(concurring in result). I concur in the result as far as the order appealed from is concerned.
I conclude that petitioners are properly taxable for their respective shares of the cost of the main or trunk sewer system, but not for lateral sewers not accessible to or adjoining their respective properties.
*159The Town Law contemplates the construction of a general system of trunk sewers at the expense of the entire community embraced in the sewer district. While it is not specifically or definitely so stated, it is patent from the provisions of sections 190, 191, 191-a, and particularly section 192, which reads in part: “ If a sewer or drainage district is proposed, such map shall show all outlets and the terminus, course and a profile of each proposed main sewer or drain together with the location and general description of all sewage disposal plants, pumping stations and other public works, if any.” (Italics supplied.)
On the other hand, section 199 provides: “ Whenever a sewer * * * district shall have been established * * * and a trunk system of sewers * * * shall have been constructed * * * or contracted for, the owners of the real estate fronting * * * upon * * * any street * * * may petition the town board in writing for the construction of a lateral sewer * * * (Italics supplied.)
By section 202-a the expense of the construction of trunk sewers is to be paid by local assessments upon the lands benefited by the improvement. The same section applies to lateral sewers.
In each instance the town board is to hold a meeting for •hearing objections, must decide that the improvement shall be made, approve the plans and award a contract for the construction.
Section 197 provides for the physical construction of general improvements, including a trunk sewer system.
Section 199 provides for a separate proceeding of the same kind with regard to lateral sewers.
As far as can be determined by the record in this case these provisions were not followed. It appears that the original petition, and the proceedings thereon, provided for a complete sewer system, including both a trunk system and lateral sewers for the whole district with one plan, one estimate of cost and one bond issue.
It appears that the trunk sewer system has been substantially completed. Lateral sewers have been constructed in certain areas and not in others. No assessments of the whole cost of either the trunk sewer system or of the different lateral sewers seem to have been made, advertised or reviewed, as provided by subdivision 1 of section 231, but the board elected to proceed under subdivision 2 of that section.
The latter provides that the board may, upon the completion of the improvement or at any time prior thereto, estimate the *160entire cost of the improvement (not exceeding the amount estimated in the petition), issue bonds for such amount and annually assess “ an amount sufficient to pay the principal and interest of such bonds as the same shall become due ” and also the cost of maintenance.
But this provision does not permit the merger of trunk and lateral sewers in one general assessment.. It relates to the “ completion of the improvement ”. Those words clearly relate to the different kinds of improvements elsewhere provided for in the law. It does not dispense with the necessity of a separate petition for each lateral sewer nor permit the assessment of the cost of lateral sewers upon or against premises not adjoining the streets in which they are constructed. It does hot dispense with the proceedings for determining the cost of each improvement separately. It contemplates a separate estimate for each “ improvement ”. That, of necessity, means for the trunk sewer system as one “ improvement ”, and each lateral sewer as a separate “ improvement ”.
I agree with the opinion with regard to the 11 rule of thumb ” method by which the benefits were determined. The method used does not appear to have any reasonable relation to the benefits but to have been based upon a preliminary estimate showing what each taxpayer would be charged if the whole system, both trunk and laterals, should be constructed within the original estimate of cost of the whole project including both kinds. That estimate does not appear to have had any relation to benefits.
The provision in the order appealed from for restitution was possibly warranted by section 1300 of the Civil Practice Act, but this proceeding was not brought to review those particular assessments. However, if the order appealed from is reversed, the taxes already paid should be credited by the town board upon the reassessment to be made.
The order should, in my opinion, be reversed with directions to determine the cost of the trunk sewer system (disposal plant, etc.) separately and to assess the cost thereof upon all the lands in the district according to the respective benefits resulting therefrom upon some reasonable basis and to assess the cost of the respective lateral sewers against the lands adjoining the streets in which constructed. No proceedings seem to have been taken in that regard. For the purpose of this appeal the assessment against these relators should be confined to the cost of the trunk sewer system only. Any questions that may arise with regard to lateral sewers will have to be met if and when *161they arise. This court cannot make the reassessments in that regard.
All concur with' Harris, J., Larkin, J., in result only, in a separate opinion. Present — Harris, McCurn, Larkin and Love, JJ.
Order reversed on the law, with costs and matter remitted to the Town Board of the Town of Ellieott to proceed in accordance with the opinion hy Harris, J. [See post, p. 1056.]