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ing that no force or meaning should be given to the words above quoted.

Under section 3 of the act before its amendment, it was provided that the cost of a sewer, the construction of which was authorized by the act, should "be borne and defrayed wholly by the owners of all lands that shall be benefited thereby." On the amendment of the section the language above quoted was substituted. If the Legislature intended that the expense of the sewer should only be borne by those benefited, and to leave the question as to who were benefited entirely to the decision of the commissioners, it was easy to do so by using the same language as in section 3 before the amendment.

I think the language of subdivision 6, section 3 (supra), clearly evinces a legislative determination that lands along the line of a sewer, the construction of which is authorized by the act, are to be held benefited by it. The commissioners appointed under the act have no right to determine otherwise; they can only decide what other lands are benefited, and the relative amount to be raised from the same, and from the lands along the line of the sewer. They are compelled to assume that every piece of land adjoining or along the line of the sewer (the territory designated by the Legislature as benefited) derives some benefit, and to assess the same in proportion to such benefit. They cannot modify the determination of the Legislature.

It is well settled that the Legislature, in providing for a public improvement, may designate the district benefited within the municipality where it is to be made, and charge the expense of it upon the property in such district; that this is an exercise of the taxing power, which is unlimited not only to the extent of the taxation to be imposed, but as to the manner, whether generally, upon all the property of a locality, or upon such only as is supposed to be benefited. (In the Matter of Van Antwerp et al., 56 N. Y. 261; McLaughlin et al. v. Miller, 124 id. 510; Spencer v. Merchant, 100 id. 585.)

Assuming, however, that the contention of the respondents as to the construction which should be given to the act in question is correct, and that the Legislature intended that only that portion of the property actually benefited should be assessed, it is apparent that

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the ten lots in question were omitted by the commissioners from the appraisal for benefits, and were not considered or appraised. I understand that the referee so found in his seventh finding. He says: "That there were wholly omitted from the said assessment for benefits, ten pieces or parcels of real estate over and upon which the said West Side Sewer was constructed, so that the same were in fact adjoining or along the line of said sewer, owned in severalty as follows:" (Stating the names of the several owners.)

And apparently, as a reason for such omission, the referee proceeds to state the fact that the several owners of such lots conveyed the same to the trustees of the village, with the agreement contained in such deeds that the several grantors should not be assessed for benefits.

The word assessment is defined to mean "the act of assessing, determining or adjusting the amount of taxation, charge, damages, etc., to be paid by an individual, a company, or a community." (Century Dict.)

The referee's finding that the ten lots were wholly omitted from the assessment for benefits is equivalent to saying that such property was not considered by the commissioners was not appraised. The commissioners, under the construction given the statute by the respondents, were called upon to determine whether the ten lots were subject to assessment, and the amount for which they should be charged to appraise them but they omitted them from such appraisement and assessment.

If there can be any doubt as to the meaning of the referee in his seventh finding, it will not be improper to examine his opinion with a view of ascertaining what he intended to determine in the finding in question. He says: "The trustees of the village, for the purpose of obtaining the right to construct the sewer across the rear ends of these lots, extending from Main street back to the railroad, took conveyances from the owners of lands between the brewery and Gibson street which were assessable for the construction of the Main street sewer, conditioned that they should not be assessed for the cost of construction of the West Side Sewer, and in consequence of such conveyances the commissioners omitted to appraise and APP. DIV.- VOL. XV.

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[Vol. 15. assess these lands for the construction of such sewer." It is impossible to read the evidence and admissions contained in the case without reaching the conclusion that the statement of fact thus quoted from the opinion of the referee is correct; that the commissioners did not appraise the ten lots, or consider them in their appraisement for benefits, because of the agreement of the trustees with the owners thereof.

It is difficult to see how, under the circumstances, the commissioners could have appraised the said property for benefits.

Undoubtedly the action of the trustees of the village of Canandaigua, in entering into an agreement with the vendors of the ten lots in question, that in consideration of such conveyance they should not be assessed for benefits, was illegal and unauthorized. The statute gave the trustees authority to purchase a right of way, and probably to settle the amount of damages therefor, but provided for the appointment of commissioners to assess benefits. Under the act no power whatever is given to the trustees to settle the amount of benefits, and no power will be implied.

But, although such action of the said trustees was beyond their authority, I think it prevented the commissioners from appraising and assessing the property in question for benefits. When the latter were called upon to make such appraisement, the village owned a sewer and the easement or right of way through the land where it was constructed. The right of way through a portion of such land had been obtained by voluntary conveyances from several grantors, and in each deed, as a consideration therefor, had been inserted a covenant that said grantor should not be assessed for benefits. The trustees of the village, while retaining the possession of the right of way thus conveyed, could not repudiate the covenant contained in the conveyances, which was, in fact, the consideration thereof. It was estopped from claiming before the commissioners that such grantor could be assessed for benefits.

The commissioners were necessarily bound by the action of the trustees. Benefits could not be assessed until the trustees had acquired a right of way and built the sewer, and until the damages had been determined. When the commissioners were called upon to act, the ten parties in question had conveyed a right of way and released their damages in consideration of the covenant contained

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in their several deeds that they should not be assessed for benefits. If the commissioners could hold this agreement void, the release of damages was also invalid. The action of the commissioners was necessarily based upon the previous action of the trustees, and that the release of damages was valid. And this being the case, they were compelled to hold that the agreement as to benefits, the consideration of such releases, was also valid. They could not hold the said several conveyances valid for the purpose of conveying a right of way for the sewer and release of damages therefor, and invalid as to the covenants therein in regard to benefits, which was the consideration thereof.

I think, therefore, that, whether the provisions of subdivision 6, section 3 (supra), be construed as counsel for the respondents claims it should be, or otherwise, the commissioners were prevented, by the illegal action of the trustees of the village of Canandaigua, from appraising a portion of the land through which the West Side sewer was laid, for benefits; that they did not attempt to obey the provisions of the statute in that regard, but wholly omitted the ten lots in question from such appraisement, and that hence the assessinent was invalid.

The commissioners having intentionally omitted from the assessment a portion of the property designated by the Legislature as benefited, and the necessary result of such omission being to increase the amount of the plaintiff's assessment, under the well-settled doctrine that where a board of officers in making a local assessment materially depart from the authority delegated them, they act without jurisdiction, this action was properly brought. (Savage v. City of Buffalo, 59 Hun, 606; 131 N. Y. 568; Hassen et al. v. City of Rochester et al., 65 id. 516; sub nom. Hassan v. City of Rochester, 67 id. 528; Elwood v. City of Rochester, 43 Hun, 102; sub nom. Ellwood v. City of Rochester, 122 N. Y. 229.)

Under the authorities cited the assessment in question was absolutely void as against the plaintiff. Judge EARL, in Van Deventer v. Long Island City (139 N. Y. 133–139), referring to the cases of Hassan et al. v. City of Rochester et al. and Ellwood v. City of Rochester (supra), and another case, says: "These cases hold that where the law requires the expense of a local improvement to be assessed upon property within prescribed limits to be benefited

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[Vol. 15. thereby, in proportion to the benefits, the assessment is void if any of the property be omitted from the assessment."

It is urged by the learned counsel for the respondents that the act under consideration has provided a remedy for erroneous acts on the part of the commissioners by a review of an assessment before them and an appeal to the County Court; that this remedy is exclusive, and, hence, that this action cannot be maintained. I have examined the cases cited by him, one of which is Garratt v. Trustees of Canandaigua (135 N. Y. 436). In that case, however, it appeared that the authorities of the village in constructing the sewer acted within their jurisdiction; that they had not violated the provisions of the statute authorizing the construction of a sewer, but in the exercise of their judgment and discretion had adopted a faulty plan. It was held in the case cited that, under such circumstances, a court of equity would not interfere as the plaintiffs could obtain relief by a rehearing before the commissioners and the appeal provided for by the statute.

There are authorities holding that in case of a public improvement authorized by a statute, in which a mode of redress is provided for persons claiming to be injured in consequence of a failure to obey the provisions of the law in making the improvement, such mode is exclusive and no right of action exists in their favor except that directed by the statute. (Heiser v. The Mayor, etc., of N. Y., 104 N. Y. 68; People v. Wasson, 64 id. 167; MacLaury v. Hart et al., 121 id. 636.)

But in neither of the cases cited did it appear that the persons or officers, whose proceedings were sought to be restrained or vacated, had acted beyond their jurisdiction; that the act of which the plaintiff complained was void for want of power. Hence, those authorities do not conflict with the doctrine laid down in the case of Hassan et al. v. City of Rochester (supra). In that case an action similar to this on a similar state of facts was held properly brought, although chapter 143, Laws of 1861, under the provisions of which the public improvement therein considered was authorized, provided for a review of the assessment and an appeal to the Supreme Court. Sections 197, 198 and 199 of that act provided that, after an assessment for a local improvement had been made, the common council should give notice that on a certain day they would hear appeals