#### Anson E. Alvord, Plaintiff, *v.*The City of Syracuse, et al., Defendants.

(Supreme Court, Onondaga Special Term,

May, 1899.)

1. Municipal corporations; — Discretion • of assessors not controllable by common council.

*Semble,*that where á city charter gives its common council power, in the matter, of assessments, either to “ confirm the roll or annul it, or refer it back to the assessors and make a new assessment ”, the common council "has nd power to dictate, and the assessors should not follow, an arbitrary plan; of apportioning an assessment, which the common' council has established by a resolution and has communicated to the assessors.

3. Same — Action to test assessment defeated by failure to correct an error on writ of certiorari.

Where, however, the charter provisions, regarding an action in court to determine the legality of an assessment, enact that no relief shall be granted based upon any error, etc., which could have • ■ been reviewed an'd corrected by certiorari, .the error of the assessors in obeying the common council is correctible on. certiorari by a person assessed, and where he has.never sought to have it thus corrected" he is precluded from maintaining a subsequent action to test the legality of the assessment.

Action to set aside assessment made for the opening of South. State street, in the city of Syracuse, and to enjoin the collection thereof.

*393William Nottingham, for plaintiff.

J. E. Newell, .for defendants.

Hiscock, J.

Proceedings were instituted by the city of Syra^ cuse, in 1896, for opening State street between certain points. This involved certain expenses or damages which, under the charter, were to be assessed as a local improvement upon neighboring property. The assessors made such assessment, and thereafter the various notices provided by the charter were given of the completion of the assessment-rolls, and of an opportunity-to examine the same and file objections, etc.

Objections were filed and, as provided by the charter, an appeal was taken from the assessment as made to the common council which, on or about November 15,' 1897, adopted a resolution sustaining the appeal, and returning said assessment-roll to the city assessors, who were *“*authorized and directed to reassess said assessment.”

The assessors did not proceed to make a new assessment, and on or about December 20, 1897, the council adopted- the following resolution:

“ Whereas, Local Assessment-roll No. 275, for the extension and opening of Mulberry street (now State street) was on the 15th day of November, 1897, referred back to the Board of Assessors to make a new assessment; and

*“*Whereas, The assessors have made no new assessment, but request instruction from the Common Council, with reference thereto; and

“ Whereas, In the judgment of the Common Council, the assessment made upon the property situated on said street, east of the railroad bridge, or East Brighton avenue, is largely excessive and not according to the benefits received by the property owners, and is unjust and inequitable, under section' 171 of the charter, and that a reduction should be made in the amount assessed on said property east of Brighton avenue; now, therefore,

*“*Eesolved, That the said assessors be, and they are hereby directed to reassess said property, east of said railroad bridge, at a sum in the aggregate not to exceed two thousand dollars ($2,000).”

This resolution did not seenre the desired action by the assessors, and, upon December 28, 1897, another resolution was adopted by the council, reading as follows:

*394“ Whereas, Local Assessment-roll No. - 275, for the opening of Mulberry street (now South State street), was, on the 15th day of November, 18.97, referred back to the Board of Assessors to make a, new assessment; and

. “ Whereas, The Common Council, by resolution duly adopted on the 20th day of December, 18¡97, directed the assessors to reassess the property on.said assessment-roll,, east of the railroad bridge on East Brighton avenue, at a sum in the aggregate not exceeding two thousand dollars ($2,000); therefore,

“ Resolved, That the City Assessors be, and they, are hereby directed to reassess the balance of the award of said damages upon the property lying west and north of said railroad bridge,”

’ Thereupon, the assessors did proceed to carry out the instructions of .'the council and make -a new assessment as directed in said resolution. The roll was completed, various - notices provided as ■to the assessment given, and objections thereto made, which, with, the assessment-rolls, were transmitted and referred to the common council,. which overruled the objections and confirmed the assess-' ment as made, by resolution, passed March 28, 1898. Thereafter the various intermediate steps, provided by the charter having been taken, the assessment went into effect, and a resolution was adopted by the council, April -18, 1898, .providing, in .substance, for' the collection thereof.. Plaintiff does: not appear to .have. .made . any objections to either assessment. He took no proceedings by certiorari to have the same corrected or set aside, and on or about May 10, 189.8, commenced this action.

. Complaint is made- of the proceedings leading up to the last assessment,- and the one involved in this action. . The main com.plaint is that in such last assessment the apportionment of the damages was not made 'by the assessors in any legal or proper manner, but that they simply carried into effect the .instructions of the common council, which, in the first place, had no .authority to give such instructions, and which, in the second place, seems to have acted "upon some arbitrary and undisclosed plan of apportionment. I regard this complaint as well founded.

When the first assessment-roll and the objections thereto' came before the council, it had .the powPr" either to “ confirm the roll or annul it, or refer it back to. the assessors to make a new assessment.” It. did not have -the power, under- any provision of the charter, which has been called to my attention, to take the place of -the .assessors, and make a new assessment. This was practically what it essayed to do.

*395The assessors had no right to accept and obey the action of the council, to this extent, if the latter attempted to impose it upon them. ' It was their duty, under the familiar principles applicable to such assessments, to exercise and work out their own judgment in such manner as should be just, and correct any errors in their ■first assessment. They seem to have followed the former, instead of the latter course. The result is that the assessment in question has, in effect, been made by the council, who had no right to make it, rather than by the assessors whose duty it was to make it.

The plaintiff, however, cannot recover in this action.

The errors complained of could have been remedied under a writ of certiorari, as the scope of that writ is established under the general principles of law and procedure, and especially under the provisions of section 145 of the charter. This being so, his case seems to come clearly within those other provisions of said section which provide that “An action may be brought in any court having jurisdiction thereof to determine the legality of an assessment for local improvements. * * * Such action shall be brought prior to the completion of the work * * * and no relief shall be granted the plaintiff or plaintiffs based upon'any defects, illegalities, irregularities or errors in said assessment-roll, or the proceedings upon which it is based, which , could have been reviewed and corrected by a writ of certiorari, issued pursuant to the provisions of this section.”

Judgment is, therefore, ordered for the defendants, with costs.

Judgment for defendants, with costs.