The rule is quite well established that in applications of this character, the petitioner must be confined to the specific allegations of fraud or substantial error. (Matter of Eager,46 N.Y. 100; Matter of Roberts, 81 N.Y. 62.) Having this rule in view, we will proceed to consider such of the points of the petitioner as are thus presented. The objection that the department of public parks and of public works had not jurisdiction to improve Tenth avenue, as well as the objection that the common council did not direct or order the work, is sufficiently answered by the fact that these departments had full authority to make the improvement by virtue of various acts of the legislature, and particularly under chapter 565 of Laws of 1865, sections 1, 2, 4, 8. The claim of the petitioner that Tenth avenue had been already laid out under chapter 115, Session Laws of 1807, and therefore it was subject to improvement by the corporation only when directed by ordinance and resolution of the common council, is also without merit. The argument of the petitioner's counsel is that at the time of the passage of chapter 565 of the Laws of 1865, Tenth avenue had been laid out, and that the latter act only conferred power to lay out streets, etc., and did not expressly or by implication include the power to alter, amend or otherwise affect these existing streets. This position, we think, cannot be upheld and is inconsistent with the evident purpose of the act of 1865, which was intended to give the entire control of the district north of One Hundred and Fifty-fifth street to the commissioners of the Central park. From the irregular character and unevenness of the surface of the land, the smallness of the population, and other circumstances, it was not adapted for improvement, according to the ordinary and accustomed mode designated for the remainder of the city, and for these reasons was committed to the charge of the Central park commissioners. That such was the intention of the legislature is supported by the construction placed upon chapter 564 of the Laws of 1865, in Astor v. The Mayor (62 N.Y. 580), which was enacted on the same day as chapter 565, and embraced legislation of a similar character in regard to Sixth avenue; *Page 13 and it was said that the effect of the enactments was to make the improvements contemplated in connection with the park, and as a part of a system which had been placed under the control of the commissioners. In that light the act in question should be regarded, and although Tenth avenue had at an early day been laid out, the commissioners were vested with jurisdiction to improve the same to the same extent as other streets within the district, as will be seen by reference to the various sections cited. Although section 1 speaks of laying out roads, etc., the second section declares, that all the provisions of the act shall be applicable to the streets, etc., exhibited upon the maps, plans or surveys filed, and section 8 makes it lawful upon the confirmation of the report of the commissioners of estimate and assessment as to streets laid out, for the commissioners of the park to cause such of said streets, etc., as they may designate for that purpose to be regulated, graded and improved as streets, etc., as they "may deem for the public interest and may direct," and confers upon them authority for that purpose. Upon the map of the commissioners filed in 1869, Tenth avenue is exhibited as laid out by them as far as One Hundred and Ninety-fourth street, and they shortly afterward established the grade thereof; in 1869, laid out a portion; and in 1874, discontinued another portion. The work was done upon the grade thus established. The right of the commissioners to carry out the improvement in question is also recognized by chapter 367 of the Laws of 1866, which affects this district of the city and provides for its immediate connection with the Central park by the new avenue St. Nicholas, and by the seventh section conferred upon the commissioners with respect to the avenue to be laid out, and to that portion of the Seventh avenue lying north of the Central park, "and all streets, avenues, roads and portions of the city required by law to be laid out or improved under the direction of the said commissioners, and the laying out, grading, regulating, sewering, paving and improving the same, all powers, and to perform all the duties now or heretofore possessed, enjoyed or exercised by such commissioners in respect to Central park in *Page 14 said city, and by the mayor, aldermen and commonalty of the city of New York, and of the several departments of said city, in relation to streets, avenues and similar improvements thereof in other parts of said city." The counsel for the appellant lays some stress upon the words "to lay out" and other phraseology of a similar import, which are used in some of the statutes cited, and it is urged that these words do not include any other act affecting existing streets or avenues. We think such an interpretation, in view of the various provisions of law to which reference has been had and the intention manifested by the legislature to place the park under the control of the commissioners, is too restricted and unauthorized, and that the language employed must be construed to include all which was required to be done to carry into effect the purpose in view.
Even if Tenth avenue had been previously laid out, no reason exists why the park commissioners should not be authorized under the power conferred to do all the acts which were necessary to complete the work under their charge. The authority to "lay out," which is the greater power, would necessarily include the work required for regulating, grading, setting curb, gutter, flagging and superstructure, which were incidental to the power to lay out and essential to the finishing of the work, and it would be inconsistent with the object of the various acts of the legislature to hold that greater power did not comprehend the lesser. The authorities cited to the effect that these words do not affect any existing street or avenue do not sustain this doctrine. The People ex rel. Lasher v. McNeil (2 N.Y. Sup. Ct. [T. C.] 140) and Garretson v. Clark (Hill Denio, 162) relate to the construction of the highway act, and have no bearing upon a question when the legislative intent is to be gathered from various legislative enactments, as well as the object to be attained thereby. In the Matter of EmigrantIndustrial Savings Bank (75 N.Y. 388, 391), which is also cited, the question now presented did not arise, and it was held that there was no power to improve streets, except such as were authorized to be laid out, which, it was decided, appeared to be those north of One Hundred and Fifty-fifth *Page 15 street. The court was not called upon to decide as to the language of the act in this respect, but as to the extent of territory, and hence no construction was placed upon the words cited, and the remarks of the learned judge do not affect the case considered. Giving the words referred to a reasonable construction, and regarding the intention of law to place the Central park under the control of the commissioners, they fairly include any thing which is required to be done to carry out the purposes of the legislation to which they related. Any other or different construction would leave two systems of improvement in operation for this part of the city, which never could have been intended, and is contrary to the manifest purpose in placing the park in the sole charge of the commissioners. The intention of the law would also be frustrated and set at naught, and the party benefited escape the payment of an honest assessment, receive all the advantages to be derived from the same, and the expense of the improvement be cast upon the overburdened tax payers of the municipality. They should not thus be shifted from, the property actually benefited to that of the tax payers for light and trivial causes. The petitioner's counsel does not rely entirely upon the construction of the act of 1865 claimed by him, but also seeks to get rid of and avoid the effect of its provisions by various objections, to the effect, 1st. That it was modified. 2d. That it was superseded and repealed. 3d. That this act, as well as the act of 1867, referred to, was unconstitutional and void. 4th. That the charter of 1870 relegated to the common council the authority to institute or cause the improvement of streets.
We will proceed to examine and consider each of these objections: First. The claim that the authority of the park commissioners over the improvement of streets, under chapter 565 of the Laws of 1865, is modified by chapter 581 of the Laws of 1865, by requiring notice to be given to the common council of the necessity of improving a street, and by requiring such body to do the same, cannot be upheld. The latter act relates "to the Croton aqueduct in the city of New York, and certain streets *Page 16 in said city," and was intended to change the location of the Croton aqueduct south of Ninety-second street, and connect it with the new reservoir in the park. The aqueduct was in charge of the Croton aqueduct bureau, which also controlled the sewerage and drainage of the city, and connections with the aqueduct were to be laid in the park. The object was to give the commissioners some authority in reference to the improvements which might affect the park, but which were not under the control of the commissioners. The intention of the legislature evidently was to increase the powers of the commissioners, and not to limit or curtail them in the exercise of their authority in reference to the aqueduct. Assuming, however, that the powers of the commissioners were modified, this modification was repealed by the provisions of section 7 of chapter 367 of the Laws of 1866, which is repugnant to the interpretation insisted upon. The claim made is in opposition to the general rule applicable to the construction of statutes and the manifest intention of the respective acts referred to. It also should be noticed that the point presented is not taken in the petition, and no suggestion is made or fact stated showing that notice had been given. The ninth allegation, that it was done without authority, is a conclusion of law and does not cover it.
Second. There is, we think, no ground for the claim that the provisions of section 8 of chapter 565, Session Laws of 1865, and of section 7 of chapter 367, Session Laws of 1867, or that the act of 1865, was superseded by chapter 697 of the Laws of 1867. The sixth section of the last-named act, which is relied upon, is restricted in its operation to the district of the city mentioned in the first section of the act, which is that portion of the city which is bounded northerly of the southerly side of One Hundred and Fifty-fifth street, thus leaving the northerly portion subject to the act of 1865 and 1866, and unaffected by the act of 1867. This is a full and complete answer to the objection.
Third. The objection that chapter 565, Session Laws of 1865, and chapter 697, Session Laws of 1867, are unconstitutional rests upon the ground that they transfer to the commissioners who *Page 17 were not elected by the electors nor appointed by the authorities of the city, power confided to the mayor, aldermen and commonalty of the city of New York, and the officers of the corporation in violation of the Constitution as to local officers. The case ofAstor v. The Mayor (supra) disposes of this question adversely to the appellant.
Fourth. There is no force in the position that the charter of 1870 delegated to the common council the authority to initiate or cause the improvements of all streets in the city of New York. This claim is based upon the language of subdivision 11 of section 21 of the act. The section cited confers upon the common council power to make, modify and repeal ordinances, etc., and prescribes penalties for a violation of the same in the matters and for the purposes specified, and among other things by subdivision 11, "to provide for and regulate the streets, pavements, crosswalks, curb-stones, gutter-stones and sidewalks." By the twelfth article of the act of 1870 (Chap. 170), the department of public parks is given control of the same in the place of the park commissioners, and all provisions of law in regard to the maintenance and government of Central park are made applicable to the department of parks. This is then a later provision of the act in that respect and should control instead of the preceding section. But both of them are consistent with each other. And while the former section may have full scope in many cases it cannot be regarded as rendering the latter inoperative and as a repealing clause of statutes which are distinctly recognized in the government of the park. To hold that the power given by these statutes, which is recognized in the act of 1870, could be repealed without a clause to that effect would be contrary to all ordinary rules of interpretation applicable to the construction of statutes and against the manifest intention of the act. In support of this view, chapter 383 of the Laws of 1870, section 16, expressly provides "that all acts conferring powers and devolving duties upon the board of commissioners of the Central park are transferred to and conferred upon the said department of public parks." It follows that Tenth avenue, which had been improved under the several *Page 18 acts referred to was laid out, graded, established and improved by the commissioners of the Central park, under the jurisdiction and authority of the department of public parks, until it was transferred to the department of public works in the year 1872. The opinion of the court in the Matter of Zborowski (68 N.Y. 88), cited by the appellant's counsel, does not sustain the position contended for, or uphold any rule which is adverse to the views expressed.
In the various statutes which have been cited, there is no provision which deprived the commissioners of the powers exercised by them in carrying out the improvement, and we are unable to discern any want of authority or jurisdiction in levying the assessment complained of. It is insisted that the departments of public parks and works had no authority to dispense with a contract founded upon sealed bids and proposals. The department, as we have seen, succeeded to all the powers and authority of the commissioners of the Central park, and among them was the right to make improvements in their discretion within the park. As to streets and avenues, not strictly within the limits of the park, section 7 of chapter 367 of the Laws of 1866 (supra), after conferring adequate authority, as we have seen, upon the commissioners, also declares that "it shall be lawful for the said commissioners to do all the work required tobe done by them by days' work, or by contract, or in such manneras they may deem expedient." The charter of 1870 (Chap. 137, § 4), requiring contracts to be advertised, and sealed proposals, and to be let to the lowest bidder, only applies to work done and contracts made or let by authority of the common council. (Greene v. The Mayor, 60 N.Y. 303.) As this work is not within the provision referred to, such provision can have no application. The work was commenced under the Laws of 1865 and 1866, and three-fourths had been completed before the enactment of the charter of 1873 (Chap. 335, § 91), by which this requirement was extended to all work thereafter done by the city, excepting such as was then in progress, as was "authorized to be done otherwise than by contract." It is also urged that the work *Page 19 was never authorized by the common council or by the department of public parks. This objection is based upon the ground that the resolution authorizing the work directed the treasurer to take the necessary measures to carry it out. This did not confer upon the treasurer any power to act, except under the supervision and direction of the commissioners, and was not a transfer of their power to him. He was merely an agent or employee to look after the work, and to attend somewhat to its details and carry out their directions, but was not vested with any control over it. It also appears that the resolution referred to was passed in May, 1871, and the work was prosecuted under the department of public works, which, by chapter 872 of the Laws of 1872, became vested with authority and jurisdiction over the park department and had ample power for that purpose. The claim that the cost of the improvement of Tenth avenue is not payable by assessment or assessable, is not well supported, for it is apparent, from the discussion had, ample authority exists for making the assessment. The allegation that the exemption by the assessors of several pieces of land fronting on the avenue, designated as streets, was erroneous, is also unsupported. Conceding that these lands fronting the avenue were laid out by the park commissioners as streets, being so designated on the map, the assessors had a right to say that they were not benefited by the improvement, and for that reason were not assessable. It was for the assessors to determine whether they were benefited, and their decision might be reviewed by the board of revision; but it is not the subject of review in this proceeding. It is the especial province of the assessors to determine the amounts to be assessed upon the different lots, and unless they are shown to have been unequal and unjust, the assessment will not be disturbed, even in a proceeding to review the same. If the apportionment made is not equitable, it is an error of judgment, and not a fraud or an irregularity. (In re Eager, 46 N.Y. 109.)
The only deed introduced in evidence by the petitioner was of his own lots, and there is no proof as to the title of the *Page 20 streets. The petition does not show that complaint was made that any portion of the lands laid out as streets had not been assessed. The only designation is in the eighth objection, to the effect that many parcels of land fronting on the avenue had been omitted and not made the subject of assessment, or assessed for benefit, although said lots have been greatly benefited. This is hardly sufficient to call attention to the objection urged, that streets were exempted, and to advise the city authorities of the real character of the objection. It may also be remarked that the rule as to awarding damages to the owner of lands dedicated as streets when lots front them is, that they should be merely nominal. (Wyman v. The Mayor, 11 Wend. 486; Matter ofSeventeenth St., 1 id. 262.) The onus is on the petitioner to show that the streets were not dedicated.
Another answer to the objection is, that it does not appear that any value was placed upon these lands by the commissioners of taxes and assessments, and it is proved that they were not defined on the tax map of the city, and therefore there was no basis upon which the assessment could be made, and it was unauthorized. The assessment must follow the valuation made by the commissioners of taxes, and as there was no lawful valuation proved and designated of the "streets" in question, as assessable property, the assessors had no power to make the valuation or to assess the same. (In re Churchill, 82 N.Y. 288.) It is also urged that the amount assessed is not the cost of the work, which is alone assessable. In reference to this subject, there is a conflict in the evidence, and it certainly is not so strongly preponderating in favor of the petitioner as to authorize a reversal of the proceedings upon that ground.
There is no charge of fraud in the petition, nor does the evidence establish fraud; and it cannot be presumed without proof. (In re Bassford, 50 N.Y. 509; In re Willett, 70 id. 490.) Extravagance is not enough to establish fraud. In the absence of fraud, an assessment should not be vacated without proof of substantial error, by which the petitioner's rights have *Page 21 been affected. (See Laws of 1874, chaps. 312, 313, passed on the same day.)
No such error is made to appear, and the order appealed from should be affirmed.
All concur with RAPALLO, J., except MILLER, J., dissenting, and DANFORTH, J., not voting.
Order of General Term reversed, and that of Special Term affirmed.