed. The other fronts on Canal street and is not assessed. The claim is made that because the hotel building extends over both, that renders them indivisible and conclusively establishes that both are benefited and requires that both should be assessed. I am unable to agree with this contention and believe that the common council exercised good- judgment in confining the assessor to the lands actually, benefited. There would have been no particular harm in spreading this assessment upon both of these lots, but had the common council included both, the assessor might have been misled into thinking ■ that the common council deemed both specially benefited alike. The objéct of the charter provision requiring the common council to define the • district of the assessment was to limit the assessor and prevent his including lands, the benefits to which are entirely speculative.

The office and theater building known as Hodge Opera House occupies a large tract of land on the northwesterly junction of Main and Market streets, with the comer only abutting on Main street, and- the building actually fronts upon and lies principally upon -Market street. By. the ordinance the common council determined that only the westerly sixteen and one-half feet of this- property, including the comer abutting on Main street, was benefited.

The Young Men’s Christian Association building occupies nearly the entire parcel of land situate at the southeasterly comer of Main and Locust streets, having a frontage of fifty-six feet on Main street and extending in depth back at right angles 165 feet to Pearl street, and abuts bn the latter street about 116 feet. It is bounded easterly by an alley running from Main to Pearl street. The entire frontage and to a depth of seventy feet only was included in the ordinance as benefited. y

The assessor adopted the frontage rule of assessment, and assessed the same amount on these parcels of land in proportion to their frontage that he assessed on all other lands.

It has been held that a local assessment may not be spread upon an entire tract of land by the description contained in the deed or general tax-rolls where only part of the lands are benefited, although all are owned together, and it has also been held that where a whole parcel of land is benefited, but the assessment is spread only on the frontage, it is valid. People ex rel. L. V. R. Co. v. City of Buffalo, 36 N. Y. Supp. 181; 86 Hun, 618; 147 N. Y. 675; Parmelee v. City of Youngstown, 43 Ohio St. 162.

*39The assessor was, of course, confined to the lands described in the ordinance and he had no power to include these entire parcels. Consequently no error was committed by him in omitting them. Matter of Churchill, 82 N. Y. 288; People ex rel. Nostrand v. Wilson, 119 id. 515.

It is urged that these assessments are void and not enforcible, because these properties are indivisible. If that were conceded the plaintiff would not be prejudiced and it would furnish no legal or equitable ground for setting aside the assessment upon her lands. The evidence shows that the owners of these respective parcels have paid all installments of the assessments due and some in advance and there is, therefore, no probability that the payment of any of the installments will be resisted. But even if payment should be successfully resisted or if the city should be unable to enforce payment it has no authority under its charter to make a reassessment, and the plaintiff cannot be compelled to bear any of the deficiency. Tingue v. Village of Port Chester, 101 N. Y. 294. The only debatable point is, therefore, whether the common council had authority to determine that only that part of the parcels in question constituting the frontages and a reasonable depth back from the improved street was especially benefited; and that they should be assessed only to that extent. I think the common council had jurisdiction to determine this question, and while such course is somewhat unusual and I might differ with them and reverse their judgment if the question were 'presented by appeal or by writ of *certiorari*(People ex rel. L. V. R. Co. v. City of Buffalo, 147 N. Y. 675; Matter of Gardner, 41 How. Pr. 255, which arose under Lock-port eliarter), yet the dét'ermination of what lands were benefited involved the exercise of discretion and judgment, and the court should not, in a collateral suit in equity, without other evidence that they acted upon an erroneous principle or upon a rule wrong in law, annul their determination where such a decision would have the in equitable effect, inevitable in this case, of entirely relieving the lands specially benefited from bearing any part of this expense other than their proportion of a general tax upon the whole city to defray the .same.

It appears from the evidence that the taxpayers generally have, acquiesced in their assessments and are paying the same and that a much larger sum has been paid in upon the roll than was due. It is manifest also, that the improvement was a very substantial special benefit to the plaintiff’s lands and to all lands assessed therefor, and *40that such lands and their, owners have now for about four years had the benefit and advantage of the improvement. If the assessment were absolutely illegal or void, of course these considerations would not justify a court in withholding relief, but where it becomes a question of equity and the court is vested with discretion, then it is proper that such considerations should be controlling, especially where, as here, the plaintiff, instead of pursuing her legal remedies, which would have preserved to the city authority-to correct the pro-' ceedi'ngs and assessment, has pursued'a remedy which if successful will result -in her lands being entirely relieved of any assessment for this improvement which must have largely increased their value and accessibility. Welty on Assessments, §§ 210 and 363; Matter of McGown, 18 Hun, 434; Matter of Lord, 78 N. Y. 109; Moore v. City of Albany, 98 id. 396; Lewis v. City of Utica, 67 Barb. 456; Lyth v. City of Buffalo, 48 Hun, 180; Strusburgh v. Mayor, 45 N. Y. Supr. Ct. 508; Osterhout v. Hyland, 27 Hun, 170.

A party has nó constitutional right to maintain a suit in equity to vacate a local assessment and he may be confined to such legal remedies as are provided, and where a suit in equity lies he must show substantial prejudice. Lennon v. Mayor, 55 N. Y. 361; People v. Wasson, 64 id. 167; Mac Laury v. Hart, 121 id. 636; Garratt v. Trustees of Canandaigua, 135 id. 436; Matter of Peugnet, 67 id. 441; Matter of Kendall, 85 id. 306; Tifft v. City of Buffalo, 82 id. 204; Matter of Marsh, 83 id. 435.

It is more equitable and just in this case to give the city the full benefit of the legal presumption that the assessment is valid until clear and satisfactory proof of its invalidity is presented and that its officials have properly performed their duty, and to apply to these facts the well-settled rule of law that the determination of the legislature or of the local authorities authorized- by the legislature, as to what lands are benefited and as to the *quantum*of benefits, is final and conclusive and cannot be reviewed collaterally. Smith v. City of Buffalo, 90 Hun, 118; Harriman v. Howe, 78 id. 280; Morse v. City of Buffalo, 35 id. 613; Tingue v. Village of Port Chester, 101 N. Y. 294; Colman v. Shattuck, 62 id. 348; Bouton v. City of Brooklyn, 2 Wend. 395; Le Roy v. Mayor, 4 Johns Ch. 352; Lyon v. City of Brooklyn, 28 Barb. 612; In re. Church St., 49 id. 455; Matter of Broadway, 63 id. 575; In re. Cruger, 84 N. Y. 621-2; Kennedy v. City of Troy, 77 id. 493; Genet v. City of Brooklyn, 99 id. 306; Spencer v. Merchant, 100 id. 588; Matter of Sacket Street, 4 Hun, 92; People ex rel. Gage *41v. Lohnas, 54 id. 604; Voght v. City of Buffalo, 133 N. Y. 463; Hoffeld v. City of Buffalo, 130 id. 387; Troy, etc., R. R. Co. v. Kane, 9 Hun, 508; Osterhout v. Hyland, 27 id. 170; Cooley on Taxation (2d ed.), 662-763-775.

The objection with respect to filing the plans and specifications was not urged or argued upon the trial.

The plans and specifications were filed as recited in the ordinance and interested, parties had sufficient notice thereof and opportunity to inspect or object thereto.

The last question to be considered is whether the assessor spread the assessments upon the lands described by the common council as benefited and in proportion to such benefits. It is claimed that the assessor failed to assess all of the lands included within the district of assessment. H any lands were omitted it is evident that they were omitted through mistake; but it does not satisfactorily appear that any assessable lands were in-fact omitted. The complaint in this respect relates to a few feet of land that are a public alley, to a few feet of land that are part of a public street, or to cases where there is' a discrepancy between the record and actual frontage as shown by official maps, or where, there is a clerical error as to the frontage in the assessment-roll and where the amount of the assessment shows that the parcel was assessed for its whole frontage, or to cases of corner lots or lots of irregular shape or of less than the ordinary depth, and while the whole parcels are assessed, deductions or allowances were made from the frontage rate on account of their-not sustaining the same amount of benefits as regular formed lots of ordinary depth and situate- in the middle of blocks. It is evident that where the frontage rule is adopted, equity requires that such allowance and deduction shall be made in some manner in such cases. It is not very material whether they be made by.first assessing such lots and deducting the amount thus assessed from the total to be assessed and then dividing this balance by the total feet frontages of the unassessed lands and thus get the'frontage rate, or whether as is often done and has been repeatedly sanctioned by the courts, the assessor deeming a particular lot having twenty-five feet frontage, only, benefited equal to an interior lot of uniform width and ordinary depth having a frontage of twenty feet for the purpose of ascertaining the ratio,' calls the former twenty feet frontage, for in that case he assesses all of the land, but does not assess the irregular or comer or shallow (Lot at the same rate per foot frontage as adjacent lots, because he deems the benefits to it less.

*42Upon the trial) I was of opinion that the Union School lands were assessable for local improvements. In view of the public policy against exempting lands from such assessments, I did not suppose that the legislature had employed such language as to clearly show that it was intended to exempt lands held for educational purposes from local assessments,-but upon examination.of the act, section 23, chapter 51, Laws 1847, I am of the opinion that such lands were not assessable. The premises occupied by Lockport Union School, title to which is in the board of education, have a frontage of 232.6 feet upon this improvement and are assessed therefor at the same rate as other lands similarly situated, the sum of $1,619.20. This assessment should and could have been lawfully spread upon the other assessable lands upon the line .of the improvement. Even if we deemed the complaint well founded as to all of the alleged irregularities, with respect to -omitting lands, still this, assessment levied upon exempt lands and which must be borne by the city, is much more than was in any view of the case omitted from all the lands not assessed and which the plaintiff contends should have been assessed, and for that reason, also, the plaintiff has not been! prejudiced. Matter of Ferris, 10 N. Y. St. Repr. 480, and cases cited.

The assessor adopted the frontage rule of assessments, that is, he determined that all lands similarly situated with reference to this improvement were benefited alike, the cost of one-half the pavement- as constructed in front thereof. This action of the assessor is complained of as arbitrary and not a proper, exercise of his judgment. The frontage rule of assessment has been repeatedly approved and sanctioned by the courts and adopted by the' legislature in almost innumerable special acts, and experience demonstrates that for such an improvement as this it is quite as just and equitable as any other method of arriving at the amount to be assessed upon each parcel of land. The principal complaint is that many parcels of land occupied by large business blocks are assessed no -more than other vacant parcels of the same dimensions and otherwise similarly situate with reference to the improvement. The frontage rule has- been sustained by the Court of Appeals in similar cases. The assessor having full knowledge of the dimensions and location of all the parcels of land within the district of assessment and of the improvements thereon, was obliged to determine the proportion of benefits as well as the amount- of benefits. He could not take up each parcel and assess it independently the amount he deemed it benefited, for by so doing he might raise more or less than the sum needed' and he would *43be disregarding the other essential requirement of assessing in proportion to the benefit's. Upon the action of the common council determining the amounts of the expense to be raised by local assessment and determining that the lands described in the ordinance were specially benefited and directing the assessor to levy the whole amount thereon, there arose a conclusive presumption, so far as collateral attack by suit in equity is concerned, that the lands within such district were in fact all benefited and that together they were benefited to the extent of the amount the assessor was directed to assess thereon. His principal duty was, therefore, not as contended by counsel for plaintiff, to determine separately how much each parcel would be increased in value by the improvement by determining its value before and after, but to determine, in what proportion to one another the respective parcels were benefited. Matter of Mead, 74 N. Y. 221; Matter of Church, 92 id. 6; Genet v. City of Brooklyn, 99 id. 308.

It was competent for the assessor to determine that a vacant lot was benefited just as much as an improved lot similarly situated. It is not the building that is increased in value by a pavement, but the land itself. It would often cost less to duplicate the building after the approach to the premises is made more accessible by the improvement, than before. If the building could be replaced for less it is difficult to see how it would be worth more. State v. City of Newark, 31 N. J. L. 360-4*.*

The owner of the vacant land may next day after the assessment is levied invest moré in improvements upon his land than his neighbor who built before the levying of the assessment. The adoption of a different rule for such assessments would in addition to working such injustice be putting a premium upon leaving lands vacant until such improvements are made, and Tyould stifle enterprise, investments and progress which are so essential to the prosperity of a city, that public policy forbids the encouragement of a rule of local ássessments in proportion to valuations. Voght v. City of Buffalo, 133 N. Y. 463; Matter of Eager, 46 id. 109; Matter of Cruger, 84 id. 619; O’Reilley v. City of Kingston, 114 id. 439; Hoffeld v. City of Buffalo, 130 id. 387; Matter of Gardiner; 41 How. Pr. 255; Lebenthal v. City of Yonkers, 8 App. Div. 138; Osterhout v. Hyland, 27 Hun, 170.

The following cases in other states show how generally it has been held that assessors may adopt the frontage rule of assessment regardless of improvements. Cleveland v. Tripp, 13 R. I. 50; Uping*44ton v. Oviatt, 24 Ohio St. 232; State v. Fuller, 34 N. J. L. 227; Whiting v. Quackenbush, 54 Cal. 306; King v. City of Portland, 2 Ore. 146; Allen v. Drew, 44 Vt. 174; City of Ludlow v. Trustees, etc., 78 Ky. 360;. Sheley v. City of Detroit, 45 Mich. 431; White v. People, 94 Ill. 604; Stroud v. City of Philadelphia, 61 Penn. St. 255; Neenan v. Smith, 50 Mo. 525; Parker v. Challiss, 9 Kans. 155. 1

The plaintiff’s lands were hot assessed at the same rate per foot as the lands on the business part of the. street, for the. reason that the pavement is not so wide in front of - her lands as in the heart of the city. . It does seem that the assessment, upon the plaintiff’s lands is large and that the frontage rule may be inequitable in this particular case. It must be remembered, however, that this assessment-roll and the action of the assessor in the premises have been unanimously approved and confirmed by the common council and the mayor, all of whom possessed greater knowledge of all the facts necessary- to a proper determination of this question than could be presented to the court. They have acted judicially and had no interest in doing what they believed to be an injustice to any.person assessed. The assessor appears to possess, and I think he does possess, greater intelligence than is shown by some of his answers to questions. He was not called to the. stand until more than three - .years after hé spread this assessment-roll .and his official action should not be annulled with all the inequitable Consequences that would follow in this case, .on account of any careless or unintelligible •answers given by him at this'late day when his" memory is not clear. This assessor did not act arbitrarily in this matter.

The first assessment roll Was. not made until long after the plaintiff appealed from the ordinance, and the city authorities had determined to defend and sustain it. After the first roll was made objections were filed to it, and a hearing was had before the common ■council and the roll was annulled. The assessor was aware of these •objections and of the arguments made against the roll; .he freely conferred with the mayor and was advised by the learned city attorney, now the county judge of that county. . He knew well what his duty was ifi the premises and how he should make this assessment roll. . The most that the plaintiff was entitled to was the assessor’s honest judgment in apportioning these benefits, and I have no doubt, whatsoever that the assessor acted honestly and conscientiously and had in mind to assess each parcel, its just and equitable proportionate part of this total amount which the common *45council directed Mm to levy. We cannot annul assessment rolls because we think a more intelligent assessor or one who years afterwards could give a better account of his work should have been elected.

While these conclusions lead to a dismissal of the complaint, I do not award costs against the plaintiff, A public service has heen performed by the plaintiff in bringing this action and exposing fraud and corruption on the part of a public official which has resulted in his prosecution and conviction.

For .these reasons, if I had the power to award costs to the plaintiff, or to cancel any excess of interest that has been added to her assessment pending this litigation, I would do so.

A penalty should not be attached, to bring an action disclosing such facts as have been shown on this trial and I recommend that whatever excess of interest has heen added to this assessment as a penalty for nonpayment be canceled by the city authorities. In view of the fact that there is no provision of the charter making such assessments presumptively valid and that the only method for their enforcement is by a foreclosure of the lien of the assessment in which action the validity of the assessment could he contested it is not entirely clear that this suit in equity could he maintained, but the conclusion arrived at on the questions involved renders it unnecessary to consider this question at length.

The complaint is dismissed upon the merits, but without costs.

Complaint dismissed, without costs.