The action was brought to set aside, as a cloud upon the plaintiff's title, an assessment for the construction of Harriman avenue in the city of Yonkers. When the common council of that city determined to open the avenue in accordance with the provisions of the charter, it fixed a district of assessment on which the cost of the opening was to be laid. When it determined to improve the street by grading and laying curbs and gutters, it again fixed a district of assessment for that improvement. The second district omitted two tracts of land included in the first. Over a year elapsed between the resolution of the common council which directed the opening of the street and fixed the assessment district therefor and that which directed the grading and curbing of the street and fixed the assessment district for that work. Under the charter one-half the number of the board of aldermen was elected each year, and the personnel of the *Page 27 board, intermediate the adoption of the two resolutions referred to, had changed in two or three members. The plaintiff charged that this change in the assessment district was made in bad faith and avoided the assessment.
We think there was no evidence given sufficient to establish that charge. The two proceedings were entirely independent, and the charter required the common council in each case to fix a district of assessment. It is urged that, necessarily, the same property was benefited by the construction of the street as was by its opening. If that proposition should be accepted, the discrepancy in area between the two assessment districts no more tends to prove that the second district was too limited than that the first was too extensive. The common council which defined the limits of the second district could not be concluded by the action of its predecessor, which defined the limits of the first. (People ex rel. N.E. Dressed Meat W. Co. v. Roberts,155 N.Y. 408; People ex rel. Eckerson v. Zun del, 157 N.Y. 513.) The land included in the first district, but excluded from the second, was situated about half a mile from the new street, the assessment district for which was made unusually large, because the object of opening the street was to give access from a large part of the city to a new railroad station. In such a case any determination of the limits of an assessment district must necessarily be to some extent arbitrary. Had the omitted property been excluded from the first assessment district no one could have asserted that the action of the common council was erroneous, much less taken in bad faith. The case does not fall within the principle of Copcutt v. Yonkers (83 Hun, 178), which was exceptional in its features, and the learned judge at Special Term was, therefore, correct in holding that the allegation of the complaint that the action of the common council was illegal and oppressive was not made out.
It appeared, however, on the trial that eighty-five per cent of the amount of the assessment, against which the plaintiff seeks relief, was imposed for the expense of curbing and guttering the new street, and that no part of the lands of the *Page 28 plaintiff fronted on that street. By section 19 of title VII of the charter (Laws 1895, chap. 635) it is enacted that the expense of setting curbs shall be assessed only upon lots of land that front upon the street in proportion to their frontage. To this extent the assessment was clearly invalid. In answer to this the appellant contends that no such objection was charged in the complaint. It is true that this irregularity is not expressly stated in the complaint, though it may be some of the allegations of that pleading are sufficiently broad to cover it. But evidence of the fact showing the invalidity of the assessment in this respect was admitted on the trial without objection, and the point seems to have been expressly taken there, for the learned judge notices it in his opinion. The inclusion in the assessment of the cost of this part of the work rendered the assessment illegal either in whole or part, and for this reason we think that the Appellate Division was justified in reversing the judgment of the trial court.
The order appealed from should be affirmed and judgment absolute rendered for the plaintiff on the stipulation, with costs.
GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN and WERNER, JJ., concur.
Ordered accordingly.