The opinion of the court was delivered by
Magie, J.No contest is made as to the power of the town of Union to assess the cost and expense of sewers built by it upon the property benefited thereby.
Such power was required by the general “Act respecting •assessments for local improvements in towns and townships,” *68approved March 23d, 1883, to be exercised by assessing such cost and expense upon the land and real estate benefited, in-proportion to and not in excess of the benefits received from the sewer. Rev. Sup., p. 548, § 263. Any excess of the cost and expense over the benefits is to be borne by the town.
The writ brings up the assessment on prosecutors’ property made for the Morgan street and Palisade avenue sewer, and prosecutors’ contention is, that they are assessed more than they ought to be assessed therefor, because other property benefited by the sewer was not assessed.
The proceedings returned show that the whole cost and expense of the sewer was imposed on property adjudged to be benefited. If therefore it is shown that other property was in fact benefited, and has not been included in the assessment, prosecutors have demonstrated that their burden has been unduly and illegally increased. Righter v. Newark, 16 Vroom 104.
The affidavits taken under a rule conclusively show that the sewer in question is one into which several lateral sewers, were and are intended to discharge their sewage. Some of the lateral sewers, at the time of this assessment, had been built and connected with the sewer in question. Property along those lateral sewers then constructed is clearly shown to have been directly benefited by the construction of the sewer in question, which, afforded them an outlet. 'For such benefits an assessment could have been made. Kellogg v. Elizabeth, 11 Vroorn 274. If the property so benefited had been included in the assessment, the proportion of cost and expense imposed on prosecutors-would have been diminished. It was error therefore not to-extend the assessment at least to these properties thus benefited.
Prosecutors called the attention of the commissioners and' the town authorities to the error and inequity of such an assessment by a proper protest. Their objections were unheeded, and the erroneous assessment was made and confirmed.
Under such circumstances, prosecutors are entitled to have their assessment set aside, with costs, but before such a rule-*69be entered, an opportunity must be given to the town authorities to apply to the court for such rules as they may be advised are proper to bring about a correct assessment of .the cost and expense of this sewer.