#### Cyrus Cleveland *et al.,*App’lts, *v.*The City of Yonkers, Resp’t.1

*(Court of Appeals,*

*Filed June 28, 1889.)*

'Taxes and assessments—Yonkers—(City oe)—Public improvements— Laws 1881, chap. 184 ; Laws 1887, chap. 19.

Under the charter of the city of Yonkers (Laws 1881. chap. 184; Laws 1887, chap. 19), the common council of that city has power to extend or enlarge sewers already completed and paid for by an assessment upon the property adjacent thereto, and apportion the expense upon the lands benefited.

Appeal from judgment of the supreme court, general term, ■first department, affirming an order of the special term, West•chester county.

*George 0.*Holt, for app’lts; *Joseph F.*Daly, for resp’t

1

 See 22 N. Y. State Rep., 863.

Danforth, J.

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 benefitted 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 *&*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 defendants 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 arc 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, *566when necessary, be extended at the expense of property benefitted thereby, 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, nor 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 benefitted. Laws of 3881, 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.