The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-01-29
supreme Court.
SPECIAL TERM.
Before Jadpe Roosevelt.

JAN 20 More,oood others Us The Corporation of Ner
Fsk.-Tbs is q complaint arising out OF assessment
the expenee incurred by the Cooperation in tagging
the sidewalks of the plaintiffs in Seventeenth street be-
tween the Fifth and Sixth avenues. The plaintiffs ask
that the be declared void that all
collect the assessed be perpetuay stayed by ia
junction ard that they be relieved from any payment
account the work end their lots disc sarged from the
apparent lieH created by the proceedings. The main
grounds Of complaint sre-lst That the plaintiffs we're
deceived and mised by the Street Commissioners no
tce calling for objections TO proposition fer aygi9g
only feet in width to which they had Digestion
then wi hout further notice angling the plan into
fourteen feet TO which they had great objections
I'd That The work YVES badly done and in conformity
with the contract that the price was unreasonable for
such work. that there was couson between che coatra,
tor Wilson and Brooks the inspector and that the
fcate of the latter that the contract had been fulued
false and fraudulent Sd That OF the
without Law removed and another put in his place
18th That only one OF the assessors instead OF the three
acted in making the assessment, although the whole
lumber signed the return. 9TH Thit the Common
Council con armed the assessment with ut notice
Brooks certificate false and that the contract had
not been piled with the part OF the contractor.
Judge Roosevelt, in giving his decision said :-Sone
of these it is be disguised, grave charges
AS to the first the Street Commissioner certainly
yery remiss reeasDg the parties by the notice he pub
.hed But the la~ required strictly no notice at all
The Corporation the very terms OF the law were made
the judges of the Necessity expediency OF ierag
and directing the pitching and paving of the streets of
the city divers other matters relating to the health
and comfort OF its inhabitants and in all cases where
they deemed it necessary for the more speedy
Of their they were authorized TO cause
all such works might be necessary Tor Of the pur
poses aforesaid to be executed and done at their own
expense count Of the persons respectively upon
whom the same might be assessed sc However repre-
bensibe therefore may have been the csrelesness Of
the street oner it cannot invaidate the erd
nance which directed the work to be done. Next to
the fraudulent conduct of the contractor and inspector
there is dispute this point AZ to the mere fart
There h fsr presumption also, that these two persons
conspired together to slight the work and divide
the profits between them The yeriiet OF the
Jury . ally to sAt the s.s Sq ss
confirmed. They admit in their complaint They go
further They alege that they put In renonstrance
and were heard before committee OF the Common Oeuu
ell that they made out clear OF fraud and that
one or more of the members even personally examined
the premises and saw and knew the fraudulent manner
in which the contract had been executed The commit
tee Notwithstanding, decided against interfering with
the assessment and the Com Council confirmed their
decision Thus 1t will be that the parties have al
ready once been heard before competent Jurisdiction
they brought forward should have brought forward
oil their objections After full hearing the case most
they did not appeal They sued ont no writ Of certorara
to revive the Objectionable determination Can they
colateray call that determination in question: The
Court think not Had fraud been charged the part OF
the Corporation ITSELF and not only charged but proved
the might have presented diereat aspect Fraud
vitates the most solemn judgments But the plain
tis have adduced such proof All they have shown
IA that the CorpoI cheated Now to charging
Of the assessors and as to all three not acting The
law after authorizing the Corporation in these cases to
cause the work to be done providing for making uader
their direction g. It's 20 just and equitable assessment
of expense among the owners occupants OF all the
houses and lots intended be benefited thereby, in
proportion nearly may be- to the advantage which
each shall be deemed to acquire The word assessment
is obviously used In the sense apportionment
To apportion the expense Justly and equably is the
end TO be accomplished aud for this purpose the Corpo
ration, IL is further provided shall appoint such skifu
and competent dieinterested persons they shall
may think proper No particular number is required
That rs well as the selection s left entirely to the dis
erection of the Common Council Before entering upon
their trust, they to take oath to make the est
mate and assessment fairly and mpartialy according to
the best Of their skill and Judgment There is
plant in this that they did not do So The appor
Ionment therefore to assume was just and fair
But IL is said they did not all in makingt All
Joined In certifying the esme in writing to the Common
Council But that, 1t is said, not enough The
Common Council moreover ratified 7 the proceeding.
But that too it is said did not the defect And
when the law declares that the assessment ratified
shal be binding and conclusive these words also, 1t
is said nothing and Judicial opinions are cited to
give color to the doctrine. i am satisfied they mean
more than nothiDg-they mean somethipgj ana az the
expressed will of the legislative branch OK the govern
ment confessedly within its constitutional power are
binding and conclusive the judiciary There the
question OF acting not acting open for consideration IL
would appear from the evidence that s the three per-
sons appointed TO make the apportionment (Which In
these cases IL should be borne in mind ia little more
than mere operation OF fgures they did not literally
act did certainly participate in the consultation and
concur in the result And ~ it s not pretended that
c .laiufs eGr red ary injury rom ths alleged cris-
sons Of the sssesscrs mere technical objection would