Manice and Havens against The Mayor, Aldermen and Commonalty of the City of New York, 8 N.Y. 120

Gardiner, J., delivered the opinion of the court: I concur in the views expressed by the Superior court in their decision in Wentmore v. Campbell, that the effect of the statutory proxdsions in relation to the powers of the city, is to authorize the corporation, after determining to grade a street or perform a public work of that character, to adopt'the course suggested by the defendant, or to execute the work at their own expense and after its completion, assess the costs and charges, and collect as in the case of an estimate and assessment prior to the commencement of the work.

This disposes of the third and fourth points made by the appellants. The objection that the common, council did not cause the work to be executed at their own expense, is met and answered, in the same case. They authorized the contract, the corporation were responsible, and the postponement of the payment to the contractors until after the collection of the assessment did not absolve the city from its obligation, but it was bound to take the necessary steps to levy the amount within á reasonable period, or to draw the money for this purpose from the city treasury.

Again, it is objected that, the common council did not declare xvhat persons or property was to be beneñtted, nor did they fix the limits of the property to be assessed.

The plaintiffs, in their complaint, allbge the passing of the ordinance o.f 22d September, 1848, the designation of assessors, and that they made an assessment including the work embraced in the original contract, and the subsequent alterations; that after completing the assessment, they gave notice through two newspapers of the fact, and of the limits embraced by such assessment; that this was returned, and .regularly approved by-the common council, without any objection, so far as appears, upon the part of the plaintiffs, whose property was within the assessed lim-. its.

If the common council, as the plaintiffs insist, were bound to designate the territory to be assessed, as the charter was silent as to the time when and the manner in which this was to be done, a confirmation of the report of the assessors, which included the Who.le subject, would be a substantial compliance with the requirement. Another objection is that there should have been a distinct assessment for each street and avenue. This is not required by the 175th

section of the act of 1813, in connection with

section 276 of the same statute under which the ordinance in question was passed, and this assessment made. The authority thus granted differs materially from that conferred by the 177th section, in reference to opening streets. Before the corporation can proceed under the

section last mentioned, three-fourths in quantity of those proprietors of lands fronting on such streets must petition for the improvement, and the assessment, by the provisions of the next section, is expressly limited to the lots fronting on the street, and those within half the distance of the next street or avenue. No such limitation is imposed by the 175th section, and its omission is strbng evidence of an intent to confer upon the common council a discretionary power in this respect.

Again it is said that the corporation had no right to include in the. same assessment, for work done under one ordinance below 34th street, additional expenses for work done above that street. The answer to this objection has already been suggested. If the .corporation are not-limited to the particular street or avenue improved, in the assessment, the territory to be embraced is a matter of sound discretion, and may be extended to all persons benefitted.

And as the same territory might he included in two distinct ordinances, there is no reason why the ex-pcpse incurred under each of them should not be collected under a single assessment. This course is unobjectionable, and has the advantage of being more economical than the one claimed by the plaintiffs. The ninth and tenth points were not discussed by the counsel for the appellants. The eleventh objection is that no personal demand was made on either of the. plaintiffs for the amount of the assessment.

The amount assessed after confirmation is made a lien on lots, of the owners and occupants; &c., “and such owners and occupants shall be respectively liable, upon demand, to pay the sums at which such lots, &c., shall have •been respectively assessed.” (§ 175.) The want of a demand by some person authorized to receive the money assessed would, I am inclined to believe, render a levy under the warrant illegal, and the corporation a trespasser.

The difficulty with the plaintiffs’ case is, that they have not in their complaint averred that no demand was made by any person thus authorized, but merely that “ Abner Sanford was appointed to collect the money mentioned in the assessment by the ordinance confirming it, and that no personal demand was made by the said Abner Sandford.” This is admitted, but it does not follow, in the language of the objection, that no personal demand was made before issuing the warrant. This is not alleged, and of course not admitted by the silence of the answer.

Again, the statute does not require that a demand shall be made before the warrant shall issue, but before it shall be levied. The language is “ that in default of, such payment, it shall be lawful for the Mayor, &c., by warrant under their hands and seals to levy the same by distress.” Here the warrant set out in the complaint, expressly directs the collector, one of the defendants, to demand and receive the sums of money of the parties named respectively, and “ upon neglect or refusal,” he is authorized to levy; not otherwise.

There is no pretence in the pleadings- or evideuce that the collector did not obey this injunction. The judgment, I think, should be affirmed. Willard, J., delivered a written opinion, in which he arrived at the same conclusion. Judgment affirmed.