The question to be determined is, whether the statute of 1870 (ch. 383) is applicable to this petition. If it be not, then the order below vacating the assessment is right; otherwise the order below should be modified by directing that the assessment be reduced by the amount of the unlawful increase of expense, included in the assessment, to be ascertained and calculated in the manner pointed out by the statute.
The act above mentioned was passed on the 26th of April, 1870, some months before the petition in this matter was presented. The cases relied on by the respondent’s counsel are inapplicable. In Eager’s ease the proofs *531had been taken previous to the passage of the statute, and in Bemsen’s case the petition had been presented. It was properly held that as to those cases the ■ statute was inapplicable. But the matter is quite different now. The application here was made under the statutes as they existed when the petition was presented, and must be governed by the law as it stands now. That the statute is applicable to assessments made prior to its passage, and is not unconstitutional, is too clear to require the citation of authorities. The point was distinctly passed upon by Judge Ingraham in the Matter of Beams, (17 How. Pr. 459,) and I have quite recently gone fully over the subject and collated a large number of authorities, in the Matter of Broadway, decided at special term, in April last.
[First Department, General Term, at New York, April 3, 1871.The order below should be modified accordingly.
Order modified.
Ingraham, P. J., and Cardozo, Justice.]