The opinion of the court was delivered by
Strong, J.Fo.r our opinion upon all the questions raised upon this record, except two, we refer to another case between the same parties, decided at this term. To what was then said respecting the question, whether the street graded was a permanent street, if may be added that, in this case, the dedication, to public use was established, by the proof that after the termination of the lease to Garrard, the leases were renewed, and the streets recognised in the renewed leases, and lots were also sold calling for the streets: 19 Wend. 128; 1 Hill 198.
On the trial, the defendants offered to show that they had asked permission of the street commissioner and street committee of the city, to take up the pavements, at such reasonable points as they *63might indicate, for the purpose of examining them, and that the privilege was refused. The offer was overruled by the court, and this is assigned for error.
The offer appears to have been made for the purpose of showing an unwillingness on the part of the plaintiffs to have the value of the work done tested. But the value of the grading and paving was not in issue between the parties. The thing to be ascertained was the amount of costs and expenses. The evidence offered was, therefore, immaterial. Besides, the refusal of the street commissioner and street committee could not prejudice the city, unless it was shown that they had authority to bind the city in this matter^
An additional point was also propounded to the court. It was that the ordinance relied on in this case does not, in point of fact, assess any definite tax, or any tax at all; and that it was not competent for the councils to sub-delegate thAíFpowéfs of taxa'-iron under'the' Act of Assembly to the street commissioner.
ThTs“the"court refused to Affirm. We have not been shown how this affects the case. It was the Act of Assembly, not the ordinance, which charged the burden on the lots; and it was the Act of Assembly that directed the street commissioner to make out the assessment. It was not, therefore, required that the ordinance should assess any definite tax, or any tax, and there was no delegation by the councils of their power of taxation. It follows, that the court was not in error in refusing to charge as requested.
The judgment is affirmed.