The provisions of the act of 1S5S, in most of the applications under it for relief are not properly understood. They are only intended to relieve against fraud or legal zrregalarity in the proceedings relative to an assessment or the proceedings to coEect the same. Keeping in view the object of the statute, it is apparent that it does not authorize any inquiry whether the work has been well done, or whether the contract has been fuEy performed, or whether the materials used are according to the specifications, or whether the common council had aE the surveys and certificates of inspectors, as required by the ordinances..
These matters belong to the common council as the law was formerly and now is, the board of revision, and do not come within the provisions of this statute, except in cases where fraud is alleged to have been committed. This application is not founded on any aEegations of fraud, but the petitioner seeks relief for the siqpposed legal irregularities in the proceedings.
The first objection is, that the common council have no authority to assess for repairing a street. The power to . *167assess the expense for paving a street is admitted to exist under section 175 and 176 of act of 1813, p. 407. The subsequent authority to the common council to repair the streets and employ persons therefor in sections 193, 194 and 195, does not prevent the charging the expense thereof to the owner. Even if it did, it would not apply to this case of an entirely new pavement, after raising and altering the grade. Either repairing or repaving may be, under these sections, made a charge upon the property.
It is, however, urged that the ordinance of the corporation passed in 1824, by which it was agreed that the streets should be kept in repair at the public expense after they are once paved at the expense of the owner, prevents any such assessment.
In Rhinelander agt. The Mayor, &c. (24 How. R. p. 304), this question was raised, and the justice expressed the opinion that the common council could not bind themselves not to assess for such repaving. That case has been, to some extent, reviewed, so far as. it held that the common council could not impose part of the expense of paving a street on the public ; and I cannot assent to the doctrine that the common council may not provide by ordinance for repairing and repaving streets at the public expense. I do not, however, consider it necessary to pass on that question here, because this does not come within the provisions of the act of 1858. It is not an irregularity in the proceedings in making the assessment, nor in collecting it. If the common council have made a contract with the owner which they now seek to violate, the remedy is not under this act.
That ordinance also applies only to streets paved after its passage, and there is no evidence to show, when West street was originally paved. The objection to the ordinance of July, 15, 1864, is not valid ; it was passed by both boards on the same day. That could not be done, unless by unanimous consent. The unanimous consent required, is the con- . sent of all the members present at the time of its passage. *168This appears from the fact that no objection was made at the •time, and that all the members present voted for the ordinance. Nor was it necessary to publish it for two days previous. That was necessary when the first ordinance was passed, but was not necessary for its amendment. The expense originated under the first ordinance, and a publication then gave notice to the owners of the contemplated improvement, it thus sattisfied that requirement of the statute.
Another objection is, that no appropriation was made by law before the contract was made {Laws of 1857, ch. 446.) It is a sufficient answer to say that this provision does not apply to cases where the expense is charged upon the owners, and not on the public treasury. The authority to advance to the contractor is under another statute, and the amount so advanced is refunded to the city when collected from the owners.
The other objections to the mode of doing the work and the want of proof annexed to the assessment roll, are not grounds for vacating this assessment. The stipulation shows the inspector’s certificates were in the croton aqueduct department. .
The remaining objection is, that assessors named in the ordinance did not make the assessment. The assessors had been changed between the passagé of the ordinance and the signing of the assessment roll. The statute session 1859, chapter 302, directs the duty of assessing to be done by the board of assessors for the time being. The ordinance should have directed the assessment to be made by the board, and it was unnecessary to name them individually.
The assessment appears to have been made by the board, and there is in this respect no irregularity of which the petitioner can complain.
The assessors should not have included any charge for making the assessment. The allowance of two per cent for making the assessment is no longer a legal charge.
I have heretofore expressed this opinion that, as the amount *169was very small, I did not consider it advisable to vacate an assessment in all other respects valid.
The board should not include such a charge; and if persisted in, the court will feel bound to grant relief from ■ it in cases which shall hereafter be brought before it.
The order appealed from is affirmed.